Preparing the Child Witness for Trial

1. Ashley Harrington, Deputy County Attorney Gallatin County Attorney’s Office Preparing the Child Witness for Trial

2. “Pretty much all the honest truth-telling there is in the world is done by children.” Oliver Wendell Holmes

3. Fact: The majority ofchild sexual abuse prosecutions will not be supported by physical evidence of sexual abuse. Fact:Very few cases will involve eye-witness testimony or other directly corroborative evidence. Fact: The outcome of many, if not most, child abuse cases is determined by an evaluation of the child's credibility.

4. Fact: The plain truth about the prosecution of sexual offenses against children is this: if you don’t have a viable victim/witness, you don’t have a case. It is your job to make sure the child witness is heard and believed.

5. HOW DO I DO THAT?

6. KNOW YOUR WITNESS Understanding how children encode, store, retrieve, and convey information is key.

7. UNDERSTANDING A CHILD’S MEMORY

8. “Memory is funny. Once you hit a vein the problem is not how to remember but how to control the flow. “Tobias Wolff

9. Memory Research: The Basics • Semantic Memory: Long term storage of an individual’s world knowledge. Example: Semantic memory of eagle includes knowledge that it is a large, predatory bird. • Episodic Memory: Memory of specific events Example: Episodic memory for eagle, might include a fishing trip where an occupied eagle’s nest was observed.

10. The Three Stages of the Memory System 1) Encoding 2) Storage 3) Retrieval

11. Stage 1: Encoding • Stage 1: Encoding : How information comes in to the memory system . . .what gets attended to, how it gets represented in memory. • Children 12 yrs. and younger typically exhibit selective encoding. This is a reflection of their limited attention and processing speed, which skills increase with age. Kail and Ferrer, 2007. • Other factors that affect encoding: familiarity with event, duration of event, stress level at time of encoding.

12. Detail is not an indicator of credibility. Children will often encode only select details about an experience, regardless of how traumatic it is. Lack of detail does not indicate lack of credibility.

13. Stage 2: Storage • Storage: The “shelving” of acquired information and experience; storage is divided between short term vs. long term storage. • Strength of memory varies according to length of storage and number of times information has been accessed. • Older children and adults have greater capacity (larger storage tank) and so will typically transfer more content to long term storage. • Younger children have limited long term memory, and transfer much of what they see and hear directly to short term storage. This information is easily lost.

14. Stage 3: Retrieval Retrieval: Accessing and recounting stored information Retrieval is seldom, if ever, perfect Developmentally, children encounter processing limitations that makes retrieval difficult. Retrieval in children is strongly influenced by context

15. Retrieval cont. • Retrieval of memory in children is facilitated when conditions prevalent at time of retrieval parallel those present at time of original encoding. Smith and Vela, 2001. • Infant\mobile study, Shields & Rovee-Collier, 1992.

16. ACCESSING THE CHILD’S MEMORY

17. Strategy Development • Memory strategies are “effortful, goal-directed and potentially conscious cognitive operations usedSchlagmuller & Schneider to improve memory performance.”, 2002. • Three most important strategies in children’s memory development are rehearsal, organization and elaboration.

18. Rehearsal: repetition of items to be remembered. • Organization: the grouping of items to be remembered into meaningful clusters of categories. These categories facilitate later recollection.. • Elaboration: Linking or connecting the items to be remembered.

19. WHY DO I CARE?

20. ASSUMPTIONS AND EXPECTATIONS: • Many people assume that a traumatic incident, such as an incident of sexual abuse, will naturally “stand out” in a child’s memory and will therefore be easily recalled and related. • We expect children to describe their experience in detail, upon demand, whether the setting is a forensic interview or the courtroom. Given what you now know about memory, you understand that:

21. Detail is not an indicator of credibility. • Children will often encode only select details about an experience, regardless of how traumatic it is. Lack of detail does not indicate lack of credibility.

22. Context is Key • Context is vital to a child’s ability to access specific memories. • When asked about an event, the child may have no memory of it until context is provided: i.e., a picture of the house or room where the abuse occurred, a visit to the interview room where the child last disclosed or discussed the abuse, etc.

23. Learn Their Language • Children have a limited amount of semantic memory. Therefore, they are required encode and recount information using what limited world knowledge they have. • You must learn each child’s language, or frame of reference, before you can conduct an effective in-court examination of the child.

24. You CAN make your witness better! • Studies have shown that while children can use memory strategies to enhance their ability to access information, they will not do so spontaneously until at least age 8. • When prompted by an adult, children can utilize these strategies to fluidly access and recount information, particularly as pertains to a traumatic event.

25. PREPARING THE CHILD TO TALK ABOUT THEIR MEMORIES

26. STEPS IN PREPARATION • 1) Establish rapport • 2) Establish context • 3) Retrieving the abuse scenario

27. STEP 1: Establishing Rapport • First meeting is a quasi ‘play date’. • Should occur at least a month before trial. • Setting is important – if your office is not child friendly, meet in the interview room or victim advocate’s office.

28. Rapport: Appearance and attitude matter. • Appearance and dress are important. Formal dress can intimidate. • Pay attention to posture: sit at an angle to the child and keep your posture open. • Discuss school, favorite sports, games, siblings. Do NOT go immediately to the abuse scenario – this child has no reason to trust you yet.

29. Rapport: Identify Yourself • Explain who you are and what your relationship with the child will be. • You are not a “prosecutor”. You are somebody who helps keep kids safe. • You and the child are going to work as a team to get that job done.

30. Rapport: Do’s and Don’ts • Do call the child by name – overly familiar nicknames like “buddy” or “sweetie” are condescending and will put the child on his or her guard. • Children are not stupid – they know when you are full of crap.

31. Best way to begin to understand a child’s cognitive abilities and frame of reference is through play. • Guess Who by Milton Bradley is an excellent tool. (Make sure you lose.) • Do not discuss abuse scenario while engaged in play.

32. Do not force the child to interact with you. • If the child doesn’t want to play or talk, play a game against or draw a picture with the care-provider that brought the child in for the session – the child will be involved within a matter of minutes.

33. At some point in the first session, you should find yourself on the floor, at the child’s level. • Ideally, you will have had some physical contact with the child, even if it’s just a handshake. • Importance of physical contact will become clear later.

34. Close the session by speaking about where you do the most important part of your job – the courtroom. • Get an idea of the child’s concepts re. judge, jury, elements of courtroom. • This is where you begin to create the language that will be used at trial.

35. Rapport: Speak the same language • Courtroom: Very special place. A place where people only tell the truth. • Judge: Like referee, or teacher in charge of classroom. In charge of courtroom. • Jury: Their job is to listen and make decisions. • Witness stand: “Truth chair” • Defense counsel: His/her job is to ask questions. OK to say you don’t understand or are confused. • Witness: A person whose job it is to tell the truth.

36. Use Rehearsal • As you continue to use these terms, you are encouraging the child to engage in the memory strategy of rehearsal: the repetition of items to be remembered.

37. STEP 2: Establishing Context • When preparing a child witness, the use of cues that reinstate the encoding conditions are of immense assistance to the child in retrieving relevant information. • Given that memory is enhanced every time it is accessed, be aware that you are re-encoding this memory when you speak about the abuse scenario with the child victim. • That’s why you’re headed to the courtroom for the second session.

38. Second session with child should occur within 2 weeks of first meeting. • Make contact with child in same location prior meeting was held. • Prior to this session, establish who the child would like to have in the courtroom for support while testifying. (Make sure they’re not on your witness list.)

39. Take child to the courtroom. Child’s support person should accompany you. • Recall what you know about the importance of context in accessing memory: your goal is to replicate trial conditions as closely as possible. • Have support person seat themselves in child’s line of sight from witness stand. That’s where they’ll be seated at trial.

40. Explore courtroom with child. Have them sit in Judge’s chair - ask if they remember what the Judge’s job is. If not, remind them using trial language. • Progress to jury box – same thing. • Witness stand should be taken only after child has satisfied their curiosity about the rest of the courtroom.

41. Show the child the podium and let them know that’s where you’ll be while you’re questioning the witnesses. Have them take the stand, and take up your position behind the podium.

42. THIS NEXT PART SOUNDS CORNY, BUT IT WORKS . . .

43. The Secret Handshake • Before you begin asking any questions, tell the child that some of the kids you’ve worked with have sometimes felt a little nervous or alone while they were in the Truth Chair. • Tell the child you have a secret handshake that you share with your kids to remind them how brave they are. Show them the handshake, and tell them that if they feel nervous or scared they should tell you, and you will come to them on the stand to give them the handshake. • The goal here is simply to provide the child witness with a brief physical contact with a person they trust. Often this contact alone is sufficient to break through the brain-freeze that extreme fear or nervousness can cause in a child witness at trial • Objectionable? You try to come up with legal grounds .

44. Keep questions simple at first. What’s your name? Who do you live with? What grade are you in? What’s your favorite color? Do you like school? Who is your teacher? • Get the child used to the rhythm and flow of question and answer before broaching the topic of the abuse.

45. STEP 3: Recounting the Abuse • First, establish your pronouns: is my hand inside or outside of my sleeve? Over or under my chin? On top of or underneath the book? • Real vs. make believe: If I told you that I was wearing a hat (presumably you will not be wearing a hat at this time) would that be real or make believe? Here in this room, we only talk about things that are real. • The final step in broaching the topic of the abuse is to apply concrete language to topics being discussed. Body feelings vs. heart feelings. • Body feelings: Cold, hot, hurt, tickles. • Heart feelings: Scared, sad, mad happy

46. Note: The foregoing series of topics and questions is precisely the same as the manner in which you’ll question the child at trial. Rehearsal, organization and elaboration. The child should not be surprised by anything that happens during your direct examination.

47. Next few questions here are critical. “Remember how I told you my job is to keep kids safe? I want to talk about times you might not have felt so safe. I want to ask you about (name of offender). Can we talk about him?” • REMEMBER: Child has already been forensically interviewed. There is no need to slog through this process w/ open-ended questions at this point. Your goal is simply to get the child talking to you about the abuse from the witness stand

48. IT TAKES AS LONG AS IT TAKES: You may have to come back to the courtroom 2 or 3 more times, or the child may be completely comfortable the first time out. • Whatever the case, only have them speak about the abuse scenario once or twice on the witness stand before trial. You don’t want them to lose affect.

49. Recounting the Abuse:Do’s and Don’ts • Never ask a child about dates. Use “markers”: birthdays holidays, seasons grade in school. • Never ask a child how many times something happened. They will look at you like you are speaking Mandarin Chinese. Find another way to establish frequency. • Never require a child to use your language – use their terms to describe body parts, locations, people. • Concrete vs. abstract thinking

50. Example: