Swearing in Tommy: Should children testify? (Part 3)

By Jennifer M. Paine

Attorney, Cordell & Cordell, P.C., Detroit office

Note: This is Part 3 of a three-part series on children testifying. Click here to read Part 1 and click here to read Part 2.

Have you ever struggled over whether your child can, or should, testify? And what happens to him if he does? Can you ever guarantee your child’s words to the judge are what they tell you at home? 

And what if your spouse planted thoughts? How can you protect your rights? Can you?

You are not alone. Here are some suggestions.

Child Testimony Checklist

So, is it worth the gamble? Consider the following, and discuss them with your attorney if you have one, as you decide whether your child should testify:

1. A child is far more susceptible to post-traumatic stress and re-victimization than an adult, according to the American Academy of Pediatrics. You should have a professional evaluate your child for emotional and psychological issues that giving testimony may aggravate or accelerate. Be sure to include the child’s other parent or guardian in making this decision to avoid allegations that you “doctored up” the child’s testimony and/or violated a legal custody order. 

2. Talk with your child about events around the time of the events in dispute to determine whether the child has a sufficient mental capacity to testify truthfully and accurately about the events. It may be a good idea to include the opposing party in this discussion, too, or at least disclose it in writing, to avoid any allegations that you influenced the child. 

3. Ask if you can see where an in camera interview will occur. Is the judge’s office “kid friendly” or old, stuffy and scary? Similarly, is the judge nice or ruthless? Could you see your child feeling comfortable enough with the judge to tell the truth? Or will your child be frightened?

4. Are there other ways to get to the same information? For example, will your judge consider a custody recommendation and report from a family therapist or a guardian ad litem? Can other witnesses testify about the same events as your child? Or is your child the only witness? 

5. Ask if you can participate. This may mean preparing questions for your attorney to ask on cross-examination for fact testimony or attending the in camera interview for preference testimony. Consider whether your attendance will encourage or discourage your child to testify fully and honestly.

6. Talk with your child about the possibility of testifying. Does he get excited? Scared? Indifferent? Does the child understand the difference between the truth and a lie, the importance of telling the truth and the consequences of telling a lie? Do not quiz your child, lest you influence the testimony.

7. Read the testimony statutes and court rules in your state thoroughly. Consult an attorney for assistance. Do the laws in your state afford additional protections to children? These may include live testimony behind a screen (for sensitive topics like abuse), use of dolls, special closed court sessions for the child’s testimony, attorney appointment to represent the child, and so forth. Assess each of these options for use in your case.

8. How certain are you that your child will tell the judge, or jury, precisely what he tells you at home?

9. Do you have to file a motion or attend a pre-testimony hearing, or are there other court rules to abide, before your child can testify? Do not just show up with your child and expect the judge to let him testify.

10. Does your child express a willingness to testify? If not, why not?

Your child’s testimony could be the proverbial “smoking gun” evidence – for you or against you. Your child could reveal the facts just as you want to prove them. Your child could also reveal, squirming in the judge’s chambers with a timid expression, just how afraid he is to pick a parent, and just how insensitive you are to insist he do so. What will happen in your case? Only you, and your attorney, after a thorough assessment can surmise that. Although your child can testify, it’s up to you to decide whether he should.

Note: This is Part 3 of a three-part series on children testifying. Click here to read Part 1 and click here to read Part 2.

 

Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.

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