CRJ335 Laws of Evidence
There are many places where society generally does not like to see or hear children: airplanes, nice restaurants, and expensive resorts. Another place we don’t like to see children is in court. There has never been a good reason, as far as I can see, for a child to be in a courtroom. When a child takes the stand, it is very unlikely that the reason they are there is a happy one. In the U.S., children may take the stand unless a judge determines that the child is not competent to testify. Children are impressionable, and, after being in a traumatizing situation, can lose credibility as a witness depending on their age. Child witnesses will often need the protection of extra measures and specialized treatment in order for them to give a testimony.
HISTORY OF CHILDREN IN COURT
As early as the sixteenth century, children have not only been allowed to testify in court, but they could also “serve in the military, as electors, as members of Parliament or the Virginia House of Burgesses, and as jurors” (Tanenhaus & Bush, 2007). During the late seventeenth century, much of that began to change. In 1895, the U.S. Supreme Court made the decision to allow a 5 year old to serve as a witness and since then “more than 100,000 children appear in court each year” (Ceci & de Bruyn, 2009).
CHILDREN AND THE LAW
Young children, typically persons under the age of 12, are typically seen as incapable of being credible witness due to their naivety and lack of development. The credibility of a witness, regardless of age, has always been a point of contention, which is why the law goes as far as it does to vette jurors and witnesses. The term “voir dire” is French in origin and translates to “see speak” or as we now know it “to speak the truth” (Gardner & Anderson, 2016). In legal proceedings, voir dire is the process of selecting appropriate jurors and expert witnesses for a case. In cases involving children as witnesses, the process can differ from state to state and from subject to subject. Some states will focus on “whether the child can demonstrate an understanding of the obligation to tell the truth” (McGough, 2012). McGough (2012) continues, stating that other states allow “a more freewheeling probe into the child’s moral and cognitive development”. Neither of these approaches, though, truly examine the reliability of a child’s testimony.
STATUTES AND PROTECTION
Under Title 18 of the U.S. Codes you will find Section 3059: Child Victims’ and Child Witnesses’ Rights. This section defines federal statutes that protect child witnesses. Protections afforded include: alternatives to live in-court testimony, competency evaluations, privacy protection, and closing of the courtroom, Crime and Criminal Procedure, 18 U.S.C. § 3059 (2018). The first of these, Alternatives to Live In-Court Testimony, 18 U.S.C § 3059(b)(1), allows for child witnesses to give live testimony by 2-way closed circuit television. Another alternative provided is a videotaped deposition of the child, 18 U.S.C § 3059(b)(2). These protections are allowed because, in many cases, children have a hard time testifying in front of the defendant and large crowds. All effort is made to avoid any additional stress and trauma that could be caused in court. The other protections outlined in the statute go into further detail regarding the collection of evidence and the maintaining of the child’s protection.
The competency evaluations outlined in the statute also take action to keep any further trauma away from the child. This means that if competency is questioned, the reason has to be quite compelling to the court. If an evaluation needs to be conducted, and the court allows it, then there are a limited number of persons who may be present during the evaluation. Those persons are usually court officials, attorney or guardian, 18 U.S.C § 3059(c)(5)(A)(B)(C)(D)(E). Additionally, the child witness is afforded confidentiality and protective orders that will safeguard them and their testimony. Lastly, courts can order that certain persons be excluded from the courtroom when a child testifies, such as the press and general members of the public, 18 U.S.C § 3059(e).
WHY MORE RESTRICTIONS IN AMERICA
Even though the U.S. adopted the English system of evidentiary rules, many changes have been made since that time. The rules in the United States, as compared to other countries, are more restrictive because of our Constitutional safeguards on individual rights. An example of restriction between the U.S. and the U.K. is provided in the English Civil Evidence Act of 1995. Section 1 of this act allows for the admission of hearsay evidence (Munday, 1997). British legislation will also allow hearsay evidence to be used in criminal proceedings (Mulcahy, 2005). U.S. courts of law would not allow such evidence as it makes it possible for the victim to persuade their family and friends to give false testimony in support of their accusations.
U.S. evidentiary rules have been known for their complexity. With all of the exceptions and exclusions on a case to case basis can make it somewhat difficult to follow. Lawrence Friedman (2005) argued that the complexity of our rules are due to the rights of citizens as well as setting strict limitations on the admissibility of evidence as a necessary way to prevent a jury of our peers from being distracted by irrelevant information. To put it clearly, there is a desire to afford every citizen certain legal protections, even for the children who find themselves in a courtroom, testifying under oath.
Ceci S. J., de Bruyn, E. Child witnesses in court: a growing dilemma. Children Today. US Department of Health and Human Services; 1993;22(1). Available at: www.pbs.org/wgbh/pages/frontline/shows/innocence/readings/childwitnesses.html. Accessed January 24, 2020
Friedman, L. M. (2005). A history of American law (3rd ed.). New York, NY: Simon & Schuster.
Gardner, T. J., & Anderson, T. M. (2016). Criminal evidence: Principles and cases (9th ed.). Belmont, CA: Wadsworth
McGough, L. S. (2012) Asking the Right Questions: Reviving the Voir Dire for Child Witnesses, 5 Ga. St. U. L. Available at: https://readingroom.law.gsu.edu/gsulr/vol5/iss2/3
Mulcahy, C. (2005). Unfair Consequences: How the Reforms to the Rule Against Hearsay in the Criminal Justice Act 2003 Violate a Defendant’s Right to a Fair Trial Under the European Convention on Human Rights. Boston College International and Comparative Law Review, 28(2), 1–25. Retrieved from https://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1065&context=iclr
Munday, R. (1997). The Civil Evidence Act 1995 and the Diverging Paths of Civil and Criminal Hearsay Rules. The Cambridge Law Journal, 56(2), 272-274. Retrieved January 24, 2020, from www.jstor.org/stable/4508340
Tanenhaus, D. S. and Bush, W., “Toward a History of Children as Witnesses” (2007). Scholarly Works. Paper 592. http://scholars.law.unlv.edu/facpub/592