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Protecting Child Victim/Witnesses

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Protecting Child Victim/Witnesses If you have issues viewing or accessing this file contact us at NCJRS.gov. ' .. PROTECTING CHILD VICTIM/WITNESSES SAMPLE LAWS and MATERIALS National Legal Resource Center , " For Child ~~dvocacy & ~ l Protection A Program JB\ Of The American Bar Association Y Dung Lawyers Division February, 1986 ,-----.-.------. -- -- ._- -- .. NATIONAL LEGAL RESOURCE CENTER FOR CHILD ADVOCACY AND PROTECTION A Project of the ABA Young Lawyers Division AMERICAN BAR ASSOCIATION 1800 M Street, N.W., Washington, D.C. 20036 (202) 331-2250 Resource Center Staff and Projects Howard A. Davidson Josephine Bulkley Matthew B. Bogin Director Ross L1tman Learning Disabilities Child Sexual Abuse Law Reform Robert M. Horowitz Associate Director Sally Inada E. Bruce Nicholson Marketing/Publications Mark Hardin HandicatJped Infant Care Debra Ratterman Joyce Moore Theodore J. Stein Ellen C. Segal Foster Care Nancy Bernard Child Welfare Agency Representation Bernadette Higgins C. Diane Dodson Joyce Sinclair Margaret Campbell Haynes Susan J. Wells Deborah Elliott Child Support Child Abuse Research Administrative/Support Staff ABA Young Lawyers Division Barbara E. Mendel Chairperson Alan S. Kopit Chairperson-Elect National Advisory Board Marc L. Sallus Han. Forest E. Eastman Marcia R. Lowry Chairperson National Council of Juvenile and ACLU Children's Rights Project Ellen Simon Sacks Family Court Judges Evelyn K. Moore Julia P. Hardin Lynne Z. Gold-Bikin Vice-Chairpersons National Black Child ABA Family Law Section Development Institute Frederick C. Green Donald C. Bross Albert 1. Solnit National Association of Children's Hospital Yale University Child Study Center Counsel for Children National Medical Center Elizabeth S. Cole Sanford N. Katz Michael S. Wald Child Welfar:? League of America International Society of Family Law Stanford Law School Robert E. Cramer, Jr. Norman Lefstein Patricia M. Wald National District Attorneys Association ABA Criminal Justice Section U.S. Court of Appeals for D.C. Circuit ~ ---~~----------------------------------------------- l/ Protecting Child Victim/Witnesses Sample La~ and Materials Ross Eatman Josephine Bulkley Research Assistant Beth Wanger National Legal ~" Resource Center for Child Advocacy ~& Protection U.S. Department of Justice National Institute of Justice This document has been reproduced exactly as received from the person or organization originating it. Points of view or opinions stated in this document are those of the authors and do not necessarily represent the official position or policies of the National Institute of Justice. Permission to reproduce this ~~i'rtBti material has been ()ranted by PllbJ ic Darla in,LNI-J)QJkdJDlb!JF.J#---­ JJS-Dep~~ce~--­ to the National Criminal Justice Reference Service (NCJRS). Further reproduction outside of the NCJRS system requires permis­ sion of the Sl!l~ owner. Prepared under a Cooperative Agreement to the National Center for Missing and Exploited Children, Number 86-MC-CX-K003, from the Office of Juvenile Justice and Delinquency Prev~ntion, Office of Justice Programs, U.S. Department of Justice. Points of view or opinions in this document are those of the authors and do not necessarily represent the official position or policies of the U.S. Det?artment of Justice, the National Center for Missing and Exploited Children, or the American Bar Association. Preface Over the last several years, there has been a tremendous amount of media and professional attention directed at the special vulnerability of very young children who, as both victims of crime and witnesses in the judicial process, have faced a double ordeal. The trauma induced by their involvement in the legal system, which some have referred to as a ·second victimization,· has for some time been a concern of this program. Since 1979, the National Legal Rasource Center for Child Advocacy and Protection has been focllsing on the child who has been criminally victimized within their own family. However, what we have learned through seven years of technical assistance throughout the country is that many of the statutory reforms originally devised to protect the victim of intrafamily abuse are applicable to all young sensitive children who are called upon to function in the courtroom environment. After we published five books (between 1980 and 1985) which spotlighted some of these issues, and the ABA's Criminal Justice Section began to focus on this area, the American Bar Association's policymaking body, the House of Delegates, approved a resolution setting forth a set of -Guidelines for the Fair Treatment of Child Witnesses in Cases Where Child Abuse is Alleged.- These guidelines (contained herein) now represent the official policy of the ABA. However, our technical support responsibilities have continued unabated, and to assist those who are trying to craft legislation on some of the most vexing and complex aspects of the child witness issue, we have been commissioned under a contract with the National Center for Missing and Exploited Children to develop this publication. Let me first be clear about what this publication is not. The sample statutes are not intended to serve as model laws or uniform legislation. Rather, they are offered as approaches states may want to consider in pursuing legislative reform. Nor have we tried to develop statutes that track the specific positions taken in the ABA -Guidelines.- In no way are we suggesting that the sample legislative approaches contained herein will not be controversial; indeed, as the limited, cautious positions taken in the ftGuidelines" point out, there is clearly disagreement within the ABA about how far these child witness reforms should go. We also recognize that the difference in the states' constitutional provisions and court decisions make any single national approach to these chil.d protective reforms unrealistic. We therefore encourage people who are working on reforms at the state level to be cautious, to draft laws in these areas as carefully and methodically as possible, and with the broadest range of multidisciplinary input and study. Our seven years of research and consulting tells us that states must be flexible i - in both adopting and using these reforms, and that alternative approaches should be available for dealing with the child in the courtroom. without the utmost care in legal drafting and reform implementation, there is great risk of case reversals and the need for retrials, thus causing the child even more trauma. It is also vital to carefully evaluate the use of any new procedures to protect children by using a case-by-case analysis, rather than a blanket approach, and to only use the reforms when necessary. This is consistent with the u.s. Supreme Court's decision in the Globe Newspaper Co. case which is referred to herein. The major part of the following material is in some way both a crystalization of the writings previously published by us (see the complete list enclosed), as well as an expansion upon one part of a previous publication of the National Center for Missing and Exploited Children, entitled Selected State Legislation: A Guide for Effective State Laws to Protect Children. Our program was pleased to have assisted in the preparation of that guide. The sample laws which follow take a comprehensive approach to the issues addressed, and each area has been carefully analyzed by our staff, and is fully discussed in the commentary which accompanies the statutory language. In certain places we have bracketed certain words (such as the suggested ages of children) to indicate that these are places where the legal drafters may especially want to consider alternatives. Of course, drafting, enacting; and even using new legal protections for child victim/witnesses will not be enough. There must be a concomitant effort to educate county and local professionals in the need for these reforms and where they can most appropriately be used. Our program will continue to be available to assist in theae ~fforts. Howard A. Davidson, Esquire Director National Legal Resource Center for Child Advocacy and Protection ii Acknowledgment We want to express our gratitude to Bernadette Higgins, who typed the many drafts of this manuscript. iii L TABLE OF CONTENTS PAGE Preface •••• 0 •••••••••••••••••••• D •••••••••••••••••••••••••• 0 i Acknowledgment •••••• 0.0 •••••• 0 •••••••••••••••••••• 0 •• .iii Table of contents ••••••••••••••••••••• ~~e~~I~~~ .v 1l'1'~""'-~<lJ'n".q;~, Introduction to Sample Statutes and Commentary •••••• . .:. • 1 JUtJN diG Jg~S ADMISSIBILITY OF CHILDREN'S OUT-OF-COURT STATEMENTS .. 1 • Sample Statute. .~~f~f_~a • 0, ••••• .5 2. Commentary •••••• • • • • • • • • • • • • • • • • • • G ~ • • 7 i 3. Sou r ces •••••••• . .11 4. Summary of Related Legislation •• •••• 13 VIDEOTAPED DEPOSITION AND CLOSED-CIRCUIT TELEVISION TESTIMONY 1 • Sample Videotaped Deposition Statute. .17 2. Sample Closed-Circuit Television Testimony statute.. • ••••• • •• 19 3. Commentary •••••••• • • • • • .21 4. Sources •••••••••••. • .27 5. Summary of Videotaped Testimony Legislation. .31 6. Summary of Closed-Circuit Television Testimony Legislation •••••••••••••••• • .35 COMPETENCY OF CHILD WITNE~SES 1. sample statute. .37 2. Commentary •••••• .37 3. Sources •••••••• . .. .. .. .41 4. Summary of Related Legislation •• • 43 SUMMARY OF OTHER LEGI SLATIVE REFORl-1S •••••••••••••••••••••••• 47 AMERICAN BAR ASSOCIATION'S RGUIDELINES FOR THE FAIR TREATMENT OF CHILD WITNESSES IN CASES WHERE CHILD ABUSE IS ALLEGED" •••••••••••••••••••••• 51 RECOMMENDATIONS FOR IMPROVING
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