20 Children’s Legal Rights Journal [Vol. 36: 1 2016]
allow the child to have a toy, blanket, or similar item in his or her possession while
testifying, but such item shall only be allowed if: (a) all parties agree; or (b) if the
movant shows the court by a preponderance of evidence that: ( i) the child in
question cannot reliably testify without the item in his or her possession; and ( ii)
allowing the item is not likely to prejudice the trier of fact in hearing and evaluating
the child's testimony. However, this requires a motion, agreement by all parties, and
a statement about why the child cannot testify without the item in his/her
III. TOWARD A RESEARCH-BASED STATUTE
Child sexual abuse cases most commonly require child testimony. The lack of physical
and other corroborating evidence and the average length of time between the incident and the
child’s disclosure means that there is a large need for testimony from the victim.237
Understandably, children’s testimony is viewed with skepticism by adults, who fear that children
will provide unreliable or false reports based on coaching. Despite these perceptions, “there is little
evidence indicating that children’s reports [of sexual abuse] are unreliable, and none at all to
support the fear that children often make false accusations of sexual assault or misunderstand
innocent behavior by adults.”238
Prior to taking the stand, a judge must deem the child competent to testify. This can happen
with children as young as three or four years of age.239 The legitimacy and value of children’s
testimony is supported in research, particularly when the child is prepared for a court appearance
by discussing the court process and taking steps to reduce the possibility of emotional trauma.240
As is evident in the present analysis, states vary greatly in their approaches to legislation
on child abuse and neglect. Research on the area of child witnesses is limited but there are practices
that have been supported by national organizations, such as limitations on the number of interviews
or testimonies that a child must give.241 However, even these recommendations are not uniform
across state statutes. A recommended statutory code will now be discussed, based on current
statutes and research. It is not suggested here that entirely new and original language be created
but that the provisions in current state statutes be combined to create ideal legislation. The
suggested policy can be seen in Table 9 in the appendix.
A. Limits on the Number of Interviews
237Berliner and Barbieri, supra note 92, at 129.
238Id. at 126-27.
239In the Montana Supreme Court case of State v. Phelps (696 P.2d 447 (Mont. 1985)), Phelps was convicted on two
counts of deviant sexual conduct involving two minor boys. Id. at 449. During the initial trial, one of the victims, age
five, testified about the incident. Id. at 450. Upon appeal, Phelps argued that that child was “coached” into testifying
and was not fully aware of the environment he was in: “The child at one point stated that he thought was in a police
station [during his testimony] and that the robed judge was a karate expert” Id. at 453. The court wrote that that no
person is too young to testify if deemed competent and qualified by the court, stating that the witness was nonetheless
competent to recall the events of his victimization despite not being fully aware of his location during the testimony.
Id. at 453.
240Berliner and Barbieri, supra note 92, at 129-30.
241See Chris Newlin et al., Child Forensic Interviewing: Best Practices, JUV. JUST. BULL.,Sept. 2015, at 11 [hereinafter
Newlin et al.]