THANK YOU TO THE FOLLOWING: The Supreme Court of Texas, Permanent Judicial Commission for Children, Youth and Families chaired by the Honorable Eva Guzman, Texas Supreme Court Justice

Judicial Advisory Committee Hon. Chris Oldner (Chairman) 416th District Court Hon. Camile DuBose 38th District Court

Hon. Charles Montemayor Bexar County Children’s Court Hon. Scott Becker 219th District Court

Hon. Richard Garcia Bexar County Children’s Court

Stakeholder Advisory Committee Jason Isham Program Director Children’s Advocacy Center of Smith County Stephanie McFarland Assistant District Attorney Office of the District Attorney, Travis County Alana Minton Assistant District Attorney Office of the District Attorney, Tarrant County Denise Oncken Division Chief, Crimes Against Children Office of the District Attorney, Harris County

Dan Powers Clinical Director Children’s Advocacy Center of Collin County Michelle Voirin Assistant District Attorney Office of the District Attorney, McLennan County Laura Wolf Executive Director CASA of Travis County LaRu Woody Assistant District Attorney Office of the District Attorney, Travis County

Carrie Paschall Forensic Interviewer Office of the District Attorney, Tarrant County

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Special thanks to legal interns Tina Herrero (University of Texas School of Law ’13) and Angie Von Pageler (Vanderbilt University Law School ’11) for their assistance in researching and drafting this guide.

R EJ UDICIA

TEXAS CENTER FOR THE JUDICIARY

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“Officers and Judges need no imaginative powers,

hope

knowledge of developmental psychology, training in cognitive science, or expertise in social and cultural anthropology to account for a child’s age. They simply need the common sense to know that a 7-year-old is not a 13-year-old and neither is an adult.” 1

INTRODUCTION The American criminal and civil justice systems are designed to address the grievances and transgressions of adults. Traditional courts of law were not created with an eye for the special developmental needs of children. An adult in the legal system may find it an intimidating and anxiety-inducing experience. The spectrum of emotions felt by a child who may have little, if any, understanding of the process is only magnified.2 Furthermore, legal proceedings are often couched in language beyond a child’s developmental ability to comprehend. 3 Testifying in court is particularly stressful for children. Research has shown that the high level of stress and anxiety experienced by child witnesses can decrease children’s ability and willingness to provide complete and accurate evidence.4 The presence of certain factors in the courtroom can either exacerbate or ameliorate the emotional trauma of court involvement for child witnesses.5

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3 Children’s increased stress, trauma and anxiety about the court

and neglect cases have resulted in an increased recognition that the

process may be attributed to the unique problems presented

involvement of child witnesses is crucial to achieve justice.13 As a

in crimes involving children. First, a lack of physical, cognitive

result, there is a pressing need to modify conventional, adult-oriented

and emotional development may make it difficult for the child

practices to protect and facilitate children’s involvement in judicial

to relate to or understand the proceedings. Second, the unique

proceedings, while preserving the integrity of the judicial system.

attributes of child sexual abuse, particularly where the perpetrator is a parent, parent substitute or other adult having a trusting or

Judges are often faced with the difficult task of finding a balance between protecting the rights of the accused while protecting the

loving relationship with the child, may result in a child reluctant to cooperate with the process. Third, our limited understanding of

rights and needs of child victims. The challenge of maintaining this delicate balance and responding meaningfully to the special

children’s capabilities as witnesses can make it difficult to meet them on their level while fufilling needs they may not be able to articulate.6 The wave of preschool sexual abuse cases of the mid-1980s and

needs of child victims can be met through the development and implementation of best practices. These practices can ensure that all needs are being met for the child, while protecting the rights of the

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1990s created a first and lasting impression of child witnesses. The

defendant and the integrity of the legal system. Small but significant

heightened awareness that followed the scandals quickly turned to

changes adopted in the courtroom will increase a child’s comfort

skepticism as many questioned the reliability of child testimony.

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Studies have revealed that jurors do not see children as credible 9

witnesses, and perceive a child’s testimony to be less credible than the exact same testimony given by an adult.10 One study involving mock jurors revealed that individuals are sensitive to and unforgiving of any inconsistency observed in the testimony of a young child, in part because the inconsistency confirms the jurors’ stereotype that young children are incapable of rendering accurate and reliable testimony.11 Stereotypes of child witnesses are influential in determining verdicts as well as jurors’ perceptions of child witnesses and their testimony.12 In the last three decades, the presence of children in the courtroom has vastly increased. In criminal courts, evidence gaps in child abuse

level and his ability to testify accurately, effectively promoting justice in the courts while preserving the integrity of the process.

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CURRENT STATE OF TEXAS LAW REGARDING CHILD-FRIENDLY COURTROOMS

During the 82nd Legislative Session, lawmakers passed Senate Bill 578 amending the Code of Criminal Procedure to formally modify certain procedures surrounding a child’s testimony in court.14 The modifications regarding child testimony apply in any hearing or proceeding, other than a case in which the child is the defendant.15 A. Age-Appropriate Proceedings i. Competency Perhaps the most significant problem facing child witnesses is their lack of understanding of the legal system and legal terminology. The use of complex language and legal terminology confuses children and many adults. With child witnesses, however, the absence of developmentally appropriate questioning may both increase the child’s fear of testifying and obstruct the truth-seeking goal of hearing the child’s testimony. S.B. 578 establishes that a court shall conduct proceedings surrounding a child’s testimony in an age-appropriate manner.16 Children are often asked complicated questions about truthfulness that even adults might find difficult to understand.17 In order to ensure that competent children are not disqualified from testifying,

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competency questions can be phrased in age-appropriate 18

terms, free of linguistic complexity and legal jargon.

Whether a child witness is competent to testify is an issue entrusted to the sound discretion of the trial judge.19 A judge may modify competency requirements and competency hearings to accommodate the best interests of the child in two ways. First, a judge may eliminate the requirement of an examination of the child to determine competency. Second, a judge may alter the procedures of the competency hearing to accommodate the child.

A child can frequently misinterpret simple language, which in turn may lead to misinterpretation by the court.25 It is possible that child witnesses may behave in ways that appear inappropriate in context. Research indicates that when oaths and competency questions are posed in a developmentally appropriate manner, even very young children can articulate the difference between a truth and a lie, and that it is “bad” to lie in court.26 Often, decisions regarding a child’s competency may vary greatly depending on the skills of the individual questioning the child, who is likely to be an attorney or a judge.27 These individuals may not have academic exposure

Examination Requirement In 1895, the United States Supreme Court, in Wheeler v. U.S., held that children could be competent witnesses in criminal trials.20 Further, the Texas Rules of Evidence provide that neither examination of a child witness nor a preliminary hearing to determine the competency of a child witness are required.21 Under the Texas rules, every person is presumed qualified to be a witness. However, each case must be determined on its own merits.22 Disqualification is

to weightier issues in the field of child development. ii. Questioning Article 38.074 of the Texas Code of Criminal Procedure requires that questions be posed in a manner appropriate to the child’s age in order to prevent intimidation or harassment. It also requires that a child understand his right to notify the court if the child is unable to understand any question, and to have the question restated in a form that the child does understand.28

appropriate only where the person appears not to possess sufficient intellect to relate transactions with respect to which

Questioning child witnesses in a way they can understand

they are interrogated.23

is achievable. First, the use of simple grammar, in

Competency Hearing Procedures

conjunction with concrete words, will result in the child better understanding the attorney’s questions, and increase

A judge also has the discretion to modify the procedures of

the likelihood of active participation in the judicial process.

a competency hearing to accommodate the best interests

Questions including multiple parts, negatives, double

of the child. The United States Supreme Court, in Kentucky

negatives and difficult vocabulary pose significant problems

v. Stincer, upheld the exclusion of the defendant from the competency hearing when the seven and eight-year-old victims became afraid to testify in his presence.24

for children and impede fact-finding.29 Research suggests that eliminating the complex formatting of questions improves comprehension among children and teenagers.30

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Second, professionals interacting with child witnesses may consider the impact of a child’s developmental abilities on the way that they respond to questions. For example, young children do not always organize their thoughts logically, often include extraneous information, have a limited understanding of space and time, 31 and have a limited attention span.32 Even when children comprehend the questions, their responses may not comport with notions of what is expected from ‘normal’ (i.e. adult) testimony.

Support Persons Allowing the presence of a support person in the courtroom when a child testifies may reduce feelings of fear and anxiety experienced by the child. In addition, the presence of a known and trusted person may calm the child and give him confidence to provide accurate testimony. Research has found that the presence and emotional support of an adult improves some children’s capacity to testify and ability to do so effectively, increases children’s responsiveness to questions during direct

B. A Child-Friendly Oath

examination at trial, and makes the child less likely to recant

S.B. 578 modifies the Code of Criminal Procedure to permit the

the identity of the perpetrator and the main actions of the

administration of a child-friendly oath. Witnesses must take an

perpetrator during defense questioning.37

oath or affirmation prior to testifying.33 Article 38.074 of the Texas Code of Criminal Procedure provides that a court shall administer an oath to a child in a manner that allows the child to 34

fully understand his duty to tell the truth.

In addition to recent changes in statute, courts throughout Texas have made efforts to reduce the trauma of testifying for child witnesses by allowing the presence of support persons.38 Appellate courts have permitted the presence of a Youth Victim

Prior to the 82nd Legislature, appellate courts in Texas have held

Volunteer next to the child during victim testimony 39 and the

that the requirement of an oath or affirmation is satisfied for a

presence of a guardian ad litem 15-20 feet behind the witness

child witness if the child is asked questions that are sufficient

chair.40

to impress the minor with the duty to be truthful, and the minor

Comfort Items

gives answers that are the equivalent of an oath or affirmation.35 Permitting a comfort item such as a stuffed animal, toy, or C. Support Persons and Comfort Items

blanket may have a similar calming effect on the child witness

The Texas Code of Criminal Procedure has been amended to

during testimony. When children are afraid or anxious,

authorize the presence of support persons and comfort items in

holding a personal item may provide comfort, security, and

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criminal cases.

Access to support persons, canine companions

confidence. Some research likens the presence and calming

and comfort items have been documented as beneficial, and this

effect of a comfort item to that of a parent; “[C]omforting objects…

practice has been successfully implemented in courts throughout

symbolically represent a little bit of a mother’s ability to soothe the

Texas.

child when frightened or nervous. Their presence helps children calm themselves when parents are not immediately on hand.”41

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In Sperling v. Texas, the Seventh Court of Appeals of Texas

child that the court finds to be just and appropriate, considering

allowed a child victim to hold a teddy bear while testifying

the interests of the child, the rights of the defendant, and any

as one of the “reasonable steps authorized by the Code of

other relevant factors.48 This broad language affords judges

Criminal Procedure in an effort to minimize the psychological,

a significant amount of discretion in assessing the needs of a

emotional and physical trauma of the child-victim caused by

particular witness while considering the intricacies of the case

her participation in the prosecution, including her face-to-face

at hand.

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confrontation with appellant.” Facility or “Therapy” Dogs

An innovative and increasingly implemented practice across the nation permits the presence of dogs on the child’s lap or on the floor by the child’s feet during testimony. Allowing a canine companion to accompany a child into a courtroom has “immediate and profound” effects.43 The mere presence of a friendly dog has been documented to change the physiology of the nervous child, facilitating more efficient testimony.44 Several counties across Texas have experience with the use of dogs in child sexual abuse cases. The Johnson County Child Advocacy Center in Cleburne has a dedicated team of volunteer handlers and certified facility dogs.45 During a child rape case, a Johnson County court allowed a yellow lab to accompany the thirteen-year-old victim into the courtroom while she read her victim impact statement at sentencing. The judge later reported that he was “amazed at the effect of the dog on the child and saw no difference between the therapy dog and allowing other service animals in court, such as seeing-eye dogs.” 46 Bexar County courts have also incorporated the help of facility dogs with child victims.47 The final provision of the new legislation also grants a court the discretion to establish any other conditions and limitations on a

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B. Additional Resources for Law Enforcement, Judges, Prosecutors, Defense Attorneys and Attorneys Ad Litem In addition to the information provided herein, and resources which can be found at your local children’s advocacy center, the

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RECOMMENDATIONS FOR JUDGES AND MEMBERS OF THE JUDICIAL SYSTEM

following supplemental resources are available: • ABA approved Guidelines for the Fair Treatment of Child Witnesses in Cases Where Child Abuse is Alleged (1985). • ABA approved Judicial Excellence in Child Abuse and Neglect Proceedings: Principles and Standards for Court Organization, Judicial Selection and Assignment, Judicial

Researchers have identified factors that increase a child’s comfort level in the courtroom, and consequently, the quality of her testimony.49

Administration and Judicial Education (2010). • Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime, United Nations Economic and

Increased training for all professionals involved with child witnesses

Social Council (2005).

on topics such as child development, child testimony and advocating for children will improve personal interactions with child witnesses.

• Model Law on Justice in Matters involving Child Victims

A second element involves altering certain procedures in the court

and Witnesses of Crime, United Nations Office on Drugs

process to suit the developmental and emotional needs of children,

and Crime, United Nations Children’s Fund (UNICEF) &

enhancing the child’s understanding of responsiveness to the court

International Bureau for Children’s Rights. Available at:

process.

http://www.unodc.org/documents/justice-and-prisonreform/Justice_in_matters...pdf

A. Increased Training For Professionals Who Interact With Child Witnesses Adequate, specialized training for professionals who come in contact with child victims or witnesses of crime will both improve professionals’ interactions with and understanding of child witnesses. This ensures that child victims receive all appropriate accommodations, and improves the child’s ability to provide coherent testimony, while preserving the integrity of the civil and criminal justice systems.

• Myers, John E.B. Child Witness Code (1996). • Representing Texas Children in Abuse and Neglect Cases: A Manual for Attorneys (1985). • Resource Guidelines: Improving Court Practice in Child Abuse & Neglect Cases, National Council on Juvenile and Family Court Judges (1995). • Texas Practice Guide for CPS Attorneys (DFPS 2009).



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In addition, the following organizations provide information on research, best practices and training opportunities: • American Professional Society on the Abuse of Children World Wide Web: http://www.apsac.org • National Council of Juvenile and Family Court Judges, Child Victim Model Court Project World Wide Web: http://www.ncjfcj.org/content/ view/81/145

C. Procedural Considerations to Decrease Child Witnesses’ Fear and Anxiety Regarding the Court Process An adult involved in the legal system may find it an intimidating and anxiety-inducing experience. The spectrum of emotions felt by a child who may have little, if any, understanding of the process is only magnified.50 Modifications of court procedures and protocol designed to accommodate the needs of child witnesses will enhance a child’s ability to testify, and will

• National Center for Missing and Exploited Children World Wide Web: http://www.missingkids.com • National Center for Prosecution of Child Abuse

minimize potential court-related trauma. In cases involving child witnesses, judges have inherent authority to fashion procedures and modify standard trial practices to accommodate the special

American Prosecutors Research Institute

needs of child witnesses.51 Changes in statute have established

World Wide Web: http://www.ndaa.org

a basis for judicial discretion to establish any other conditions

• National Children’s Alliance World Wide Web: http://www.nationalchildrensalliance.org

and limitations on the taking of testimony of a child that the court finds to be just and appropriate, considering the interests of the child, the rights of the defendant, and any other relevant

• The Child Welfare Information Gateway

factors.52

World Wide Web: http://www.childwelfare.gov • National Court Appointed Special Advocate (CASA) Association World Wide Web: http://www.nationalcasa.org • National Criminal Justice Reference Service World Wide Web: http://www.ncjrs.gov • Juvenile Justice Clearinghouse World Wide Web: http://www.ojjdp.gov

Considerations in accommodating the needs of child witnesses may include: (i) Prioritizing the docket and expediting cases with child witnesses; (ii) Utilizing leading questions on examination of a child witness subject to the court’s discretion and control; (iii) Scheduling testimony and recesses in accordance with the developmental needs of the child;

• Office for Victims of Crime Resource Center World Wide Web: http://www.ojp.usdoj.gov/ovc/

(iv) Allowing the use of and easy access to testimonial aids during testimony; and (v) Closing the courtroom when appropriate.

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i. Prioritizing the Docket and Expediting Cases with Child Witnesses Delays and continuances may cause hardship to any individual involved with the criminal or civil justice systems. The hardship resulting from delays and continuances is exacerbated when a child is involved in the proceedings. Scholars note, “with the passage of time, any witness may lose interest, face intimidation, or forget… When children are witnesses, delays can have an even greater impact on the outcome of a trial, for in addition to the typical disadvantages of delays, there is the more compelling consideration of the amount of stress a young victim [or witness] can endure.” 53

consider the impact on a victim who is younger than seventeen years of age or whose case involves family violence.56 Timely resolution is equally important in civil cases, particularly where a child awaits a determination of parental rights. In these cases, prolonged waiting periods simply exacerbate the child’s trauma and can hamper the child’s adjustment to the new situation or environment. Thus, in both criminal and civil cases, prioritizing the docket and expediting cases with child witnesses may ease the anxiety and stresses experienced by child witnesses and prevent loss of memory which can negatively impact the quality of a child’s testimony. ii. Leading Questions and the Child Witness

Research focusing specifically on the impact of an

On the necessity of leading questions in interviewing

extended court experience on children in criminal cases

children, a publication by the U.S. Department of Justice

indicates that “a prolonged criminal court experience

and the National Institute of Justice concludes:

is a stressor for child sexual abuse victims that can be detrimental to a child victim’s mental health.” 54 Negative effects of repeated delays and continuances include preventing the child witness from both emotional and physical closure and “[limiting] the ability of victims to receive justice when their memories, or those of other witnesses, fade with the passage of time…” 55 The impact of extended trials on children is recognized nationwide. Currently, almost half of the states, including Texas, have adopted reforms that ensure an expedited trial for cases involving a child witness. Articles 56.02 and 29.14 of the Texas Code of Criminal Procedure establish that, where a continuance has been requested by the defendant, the victim has the right to ask the court to

“In the best of all possible worlds, it would be advisable not to ask children leading questions…but in the best of all possible worlds, children are not sexually assaulted in secrecy, and then bribed, threatened, or intimidated not to talk about it. In the real world, where such things do happen, leading questions may sometimes be necessary…” 57 Traditionally, courts restrict the use of leading questions.58 However, the unique emotional and developmental capabilities of children may sometimes lend themselves to the use of leading questions to obtain meaningful testimony.59 Both the Federal Rules of Evidence and Texas courts recognize value in allowing leading questions in

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cases involving child witnesses. Studies on children’s memories show that children are “less skillful than adults in reproducing events and using free recall,” 60 and that “when there are errors in children’s memories, they are more likely errors of omission (i.e. forgetting) than commission (i.e. adding new or inaccurate information).”

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The use of leading questions may counter

the problem of poor recall in children and assist the child in remembering and vocalizing the events that took place. Moreover, leading questions may be permitted to overcome a child’s difficulty testifying due to fear, timidity, embarrassment, confusion or reluctance, and may help

court expounded on the use of leading questions with child witnesses.65 The Flannery court noted that even though a certain question was admittedly leading, “[The] rigor of the rule forbidding the asking of such questions bears some flexibility when dealing with a witness of tender years.” 66 iii. Scheduling Considerations and the Developmental Needs of the Child Courts may consider a child’s developmental needs in scheduling court testimony in an effort to improve the quality of the child’s testimony. This is expressly supported by the Texas Code of Criminal Procedure.

the court obtain more meaningful testimony in situations

The stress of testifying can take a significant toll on the

where a child responds with a simple “yes” or “no.” 62

child. Scheduling testimony at a time of day when the

The Texas Rules of Evidence state that leading questions may be used on the direct examination of a witness when it is necessary to develop the testimony of the witness. The legislative notes to Rule 611(c) further clarify that leading questions may, in the court‘s discretion, be

child will be most alert and responsive will positively affect the quality of the child’s testimony. For example, having a child testify during naptime, mealtimes, or when he or she has missed a nap can affect the child both behaviorally and intellectually.

used on direct examination for: (1) preliminary matters;

Scheduling testimony in accordance with the child’s

(2) refreshing memory; and (3) questioning ignorant or

schedule is required by Article 38.074 of the Texas

illiterate persons or children.

Code of Criminal Procedure. The code provides that a

The use of leading questions in direct examination is left to the sound discretion of the trial judge.63 There is a history of providing an exception to the rule against leading questions in cases dealing with child witnesses. Courts throughout Texas have supported the use of leading questions in direct examination in cases dealing with child witnesses.64 In Flannery v. Texas, involving the competency of a nine-year-old witness in a rape case, the

court shall “ensure that a child testifies only at a time of day when the child is best able to understand the questions and to undergo the proceedings without being traumatized, including: 67 (a) Limiting the duration of the child’s testimony; (b) Limiting the timing of the child’s testimony to the child’s normal school hours; or

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(c) Ordering a recess during the child’s testimony when

to assist child witnesses in their testimony. The use of

necessary for the energy, comfort, or attention span of the child.

testimonial aids has many documented advantages, and is

In criminal cases involving school-aged children, it may be

consequently finding its place in Texas courts.

best to schedule testimony during school hours. Children

Using testimonial aids such as anatomically correct dolls

who are required to testify after being in school all day

and drawings to facilitate a child’s testimony may help

may be tired and stressed from worrying about court while

the child overcome fear or inability to find the right

in school. Conversely, some research suggests that in civil

words to use. Particularly in cases of sexual abuse, young

cases involving a child in foster care, it may be best to

children have often never described their own body parts,

hold court hearings during the late afternoon or evening

especially not in the kind of detail required by a court.

to avoid exacerbating any difficulties a child may already

The use of anatomical dolls can facilitate and enhance

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have in school.

Time limits may also be considered if it appears that the attorneys are contemplating lengthy examinations. Appropriate breaks can be anticipated to prevent the child from becoming distracted or tired. In scheduling breaks, a court may consider that a child’s sense of time differs from that of an adult, such that “a child will experience a given time period not according to its actual duration, measured objectively by calendar and clock, but according to his

interviews and questioning of children.70 The Fourteenth Court of Appeals of Texas commented on these advantages, noting “the use of anatomically correct dolls is beneficial when a child is testifying to clarify the witness’ explanations and to assure a common understanding between a witness and a jury. The use of dolls is often critical when the complainant witness is very young.” 71 A publication by the National Institute of Justice notes that anatomical dolls can also help to:

purely subjective feelings of impatience and frustration.” 69

a. Establish rapport and reduce stress. Most children relate

As such, it may be appropriate to schedule more frequent

well to dolls. They can have a calming effect and make

breaks or recesses during difficult questioning or

the interview room appear less formal and more child-

testimony.

oriented.

By considering the developmental needs of child witnesses

b. Reduce vocabulary problems. Interviewers can use

in scheduling cases, courts can easily improve the quality

the dolls to learn a child’s sexual vocabulary before

and coherence of their testimony.

questioning the child about the alleged abuse.

iv. Testimonial Aids

c. Show what may be difficult or embarrassing to say.

Courts may consider permitting the use of testimonial

Anatomical dolls can be an invaluable aid to children who

aids such as anatomically correct dolls and drawings

are unable or unwilling to verbalize what happened to them.

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d. Enhance the quality of information. Dolls may help

public and press are not absolute, however, and the child’s

interviewers gather information without resorting to

interest may be balanced against the defendant’s right to

leading or protracted questioning to overcome children’s

an open proceeding.75

reluctance to describe sexual act.

Two primary concerns underlie arguments in favor of

e. Establish competency. Interviewers can use the dolls in

closing the courtroom in cases involving child victims

a general way to demonstrate the child’s mental capacity

or witnesses. First, the trauma potentially suffered by

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and ability to communicate.

Anatomically correct dolls have been used in Texas courts to facilitate child victims’ explanation of their abuse. For example, in Texas v. Jensen, the Galveston County trial court permitted a three-year-old sexual abuse victim to use a doll to show where the defendant had touched her.73 The recorded benefits and successful use of anatomically correct dolls supports the proposal that such devices may be implemented by courts to aid child witness testimony. v. Close the Courtroom When Appropriate to Decrease

the victim when relating the details of a sensitive crime before the public, particularly when a child must describe degrading or embarrassing acts. Second is the fear that public exposure, whether in the courtroom or by the media, may have a chilling effect on the willingness of future victims to report such offenses and cooperate with prosecution. The United States Supreme Court, in Globe Newspaper Co. v. Superior Court, upheld closing the courtroom to spectators during a child’s testimony.76 The Court held that where the state attempts to deny the right of access

the Fear and Embarrassment Experienced by the Child

to the public and the press in order to inhibit disclosure of

Witness

sensitive information, it must be shown that the denial is

This consideration addresses excluding persons from the courtroom who are not necessary to the proceedings, the defendant, or even the media in appropriate circumstances, while the child victim or witness is testifying. The court has the authority, in appropriate cases, to make this determination, considering the need to protect the child against the constitutional rights of the defendant and the press. Under the United States

necessitated by a compelling government interest and is narrowly tailored to serve that interest.77 The evaluation must be made on a case-by-case basis on a showing that the individual child will be traumatized by the presence of the audience. The Court stated that safeguarding the physical and psychological well being of a minor is a compelling interest that may sometimes override the public and press right of access.

Constitution, the defendant in a criminal case has a right

The Thirteenth Court of Appeals of Texas adopted this

to a public trial, and the public and the press have a right

reasoning in Mosby v. Texas, finding that the youthful age

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to attend criminal trials.

The rights of the defendant,

of the witness and extremely sensitive nature of testimony,

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which related to specific sexual acts between the witness

and intimidating for a child. Altering the physical environment

and defendant, justified exclusion of the public from the

in the courtroom to make it more child-friendly can make a

courtroom so as to protect the witness from harassment or

child feel more at ease and thus improve the child’s ability to

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undue embarrassment.

Texas also provides legislation limiting the release of identifying information concerning child abuse victims.79 This Texas statute is consistent with the United States Supreme Court holding in Nixon v. Warner Communications that the public’s common law right to access judicial records and documents is not absolute.80 Public policy supporting this legislation provides that “in order to protect child witnesses from serious psychological harm, it is within the system of fair play and justice to permit trial judges to exercise discretion when warranted” to avoid “publicity given to the identity of child victims which may cause humiliation and shame for which abused children are ill-prepared to handle.” 81 Further, under recent legislation, the court retains discretion to establish any conditions on the taking of a child’s testimony that the court finds to

participate in the court process. Such alterations do not conflict with the letter nor spirit of the law since, “robes, courtroom arrangement and judicial symbols … [are] fixed in neither law nor tradition… [and] evolved from shifting philosophies, none of which has any absolute legal hold on contemporary judges.” 83 So long as the modifications do not compromise the gravity of the proceedings, all appropriate steps can be taken to make the child feel more comfortable. Two notable considerations for courts include creating a child-friendly waiting room and making a judge appear less intimidating. i. Create a Child-Friendly Waiting Room Courts may provide a separate, child-friendly waiting room for child witnesses. The advantages of child-friendly waiting areas have been recognized by Texas statutes and courts alike.

be just and appropriate, including closing a courtroom,

Often, victims and witnesses are required to wait for long

considering the interests of the child, the rights of the

periods of time before they testify. In cases where such a

defendant, and any other relevant factors.82

wait is unavoidable, having a child-friendly waiting room

In appropriate circumstances, closing the courtroom can greatly benefit the child by decreasing feelings of fear,

equipped with toys and snacks can ease the child’s anxiety over the upcoming testimony.

shame, and embarrassment, and thus improve the child’s

Many jurisdictions across the country provide waiting areas

ability to testify efficiently and in greater detail.

especially for young court participants.84 These nurturing

D. Alter the Physical Environment of the Courtroom to Make it Less Intimidating for the Child The physical environment of the courtroom may be daunting

environments may be geared to a variety of ages and display a spectrum of amenities. However, one characteristic remains the same – each strives to provide a safe, ageappropriate, low-stress environment for child witnesses.

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The Texas Code of Criminal Procedure provides that

a hammer. Children perceive the judge’s power to punish

a victim younger than seventeen has “the right to be

and may not understand that they are not the object of

provided with a waiting area, separate or secure from

that punishment.” 86

other witnesses…” 85

E. Employ Shielded Testimony to Decrease the Child’s Trauma

Bexar County’s adoption of this practice is a prime

Associated with Face-to-Face Testimony

example. The court features a television kids can watch

A major concern regarding the psychological state of children

to relax, and a computer station where they may do their

testifying in court is the potential harm resulting from seeing

homework. Other amenities such as a juice bar in the

and confronting the defendant, who may have recently injured

waiting room and the design and placement of furniture

the child or threatened future injury to the child. This trauma

were chosen with children in mind, including chairs that are

is often referred to as the “phenomenon of confrontational

adjustable for height.

stress” 87 and, in addition to support by social science evidence,

The creation of a child-friendly waiting room can reduce child witnesses’ anxiety over their upcoming testimony. This practice does not necessarily require reconstructing the courthouse, merely finding a quiet, separate room which can be utilized as a child-friendly space. ii. Reduction of Formal Attire Decreases Child Witness Anxiety Altering a judge’s formal attire may decrease a child witness’ anxiety and intimidation in a courtroom setting. Research published by the National Institute of Justice notes the potentially intimidating factor of the judge’s presence, explaining,

was documented by the United States Supreme Court in Maryland v. Craig. 88 Researchers are also concerned that such trauma may impair children’s memory and their willingness to disclose the truth.89 The Sixth Amendment Confrontation Clause provides that “in all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him.” 90 The Texas Constitution guarantees an even greater right to confrontation, requiring that an actual confrontation take place.91 Nonetheless, in Ohio v. Roberts, the United States Supreme Court established an exception, providing the criteria for when out-of-court testimony may be admissible.92 The Roberts test is a two-part test. First, the prosecution must prove the witness

“…some children may feel protected by the presence

is unavailable. A child witness may be deemed unavailable if the

of the judge, but others may be intimidated by the big

child is categorized as having a “bodily infirmity.” 93 This status

stranger in the dark, scary robe who yells at people in the

relies upon a psychological evaluation of a child’s fragile mental

courtroom and sits towering above the witness stand. One

state when forced to face the abuser. Second, the prosecution

therapist tells of a child witness who was afraid that the

is required to prove that the child’s statement bear an adequate

judge would hit her with a gavel, which she referred to as

“indicia of reliability.” 94 In keeping with the holding in Roberts,

28

29

Article 38.071 of the Texas Code of Criminal Procedure allows

proceedings, the concerns regarding a child’s emotional well-

the court to order that the testimony of the child be taken in

being are equally applicable to child witnesses in civil cases.

a room other than the courtroom, and be televised by closedcircuit equipment in the courtroom.95

In both criminal and civil cases, there are many courtroom modifications that may be adopted to address these concerns

In Coy v. Iowa, a case in which two thirteen-year-old girls

and reduce the traumatic effects on the child witness. These

testified from behind a screen placed in the courtroom, the

modifications include the use of remote testimony through

United States Supreme Court refused to compromise the

closed-circuit television, supplementation of in-court

defendant’s right to face-to-face confrontation in the absence

appearances with videotaped depositions or testimony, and

96

of a compelling, narrowly drawn state interest.

The Court

rejected the argument that the Iowa statute implied a legislative finding that child witnesses suffer trauma when testifying in their assailant’s presence, and indicated that a showing

testimony by hearsay witnesses in addition to a child’s live testimony. i. Closed-Circuit Testimony and Child Testimony

of necessity requires “individualized findings that…particular

Closed-circuit testimony is a valuable alternative in cases

witnesses needed special protection”, and exceptions to face-

where face-to-face confrontation with the defendant

to-face confrontation “would…be allowed only when necessary

would cause a child to be severely traumatized or unable

to further an important public policy.” 97

to testify. Both the Texas Code of Criminal Procedure and

In Maryland v. Craig, such an individualized showing of trauma was found, and the court recognized that the Sixth Amendment right to confrontation was not absolute.98 The Craig Court held that the Maryland procedure would allow testimony via one-way closed-circuit television if the judge first found that the child would suffer “serious emotional distress such that the child [could not] reasonably communicate” at trial was constitutional.99 The Court reasoned that the statute did not rely on a “legislatively imposed presumption of trauma,” and the defendant’s right to physical confrontation was not absolute.100 Further, the state’s interest in protecting child witnesses from the trauma of testifying in child abuse cases was sufficiently important to outweigh the right to a face-to-face meeting.101 Although the Confrontation Clause does not apply to civil

30

31

the Texas Family Code provide for the use of closed-circuit

the emotional distress suffered by the child witness in

testimony, and courts throughout Texas have used these

the presence of the defendant is “more than de minimis

statutory allowances to ensure that a child’s testimony is

i.e. more than mere nervousness or excitement or some

heard when he or she is too frightened or embarrassed to

reluctance to testify.” 106

testify in the courtroom. ii. Criminal Procedure Article 38.071 of the Texas Code of Criminal Procedure allows the court to order that the testimony of the child be taken in a room other than the courtroom and be televised by closed-circuit equipment in the courtroom.102

Important public policy concerns support closed-circuit testimony. Such concerns have been noted by the Texas Court of Criminal Appeals and other courts in Texas.107 In Hightower v. Texas, the Texas Court of Criminal Appeals recognized that among the public policy considerations supporting the trial court’s actions [i.e. allowing a child’s live testimony to be transmitted from the jury room to the

The United States Supreme Court case Maryland v. Craig

courtroom] is a stated legislative concern for protecting

affirms the use of remote testimony from children in

children under circumstances of abuse or neglect. The

criminal cases if the state makes an adequate showing

court cited “[an] unquestionable state goal of seeking to

103

of necessity.

This showing of necessity requires

protect a child witness from the trauma associated with

“individualized findings that…particular witnesses needed

giving testimony in open court.” 108 The court went on to

special protection” 104 rather than a “legislatively imposed

confirm that appellant’s Sixth Amendment rights had not

presumption of trauma.” 105

been violated when the child testified before the jury via a

The Texas Court of Criminal Appeals has interpreted

closed-circuit television system.109

Maryland v. Craig to require courts to hear evidence and

The closed-circuit testimony accommodation has been

make a case-specific determination prior to permitting

expanded to include testimony by a child other than the

the transmission of a child’s testimony into a courtroom

victim. For example, in one case, the trial court permitted

through a closed-circuit system. This case-specific

both a victim and his brother to testify via closed-circuit

determination must be based on a three-part test. First,

television; the only persons in the room with the children

the use of the one-way closed-circuit procedure must be

when they testified were the judge, counsels for defendant

necessary to protect the welfare of the particular child

and the State, the court reporter, a victim services

witness who seeks to testify. Second, the trial court must

counselor and the operators of the television equipment.110

also find that the child witness would be traumatized,

The defendant and the jury remained in the principal

not by the courtroom generally, but by the presence of

courtroom and watched the testimony on a television

the defendant. Third, the trial court must determine that

monitor.

32

33 iii. Civil Procedure

level while empowering parents to serve as a resource

Closed-circuit, remote broadcast testimony is also

to the child. The average age for first incident of abuse

permitted in civil cases under Section 104.004 of the Texas

among both boys and girls is 10 years old.114 At this age,

Family Code. In civil cases where the child witness is age

few children have been exposed to the intricacies of the

twelve or under and alleges abuse, the court may order

judicial system outside of the media or pop culture. An

that the testimony be taken outside the courtroom and

effective orientation to the judicial process and court

televised by closed-circuit equipment. In this case, the

procedures can go a long way in desensitizing the child to

procedures for prerecorded videotaped testimony are

an otherwise intimidating environment.

applicable.111

Child witness’ caregivers also find effective orientation

Closed-circuit testimony has been supported by statute

programming to be an essential service.115 The child’s

and civil case law in Texas. In appropriate circumstances,

testimony centers on an incident that the caregiver could

children may be permitted to testify via closed-circuit

not prevent. This experience often leads to a surge of guilt

television in place of in-court testimony.

and feelings of helplessness or powerlessness on the part of the caregiver. By involving adults who are an important

F. Court Orientation

part of the child’s life, an orientation program may restore

Over the last 20 years, court orientation for child witnesses 112

and their families has expanded across the country.

These

some feeling of control. Further, orientation equips the caregiver with the tools necessary to support the child

programs focus on preparing child witnesses and their families

witness before and after her testimony. While therapists

for the court experience without specifically discussing the

and other service providers play a pivotal role in the child’s

details of any individual case. A stated goal of many orientation

recovery process, the caregiver is the person with the most

programs is to demystify the courthouse and courtroom

access to the child on a day-to-day basis, and will likely be

113

procedures.

Through these programs, children learn about the

the recipient of many of the child’s questions or concerns.

justice system in an age-appropriate manner. At the same time,

By arming the caregiver with information regarding the

their parents and guardians are given an opportunity to feel

court process, the court allows that person to be better

as though they are part of the process. Both elements impact

equipped to soothe a nervous child.

families’ overall court experience and can lead to improved outcomes for the court and its participants. i. Effective Orientation

ii. Early Introduction to the Judicial System Early introduction to the judicial system is a key element of many court orientation programs. Some orientation

An effective orientation program seeks to familiarize

models introduce children to judicial concepts immediately

children with the court process at an age-appropriate

after the forensic interview.116 In Smith County, Texas,

34

35

the “Kids in Court” orientation program introduces child

with attire and behavior associated with Sunday church

witnesses to the judicial process once their case has

or the library. Next, an explanation of the courthouse

reached the grand jury indictment stage. Over a 4 to 6

security process may assist the child in understanding that

week period, “Kids in Court” monitors the child witnesses

uniformed officers are present to help and protect the

to gauge their level of understanding regarding the

child, and should not be viewed as intimidating authority

process and tailors their approach accordingly. Children

figures. Staff may introduce the child to the waiting area,

are often read age-appropriate short stories unrelated

and explain any delays that the child may anticipate the

to their case or the judicial system, and quizzed for

day she is called to testify. Finally, the courthouse tour

comprehension.117 After the quiz, children are told

is an optimal time to introduce a child to the courtroom

that they will also be asked questions when testifying

itself. Facilitators may allow the child to explore the room

in the courtroom.118 They are informed that, like the

and become familiar with the jury box and witness stand.

comprehension questions, the questions asked in the

This may also be an opportunity for the child to take the

courtroom will be related to things they already know.

witness stand and answer questions unrelated to the case,

This early introduction to the judicial system is part of an

such as the name of his pet, or his favorite type of food.

effort to incrementally desensitize children to the court

Some orientation programs take a group approach to the

environment. By slowly introducing elements of judicial

courthouse tour, allowing multiple children to participate

process, children have the opportunity to absorb the

in the orientation. Children might have the opportunity

idea over time, ask questions, and become comfortable

to take turns playing different roles in the courtroom,

with the idea of speaking in a large room to unfamiliar

such as judge, prosecuting attorney or jury. By giving the

adults. While every contingency cannot be anticipated,

courtroom a more positive association, courts can work

an early introduction to the judicial system gives child

towards desensitizing a child to the initial shock of a new

witnesses sufficient time to process information essential

environment.

to understanding their role in a court case. iii. The Courthouse Tour A pre-trial tour of the courthouse is an effective way to introduce the child to the trial process in a neutral, relaxed manner. The tour may progress sequentially, beginning with a discussion of proper courtroom attire and behavior. Children may be able to equate courtroom expectations

A courthouse visit is also a prime opportunity for the facilitator to address the child’s fears regarding his upcoming testimony. A child’s age will always influence the tenor of the experience; however, every child will benefit from the opportunity to express concerns regarding the process as they become familiar with the court environment. The child will be able to see a real

36

37

courtroom, ask questions, and take a seat in the witness

responsive contact within the courts to whom questions

box. Facilitators may explain the seating arrangements

and concerns may be directed. By allowing protective

during the trial, and explain the role of each person in the

caregivers to feel involved in the process, the court has an

courtroom. By allowing the child to explore the courtroom

opportunity to restore a sense of control in families already

as a neutral setting, facilitators can alleviate some of the

affected by difficult circumstances.

initial apprehension a child witness may feel. iv. Alternative Orientation Tools If a physical visit to the courthouse is not possible, an orientation video might serve the same purpose.119 Considerations may include whether the video accurately depicts what the child will encounter, particularly for younger witnesses. It may be disconcerting to a child to be shown a video that illustrates a well-appointed playroom/waiting room, yet find that she must wait in a hallway outside the courtroom until she is called to testify.

ii. Roles of Other Adults Regarding a Child’s Testimony in Court Some court orientation programs employ a full-time coordinator who works directly with the court to facilitate court orientation for child witnesses, their families and protective caregivers. The coordinator serves as a liaison between protective caregivers and the court, offering both a link to the local district attorney’s office as well as a point of contact for questions or concerns.

Additionally, an age-appropriate option that explains

Many children’s advocacy centers and prosecutorial offices

courtroom procedures for both young children and teens

appoint a facilitator in the form of a victim advocate or

may be considered.

liaison to work with the child and her family during the

G. Providing Information to the Protective Caregiver i. Introduction to the Court Process Protective caregivers play a key role in facilitating the child’s experience as a witness. By keeping caregivers engaged and informed at all stages of the court process, the caregiver will be better able to support the child. Caregivers should be educated regarding court procedures

court phase of the case. Courts can ensure that the child is equipped with appropriate support and adequate information in anticipation of trial through the appointment of this single facilitator. Facilitators serve as a reliable point of contact for questions and concerns for the child and her family, and can play a crucial role in orienting the child to the court process while ensuring that the child’s family remains invested in the process.

and responsibilities, as well as the court’s expectations

In addition to addressing the child’s concerns, a court

of victims and witnesses. Adults should be introduced

orientation program is also an opportunity for the

to the court facilitator and should view that person as a

facilitator and caregivers to take note of unidentified

38

39

vulnerabilities that might affect the child during the course of her testimony, and after the trial. These issues may be

4

CONCLUSION

raised with prosecutors and the child’s therapist prior to trial, to ensure that effective support is in place to assist

The judicial process and courtroom design present

the child during and after her court appearance.

unquestionable difficulties for the child witness. The justice system continues to search for new and innovative ways to

The caregiver is in a unique position to prepare a child to appear in court. While some adults may be inclined to shield a child from information regarding the court process out of fear of further traumatizing the child, most protective caregivers are the ideal conduit for such information, based on their deep understanding of the child and her abilities. The court, through the facilitator, can assist parents and other caregivers in identifying tools to most effectively prepare the child for the emotional aspects of testimony. Finally, when a child is victimized, the entire family is affected. Parents of child victims commonly reference feelings of helplessness or loss of control. By including family and other caring adults in the court education process, courts can encourage a more valuable use of support mechanisms for the child witness while empowering families in the face of a painful situation. An informed caregiver is better equipped to address concerns that may arise at home regarding the court process, and may be best able to communicate clear expectations to a child in advance of a trial.

facilitate child testimony and decrease the psychological trauma associated with court involvement for children. The considerations herein are valuable ways to move towards child-friendly courtrooms that recognize the specific physical, developmental and emotional needs of children.

42

43

FOOTNOTES 1

J.D.B. v. North Carolina, 2011 U.S.LEXIS 4557 (June 16, 2011).

2

Karen Saywitz, Children’s Conception of the Legal System: Court is a Place to Play Ball 131-57 (1989); Debra Whitcomb,

When the Victim is a Child 15 (2nd ed. 1992) [hereinafter Whitcomb’s Child Victim]. 3

Karen Saywitz et al., Children’s Knowledge of Legal Terminology, 14 Law & Hum. Behav. 523 (1990).

4

Douglas P. Peters, The Influence of Stress and Arousal on the Child Witness, 75 (1991); Kay Bussey et al., Lies and Secrets:

Implications for Children’s Reporting of Sexual Abuse 162 (1993); Dorothy F. Marsil et al., Child Witness Policy: Law Interfacing with Social Science 65 Law & Contemp. Probs. 209, 213-14 (2002). 5

Debra Whitcomb, Research Brief: Emotional Effects of the Court Process on Child Sexual Abuse Victims, Child Victim as

Witness Project Education Development Centre Inc., Newton MA (1992). 6 7

Whitcomb’s Child Victim, supra note 1, at 15. During the mid-1980s, a series of high profile day care sexual abuse cases surfaced across the country. The

McMartin, Fells Acres and Wee Care cases caused media sensations surrounding the unprecedented accusations. Many of the original indictments later ended in acquittals or successful appeals. Questions were raised regarding the reliability of the children’s statements, most of which were ultimately deemed to be unfounded. Reinhold, Robert, “The Longest Trial – A Post-Mortem; Collapse of Child-Abuse Case: So Much Agony for So Little.” The New York Times, January 24, 1990; Goldberg, Carey, “Youths’ “Tainted” Testimony is Barred in Day Care Retrial” The New York Times, June 13, 1998. See State v. Buckey, Superior Court, Los Angeles County, California, #A750900 (1990). 8

Myrna S. Raeder, Distrusting Young Children Who Allege Sexual Abuse: Why Stereotypes Don’t Die and Ways to Facilitate

Child Testimony 16 Widener L. Review 239, 242 (2010). 9

Goodman et al., When a child takes the stand: Jurors’ perceptions of children’s eyewitness testimony 11 Law & Hum. Behav. 27,

27 (1987); Leippe, M. R., & Romanczyk, A., Children on the Witness Stand: A Communication/Persuasion Analysis of Jurors’ Reactions to Child Witnesses, in CHILD EYEWITNESS MEMORY 155-77 (S. J. Ceci, M. P. Toglia, & D. F. Ross eds., 1987). 10

David F. Ross et al., The Child in the Eyes of the Jury: Assessing Mock Jurors’ Perceptions of the Child Witness, 14 Law &

Hum. Behav. 5, 7 (1990). 11

Id.

12

M.A. Goyette & M.S. Rosenberg, Adults’ Beliefs about Children’s Eyewitness testimony: Perceptions of Child and Verdict in

a Case of Child Sexual Assault, Paper presented at the Third National Family Violence Conference, Durham, NH (1987); Whitcomb’s Child Victim, supra note 1, at 26. 13

Julie A. Lipovsky et al., Child Witnesses in Criminal Court: Descriptive Information from Three Southern States, 16 Law &

Hum. Behav. 635, 636 (1992). 14

Tex. Crim. Proc. Ann. art. 38.074 (effective Sept 1. 2011).

15

Id.

16 17

Id. See e.g. State v. Hanson, 439 N.W.2d 133, 137 (Wis. 1989) (stating “[T]he type of questions presented to the child

witness in this case would have been difficult to answer even by a person much more mature”). 18

Saywitz, supra note 3, at 524.

19

Broussard v. Texas, 910 S.W.2d 952, 960 (Tex. Crim. App. 1995)(citing Tex. R. Crim. Evid. 601(a)(2)); Fields v. Texas,

500 S.W. 2d 500, 502 (Tex. Crim. App. 1973); Hollinger v. Texas, 911 S.W.2d 35, 38 (Tex. App.- Tyler 1995). 20

Wheeler v. U.S., 159 U.S. 523 (1895) (holding that a five-and-a-half-year old witness to homicide was competent to

testify because “the boy was intelligent, understood the difference between truth and falsehood, and the consequences of telling the later, and also what was required by the oath which he had taken”). 21

Grayson v. Texas, 786 S.W.2d 504, 505 (Tex. App.- Dallas 1990); Broussard, 910 S.W.2d 952 at 960 (Tex. Crim. App.

1995) (stating that a judge is not authorized or required by Rule 601(a)(2) to force a child-witness to undergo a psychiatric examination to determine competence). 22

See Clark v. Texas, 659 S.W.2d 53, 54-55 (Tex. App.- Houston [14th Dist.] 1983) (three year old found competent

to testify); Hawkins v. Texas, 11 S.W. 409 (Tex. App.1889); Douglas v. Texas, 165 S.W. 933 (Tex. Cr. App. 1914). 23

See Texas. R. Crim. Evid. 601.

24

Kentucky v. Stincer, 482 U.S. 730, 730 (1987).

25

For example, an interview with a child may begin by requesting identifying information: name, age, school, grade,

home address. But young children may misinterpret these initial questions to mean they are under suspicion or arrest.” Whitcomb’s Child Victim, supra note 1, at 17-18. 26

Lyon, T.D., & Saywitz, K.J, Young Maltreated Children’s Competence to Take the Oath, Applied Developmental Science,

3, 16-27 (1999). 27

Thomas D. Lyon, Nathalie Carrick & Jodie A. Quas, Young Children’s Competency to Take the Oath: Effects of Task,

Maltreatment, and Age, 34 Law & Hum. Behav. 141-49 (2010). 28

See Tex. Crim. Proc. Ann. Art. 38.074 (effective Sept. 1, 2011).

29

Perry et. al, supra note 48, at 613 (children under the age of six have limited comprehension of negatives) (even

for adults, a negative question is more difficult to understand than a positive one) (many common legal terms are unfamiliar to or misinterpreted by children under ten) (when a child answers compound questions, they often respond to only part of the question and seem not to realize their answers may be interpreted by the listener as applying to other parts of the question as well) (young children do not routinely ask for clarification, perhaps because they do not recognize when adult questions are confusing); Cathleen A. Carter et al., Linguistic and Socioemotional Influences on the Accuracy of Children’s Reports, 20 Law and Hum. Behav. 335, 336-37 (1996). 30

Perry et. al, supra note 48, at 627.

31

Young children are “often not being able to say “what time” or “what month” something occurred, but [being]

able to say whether it was before or after school, what was on television, or whether there was snow on the ground” Older children “tend to exhibit different, yet equally challenging developmental patterns. For example, [using] words or phrases they do not fully understand.” Whitcomb’s Child Victim, supra note 1, at 16. 32 33

Id. See Texas R. Evid. 603 (Providing that “every witness shall be required to declare that the witness will testify

truthfully, by oath or affirmation administered in a form calculated to awaken the witness’ conscious and impress the witness’ mind with the duty to do so.”). 34

Tex. Crim. Proc. Ann. art. 38.074 (effective Sept 1. 2011); Texas R. Evid. 603.

35

See Fultz v. Texas, 940 S.W.2d 758, 762; Hollinger v. Texas, 911 S.W.2d 35, 39; Gonzales v. Texas, 748 S.W.2d 510, 512

(Tex. App.- Houston [1st Dist.] 1988); Macias v. Texas, 776 S.W.2d 255, 256 (Tex. App.- San Antonio 1989); see also Provost v. Texas, 514 S.W.2d 269, 270 (Tex. Crim. App. 1974) (stating that when a child swore, “she was making a promise to tell the truth.” During trial, the 13 year-old girl stated that she did not understand the meaning of the oath, however she did understand that failing to tell the truth would get her in trouble); Fields, 500 S.W.2d 500 at 501

44

45

(holding that a four year-old child was competent to testify because he “knew what it was to tell the truth and knew that it was wrong not to tell the truth…[that he knew] people can get ‘a spanking’ if they do not tell the truth [and

Comparison Communities, in CHILD MALTREATMENT (Wendy A. Walsh, Tonya Lippert, Theodore P. Cross, Danielle M. Maurice & Karen S. Davison, 2008); accord New Directions from the Field: Victims’ Rights and Services for the 21st

he understood] that while he was in the courtoom he was supposed to tell the truth”); Franks v. Texas, 314 S.W.2d

Century, Office for Victims of Crime, Dep’t of Justice (1998).

586, 588 (Tex. Crim. App. 1958) (holding that a four year-old child, who stated he knew he would ‘catch a whipping’

55

if he told something which was untrue, was a competent witness).

http://www.ncvc.org/ncvc/AGP.Net/Components/documentViewer/Download.aspxnz?DocumentID=42467.

36

56

Article 38.074 of the Texas Code of Criminal Procedure specifically requires that: on the motion of any party, or

Crime Victims’ Right to a Speedy Trial, The Nat’l Ctr. for Victims of Crime (June 15, 2011 2:17pm), available at Webb County also provides a rule demanding the speedy disposition of all criminal cases, specifically noting the

a parent, managing conservator, guardian, or guardian ad litem of a child or special advocate for a child, the court

importance of such in cases involving a child victim. See TX R WEBB CTY RULE 6.22(b)(2011); See also Tex.

shall allow the child to have a toy, blanket, or similar comforting item in the child’s possession while testifying or

Crim. Proc. Ann. art. 56.02 § (a) (15) and art. 29.14 (West 2009).

allow a support person to be present in close proximity to the child during the child’s testimony if the court finds

57

by a preponderance of evidence that: (1) the child cannot reliably testify without the possession of the item or pres-

CHILDREN 74-75 (K. MacFarlane & J. Waterman et. al., 1986); Whitcomb’s Child Victim, supra note 1, at 36-37.

ence of the support person, as applicable; and (2) granting the motion is not likely to prejudice the trier of fact in

58

evaluating the child’s testimony. See Tex. Code Crim. Proc. Ann art. 38.074 (effective Sept 1, 2011).

59

The Child Witness in Criminal Cases, supra note 37, at 24.

37

Myers, supra note 25, § 6.14, at 57.

60

G.S. Goodman & J.A. Michelli, Would You Believe a Child Witness? PSYCHOLOGY TODAY (Nov. 1981); Barbara

38

The Texarkana Court of Appeals allowed the child victim’s mother to stand with him while he testified in trial for

VanOss Marin, Deborah Lott Holmes, Mark Guth & Paul Kovac, The Potential of Children as Eyewitnesses: A Comparison of Children and Adults on Eyewitness Tasks, 3 Law & Hum. Behav. 295, 301 -06 (1979).

aggravated sexual assault of that child. Conrad v. State, 10 S.W.3d 43 (App.- Texarkana 1999); A three-year old child

K. MacFarlane & S. Krebs, Techniques for Interviewing and Evidence Gathering, in SEXUAL ABUSE OF YOUNG See Fed. R. Evid. 611(c)

victim was permitted to testify from her father’s lap throughout most of the proceedings. Clark, 659 S.W.2d 53 at

61

54.

EYEWITNESS MEMORY 3-23 (S. J. Ceci, M. P. Toglia, & D. F. Ross eds., 1987); Whitcomb’s Child Victim, supra

39

In re D.T.C, 30 S.W.3d 43, 47 (App.- Houston [14th Dist.] 2000).

note 1, at 24.

40

Mosby v. Texas, 703 S.W.2d 714, 716 (Tex. App. 1985).

62

Child Witness in Criminal Cases, supra note 37, at 23-24.

41

John E.B. Myers, Karen J. Saywitz, & Gail S. Goodman, Psychological Research on Children as Witnesses: Practical Implica-

63

St. Clair v. U.S., 154 U.S. 134, 150 (1894); Newsome v. State, 829 S.W.2d 260, 270 (Tex. App.- Dallas 1992); see Wyatt

G.S. Goodman, C. Aman, & J. Hirschmann, Child Sexual and Physical Abuse: Children’s Testimony, in CHILDREN’S

tions for Forensic Interviews and Courtroom Testimony, 28 Pac. L. J. 3, 63 (1996) (citing Ellen Mathews & Karen J. Saywitz,

v. State, 23 S.W.3d 18, 28 (Tex. Crim. App. 2000); Baltazar v. State, No. 08-02-00447-CR, 2004 WL 1078502, at 3 (Tex.

Child Victim Witness Manual, 12 Center For Jud. Educ. & Res. J. 5, 34 (1992)).

App.- El Paso 2004) (not designated for publication); Travelers Ins. Co. v. Hurst, 358 S.W.2d 883, 885 (Tex. Civ. App.-

42

Texarkana 1962); Ballew v. State, 452 S.W.2d 460, 461 n.1 (Tex. Crim. App. 1970).

Sperling v. Texas, 924 S.W.2d 722, 726 (Tex. App.- Amarillo 1996); See Tex. Code Crim. Proc. Ann. art. 38 § 10

(West 2009).

64

43

689, 696 (Tex. App,- Houston [14th Dist.] 1984); Clark, 659 S.W.2d 53 at 54 (“nearly all questions propounded to

Rena Marie Justice, Pets in the Courtroom: The New “Comfort Item”, 20 National Center for Prosecution of Child

Uhl v State, 479 S.W.2d 55, 57 (Tex. Crim. App. 1972); Newsome, 829 S.W. 2d 260 at 270; Jolly v. State, 681 S.W.2d

Abuse (2007).

her [the child witness], and answers given, were in response to leading questions and suggestions”).

44

65

Flannery v. Texas, 117 S.W.2d 1111 (Tex. Crim. App.1938).

with a support person.” Rena Marie Justice, supra note 46.

66

Id. at 1113, 1114.

45

Misty Shultz, Therapy Dog Comforts Girl in Trial, CLEBURNE TIMES-REVIEW, Feb. 26, 2007.

67

See Tex. Code Crim. Proc. Ann. art. 38.074 (effective Sept 1. 2011).

46

Justice, supra note 41 (quoting telephone interview with Judge William Bosworth).

68

Engaging Youth in Court: Sample Court Policy, 30 No. 3 Child L. Prac. 33 (2011).

47

See e.g. Bexar County Allows Dogs to Calm Children in Court, THE DALLAS MORNING NEWS, September 6, 2006.

69

Joseph Goldstein, Anna Freud & Albert J. Solnit, BEYOND THE BEST INTERESTS OF THE CHILD 40-41

48

Id.

(1979).

49

Whitcomb’s Child Victim, supra note 1, at 29. [noting that “to the extent possible, those elements of the judicial

70

Whitcomb’s Child Victim, supra note 1, at 34.

process that create undue stress should be minimized, because serving the child’s best interests will, in the long run,

71

Vera v. State, 709 S.W.2d 681, 686 (Tex. App.- San Antonio 1986) (holding that trial court did not abuse its discre-

benefit the justice system as well”].

tion in allowing use of dolls by young complainant and trial court did not abuse its discretion in allowing prosecutor

50

Janet Leach Richards, Protecting the Child Witness in Abuse Cases 34 Fam. L. Q. 393, 410-11 (2000).

to use dolls during argument) (citing Mckenzie v. State, 617 S.W.2d 211, 214, n.9 (Tex. Crim. App. 1981) (in which a

51

Id.

child used one of her favorite dolls to indicate where she had been touched).

52

Tex. Crim. Proc. Ann. art. 38.074 (effective Sept 1. 2011).

72

Whitcomb’s Child Victim, supra note 1, at 34.

53

Billie Wright Dziech & Judge Charles B. Schudson, On Trial America’s Courts and Their Treatment of Sexually Abused

73

See Jensen v. State, 66 S.W.3d 528, 535 (2004) (appellate court noting victim’s use of a doll in her live testimony at

Judges and prosecutors alike have noted “that these effects are even stronger than when a child holds a doll or sits

Children 170 (1991).

trial).

54

74

Wendy A. Walsh, How Long to Prosecute Child Sexual Abuse for a Community Using a Children’s Advocacy Center and Two

See U.S. Const. Amend. VI.

46

47

75

Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 615 (1982); Mosby, 703 S.W.2d at 714.

give way to considerations of public policy and the necessities of the case”); Marx v. State 987 S.W.2d 577, 589 (Tex.

76

Globe, 457 U.S. at 615.

Cr. App. 2004).

77

Id. at 596.

78

703 S.W.2d 714 (Tex. App.- Corpus Christi 1985).

79

See Tex. Code Crim. Proc. Ann. art. 57.02 (West 2009).

109

Id. at 54.

80

Nixon v. Warner Communications, 435 U.S. 589 (1978).

110

Ruiz v. State, 939 S.W.2d 245-46 (Tex. Cr. App. 1997) (noting the use of closed-circuit television at trial and hold-

81

The Child Witness in Criminal Cases, A product of the Task Force on Child Witnesses of the American Bar Associa-

tion Criminal Justice Section, 39 (2002).

108

ing that the presentation of child witness testimony via closed-circuit television does not violate the defendant’s constitutional confrontation right).

82

Tex. Crim. Proc. Ann. art. 38.074 (effective Sept 1. 2011).

111

83

Billie Wright Dziech & Judge Charles B. Schudson, supra note 15, at 171.

112

84

National Center for State Courts, Courthouse Design and Finance, available at http://www.ncsc.org/Topics/

Courthouse-Facilities/Courthouse-Design-and-Finance/State-Links.aspx?cat=Childrens Waiting Rooms and Day Care Centers. 85

See Tex. Code Crim. Proc. Ann. art. 56.02(a) (8) (West 2009).

86

Whitcomb’s Child Victim, supra note 1, at 18.

87

Louise Dezwirek-Sas, Empowering Child Witnesses for Sexual Abuse Prosecution, in CHILDREN AS WITNESSES 194

Helen Dent. & Rhona Flin eds., 1992); Gail S. Goodman et al., Testifying in Criminal Court: Emotional Effects on Child

Hightower v. Texas, 822 S.W.2d 48, 53 (Tex. Crim. App. 1991) (stating that holding “is based on the unquestionable

state goals of seeking to protect a child witness from the trauma associated with giving testimony in open court”).

See Tex. Fam. Code § 104.003. Tarrant County pioneered Texas’ first Kids in Court program in 1990, and has since become the model for

similar programs across Texas. Interview with Blanca Burciaga, Director, Tarrant County Victim’s Assistance Unit (Aug. 22, 2011). 113

Interview with Jason Isham, Program Director, Children’s Advocacy Center of Smith County (Aug. 17, 2011).

114

The National Resource Center on Child Sexual Abuse, The Incidence and Prevalence of Child Sexual Abuse, Hunsts-

ville: NRCCSA, 1994. 115

U.S. Department of Justice, Breaking the Cycle of Violence: Recommendations to Improve the Criminal Justice Response to

Child Victims and Witnesses 14 (1999).

Sexual Assault Victims, in 5 MONOGRAPHS OF THE SOCIETY FOR RESEARCH IN CHILD DEV. 100 (1992);

116

Interview with Jason Isham, supra note 116.

Dorothy F. Marsil et al., supra note 3, at 213-14.

117

Id.

118

Id.

119

Video tape: Kids in Court (on file with authors).

88

Maryland v. Craig, 497 U.S. 836, 855 (1990) (recognizing the “growing body of academic literature documenting

the psychological trauma suffered by child abuse victims who must testify in court”). 89

Dorothy F. Marsil et al., supra note 3, at 209.

90

U.S. Const. Amend. VI.

91

See Tex. Const. Art. I, § 10; See also Long v. State, 742 S.W.2d 302, 309 n.9 (Tex. Crim. App. 1987).

92

Ohio v. Roberts, 448 U.S. 56, 62-75 (1980).

93

Id.; See Tex. Code Crim. Proc. Ann. art 38.071, § 8 (West 2009).

94

Id. at 57.

95

See Tex. Code Crim. Proc. Ann. art. 38.071 (West 2009).

96

Coy v. Iowa, 487 U.S. 1012 (1988).

97

Id. at 1021.

98

Craig, 497 U.S. 836 at 836.

99

Id. at 838.

100

Id. at 845.

101

Id. at 855.

102

See Tex. Code Crim. Proc. Ann. art. 38.071 (West 2009).

103

Craig, 497 U.S. 836 at 837.

104

Coy, 487 U.S. 1012 at 1021.

105

Craig, 497 U.S. 836 at 845.

106

E.g. Gonzales v. State, 818 S.W.2d 756, 762 (Tex. Cr. App. 1991); Lively v. State 968 S.W.2d 363, 366 (Tex. Cr. App.

1998). 107

E.g. Smith v. State, 88 S.W.3d 652, 659 (App.- Tyler 2002) (stating “the right to confrontation must occasionally