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The Child Witness: Techniques for Direct Examination, Cross-Examination, and Impeachment

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The Child Witness: Techniques for Direct Examination, Cross-Examination, and Impeachment University of the Pacific Scholarly Commons McGeorge School of Law Scholarly Articles McGeorge School of Law Faculty Scholarship 1987 The hiC ld Witness: Techniques for Direct Examination, Cross-Examination, and Impeachment John E.B. Myers Pacific cGeM orge School of Law Follow this and additional works at: https://scholarlycommons.pacific.edu/facultyarticles Part of the Evidence Commons, Juvenile Law Commons, and the Litigation Commons Recommended Citation 18 Pac. L.J. 801 This Article is brought to you for free and open access by the McGeorge School of Law Faculty Scholarship at Scholarly Commons. It has been accepted for inclusion in McGeorge School of Law Scholarly Articles by an authorized administrator of Scholarly Commons. For more information, please contact [email protected]. Articles The Child Witness: Techniques for Direct Examination, Cross-Examination, and Impeachment JOHN E.B. MYERS* CONTENTS I. DIRECT EXAMINATION ................................. 804 A. Direct Examination-Getting Underway ........ 804 B. Supporting the Child's Competence ........... 806 C. Recess to Reduce Anxiety or Stress ............ 807 D. While the Child is Not on the Stand .......... 808 E. Use of Leading Questions on Direct Examination ................................ 810 F. Refreshing Recollection ..................... 815 G. Demonstrative Evidence as an Aid to Testimony 820 H. Explaining Delay ............................ 826 I. Establishing Dates and Times ................. -827 J. Preparing for Cross-Examination Which Insinuates Coaching ......................... 827 * Associate Professor of Law, McGeorge School of Law, University of the Pacific, Sacramento, California. The author expresses appreciation to Professor Linda Carter for her comments on drafts of this article. This article will appear in modified form as a chapter in the forthcoming book titled The Child Witness, to be published by Wiley Law Publications. Pacific Law Journal / Vol. 18 II. SUPPORTING A CHILD'S TBsTIMONY ................. 828 A. The Use of Syndromes to Bolster the Credibility of Child Witnesses and as Circumstantial Evidence of Abuse .......................... 828 B. Battered Child Syndrome ..................... 829 C. Munchausen Syndrome by Proxy .............. 831 D. The Sexually Abused Child Syndrome ......... 831 1. Use of the Sexually Abused Child Syndrome to Prove that Abuse Occurred 836 2. Use of the Sexually Abused Child Syndrome to Bolster the Credibility of the Victim ................................. 841 E. Rehabilitation of a Child Witness Through Evidence of Character for Truthfulness-What Evidence Opens the Door for Rehabilitation?... 848 F. Rehabilitation of a Child Witness Through Evidence of Character for Truthfulness- Methods of Rehabilitation .................... 852 G. Corroboration .............................. 853 1. Corroboration as a Substantive Requirement ............................ 853 2. Corroboration to Rehabilitate ............ 855 3-. What Constitutes Corroborative Evidence?. 856 H. Prior Consistent Statements .................. 857 III. CROSS-EXAWNATION ................................. 863 A. Introduction ................................ 863 B. Purposes and Goals of Cross-Examination ..... 863 C. Discovery ................................... 864 D. Discovery of Education Records .............. 868 1. The Buckley Amendment ................ 869 2. The Education for All Handicapped Children Act ........................... 870 E. The Truthfulness of Child Witnesses .......... 871 F. The Right to Cross-Examine .................. 874 G. Limitations on Cross-Examination ............. 875 H. Should You Cross-Examine? . 877 I. Build Rapport .............................. 878 J. Ask a Series of Nonsubstantive Questions to Which the Child Will Agree, Then Switch to Substantive Issues ........................... 879 K. Combine Moderate Level of Anxiety with the "Agreement" Technique Described in (III) (J). 881 1987 / The Child Witness L. Cross-Examination Through Indirection ........ 883 M . Suggestibility ................................ 885 N . Fantasy .................................... 889 0. Inconsistency Between Direct Testimony and Prior Behavior .............................. 891 P. Coached Testimony .......................... 892 Q. Memorized Testimony ....................... 895 R. The Negative Child .......................... 896 S. Cross-Examiantion of a Child Who Uses Dolls to Illustrate Direct Testimony ................. 897 T. Cross-Examination Designed to Elicit 898 Inconsistencies in Testimony .................. U. Cross-Examination Concerning Perception, 899 Memory, or Communication .................. V. Cross-Examination on Collateral Matters ....... 900 W . Rape Shield Statutes ......................... 900 IV. IMPEACHMENT ....................................... 910 A. Introduction and General Principles ........... 910 B. The Collateral Fact Rule ..................... 911 1. Prior Inconsistent Statement and the Collateral Fact Rule ..................... 914 2. Contradiction of Specific Facts and the Collateral Fact Rule ..................... 914 3. Specific Instances of Misconduct Not Resulting in Conviction and the Collateral Fact Rule .............................. 915 C. The Voucher Rule ........................... 916 D. Impeachment with Prior Inconsistent Statem ents .................................. 917 E. Bias and Interest ............................ 921 F. Coercion ................................... 924 G. Coached Testimony .......................... 925 H. Character Evidence-Specific Instances of Misconduct for Which There Has Been No Juvenile Court Adjudication .................. 926 I. Character W itnesses ......................... 928 J. Character Evidence-Juvenile Court Adjudication ................................ 929 K. Defects in Capacity .......................... 933 L. Eyewitness Testimony by Children ............ 935 M. Expert Testimony on the Reliability of Eyewitness Testimony by Children ............ 938 Pacific Law Journal / Vol. 18 N. Contradiction ............................... 940 0. Impeachment of a Hearsay Declarant .......... 941 V. CONCLUSION ......................................... 942 Children testify in legal proceedings with increasing frequency. It is not uncommon for children as young as three and four to take the witness stand. When the individual on the stand is a child whose head is barely visible above the rail of the witness box, and whose feet dangle a foot or more from the floor, the trial lawyer faces unique challenges. This article provides practical information on techniques for direct examination, cross-examination, and impeach- ment of young witnesses. I. DiREcT EXAMINATION A. Direct Examination-Getting Underway The direct examiner's primary responsibility with all witnesses, whether children or adults, is to "get the story into the record." The experienced trial lawyer knows that this goal often is easier said than done. Many self-assured and intelligent adult witnesses find it difficult to relate what they know. When the witness is a six-year-old, the difficulties are multiplied many times. No child should be placed on the stand unless the child has been prepared for the experience, and unless the attorney is reasonably confident the child will be able to testify effectively. Before beginning the direct examination, the attorney is well- advised to imagine what runs through a child's mind as he or she climbs up to the witness stand. To a young child the courtroom is a huge and foreboding place filled largely with strangers. The robed judge sits high atop a throne. Even though the child has been told that the judge is a "nice" person, the sheer presence of the court may be intimidating. In a criminal case, the defendant is seated at counsel table, just a few feet away. If the defendant has injured the child, or threatened harm if the child testifies, the child's fear of the defendant can be overpowering. The embarrassment and stage fright which accompany speaking in public causes anxiety for most wit- nesses, but when the witness is a young child, the anxiety may be significantly amplified. All in all, testifying is not a pleasant expe- rience. 1987 / The Child Witness Bearing in mind the anxiety and fear experienced by most child witnesses, the direct examiner's first task is to place the child at ease. Advance attention should be given to the seemingly simple matter of getting the child from his or her seat inside or outside the courtroom to the witness stand. Unless the child knows exactly where to go, and has the confidence to make the journey alone, someone should assist the child. What could be worse than dragging a frightened child away from her or his parent and forcing the youngster to march the endless distance to the witness box. It's a little like asking a five-year-old to walk from the car to the doctor's office for a shot while the parent waits in the car. Once the child is safely on the stand and under oath, the examiner should open the direct examination with simple questions designed to place the child at ease. For example, counsel might begin by asking a series of questions which the child can answer easily and without embarrassment. The success of getting the right answers, and doing a good job in response to the attorney's questions gives the child self-confidence. Questions must be phrased in language the child understands. Use of legal terminology and other big words should be assiduously avoided. This is not to say that the examiner
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