Select Page

Children & the Law
University of South Carolina School of Law
Lively, Candice A.

Children and the Law Outline

Professor Lively, Spring 2012

University of South Carolina School of Law

Children as Witnesses

· States determined by age a child’s competency to testify. Older children usually over the age of 12 are presumptively competent, young children under 7 were incompetent as a matter of law. Children in the middle were presumptively incompetent.

· In the past 20 yrs a number of states have enacted statutes making even the youngest child victims at least presumptively competent to testify in sex abuse prosecutions, provided the child can communicate.

· 18 U.S.C. §3509(c) governs federal court testimony of child victims of physical, emotional, or sexual abuse- children who are victims of child exploitation or children who witness a crime against other person.

· The statute presumes that children are competent and authorizes competency hearings only for a compelling reason other than age. Any such hearing must be outside the jury’s presence with a guardian ad litem appearing for the child.

· Some courts inquire about the child’s understanding of the oath or affirmation that the child gives for sworn testimony.

· A witness may testify only where the witness can observe an event, remember what happened, and recount what happened accurately at trial. A witness must swear or affirm to be truthful. Adults are presumed to be competent witnesses and usually must take an oath.

· Children are presumed competent for most states and do not need to overcome presumptions of incompetence.

· Traditionally states determined by age a child’s competency to testify. The court could hold a competency hearing to make a particularized determination.

· Now even the youngest child victims are presumptively competent to testify in sex abuse prosecutions, provided the child can communicate in some states.

· Congress enacted 18 U.S.C. §3509(c) which governs federal court testimony of child victims of physical, emotional or sexual abuse; children who are victims of child exploitation (child pornography or child prostitution), or children who witness a crime against another person.

o The statute presumes children are competent, and authorizes competency hearings only for a compelling reason other than age; any such hearing must be outside the jury’s presence, with a guardian ad litem appearing sometimes.

o Some courts ask about the child’s understanding of the oath or affirmation that the child gives for sworn testimony. They find out if the child is lying or not.

· State v. G.C.

o Competence of a witness to testify resides at the core of all contested judicial proceedings.

o FACTS: Defendant G.C. and his wife were the parents of 2 young daughters, Doris (1 yr and 5 months) and Kate (an infant). The two separated and defendant returned to father’s home and wife to mother’s home with her 2 daughters where wife’s grandmother also lived. The wife retained custody of the kids.

o After visitations with dad, Doris started having nightmares, and then told her mother she was being touched by her father inappropriately.

o ISSUE: What is required in order to declare a child sexual abuse victim competent to testify?

o The little girl’s testimony was videotaped. The father then admitted he had done so, and the grand jury charged him with first degree aggravated sexual assault, second degree sexual assault and second degree endangering the welfare of a child.

o Doris was called to testify, but defense counsel wanted a determination that the 5 yr old was competent.

o She was asked about the difference between a lie and the truth, to which she answered correctly. The trial court concluded that she was sworn and qualified to present testimony by saying she was going to tell the truth.

o It is not necessary that an infant mouth the traditional oath nor comprehend its legal significance because any holding otherwise would preclude children from testifying against their assailants. Also we are confident that allowing departures from the traditional oath will not result in convictions based upon the word of infants incapable of understanding the difference between right and wrong. Infants must still be competent to testify.

o The defendant argues that Doris was incapable of expressing herself in a manner that was understandable.

o She did understand her duty and she was found competent by the trial judge which should not be disturbed.

o In order to be competent- have to observe, recollect what they observe and understand the duty to tell the truth.

o If defense lawyer talking to 6 yr old witness, going to look at her telling her what needs to happen, and assess if you think 6 yr old is competent- can she do 4 things? She does not understand the difference between a truth and a lie.

o If defense in this case- rule says victim is competent, to declare witness incompetent- want to file a motion. Want to litigate ahead of time to direct judge’s perspective on developmental stages of child.

o Our job is to make sure that therapist should testify before child does.

o A trial court judge who wants a clean jury trial, and you know as a prosecutor that your child cannot take an oath. You probably bring someone in that is a therapist and can tell you b/c they worked with this particular child, this is what to expect from a 6 yr old. Set groundwork for judge and you’re off and running. Bring on his or her own witness, then attack your own witness.

o If you are the prosecutor or defense attorney, then you set it up- you understand children have different levels. Can administer an oath based on the needs of that particular witness.

o HOLDING: She was capable of expressing herself in a manner that was understandable. The inquiry conducted by the trial court was sufficient to support trial court’s exercise of discretion in determining Doris’ competence. She did understand the duty to tell the truth.

o The determination of whether a person is competent to be a witness lies within the sound discretion of the trial judge.

· Notes

o Children’s performance on the stand is similar to adults except that children under 6 are less able to describe past events accurately without cues and are more susceptible to suggestion. To reduce that, one professor recommends that interviews with children be videotaped and be conducted by a trained, neutral interviewer soon after the event.

o A significant source of inaccurate testimony from children comes from suggestive interviews.

· Motions argued in Class

o Can have personal comfort item come in for child

o Can usually have support person come in for comfort for the child, but they can’t testify.

o Can have family member come in, but if they are trying to direct the child, then that’s bad and defense needs to object to it.

o Therapy dogs are also more prevalent- dog might come in w/child and child could pet the dog while testifying. Case law says that’s appropriate way of testifying but will prob. have to have instruction from judge and expert testimony about dog and relationship with dog and child.

o Can have closed circuit tvs filming child.

o Anything we don’t have case law on, until we get case law, not going to make that motion, but not giving a child a fair chance.

Representing Children

· Children are witnesses, defendants, etc.- interactions with courts

· 2 big places children end up:

o family court

§ victim as abuse of neglect- but parents are in court instead of them

§ juvenile- accused of a crime, not tried as an adult, but in juvenile court

o criminal court

§ victim of crime or witness of a crime

· Law has developed by way of statute.

· In constant war with the feds.

o Get most of funding for DSS from feds.

o Child protection system is contract between federal gov’t and all states.

o Statute is called CAPTA.

· We have family court that comes in and puts parents in there, comes from federal statute. Sets up system of design. Driven by federal statute.

· In re Galt- when you deprive juvenile of liberty, have to

n developing good decision-making skills.

· Elizabeth Scott states that 4 spheres of development- neurological, intellectual, emotional and psycho-social- affect the capacities of individuals to understand information and make decisions.

o Youths in early and mid-adolescence generally are neurologically immature. Their brains are unstable, they have not yet attained their adult neurological potential to respond effectively to situations that require careful or reasoned decisions and they may be more inclined than adults to act impulsively and without planning.

o As youths enter and proceed through adolescence, they acquire new information through experience and education and practice their cognitive abilities in a broader range of contexts.

o Impulse control allows reactions to be influenced not only by emotion but also by reason and particularly by consideration of probable consequences. Children acquire impulse control in stages from birth through adulthood through an iterative learning process that must be undergone at each new stage.

o Adolescents are less mature in psychosocial development which influences the way they approach decisions, particularly in context of social relations.

Representing Children

· Model Rules of Professional Conduct provide that when a client’s ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability, or for some other reason, the lawyer shall maintain a normal client-lawyer relationship with the client.

· Attorneys for children should serve consistently with the norms governing the attorney-child relationship. They should be allowed to direct representation as would any other client, and lawyers should advocate for their clients’ objectives.

· A minority believe that the attorney should decide and advocate for the child’s best interests.

Martin Guggenheim, A Paradigm For Determining the Role of Counsel for Children

· A lawyer’s first role is to enforce and advance her clients’ legal rights.

· When clients do not have autonomy rights, lawyers should not allow their clients to set the objectives.

· A lawyer for a young child must act according to the rights of the young child involved- the principal tasks is to examine relevant legislation and case law in the particular subject area.

· Counsel’s principal objective should be to become the child client’s law enforcer.

· In cases not constrained by law, the lawyer should assist the judge to decide the case correctly with minimum involvement by the child.

Katherine Hunt Federle, the Ethics of Empowerment

· Power structures the interactions between and among individuals and the state. Power permits and individual to assert a claim against another and power that permits the enforcement of that claim.

· The attorney has ethical obligation to ensure that the client has the power to make decisions about her case and determine true objectives of representation.

· The lawyer must recognize that the relationship is unequal in terms of power. Interviewing and counseling are effective mechanisms for facilitating the child client’s full participation in both the legal system and the attorney-client relationship.