Thanks, Paige. Great points. I think there is likely to be a lot of litigation surrounding this issue in the next few years and practitioners should be on the cutting edge!
While the prosecutor’s concern about children’s ability to testify is probably sincere, it may not be well-supported. It is easy to fall for the argument—usually substantiated by nothing more than limited and emotionally-laden anecdotal evidence—that calling a child victim to the witness stand in a sexual abuse case amounts to a "second rape." But "available evidence suggests that testifying does not usually have severe, long-term effects" on children. Richard D. Friedman, Confrontation and the Definition of Chutzpa, 31 Israel L. Rev. 506, 532 (1997). Professor Friedman cites the conclusions of a large study showing that "[o]n average, the short-term effects [of testifying] on the children’s behavioral adjustment, as reported by their caretakers, were more harmful than helpful. In contrast, by the time the cases were resolved, the behavioral adjustment of most, but not all, children who testified was similar to that of children who did not take the stand." Id. at 532 n.56, quoting Gail S. Goodman et al., Testifying in Criminal Court: Emotional Effects on Child Sexual Assault Victims 114-15 (1992). Indeed, "some social scientists and legal scholars believe that children may find open court testimony to be therapeutic, due to the sense of retribution and empowerment the criminal justice system can provide to victims." Katherine W. Grearson, Proposed Uniform Child Witness Testimony Act: An Impermissible Abridgment of Criminal Defendant’s Rights, 45 Boston College L. Rev. 467, 490 (2004), citing Gail S. Goodman et al., Innovations or Child Witnesses: A National Survey, 5 Psychol. Pub. Pol’y, & L. 255, 258 (1999). The actual resiliency of children is evidenced in one former prosecutor’s report that "[m]y perception is that prosecutors in many jurisdictions have learned that children can in fact be enabled to testify and be available for cross-examination."
Tuesday, December 12, 2006
A little counterpoint . . .
Paige Nichols sent some counterpoint regarding my last post about trials with child victims testifying. It is important to practitioners, particularly when the state seeks to avoid the Confrontation Clause because of possible irreparable harm. Here is her note: