Child Witnesses as Victims

A witness comes to court to answer questions from the defense and prosecutor. When a child is called as a witness in trial, the rules change. Children witnessing a crime can be a horrific experience for him or her, especially if the child is also a victim. Some are able to children cope. However, most are overwhelmed by the legal system.

Defense attorneys should be careful when cross-examining a child witness. A child’s competence and credibility is very reliant on how the attorney approaches the situation. In addition, there are a different set of rules and rights for child witnesses. A reputable defense lawyer can foster trust and real communication with a child witness.

If you have a case where a child witness is called, it is recommended to contact an experienced criminal defense attorney who is familiar with cross-examining children.

Salt Lake City Lawyer Experienced with Child Witnesses in Utah

Some children have unrealistic fears about being punished when they are called to the stand. A child may be traumatized, confused, or unable to trust an attorney when they are called as a witness. Experienced defense attorneys should be prepared and able to create a real dialogue with child witnesses.

A person, who is expecting a child witness in their case, should consider gaining legal representation. Susanne Gustin at Susanne Gustin Attorney at Law is a reputable criminal defense attorney, with a history of cross-examining child witnesses. She wants to do all she can to obtain the best result for her client’s case.

 Susanne Gustin understands that respect and care can raise the credibility of a child witness. She knows how to gain a child witness’s trust, and what to say to get the information to assist your case. Susanne Gustin has been prominent in the legal community. She has been admitted into several respected law associations such as the American Inns of Court, and the Top 100 National Trial Lawyers of Utah.

Susanne Gustin Attorney at Law cross-examines child witnesses throughout the 3rd Judicial District Court of Utah including surrounding cities including West Valley City, Riverton, West Jordan, Midvale, Provo, Salt Lake City, Farmington, and Tooele.

Call (801) 243-2814 or simply submit an online contact form for your free consultation today.

Overview for Child Witnesses as Victims in Utah

Problems with Child Witnesses

Unfortunately, children commonly witness to crimes or victims of a crime. This means child witnesses are often necessary to call upon in court. However, in the legal community, the reliability of child witnesses has been called into question.

An attorney may tell you that a child witness is hardly ever credible. This is not always the case. Children are developing, so memory and credibility can be trying. However, children often have vivid memories when in the face of trauma. If a child is treated correctly, he or she can give you the information you are looking for.

A child witness competency is measured based on his or her:

  • Sufficient intelligence, understanding, and ability to observe, recall, and communicate events;
  • An ability to comprehend the seriousness of an oath; and
  • An appreciation of the necessity to tell the truth.

The American Academy of Pediatrics released a study by Robert H. Pantell, which details the credibility of a child in the courtroom. The following are some factors, from that study, that test the trustworthiness of children on the stand.

  • Memory – Memory for children can change over time and under variable external circumstances. Information in interviews can change based on the questions being asked, who asks them, and the atmosphere of the questioning. Memories can change as children gather more experience. They may embellish an event with circumstances that occurred in similar, although unrelated event. The accuracy of information, over time, is challenging because of the wide variability in recall.
  • Maltreatment – Children who are victims of maltreatment, especially sexual abuse, can have challenges. In some cases, maltreatment may lead to an enhanced memory of the negative information. However, some subsets of maltreated minors have memory deficits around the event. This includes kids who suffer from dissociative symptoms.
  • Suggestibility – Suggestibility refers to the degree in which children’s storage, retrieval, encoding, and reporting of events can be influenced by a range of social and psychological factors. Experimental studies show that children can be induced to recall events that did not occur. The “Sam Stone study” by Michelle D. Liechtman MD, showed 42 percent of children assented to false statements. When adding questioning that was suggestive, the false assenting rate rose to 72 percent. Suggestibility is normally induced by parents, authority figures, or persons who are intimidating to the child. Children are normally willing and eager to respond to adults. They will try to answer the question the “correct” way. Ambiguous, suggestive questions can create false testimonies in court.
  • Lying – Children lie as young as three years old. Underlying motivation and understanding changes according to age. Psychiatrist Paul Ekman, released a study showing that 3 to 4 year olds are likely to lie to cover up the misbehavior of a friend or stranger. If caught in the act of doing something wrong, one-third of 4 to 6 year olds will deny the act. Very young children were also reported to label anything that is not true as a lie, even simple misstatements or mistakes. Children may lie spontaneously if there are no immediate consequences under coercive situations.

These factors may make it a problem when a child is called as a witness. However, a seasoned criminal defense attorney can use these elements to their advantage. With the correct behavior, questions, and demeanor, a defense attorney can obtain the information they need.

Additionally, children have the leverage of sympathy from the jury. Experienced criminal defense attorneys can also utilize this for their case. A child witness may be consoled during cross-examination, or show emotion during questioning. Either of these can result in obtaining the wanted testimony and the favor of the judge and jury.

Victim & Witness Rights in Utah

Utah legislature passed the Victim’s Bill of Rights in 1987 and constitutional legislation in 1994 to ensure all victims and witnesses of a crime, especially children, are treated with courtesy and sensitivity. 

The following are the rights of victims and witnesses in Utah.

  • The right to be treated with fairness, respect, and dignity;
  • The right to be free from harassment and abuse throughout the criminal justice process;
  • Victims and witnesses have a right, upon request, to be informed of all important criminal justice hearings;
  • Victims and witnesses have a right to be present and heard at arraignments, disposition of charges, conditions of release/bail hearings, and sentencing hearings;
  • Victims and witnesses have the right to be present at preliminary hearings and trials;
  • Victims and witnesses have the right to reasonable employer intercession services
  • Victims and witnesses have the right to be informed as to the level of protection available to protect them from intimidation and harm;
  • Victims and witnesses have the right to a secure waiting area that does not require them to be in close proximity to defendants and offenders;
  • Victims and witnesses have a right to privacy and should not be forced to disclose their address, telephone number, place of employment, or other locating information, without compelling reason;
  • Victims and witnesses have the right to have a sentencing judge, for the purpose of imposing an appropriate sentence, receive and consider reliable information concerning the background, character and conduct of those convicted;
  • Victims and witnesses have the right to restitution when appropriate and may also be eligible for reparations; and
  • Victims and witnesses have a right to a speedy trial and disposition of charges.

Children witnesses and victims have additional rights. The following are the rights to child witnesses and victims.

  • Right to keep interviews at a minimum relating to criminal prosecution;
  • Right to be questioned in the appropriate manner based on the child’s age and understanding;
  • Right to be questioned in a manner that implies that they are not responsible for the inappropriate behavior of adults;
  • Right to protection from physical and emotional abuse during their involvement with the criminal justice process;
  • Right to be informed of available community resources and how to gain access to these resources.

Alternatives to Live In-Court Testimony for Children in Utah

In some cases, a child will be asked to participate in a taped interview. A child may not be in court at all, but their testimony will instead be videotaped off-location or nearby.

If a child is unable to testify in court, they may be interviewed by closed-circuit television. A child also may be taken to a room outside the courtroom and televised by way of 2-way closed-circuit television. When a child’s testimony is televised, only certain people are allowed in the room. These people include:

  • Child’s attorney or guardian
  • Persons necessary to operate the closed-circuit television equipment
  • A judicial officer appointed by the court
  • Other persons whose presence is determined by the court to be necessary to the well-being of the child.

How to Cross-Examine a Child Witness

A child witness is one of the most difficult things to manage as a defense attorney. Children have very specific rules surrounding their questioning and often are overwhelmed by the process. A knowledgeable criminal defense attorney knows the skills and tricks to obtain the wanted testimony.

Susanne Gustin is familiar with child victims and witnesses. She understands what to do to make a child comfortable, gain their trust, and get the information she needs. The following are some tactics Ms. Gustin uses to cross-examine a child witness or victim.

  • Establish rapport with simple general questions. Such as where they go to school if they have siblings, how old they are, etc.
  • Sit down near the podium or child’s seat. This can reduce anxiety in the child and give lower a stranger’s intimidation factor.
  • Using a warm, calm and reassuring tone of voice.
  • Being extremely aware of facial expressions.
  • Give lots of positive feedback and affirmations during testimony
  • Give questions that are easy to understand and not too complex.
  • Speak slowly and carefully
  • Use simple common words and phrases
  • Repeat names and places often. This applies especially to the adults in their life. Such as “What did Jim say?” instead of “What did he say?”
  • Ask one short question or idea at a time. Instead of “Do you recall talking to her on Sunday after the event?” say “Do you know Cindy?” and then “Do you remember telling her that?”
  • Signpost the subject. Signposting is where you let the subject know what the question is about. For instance “Now I’m going to ask you about X.”
  • Avoid negatives. Phrase all questions as positively whenever possible.
  • Avoid “I suggest to you that…,” “Isn’t it a fact that…,” or similar statements. This puts the attorney in a powerful position and can be difficult for children to answer.
  • Avoid yes and no or otherwise restricted choice questions.
  • Check directly on the child’s understanding.

Additional Resources

Measuring Up? – Visit a document by the Nuffield Foundation, a non-profit organization that fund research, analysis, and student programs to promote understanding of the social and economic factors that affect their life. See the good practice guidance in managing young witness cases and questioning children by Joyce Plotnikoff and Richard Woolfson.

Utah Victim’s Rights Laws – See Utah’s Constitution and the Victim’s Bill of Rights concerning child witnesses. See the legal language surrounding victims and what they are automatically granted in court. Read the specifics on alternatives live-testimony for children, what additional rights they have, and reasons why a child may be excused from court.

Salt Lake City Lawyer for Child Witnesses in Utah

Child witnesses can be tricky for attorneys to manage in court. Many experts consider them to unreliable, or factors that can ruin a person’s defense. However, if handled properly, a child witness can be a valuable asset for your case. Find an attorney who is skilled at cross-examining children with Susanne Gustin Attorney at Law.

Susanne Gustin Attorney at Law defends clients throughout the greater Salt Lake City area. Susanne Gustin is a dedicated criminal defense attorney who has been practicing in Utah for nearly a quarter of a century. She is well-versed in cases involving child witnesses. Over the years, Ms. Gustin has created many successful tactics to approaching young witnesses. She wants to do everything in her power to protect your rights.

Susanne Gustin is respected among her legal peers by obtaining the highest AV rating by Martindale-Hubbell. The Martindale-Hubbell rating is recognition of a lawyer’s legal excellence and high ethical standards by their professional colleagues. Get legal representation that is prepared for anything that is thrown at them. Find that with Susanne Gustin at Susanne Gustin Attorney at Law.

Susanne Gustin Attorney at Law practices defense throughout the greater Davis County and Lake County area, and surrounding counties Tooele in Tooele County, Provo in Utah County, Salt Lake City in Salt Lake County, Coalville in Summit County, and Farmington in Davis County.

Call (801) 243-2814 and schedule a free consultation regarding your case today.

This article was last updated by Jordan Anderson, on July 30th, 2018.