By Criminal Defense Lawyer Jeremy Rosenthal
Children must often testify in open court to satisfy the U.S. Constitution’s confrontation clause in the 6th Amendment. The 6th Amendment has been repeatedly held to require a defendant be allowed to cross-examine their accuser in open court.
Other examples of the confrontation clause would be the arresting officer in a DWI arrest having to take the witness stand, a battered spouse having to take the witness stand in a prosecution against their abuser, or an eyewitness to a crime like robbery.
Emotional Trauma Versus Principals of Justice
Many folks feel like having to put the child on the witness stand is just an arbitrary rule with long-term emotional damage as a consequence from the trauma of having to testify. Unfortunately they are often correct about the emotional trauma – I have spoken with many adults who had to take the witness stands as children and it is normally reported as an awful experience.
While I can’t make anyone feel much better about impact of the rule on the child – perhaps I can at least speak to the gravity of what the rules try to accomplish.
Why the Right to Cross Examine is Critical to Our System of Justice
My favorite quote about the right to confront is by Henry Wigmore, “Cross examination is, beyond a doubt, the greatest single engine for the discovery of truth.” I couldn’t agree more.
While “cross examination” seems harsh understanding we’re talking about children – it really just means the difference between asking closed ended questions and open ended questions.
Consider in a sexual assault of a child case – the police, detectives and children’s advocates only ask the child “what happened next…..? and then what happened….? and what happened after that?” It is probably a decent way not to suggest facts and details to the child, but doesn’t really scrutinize anything either. It sort of assumes it all to be true without pressing any of the weak points of the story.
Now consider a child telling their parent they feel sick and can’t go to school. Is the parent just going to ask how the child is feeling and regardless of what the child says accept it all as true? Probably not. The parent will probably conduct a bit of an investigation which tests the child’s claims. Is there a fever? Don’t you have a test today? The chicken we had for dinner last night didn’t make anyone else sick?
Perhaps the child’s claims of being sick withstands the cross examination… then again, maybe the story withers. This is how cross examination with pointed, leading questions can get to the truth. Open ended questions, on the other hand, provide a stage for someone to make their sales pitch.
Can’t Someone Else Testify in Place of the Child?
Unfortunately not. Another component of confrontation is cross-examining the actual witness and not a surrogate.
The law recognizes the surrogate simply will not know the details sufficient enough to provide a meaningful cross examination. Was it light or dark outside? Was the weather cold or hot? Who else was in the room? The surrogate typically won’t know the actual details and cross examining them is not the same as cross examining the accuser.
Separating Fact Versus Fiction About Children Testifying
A common misconception from the parents or legal guardinan of children having to testify is it would be like television or the movies. That the accused will make threatening faces at the child or try to jump over counsel-table and charge the witness stand. I’ve never seen or heard of anything like this remotely happening.
The truth is the accused is going through a range of emotions too like fear, uncertainty and who knows what else.
Other Rules about Children Testifying in Texas
Texas rules do allow grown-ups to testify in certain situations about what they child told them. Those rules are allowed to essentially supplement what the child says and not replace what the child says.
It is also a criminal offense to try and persuade or influence any witness, child included, about their testimony. It’s obviously a crime, too, to try and convince a witness to ignore a subpoena or not testify.
*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization. He is recognized as a Texas Super Lawyer by Thomson Reuters. Nothing in this article should be considered legal advice. For legal advice about any situation you should contact a lawyer directly.