Faculty Lecture

• Preparing A Child Witness for Court

Required Reading

Finnegan, M. J. (2000). Creating and administering a kids court program Update 13f5\

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This presentation will discuss children's misconceptions of the court process and various methods of court preparation that can be used to dispel those misconceptions. Strategies for better preparing the courtroom and the judge will also be presented.

1. A Child's View of Court
   1. A child's perception of court often comes from the inaccurate portrayal of the justice system on television.
   2. The Judge Judy Effect: Judges are "mean" and "yell".
   3. Kids can get in trouble and go to jail by testifying in court.
   4. People who testify will be on television.
   5. The courtroom is full of spectators.
   6. The court process moves quickly.
   7. Court is exciting
   8. Defendants can ask kids questions.
2. SURVEY SAYS!
   34 third graders were asked to help figure out what a few words meant. They were told there were no wrong answers.
   These are their responses. (By Lyrin Copen, Advocate, Kenosha , Wl)
   1. WHY DO JUDGES WEAR A BLACK ROBE? SURVEY SAYS!
      1. It's the uniform.
      2. Afraid to wear a red one.
      3. Has ugie (sic) clothes and needs to cover them.
      4. Ready for bed.
      5. To show off.
      6. They spill soop(sic).
      7. So everyone knows who they are.
      8. To stay warm.
      9. So they have something to wear.
      10. BIends in with his akuitmint (sic).
   2. WHAT IS A BAILIFF? SURVEY SAYS!
      1. Helps the judge.
      2. Don't know.
      3. Finds the prosecutor guilty.
      4. Sells things.
      5. A farmer.
      6. Does something with hay.
      7. Bails you out of court.
      8. Steals.
      9. Builds houses.
      10. A spy or takes pictures for someone.
   3. WHAT IS A JURY? SURVEY SAYS!
      1. People who tell the judge you are guilty.
      2. People that disagree with people.
      3. When court is done, the judge says, "jury!"
      4. You swallow it.
      5. You wear it, like earrings and stuff.
      6. People that come to see the court.
      7. A person that listens to the bad person's story.
      8. Avengers.
      9. It's a movie.
      10. The police.
   4. WHAT IS A DEFENDANT? SURVEY SAYS!
      1. Gives you gifts.
      2. A nut.
      3. Someone that tells you the questions at court.
      4. Someone who chases you.
      5. Someone that defends you.
      6. Someone that says "order in the court".
      7. A witness to something.
      8. A guard.
      9. Someone that defends them from bad people.
      10. Someone that fights for you.
   5. WHAT IS A PROSECUTOR? SURVEY SAYS!
      1. Not sure, but it's bad or naughty.
      2. A person who doe.s not like anybody.
      3. A drug dealer.
      4. Someone who camps by the water in a tent.
      5. Does paperwork.
      6. Someone who asks questions.
      7. Someone who has killed someone.
      8. Someone who goes to jail.
3. Court Related Stress in Young Victims
   1. Multiple interviews.
   2. Testifying multiple times.
   3. Fear of public exposure.
   4. Facing the defendant.
   5. Lack of understanding of process.
   6. Lack of communication between system and families.
   7. Practices that are insensitive to developmental needs.
   8. Potentially harsh cross-examination.
   9. Sequestration of witnesses who may be supportive of child.
   10. Concurrent out-of-home placement.
   11. Inadequate preparation for role as witness.
   12. Lack of corroborative evidence beyond child's testimony.
   13. Threats from family and/or defendant.
4. Court Preparation
   1. Types of court preparation
      1. Individual
      2. Court School
5. Goals of Court Preparation
   1. To reduce the stress level in the child witness.
   2. To help the child understand the nature and seriousness of the proceedings.
   3. To minimize the likelihood that the child will suffer negative court related harm.
   4. To improve the child's ability to answer questions in court in the most accurate, complete and truthful manner.
   5. To maximize the child's ability to be perceived as a credible witness.
6. Who can help you?
   1. Always include the non-offending caregiver in the court process.
   2. In some cases you may want to involve a child's therapist. The therapist can help the child to identify coping techniques.
7. Preparing Very Young Children: Young Maltreated Children's Competence to Take the Oath — Lyon & Saywitz (1999)'. Even very young children could correctly identify truthful statements and lies.
   1. PREPARING 3-7 YEAR OLDS
      1.  
      2. Confuse roles of police, courts, and prison.
      3. Have a visual image of a judge but don't understand the judicial role.
      4. 82% don't understand the role of a judge.
      5. Over 50% of kids below age 7 don't know what lawyers do.
      6. Over 50% of 4-7 year olds don't know that court is about evaluating evidence and seeking the truth.
   2. PREPARING 8-11 YEAR OLDS
      1. 8-9 year olds are beginning to understand the legal system.
      2. Many no longer confuse the role of the police with the role of the court.
      3. Many 8-11 year olds remain confused about what goes on in court.
   3. PREPARING 12-14 YEAR OLDSⁱⁱ
      1. As a child approaches adolescence, their knowledge of the legal system is similar to that of an adult.
8. What A Child Needs to Know
   1. Who
      1. A child needs to be familiarized with all of the individuals who will participate in the court process.
      2. A child needs to know that the defendant and other non-supportive people may be in court.
   2. What
      1. A child needs to have knowledge of what will happen in court.
      2. A child needs to have some understanding of courtroom terminology (example "swear").
      3. A child needs to know their rights in court.
      4. A child should be prepared to look at evidence while on the stand.
      5. A child needs to know that there will be a direct and cross-examination.
   3. When
      1. A child needs to know when and how often they will go to court.
      2. Measures should be taken to assure that the child testifies at an appropriate time.
         1. Avoid scheduling testimony during nap or other quiet times.
         2. Young children cannot wait for extended periods of time before testifying.
         3. Continuous breaks should be given while a child is on the stand.
   4. Where
      1. Children and their non-offending caregiver need to know where they will wait prior to testifying.
      2. If a child will be sequestered from family, make sure she knows this ahead of time.
      3. Have a back-up support person.
      4. A child needs to know where the defendant will be in relation to where they will sit during testimony.
      5. Tell a child where to look for a "friendly" face (support person, prosecutor, etc.).
   5. How
      1. A child needs to understand appropriate courtroom behavior.
         1. Discuss what to wear to court
         2. Stress importance of "best behavior" while in court
         3. Stress importance of telling the truth
9. Facing the Defendant
   1. Fear
   2. Ambivalence
   3. Love
   4. Affection
10. A Child's Rights In Court
    1. The right to let court personnel know if someone in the courtroom is making them uncomfortable.
    2. The right to answer "I don't know", "I don't understand", or "I don't remember" instead of guessing.
    3. The right to a break, glass of water, etc.
    4. The right to show emotions.
    5. The right to a support person.
    6. The right to understand their "job" in court is to tell the truth.
    7. The right to a comfort item.
11. ADVOCATES AND COURT PREP
    1. Victim advocate should take the role of liaison between parents and prosecutor's office.
    2. Victim advocate should provide support and information to child and family throughout process.
    3. Victim advocate and prosecutor must be in constant contact.
    4. Victim advocate must be prepared to testify re: court preparation.
    5. Educating The Caregiver
       1. Explain the need to have child physically and emotionally ready for trial.
          1. Prepare child as they would for other stressful events (example: doctor's visit, major exam, sports competition).
          2. Make sure a child has a good night's sleep prior to the trial.
          3. Make sure a child has a good dinner the night before and a nourishing breakfast the day of court.
          4. Explain to parent that child may be physically and emotionally exhausted after testifying.
12. Victim Impact Statements
    1. Important opportunity for child and family.
       1. Give option of having statement read for them, given to the judge, or allowing child/family member to read it on their own.
       2. Let statements be read even if sentence is already predetermined.
       3. Advocates or therapist should be available to help child/family with statements.
       4. Do not force child/family to write statements.
13. Attorneys and Court Preparation
    1. Education is the key.
       1. Attorneys need to know and understand how to apply the following:
          1. Child Witness Literature
          2. Cognitive Development Literature
          3. Linguistic Development of Children
          4. Background Information on Case
    2. Educating the Court
       1. Attomeys need to take an active role.
       2. Provide the Court with up to date information based on sound theory, practice, and scientific evidence.
       3. Pre Trial Motions
          1. Altering the court for child witnesses.
          2. Using developmental^ appropriate language in court.
          3. Tone of voice - objections.
          4. Use of support person for child witness
          5. Use of comfort item
14. Big Girls Don't Cry Studyⁱⁱⁱ. 133 undergraduate students served as a mock jury. They read a trial summary and were shown "courtroom drawings" of the "victim". In the pictures the child was portrayed as either calm, teary, or crying hysterically. The students believed the "teary" victim, more often then the calm, or hysterical one.
15. "Even very young children can tell us what they know if we ask them the question in the right way" - Anne Graffam Walker

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Suggested Readings/ References

1. Lipovsky, J. & Stern, P. (1997) Preparing Children for Court: An Interdisciplinary View. 2(2) Child Maltreatment, 150 -163.
2. Myers, J., Saywitz, K., & Goodman, G., (1996) Psychological Research on Children as Witnesses: Practical Implications for Forensic Interviews and Courtroom Testimony. Pacific Law Journal, 28, 3-90.
3. Whitcomb, Debra. (1992) Child Victims as Witnesses: What the Research Says. Educational Development Center, Newton, MA.
4. CornerHouse - Finding Words (APRI 2001)
5. Mitnick, Mindy F., Ed.M., MA The Use of Language in Interviewing Children

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Reprinted with permission from:
Finnegan, M. J. (2000). Creating and administering
a kids court program. Update 13(5).

Children often come to court with preconceived notions of what the experience will entail. Many children believe their court experience will be the same as what they see on television. They expect the judge to be "mean" and "yell" at them. They think that the courtroom will be filled with spectators and that they will be on television. Many defendants threaten to kill their victims if they tell about the abuse. Even in the absence of such a threat, many children fear their abuser may harm them in the courtroom. The fact that children are required to testify in court about horrific abuse situations in front of the person who committed these crimes makes it is easy to understand a child's anxiety. Due to these factors, it is vital that children be prepared for court. With proper preparation, children can testify in an effective, non-traumatizing way. As Karen Saywitz explains, "under stress, children may shut down on the stand or refuse to testify altogether."ii However, "preparation can optimize a child's functioning" and "ease a child's anxiety" resulting in more accurate testimony, iii

With the understanding that many jurisdictions do not have sufficient resources to establish formal court preparation programs, the following steps may be used to create a useful, yet inexpensive program to help children prepare for the courtroom setting and demonstrate their credibility as witnesses.iv Court preparation can take place in a group forum or as individual preparation. Both can be beneficial. Some children can participate in group preparation or court school. Group preparation allows children to

feel less isolated; they are able to see that other children go to court too. Other children may be dealing with severe emotional and behavioral problems either as a result of the abuse or for various other reasons that limit their ability to interact with other children in a safe, appropriate way. These children may do better in a one-on-one setting and deserve to have the individual learning environment that they need. Keeping in mind that each jurisdiction will need to implement a court school reflecting local needs, the following suggestions are offered.

1. Kids Court Coordinator

A victim witness advocate or other qualified professional(s) must be available to administer the program. There are several distinct advantages to using a victim witness advocate rather than a prosecuting attorney as the coordinator. First, a victim witness advocate can be used as a witness if needed. If the defense is alluding to a jury that the child witness was told what to say during court preparation, the advocate can testify as to the court preparation procedure. Second, although the details of the case are not discussed during court preparation, if a child does accidentally disclose details of the abuse and later recants, again the advocate can be used as a witness. A third advantage rests in the advocate's training. An advocate with a working knowledge of child abuse dynamics may be able to determine how a child is reacting to the trauma and appropriately help the child by referring him or her to treatment with a qualified therapist.

Prosecuting attorneys should not participate in the children's segment of the Kids Court program, as the program should be neutral both in appearance and in fact. Involving the prosecutor may subject the program to the attack of being biased in favor of the government. However, a qualified coordinator must have knowledge of both child abuse issues and the court process.

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2. Location

Two rooms are ideally needed for a Kids Court program: a "child friendly" room and an empty courtroom. The "child friendly" room is anon-threatening room, perhaps decorated with children's artwork and stuffed animals. While at least a significant portion of a Kids Court program should take place in a courtroom, it may be overwhelming to some children to immediately enter a courtroom, even if it is empty .It is better to first meet with a child and the non-offending caregiver in the less threatening, "child friendly" room.

3. Materials

Visual aids are vital when explaining court to children. Drawings of the courtroom and court personnel are useful to explain court roles. These drawings can be in poster form for older children or as touchable cutout figures for younger children. It is also advisable to have child, teen and caregiver booklets outlining information learned at court school that can be taken home and reviewed as court draws nearer, v Booklets for young children can be in coloring book form.

4. Court Personnel

It is important to have court personnel available and willing to talk to the Kids Court participants. Kids are entering the program with misperceptions of court personnel and this is a perfect opportunity for kids to speak with court personnel and dispel any misperceptions. At a minimum, arrange for a judge and a bailiff to be available to meet with participants. Children want to meet a judge because the judge is in control of the courtroom. Since children often have fears relating to testifying in court, a bailiff is often the person they need to meet the most. They are told that the bailiff is the policeman of the courtroom who makes sure everyone feels and is safe. This is vitally important to a young child who may be afraid of what will happen when they tell the truth in the courtroom.

5. Volunteers

Depending on how many children attend your court school, it may be necessary to enlist the help of volunteers. All volunteers should understand confidentiality and receive continuous training on pertinent child abuse issues from the Kids Court Coordinator. Volunteers need to understand that the children attending the program may be reacting to the trauma they have experienced. Volunteers are utilized to assist the children in role-playing activities.

ADMINISTERING THE PROGRAM

An ideal Kids Court program will have three components: a Kids Group, a Teens Group, and a Non-offending Caregivers Group.

Kids Group Session 1

At the beginning of the Kids Group, it is important to remind the children that individual cases are not to be discussed. The Kids Group should begin with the children being educated by the coordinator as to the court participants and their roles. This can be done in a child friendly atmosphere outside of the courtroom. Court roles should be explained in age-appropriate language with the use of visual materials, such as drawings of the courtroom and court personnel. Next, the coordinator and volunteers can escort the children to an empty courtroom. Encourage the children to bring comfort items, such as stuffed animals, to the courtroom. Once inside the courtroom the children are given a chance to role-play the positions of all persons present during

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a court proceeding. While performing as an attorney, witness, judge, et al., children role-play asking and answering questions. These questions are of a non-threatening nature and wholly unrelated to the criminal case and abuse experienced by the child. Suggested question topics include sports, school, music, and hobbies. Please note that the defendant's role is excluded from this exercise to maintain the neutrality of the program and prevent traumatization of the child.

Rev. 04/20/04

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Session 2

Once they are comfortable role-playing, children can be given the opportunity to participate in a mock trial. Following a skit by the advocates and volunteers, or after hearing a story, vi the advocates and volunteers can create a mock trial in which each child is a participant. Props relating to the skit or story are helpful for the children's understanding of evidence.

Session 3

Children should also have the opportunity to meet with courtroom personnel to dispel any fears they may have and allow them to come to the realization that court personnel are regular people. Courtroom personnel may want to role-play with the children or take them on a tour of the courthouse.

Teens Group

A separate Teens Court program should be available for any teenager who may testify in court. Kids Court is geared towards younger children. Having an adolescent participate in a program that is not age-appropriate can be insulting.

Sessions 1 and 2

Allow teens to discuss with the facilitator and other teen group members the criminal court process, the roles of courtroom participants, their own role in court, their possible fears regarding court, and the reactions they may be experiencing as a result of the trauma. This group interaction can help teens feel less isolated. Remind the adolescents at the beginning of the session not to discuss details of their individual cases. After questions have been asked, discussed, and answered, the teenagers may also opt to role-play in an empty courtroom. This role-playing activity is comparable to the role-playing completed by the younger children.

Session 3

Teens should also be given the opportunity to meet with courtroom personnel in order to have their questions answered. This can be a combined activity with the Kids Group if necessary.

An often overlooked, but extremely important component to any Kids or Teens Court program is a group for the non-offending caregivers that meets simultaneously with the children and adolescent groups. Giving children knowledge regarding the court system is even more effective if the adult caregiver also understands the process. Again, remind the caregivers at the beginning of the first session that individual cases are not to be discussed.

Session 1

The caregivers should meet with a therapist. The therapist can explain the excessive fear reactions, psychosomatic complaints, and behavioral and emotional reactions that children often have to trauma. This is helpful for normalizing a child's reactive behavior and giving a caregiver a greater understanding of the child's needs. A therapist can help caregivers understand that it is important not to blame the child for what has happened and to maintain normal expressions of affection and physical contact with the child. It

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will also be helpful for caregivers to understand how to deal with their own feelings about the abuse. A therapist can stress the need for every victim of abuse to be assessed for treatment needs.

Session 2

In this session, the caregivers should meet with a prosecutor who outlines the entire

court process from the time the crime occurs to the sentencing. Caregivers often have

very little understanding of the court process and come to a Caregivers Group with basic

questions.

Questions often asked include:

a) What happens at an arraignment?

b) Do children have to testify in front of the defendant?

c) Why are there continuances?

d) Can the courtroom be cleared of spectators?

e) Can caregivers be with their child when the child testifies?

Session 3

During the third session the caregivers should be given an opportunity to meet with court personnel who will be able to answer any generic questions a caregiver may have regarding court roles and procedure. Since the children and adolescents also meet with court personnel during the third session, it may be helpful to have a combined session with caregivers, children, adolescents, and court personnel. However, it is important to allow the caregivers time with court personnel without the children and adolescents present so they can ask questions that may not be appropriate to ask in front of the children.

The Kids, Teens, and Non-offending Caregivers Groups can run simultaneously. Ideally, the same children and adolescents will come to multiple sessions where there are different activities. During a first session, a child or teen may not want to participate. This should be allowed, as Kids Court is a place to make a child feel safe and no child should be forced to participate if not ready. However, if the same child or teen attends multiple sessions, he will often become more comfortable and begin to participate at his own pace.

While facilitating a Kids Court program, it is important for the coordinator to be aware of any language barriers, traumatic reactions, competency issues, and cultural and religious factors a child may have. These items may be extremely important to the prosecutor's case.

It is important to continuously explain to the children and adolescents their rights in the courtroom. These rights need to be told to the children and teens throughout the court school to empower them in the courtroom. It is also important to reiterate these rights to the caregivers so that they are aware of their existence. These rights include:

1. The right to let court personnel know if someone in the courtroom is making them uncomfortable.

2. The right to answer "I don't know", "I don't remember", or "I don't understand" instead of guessing.

3. The right to ask court personnel for a glass of water, a break, or to use the ~ restroom.

4. The right to show their emotions. Many children believe they must hide their feelings while in court.

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5. The right to a support person if allowed by state law. VII

6. The right to have a comfort item in court if allowed by state law viii

7. The right to know that their only job in court is to tell the truth and that they are not in trouble for

doing so.

Children and adolescents should also be given some relaxation techniques that they can use while testifying. Examples are taking a deep breath or sipping some water.

Allow the children to verbalize other techniques that work for them. These techniques can help to reduce anxiety in a child.

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The goal of a Kids Court program is to help children testify effectively in a manner that lessens their anxiety. Formulating a court program in your jurisdiction will be beneficial to the child victims and the prosecutors. Attending a court program lessens the chance a child will be traumatized by going to court and increases the chance the child will be a credible witness. For more information about creating a court school, the author can be reached by calling APRI's National Center for Prosecution of Child Abuse at (703) 739-0321.

i Victim Witness Specialist, APRI's National Center for Prosecution of Child Abuse.

ii Ctr .On Children and the Law, ABA, Preparing Child Witnesses -An Interview with Dr. Karen Saywitz, 16 CHILD LAW PRACTICE 170 (1998).

iv The following suggestions are based on the author's experience as coordinator of the Kids in Court program at Children's Hospital, Center for Child Protection in San Diego, CA.

v Advocates and volunteers can formulate booklets.

vi The Kids in Court program at Children's Hospital, Center for Child Protection in San Diego uses a skit of a fairy tale or a therapeutic story to elicit role-playing activity.

vii See e.g., U.S. Dept. of Health and Human Service., Child Abuse and Neglect State Statute Series, Authorization for Special Support Persons in Criminal Child Abuse Proceedings, Vol IV, No.26 (1999). Some states authorize the use of support persons in case law, see e.g., Mosby v. State,703 S.W. 2d 714 (Tex. Ct. App. 1985) and Commonwealth v. Bonner, 601 N.E. 2d 32 (Mass. App. Ct. 1992).

viii Several courts have allowed child witnesses to hold a teddy bear or doll while testifying in order to improve the child's comfort level. PAUL DEROHANNESIANII, SEXUAL ASSAULT TRIALs I, § 5.19 (2nded. 1998), citing State v. Cliff, 78*2 P.2d 44,43-47 (Idaho 1989); State v. Marquez, 951 P.2d 1070 (N.M. 1997), cert. Denied, 950 P.2d 284 (N.M. 1998); People v. Gutkaiss, 614 N.Y.S.2d 599 (1994), appeal denied, 621 N.Y.S.2d 533 (1994); Sperling v. State 924 S.W.2d 722 (Tex. Ct. App. 1996) (child's holding of teddy bear during testimony not unduly prejudicial). One court, however, has held that without a showing of compelling need, it was error to allow a 12-year-old to hold a teddy bear while testifying. JOHN E.B. MEYERS, EVIDENCE IN CHILD ABUSE AND NEGLECT CASES 2, § 6.19 (3d ed. 1997), citing State v. Palabay, 844 P.2d I (Haw. 1992). State statutes governing fair treatment of child victims as witnesses also provide some guidance in this area. See e.g., N.Y. CL.S. EXEC. § 642-a (1999).

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¹ Lyon, T.D., Saywitz, K.J. (1999). Young maltreated children's competence to take the oath. Applied Developmental Science, 3(1), 16 -27.

" MyersJ., Saywitz,K., Goodman, G., (1996) Psychological Research on Children as Witnesses: Practical Implications for Forensic Interviews and Courtroom Testimony. Pacific Law Journal, Vol. 28, Number 1 p. 68-69

^i;i Golding, J, Fryman, H, Masil, D, Yozwiak, J. (2003) Big Girls Don't Cry: The Effect of Child Witnesses Demeanor on Juror Decisions in a Child Sexual Abuse Trial. Child Abuse & Neglect, 27, p. 1311 -1321. Pergamon.

end

American Prosecutors Research Institute 2004 CornerHouse

Finding Words Training Manual Rev. 04/20/04