Courtroom Strategies
and Challenges
Western Regional Training Program
ABA Center on Children and the Law
March 31, 2009
Modifying Traditional
Courtroom Procedures
 Courtroom closure
 Use of support persons to accompany child
during in-court testimony
 Limit the length of in-court testimony
 Require developmentally appropriate
questions
 Modify courtroom logistics
CCTV and Recording Technology
 Use of videotape to record pre-trial interviews
or statements, full scale depositions or other
sworn testimony
 Use of CCTV
Advantages of CCTV
 Child can testify in more relaxed environment
than courtroom
 Can testify outside physical presence of jury,
spectators and defendant
 Disadvantages of recording testimony before
trial do not apply (i.e., defense preparation,
newly-discovered evidence)
 Enables testimony of child who may be
unable to testify with defendant present
Disadvantages of CCTV
 Televised image not as effective (“watching
television”)
 If defendant’s presence required in room,
may be more intimidating
Overcoming Challenges to CCTV
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Not necessary procedure in this case
Prejudicial to defendant
In violation of confrontation clause
File motions in limine to craft conduct of
defense attorney
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Not use inappropriate questions
Use age/developmentally appropriate
language
Language/questions that are not designed to
“trick” the child
Preliminary Hearing
 Motion to remove child witness from courtroom and allow
testimony re: CCTV
 Expert or other testimony that child witness would undergo
further emotional trauma if compelled to testify in courtroom in
presence of defendant
 Williams v. U.S., 859 A.2d 130 (D.C. 2004)
 Taking 5 y.o. victim’s testimony by CCTV after she had
already begun testimony in court not error
 Unsuccessful attempt was added if not compelling
assurance of necessity or procedure to prevent trauma
 Trial court at least attempted to afford usual trial
confrontation
 State v. Marcantel, 756 So.2d 366 (La. Ct. App. 3d Cir. 1999)
 Defendant waived constitutional right to confront victim by
stipulating at show-cause hearing that child could testify via
CCTV
Minimal standards for CCTV
 As minimally intrusive as possible
 Defendant able to privately communicate with his
attorney
 Camera is focused in such a way to provide jury with
clear image of the witness, examiner, and any other
person present within examination room
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U.S. v. Etimani, 328 F.3d 493 (9th Cir. 2003)
 Placement of monitor behind and to left of victim
instead of directly in line of sight acceptable when
monitor was large, positioned so that victim could see
it and its presence was called to her attention, and jury
could se whether she looked at monitor during
testimony
CCTV Minimal Standards
 Must be capable to providing opportunity to observe
witness’ demeanor by providing clear and accurate
sounds and images to defendant, judge, jury and
public
 Manner in which transmitted instilled in witness sense
of seriousness of testimony
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Not required to see and hear defendant
State v. Manley, N.W.2d 275 (Minn. 2003)
 Court may order that CCTV testimony be taken so that
defendant can see and hear child in person and
communicate with attorney but child cannot see or
hear defendant
Advantages of Recording Interviews
 Prosecutors can introduce recording in
addition to in-court testimony
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Jurors can see child talk about abuse in nonthreatening surroundings
May record spontaneity, emotion or detail
missing in later descriptions
 May be used at grand jury instead of child’s
testimony
Advantages of Recording Interviews,
cont’d
 May be used to support preliminary showings
before trial (i.e., need for special procedures)
 Can refresh recollection before trial
 May be used to impeach victim if she recants
on witness stand
 May be used, if admissible, to corroborate
child’s testimony
Disadvantages of
Recording Interviews
 Other out-of-court considerations will receive
less consideration because not recorded
 Defense counsel can use ineffective interview
to argue improper techniques
 Recorded denial or recantation can be
replayed for jury, damaging the prosecution’s
case
Advantages of Recorded Testimony
 Pre-trial deposition could be used to refresh child
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victim’s recollection
Could be used as evidence of prior consistent
statement
May be used to impeach victim if she recants on
witness stand
As substantive evidence if victim recants at trial
May be used if child unable to testify at trial with
defendant present
Can make the victim real to the jury (facial
expressions, gestures, pauses not conveyed by
written transcript)
Disadvantages of Recorded Testimony
 Lacks immediacy and persuasive impact of
live in-court testimony by victim (“watching
TV”)
 Enables defense to prepare its case with prior
knowledge of crucial testimony
 If additional evidence comes to light,
defendant may have right to cross-examine
child victim again Some states allow
presence of defendant; may be even closer
than in court
Policies on Whether to Record
Interviews
 Jurisdictions vary on whether to videotape
interviews; a few require it
 If you are going to record, best to have
professional interview protocol
 Recording not panacea for bad interview
protocol
 Example: multi-victim cases
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Control point
Each individual interviewer cannot share
information
Overcoming Challenges to Use of
Recording Technology
 Challenges to interviewing protocols
 Are they consistently followed?
 Were they followed in this case?
 Common current attack on state’s case for only
recording this witness, trying to raise issue that even
state has concerns re: veracity of witness
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Response: provides clear evidence that did not use
leading/suggestive questions
 Pre-trial motion to stipulate recording coming in pro-
forma: no arguments can be made in front of jury
 Must look to hearsay rules to determine when
recorded statements can be introduced
 Know what you are dealing with
Necessity for Recorded Testimony
 Young v. Macy, 21 P.2d 44 (Okla. 2001)
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Before ordering CCTV or recorded testimony, court must find
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Use of special procedure is necessary to protect welfare of
particular child
Child would be traumatized not by courtroom but by presence
of defendant
Emotional distress more than de minimus
 State v. Alterisi, 702 A.2d 651 (Conn. 1997)
That 5 and 3 y.o. victims had been threatened with violent
harm by defendant and were “deathly afraid” of him was
clear and convincing evidence of need to videotape
testimony outside of defendant’s presence
 State v. Correll, 973 P.2d 197 (Kan. 1998)
 Trial court must make individualized finding that in-court,
face-to-face testimony of child victim would so traumatize
child as to render child unavailable or would prevent child
from reasonably communicating
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Defense Challenges generally
 Any good defense counsel will find something
 Be prepared to respond to each possibility
 Defense motion to suppress
 Memory
 Attacks on ability to remember, relate and tell
truthfully
 Suggestibility
 Result of leading questions
 Who prepped the child?
 Process challenges
Defense Challenges on Process
 Certification of equipment
 Ensure equipment is functioning before trial
 Date/time stamp
 When was the interview stopped?
 When was it interrupted?
 When did it resume?
 Chain of custody: “best evidence” of interview
 Appropriate training of evaluator/interviewer
 Sponsoring the interview: have the person available
to be cross-examined
Fabrication
 Once a child is attacked as fabricating
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Bolster testimony through
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Character witnesses
Teachers
“always reliable but for this trauma”
Prior consistent statements
Challenges based on Hearsay
 Recorded interviews and recorded testimony
are hearsay
 Testimonial statements: Crawford v.
Washington
 Child must be made available for crossexamination at some point
Hearsay
 Out-of court assertions offered to prove the
truth of the assertions
 Any other statements are not hearsay
 If child unable to testify, may be only way to
establish corpus delicti
 Hearsay statements give more complete
picture of the alleged abuse, as well as
process and context of disclosure
 Many judges and attorneys do not
understand hearsay well, so be prepared
Non-Hearsay
 Not every out-of-court statement is hearsay
 If not intended as assertion, then not hearsay
 Can be offered for purpose other than truth of
their content
Examples of Non-Hearsay
 Non-assertive conduct or verbal acts
 Prompt complaint/outcry
 Prior consistent statements
 Prior inconsistent statements
 Statement of identification
 State of mind of declarant
Non-assertive conduct or verbal acts
 Child’s sexual play with dolls observed by
adult prior to questioning
 Statements while sleeping
 Crying at mention of defendant’s name
Prompt complaint
 Permits first person the child told about the
sexual abuse to testify that he/she was told
and why
 Offered to corroborate victim’s testimony
 Some states allow what was told, others don’t
 No absolute rule on time: up to 18mos upheld
 Helps explain how the case originated
 Helps explain chain of events
Prior Consistent Statements
 Federal Rules of Evidence
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Express or implicit charge of recent fabrication
or improper influence allows admission of prior
consistent statements as substantive evidence
 Pre-trial statements made to friends,
caretakers, CPS workers, police, therapists,
etc.
 Admissible to rehabilitate credibility following
impeachment
Prior Consistent Statements cont’d
 Be alert to any implication of lying or fabrication,
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especially in opening argument
Details of statement admissible if consistent with trial
testimony
Perfect consistency not required
Repeated use may be limited so as not to bolster the
testimony improperly
Statement must pre-date events alleged to have
caused fabrication
If admitted for rehabilitation, may get limiting
instruction to jury that the statement is not
substantive evidence
Prior Consistent Statements cont’d
 Examples
 The therapist showed you how to play with the dolls,
didn’t she?
 The police officer gave you candy after you talked to
him, isn’t that right?
 Was your mommy happy when you told her what
happened?
 Be prepared
 Use details
 Provide origin and circumstances of the statement
 Is the statement recorded?
Prior Consistent Statements
 Most important when the victim recants
 If made under oath (i.e., trial, deposition,
other sworn testimony) are NOT hearsay
under Fed. Rules Evid. and are admitted as
substantive evidence
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Be aware of civil proceedings
 Some states designate these statements as
hearsay but admit them as an exception
 Know your state rules of evidence
Other non-hearsay
 Statement of identification
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Statement that identifies defendant not
hearsay if child testifies at trial and is subject
to cross-examination
 State of mind of declarant
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Circumstantial evidence of state of mind
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Statement during nightmare
“Firmly rooted” exceptions to Hearsay
 Considered inherently reliable
 Requirement of availability for some, not for
others
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Spontaneous declaration
Medical treatment or diagnosis
 Made in context providing substantial
guarantees of trustworthiness
 Even incompetency ruling should not bar use
of these statements
Examples of “firmly rooted”
exceptions
 Excited utterances
 Spontaneous declaration
 Fed. R. Evid. 803(2)
 Criteria
 Event or condition that startles or excites the child
 Statement must be made while still under the stress of
that excitement
 Statement must relate to the startling event
 Critical factor is lack of opportunity to fabricate
 Statements made for purposes of medical diagnosis
or treatment
Statutory Child Hearsay Exceptions
 State statutes
 Fed. R. Evid.
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“residual exceptions” allowing statements that
have “equivalent circumstantial guarantees of
trustworthiness”
 Statutes frequently require that child
declarant either testify at trial or be found
unavailable before nontraditional hearsay
evidence may be introduced
Indicia of Reliability
 Statements were spontaneous
 Legal competency of child victim (incompetence does
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not make statements per se unreliable)
No motive to fabricate
Not products of extensive interrogation with leading
questions
Made immediately after incident
Unique and plausible and not within experience of
young victim
Used age-appropriate terminology
Victim did not agree with everything questioner said
Crawford: only indicia of reliability for testimonial
statements is cross-examination
Child’s Unavailability
 Traditionally accepted reasons
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Refusal to testify
Lack of memory
Death
Physical illness
Incapacity
Mental disability
 Reluctance to testify may not be enough
Managing Impressions to Jury
 Always be mindful of impression on jury
 Craft closing argument
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How will the recording or CCTV fit into case
How will it play to the jury
“Would have loved to have the child here to
testify, but for the defendant’s actions”
 Try to use statements closest to time of
event/abuse
Importance of Vertical Prosecution
 What is vertical prosecution?
 Why is it important?
 Enhances child’s trust in the process
 Decreases child’s confusion
 Ensures prosecutor’s fullest knowledge
 Increases prosecutor's effectiveness
 Reduces number of interviewers
 What if you cannot use it?
 Find some other way to ensure continuity for
the child
Contact Information
Eva J. Klain
ABA Center on Children and the Law
740 15th Street, NW
Washington, DC 20005
(202) 662-1681
KlainE@staff.abanet.org