14 Children’s Legal Rights Journal [Vol. 36: 1 2016]
The use of leading questions may be necessary in child witness testimony. It allows
children to be questioned using a more appropriate vocabulary for their developmental level and
increases a child’s comfort by not forcing a child to physically say every detail of their
experience.159 However, many oppose the use of leading questions because it may direct children
to create false memories or misconstrue an event.160 Despite the lack of evidence to support this
assertion, the use of leading questions remains controversial and varies greatly based on
E. Presence of Support Persons
Court proceedings are highly stressful events for young children. They are expected to
testify in front of many professionally dressed adults about a traumatic and sensitive event. Federal
legislation allows for an adult to provide emotional support to the child.161 During testimony, the
court may allow the child to hold the adult’s hand or sit on their lap, as long as the support person
does not assist the child in answering questions.162
Children in sexual abuse cases have been found to be more informative during testimony
with the presence of a support person.163 A 1992 study of 153 prosecutors from across the country
found this practice to be frequently used.164 Allowing a support person is an inexpensive and
simple way to promote child comfort and decreased stress during testimony.165 However, not all
research on the use of support persons is positive. A study of forensic interviewers found that the
presence of another person significantly decreased the information given by the child and
significantly increased the amount of “don’t know/remember” responses; however, this study did
not specifically examine the impact of a support person.166 Despite mixed findings, federal courts
have allowed the presence of support persons for child witnesses.167
Forty-three states and the District of Columbia have either statutes (twenty-two states168)
or case law (eighteen states169 and the District of Columbia) allowing the presence of support
persons for child victims and witnesses during trial, as seen in Table 6 of the appendix. State
(R.I. 1990) (holding that the trial judge did not improperly use his discretionary powers by permitting the prosecution
to use leading questions in the direct examination of a teenage sexual abuse victim. Id. at 748.)
159Saywitz et al., supra note 4, at 358. For example, a child may not know the term “penis” and instead use the word
“thing,” or whatever word the accused used during the incident. Leading questions would allow for clarification of
what they are referring to. A similar logic can be extended when children are uncomfortable detailing their abuse in a
160HALL & SALES, supra note 15, at 26.
16118 U.S.C. § 3509 (2012).
163Goodman et al., supra note 95, at 259.
164Id. at 259, 263.
165Id. at 267.
166Pekka Santtila, Julia Korkman, & N. Kenneth Sandnabba, Effects of Interview Phase, Repeated Interviewing,
Presence of a Support Person, and Anatomically Detailed Dolls on Child Sexual Abuse Interview, 10 PSYCHOL.,
CRIME, & L.
1, 21, 30 (2004).
167See Territory of Guam v. McGravey, 14 F.3d 1344 (9th Cir. 1994). (Holding that the presence of a support person
for a ten-year-old sexual assault victim did not produce any increased prejudice toward the defendant).
168Arizona, Arkansas, California, Colorado, Florida, Hawaii, Idaho, Illinois, Iowa, Kentucky, Michigan, Minnesota,
Missouri, Nevada, New York, Oklahoma, Oregon, Rhode Island, South Dakota, Virginia, Washington, and
169Alabama, Connecticut, Delaware, Georgia, Indiana, Kansas, Maryland, Montana, Nebraska, New Hampshire,
New Jersey, North Carolina, Ohio, Pennsylvania, Texas, Utah, West Virginia, and Wisconsin.