The Sixth Amendment is the constitutional right for all offenders within the United States to be afforded the right to a trial with very specific requirements. Specifically, an offender has the right for a public trial without delay, the right to a lawyer, the right to face your accusers, and the right to an impartial jury. A portion of the rights afforded for a fair trial are having a witnesses testify as to the facts of the case, but what happens when the testimony is elicited from a child?
In the court of law, a subpoena holds the power to mandate any individual testify in situations that the court deems necessary. If a situation arises where the witness is a child, a subpoena can legally be used identically as if the witness were an adult. Respectively, “a parent who fails to bring a child to court after the child has been subpoenaed can be found to be in contempt of court, which can result in fines or even jail time” (Criminal Defense Lawyer). In this sense, serious concerns of responsibility arise when exposing children to the stressors of testimony in a courtroom, let alone recalling memories which are sensitive in nature that may induce trauma and horrific memories. Parents of these children have legitimate concern if their children become testifying witnesses which may hold weight in sentencing dangerous people. Witness intimidation, threats, or even violence is a serious issue when dealing with witness testimony in high profile cases.
In certain situations, “children can take the stand and testify in court, and the Judge has the ability to decide whether this is a good idea or not” (Rosen). Children can be called upon to testify in a multitude of situations. Often children are in the wrong place at the wrong time, viewing horrific incidents that their recollection is needed for. Homicides, vicious assaults, and car accidents resulting in death, are just a small list of criminal offenses that may be witness by a child. Most commonly, children are called to testify at divorce proceedings involving their own parents. The stress, anxiety, and trauma that is associated with taking the sides of your parents is a situation that no child should have to bear. Children of a young age are still mentally developing and are often unaware of the consequences of the words they are saying. It is understood “that infants and children differ in activity, emotionality, and general sensitivity to stimuli” (Module 1.3), thus creating varying and inconsistent reactions to depicted trauma. The testimony of a child can also be considered non-credible, considering their perception is that of an individual with no life experience or understanding of parental conflict.
The trauma of recalling sensitive events is authentic. Testifying in front of a large group of strangers, in a new and intimidating environment, about a topic that is disturbing in nature, is a recipe for trauma. Luckily, courts in certain states have enacted laws which have demonstrated sensitivity to these situations. Specific jurisdictions have allowed courtrooms to be closed to any audience members during the times of a child’s testimony. In some states, “child witnesses can also visit a courtroom before testifying to familiarize themselves with the surroundings and with court proceedings” (Criminal Defense Lawyer). Certain jurisdictions have even allowed testimony to be recorded to be played at a later date, further removing a child from in person testimony.
Ultimately, situations will arise where children are needed to testify. Legislation should be adopted which is accepted within all jurisdictions, prioritizing the potential trauma that is experienced by a child during testimony at court. Universal safeguards and protocols must be enacted which will be legally binding for all courts, prosecutors, and defense counsels to adhere to. Parents have the horribly difficult task with keeping their children safe, and unfortunately in the court of law, this protection can be ripped from them at a moments notice.
Rousseau, D. (2022). Module 1: Thinking Like a Forensic Psychologist. Boston University Metropolitan College Forensic Behavioral Analysis. Blackboard.
Rosen Law Firm (2022) The Child’s Preference and Testimony in Court. Retrieved on August 8, 2022 from https://www.rosen.com/child-custody-course/childs-testimony-in-court/
Criminal Defense Lawyer (2022) Can A Judge Order My Child to Testify? Retrieved on August 9, 2022 from https://www.criminaldefenselawyer.com/resources/criminal-defense/juvenile/can-a-judge-order-my-child-testify-a-criminal-case
Waltrip Firm (2018 May 31) The Child Witness. Retrieved on August 9, 2022 from https://waltripfirm.com/child-witness-competency/
Times of Malta (2016 Oct 23) When Children Take the Witness Stand. Retrieved on August 9, 2022 from https://timesofmalta.com/articles/view/when-children-take-the-witness-stand-what-support-do-they-receive.628766