RECOMMENDATION 69

Part: 
Three
Chapter: 
3

Federal, State and Local prosecutors should participate in a task force of multidisciplinary practitioners and develop a protocol for courtroom procedures for child witnesses that would meet constitutional standards.

Prosecutors must be aware of the special considerations involving a child victim-witness. In many states children of a certain age are presumed incompetent to testify. When the child is the only witness to a crime, such as child pornography and related crimes, prosecutors face special problems.

Prosecutors should work with other professionals including law enforcement agents, medical and mental health professionals and social service personnel, involved in child pornography cases to develop a courtroom protocol which maintains the integrity and emotional well-being of the child as well as preserving the constitutional rights of the defendant.

The task force should specifically address a number of issues. First, the number of repetitive questions asked of a child witness during the trial should be limited. A child may become easily frightened when repeatedly asked questions during the trial. This lengthy process increases the trauma and sense of guilt in victims associated with these crimes. The task force should develop methods of support for the child through this period while insuring the defendant's right to confrontation.

The prosecutor specifically may reduce this trauma by objecting to repetitive questioning on the ground of harassment.[658] The prosecutor should emphasize the special emotional frailty of the child in making the objection.

Prosecutors should develop guidelines to qualify a child as a competent witness. While very young children may be incapable of communication, those who are articulate should be presumed competent until the testimony demonstrates otherwise. In questioning a child witness prosecutors should be permitted to use age-appropriate language and allow the child to respond in terms with which they feel comfortable. Children should be permitted to use anatomically correct dolls, if necessary, to demonstrate the manner in which they were exposed or molested. The determination of credibility should be left to the jury as it is with any other witness.

Prosecutors should attempt to avoid delays in preliminary hearings and trials. Repeated delays add to the confusion and trauma of a child witness. Prosecutors may develop a priority calendar for child pornography and related cases. These guidelines should be used to preserve the credibility of the child witness as well as eliminate the extent of the trauma caused by extensive delays in judicial procedures.

Prosecutors may also consider the use of closed circuit television to present the child's testimony. This would eliminate many of the distractions a child witness faces. A child is normally apprehensive in a new environment and will be reluctant to testify forthrightly. The closed circuit television could enable a child to testify and be subjected to cross-examination without being intimidated by the courtroom proceedings or the presence of the defendant.

The task force should also consider developing guidelines to coordinate criminal, civil and family law proceedings. In addition, the protocol should consider the use of grand juries in place of preliminary hearings. These guidelines would maintain the integrity of the judicial proceeding while eliminating any unnecessary trauma for the victims. All task force recommendations should clearly safeguard the constitutional protections afforded the accused.

Notes

  1. Fed. R. Ev. 611 provides:
  2. (a) Control By Court. The court shall exercise reasonable control over the mode and order if interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.