TESTIFYING IN COURT

Faculty Lecture

Required Reading

No Required Reading for this section

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THE TEN COMMANDMENTS TO BEING A SUCCESSFUL WITNESS

Allie Phillips
Senior Attorney
APRI's National Child Protection Training Center
703.518.4385
allie.phillips@ndaa-apri.org

LAY vs. EXPERT WITNESS

WHO CAN BE AN EXPERT?

Expert Witness Topics

HOW DOES AN EXPERT STATE AN OPINION?

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The 10 Commandments of Testifying

lst Commandment: PRE-TRIAL PREPARATION

Maintain a curriculum vitae (professional resume)

 

 

2nd Commandment: MEET WITH THE PROSECUTOR

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3rd Commandment: The P's

4th Commandment: KEEP IT SIMPLE

5th Commandment: BE A VISUAL WITNESS

6th Commandment: DON'T ARGUE WITH THE DEFENSE ATTORNEY

DEFENSE GOALS FOR CROSS EXAM

*Douglas Peters, J.D. Cross Examination of the Child Advocate and George Castelle, J.D. Litigating the Difficult Child Abuse Case on a Low Budget or No Budget at All. Presented at the ninth international conference of the National Child Abuse Defense and Resource Center, September 14-16,2000.

MAXIMIZE CREDIBILITY DURING CROSS EXAMINATION

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WHEN ASKED ABOUT AN ARTICLE/STUDY:

7th Commandment: LISTEN TO AND JUST ANSWER THE QUESTION

HYPOTHETICAL QUESTIONS:

8th Commandment: DON'T BE A PUPPET!

TAKE CONTROL OF YOUR ANSWERS:

I need to explain, but the answer would be...
I'm sorry, that question can not be answered yes or no.
The issue is not that simple. A yes or no answer would be misleading as the issue is more complicated and needs to be explained.

9th Commandment: DON'T BECOME A TARGET

10th Commandment: DEBRIEF WITH THE PROSECUTOR

Always Remember.....

SPARE TIME READING

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The Day of Reckoning: Surviving Your day in court

Victor Vieth
Director
APRI's National Center for Prosecution of Child Abuse

Reduce the Chance of testifying/successfully cross-examined

Statements for medical diagnosis

Medical diagnosis considerations

Function as part of MDT

When you get subpoenaed

LAY vs. EXPERT WITNESS

Daubert/Rule 702 test

FRE702 (CONT'D)

Who can be an expert?

What if I can't afford an expert?

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What if defense counsel/investigator calls?

Know the defense expert

Getting ready for the big day

Discuss direct testimony

Cross: Be Alert For The Traps

When testifying

They Call Them Sharks for A Reason

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Cross: The Defense Speaks

Factors Which Influence Suggestibility in Interviews

Q: Children lie don't they?

Q: Children also lie about abuse right?

Q: And children are highly suggestible?

Q: Did you attempt to find out how suggestible this child was?

Q: Did you attempt to find out this child's reputation for honesty?

Q: Were you aware of this child's reputation for lying, delinquency, etc.?

Q: The child made a disclosure involving conduct of a sexual nature before you interviewed her?

Q: You were aware of the nature of that disclosure?

Q: You believed it to be a disclosure of sexual abuse?

Q: Your interview was conducted because you suspected the child had been abused?

Q: Do you consider yourself to be an expert in how to interview children?

Q: Do you have any particular professional qualifications for your job of interviewing children?

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Q; Are there any educational requirements for this job?

Q: Are there any certification procedures for interviewing children?

Q: Is there a proper "method" or "protocol" for interviewing children?

Q: Did you follow that method or protocol in this case?

Q: Did you deviate at all from that method or protocol in this case?

Q: So it's okay if you do your own thing because you can justify it later, right?

Q: You didn't tape record or videotape your interview with the child, did you?

Q: Aren't recordings the only way to know for sure if the child was influenced by your questions, gestures, etc?

Q: Are you aware that a number of child abuse authorities recommend videotaping?

Q: Are you aware the United States Supreme Court says that videotaping may be a factor in determining a child's reliability?

Q: Who made the decision not to videotape?

Q: What was it about this child's statement that caused you to record it?

Q: You don't videotape interviews with adult witnesses, do you?

Q: How many rehearsals were done before you recorded the final product?

Q: You don't know how this child was influenced by prior interviews do you?

Q: You didn't videotape the recantation, did you?

Q: you found no physical evidence to corroborate this child's allegations?

Q: there was no medical evidence of abuse was there?

Q: there were no witnesses to verify this child's claims were there?

Q: and as a trained investigator you looked hard to try and find some additional evidence but didn't right?

Q: You're trained to put all important information in your reports, right?

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Q: You didn't document several of these matters that we've just talked about in your reports did you?

Q: You selected the information you wanted to include in your report, yes?

Q: Why didn't you document these other facts you now claim occurred?

Q: If you could do it all over again...?

Q: You would agree this was not a complete investigation?

Q: This wasn't done according to standard procedures was it?

Q: Are you not the least bit concerned that you didn't follow up on...?

Q: You agree it's your responsibility to conduct a competent investigation?

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Sample Trial Questions Used to Qualify CornerHouse Interviewers

Fred Karasov, JD, Asst. Hennepin County Attorney

  1. Qualifications
    1. What is your occupation?
    2. How long have you been at CornerHouse?
    3. Do you have any other experience in child sexual abuse?
    4. What is your educational background?
    5. Have you received any additional training since obtaining your degree?
    6. What kind of training/supervision have you had at CornerHouse?
    7. Have you done any teaching, lecturing, or writing in the area of child abuse?
    8. Are you familiar with the literature and research in this area?
  2. CornerHouse
    1. Could you tell us about CornerHouse — what is its purpose and what do you do there? What kind of place is it? Describe the layout* etc.
    2. What is the purpose for conducting an interview (find out if abuse occurred)? Is it an objective inquiry (does CornerHouse have any stake in the outcome of the interview)?
    3. What is the major concern you would have when conducting an interview? (Make sure the interview is objective and non-leading so we get accurate information.)
    4. Could you please describe the protocol used at CornerHouse in terms of the parties who are present at the interview? (Police, CP, county attorney teaming a case.)
    5. Does that mean you work for the police department or county attorney's office? Please explain. What are their roles?
    6. How widely is CornerHouse used by the agencies in Hennepin County? (Almost all police departments-proven reliability.)
    7. How is CornerHouse funded? (Not usually asked.)
  3. Interview
    1. Statistics
      1. Can you tell us how many interviews CornerHouse has conducted?
      2. In how many of those cases has CornerHouse substantiated abuse?
      3. In how many of those cases has CornerHouse been unable to substantiate abuse? (CornerHouse is unbiased and does not automatically believe children.)
      4. When you conclude that abuse did not occur, does that necessarily mean you did not believe the child (may be due to lack of disclosure, blocking, lack of context, etc.)? Redirect question.
    2. Process
      1. What is the reason you meet with the police and CP before the interview? Why do you find out what the child said before going into the interview? Do you think having prior knowledge of what the child said affects you when you interview the child?
      2. What responsibilities do you have, if any, with respect to the child during the interview? (Mental health, prevention of retraumatization, etc.)
      3. What does the team do after the interview?
      4. What was done in this case? (Police were given some instructions regarding additional investigation. This shows that the victim was believed.) Are the police always told to conduct further investigation?
      5. Does the child know he or she is being videotaped? Why do you or don't you tell them? Does the child know other people are watching the interview?
    3. Protocol
      1. How do children come to CornerHouse in the first place? (They had to have disclosed to someone that they were sexually abused.)
      2. So there may be cases where the child was sexually abused, disclosed it to someone, but did not disclose it at CornerHouse?
      3. Can you describe the protocol for conducting an interview? (Five stages of the interview.) What is the purpose for these stages? The interview is done without anyone else in the interview.
      4. Are there differences in your interview protocol with respect to older or younger children?
      5. Do you notice differences in children's' cognitive or developmental abilities during your interviews? How do your interviews take these differences into consideration?
      6. What is the basis for employing that particular protocol (studies, research, other agencies, etc.)?
      7. Did you follow that procedure in this case?
      8. What are the different choices you make after the interview? (Abuse occurred, did not occur, inconclusive.)
      9. How do you make that determination?
      10. Can you describe the kinds of interviews you've had where you have been unable to substantiate abuse? (This contrasts with the present case.)
      11. What did you conclude after interviewing ________? (Objectionable if not expert)
      12. What is the basis for that determination? (Consistency, non-leading questions, dolls, corroboration, etc.)
      13. Can you tell us how long this interview lasted? Can you tell us about the average attention span of a____-year-old and what you noticed during this interview? (Establish reasons why this child appeared confused or inconsistent toward the end of the interview.)
      14. Do you use anatomical dolls in your interviews?
      15. Describe the dolls you use, if any.
      16. How do you decide whether or not to use dolls?
      17. What is the process that you use? Is the use of dolls accepted within your profession?
      18. (For cases involving interviews of different children) What was ______ doing while you were interviewing _________? Did ________ have the opportunity to talk with _________ after his/her interview?
  4. After Showing the Videotape
    1. I'd like to ask you several questions about the interview we've just had the opportunity to see.
      1. What did the child say when _______?
      2. What did the child do when_? (Child left the room, moved outside view of camera, etc.)
      3. What was the child's emotional condition when s/he described the sexual abuse?
      4. Did you notice a difference in how the child acted when s/he described the abuse compared to when s/he was talking about his/her family?
      5. The child had several names for the genitals. In your professional opinion, is that unusual?
    2. Other than what we've seen on the videotape, did you or anyone else at CornerHouse have any other conversation with the child that is not on the tape?

end

American Prosecutors Research Institute 2004 CornerHouse

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