Kids Say the Darndest Things! A How To For Effective Questioning and Understanding of the Child

ALICIA GUERRA: Guardian ad Litem Program Supervising Attorney Twentieth Judicial Circuit

SANDRA MCLAUGHLIN: Guardian ad Litem Program Senior Program Attorney Twentieth Judicial Circuit Learning Objectives

 Identifying methods for entering child statements in .

 Synopsis of child cognitive and linguistic development.

 Formulating developmentally appropriate questions.

 Analyzing answers based on the child’s cognitive and linguistic development. The Situation:

 You are confronted with an in-trial, objection to a statement by a child declarant  OR you are planning a pre-trial motion to admit a statement of the child declarant into evidence:

Can you get the statement in without the child declarant testifying?  Ask is the statement:  NOT ? OR  If it is hearsay, is there an exception? § 90.801(1) HEARSAY IS

• A statement: testifying whether in  Can be verbal or the room or through  Note: Distinguish from lack nonverbal. audio-visual technology of personal knowledge. See § 90.604. A witness must have  Can be oral or written. (Out of court means personal knowledge of the  Is an assertion of facts not during the matters abut which he or she testifies. must be (Only people make witness’s testimony. It based on matters the witness assertions. Not perceives with their senses. does not mean the If a witness testifies about animals. Not statement was made in what she read in a document or was told by someone else, machines). court, but on a this is lack of personal  Must have substantive different day). knowledge. Hearsay is when a witness relates the content of content.  Offered to prove the an out-of-court communication.  Made other than while truth of the facts in the witness is the statement Types of statements to look for that may not be hearsay:

1. The statement has independent legal significance. The point is the statement was made; not the truth of the statement.

2. Other side of the conversation.

3. Not an assertion, but instead a statement of present emotion, a question, a command.

4. No substantive content. EXCEPTIONS

• If you cannot find a way to explain why a statement by your child declarant is not hearsay, look for an exception.

• Most applicable exceptions for child declarants are: 1. Spontaneous Statement 90.803(1) 2. Excited Utterance 90.903(2) 3. Then Existing Mental, Emotional, or Physical Condition 90.803(3) 4. Statements for Purposes of Medical diagnosis or treatment 90.803(4) 5. Statement of Child victim 90.803 (23) REMEMBER!

THE CONFRONTATION CLAUSE OF THE 6TH AMENDMENT DOES NOT APPLY HERE.

Always be prepared to distinguish holdings in criminal cases which exclude statements otherwise admissible under §§90.803 and 90.804 on the basis of being testimonial, the defendant having no opportunity to cross-examine the declarant or a violation of right to confront the witness. SPONTANEOUS STATEMENT § 90.803(1) A.K.A a presence sense impression

A spontaneous statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter, except when such statement is made under circumstances that indicate its lack of trustworthiness. Requirements:

• Spontaneous – no time for reflective thought or fabrication. • Does not require a startling event or the declarant to be in an excited state. Personal knowledge by the declarant required. • The longer the statement is made after the event the less likely it is a spontaneous statement. Declarant does not need to testify. EXCITED UTTERANCE § 90.803(2)

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition:

Requirements:

• A startling event or condition • Declarant is in a state of excitement or stress • Declarant is in the excited state and has no time for reflective thought (spontaneous) • The statements relate to the event or condition that caused the excitement. THEN-EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION § 90.803(3)

A statement of the declarant’s then existing state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, when such evidence is offered to:

1. Prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when such state is an issue in the action.

2. Prove or explain acts of subsequent conduct of the declarant. Physical Condition Requirements:

• Declarants physical condition is a material issue.

• Declarant describes his or her own physical condition as it exists at that time.

• Statements describe pain or bodily health.

• Statements are contemporaneous with the physical feeling being described.

• Statements can be made to anyone. Does not need to be a medical professional.

• Does not include statements to explain past events such as who caused the pain. Requirements (Mental/Emotional):

• The declarant describes his or her mental condition or emotional state. • The statement describes in present tense the mental condition or emotional state (contemporaneous). • The declarant’s state of mind is in issue in the action (contrast with statements of declarant being non-hearsay when offered to proved the effect on the listener i.e. the listener’s state of mind). • Statements can be made to anyone. Does not include the declarants beliefs of how events took place. Statements for Purposes of Medical Diagnosis or Treatment § 90.803(4)

Statements made for the purposes of medical diagnosis or treatment by a person seeking the diagnosis or treatment, or made by an individual who has knowledge of the facts and is legally responsible for the person who is unable to communicate the facts, which statements describe the medical history, past or present symptoms, pain, or sensations, or the inceptions or general character of the cause or external source thereof, insofar as reasonably pertinent to diagnosis or treatment. Child Victim Hearsay

• CVH is its own training.

• Not the only hearsay exception for child declarants!

• A declarant is a declarant is a declarant. • § 90.803(23) is the only exception with an age requirement.

• Don’t get shut down by a court who mistakenly believes this is the only exception for statements of declarant children:

• Make an where the judge makes an erroneous ruling. Have the witness answer the question. Preserve your record. §90.104. If the judge won’t let the witness answer then the attorney should the answer. The DCA cannot review if its not in the record. Study by Child Witness Project in Canada - 1999

• Gathered and analyzed questions asked to children. • Across the board, whether it was the government’s attorney, defense counsel, or the Judge – approximately 50% of the questions asked by each person, including the Judge, were developmentally inappropriate.

• Attorneys and judges lacked a proper understanding of child development. • ~ linguistic, cognitive, and emotional development

• When a child is unable to answer or provides a nonsensical answer, their credibility is wrongfully attacked.

• Children are hesitant to say they do not understand. Assessing Suitability for Child Testimony

Every Child is Unique! Assessment for Child Testimony

“CHILDREN ARE NOT SHORT ADULTS” – Anne Graffam Walker, Ph.D.

• Child’s Cognitive Development • Child’s Language Development • Emotional Factors • Child’s Competency • Ethical Considerations • Review Documents • Speak with Collateral Resources • Speaking to the Child to Assess their Abilities • Ensure a Support System is place for the child Kids Communicate in Different Ways

1.Verbal Communication 2.Emotional Communication 3.Body Language

Tip: Protect the Record – Ensure the child’s non-verbal actions are reflected in the record. Questioning a child is equivalent to asking Memory the child to share a stored memory.

Familiarize yourself with how memories are stored.

Memory Process Encoding Storage Recall Familiarize yourself with linguistics – the study of language and sentence structure.

• Semantics – Meaning of words

• Syntax – Sentence structure

• Pragmatics – Context of the statement DEVELOPMENTALLY APPROPRIATE QUESTIONS

Concrete Abstract

Age Who What 1x or more Where Sequencing Circumstances Episodic When than 1x detail 3 4 5-6 7-9 10+ Dark shading = Child may be able to answer those questions Lighter shading = Some children that age might be able to answer those questions

Source: Gunderson’s ChildFirst Familiarize yourself with the dynamics of the specific abuse you are questioning the child about.

 Sexual Abuse  Physical Abuse  Emotional Abuse  Neglect  Child Trafficking/Sexual Exploitation  Domestic Violence  Abusive Head Trauma

It will help you formulate better questions. Prior to Court

• Prepare child for cross- • Watch the Child Protection examination. Team’s forensic interview. • Show the child the courtroom. • Explain the process in an age- • Let the child meet the Judge and appropriate manner. courtroom personnel. • File all necessary motions to • Consider who will sit where during protect the child. the testimony. • Meet with the child – build a • Get permission for a comfort relationship. Learn the child’s item/person, BACA, or therapy preferred name and pronouns. dog to be present during the • Limited review of child’s child’s testimony. testimony during prep. • Meet with child’s therapist. In Court - Prior to Questioning About the Abuse

 Develop rapport using a neutral topic “Tell me something you love to do.”  Narrative Practice/Sequencing  Set the rules up front and Practice them

~Tell me if I got something wrong. ~Tell me if you do not understand. ~It’s ok to say “I do not know” – do not guess.

 Qualify the child Speaking the Child’s Language

 Keep it Simple - Keep it short  Subject – Verb - Object  One question at a time with simple words  Speak slowly  Avoid Legalese  Avoid pronouns – Use names!  Use the words the child uses  Find out what they call their parents  Use the name they use when talking about body parts During the Questioning:  Focus on open-ended questions that will elicit a narrative response.

 “WH” Questions – Remember the Chart on Developmentally Appropriate Questions! Who? What? Where? How? *When (one time or more than one time) Never Why!

 “Tell me all about that”  “Then what happened”  Focus on the 5 senses

 When you shift topics, frame the event. “Earlier you said ____. I am going to ask you questions about that.”

 Do not forget the emotional effect the abuse has on a child: “When _____ did ____, how did that make you feel?”

LISTEN TO THE CHILD’s RESPONSES!  When a child cannot answer a question, or gives a nonsensical answer – do not discredit the child!  Evaluate the question and rephrase it.

 It’s okay to apologize and say, “I asked that question wrong.”

 Children are Concrete thinkers and cannot understand abstract concepts. TIPS  Example: Touch = hand to a child

 Children can demonstrate better than they can articulate.  Example: Children may not be able to explain truth or lie, but when presented with examples, they can distinguish.

 Have the youth’s therapist available to meet with the child after their testimony. Pitfalls to avoid:

 The dreaded “when” question: • Kids do not understand the concept of time such as today/yesterday/tomorrow. • However, they will use the words as if they do understand. • Past and present tense can be difficult, even for older children. • Better to ask how old they were, what grade were they in, or which house they lived in when the event occurred.

 The dreaded “how many times” question. “100 times = a lot” Avoid “do you remember” questions and tag questions. Avoid questions phrased in the negative. Avoid contractions. Avoid the word “story.” Be aware of a child’s non-verbal cues and body language. Be aware of your own body language.

Have a conversation with the child during your questioning. Presenting a Child with Evidence in Trial

• AVOID IF POSSIBLE! Requires extensive training. • Consider the evidence (photo/text messages/video) and its impact • Determine if it is in a child’s best interest/reduce trauma. • Framing - tell the child what you are about to show them, authenticate. • Gradual introduction of evidence based on content. • Better to show still shots of a video vs. the entire video • Ask open ended questions about the evidence. “Do you recognize ___” or “Tell me about this picture” Focus on who, what, where and the 5 senses. The Appearance of Inconsistencies

 Inconsistency does not mean a child is being untruthful.  Disclosure is process, it is not a one day event.  Children’s account of events will vary each time they recall the event – Different audience.  They may be adding details.  They may talking about a different abuse event. References and Resources

• Anne Graffam Walker, PH.D., Handbook on Questioning Children, ABA Center on Children and the , Third Edition (2013). • Laurie Shanks, Evaluating Children’s Competency to Testify: Developing a Rational Method to Assess a Young Child’s Capacity to Offer Reliable Testimony in Cases Alleging Child Sex Abuse, 58 Cle. St. L. Rev 575 (2010) available at https://engagedscholarship.cusohio.edu.clevstlre.vol58/iss3/44 • Allie Phillips, J.D., and Susanne Walters, A Courtroom for All: Creating Child-and Adolescent-Fair Courtrooms, National District Attorneys Association, May 2013 • Thomas D Lyon, Assessing the Competency of Child Witness: Best Practice Informed by Psychology and Law • Guidelines for the Clinical Evaluation for Child and Adolescent Sexual Abuse, available at https://www.aacap.org/aacap/Policy_Statements/1990/Guidelines_fo r_the_Clinical_Evaluation_for_Chil_and_Adolescent_Sexual_Abuse.as px CASE LAW TO KNOW:

State v. Ford, 626 So. 2d 1338 (Fla. 1993) “All courts in Florida possess the inherent powers to do all things that are reasonable and necessary for the administration of justice within the scope of their jurisdiction . . .” A court’s inherent powers include its ability to protect child .

Hernandez v. State, 597 So. 2d 408, 410 (Fla. 3rd DCA 1992): “The state has a interest in protecting child victims of sexual or other abuse from the additional trauma of testifying in open court, in defendant’s presence.”

Dept. of Children & Families v. J.C., 847 So. 2d 487 (Fla. 3rd DCA 2002): “[I]t is fundamentally recognized that our trial courts possess inherent authority to maintain the status quo and to prevent irreparable harm. Especially in the context of children, Florida trial courts have a continuing responsibility to vigilantly protect the welfare and best interests of the child.” CASE LAW TO KNOW:

• Sister of victim testifies of victims statements that she had a yeast infection and was not having sexual intercourse where victim’s then existing physical condition and her subsequent conduct was made a material issue. (Bedford v. State, 589 So. 2d 245, 252 (Fla. 1991).

• Statements to counselor at Sexual Assault Treatment Center not admissible where no showing that they were made for the purposes of diagnosis or treatment. Begley v. State, 483 So. 2d (Fla. 4th DCA 1986). See also Allison v. State, 661 So. 2d 889 (Fla 2nd DCA 1995).

• Error to not consider statement made by family members in medical reports regarding the height from which the child fell as statements created a genuine issue of material fact and thus were not hearsay. Bogatov v. City of Hallandale Beach, 192 So. 3d 600 (Fla. 4th DCA 2016).

• Statements that victim had been penetrated orally, vaginally, and anally pertinent to diagnosis and treatment. Statement that this had been done at gunpoint was not. Conley v. State, 620 So. 2d 180 (Fla. 1993).

• Promissory note is a statement not being offered for the truth of the matter asserted. It is a non- hearsay document and is admissible for its independent legal significance. Deutsche Bank Nat’l Tr. Co., v. Alaqua Prop., Etc., 190 So. 3d 662 (Fla. 5th DCA 2016).

• Rape center physician permitted to testify as to victim's history and examination findings under §90.803(4). Douglas v. State, 913 So. 2d 1234 (Fla 3rd DCA 2005). CASE LAW TO KNOW:

• The two hour delay between the event and the statement of the two-year old to the caseworker that his father killed his mother and step-brother rendered the child’s statements unreliable and inadmissible as an excited utterance. Hamilton v. State, 547 So. 2d 63 (Fla 1989); see also Salter v. State, 500 So. 2d 184 (Fla 1st DCA 1986).

• Not error to admit testimony of physician regarding the statement of the child victim that someone had sex with her under § 90.803(4). Hanson v. State, 508 So. 2d 780 (Fla. 4th DCA 1987). See also Corpus v. State, 718 So. 2d 1266 (Fla. 2nd DCA 1998).

• For a witness, such as a child protection team physician, to testify to the child’s statements identifying the abuser, the statements must be submitted to the rigorous reliability analysis set for in § 90.83(23). Hill v. State, 643 So. 2d 653 (Fla 2d DCA 1994).

• Victim’s statement on day of her murder that she would go to Publix was admissible to prove she went. Huggins v. State, 889 So. 2d 743 (Fla 2004).

• Witness’s pre-trial statement that he planned to change his trial testimony because he feared defendant admissible under §90.803(3) to explain the witness’s conduct of changing his testimony. (Lopez v. State, 716 So. 2d 301 (Fla. 3rd DCA 1998). CASE LAW TO KNOW:

• Suicide note admissible to prove decedent's state of mind in a liability action. (Nelson v. seaboard Coast Line R. Co., 398 So. 2d 980 (Fla. 1st DCA 1981).

• Caregiver’s testimony that when she baths the two-year old child, the child shakes uncontrollably and screams, “hot, hot, hot” admissible and shows the child is scared of baths because she fears being burned. Pankow v. State, 895 So. 2d 1149, 1150 (Fla. 5th DCA 2005).

• Where element of proof included abduction against victim’s will, daughter’s testimony of victim’s statements of being scared to meet with the defendant and victim feared she was in danger. (Peede v. State, 474 So. 2d 808, 816 (Fla. 1985).

• Even where the declarant is incompetent to testify, the declarant’s statements may be admitted where such statements meet the requirements of an admissible hearsay exception. Questions about the age of the child and the circumstances in which the statement was made goes to weight rather than to admissibility. If a hearsay statement lacks the requisite reliability, the court can exclude the challenged statement. Perez v. State, 536 So. 2d 206 (Fla. 1989)(listing in Fn 5 examples of child declarants ages 3, 5, 9, 11, and noting from U.S., 109 S.Ct. 3253 (1989) (“’a child victim’s statements are ‘valuable and trustworthy in part because they exude he naivete and curiosity of a small child, and were made in circumstances very different from interrogation or a criminal trial,’ . . . and ‘therefore are usually irreplaceable as substantive evidence.’”).

• Employee of defendant, who solicited an undercover officer, admissible not to prove the truth of the mater asserted, but to explain the transaction between the employee and the officer. Pronesti v. State, 847 So. 2d 1165 (Fla 5th DCA 2003). CASE LAW TO KNOW: • Competency is a determination of whether a child has the sufficient intelligence to perceive the facts, relate the facts correctly, and to understand the obligation to tell the truth. Rivet v. State, 556 So. 2d 521 (Fla 5th DCA 1990).

• Victims statements to 911 admissible as an excited utterance where she called 911 immediately after she was shot, while under the stress of the shooting, and before she had time for reflective thought. Raymond v. State, 257 So. 3d 624 (Fla 5th DCA 2018).

• The United States Constitution’s 6th Amendment right to confrontation applies to criminal cases. In an appeal of an order on termination of parental rights, the Third District held, “dependency proceedings are civil in nature, not criminal, and the constitutional right to confront witnesses is not implicated in a civil dependency proceeding”. S.D. v. Department of Children and Fams., 208 So.3d 320, 321 (Fla. 3rd DCA 2017); See also, In the Interest of D.B. and D.S., 385 So.2d 83 (Fla. S. Ct.1980).

• Victim’s spontaneous statement to police immediately after the car, in which she had been kidnapped, was pulled over admissible in evidence under § 90.803(1) which does not require the declarant to be unavailable. Sweat v. State, 895 So. 2d 462 (Fla 5th DCA 2005). CASE LAW TO KNOW:

• Statement of child to physician that his attacker tried to have anal intercourse with him admissible under § 90.803(4). The rest of his statements to the physician that were outside the purpose of medical diagnosis and treatment not admissible under § 90.803(4). State v. Jones 625 So. 2d 821 (Fla. 1993).

• Victim’s statement to physician at Rape Treatment Center that “they had been touched in the genitalia by an adult male and had experienced some pain when that happened” admissible for under § 90.803(4). State v. Ochoa, 576 So. 2d 854, 855 (Fla. 3d DCA 1991).

• No error to admit police officer’s testimony of excited utterances of unidentified bystanders pointing out defendant’s apartment. U.S. v. Boyd, 620 F.2d 129, 132 (6th Cir. 1980) . See also, Charlier v. State, 272 So. 3d 476 (Fla 3rd DCA 2019).

• Case Coordinator’s testimony regarding statements of child to nurse-practitioner that he had been abused were admissible when the case coordinator testified that her role was to insure that the child knew why he was at the exam and he was to obtain the history for the medical personnel for diagnosis and treatment. Williams v. State, 865 So. 2d 17, 19 (Fla. 4th DCA 2003).

• Vitim’s statement to police officer that when she opened her door the defendant barged in admissible as an excited utterance where he testified she was crying and visibly upset and appeared to be under the stress of the event when he arrived four minutes after the emergency call was made. Young v. State, 979 So. 2d 109 (Fla. 3rd DCA 2008).