Child witnesses require special consideration

By Roberta M. Gubbins

Legal News

"This is an exciting time to be working with child witnesses because finally the legal system cares about this issue," said Lisa Kirsch Satawa, partner at Kirsch & Satawa PC in Southfield and a criminal defense attorney specializing in defending allegations of child abuse.

"In the past we've had to protect the child because we were told that children are vulnerable and it was all about the child," she continued speaking to the members of the Ingham County Bar Association Criminal Law Section held at the State Bar of Michigan in Lansing in December.

Now, she noted, in Michigan there is a trend to help the defendant. Two new studies summarizing all the research in the field support that trend. The studies explain why anatomically correct dolls and other props are suggestive and improper, how a child's developmental level affects their testimony and looks at the influence of a child's daily conversations with their family and their peers on their memory of the events.

When faced with "a child in your case," she said, "don't panic, they are not little adults, they are little people."

She stressed the importance of preparation and investigation before questioning the child.

"You need to know each child in your case as if they are your own. If they are four years old, you need to Google 'top gifts for four year olds,' so when you are establishing rapport with the child," you can mention the toy making you their friend "and they will talk to you."

Cross examination

Michigan has a statute (600.2163a) that describes all the special accommodations in courtrooms when children are involved such as closed circuit TV, support people, or video recorded statements.

"The prosecutor must give you notice ahead of time of those factors that will be used."

If a support person is to be used, "make sure that person has nothing to do with the child's statement and never allow the child to sit on the support person's lap to testify. Children get their cues from adults, therefore, figure out the relationship between the support person and the child before you agree or object to that person."

While meaningful cross-examination is a right under case law, when questioning a child witness, the lawyer must "understand the child and the case from the child's eyes to make" the questioning effective. That information can "come from your client who usually knows the child. Interview your client's wife or talk to family and friends."

"Remember," Satawa stressed, "the defense attorney is the only one in the courtroom who has never talked to this child. Everyone else this child has met and talked to. You are the stranger so position yourself in the courtroom where you won't be a threat."

Recent Michigan cases have addressed the hearsay rule. People v Douglas, 296 MA 186 held that a "child victim's out of court statements during forensic interviews are not admissible under "the tender years exception" to the hearsay rule of evidence. In another case (People v Buie, 491 Mich 294), use of close circuit testimony of the child is admissible since the confrontation clause doesn't require eye-to-eye contact between defendant and accuser.

However the cases have also held that the "trial court must make case specific findings that the denial of confrontation is necessary to further an important public policy such as protecting a child witness from trauma."

The child witness--age matters

Child witnesses are different from adults, for example:

* Their attention spans are shorter

* Children can't separate information given to them by an adult from events that actually happened.

* Teenagers have the same issue as little kids--fact and fiction get mixed up.

* Concept of time is not the same--must be 12 before actually have same concept as adult.

* Yesterday could be "when I was little."

* It is not until age 14 that they understand distance and size.

With preschoolers, she suggested using routines or special events to establish time such as "wake-up time, before or after breakfast, before or after your birthday. This is using anchors to keep kids on track."

Satawa recommends that the questioning be more conversational than confrontational. "If the child is under six, for example, they will not remember what they said in the past.

"Preparation and investigation are really your key (to success)," she concluded. "Your job is really, really hard and no one ever thanks you for what you do. I thank you."

Satawa is a criminal defense attorney specializing in defending and consulting on the defense of allegations of child sexual assault and child abuse. Her multistate practice includes trials, consultation and appeals. She was awarded the Kimberly M. Cahill Bar Leadership Award from the State Bar of Michigan in 2011.

Published: Wed, Jan 2, 2013