2 Children’s Legal Rights Journal [Vol. 36: 1 2016]
There have been procedural changes regarding child witnesses since the time of the Salem
Witch Trials but these have been slow in coming. Courts must walk the line between protecting
children9 and protecting the rights of the defendant.
10 This difficult role has lowered the feasibility
of introducing innovative practices in the courtroom.
11 Some researchers suggest that due to a
significant number of sexual abuse cases resulting in guilty pleas before trial, the number of
children actually required to testify in court is low.
12 Research in the area of child witnesses is
scarce due to the protected status of both children and the courtroom. There is consensus, however,
that children find the court process upsetting and stressful,
13 necessitating a more accommodating
criminal justice process for children who must appear in court.
Due to Constitutional rights guaranteed to the defendant ( i.e. the right to confrontation of
witnesses), change in child witness practices has been problematic.
14 The Sixth Amendment gives
certain rights to all criminal defendants; most notably, the right to confront all witnesses against
him. In cases with child witnesses and/or victims, this means that the child must testify in a
courtroom within view of the alleged abuser. This can be the most traumatizing and difficult part
of the criminal justice process for the child victim.
Federal legislation16 regarding child witnesses provides a general model for states to follow
and is specific on some issues, but is not comprehensive. The Federal Code provides definitions
and alternative options for live in-court testimony, including full detail on videotaped testimony.
The code also discusses competency examinations, privacy protection, victim impact statements,
the use of multidisciplinary child abuse teams, the necessity of a speedy trial, and allowance for
support persons and testimonial aids. Federal legislation is summarized in Table 1 of the appendix.
The following discussion and analysis will expand on the federal legislation regarding child
witnesses, provide a brief overview of federal case law on varying issues, and examine state
statutes and case law to show the differences regarding this issue. This Article will address state
statutes and also identify case law when child witness statutes do not exist for that state. In
conclusion, this Article presents an ideal model based on various state statutes for a more
comprehensive and effective child witness code.
II. REVIEW AND ANALYSIS
A. Limitations on the Number of Child Interviews
Research suggests that the number of interviews a child witness is subjected to, or the
number of times they are asked to testify, can lead to greater distress compared to children who
9See Prince v. Massachusetts, 321 U.S. 158, 165 (1944) (Addressing the Court’s responsibility to protect children by
stating that “it is in the interest of youth itself, and the whole community, that children be both safeguarded from
abuses and given opportunities for growth into free and independent citizens.”)
10See Coy v. Iowa, 487 U.S. 1012 (1998) (Appellant contending that his Sixth Amendment right to confrontation was
violated after a screen was used to block the witnesses from being able to see the defendant. Id. at 1014. The U.S.
Supreme Court held that this practice violated the defendant’s right to confrontation, thus reversing the decision of
the Iowa court. Id. at 1022).
11Julie A. Lipovsky, The Impact of Court on Children: Research Findings and Practical Recommendations, 9 J.
INTERPERSONAL VIOLENCE 238, 239 (1994) [hereinafter Lipovsky].
12Id. at 240.
13Id. at 245.
14Id. at 239.
15SUSAN R. HALL & BRUCE D. SALES, COURTROOM MODIFICATIONS FOR CHILD WITNESSES: LAW AND SCIENCE IN
FORENSIC EVALUATIONS 9-10 (2008) [hereinafter HALL & SALES].
1618 U.S.C. § 3509 (2012).