Thursday, September 6, 2007

The Advocate

Richard Blassberg

Taking A Closer Look At A Piece Of Child Witness Judicial Legislation

Governor Spitzer has signed legislation authored by Assemblyman Adam Bradley (D-White Plains) that will improve the safety and wellbeing of children who testify in court proceedings (Ch. 548 of 2007).

“Sometimes, children must testify in court and that can be a terrifying experience,” said Bradley. “It can cause severe emotional stress and that is why courts in rare circumstances have allowed these children to testify out
of the courtroom. However, I felt that not enough kids were being afforded this opportunity because of a technical requirement in the law.”

Currently, child witnesses can be afforded the right to testify out of the courtroom by a two-way closed circuit television if there is extraordinary circumstances and if testifying in court would cause “severe mental or emotional harm.” However, Bradley noted that this standard does not protect enough children who might suffer substantial emotional or psychological harm if forced to be present in the courtroom. His measure would eliminate the extraordinary circumstances requirement and allow judges more leeway in determining if a child witness should be offered the right to testify out of court through closed circuit television.

“My goal was to provide better safeguards for these vulnerable witnesses while making sure that the testimony remains valid,” continued Bradley.

“This measure does both. By increasing the opportunities for child witnesses to testify out of court through closed circuit television, we are ensuring that they feel safe in a secure environment and that the courts can still obtain vital evidence.”

The legislation will also allow district attorneys to more aggressively prosecute cases. In difficult circumstances where specific charges require children to testify in court, possibly against their abuser, a district attorney may reduce the charges to lessen the emotional stress on a child who has already been traumatized. “In pursuing justice, the DA runs the risk of further victimizing the child by having him or her testify in open court against
the alleged abuser,” said Bradley. “My measure gives the child the emotional safety of testifying in a manner, out of the reach of the perpetrator, while providing the DA the evidence he or she needs to make the case.”

Assemblyman Adam Bradley is quite correct in his observation, “sometimes children must testify in court and that can be a terrifying experience.” However, one must be very careful when attempting to legislate any change in the judicial environment, particularly those changes most likely to influence the protocols and procedures in the criminal court realm as opposed to the civil part.

Bradley asserts that having to testify in court, “can cause severe emotional distress for children.” The first question that must be addressed involves the upper limit, by age, of those minors who are eligible for treatment
under this new legislation. In other words, who is being designated a child? Will the limit be 14, 15 or 16? The second question involves the definition of what Bradley calls, “a technical requirement in the law.”

Now, it’s important to distinguish between the various circumstances under which a child might be called upon to testify in court. Obviously, the most traumatic and emotionally charged situation is that in which the child is a victim/witness; a criminal act has been committed against him/her. A second circumstance, not as traumatic, in most cases, from the standpoint of potential courtroom testimony, involves a criminal act to which he/she was somehow a witness, but not the victim. Of course, the victim may very well be the child’s mother, father, sibling, grandparent, etc.; and such relationships are also capable of producing a strong, emotional reaction from a juvenile observer of violence or, possibly death.

However, a violent enough act against a total stranger can be extremely traumatic for a young witness to recount as well. Children need not be testifying in a criminal court to experience something terrifying in the witness box. Divorce between a child’s parents is a terrifying, emotionally-charged ordeal, even without having to testify
and, in effect, choose sides between the two most important people in his life. Testimony under that scenario is a bad scene that keeps getting worse.

Thus, the matrimonial court is fraught with trauma and sadness for even the strongest of kids. Perhaps the only judicial environment not inherently painful and emotionally loaded for the child witness is civil court in an action where the parties are unrelated and, better yet, unknown to the child. However, that is the rare instance likely to bring a child witness to court. And, it would be foolish to overlook the nervousness of appearing as a witness
in the unusual environment of any courtroom from a child’s perspective regardless of the cause of action.

Contacted, Assemblyman Bradley declared, “The legislation does two things.” He explained, “It protects children as much as we are able to and gives DAs better opportunities so they will not have to substantially reduce charges to levels not commensurate with the crime.”

Specifically, Bradley’s legislation was intended to lower the bar, the threshold of proof, previously adhered to in New York State, required to move a court to permit a child witness to testify from a remote location by way of closed-circuit television. Under the new modifying legislation, a judge need no longer find “extraordinary circumstances,” coupled with “severe emotional or mental harm.” Under the Bradley bill, that comports with the Federal Standard, as enunciated by the Supreme Court, extraordinary circumstances has been totally eliminated, and severe mental or emotional harm has been reduced to “serious harm.”

Of course, under the new standard, while cross-examination is still possible, if somewhat filtered and diluted, confrontation of one’s accuser by the accused, a fundamental Constitutional right, is totally, and intentionally,
eliminated. Perhaps, in a perfect world, where prosecutors are not all about winning at any cost, and where “protecting the innocent” is as respected and pursued as “prosecuting the guilty”; perhaps under those conditions I would be more comfortable about this bill.

However, in the real world, all too often prosecutors could care less about the search for the truth or about serving the ends of justice. For far too many it’s all about winning, and obtaining a conviction by any means.

For such self-serving prosecutors, unfortunately far too many in number these days, any legislation, no matter how well intentioned, that more easily negates or nullifies as fundamental a protection as the Confrontation
Clause, is something to be wary of.

In conversation with Bradley, I raised the question about age, specifically the age beyond which a witness can not be deemed a “child” for purposes of his legislation. The Assemblyman was not certain, without the
legislative package before him.

In the hands of a divisive, manipulative prosecutor, a 14, 15, or 16- year-old boy or girl is capable of delivering a pre-choreographed fiction, particularly if the accused is in another room, and the cross-examination is by remote control. Yes, it is important, very important, to relieve the stress and trauma that many children experience when compelled to testify in court. But, given the frequency of prosecutorial misconduct in both state and federal courts these days, we cannot be too careful when legislating the delicate balance that must be maintained between prosecution and defense.

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