The Double-Edged Sword of Justice: The Need for Prosecutors to Take
Care of Child Victims
By Alexandra Emily Bochte*
Only in our criminal justice system do we expect five-year-old children to act in the same
capacity as adults.1 If a child is found legally competent, then he or she is qualified to testify on
the witness stand.2 Children are expected to testify in a variety of different cases. They can testify
in child custody cases, child abuse and neglect cases, criminal cases, as well as others.
Sometimes, a case will rest solely on a child’s testimony.3
Inside our criminal justice system child witnesses, for the most part, are treated like any
other witness. This is not true outside of the criminal system, where courts have safeguards so
that children do not have to testify.4 An example of one such safeguard is New Mexico’s policy
of having a court clinician interview children prior to a hearing in family court5 or in restraining
order cases and then testify in place of the child. In the criminal justice system, however, children
are directly cross-examined, forced to testify on the witness stand, and compelled to swear to tell
the truth. In trials that involve crimes against children, children are obligated to talk unflinchingly
about personal, humiliating, and traumatizing events in front of juries, family, and strangers.
It is not uncommon for very young children to testify in open court about brutal rapes,
beatings, and abductions that they have endured. The news is replete with such examples.6 In
Cobbs Creek, Pennsylvania, a seven-year-old girl testified against the female daycare worker who
abducted her from school and raped her when she was five years old.7
In Memphis, Tennessee, a fourteen-year-old girl testified in open court against her
relative, James Hawkins.8 The girl testified about the five years Hawkins raped her, from age five
to ten.9 She also testified about how Hawkins would hold a gun to her head and threaten her not
This Author is a graduate from the University of New Mexico School of Law. She would like to express her sincere gratitude for
the invaluable feedback and support from her supervisor and mentor, Special Assistant District Attorney and Professor Martina
1 FED. R. EVID. 601; see discussion infra Part I.A.
2 See, e.g., Bullock v. Carver, 297 F.3d 1036, 1051–52 (10th Cir. 2002) (citing a Utah statute stating that children under the age of ten
“shall be allowed to testify without prior qualification in any judicial proceeding” and holding that even a subsequent state court
decision giving the trial courts the right to consider the reliability of children’s testimony when deciding whether such testimony
should be admitted did not require the per se exclusion of unreliable testimony).
3 This is not uncommon, especially in child sex abuse cases with no physical evidence. If there is no physical evidence and no
witnesses, then the only person who can testify about the crime is the child victim.
4 Divorce, STATE OF N.M., SECOND JUDICIAL DIST. COURT, http://seconddistrictcourt.nmcourts.gov/family proceedings divorce.html
(last visited Apr. 15, 2015) (providing information and tools for pro se litigants in domestic relations matters).
6 See, e.g., Sarah Mervosh, Dallas Boy, 6, Testifies Against Mom at Aggravated Kidnapping Trial, DALL. MORNING NEWS (Jan. 28,
trial.ece (reporting that a six-year-old boy testified against his mother during her aggravated kidnapping trial); Paris Achen, Girl, 6,
Testifies Former Police Officer Raped Her, COLUMBIAN COURTS REPORTER (Oct. 28, 2014),
http://www.columbian.com/news/2014/oct/28/girl-6-testifies-former-police-officer-raped-her/ (reporting that a six-year-old girl
testified in court that a former police officer raped her).
7 Vince Lattanzio, 7-Year-Old Girl to Testify in Cobbs Creek Abduction, Rape Case, NBC 10 (Aug. 21, 2014),
8 Beth Warren, Observers Weep as Girl Testifies in Child Rape Case of James Hawkins Sr., COMMERCIAL APPEAL MEMPHIS (Apr. 10,