Factsheets: Special Provisions for Children in the Criminal Justice System

• Introduction
• Special Provisions for the Investigation and Prosecution of Crimes
• Special Courtroom Provisions for Children
• Special Legal Requirements
• Conclusion
• Bibliography
• For Additional Information
• Endnotes

Introduction

As awareness of the prevalence of crimes against children increases, and legislators become educated as to the needs of child victims in the judicial system, a wide range of special provisions has been adopted to make the child's participation in the system less traumatic. All states and the District of Columbia have adopted one or more of the child victim and witness provisions discussed here. (All statutes discussed in this summary are current through 1997 unless otherwise indicated. Source: National Center for Victims of Crime, Legislative Database.)

Special Provisions for the Investigation and Prosecution of Crimes

States have taken various steps to reduce the stress on child victims and witnesses in the course of an investigation of crimes against children, especially child sexual abuse. Since several professionals and agencies may need to participate in the investigation of the offense, a child may be subjected to repeated questioning by many different officials. Representatives from law enforcement and the prosecutor's office may question the child in connection with the investigation and prosecution of the offense. Officials from the child protective system may also investigate, particularly if the offense involves other family members.

In an effort to reduce or eliminate the need for multiple interviews, many states have established child advocacy centers, sometimes called Children's Justice Centers. Such centers are child friendly facilities that bring together a variety of services for child victims and coordinate investigations of abuse between agencies. Such centers often hold joint interviews of child victims by various professionals, or videotape interviews with children for later viewing by officials.

Other states require local jurisdictions to establish a protocol for the investigation and prosecution of abuse that encourages interagency cooperation. Such cooperation may take the form of a multidisciplinary team, combining professionals who work in the area of child protection, criminal investigation, treatment of abuse victims, and prevention of child abuse.(1)

Many states encourage the use of the same prosecutor through all phases of a prosecution of child abuse or exploitation-- another important way to limit the number of professionals with whom a child victim must develop a relationship of trust. Some states have child abuse specialists among the prosecutor's staff, or special child abuse prosecution units.

States also have attempted to limit child involvement in the criminal justice system, where possible. A few states have laws urging that a child's participation in the criminal justice system be minimized, by not involving the child in grand jury proceedings, preliminary hearings, etc. Many have "speedy trial" provisions for cases involving child victims. In enacting "speedy trial" provisions, legislatures have recognized that lengthy proceedings can be harmful to a child. At the same time, repeated delays can make prosecution more difficult. Over time, a child victim or witness may forget details of the offense, may make inconsistent statements, and the child and family may become less willing to continue being subjected to the stress of the criminal justice process.

Several states, including Alabama, Delaware, and Idaho, require the court and prosecutor to take appropriate action to ensure a speedy trial, with the stated goal of minimizing the stress on children who are victims or witnesses. Those states also require the court to consider the interests of the child in ruling on any request for a delay in proceedings. Other states require that criminal cases involving child victims be given precedence over other court cases.

All of the above provisions reduce the stress on child victims that results from involvement in the criminal justice system. At the same time, such provisions also improve the quality of the investigation and prosecution of offenses against children.

Special Courtroom Provisions for Children

Child-related courtroom provisions can be broken into the following categories:

• Competency of young children as witnesses;
• Admission of certain types of evidence, such as statements to others and videotaped statements;
• Use of closed-circuit testimony for the child victim/witness;
• Altering the courtroom;
• Permitting support attendants for the child victim/witness;
• Allowing a child to use testimonial aids; and
• Permitting special forms of questioning of child witnesses.

Each of the above represents a modification of ordinary rules of evidence or courtroom procedure to accommodate the special needs of young victims.

Historically, children below a certain age were not considered competent as witnesses for a number of reasons, including their inability to comprehend an oath, their limited ability to distinguish fact from fiction, and their suggestibility. However, the exclusion of young child witnesses often made prosecution of child sexual abuse virtually impossible, as the child victim is generally the only witness in such cases. States have taken a variety of statutory approaches in resolving the question of the competency of child witnesses. Some states have retained the general prohibition against testimony by a child, but make an exception for cases of child sexual abuse. Others permit a child to testify, but require the court to instruct the jury to consider the child's age and cognitive development in weighing the child's testimony. In several states, courts may allow a child to testify without taking an oath if that child appears to understand the difference between telling the truth and a lie.

Many states allow a child victim's previous statements about a crime to be admitted as evidence, where the person testifying is the first adult to whom the child made such statements. States may also allow the videotaped statements or videotaped deposition of a child victim or witness to be introduced into evidence, even though videotaped evidence is not usually admissible in criminal courts.

The use of closed-circuit television in child victim/witness testimony is also becoming more common, especially in cases of sexual abuse of a child. This process involves questioning of the child victim/witness in a separate room, while the testimony is simultaneously viewed by the jury and others in the courtroom. The typical closed-circuit laws permit only a few people to be in the room with the child--including the prosecutor, defense attorney and a support person for the child victim/witness. The people operating the closed-circuit equipment must be kept behind a screen, out of the view of the child as much as possible. The defendant is permitted to view the child and to communicate with his or her attorney, but must be out of sight of the child.

Many states allow the courtroom setting to be changed or altered to make it easier for a child to testify--either with furniture designed for children or by placing the defendant out of the child's view. Courts in some states may allow young children to sit on the floor or in a trusted adult's lap while they testify, or permit children to have a parent or other adult with them at the witness stand. In limited circumstances, children may be permitted to testify in the judge's chambers or in some similar, less intimidating surroundings. States may also require that the proceedings be explained to the child victim/witness in age-appropriate language.

In cases of sexual abuse, states often allow children to use testimonial aids to help them describe the sexual acts--most commonly anatomically correct dolls, mannequins, puppets or drawings. Children may also be permitted to testify using familiar terms and language.

States may allow a court to require that the prosecutor and defense attorney remain seated when questioning a child. They may permit prosecutors to use leading questions when a child is on the witness stand, if the court finds it necessary and appropriate. In some states, judges may require that the attorneys pose questions in a nonthreatening manner, and in language easily understood by the child. Others require or permit a judge to question a child in some situations. Judges in some states may limit the amount of time a child spends on the witness stand--the law may allow a judge to give breaks to the child witness, or limit a child's testimony to one hour at a time.

Special Legal Requirements

In most states a judge is required to find that many of the foregoing special courtroom provisions are necessary in a particular case, especially before permitting the use of closed-circuit television. The permissible bases for such a finding vary between the states. Some states require the judge to find that if the provision is not used, a child will be so emotionally traumatized that he or she will be unable to communicate. Other states require a court to find only that a child's mental well-being would "more likely than not" be harmed without the use of the special courtroom provision. Rhode Island has a presumption that a child victim age 13 or younger is unable to testify in open court without suffering harm, therefore special provisions are always deemed necessary, unless it can be proven otherwise.

Conclusion

State legislatures have enacted a range of special provisions for the investigation and prosecution of crimes against children to reduce the trauma that participation in the criminal justice system inflicts on the youngest crime victims and witnesses. The type of special child-related provisions available varies from state to state. To find out which of the above provisions your state has for child victims and witnesses, contact your local prosecutor, or state Attorney General, or visit your local law library.

Bibliography

National Center for the Prosecution of Child Abuse. (1993). Investigation and Prosecution of Child Abuse. Alexandria, VA: National District Attorneys Association, American Prosecutors Research Institute.

National Clearinghouse on Child Abuse and Neglect and National Center for the Prosecution of Child Abuse. (1995). Investigations, Vol. III--Child Abuse and Neglect State Statutes Series. Washington, DC: U.S. Department of Health and Human Services, National Center on Child Abuse and Neglect.

National Clearinghouse on Child Abuse and Neglect and National Center for the Prosecution of Child Abuse. (1995). Child Witnesses, Vol. IV--Child Abuse and Neglect State Statutes Series. Washington, DC: U.S. Department of Health and Human Services, National Center on Child Abuse and Neglect.

National Institute of Justice. (1992). New Approach to Interviewing Children: Test of Its Effectiveness. Washington, DC: U.S. Department of Justice.

National Center for Victims of Crime. (1994). "Victims of Child Physical and Sexual Abuse." Focus on the Future: A Systems Approach to Prosecution and Victim Assistance--A Training and Resource Manual. Arlington, Va.

National Center for Victims of Crime. (1995). "Child Victims and the Law." Get Help Series, Arlington, VA.

National Center for Victims of Crime. (1995). "Overview of the Criminal Justice System." Get Help Series, Arlington, VA.

Office of Juvenile Justice and Delinquency Prevention. (1994). The Child Victim as a Witness: Research Report. Washington, DC: U.S. Department of Justice.

Smith, Barbara. (1995). Prosecuting Child Abuse Cases: Lessons Learned from the San Diego Experience--Research in Brief. Washington, DC: U.S. Department of Justice, National Institute of Justice.

Whitcomb, Debra. (1992). When the Victim is a Child--Issues and Practices in Criminal Justice Series. (2nd ed.). Washington, DC: U.S. Department of Justice, National Institute of Justice.

Whitcomb, Debra, Gail Goodman, Desmond Runyan and Shirley Hook. (1994). The Emotional Effects of Testifying on Sexually Abused Children--Research in Brief. Washington, DC: U.S. Department of Justice, National Institute of Justice.

For additional information, please contact:

American Bar Association
Center for Children and the Law
740 15th Street, NW
10th Floor
Washington, DC 20005-1009
(202) 662 - 1500

National Center on Child Abuse and Neglect
U.S. Department of Health and Human Services
P.O. Box 1182
Washington, DC 20013-1182
(202) 205 - 8586

National Center for Prosecution of Child Abuse
American Prosecutors Research Institute
99 Canal Center Plaza
Suite 510
Alexandria, VA 22314
(703) 739 - 0321

National Children's Advocacy Center
106 Lincoln Street
Huntsville, AL 35801
(205) 533 - 5437

National Court Appointed Special Advocate Association
2722 Eastlake Avenue East
Suite 220
Seattle, WA 98102
(800) 628 - 3233
(206) 328 - 8588

National Resource Center on Child Sexual Abuse
2204 Whitesburg S. Drive
Huntsville, AL 35801-4546
(800) 543 - 7006 (information services)
(800) 239 - 9938 (training)
(205) 534 - 6868

Resource Center on Child Custody and Child Protection
National Council on Juvenile and Family Court Judges
P.O. Box 8970
Reno, NV 98507
(800) 527 - 3228
(702) 784 - 6012

Your local prosecutor, state Attorney General, or county/city law enforcement

Check in the Blue Pages of your local phone book under the appropriate section heading of either "Local Governments," "County Governments," or "State Government."