Courtroom Strategies and Challenges

Western Regional Training Program

ABA Center on Children and the Law

March 31, 2009

Modifying Traditional Courtroom Procedures Courtroom closure Use of support persons to accompany child

during in-court testimony Limit the length of in-court testimony Require developmentally appropriate

questions Modify courtroom logistics

CCTV and Recording Technology

Use of videotape to record pre-trial interviews or statements, full scale depositions or other sworn testimony

Use of CCTV

Advantages of CCTV

Child can testify in more relaxed environment than courtroom

Can testify outside physical presence of jury, spectators and defendant

Disadvantages of recording testimony before trial do not apply (i.e., defense preparation, newly-discovered evidence)

Enables testimony of child who may be unable to testify with defendant present

Disadvantages of CCTV

Televised image not as effective (“watching television”)

If defendant’s presence required in room, may be more intimidating

Overcoming Challenges to CCTV

Not necessary procedure in this case Prejudicial to defendant In violation of confrontation clause File motions in limine to craft conduct of

defense attorney Not use inappropriate questions Use age/developmentally appropriate

language Language/questions that are not designed to

“trick” the child

Preliminary Hearing Motion to remove child witness from courtroom and allow

testimony re: CCTV Expert or other testimony that child witness would undergo

further emotional trauma if compelled to testify in courtroom in presence of defendant

Williams v. U.S., 859 A.2d 130 (D.C. 2004) Taking 5 y.o. victim’s testimony by CCTV after she had

already begun testimony in court not error Unsuccessful attempt was added if not compelling

assurance of necessity or procedure to prevent trauma Trial court at least attempted to afford usual trial

confrontation State v. Marcantel, 756 So.2d 366 (La. Ct. App. 3d Cir. 1999)

Defendant waived constitutional right to confront victim by stipulating at show-cause hearing that child could testify via CCTV

Minimal standards for CCTV

As minimally intrusive as possible Defendant able to privately communicate with his

attorney Camera is focused in such a way to provide jury with

clear image of the witness, examiner, and any other person present within examination room U.S. v. Etimani, 328 F.3d 493 (9th Cir. 2003)

Placement of monitor behind and to left of victim instead of directly in line of sight acceptable when monitor was large, positioned so that victim could see it and its presence was called to her attention, and jury could se whether she looked at monitor during testimony

CCTV Minimal Standards

Must be capable to providing opportunity to observe witness’ demeanor by providing clear and accurate sounds and images to defendant, judge, jury and public

Manner in which transmitted instilled in witness sense of seriousness of testimony Not required to see and hear defendant State v. Manley, N.W.2d 275 (Minn. 2003)

Court may order that CCTV testimony be taken so that defendant can see and hear child in person and communicate with attorney but child cannot see or hear defendant

Advantages of Recording Interviews

Prosecutors can introduce recording in addition to in-court testimony Jurors can see child talk about abuse in non-

threatening surroundings May record spontaneity, emotion or detail

missing in later descriptions May be used at grand jury instead of child’s

testimony

Advantages of Recording Interviews, cont’d May be used to support preliminary showings

before trial (i.e., need for special procedures) Can refresh recollection before trial May be used to impeach victim if she recants

on witness stand May be used, if admissible, to corroborate

child’s testimony

Disadvantages of Recording Interviews Other out-of-court considerations will receive

less consideration because not recorded Defense counsel can use ineffective interview

to argue improper techniques Recorded denial or recantation can be

replayed for jury, damaging the prosecution’s case

Advantages of Recorded Testimony

Pre-trial deposition could be used to refresh child victim’s recollection

Could be used as evidence of prior consistent statement

May be used to impeach victim if she recants on witness stand

As substantive evidence if victim recants at trial May be used if child unable to testify at trial with

defendant present Can make the victim real to the jury (facial

expressions, gestures, pauses not conveyed by written transcript)

Disadvantages of Recorded Testimony

Lacks immediacy and persuasive impact of live in-court testimony by victim (“watching TV”)

Enables defense to prepare its case with prior knowledge of crucial testimony

If additional evidence comes to light, defendant may have right to cross-examine child victim again Some states allow presence of defendant; may be even closer than in court

Policies on Whether to Record Interviews Jurisdictions vary on whether to videotape

interviews; a few require it If you are going to record, best to have

professional interview protocol Recording not panacea for bad interview

protocol Example: multi-victim cases

Control point Each individual interviewer cannot share

information

Overcoming Challenges to Use of Recording Technology Challenges to interviewing protocols

Are they consistently followed? Were they followed in this case?

Common current attack on state’s case for only recording this witness, trying to raise issue that even state has concerns re: veracity of witness Response: provides clear evidence that did not use

leading/suggestive questions Pre-trial motion to stipulate recording coming in pro-

forma: no arguments can be made in front of jury Must look to hearsay rules to determine when

recorded statements can be introduced Know what you are dealing with

Necessity for Recorded Testimony Young v. Macy, 21 P.2d 44 (Okla. 2001)

Before ordering CCTV or recorded testimony, court must find

Use of special procedure is necessary to protect welfare of particular child

Child would be traumatized not by courtroom but by presence of defendant

Emotional distress more than de minimus State v. Alterisi, 702 A.2d 651 (Conn. 1997)

That 5 and 3 y.o. victims had been threatened with violent harm by defendant and were “deathly afraid” of him was clear and convincing evidence of need to videotape testimony outside of defendant’s presence

State v. Correll, 973 P.2d 197 (Kan. 1998) Trial court must make individualized finding that in-court,

face-to-face testimony of child victim would so traumatize child as to render child unavailable or would prevent child from reasonably communicating

Defense Challenges generally

Any good defense counsel will find something Be prepared to respond to each possibility

Defense motion to suppress Memory

Attacks on ability to remember, relate and tell truthfully

Suggestibility Result of leading questions Who prepped the child?

Process challenges

Defense Challenges on Process

Certification of equipment Ensure equipment is functioning before trial Date/time stamp When was the interview stopped? When was it interrupted? When did it resume? Chain of custody: “best evidence” of interview Appropriate training of evaluator/interviewer Sponsoring the interview: have the person available

to be cross-examined

Fabrication

Once a child is attacked as fabricating Bolster testimony through

Character witnesses Teachers “always reliable but for this trauma” Prior consistent statements

Challenges based on Hearsay

Recorded interviews and recorded testimony are hearsay

Testimonial statements: Crawford v. Washington

Child must be made available for cross-examination at some point

Hearsay

Out-of court assertions offered to prove the truth of the assertions

Any other statements are not hearsay If child unable to testify, may be only way to

establish corpus delicti Hearsay statements give more complete

picture of the alleged abuse, as well as process and context of disclosure

Many judges and attorneys do not understand hearsay well, so be prepared

Non-Hearsay

Not every out-of-court statement is hearsay If not intended as assertion, then not hearsay Can be offered for purpose other than truth of

their content

Examples of Non-Hearsay

Non-assertive conduct or verbal acts Prompt complaint/outcry Prior consistent statements Prior inconsistent statements Statement of identification State of mind of declarant

Non-assertive conduct or verbal acts

Child’s sexual play with dolls observed by adult prior to questioning

Statements while sleeping Crying at mention of defendant’s name

Prompt complaint

Permits first person the child told about the sexual abuse to testify that he/she was told and why

Offered to corroborate victim’s testimony Some states allow what was told, others don’t No absolute rule on time: up to 18mos upheld Helps explain how the case originated Helps explain chain of events

Prior Consistent Statements

Federal Rules of Evidence Express or implicit charge of recent fabrication

or improper influence allows admission of prior consistent statements as substantive evidence

Pre-trial statements made to friends, caretakers, CPS workers, police, therapists, etc.

Admissible to rehabilitate credibility following impeachment

Prior Consistent Statements cont’d

Be alert to any implication of lying or fabrication, especially in opening argument

Details of statement admissible if consistent with trial testimony

Perfect consistency not required Repeated use may be limited so as not to bolster the

testimony improperly Statement must pre-date events alleged to have

caused fabrication If admitted for rehabilitation, may get limiting

instruction to jury that the statement is not substantive evidence

Prior Consistent Statements cont’d

Examples The therapist showed you how to play with the dolls,

didn’t she? The police officer gave you candy after you talked to

him, isn’t that right? Was your mommy happy when you told her what

happened? Be prepared

Use details Provide origin and circumstances of the statement Is the statement recorded?

Prior Consistent Statements

Most important when the victim recants If made under oath (i.e., trial, deposition,

other sworn testimony) are NOT hearsay under Fed. Rules Evid. and are admitted as substantive evidence Be aware of civil proceedings

Some states designate these statements as hearsay but admit them as an exception

Know your state rules of evidence

Other non-hearsay

Statement of identification Statement that identifies defendant not

hearsay if child testifies at trial and is subject to cross-examination

State of mind of declarant Circumstantial evidence of state of mind

Statement during nightmare

“Firmly rooted” exceptions to Hearsay

Considered inherently reliable Requirement of availability for some, not for

others Spontaneous declaration Medical treatment or diagnosis

Made in context providing substantial guarantees of trustworthiness

Even incompetency ruling should not bar use of these statements

Examples of “firmly rooted” exceptions Excited utterances

Spontaneous declaration Fed. R. Evid. 803(2) Criteria

Event or condition that startles or excites the child Statement must be made while still under the stress of

that excitement Statement must relate to the startling event

Critical factor is lack of opportunity to fabricate Statements made for purposes of medical diagnosis

or treatment

Statutory Child Hearsay Exceptions

State statutes Fed. R. Evid.

“residual exceptions” allowing statements that have “equivalent circumstantial guarantees of trustworthiness”

Statutes frequently require that child declarant either testify at trial or be found unavailable before nontraditional hearsay evidence may be introduced

Indicia of Reliability

Statements were spontaneous Legal competency of child victim (incompetence does

not make statements per se unreliable) No motive to fabricate Not products of extensive interrogation with leading

questions Made immediately after incident Unique and plausible and not within experience of

young victim Used age-appropriate terminology Victim did not agree with everything questioner said Crawford: only indicia of reliability for testimonial

statements is cross-examination

Child’s Unavailability

Traditionally accepted reasons Refusal to testify Lack of memory Death Physical illness Incapacity Mental disability

Reluctance to testify may not be enough

Managing Impressions to Jury

Always be mindful of impression on jury Craft closing argument

How will the recording or CCTV fit into case How will it play to the jury “Would have loved to have the child here to

testify, but for the defendant’s actions” Try to use statements closest to time of

event/abuse

Importance of Vertical Prosecution

What is vertical prosecution? Why is it important?

Enhances child’s trust in the process Decreases child’s confusion Ensures prosecutor’s fullest knowledge Increases prosecutor's effectiveness Reduces number of interviewers

What if you cannot use it? Find some other way to ensure continuity for

the child

Contact Information

Eva J. Klain

ABA Center on Children and the Law

740 15th Street, NW

Washington, DC 20005

(202) 662-1681

KlainE@staff.abanet.org