THE NATIONAL CENTER FOR JUSTICE AND THE RULE OF LAW AND THE NATIONAL JUDICIAL COLLEGE PRESENTING THE CHILD WITNESS: SCOPE OF DIRECT & CROSS EXAMINATION DIVIDER 11 Professor Michael Johnson OBJECTIVES: After this session, you will be able to: 1. Describe competency proceedings in child abuse/molestation cases; 2. Recognize issues about a child s capacity as a witness; 3. Evaluate and determine the use of leading questions on direct examination; and 4. Identify the scope and limits of cross examination. REQUIRED READING: PAGE Michael Johnson, Presenting the Child Witness (Aug. 2011) [NCJRL PowerPoint]...1 SI: TECHNOLOGY ASSISTED CRIMES AGAINST CHILDREN: EVIDENTIARY & PROCEDURAL MATTERS AT TRIAL AUGUST 1-2, 2011 RENO, NV WB/KZ
Michael Johnson Counsel for National Programs NCJRL Copyright 2011 NCJRL All Rights Reserved Describe Competency Proceedings in Child Abuse/Molestation Cases Recognize issues about a Child s capacity as a witness Evaluate and determine the use of leading questions on direct examination Identify the scope and limits of cross examination Federal Rule of Evidence 601 Every person is competent to be a witness except as otherwise provided by these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law. 1
Four capacities 1. Capacity to Appreciate telling the truth 2. Capacity to Narrate events 3. Capacity of Memory 4. Capacity to Perceive Witness must have all four capacities to be deemed competent to testify Judge makes determination of qualifications to testify Jury makes determination of credibility 18 U.S.C. 3509(C) (1) FRE 601 is still in effect (2) Child is presumed competent No per se age restriction or limitation (3) Conducted only upon written motion and offer of proof of incompetency by a party (4) Competency hearing may only be conducted if the court determines, on the record, that compelling reasons exist. Child s age alone is not a compelling reason. 2
Persons who may be present: Judge Attorney for government Attorney for defendant Court reporter persons whose presence, in the opinion of the court, is necessary to the welfare and well-being of the child, including the child s attorney, guardian ad litem, or adult attendant [Not present? the the defendant] Conducted outside presence and hearing of jury Questions asked during hearing shall: Be appropriate to age and developmental level of child Shall not be related to the issues at trial Shall focus on the child s ability to understand and answer simple questions Questions asked by Judge Questions submitted by government and defense attorney, including pro se defendant Discretionary for judge to allow attorney BUT NOT PRO SE DEFENDANT to question child 3
Psychological and psychiatric exams to assess competency may only be ordered upon showing of compelling need Direct Examination Nature of Questions Scope Cross Examination Attacking Narration Attacking Memory Attacking Perception Attacking Sincerity Restrictions Leading questions not ordinarily permitted Leading questions permitted in discretion of trial judge in limited circumstances Common law, and rule specific exception To help a hesitant witness To help a confused witness To help a witness who has trouble recalling To help a CHILD witness 4
FRE 414: Current prosecution is for child molestation Evidence of another child molestation is admissible and may be considered for any matter to which it is relevant Child means a person under the age of 14 Attacking Narration Highlighting inconsistencies of the witness s testimony Attacking Memory Highlighting inability to recall details or sequence of events Attacking Sincerity Bias, interest, corruption Improbability of testimony Prior inconsistent statements Contradiction with established facts Truthfulness of character Opinion Reputation 5
Attacking Perception Distractions Mental Capacity Physical Limitations Medications/drugs At time of event At time of testimony Rape Shield Laws FRE 412 Evidence is not admissible to prove: Alleged victim engaged in other sexual behavior Alleged victim s sexual predisposition Except Evidence offered by the accused of prior sexual misconduct between the victim and the accused when offered to prove consent, or is offered by the prosecution Evidence offered of specific instances of sexual behavior offered to prove that some person other than the defendant was the source of semen, injury or other physical evidence 6