CPS School – Lesson 1: Referrals

Welcome to the first lesson of CPS School!

The word “referral” is a term with two meanings.

Please note that CPS stands for Child Protective Services. Many states and counties have other names such as DPSS, DCFS, AFCS, et.

#1 Referral=When someone calls a CPS hotline and says that they believe a child is being abused.

#2 Referral= When CPS provides their “clients” (you, your children or other adults involved in the case) with “services” they use the word referral which is telling you to go to a specific place for that service such as parenting classes, counseling, drug testing, etc. but mostly it is paperwork to prove the use of the state and federal money that is given to the Department to steal our children.I

FAMILY MEMBERS CALL CPS MOST OFTEN

What can you do to avoid the “referral” by someone you know?  There is so sure way however, it may be possible to lower the odds by just getting along with people.

Television and other media has done quite a bit of damage to our families and our community. I was watching MASH (the old show about a medical unit in Korea during the Korean war) and I was disgusted with everyone cheating on their husbands and wives. TV has been brainwashing us to cheat on our spouses because those cool actors in that show did and we all thought nothing of it! Media nowadays is brainwashing us all to be gay! I am OK with homosexuals, if that is the way their bodies are, to each his/her own but TV is actually PROMOTING IT (probably to go along with Agenda 21 which is a depopulation plan). Regardless, media has put us husband against wife, children against parents (along with being taught in school to snitch ON THEIR PARENTS FOR ANY MINOR SPANKING OR PARTYING WHATSOEVER) and neighbor against neighbor. Sure, there has always been disputes over land and whatnot but now we live a few feet from each other and everyone is calling the cops and CPS for little or no valid or verified reason. This is the government’s plan so that we do not band together to overthrow an extremely corrupt system.

Family members and friends may think they are “helping” you and your children but if they truly did, they would not call some strangers out to your house, they would offer their help personally!

It takes a lot of effort to get along with people sometimes but patience and understanding is the key to a happy and content life. I wish I would have put more effort into not being a bitch to my husband’s ex-wife that is for sure! I thought I was so much better than her, I looked at her like she was a piece of shit when I really did not know what she was going through. Turns out that she was more of a piece of shit than I thought but I still could have and should have been kinder as she can’t help it that she has several mental illnesses. I didn’t have to go out of my way to write her that letter telling her what I knew about her past and how she treated her husband and children. All it did was make her resentful of my husband for telling me so much and maybe believing things that were not entirely true. I had my reasons at the time but golly gee willicker, if I could go back in time, I would have been quiet and kinder. I had no idea of what so much resentment would make a person do. So be kind to your neighbors, ex-spouse or girlfriend, be tolerant of certain personality defects, try your best to be firm but always nice. Don’t piss your mother off, from all the stories I have heard, they must rank #2 in the top 5 people who call CPS. Try to get along with your siblings, aunts, uncles and step-family. This would not only improve your chances of not being falsely reported, it also strengthens your family bonds and that is positive for everyone.

MANDATED REPORTERS AND OTHER PROFESSIONALS

A lot of calls are from “mandated reporters” who are “professionals” who can be charged with a crime for failing to report “suspected” child abuse either in criminal or civil court as well as pay a hefty fine and possibly lose their license.  I believe that there may be a minimum referral quota but I can not verify that.  

Here is a partial list of “Mandated Reporters”:

School teachers

School Nurse

School Principal

School Counselor

School Administrator

School Staff

School Volunteer

School Cafeteria Lady/Worker

School Clerk/Office Staff

School Librarian

School Social Worker

School Janitor

Hospital Doctor

Hospital Nurse

Hospital Administrator

Hospital Social Worker

Hospital Staff

Hospital Chaplin

Family Doctor

Doctor’s Nurse

Doctor’s Office Staff

Doctor’s Aide

Psychologist/Psychiatrist   Counselor/Therapist

Daycare Administrator       Daycare worker

Dentist     Dental Assistant            Dental Office Staff

Police Officers

Code Enforcement Officers

Parole Officers

Probation Officers

Animal Control Officers

Substance Abuse Program Directors, Counselors, Volunteers and Office Staff

Domestic Violence Prevention Program Directors, Counselors, Volunteers and Office Staff

Parenting Class Teacher, Administrator, Volunteers and Office Staff

Anyone who works at Macy’s Department Store (no kidding!)

Utility Workers (like the people that come out to turn on/off your electricity, water or gas)

Refuse Pick-up Drivers

Mail Delivery Persons

ANY PERSON WHO WORKS FOR GOVERNMENT INCLUDING CITY, COUNTY, STATE AND FEDERAL!

 REFERRAL PROCESS:

Each CPS office has its own referral evaluation process.  You should be able to find the one for your county by searching, “Child Welfare Policies in ____ County”.  How the agency in your area responds depends on several factors such as current case load, budget constraints and staff-to-case ratio. All too often calls will be “evaluated out” simply because they were understaffed.  You have most likely seen the news story here and there where a child died due to lack of action on the part of CPS.  Often, CPS KNOWS a child is in real danger and they don’t do a damn thing! They let that child get hurt or die just so they can spin it into needing more funding!! What shameful, despicable behavior! They even spun OUR story on the news and claimed that the reason we were able to take our son from a supervised visit at the Department of Social Services office was due lack of funding!!

1. The call center will receive the call, ask pertinent information about the child and the child’s family and/or residence and ask what the abuse is. They will ask, “How do you know?” but these questions are basic and never verified in any way. Callers can say they anything they want and even give a false name. They DO have caller ID and may call you back at some point.

2. Then a supervisor reviews the information given during the call and check their computer for any previous reports or issues using both your name and your address. They evaluate the level of “risk” with this information and some other basic background research which includes whether or not anyone in the home has a criminal record. They will most likely find out if you are receiving any kind of county and/or state financial assistance.  At least that is what is supposed to be done. If they decide to send someone out to the home or school most likely the worker will not be alone and depending on what the caller said, they may even bring the police on the first visit which most likely means that their intention is to remove your child.

THE SOCIAL WORKER WILL USE THE PRESENCE OF THE POLICE OFFICER TO INTIMIDATE YOU INTO BELIEVING THAT YOU HAVE TO LET THEM TAKE YOUR CHILD AND THAT IF YOU PROTEST YOU WILL BE ARRESTED. The bottom line is that NO WARRANT, NO ENTRY! If they had a warrant they would NOT be knocking and waiting for you to answer. I have many suggestions on how to avoid your children being taken and I shall provide a link on the side column soon but REMEMBER, CPS HAS NO POWER AND NO AUTHORITY OVER YOUR CHILD UNTIL YOU GIVE IT TO THEM! More on this subject in Lesson 2.

When my husband’s ex-wife called (over 20 times) the CPS hotline while I was in labor with my son she said, “That baby will DIE if you let it go home with them!” So NEVER UNDERESTIMATE what people will say when they call that hotline!

A FUNNY SIDE NOTE:

A couple of months ago some guy called my husband’s phone, as it can be found on http://www.donnellyjustice.me, to report his neighbor. He thought he was calling CPS for some reason! Maybe he was just testing us but we played along just to see what he would say. He said that there are “a lot of people living at the house” and that he “smelled pot coming from the direction of the house”. Basically, the children play outside and it annoys him. My husband told him that someone would get back to him. My husband called me and gave me the guy’s number so I called him. I did not say I was from CPS or the county whatsoever. I just asked him what was going on and how can I help. He told me the same thing he told my husband. I asked a few more questions and implied that someone would go check on the children. I asked his name and the address of the children he was calling about. Of course, he couldn’t tell me the people’s names and he didn’t know what their address or phone numbers were he just said the house to his right or something. I googled the man’s address and looked for neighbors. The nearest neighbor is at least a half a football field away! WTF?

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COURT: EVIDENCE, TESTIFYING, PROCESS

The following is directly from the Child Welfare Information Gateway. It is what the CPS workers learn:

The Rules of Evidence

Why They Exist

The rules of evidence control what information may be introduced in court to convince the judge to reach a particular decision. Because some types of testimony, documents, and records are less reliable and more prejudicial than others, special evidentiary rules are necessary to allow the judge to consider some evidence in his/her fact-finding process, while excluding other evidence from consideration.

How Evidentiary Rules Affect the Caseworker

Anyone who investigates or gathers facts in a child abuse case should have a general understanding of the rules of evidence. Although in most States few cases in a CPS caseload actually go to court, it is important to treat all investigations as if they might. The manner in which a caseworker should practice (i.e., conduct investigations, take notes, and preserve tangible evidence) is significantly affected by these rules.

Types of Evidence

There are several types of evidence that may be admissible in court. The caseworker should be able to sort out the information contained in his/her case narrative/dictation according to the type of evidence it represents.

  • Direct evidence is evidence which is based on personal knowledge or observation; generally, testimony by an eyewitness to an event.
  • Real or demonstrative evidence usually takes the form of documents, photographs, or x rays. It is an object (rather than testimony) that is offered to persuade the judge of the facts in question. The rules of evidence require that before real or demonstrative evidence may be presented to the judge, a foundation must be laid that establishes the relevance and authenticity of that object. This is generally accomplished by the testimony of someone who has had control over the object. (See “Getting Records Into Evidence.”)
  • Circumstantial evidence is often used when no or little direct or real evidence is available; it is indirect evidence from which certain inferences can be drawn. This would include testimony by a neighbor who heard a child crying and an adult shouting, or by a teacher who noticed that the parent often smelled of alcohol and slurred his/her speech. The judge will not take this as absolute proof of abuse or neglect, but together, these details may create a probability that the abuse or neglect occurred. Although circumstantial evidence is the least persuasive type of evidence, it is particularly useful in child abuse cases, where eyewitnesses and clear evidence of inflicted physical injury are rare. Expert witnesses may also provide circumstantial evidence by testifying in court. (See “Expert Testimony.”) For example, expert testimony that a child’s injuries are inconsistent with the parents’ explanations for them may be permitted to infer that the child is, in fact, a battered child.

For example, a caseworker’s narrative/dictation on a child abuse investigation might contain the pieces of information listed below.

  1. A teacher kept a log of the days that the child came to school with bruises.
  2. A neighbor heard a child’s screams.
  3. A pediatrician reported the case after examining the child and found multiple bruises, both old and new, on his/her back and buttocks. The doctor says that the location, number, and severity of the bruises, as well as the presence of old bruises in the same place, suggest that the child’s injuries did not occur accidentally, but rather were intentionally inflicted.
  4. Medical records.
  5. Photographs of the bruises taken by a police officer called by the doctor.
  6. The child said that his/her parent beat him/her with a belt.
  7. A belt.

A classification of the evidence should look something like this:

  • Direct evidence: the child’s testimony.  ********[But when MY CHILDREN said that they were NOT abused or neglected in ANY WAY that did NOT COUNT AND WAS NOT CONSIDERED WHATSOEVER!]********
  • Real or demonstrative evidence: the teacher’s log (supported by his/her testimony); the medical records (supported by the doctor’s testimony); the photographs (supported by the officer’s testimony); and the belt.

All of this evidence might not be used in court, but caseworkers (aided by their attorneys) will want to sort out and consider it all initially. Once a caseworker has categorized all his/her information, the strengths and weaknesses of the case will become clearer. With the attorney’s help, the caseworker may be able to fill in any gaps in the evidence by further investigative work and case preparation.71

Relevant and Material Evidence

To be usable in court, evidence must be material and relevant. Evidence is material when it has a logical connection to any of the issues that need to be proved in the case. It should be clear from a particular State’s law exactly what must be proved. For example, whether a parent cheated on his/her income taxes would be immaterial to any issue in a child abuse case. Evidence will be relevant when it increases the likelihood that a particular fact in question occurred. For example, the fact that, prior to the incident in question, the parent failed to provide his/her child with adequate medical care is irrelevant to the question of whether he/she molested that child. Evidence must also be competent. This means that the evidence does not violate any rules of evidence and is not more prejudicial (unfairly harmful or beneficial) than it is probative (tending to prove or disprove) on any given issue.

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The Hearsay Rule

Although relevant evidence is generally admissible, some relevant evidence that is thought to be unreliable will be excluded from judicial consideration. One such evidentiary rule is the rule against hearsay. Hearsay is a statement made outside the courtroom that is presented in court by someone other than the original speaker to prove the truth of the original speaker’s statement. So, the hearsay rule sometimes prevents a witness from testifying about what another person said. In other situations, because the purpose of repeating the statement in court is not to prove the truth of the statement, hearsay may be admissible.

For instance, a witness would not be permitted to testify that he/she heard another person say “I am the President,” to show that that person was, in fact, the President. Such testimony could be used, however, to show that the speaker was mentally unstable. In a child abuse case, it is not uncommon for a witness to be told by the child’s teacher, neighbor, or relative that “the child gets beaten up at home all the time.” However, because of the hearsay rule, that witness may not testify that “Mr. X told me that the child gets beaten up at home all the time,” to prove the abuse. If Mr. X has something to say about the child’s home life, the judge will want to hear directly from Mr. X, so that Mr. X can be questioned fully, cross-examined, and observed on the witness stand.

There are a variety of exceptions to the hearsay rule which permit the use of some hearsay in court. The underlying reason for these exceptions is that some hearsay statements, when made under certain circumstances that suggest that they are especially trustworthy, are reliable enough to be used in court. The rule against hearsay is tricky, and sometimes lawyers and judges have difficulty applying it correctly.

The following are among the hearsay exceptions most commonly used in child abuse and neglect cases.

Admissions of a Party

When a person accused of some type of wrongful conduct makes an out-of-court admission, it may be testified to by another under an exception to the hearsay rule. For example, an allegedly abusive parent might confess to an investigating caseworker: “I know I hit her too hard but I won’t do it again.” Although the parent may deny in court that he/she ever made such a statement, the caseworker would be permitted to recount it under this hearsay exception. The reason for this exception is that an admission is considered reliable hearsay, since an alleged wrongdoer (for example, an abusive parent) has nothing to gain from making up such a damaging statement. In addition, the parent probably would not say something contrary to his/her own interests if it were not true.

Excited Utterances

An out-of-court statement that is made spontaneously under extreme emotional excitement is also admissible as an exception to the hearsay rule. The excited utterance is viewed as trustworthy because the speaker’s excitement is thought to prevent him/her from reflecting long enough to fabricate a story. For example, in a child abuse case, courts will usually look at the length of time between the startling event and the child’s statement when deciding whether it is an excited utterance. However, the time lapse alone is not determinative; it is just one factor among many that the court can consider.

Some States apply a more relaxed standard for admitting excited utterances when they are made by children. Very young children, particularly if they are victims of sexual assault, may be found to remain under the influence of the assault for an extended period of time.72 Thus, for example, the statement of a 4-year-old made several hours after he/she was raped may be considered sufficiently reliable to be admitted as an excited utterance, given the child’s very young age, the degree of trauma to which he/she was exposed, and the level of excitement under which he/she made his/her statement. However, a court might find that the same statement, made by an adult rape victim, does not qualify as an excited utterance, since an adult (or even an older child) might be capable of reflecting on and fabricating a story during a time lapse of that length. Even when similar statements are made by children of similar ages and under similar circumstances, courts in different States vary widely as to what they will consider an excited utterance by a child.

Records

What Records Are Admissible?

Regularly kept records fall into another hearsay exception. Although records are technically hearsay because they contain second-hand information, their contents will be considered reliable and therefore admissible when they are kept regularly, systematically, and routinely. It is this regularity of the record-keeping process by persons with a duty to supply accurate data that ensures trustworthiness. This foundation is generally established in court by the testimony of the recorder, or even by the clerk or records custodian, depending on the nature of the record in question. This exception applies to both business records, such as hospital and medical records, and official records, such as police reports, social services casework files, and school records.

Particularly in cases of child maltreatment, in which the content of a caseworker’s file is often essential for a successful court case, the manner in which these files are maintained is important. Case records will not be admitted under the records exception to the hearsay rule unless the judge is convinced that they are accurate. Thus, a caseworker’s dictation/narrative/ progress notes should be detailed and thorough. The facts recorded must be either based on the caseworker’s personal knowledge or he/she must have had a duty to verify the truth of those facts. However, not everything in dictation/narrative/progress notes may be admissible in court. Opinions and conclusions may be excluded, so the caseworker should use only facts.

Getting Records Into Evidence

The attorney who seeks to use a document or record as evidence in court must (if opposing counsel or the judge insists upon it) establish its authenticity, i.e., that the document is actually what it is claimed to be. This may be accomplished by:

  • testimony of any witness who knows that the document is what it appears to be or who is familiar with the handwriting on the document;
  • testimony of an expert witness that the document is consistent with other documents that have already been authenticated in that case; and
  • comparison by the judge or jury of the document with already authenticated documents.

Statements Made for the Purpose of Diagnosis or Treatment

Out-of-court statements made to doctors and other medical personnel may be used in court if they are made for the purpose of diagnosis or treatment and concern a current medical condition. In some States, this exception could extend to a patient’s description of past symptoms and even to the cause of the patient’s injury and the identity of the perpetrator. For example, a child’s report of abuse to a doctor, including his/her description of details and sometimes his/her identification of the abuser, might be admitted in a child abuse case. The rationale for this exception is that patients are generally truthful when their health is at stake, because they seek the most appropriate medical care possible.

However, when an out-of-court statement is made to medical personnel expressly for litigation purposes, this rationale does not apply. Thus, statements made to a doctor in the context of a court-ordered evaluation, for example, are not admissible under the medical diagnosis/treatment hearsay exception.

The Residual Exception

In many States, courts are given the discretion to allow the use of hearsay statements that do not fit precisely into a traditional hearsay exception. This catch-all or residual exception permits the admission of hearsay, in the interests of justice, which has circumstantial guarantees of trustworthiness. Some common guarantees of trustworthiness include:

  • spontaneity of the statement;
  • degree of certainty expressed by child;
  • child’s age, intelligence, and maturity level;
  • child’s use of age-appropriate terminology;
  • nature of statement’s details, which are outside the normal experiences of a child that age;
  • lack of motive to lie; and
  • statement not elicited by leading questions.73

Nevertheless, some hearsay that could be properly admitted under a State’s residual exception may not be allowed in criminal cases because it violates the confrontation clause of the Constitution. The confrontation clause gives criminal defendants the right to face and challenge their accusers in court. When, instead of in-court testimony by the child victim in person, his/her accusatory statements are repeated in court by someone else, the defendant does not technically get to face his/her accuser. The defendant cannot see the child (and the child is not forced to see the defendant), and the defense lawyer does not get a chance to cross-examine the child. Because of this, the Supreme Court has imposed some conditions on allowing hearsay statements into court.

Under the recently decided Wright74 case, a hearsay statement that does not fall within one of the traditional hearsay exceptions (but is admitted under the residual exception instead), must be found by a judge to bemore reliable than other admissible hearsay. Courts must look at the totality of the circumstances that surround the making of the statement in order to determine whether that statement is sufficiently trustworthy to protect an accused abuser’s constitutional rights under the confrontation clause. In other words, courts will consider all of the indications of trustworthiness that are present for a given statement, including those listed above, but no one factor should disqualify a child’s statement on its own.

Special Statutory Exceptions for Child Sexual/Physical Abuse Victims

In recent years, many States have created, by statute, special exceptions to the hearsay rule especially for out-of-court statements made by a child victim of sexual and physical abuse. This is particularly necessary when the child’s hearsay statements do not fall within an existing exception. Although the wording of these special exceptions varies from State to State, they all require that the child be found unavailable to testify in court and that his/her statements be particularly trustworthy. A child’s unavailability need not be literal; he/she may be deemed unavailable to testify under these exceptions if he/she would be traumatized by testifying in court. Judges will generally require that evidence (often expert testimony) be presented to show that a child’s in-court testimony would cause him/her harm.

The special hearsay exception for child abuse victims is a significant evidentiary reform. It rejects the notion that a child’s complaints of abuse are inherently suspect and that they require strict corroboration by additional evidence. The Supreme Court has recognized that the trustworthiness of a child’s hearsay statement depends on all of the circumstances surrounding that statement rather than a set of rigid preconditions.75 Perhaps more important, this special exception recognizes the unique need in a child abuse case for allowing the victim’s statements to be used, since in most of these cases, there are no eyewitnesses to the abuse, nor are there usually observable physical injuries to the child.

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Privileged Communications

Statements made to doctors, lawyers, and others in their professional capacity are generally considered privileged and cannot be disclosed in court, unless the patient or client consents to such disclosure. The purpose of this legal rule is to encourage those who seek professional assistance to communicate freely and openly with their service providers without fear of public exposure or legal repercussions.

The scope of these privileges and the particular professional relationships to which they apply varies. In some States, privileges are abrogated by statute in child protection proceedings. In addition, all States have abuse reporting laws that mandate the reporting of suspected child abuse, often even when the reporter’s suspicion originates from privileged communications (although lawyers are not usually mandated reporters).

Conversations between husbands and wives are also privileged in most types of cases, which sometimes prevents one spouse from testifying against another. However, in a case alleging child maltreatment, this privilege is generally not applied. Any abuse or neglect is deemed to have already destroyed the family harmony the privilege was designed to protect; moreover, the safety of a child is at stake.

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Opinion Evidence

Expert Testimony

Opinion testimony by a person deemed by the court to be an expert is generally permitted. The admissibility of expert testimony depends on four factors:

  • whether the subject matter of the testimony is outside the average judge’s or jury’s knowledge or experience;
  • whether the state of the art of that field permits an expert opinion;
  • whether the witness qualifies as an expert on that subject matter; and
  • whether the basis of the expert’s opinion is reasonably reliable.

The nature of child abuse and neglect has been found by many courts to be unfamiliar to the average person. Accordingly, expert testimony on the subject of child abuse or neglect may be allowed by some courts to explain a child’s behavioral patterns and to interpret physical injuries.

When a party to the case intends to call an expert witness to give opinion testimony, the attorney for that party will question the witness in order to establish that he/she qualifies as an expert. The opposing party then has the opportunity to cross-examine that witness to test whether the expert is in fact qualified to testify as such. This process, known as voir dire, inquires into the witness’ credentials, including formal education, practical experience, training, familiarity with authoritative literature in the field, and reputation in the field. A witness will qualify as an expert if he/she has sufficient experience, training, skill, or knowledge with respect to the particular subject matter to which the testimony relates. Courts may be less impressed with the witness’ title or degree than with his/her actual familiarity with the subject and ability to assist the court in reaching its decision. No one factor will qualify or disqualify a witness as an expert. Judges usually base this decision on whether the witness’ credentials, as a whole, make his/her opinions helpful to the fact-finding process.

Even when the witness is not an expert, he/she may be permitted to express his/her opinion about conditions that are commonly experienced by the average person (e.g., “the child seemed frightened” or “the child acted angry”). The decision of whether to admit opinion testimony by a lay witness is discretionary with the trial judge. It generally is decided based on whether the testimony is likely to be helpful to the fact-finding process.

Scope of Permissible Expert Testimony

The basis of an expert’s opinion must be information of a kind that is relied upon by other experts in the same field. An expert may neither give an opinion based on speculation or guessing, nor based on novel scientific principles.76

An expert witness may (depending on the State) be permitted to corroborate a claim of child abuse by testifying that the alleged victim’s psychological and behavioral patterns are similar to those of other children known to have been abused, whom the expert has examined. Again, depending on the State, expert testimony regarding syndromes may also be allowed. Such testimony involves the expert’s description of a cluster of factors that have been identified with child abuse and have become known, collectively, as a syndrome. The witness (or another witness) will then explain how the child’s condition is consistent with these factors. Some syndromes commonly raised in child abuse and neglect cases are described below.

  • Battered child syndrome describes a pattern of injuries generally found to indicate physical child abuse.
  • Failure to thrive syndrome describes a growth rate in an infant that is subnormal or departs from an established pattern. When failure to thrive is not caused organically (i.e., from biological causes), it is associated with child neglect.
  • Child sexual abuse syndrome describes common characteristics or behavior patterns found in sexually abused children.
  • Child sexual abuse accommodation syndrome describes a victim’s response to sexual abuse by accommodation, delayed reporting, and recantation.
  • Munchausen syndrome by proxy describes characteristics in a parent who, in order to have his/her child subjected to repeated and possibly harmful medical procedures, fabricates a child’s medical history, tampers with a child’s laboratory tests, or actually causes a child’s health problem.

(The last two syndromes listed above are still the subject of significant controversy.)

While some courts allow syndrome testimony about child victims, expert testimony that the alleged perpetrator has certain traits that conform to the profile of a child abuser is not generally permitted and never permitted in criminal cases.

There are certain rules that limit the scope of an expert’s testimony. An expert will rarely be permitted to testify, for example, that he/she believes the child is telling the truth about the alleged abuse, even after the child’s truthfulness has been attacked in court. It is the exclusive function of the judge or jury to evaluate the credibility of witnesses. In addition, particularly in criminal cases, most States still prohibit expert testimony as to the ultimate issue (i.e., whether the child was, in fact, abused), since this too is considered within the role of the judge or jury alone.

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Character Evidence

Generally, character witnesses are not permitted in court. However, the judge has the discretion to allow the alleged abuser to present evidence concerning a pertinent trait of his/her own character or of the character of the victim. Character evidence regarding either the abuser or the victim may only be used by the petitioner or prosecutor as rebuttal if the issue of character was already raised by the defendant.

When character evidence is allowed by the judge, it may only relate to the general reputation of the subject of the testimony. For example, an allegedly abusive mother might be permitted to introduce testimony by her neighbor that she is a protective mother who is gentle with her children. A character witness may not testify to specific good or bad acts performed by the accused or the victim on direct examination unless character is an element of the case. Thus, the neighbor/witness above could not ordinarily recount the mother’s numerous acts of generosity and kindness. Once that witness has testified, however, specific acts may be inquired about on cross-examination.

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Prior Acts Evidence

Evidence of misconduct by the defendant that occurred prior to the abuse alleged in court occasionally may be admissible. Such evidence, which may take the form of a previous criminal conviction or testimony that the defendant committed certain bad acts, is often objected to by the defendant’s attorney as prejudicial. However, sometimes past conduct is so similar or related to the maltreatment alleged that it may be admitted by the judge to show that the abuser had an overall plan to abuse, a motive to abuse, or the intent to abuse. Bad acts committed in the distant past may not ordinarily be used to show that the parent probably committed the abuse currently in question. For example, when a father is being tried for the sexual abuse of his 4-year-old daughter, evidence that he had molested another of his children might be allowed to show that the more recent incident was a part of the father’s plan or that it was intentional. However, evidence that he had sexually assaulted a coworker 15 years before would probably not be admissible, since it is not sufficiently similar or related to the abuse of his young daughter to reveal his plan, motive, or intent.

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Stipulations

Evidence of any fact will be allowed in court if the opposing party stipulates to (admits) its truth. Only evidence of disputed facts will be subject to exclusion under the rules of evidence.

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Rules of Evidence and the Nonlegal Professional

Obviously, the rules of evidence are complicated and the nonlegal professional will not need to know all of them. Even lawyers, with their years of specialized legal training and experience, cannot always predict which evidence will be allowed by a particular judge. The caseworker’s job is to provide the lawyer with all of the information in his/her possession before the hearing, allowing the lawyer and the judge to worry about technical evidentiary questions. It is important to remember that while caseworkers are not ultimately responsible for choosing evidence, the more they know about the rules of evidence, the more they will understand and be able to prepare a case.

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How Much Evidence Is Required?

The amount of evidence required in a hearing is called the standard or burden of proof. These standards vary, depending on the type of proceeding.

At a shelter care or temporary removal hearing, the standard of proof is usually probable cause. Probable cause means that the judge has enough evidence to create the probability in his/her mind that the child would be in significant danger if he/she remains home until the case is tried. If the judge thinks there is a real chance that the child will be hurt if returned home, this standard allows him/her to place the child in shelter care.

In most States, civil adjudicatory hearings generally apply the preponderance of the evidence standard. The preponderance standard requires that there be more evidence in favor of the abuse or neglect than against it. A commonly used illustration of this concept is “tipping the scales.” If the scales tip slightly to one side, there is a preponderance of evidence on that side. Or if 51 percent of the evidence presented in court favors one side of the case, then that side of the case has been established by a preponderance of the evidence.

A burden of proof that is higher than the usual civil preponderance standard is used in some States for civil adjudications and in almost all States for termination of parental rights hearings. This burden of proof is clear and convincing evidence. Clear and convincing evidence is present when almost all of the judge’s doubts have been resolved.

Finally, criminal courts will not find an accused person guilty unless his/her guilt has been proved beyond a reasonable doubt. Because it is so difficult to eliminate all reasonable doubts in the mind of a judge or jury, this standard of proof makes criminal cases the hardest type to win.

Although a specified amount of evidence is required for one side or the other to prevail, this does not mean that a certain number of witnesses or other pieces of evidence are required. Rather, the burden or standard of proof refers to the degree of certainty created in the mind(s) of the trier(s)-of-fact based on the persuasiveness of the evidence. For example, a party might satisfy his/her burden of proof by presenting just two convincing witnesses, even if his/her opponent has presented many more.

This material may be freely reproduced and distributed. However, when doing so, please credit Child Welfare Information Gateway.

10. Testifying in Court

Proper preparation by the caseworker, as discussed above, will make his/her job much easier when it is time to testify in court. However, good note taking and open communication with the agency attorney will not necessarily make a caseworker an effective witness. How well caseworkers communicate on the witness stand is as important as pretrial preparation.

Courtroom Dress and Demeanor

The impression given to the judge during testimony is crucial. The following checklist should help:

  • The witness should dress professionally and conservatively. Usually, business suits or jackets and ties for men and dresses or skirts and blouses for women are appropriate.
  • The witness should conduct him/herself in a businesslike and efficient manner (again, professionally). Before and after he/she testifies, he/she should not congregate with others or laugh, joke, or talk to show that he/she appreciates the importance of the court proceedings and takes them seriously. The witness should always be respectful in court.
  • During his/her testimony, the witness should sit up straight, speak loudly and clearly, and look directly at the questioning attorney or the judge. He/she must remember that a message is conveyed by his/hernonverbal language (e.g., tone of voice, facial expression, hand gestures, body position, and eye contact). The witness should not slump or fidget.
  • The witness should be sincere, objective, and dignified. He/she should not appear biased or defensive and should remember not to take cross-examination as a personal attack.77

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Direct, Cross, and Rebuttal Examination

A witness may be questioned in several stages. First, on direct examination, the attorney who is using the witness as a part of his/her case will question that witness. This type of questioning is generally open-ended, allowing the witness to fully explain the answers, for the purpose of presenting the judge with evidence to support that party’s position.

For most witnesses, testifying on direct examination is easier than on cross-examination. Preparation includes reviewing and organizing one’s notes and meeting with the agency’s attorney. Direct examination usually follows the following pattern:

  • The witness’s name will be called and he/she will approach the witness stand.
  • He/she will take an oath, swearing to answer truthfully.
  • The attorney who called the witness will probably ask:
    • the witness’s name, occupation, and place of employment;
    • length of time he/she has worked at his/her current job, his/her job title, and the type of work he/she performs;
    • the witness’s job qualifications;
    • how he/she knows the child and the respondent and for how long;
    • what happened at specific time(s) and place(s); and
    • any other pertinent questions.

While most direct examinations follow this type of pattern, caseworkers should not prepare a script or memorize their testimony. Spontaneous testimony is much more believable than “canned” testimony. In addition, witnesses are easily rattled or confused if the unexpected occurs (e.g., objections from opposing counsel, questions or interruptions by the judge). However, it may be helpful for prospective witnesses to practice some potentially difficult areas of their testimony with their attorney.

Once a witness has been questioned directly, he/she is subject to cross-examination by the opposing attorney. Cross-examination is designed to impeach the witness and expose any weaknesses in his/her testimony. It involves close-ended questions that generally require a yes or no answer; more complete, explanatory answers are usually not allowed. Leading questions (that suggest an answer by the very form in which they are asked) will be permitted on cross-examination. Being cross-examined will probably be the most difficult part for the witness. This does not mean, however, that witnesses should be overly anxious about cross-examination. Most attorneys will not continuously harass a witness until he/she breaks down and admits to biases and mistakes. Typically, the defense attorney tries, on cross-examination, to cast doubt upon the thoroughness of an investigation, the witness’ interpretation of the facts, and perhaps whether the witness’ judgment and actions were clouded by his/her feelings about the parents. If a caseworker has been careful and professional, he/she should be confident that the case has been handled properly.

It is important for witnesses not to take the cross-examination questions personally and to remember that the defense attorney is merely doing his/her job. He/she probably neither dislikes the witness nor thinks him/her incompetent. All lawyers must, regardless of their personal feelings, zealously represent their clients. Legal ethics require them to do everything in their power (within the limits of the law) to accomplish their clients’ goals. If a witness views cross-examination as a personal attack, then he/she will seem defensive and unprofessional to the judge, an impression to be avoided at all costs.

Lawyers often use common techniques on cross-examination. An understanding of these tactics will make it easier for the witness to keep his/her poise when answering a question. These tactics involve both the form and the purpose of the question.

Cross-examination questions often take the following forms:

  • Leading Question. A leading question suggests by its wording that the answer should be either yes or no. For example, in a neglect case where one of the allegations is that the baby was left home without adult supervision, the defense attorney might ask: “Isn’t it true that the baby’s 14-year-old sister was in the home whenever the mother went out?” Usually, a witness is allowed to explain an answer when only a yes or no would be misleading. If this is the case (as it would be in the example), professionals should begin their response by saying “that question requires an explanation,” rather than answering “yes” and then trying to explain. If the defense attorney insists on a yes or no answer and interrupts the witness, he/she may turn to the judge and ask if he/she may continue. Judges vary in terms of how much explanation they will allow on cross-examination. Witnesses should not worry if they are not permitted to explain, or if, in the heat of the moment, they answer with an elaboration. The other attorney can still repair the damage on redirect examination, when a complete answer can be given. Interrupting a witness’ answers is probably the defense attorney’s favorite weapon, and he/she will rarely ask a question on cross-examination that does not lead the witness to answer with an abrupt yes or no.
  • Rapid Fire Questions. The defense attorney may ask a string of leading questions in rapid succession, hoping to confuse or upset the witness. Since each question requires an answer, the witness has equal control over the pace. As with any question, pause to think about it before answering.
  • Compound Question. A witness may be asked a question that contains multiple questions. For example, “You saw the father hit the child and the baby fell down the stairs, isn’t that true?” This should prompt an objection by the other attorney. If he/she does not object, however, the witness should tell the defense attorney that he/she does not understand the question and that it requires a two-part answer. A witness does not have to answer any questions that are in compound form.

Some defense attorneys may use certain styles to throw witnesses off:

  • Badgering. This is where the attorney stands close to the witness’ face and shouts.
  • Lulling the Witness. This is where the attorney gives the witness a false sense of security by being overly friendly and familiar.
  • Staring at the Witness. After the witness has answered a question, some attorneys will pause and stare at him/her, as if expecting him/her to say more.

Witnesses should remain calm if the defense attorney uses any of these styles, and they should focus on their reason for being in court, which is to give testimony. There should be an objection if defense counsel’s manner becomes too belligerent or disruptive.

The defense attorney’s questions on cross-examination often have one of the following purposes:

  • To show prejudice or bias. Defense counsel will try to discredit the witness’ credibility by insinuating that the witness is biased or hostile toward his/her client. For example, he/she may suggest that because the parent was uncooperative or failed to show up for an appointment when promised, the caseworker is holding a grudge. The answer should simply meet such suggestions with the truth. Child protection caseworkers are used to dealing with uncooperative clients. If this is true for the witness, he/she should simply explain that his/her personal feelings about the parent did not influence his/her decisions.Case dictation/narrative/progress notes may also be used by defense counsel to show bias. The caseworker may be asked to read his/her dictation aloud in court. It will seem more objective (less biased) if the practice is followed, as discussed in the chapter on “Pretrial Caseworker Preparation,” of entering observable facts, rather than recording generalizations, conclusions, and judgments. For example, a notation that “the parent is uncooperative and rude whenever I visit the house” will convey more bias in court than if the caseworker had listed the specific uncooperative or rude behavior. The following notation would enhance one’s credibility as an impartial witness: “On June 2, 5, and 8 at 1:00 p.m., I went to the parent’s home, knocked on the door, and identified myself and the purpose of my visit. Each time, the parent slammed the door in my face and shouted `I don’t need any social worker to tell me how to raise my children!'”
  • To show inexperience. The defense attorney may try to impeach witnesses by challenging their ability to perform their jobs. If the witness is a new caseworker, defense counsel might draw attention to the witness’ lack of experience. He/she also might highlight the fact that the caseworker does not have an advanced degree in social work. The witness should be honest and not exaggerate his/her experience or fabricate degrees. However, the witness should not minimize his/her experience or other qualifications either. A caseworker may have only been on the job for 6 months, but may have handled an impressive number of cases. Also caseworkers are in court to testify the facts: what they did, saw, and heard. If they avoid offering opinions and judgments (which might require a certain degree of experience to be meaningful), their lack of experience should not weaken the case.
  • To show inconsistency. Another tactic to discredit witnesses is to find previous statements they made that are inconsistent with their testimony (e.g., from notes or from a deposition). The child welfare agency’s own attorney can always rehabilitate the witness’ testimony on redirect examination by showing that the earlier statements were taken out of context or based upon less information than the witness’ current testimony. The defense attorney may also try to show that the witness is inconsistent by repeatedly asking him/her the same question, rephrasing it each time, in hopes that he/she will contradict him/herself. The agency attorney may object to these questions as having been asked and answered.
  • To show poor judgment or practice. Witnesses should recognize that there may be honest differences of opinion, based upon the same facts. The defense attorney may try to get them to admit that the parent’s view has some merit, or that they overlooked some important facts in their investigation. Witnesses should try to avoid conceding a point (e.g., saying “that’s possible”). Instead, they should stick to the facts and let the judge decide whose position is correct.78

If the attorney who presented the witness feels that rebuttal is necessary, redirect examination may be conducted but will be limited to those issues raised on cross-examination. Any issue the witness did not get a chance to explain on cross-examination can be cleared up or answered more fully on redirect. Finally, any issues raised on redirect may be addressed by recross-examination of the witness.

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Guidelines for Testifying in Court

The following general guidelines apply to all stages of questioning (direct, cross-, redirect, and recross-examination), and will improve the overall quality of a witness’ testimony:

  • The witness should be prepared. He/she should have a thorough knowledge of the case record. This will make him/her more confident and more helpful to the judge, and his/her level of persuasiveness will also be increased.
  • The witness should listen carefully to each question and pause to think before he/she answers. He/she should not let the questioning attorney rush him/her.
  • If the witness does not understand a question, he/she should ask the attorney to repeat it, clarify it, or rephrase it.
  • The witness should answer only the question he/she was asked and should not volunteer additional information or discuss tangential subjects.
  • If the witness does not know the answer to a question, he/she should not be afraid to answer “I don’t know.” Admitting that he/she does not know something will often enhance his/her credibility. Guessing at an answer or qualifying it with an “I think so” may leave the witness open for impeachment later.
  • The witness should not give an opinion unless it is requested. He/she should testify to the facts within his/her own personal knowledge and experience. He/she should be specific; if possible, giving exact times, dates, and numbers. Events should be described step-by-step, rather than through narrating long stories.
  • The witness should avoid taking sides. His/her job is to present evidence as truthfully and accurately as possible; it is the attorneys who must advocate for one side or the other.
  • The witness should maintain proper courtroom decorum (as discussed in “Courtroom Dress and Demeanor“). He/she should dress appropriately and show respect for the judge.
  • The witness should speak a little louder, slower, and more distinctly than he/she usually speaks. The answer must be verbal; he/she should not shrug his/her shoulders or nod his/her head (all answers need to be heard and recorded by the court reporter).
  • The witness should use appropriate language, not slang or professional jargon.
  • The witness should always tell the truth.79

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Professionals as Witnesses in Sexual Abuse Cases

Few professionals who work with sexual abuse cases enjoy testifying in court. The key to quality testimony and emotional survival in court is thorough preparation. The professional should know the facts of the case, his/her opinion about the facts and the case, the essential points that should be communicated in the testimony, the weaknesses of his/her presentation, and the questions he/she may be asked on cross-examination. The professional can expect to spend 2 to 3 hours of preparation for every 1 hour on the stand.

Know the Facts of the Case

Most sexual abuse cases have a history. Professionals should memorize the names, ages, and grades of the children; when adults met, were married, and divorced; what the specific sexual abuse allegations are and the context of their occurrence; and the particulars of other important events in the case. He/she should be aware of gaps in his/her knowledge about the case.

This kind of preparation will help the professional provide testimony that appears to be informed and precise. It will protect him/her from leafing through the case record looking for information, which may make him/her look as if he/she does not have a full command of the case. It will help the professional avoid being tripped by the opposing side by unanticipated questions that call upon factual knowledge. It may even afford the professional the opportunity to correct the opposing attorney when he/she is incorrect or imprecise in his/her presentation of the facts.

Have an Opinion

There is one major difference between a material witness and an expert witness: the expert may give opinion testimony in a substantive area (e.g., sexual abuse). A person becomes an expert by virtue of her/his education or experience; however, it is much easier to be qualified as an expert if he/she possesses a doctorate. It is the judge who decides whether the witness qualifies as an expert.

A professional who is testifying as an expert witness in a situation of possible sexual abuse should have formed an opinion about the case. The opinion may relate to a number of issues; appropriate issues will depend upon his/her profession. The most common issue for sexual abuse cases is whether the child has been sexually abused. However, in most instances, the professional will not be allowed to testify to that directly, but will instead testify about whether the child’s behavior fits the sexually abused child disorder (presents a symptom picture consistent with having been sexually abused)80 or the child sexual abuse accommodation syndrome (has responded to the experience of sexual abuse by accommodation, denial of the abuse, delay in reporting, and recantation after disclosure).81 (See the section on opinion evidence in a previous chapter in this manual entitled “Proving Child Maltreatment in Court.”) Other issues to have an opinion on are where the child should be placed, what sort of treatment is needed, whether the abusing parent should be incarcerated, or what kind of visits are indicated.

The issue of partisanship can be a very troubling one for witnesses, especially because the courtroom is so adversarial. It is important to appreciate that the entirety of the opinions usually will not completely support the positions of any of the attorneys involved. For example, in a divorce case each of the opposing attorneys will want the professional to highlight the positive attributes of his/her client and the negative attributes of the parent on the other side. The professional will probably see positives and negatives in both parents, even if he/she has decided that one has been sexually abusive. A useful position is to recognize that the professional is partisan to his/her opinion about the case, not toward one side or the other.

Moreover, because the professional’s opinion will be considered, for example, about positive and negative aspects of both parents, there is no reason not to share these despite the objection of one or the other attorney. Presenting a balanced picture of family members will enhance the professional’s credibility as an unbiased expert.

The professional must not only be prepared to give his/her opinion, but also be able to explain the basis for the opinion. Generally, the basis of an opinion includes factual material about the case and a methodology for analyzing the material.

Consider the following example: A mental health professional’s opinion that the child exhibits symptoms consistent with having been sexually abused (or has been sexually abused) is based upon the fact that the child has reported repeatedly that his “uncle tried to suck pee out of my wiener,” that the boy indicated that he would be poisoned if he told, and the fact that he was found initiating a 3-year-old to penis sucking. The methodology described to the court could be an evaluation of whether any indicators of sexual abuse were present and an inquiry based on the criteria for determining the veracity of an allegation. The facts of the case and the methodology for interpreting them would be presented to the court.

The Essential Points of the Testimony

People’s lives and behavior are very complex. The courtroom is poorly suited for communicating these complexities. The professional’s discipline and its subtleties may be quite foreign to the fact-finder, whether it be a judge or a jury. Futhermore, the attention span of the fact-finder may be limited.

Therefore, it is best to decide in advance the essential points that the professional would like to communicate to the court. Sometimes a written list is useful. Usually there will be one attorney who is more sympathetic or who has called the professional to testify. The professional can let the attorney know what questions he/she should be asked to communicate these essential points. It is also a good strategy to look for opportunities while testifying to emphasize these points during both direct examination and cross-examination.

The Weaknesses of the Position and Cross-examination

In most cases, the goal of cross-examination is to try to elicit material supportive of the attorney’s client. Any elucidation of the true facts of the case that occurs during this process is secondary. If the professional’s opinion reflects poorly upon the attorney’s client, the attorney will use cross-examination to try to discredit the professional and his/her testimony.

The professional may not be able to anticipate all of the questions of cross-examination, but the more that are anticipated, the better the testimony. For these questions, the professional should decide ahead of time what the best response will be and should prepare to give it.

There are two types of challenges experienced during cross-examination, those that attack the professional and those that attack the professional’s testimony. Within these two categories are subcategories. Attacks aimed at the professional as an individual will relate to his/her credentials, possible personal biases, and his/her personal life. For example, common queries made of child advocates are: how many cases did the professional confirm and disconfirm sexual abuse or how many times has he/she testified on behalf of the accused.

Challenges to the professional’s testimony may include the following: inadequacies in his/her act-finding, facts he/she did not know, facts he/she did not consider in forming his/her opinion, and misinterpretation of the data.

Before going to court, the professional should think through the case carefully and consider possible challenges and responses. In addition, he/she should talk with the attorney for help in identifying possible weaknesses in the testimony. The professional should remember that it is not the attorney whom the professional should persuade’it is the judge or jury.

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Objections by Attorneys and the Judge’s Response

During the adjudicatory phase of a case, the attorneys for the parties involved may object to the admission of certain evidence. An objection occurs when the attorney formally asserts to the court his/her legal opinion that a piece of evidence is not proper for the judge or jury’s consideration. The judge may decide to sustain or overrule an objection immediately or the attorneys may be asked to defend their respective positions on the admissibility of that evidence before the judge rules. When an objection is overruled, the witness must answer the question originally asked. A sustained objection prevents the witness from responding to that question.

11. The Child as a Witness

Competency

To provide trustworthy evidence to courts, the legal system requires that all witnesses who testify in court must be competent. Some States impose a specific age requirement for child witnesses. Under Federal law and in many States, all witnesses, even young children, are presumed competent to testify. The test for competency requires that the witnesses have sufficient intelligence, understanding, and ability to observe in order to recall and communicate information, comprehend the seriousness of taking an oath, and appreciate the necessity of telling the truth. When the witness is a child, the judge or attorneys may question the child in what is known as a voir dire process. The purpose of this process is to ascertain that the child:

  • knows the difference between truth and lies;
  • is prepared to testify truthfully; and
  • is capable of observing, remembering, and verbally describing events.

Once the judge has determined the child’s competency, that child may testify regardless of his/her age.

Recent research has indicated that even very young children may have the memory skills needed to testify.82Children as young as 3 or 4 years of age have been able to recall past experiences and articulate them.83However, a child may have trouble recalling events spontaneously and may need some cuing of his/her memory. This is sometimes done, both in court and during out-of-court interviews with the child, with leading questions. While the propriety of using such questions with children is highly controversial, the Supreme Court, in the Wright84 case, has recognized the need for using leading questions when interviewing child abuse victims in some cases. The Court held that a child’s response to a leading question in an interview should not be considered unreliable automatically; rather, all of the circumstances surrounding the child’s statement should be taken into account.

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Judicial Authority to Make a Child Witness More Comfortable in the Courtroom

A child (particularly one who has been the victim of maltreatment or who must testify against a family member or friend) may become anxious, upset, or afraid when testifying in court, especially in the presence of his/her abuser. Accordingly, judges have the authority to take steps to assist the child witness through the process. The child may feel more comfortable if the courtroom itself looks less formal and imposing. For example, providing the witness with a child-size chair, rearranging the furniture, or hanging the child’s drawings on the wall may put the child at ease. Having the judge wear street clothes instead of robes may also help the child feel more relaxed. Before trial, the judge may also want to introduce him/herself to the child and allow the child to explore the courtroom, sit in the witness chair, and try out the microphone. Judges have more latitude to take these or similar steps in civil cases than in criminal cases.

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Sequestration of Witnesses

Witnesses are usually required to stay out of the courtroom when they are not testifying. The purpose of this rule is to prevent witnesses from changing their testimony based on what they hear from other witnesses on the stand. In cases involving children, this rule of sequestration may be relaxed. A young witness may need the presence of some familiar person to make the child feel more comfortable when testifying. Without the support of such a person, the foreign and often confusing experience of testifying in court may become terrifying. This may make the child virtually unable to communicate and may actually injure the child emotionally as well. Thus, some States give judges the authority to allow a parent or therapist to remain in the courtroom during the child’s testimony, even though he/she will also be called as a witness.

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Special Legislative Provisions for the Protection of Child Witnesses

Many States have passed special laws to protect child witnesses in the courtroom. Most of these laws have focused on the problem of requiring a child victim to testify in his/her abuser’s presence. At least in criminal cases, the alleged abuser has a constitutional right to confront his/her accuser (the child) under the sixth amendment. When this protection was included in the Bill of Rights, the assumption probably was that most defendants would be confronting complainants of equal capacity. It is doubtful that our constitutional founders envisioned situations in which children would be testifying against adults, particularly instances in which the adults would have a history of power and control over the children.

Because of the perception that there is an unequal balance of power in the courtroom, measures have been instituted that are meant to alter that balance and generally protect children from the direct and indirect pressures of adults who may have abused them. These include the following:

  • Allowing someone else to testify on the child’s behalf. This is the tender years exception, noted previously, and generally allowable only in civil cases and when the judge has made a finding related to the child’s incapacity to testify in the presence of the offender.
  • Having the child testify through closed-circuit television.
  • Using a videotaped deposition of the child in lieu of court testimony.
  • Having the child speak to the judge in chambers.
  • Having a screen placed between the child and the offender.
  • Having a support person. This person may be allowed to be in the courtroom with the child or the child may testify while sitting on the support person’s lap.

There are also provisions allowing such aids to testimony as anatomically explicit dolls.

The availability of these special measures varies depending upon State statutes, the kind of litigation involved (criminal proceedings generally being less likely to permit these provisions), the stage of the court process (child witness protections being more likely to be allowed at preliminary hearings), and the judge’s ruling, since the use of many of these protections is at the judge’s discretion.

Some other legislative reforms for child witnesses include the following:

  • relaxation of courtroom formalities, for example, not wearing judicial robes;
  • alteration of the courtroom environment, for example, not requiring the child to testify from the witness stand;
  • recesses during the child’s testimony to avoid unnecessary strain on the child; and
  • the exclusion of the media and the public from the courtroom during the child’s testimony. (In criminal cases, this reform may conflict with the accused’s right to confrontation and with the press’ and public’s first amendment rights.)85

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Constitutional Challenges to Special Treatment for Child Witnesses

Legislative and judicial efforts to ease the anxiety of child witnesses have often been considered unconstitutional or simply unfair by those who are accused of, and must defend against, allegations of child maltreatment. These efforts have been challenged because they may appear to violate the alleged offender’s right to confront and cross-examine witnesses. (See “Right To Confrontation and Cross-Examination.”)

In the Craig86 case, the Supreme Court recently approved Maryland’s one-way, closed-circuit television procedure for taking the testimony of a child abuse victim. This procedure permitted the defendant’s lawyer to be present and to cross-examine the child and provided for electronic communication between lawyer and defendant. The Court based its decision on its finding that the statute’s closed-circuit television procedure had built-in safeguards for ensuring the testimony’s reliability (e.g., by cross-examination), and that the statute required a showing of necessity before the special procedure could be used. For such a procedure to be necessary and thus not violate the confrontation clause, it can only be used after it is shown that:

  • the procedure is necessary to protect the welfare of that particular child;
  • the child would be traumatized by the defendant’s presence during his/her testimony (not merely by the courtroom experience); and
  • the level of the child’s emotional distress from testifying in the defendant’s presence would be significant (i.e., more than just nervousness, excitement, or reluctance to testify). When a child’s hearsay statement is used in court under a special statutory hearsay exception, the accused abuser is also denied the opportunity to confront the child victim face-to-face. However, the admission of a child’s hearsay statement will not be unconstitutional as long as the judge finds it to be especially reliable. Specifically, reliability of a hearsay statement will be evaluated based on all of the circumstances surrounding the making of that statement. The Supreme Court rejected the notion that any one factor or test makes a statement untrustworthy. For example, in the Wright case, the fact that the child’s statements were elicited by leading questions and that the interviewer failed to videotape the interview, did not automatically invalidate the statements. The Supreme Court took all of the circumstances surrounding the child’s statements into account in determining whether the hearsay violated the confrontation clause.

Others have argued that special procedures for child testimony violate the accused’s right to a public trial and to attend criminal trials, since both closed-circuit television testimony and videotaped testimony are conducted in private, outside the presence of the accused and sometimes his/her lawyer.

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Leading Questions, Anatomical Dolls, and Other Aids to Securing Child Testimony

As previously described, many courts relax the normally strict courtroom procedures when a child testifies. Leading questions are sometimes permitted on direct examination to encourage full disclosure by the child. The use of anatomically detailed dolls may also be allowed to improve the child’s ability to communicate on the stand, particularly with very young children whose language skills are limited.87

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Children as Witnesses in Sexual Abuse Cases

Special protections for child witnesses may be particularly necessary in cases involving child sexual abuse. A characteristic that differentiates sexual abuse litigation from legal proceedings in other types of maltreatment is the central role played by the victim witness. In physical abuse, the legal case usually turns to physical evidence and medical testimony. In neglect, observations of the child, her/his environment, and circumstances related to child care will be fundamental to proving the case. However, sexual abuse is a private act, usually witnessed only by the victim and the offender. Furthermore, there is physical evidence in only a small proportion of cases. As a consequence, the burden of proving the case usually falls on the victim; the child’s assertions are the primary basis for proving the case.

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Preparing the Child to Testify

Children, like adults, need help in presenting themselves persuasively in court. Victim-witness advocates perform this role, but in communities without such services or in situations not handled by the advocates, others may also perform this need. These may be police officers, CPS caseworkers, or therapists.

There are three parts to the process:

  • familiarizing the child with the setting;
  • familiarizing the child with the court process; and
  • refreshing the child’s recollection.

The Setting

If possible, take the child to the courtroom so he/she can become familiar and hopefully comfortable there. Point to where all the relevant parties will be sitting, including the alleged offender; have the child sit in the witness box; and introduce the child to the judge. If this is not possible, a set of Projective Story Telling Cards,88 can be used which depicts scenes related to testimony in court. Alternatively, the professional can draw a picture or pictures of the court with the child’s assistance and label aspects of the courtroom and players. The picture(s) can be given to the child to take home and study. In addition, there are books and videotapes, especially prepared for children, that show the court and describe the process of testimony.

The Court Process

The child should be informed of the specific steps in the court process including the following:

  • swearing in;
  • providing identifying information;
  • direct examination; and
  • cross-examination.

It is helpful to explain to the child that the defendant’s attorney will probably try to confuse and trick the child. If the professional knows that certain procedures will be used to assess the child’s competency, the child should be told what these are, but not the answers. Advice should be given about how to handle questions the child does not understand or know the answer to. The child should be told to respond with an “I don’t understand the question” or “I don’t know.” Objections and what to do when they are made should be explained (the child should be told to wait until the judge tells him/her what to do).

The Child’s Recollection

As is the practice with adults, children should be informed about what they will be asked. If there are some specific issues that are likely to be raised on cross-examination, the child should be told.

It is not a good idea to tell the child what responses are expected of him/her. Such instruction might be perceived as leading. However, the professional can refresh the child’s recollection in a variety of ways. There may be an audio or videotape of the child’s previous statements regarding the abuse. The child can be allowed to watch and/or listen to these. Alternatively, there may be a transcript of previous testimony or a report the professional can review with the child. The child may have drawn pictures of the events that occurred, which have become part of the case record. These can be reviewed with the child or the professional can simply ask the child to recount what the child recalls of the abuse and its circumstances and prod the child’s memory if there are any lapses.

Additional Suggestions for Preparing Children to Testify

Remember that others may also take an active victim/witness advocate role, particularly the guardian ad litem. The child can never have too many advocates. His/her best interests require that every step possible be taken to minimize stress associated with the courtroom experience.

A few other suggestions for preparing the child to testify include:

  • Contacting those close to the child and enlisting their cooperation in supporting the child before and after the courtroom experience.
  • Telling the child, well in advance of the trial, that his/her alleged abuser will be in the room during his/her testimony.
  • Alerting the agency’s attorney to possible arrangements that would lessen the child’s anxiety during his/her testimony (see “Judicial Authority To Make a Child Witness More Comfortable in the Courtroom” and “Special Legislative Provisions for the Protection of Child Witnesses“). States differ on their procedures for making such arrangements. In some courts, the attorney will have to ask the judge through a formal pretrial motion; in other States, the judge will automatically permit some special treatment for a child witness.

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The Impact of the Federal Children’s Justice Act and the Victims of Child Abuse Act

The Federal Children’s Justice Act makes financial assistance available to States to encourage reforms in the handling of child abuse cases. Under the Act, the use of State multidisciplinary task forces is promoted to identify and implement improvements in the legal system. The Act also commits the Federal Government to improving coordination among agencies and programs that deal with child abuse issues, as well as to a general increased involvement in identifying and evaluating effective approaches to child abuse cases.

The Federal Victims of Child Abuse Act also authorizes funding for multidisciplinary programs, as well as for a variety of other technical and training programs to improve the handling of child abuse cases by the courts. The Act specifically provides child victims with a number of rights and protections in cases that are heard in Federal courts. These include allowing, under some circumstances, testimony by two-way, closed-circuit television, videotaped depositions, adult support persons for child witnesses, restrictions on delays in court, and the appointment of a guardian ad litem.

Glossary

Adjudicatory Hearings – held by the Juvenile/Family Court to determine whether a child has been maltreated or whether some other legal basis exists for the State to intervene to protect the child. Each State has its own terms and definitions in the jurisdiction provisions of its law. Depending on the State, a child may be subject to the Juvenile Court’s authority if he/she is abused, battered and abused, abused or neglected, sexually abused, maltreated, dependent, deprived, abandoned, uncared for, in need of aid, in need of services, or in need of assistance, to name a few.

CASA – court-appointed special advocates (usually volunteers) who serve to ensure that the needs and interests of a child in child protection judicial proceedings are fully protected.

Child Protective Services (CPS) – the designated social service agency (in most States) to receive reports, investigate, and provide rehabilitation services to children and families with problems of child maltreatment. Frequently, this agency is located within larger public social services agencies, such as Departments of Social Services or Human Services.

Disposition Hearing – held by the Juvenile/Family Court to determine the disposition of children after cases have been adjudicated, such as whether placement of the child in out-of-home care is necessary and what services the children and family will need to reduce the risk and address the effects of maltreatment.

Emergency Hearings – held by the Juvenile/Family Court to determine the need for emergency out-of-home placement of a child who may have been a victim of alleged maltreatment. If out-of-home placement is found to be unnecessary by the court, other measures may be ordered to protect the child. These might include mandatory participation by a parent in a drug abuse treatment program or a parenting skills class or regular supervision by a caseworker. These hearings must be held between 24 and 72 hours of any emergency placement, depending on State law, once an emergency custody order has been issued.

Family Preservation/Reunification – established in law and policy and the philosophical belief of social services agencies that children and families should be maintained together if the safety of the children can be ensured.

Guardian ad Litem – a lawyer or lay person who represents a child in Juvenile/Family Court. Usually this person considers the best interest of the child and may perform a variety of roles, including those of independent investigator, advocate, advisor, and guardian for the child. A lay person who serves in this role is sometimes known as a court-appointed special advocate or CASA.

Good Faith – the standard used to determine if a reporter has reason to suspect that child abuse or neglect has occurred and to assess the basis for a decision to petition the court. In general, good faith applies if any reasonable person, given the same information, would draw a conclusion that a child may have been abused or neglected.

Immunity – established in all child abuse laws to protect reporters from civil lawsuits and criminal prosecution resulting from filing a report of child abuse and neglect. Immunity is provided as long as the report is made in good faith. This protection also applies to those who make decisions to petition the court. If the basis for the decision is based on good faith, immunity applies. Depending on each State’s law, this immunity may be absolute (complete) or qualified (partial).

Juvenile and Family Courts – established in most States to resolve conflict and to otherwise intervene in the lives of families in a manner that promotes the best interest of children. These courts specialize in areas such as child maltreatment, domestic violence, juvenile delinquency, divorce, child custody, and child support.

Multidisciplinary Team – established between agencies and professionals to mutually discuss cases of child abuse and neglect and to aid decisions at various stages of the child protection system case process. These teams may also be designated by different names, including child protection teams, interdisciplinary teams, or case consultation teams.

Out-of-Home Care – child care, foster care, or residential care provided by persons, organizations, and institutions to children who are placed outside of their families, usually under the jurisdiction of Juvenile/Family Court.

Petition – a document filed with the court that is used to initiate a civil child protective proceeding. The petition contains the essential allegations of abuse or neglect that make up the petitioner’s complaint about a particular child’s situation. It does not include all of the detailed facts available to the petitioner to support these allegations.

Preponderance of Evidence – the burden of proof for civil cases in most States, including child maltreatment proceedings. The attorney for CPS or other petitioner must show by a preponderance of evidence that the abuse or neglect happened. This standard means that the evidence is more credible than the evidence presented by the defendant party.

Protection Order – may be ordered by the judge to restrain or control the conduct of the alleged maltreating adult or any other person who might harm the child or interfere with the disposition.

Reasonable Efforts – as required by State law, the State child welfare agency must make reasonable efforts to keep the family together or, if the child has already been removed, to reunify the family. Before a State may receive Federal financial support for the costs resulting from a child’s removal from home into out-of-home care, a judge must determine that reasonable efforts have been made to keep the family together. Similarly, placement may not be continued with Federal support without a finding by the judge that such efforts have been made to reunite the family.

Review Hearing – held by the Juvenile/Family Court to review dispositions (usually every 6 months) and to determine the need to maintain placement in out-of-home care and/or court jurisdiction of a child. Every State requires State courts, agency panels, or citizen review boards to hold periodic reviews to reevaluate the child’s circumstances if he/she has been placed in out-of-home care. Federal law requires, as a condition of Federal funding eligibility, that a review hearing be held within at least 18 months from disposition, and continuing at regular intervals to determine the ultimate resolution of the case (i.e., whether the child will be returned home, continued in out-of-home care for a specified period, placed for adoption, or continued in long-term foster care).

Termination of Parental Rights Hearing – a legal proceeding to free a child from a parent’s legal custody, so that the child can be adopted by others. The legal basis for termination of rights differs from State to State but most consider the failure of the parent to support or communicate with the child for a specified period (extreme parental disinterest), parental failure to improve home conditions, extreme or repeated neglect or abuse, parental incapacity to care for the child, and/or extreme deterioration of the parent’child relationship. In making this finding, the court is determining that the parents will not be able to provide adequate care for the child in the future by using a standard of clear and convincing evidence. This burden of proof is higher than a preponderance of the evidence which is used in civil abuse or neglect cases where termination is not sought.