Friday, March 13, 2015

An Op Ed: How courts should hear from children

Today's Washington Post is publishing an Op Ed piece by Steve Ceci and me, How courts should hear from childrenIt summarizes the views that Steve and I presented in an amicus brief in Clark and in the law review essay on which the brief is based.


nessons said...

richie, you say, "In many settings, an accused has a right, as a matter of fundamental fairness, to have a qualified expert inspect, examine and test a source of evidence that may be offered against him." Are you referring to Ake v. Oklahoma?

Richard Friedman said...

I wasn't. Ake is peripherally related, though it does have some useful language. For now, I think I'll stand on pp. 23-26 of our amicus brief in Clark, though if others believe there are other sources I should have cited I'll be glad to know. As indicated there, the basic principle has become well established without need for intervention by the U.S. Supreme Court; often, for example, the matter is addressed under Fed. R. Crim. P. 16 or state counterparts, without need even to reach the constitutional issue.

Richard D. Friedman said...

I got an email notice that an anonymous contributor (a frequent contributor, I believe) attempted to leave a comment here, but somehow it doesn't seem to be showing up. So I'll paste it in, and then respond to it.

"We believe a third possibility can solve this dilemma. L.P. should be treated not the way we treat adult witnesses but rather the way we treat non-human sources of evidence."

And yet you somehow manage to insist with a straight face that treating a human as a non-human does not dehumanize them. Amazing.

"Instead, he should be able to choose a qualified forensic examiner to interview L.P., under a prescribed protocol"

As a practical matter this will leave us exactly where we are now. Forensic examiners are not magicians and protocols are not magic spells. If the child doesn't remember the child doesn't remember and the jury will turn their attention to who is likely to remember--the teachers. So the end result will be the same but we can all feel better because some experts were involved (sarcasm).


End of comment. My response:

As to the first point: We do not suggest that children be treated as non-humans. What we say is that in broad terms the model that has been used for non-human sources of evidence, not the model that has been used for adult witnesses, is the appropriate model (as adjusted, of course, to take into account that it is a young child and not an inanimate object at stake) to use for young children. That's a pretty clear and basic difference.

Goodness -- I'm the father of three young people who have passed through young childhood. I am very aware that they are human. It does not de-humanize young children to recognize that there are very stark differences between them and adults, and that these differences make the model we use for adults inappropriate to young children -- bad for the adjudicative system, bad for the child, and bad for the legitimate interests of the accused.

As to the second point: I agree that forensic examiners are not magicians and protocols are not magic spells. Nobody is saying this is easy or that it will guarantee an accurate outcome. But a qualified examiner, acting under a suitable protocol, has a better chance than does lawyer engaged in cross-examination of finding and exposing factors that might have led the child to make a false statement.

Let's bear in mind that under the usual system there are three possible outcomes, none of which is likely to be satisfactory:

(1) The child's out-of-court statement is admitted through an adult witness, and the accused has no right of examination.

(2) The child is brought to the witness stand, perhaps in a separate room, and asked to testify on direct and cross-examination. Especially with very young children asked to relate events that happened months or even years earlier, that is almost always an unsatisfactory result. If, as often happens, the child clams up or otherwise fails to testify in accordance with the prior statement, the prior statement will probably come in; given that the child is on the stand, the Confrontation Clause, as it has been interpreted, will not keep the statement out. (3) The adjudicative system is deprived altogether of the evidence from the child. I suppose that is the result the anonymous contributor favors, but it represents a terrible loss to the adjudicative system.

Our approach allows the child to be hear and (by video) seen; gives the accused the best feasible chance of examination, shortly after the event; and minimizes trauma to the child.

wrongfully convicted said...

Richard there was a substitute witness in my cocaine case. The informer testified that the bag was in the same form that it was in when he bought it. My question is, how was it tested if it's in the same form ??? The substitute didn't preform or observe the testing. I'm in Mississippi department of corruption not correction.
Miller vs. State (2013~miss)

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