The testimony of the five-year old girl and her statements to a counselor were all the state had to convict her father of various sexual offenses against her. James Barror, an indigent defendant, asked the trial judge for financial assistance so he could hire a clinical psychologist to help him evaluate the techniques used by the state to elicit the damning testimony from his young accuser. In chambers, the judge allegedly told Mr. Barror that the $800 he requested to pay for the expert was excessive and advised his lawyer to locate a "more reasonably priced expert." On the record, the request for expert assistance was denied without explanation.
The court found the child competent to testify after asking her questions designed to test her ability to receive and relate her observations, whether she knew the difference between truth and falsehood, and her appreciation of the responsibility to tell the truth. The defendant requested permission to ask his own questions about her testimony. His request was denied.
At trial, the child testified that her father touched her "private part." The counselor told the court that the child described acts that could be characterized as digital penetration as well as a request to "touch my daddy's weenie." On the basis of that testimony, the defendant was convicted of felonious sexual penetration and gross sexual imposition.
On appeal, Mr. Barror argued that the child was not competent to testify because she did not demonstrate the "intellectual capacity" necessary to understand the acts listed in the indictment, and that the court had erred by denying him his right to interrogate the child for competency. Mr. Barror also argued that the trial judge's refusal to assist him by appointing a clinical psychologist expert was a prejudicial error. The state argued that other means were available to Mr. Barror, i.e., he could have used a book on child interrogation to cross-examine the child and her counselor.
Holding: The conviction was overturned and a new trial was ordered. The defendant was unfairly denied the opportunity to properly prepare for trial and present expert testimony as to whether the child's testimony was influenced by other factors. The Court held that cross-examination of the child could not substitute for trial preparation, particularly when the state's entire case rested upon the child's words. Mr. Barror had proved both: (1) the need for and value of the expert assistance to his case and (2) the unavailability of other means to satisfy that need. [See State v. Jenkins, 473 N.E.2d 264 (1984)].
The Court rejected Mr. Barror's argument that he should have been permitted to examine the child for competency. Upon examination of the record of the competency examination, the Court found that the trial judge conducted an adequate examination of the child.
Selfishness and control are the same motivators of the cold and detached killer.
| Rayna Rogers, D.O. Associate Professor of Child Psychiatry Univeristy of California |
Dr. Rogers comments: The testimony of children in a court of law is generally problematic. The younger the child, the more difficult for a court to rely upon the accuracy of reported memories and occurrences. Tradition had held that prior to a child giving testimony in court, some assessment of the child's credibility would be made, either by adversarial voir dire or by direct questioning by the judge. The fundamental issues with regard to competency include the child's capacity for observation, recollection, clear communication and the understanding of the moral responsibility to speak the truth. Some authors also include the child's lack of understanding of time, sequence, causality and identity as issues which might render a child incompetent.
Various tests have been used to determine a child's testimonial capacity. The "Oath Understanding Test" focuses on a child understanding of the responsibility of a potential witness to tell the truth. The "Full Inquiry Test" provides counsel an opportunity to rigorously examine a child's development, school performance, attendance at church and any other area of life that might shed some light on a child's capacity to perform the complex act of testifying in court. This test is obviously more cumbersome and time-consuming, and seems to be falling out of favor in modern courts, especially where the allegations include child sexual abuse.
The "No Inquiry" approach to child competency determination essentially allows courts to treat child witnesses no differently than they would an adult witness. Some states, including Ohio, have chosen the age of ten years as a cutoff, requiring voir dire only for children younger than ten. Even less rationally, a new development, for example in the state of Colorado, suspends the voir dire requirement for children younger than ten if the child alleges sexual or physical abuse.
Reasons for making an exception in such cases are not supported by research finding (Ceci & Bruck, McGough). There is no reason to believe that a child will be any more accurate or truthful when testifying about sexual or physical abuse than they would be with regard to other kinds of situations. In fact, these may be times when testimony should be subject to extra scrutiny given the known effects of trauma, suggestibility, fluidity of memory, manipulation by others, and even lying to achieve secondary gain in cases where child sexual abuse is alleged in the absence of physical evidence.
The importance of videotaping the very first interview with the child should be emphasized. Unfortunately, in most cases, multiple persons including family members, peers and community professionals will have talked with a child about the "abuse experience" prior to the actual police or social services interview. Even so, it remains important for both the prosecution and defense purposes to have a videotape record demonstrating whether or not any leading questions were asked, suggestions made, fantasy material provided, etc. The consulting expert can then assist counsel in critiquing the interview approach, provide voir dire questions for competency determination and help prepare cross-examination.
The defense expert can also assist the court in understanding possible mechanisms by which a child might provide incorrect information without necessarily lying (though children have been known to do this as well). In the case of a child being coerced or manipulated by an adult, an expert consultant can help to ferret out family dynamics, which might account for the phenomenon. Likewise for the prosecution, an expert may point out the absence of any of the operating dynamics, thereby lending credence to the child's testimony.
$800 is quite a bargain if it brings us closer to the truth.
Courts should also be aware that a good, thorough consultation is always time-consuming. More time means more cost, but when the future of a child and the freedom of a potentially innocent adult hangs in the balance, $800.00 is quite a bargain if it brings us closer to the truth.
