Views from the Bench
| Publication year | 1998 |
| Pages | 38 |
| Citation | Vol. 11 No. 1 Pg. 38 |
The Child Witness: An Ever-Increasing Fact of Life in Utah Courts
Donald J. Eyre, Judge
Research and Editing Assistance by: Mary Kathleen-Wolsey and Jennifer Hernandez
With ever increasing frequency, Children are becoming involved in our judicial system. One need only review the Utah Criminal Code to observe that many different crimes have been created which provide special protection to children, and which mandate an increased penalty when the crime victim is a child. Our Legislature's emphasis on child-related crimes, as well as the increased attention given by law enforcement and prosecution to these crimes, has resulted in the appearance of greater numbers of child witnesses in Utah's criminal courts.
Utah's civil courts are also not immune from the increasing involvement of children in the judicial process. Domestic cases, which typically include custody and visitation disputes involving the parties' children, often include allegations of abuse and neglect, which necessarily involve the children, either directly or indirectly, as witnesses in those cases.
Furthermore, the explosion of cases filed under Utah's Cohabitant Abuse Act,[1] wherein a person seeks a protective order against a cohabitant, or seeks a protective order on behalf of children, has proportionally increased the occasions on which children serve in the witness capacity. In 1997, the Legislature went so far as to deem the commission of an act of domestic violence in the presence of a child a crime, thereby potentially enlarging the circumstances under which a child will testify as a witness.[2]
Whenever a child is required to testify, judges, prosecutors, and attorneys face the arduous task of weighing the interests of justice, including the rights of the criminal defendant, against the best interests of the child. The multitude of statutes pertaining to children as witnesses, victims, or perpetrators may compound the difficulty of this task.
The challenge of weighing these competing interests is illustrated by two experiences in my legal career. The first experience occurred several years ago I while prosecuting a child sexual abuse crime involving a five-year-old female victim and her foster father. At the preliminary hearing, to establish the elements of the crime, I performed the difficult task of eliciting the necessary testimony from the child concerning the defendant's actions. In addition, some corroborating evidence was introduced. At the conclusion of the hearing, the judge refused to bind the case over for trial and made the following statement: "I'm not going to ruin the life of this fifty-year-old man on the testimony of a five-year old."
The other experience involved enforcing a non-custodial father's right to visitation with his four-year-old daughter. After numerous hearings, and a finding of contempt with a threatened jail term against the client's former wife, my client finally obtained an extended visit with his child. In the middle of this visitation, he was arrested based upon a complaint of child sexual abuse brought by his former wife. I did not represent him in the criminal trial. On the morning of his criminal trial, I received a telephone call from my client's mother informing me that he committed suicide the night before. He left a note saying he loved his child, and had not improperly touched her, but the pressures of the criminal process were too great for him to endure.
As these examples demonstrate, many competing interests must be considered when dealing with a child witness. It is hoped that, as a judiciary, we have become more sensitive to the need for child witnesses in certain cases. In some cases, the only witness to a very serious crime may be a five-year-old girl, and her testimony should be given the full weight it deserves. On the other hand, as practitioners, we should never forget the great impact a criminal accusation has on a criminal defendant's life, and the safeguards of our criminal justice system should never be unnecessarily compromised.
The Utah Judiciary has recognized the unique problems associated with child witnesses. In fact, the last two judicial conferences included sessions addressing the evolution of laws pertaining to child witnesses. These sessions also discussed the ways in which these competing interests may be better handled. The presenters I at those sessions, Professor Karen Saywitz, Ph.D. and Professor John E. B. Myers, are also in the process of preparing a Utah Benchbook on Child Witnesses, which should be available to the judiciary in the near future.
However, it is essential for all individuals involved in such litigation to be aware of the concerns which unavoidably arise when using child witnesses. The purpose of this article is to provide a brief overview of the status of the law with respect to child witnesses in Utah, and to provide some practical suggestions that members of the bar may implement when dealing with a child witness.
A. COMPETENCY OF A CHILD WITNESS
As a preliminary matter, a judge must first determine the competency of the potential child witness before permitting that child to testify. Generally, all individuals are deemed competent to testify if they are capable of perceiving through their senses, and can relate that perception to others.[3]
Typically, a court does not view the age of the child witness as a determining factor in whether the child should be permitted to testify. In fact, in terms of child witnesses who intend to testify as the victims of sexual abuse, there is a presumption that children under the age of ten are competent to testify. However, the trier of fact is obligated to determine the weight and credibility that testimony should be given.[4]
Ultimately, it is within the trial court's discretion to decide whether a child satisfies the competency requirements to serve as a witness. In the case of State v. Smith, the Utah Supreme Court established standards for determining a child witness' competency. These standards require the child to have a level of intelligence and maturity which enable her to understand the questions posed to her. Furthermore, the child witness must have some knowledge of the facts presented by the case, and be able to remember what occurred. Finally, the child must have a sense of moral duty to speak the truth.[5]
Arguably, a basis exists for the position that the Utah Rules of Evidence (which presume all individuals competent to testify) and the criminal code (which deems alleged victims of child sexual abuse under the age of ten presumptively competent to testify) eliminate the trial court's discretion by requiring any child to testify, regardless of the standards set forth in Smith. However, it is my belief the judge maintains the role of gatekeeper in determining the minimum standards of competency with respect to any witness, including child witnesses. The judge is still required to exclude a witness' testimony if the probative value of that testimony is substantially outweighed by concerns of unfair prejudice, confusion of the issues, misleading the jury, or by the court's interest in avoiding undue delay, waste of time, or the unnecessary presentation of cumulative evidence.[6] In addition, judges retain some discretion to make determinations on the admissibility of evidence.[7] Clearly, however, in light of the statutes and rules pertaining to child witnesses, the Legislature intended the testimony of these witnesses to be admitted into evidence in most cases.
B. SPECIAL ACCOMMODATIONS MADE FOR THE CHILD WITNESS VICTIM IN CHILD SEX CRIME CASES AND CHILD ABUSE CASES
In the 1980s, the United States witnessed the emergence of cases involving child sexual abuse in alarming proportions.[8] In an effort to address these disturbing increases, many state legislatures, including the Utah Legislature, adopted or amended evidentiary rules to accommodate the special needs of this emerging group of child witnesses.
The accommodations made in Utah include, but are not limited to, the following: permitting any child to be a witness without the need for a competency hearing,[9] permitting the introduction of out-of-court statements made by an alleged victim of child abuse,[10] permitting videotaped interviews with the alleged child victim into evidence, allowing a child's testimony to be taken through closed-circuit television outside the presence of the defendant, and allowing into evidence the recorded testimony of any child witness or alleged child victim taken outside the I courtroom. If the testimony of a child is I taken via videotaped interview or closed-circuit television, the child will not be required to testify at any proceeding where that recorded testimony is used.[11]
Another recent statutory addition requires the language used during the examination of a child to be age-appropriate for children thirteen years old or younger. Furthermore, child victims thirteen years old or younger may be accompanied by an advisor whose purpose is to assist the child in understanding the questions posed by counsel.[12]
By the late 1980s, Utah had experienced a dramatic increase in litigation relating to the use of child witnesses in sexual abuse cases. The amendments to statutes and rules adopted to accommodate child witnesses have been upheld by Utah's appellate courts. However, in upholding these accommodations, the appellate courts have also held that Utah's trial courts are required to strictly comply with the provisions set forth in the applicable rules and statutes. What follows is a review of Utah case law:
1. Admissibility of Hearsay Pursuant to Section 76-5-411 and State v. Nelson
Section 76-5-411 of the Utah Code permits the introduction of out-of-court statements made by an alleged child victim of abuse. Specifically, this section permits the out-of-court...
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