Summary of the Rules on Examination of a Child Witness

8/11/2019 Summary of the Rules on Examination of a Child Witness

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Summary of the Rules on Examination of a Child Witness

Applicability:Child witnesses (any person who at the time of giving testimony is belowthe age of 18 years) who are:

1. Victims of a crime2. Accused of a crime3. Witness to a crime

n all criminal and non!criminal "roceedin#s in$ol$in# child witnesses.

%he #uardian ad litem may &le motions for:1. nter"reter for child2. 'acilitator to "ose (uestions to the child3. )i$e!lin* tele$ision testimony in criminal cases where the child is a

$ictim or a witness+. Screens, one!way mirrors and

Before testifying, a child shall take an oath or armation to tellthe truth.

Competency: -otion for com"etency examination/ %he Court shall conduct a com"etency examination of a child, motu "ro"ioor on motion of a "arty when it &nds that su0stantial dou0t existsre#ardin#:

1. A0ility of the child to "ercei$e,2. Remem0er,3. Communicate,+. istin#uish truth from falsehood, or. A""reciate the duty to tell the truth in court.

A "arty see*in# a com"etency examination must "resent "roof ofnecessity of com"etency examination.

! A#e of the child 0y itself is not a sucient 0asis for com"etencyexamination.

! 4efore examination of com"etence there must 0e:o 5roof of necessity from the "arty challen#in# his

com"etenceo 6rder from the Court

Examination of a child as to his com"etence shall 0e conducted only 0y

the 7ud#e. Counsel for the "arties, howe$er, can su0mit (uestions to the 7ud#e that he may, in his discretion, as* the child.

%he (uestions as*ed at the com"etency examination shall 0e a""ro"riateto the a#e and de$elo"mental le$el of the child8 shall not 0e related to theissues at trial8 and shall focus on the a0ility of the child to remem0er,communicate, distin#uish 0etween truth and falsehood, and a""reciatethe duty to testify truthfully.

Interpreter for child: %he child may 0e a""ointed 0y the court, motu "ro"io or u"on motion, aninter"reter whom the child can understand and whio understand the child

to inter"ret for him9her when a child:1. oes not understand the En#lish or 'ili"ino lan#ua#e,



2. s una0le to communicate in said lan#ua#es due toa. e$elo"mental le$el0. 'earc. Shynessd. isa0ilitye. 6r other similar reason

f a witness or mem0er of the family of the child is the only "erson whocan ser$e as an inter"reter for the child, he shall not 0e dis(uali&ed andmay ser$e as the inter"reter of the child.

%he inter"reter, howe$er, who is also a witness, shall testify ahead of thechild.

Facilitator: %he court may, motu "ro"io or u"on motion, a""oint a facilitator if itdetermines that the child is una0le to understand or res"ond to (uestionsas*ed.

Who may 0e a facilitator1. Child "sycholo#ist2. 5sychiatrist3. Social wor*er+. ;uidance counselor. %eacher<. Reli#ious leader=. 5arent>. Relati$e

f the court a""oints a facilitator, the res"ecti$e counsels for the "arties

shall "ose (uestions to the child only throu#h the facilitator.

%he (uestions shall either 0e in the words used 0y counsel or, if the childis not li*ely to understand the same, in words that are com"rehensi0le tothe child and which con$ey the meanin# intended 0y counsel.

Support ersons:6ne or two of child?s own choosin# to "ro$ide him9her emotional su""ort

1. 4oth su""ort "ersons shall remain within the $iew of the childdurin# the testimony

2. 6ne of the su""ort "ersons may accom"any the child to the witness

standa. 5ro$ided he9she does not com"letely o0scure the child fromthe $iew of the o""osin# "arty, 7ud#e or hearin# ocer

0. ay 0e allowed to hold the hand of the child or ta*e othera""ro"riate ste"s to "ro$ide emotional su""ort in the courseof the "roceedin#s

c. Shall not "rom"t, sway or in@uence the child durin# his9hertestimony

f the su""ort "erson chosen 0y the child is also a witness, the court maydisa""ro$e the choice if it is suciently esta0lished that the attendance of the su""ort "erson durin# the testimony of the child would "ose a

su0stantial ris* of in@uencin# or aectin# the content of the testimony ofthe child.



Courtroom en!ironment

%o create a more comforta0le en$ironment for the child, the court may, inits discretion, direct and su"er$ise the location, mo$ement andde"ortment of all "ersons in the courtroom includin# the "arties, theircounsel, child, witnesses, su""ort "ersons, #uardian ad litem, facilitator,and court "ersonnel.

%he child may 0e allowed to testify from a "lace other than the witnesschair.

%he witness chair or other "lace from which the child testi&es may 0eturned to facilitate his testimony 0ut the o""osin# "arty and his counselmust ha$e a frontal or "ro&le $iew of the child durin# the testimony of thechild.

%he witness chair or other "lace from which the child testi&es may also 0erearran#ed to allow the child to see the o""osin# "arty and his counsel, if he chooses to loo* at them, without turnin# his 0ody or lea$in# thewitness stand.

%he 7ud#e need not wear his 7udicial ro0e.

Bothin# in this section or any other "ro$ision of law, exce"t ocial in!courtidenti&cation "ro$isions, shall 0e construed to re(uire a child to loo* at theaccused.

Accommodations for the child under this section need not 0e su""orted 0y

a &ndin# of trauma to the child.What may 0e "ermitted durin# trial:

1. Allow the child reasona0le "eriods of relief while under#oin# direct,cross, re!direct, and re!cross examinations as often as necessaryde"endin# on his de$elo"mental le$el.

2. 5ermit the child to use dolls, anatomically!correct dolls, "u""ets,drawin#s, manne(uins, or any other a""ro"riate demonstrati$ede$ice to assist him in his testimony.

3. Allow the child to ha$e an item of his own choosin# such as a0lan*et, toy, or doll.

+. %he court may "rohi0it a counsel from a""roachin# a child if ita""ears that the child is fearful of or intimidated 0y the counsel.

. Allow the child witness to testify in a narrati$e form.<. Allow leadin# (uestions in all sta#es of examination of a child if the

same will further the interests of 7ustice.". #i!e$link testimony

a. 5rosecutor, counsel or #uardian ad litem may a""ly for anorder that the testimony of the child 0e ta*en in a roomoutside the courtroom and 0e tele$ised to the courtroom 0yli$e!lin* tele$ision.

b. 5erson see*in# such order shall a""ly at least days 0eforethe trial date, unless the court nds on the record that theneed for such an order was not reasonable foreseeable.



c. %he court may motu "ro"rio hear and determine, with noticeto the "arties, the need for ta*in# the testimony of the childthrou#h li$e!lin* tele$ision.

d. %he court may order that the testimony of the child 0e ta*en0y li$e!lin* tele$ision if there is a su0stantial li*elihood thatthe child would suer trauma from testifyin# in the "resenceof the accused, his counsel or the "rosecutor as the case may0e. %he trauma must 0e of a *ind which would im"air thecom"leteness or truthfulness of the testimony of the child.

e. f the court orders the ta*in# of testimony 0y li$e!lin*tele$ision:

i. Se"arate room in the "resence of the #uardian adlitem, one or 0oth of his su""ort "ersons, the facilitatorand inter"reter, if any, a court ocer a""ointed 0y thecourt, "ersons necessary to o"erate the closed!circuittele$ision e(ui"ment, and other "ersons whose"resence are determined 0y the court to 0e necessary

to the welfare and well!0ein# of the child8ii. %he 7ud#e, "rosecutor, accused, and counsel for the

"arties shall 0e in the courtroom. %he testimony of thechild shall 0e transmitted 0y li$e!lin* tele$ision into thecourtroom for $iewin# and hearin# 0y the 7ud#e,"rosecutor, counsel for the "arties, accused, $ictim,and the "u0lic unless excluded.

iii. f it is necessary for the child to identify the accused attrial, the court may allow the child to enter thecourtroom for the limited "ur"ose of identifyin# theaccused, or the court may allow the child to identifythe accused 0y o0ser$in# the ima#e of the latter on a

tele$ision monitor.i$. %he court may set other conditions and limitations on

the ta*in# of the testimony that it &nds 7ust anda""ro"riate, ta*in# into consideration the 0estinterests of the child.

%. Screens, one$&ay mirrors, and other de!ices to shield childfrom accused

a. 5rosecutor or #uardian ad litem may a""ly for an order thatthe chair of the child or that a screen or other de$ice 0e"laced in the courtroom in such a manner that the childcannot see the accused while testifyin#.

b. f the court #rants such a""lication, the courtroom shall 0earran#ed to ena0le the accused to $iew the child.'. (ideotaped deposition

a. 5rosecutor, counsel or #uardian ad litem may a""ly for anorder that a de"osition 0e ta*en of the testimony of the childand that it 0e recorded and "reser$ed on $ideota"ed.

b. f the court &nds that the child will not 0e a0le to testify ino"en court at trial, it shall issue an order that the de"ositionof the child 0e ta*en and "reser$ed 0y $ideota"ed.

c. %he 7ud#e shall "reside at the $ideota"ed de"osition of achild. 607ections to de"osition testimony or e$idence, or"arts thereof, and the #rounds for the o07ection shall 0e

stated and shall 0e ruled u"on at the time of the ta*in# of thede"osition.



d. f the order of the court is 0ased on e$idence that the child isuna0le to testify in the "hysical "resence of the accused, thecourt may direct the latter to 0e excluded from the room inwhich the de"osition is conducted. n case of exclusion of theaccused, the court shall order that the testimony of the child0e ta*en 0y li$e!lin* tele$ision in accordance with section 2of this Rule.

e. f, at the time of trial, the court &nds that the child is una0leto testify for a reason stated in section 2-f/ of this Rule, or isuna$aila0le for any reason descri0ed in section +-c/, Rule 23of the 1= Rules of Ci$il 5rocedure, the court may admit intoe$idence the $ideota"ed de"osition of the child in lieu of histestimony at the trial. %he court shall issue an order statin#the reasons therefor.

)earsay *+ception in Child Abuse Cases1. 4efore the statement may 0e admitted, its "ro"onent shall ma*e

*nown to the ad$erse "arty the intention to oer such statementand its "articulars to "ro$ide him a fair o""ortunity to o07ect.

2. f the child is a$aila0le, the court shall, u"on motion of the ad$erse"arty, re(uire the child to 0e "resent at the "resentation of thehearsay statement for cross!examination 0y the ad$erse "arty.When the child is una$aila0le, the fact of such circumstance must0e "ro$ed 0y the "ro"onent.

3. %he child witness shall 0e considered una$aila0le under thefollowin# situations:

a. s deceased, suers from "hysical in&rmity, lac* of memory,mental illness, or will 0e ex"osed to se$ere "sycholo#icalin7ury8 or

0. s a0sent from the hearin# and the "ro"onent of hisstatement has 0een una0le to "rocure his attendance 0y"rocess or other reasona0le means.

+. When the child witness is una$aila0le, his hearsay testimony shall0e admitted only if corro0orated 0y other admissi0le e$idence.

Se+ual Abuse Shield ulenadmissi0le e$idence:

1. E$idence oered to "ro$e that the alle#ed $ictim en#a#ed in othersexual 0eha$ior

2. %o "ro$e the sexual "redis"osition of the alle#ed $ictim

Exce"tion: E$idence of s"eci&c instances of sexual 0eha$ior 0y the alle#ed$ictim to "ro$e that a "erson other than the accused was the source ofsemen, in7ury, or other "hysical e$idence

A "arty intendin# to oer such e$idence must:

1. 'ile a written motion at least &fteen -1/ days 0efore trial,s"eci&cally descri0in# the e$idence and statin# the "ur"ose forwhich it is oered, unless the court, for #ood cause, re(uires adierent time for &lin# or "ermits &lin# durin# trial8 and

2. Ser$e the motion on all "arties and the #uardian ad litem at leastthree -3/ days 0efore the hearin# of the motion.



4efore admittin# such e$idence, the court must conduct a hearin# incham0ers and aord the child, his #uardian ad litem, the "arties, and theircounsel a ri#ht to attend and 0e heard.

Documents

Summary of the Rules on Examination of a Child Witness