OVC Provider Forum Transcript

Preparing Victim Service Providers and Children for Court
Victor Vieth  -  2008/3/26
Please help us with some responses (and guidelines) that can be used by professionals who are bound by law to confidentiality on certain issues ... as victim service providers, we may surely want to testify, but will feel limited in what we may be able to say. Thank you.
1.  Victor Vieth
 Your limitations will depend on your profession, the nature of the testimony, your ethical guidelines, and by federal and state law. There are, then, at least three things you need to do. First, acquaint yourself generally with federal and state privacy laws, such as HIPPA, and focus on the circumstances in which you can release information. Also, acquaint yourself with other statutes that may limit or require disclosure under various circumstances. If you are a mandated reporter, for example, state law may compel disclosure of information that leads you to suspect maltreatment. Second, acquaint yourself with any ethical guidelines that may be in place for your profession. There are ethical guidelines for nearly every profession. Dawn Wilsey, who now works for the Justice Department wrote a great article listing a number of professions and the ethical guidelines covering eachalong with a listing of where to access these guidelines on the web. Dawns article is entitled Ethical Obligations of Child Abuse Prosecutors and Allied Professionals: Understanding the Interconnection. The article is published in volume 17, issue 1, of Update, a publication of the National Center for Prosecution of Child Abuse and can be accessed through this web address: www.ndaa.orgThird, develop access to an attorney who can assist you with individual questions. If you are not an attorney, or even if you are, this can be a very difficult determination. Accordingly, it is important to develop a relationship with an attorney who specializes in this area and who can advise you when your obligations are unclear. If your agency does not have an attorney who can help, you may be the member of an association that can provide some guidelines through their counsel. At the very least, see if an area attorney with expertise in this area could provide a general workshop in which you can ask general questions. Please feel free to call me as well. If I know more about your specific work and the type of cases you are involved with, as well as your jurisdiction, I may be able to direct you more specifically. My direct dial number at the National Child Protection Training Center is 507-457-2894.
I know that the prevailing wisdom for many years now has been to limit the number of interviews for child victims by co-interviewing and simply keeping them to minimum. However, what concerns me is that some prosecutors can be unduly influenced by this principle and not conduct enough interviews to establish an effective rapport or properly prepare the child witness. How do we assist our prosecutors in adopting an appropriate balance? I understand that you can also "overprepare" children (and other witnesses), and that most cases do not go to trial. So these factors must also be taken into consideration.
1.  Victor Vieth
 As a general observation, we should limit the number of interviews about the abusive incident or incidents but this is not a one size fits all rule. Some children may not be able to disclose, or disclose fully, in an initial interview. Even if they can, the child may need counseling or other services in which the abuse will likely need to be addressed again. The key is to have well trained interviewers and other professionals who are aware of memory and suggestibility and other researchresearch which is of genuine concern. This research will also help determine the relative safety of speaking to a child more than once. For example, we are much more concerned about repeated interviews with a four year old than a fourteen year old. It is also important to keep in mind that, while we may need to limit the amount of times we speak to a child about abuse, this is different than speaking to the child about other things. When I was a prosecutor, I met with the child several times to develop rapport and to assist the child in understanding the courtroom process. Unless I meet with the child, I am less likely to know if the child needs and wants a comfort item, a support person, or various testimonial aids. As a prosecutor, I need to know these things ahead of time so that I can file the appropriate motions and ensure the courtroom is as comfortable as possible for the child. As a prosecutor, I only spoke to the child about the abuse once, and that was typically the day before the child testified. I know some prosecutors who never speak to the child about the abuse and I respect their concerns. I believe, though, it is important to see if the child will be able to speak about the abuse and its fair for the child to know what questions will be asked. When, though, the prosecutor speaks to the child about the actual incident, it is critical to have another party present so that, if the child says something new or different, that there is another person who can testify as to the statement if necessary. A prosecutor cannot be both a witness and the prosecutor.
Mr. Vieth, I have heard that your training is incredibly effective. In Massachusetts we have developed a network for law enforcement, adult protective service agencies, and direct care providers to work together to address abuse against adults with disabilities. Could your training be adapted to work with this population? Would you be open to working with a steering committee to address this?
1.  Victor Vieth
 At the National Child Protection Training Center, we have done some workshops on addressing the needs of children who are maltreated and who also have a disability. We have also done some training on investigating/prosecuting sexual abuse cases in which the victim is chronologically an adult but is mentally functioning as a child. These and other workshops could be expanded into addressing broader issues of elder abuse or abuse among adults with disabilities. When I was with the National Center for Prosecution of Child Abuse, we published several articles on working with children with developmental disabilities and children who are deaf or hard of hearing. The articles are published in volume 18, issue 5, and volume 19, issues 1 & 2 of Update and can be accessed at www.ndaa.org A number of the suggestions in these articles for working with children with disabilities would also apply to working with adults with the same or similar disabilities. A logical extension of the forensic interviewing courses we have helped establish around the country is to develop courses on interviewing maltreated adults who have a disability. We also assisted Winona State University in developing a minor on child protection. We have had some discussion that, eventually, we may want to add a certificate program or other course work addressing elder abuse. I would be honored to discuss these and other possibilities with you and to help in any way I can.
Please address confidentiality issues and subpoenas (including VAWA 2005 provisions) for domestic violence victim advocates who work with families involved with child protective services. We have domestic violence agency staff co-located with child protective services and serving only cps-involved families. Protecting victim confidentiality is a strong value for domestic violence agencies in our community, as is collaboration - and sometimes the two don't mesh!
1.  Victor Vieth
 I have four suggestions. First, it is important to develop a jurisdiction wide protocol for the handling of child protection cases which also includes the role for domestic violence advocates and what information you can, and cannot share. In this way, everyone knows up front what the situation is. Some years ago, I wrote a law review article, entitled In My Neighbors House that discusses the importance of such a protocol and attaches the protocol we developed in our jurisdiction. The article is published in volume 22 of the Hamline Law Review. If you e-mail me, I can send you an electronic copy. My e-mail is victor.vieth@ncptc.org Second, be very candid with your clients what can, and cannot be kept confidential. If, for example, you are a mandated reporter and must disclose abuse, let the clients you are working with know up front that those are not secrets that can be kept. If the client is court-ordered to work with you and the judge will require you to issue a report or be available to testify, let the family know that. Also, if there may be instances where you may be subpoenaed and the judge requires you to testify, let the client know this possibility as well. You may want to prepare a form detailing the limits to your confidentiality and go through this with your client early in your work with that individual. Third, have your disclosure and confidentiality policies reviewed by an attorney well-versed in the laws governing your jurisdiction and profession. In this way, you can have greater confidence that your policies are within the bounds of the law. Fourth, have on your shelf the treatise Myers on Evidence in Child, Domestic and Elder Abuse Cases, authored by John E.B. Myers and published by Aspen Publishers. This two volume treatise covers a great many of the evidentiary issues that are presented in child abuse, domestic violence and elder abuse cases. It is a great resource that may provide you with some guidance not only on the specific issues raised in your question but also with myriad other evidentiary or legal issues involved with these cases.
How do you prepare a child for testifying when there is very little support from family? I am a victim advocate in the DA's office and I often feel like I'm swimming upstream.
1.  Victor Vieth
 First, find out why the family is not supportive. It may be because they are understandably concerned that the child will be harmed by the court process. If so, show them research that court is not necessarily harmful long term to the child. The anxieties that are caused by court are typically alleviated through court preparation. For a summary of this research, see John Myers, Myers on Evidence in Child, Domestic and Elder Abuse Cases published by Aspen Publishers. Chapter three discusses this issue at length. Second, work with CPS or others to get the parents into counseling or some other support system. Many times parents may be reluctant to work with their child in preparation for court because of their own feelings of guilt surrounding the abuse. Third, if the family is not supportive in a particularly harmful way such as pressuring the child not to talk, or even to recant, consult with the prosecutor and/or child protection attorney and consider the legal options available to you. In extreme cases, such pressure may warrant removal of the child or even a charge of witness tampering.
To prepare a child victim for court, my current practice is to: allow them to watch their (previously) taped interview as often as they feel they need to; allow them to sit in various chairs in the courtroom, such as the judge's, juror's, etc. to get their perspective; allow them to sit in the witness chair while I ask a few questions (name, age, etc) to get them used to this; practice with them of not looking in the direction of where the defendent will be sitting. Please tell me your 'ideal' plan of preparing a child for court. Thank you! Invest. Vicky Moreno, Gering, Nebraska
1.  Victor Vieth
 I believe that everything you are doing is appropriate. Allow me, though, to add a few thoughts. If the child is very young he or she may not be able to understand the purpose of watching their videotaped statment. They may think it is a test they have to remember when they testify. Showing the tape to such a young child may also create memory and suggestibility attacks in court as the defense attorney argues we are trying to get the child to memorize a certain answer. For these reasons, I typically avoided showing the tapes to a young child. However, children who are ten and older are generally no more suggestible than adults and are more likely to understand the reason for seeing the tape. If so, I may show them the tape. Like everything, though, it is helpful to consult with your team. Seeing the tape again may cause the child emotional difficulties or otherwise be very traumatic for him or her. With respect to introducing the child to the courtroom, give him or her some options. For example, does the child want to sit on the witness stand or in front of the stand or somewhere else? If the child wants to sit on the stand but can't see over the bar do you want to add a pillow? Where does the child want their support person to sit and who do they want? Give the child some options and then file a pre-trial motion to make sure the judge will allow these modification. In addition to filing a motion to allow for these modifications, seek a court order requiring all the questions asked to young children be posed in a way the child can understand. Even if you lose this motion, you begin to educate the judge about question types that are confusing. When these questions are posed to the child at trial, you can renew your motion. At the National Child Protection Training Center, we have a number of sample motions and briefs on these sort of issues we can send you. I'm also working on a book chapter on court preparation. If you e-mail in a few weeks, I should have a completed copy I can send you detailing these and other suggestions.
2.  M Williams
 I pretty much do the same thing. I think it helps the kids a lot -- even older children who may be a little more sophisticated about the procedures.
If the defense and the judge allows it, how do you feel about letting the child who is testifying, have someone they trust sit next to them in the witness box/area. Thank you! Investigator Vicky Moreno, Gering, NE
1.  Victor Vieth
 In every case, we should ask the child if they want a support person present when they testify and, if they do, ask the child where they would like the support person to sit. In most states, statute and case law accords children this right. Obviously, the support person cannot coach the child and, if the support person is also a witness, the support person may have to testify before the child takes the witness stand. Apart from these limitations, children should be allowed to have a support person present when they testify. When I was a prosecutor, the support person would often sit next to me at counsel table. In that way, whenever the child was looking at me to answer a question the child could also see his or her support person.
Constantly asking a person to prepare themselves and retell their stories as court dates approach and get pushed back time and time again is not healthy, however, it is important to adequately prepare individuals for court to minimize the potential trauma of a trial. Do you have advice on how to balance preparation and allowing the victims to live their lives without being revictimized by the process?
1.  Victor Vieth
 In most cases, I believe it's important for the child to be working with a counselor who can assist the child in dealing with all the stressors in his or her life including the stress of testifying in court. The child's counselor can also be very helpful to the prosecutor in determining how quickly to prepare the child for court. In many cases, the defendant will plead guilty and there may be no need to prepare the child at all. Even when the child has to be prepared for court, the prepartion does not have to involve a discussion of the abuse. I never discussed the abuse with the victim until a day or so before trial. Even then, I did it only to make sure the child could go through the trial and out of fairness to the child to make sure he or she knew what questions I would ask. The child's counselor can also help the child in dealing with the anxiety associated with a court date that is pushed back. Although there will always be extraordinary circumstances in which a trial must be postponed, prosecutors should be vigilant in opposing continuances and in reminding judges that the government is also entitled to a fair trial. The government is not being treated fairly when continuances harm, emotionally or otherwise, our key witnesses.
1. What is the most challenging aspect about having a child testify? 2. Have you recognized errors made in their recollection of data? 3. What factor best determines whether the child is able to testify (in your opinion)as far as cognitive ability is concerned?
1.  Victor Vieth
 The most challenging aspect typically lies not with the child but with the attorneys who question the child in court. Most attorneys and most judges have very little training on asking developmentally appropriate and linguistically appropriate questions. As a result, many young children are declared incompetent to testify and even many older children are often confused by the questions posed to them. Accordingly, many offices require their child abuse prosecutors to attend a five day forensic interviewing program, such as Finding Words. It is also critical to file a motion with the court seeking a court order that every question posed to the child, including those from defense counsel, be asked in a way the child can understand. In terms of recollection of data, children, just like adults, may have difficulty remembering peripheral details and may mold several abusive incidents into one. Again, though, well trained prosecutors and other attorneys who are aware of these issues can avoid asking questions that call for information that will be difficult for the child to relate. In terms of the best factor in determining if the child can testify, I think a prosecutor who speaks to the child the day before trial and discusses their testimony will know at that time if the child can go through with it. Before that time, there are simply too many variables. Having said this, though, it is important to remember that nearly all children, even very young children, can testify if they are properly prepared. Sometimes, we are too quick to dismiss a case or plea bargain it down out of fear the child cannot testify or testify effectively.
Concerning Coporal Punishment, can children differentiate between a spanking and a beating of violence, if the action left no evidence, marks or bruses, broken bones or other mental conditions that will permanently damage the child(ren)'s behavior in the future?
1.  Victor Vieth
 In every state, parents have the right to use reasonable force on their children. The difficulty comes in determining what is reasonable. Case law gives us some guidance on this issue. Factors such as the number of blows, the location of the blows, and the words that accompany the blows are some factors that help judges and juries resolve that question.With respect to children, they are not in a position, nor does the law require them, to evaluate the reasonableness of what is done to them. Instead, the forensic interviewer should explore the facts, in as much detail as possible, with the child and let the team determine if any action by the government is warranted. Some years ago, I wrote a detailed law review article exploring these issues. The article is entitled Corporal Punishment in the United States: A Call for a New Approach to the Prosecution of Disciplinarians. The article appears in Volume 15 of the Journal of Juvenile Law (1994). If you can't find the article through your local university, feel free to e-mail me. I don't have a copy of it electronically but I'd be happy to send or fax you a copy of the article.
As an advocate in the District Atty Office, I just started working with children who have to testify in court. Working with children has never been my area of expertise, but I do want to be able to provide the best service ever. Any suggestions or tactics that can be used when working with 5-10 year olds who have to get on the witness stand and testify against the defendant?
1.  Victor Vieth
 I've suggested in some of my other responses some books and DVDs that may help you with this process. If you are in a state that has a Finding Words program, you may want to attend that and gain a deeper appreciation of the art and science of speaking with children. Finding Words courses also include some excellent instruction on preparing children for court. I can also recommend a terrific law review article entitled Psychological Research on Children as Witnesses: Practical Implications for Forensic Interviews and Courtroom Testimony. The article is authored by John Myers, Karen Saywitz and Gail Goodman and was published in volume 28 of the Pacific Law Journal (1996). If anyone in your office is a graduate of a Finding Words course, this article is the binder. If not, you can access the article through LEXIS. If that doesn't work, e-mail me and I can provide you with a copy. The article is full of practical suggestions that may help you.
When seeing their abuser for the first time in Court, we've noted that many of our victims either freeze up (like a rabbit in the headlights) or downplay their abuse experience out of fear or the rekindling of affection for their abuser. What methods do you suggest to help prepare the victim for their emotional responses? Is role playing ethical? Please discuss the boundaries between advocating/helping the victim versus tampering with a witness.
1.  Victor Vieth
 My colleague at the National Child Protection Training Center, Tom Harbinson, has written an excellent article on this subject. The article is published on-line in volume 2(2) and volume 2(3) of the newsletter Reasonable Efforts. You can find it on line at www.ndaa.org (click on the publications section and go to Reasonable Efforts). If you can't find it, e-mail me and I can send you a word copy. Also, feel free to call Tom for additional advice specific to any case you may have coming up in which you are concerned a child may freeze on the witness stand. Simply call our office at 507-457-2890 and ask for Tom Harbinson.
I have discovered limited resources in helping to prepare children for court. What materials, i.e. coloring books, videos, games, etc. would you suggest to utilize in preparing child for testimony?
1.  Victor Vieth
 SAGE publishes a book by Lynn Copen called Preparing Children for Court which comes with a workbook that includes forms you can duplicate for usage with the children you may be working with. In terms of videos, the National Children's Advocacy Center in Huntsville is producing a DVD to help children understand the court process. I have seen the DVD and believe it is very good. If you wish to contact NCAC to learn when the DVD will be done and how to obtain a copy, you can reach them at:National Children's Advocacy Center, 210 Pratt AvenueHuntsville, AL 35801 Phone: (256) 533-KIDS (5437)
Can you help me so that when I appear in court I can present my observations and analysis? Some of the time their are objections that what is said in session with my clients is hearsay. I want to know the best form to present their reality.
1.  Victor Vieth
 The rules of evidence are very complicated and the rules surrounding hearsay are particularly troublesome. Lawyers spent three years in law school attempting to master these rules and the learning process never ends. The basic rule, though, is this. Anything the child says to you which you repeat in court is hearsay and not admissible. This is assuming, though, that you are offering the child's statement for the truth of the matter asserted. Let's say, for example, the child told you he was sexually abused and you are offering the statment in court as proof the child was sexually abused. If so, the statement is hearsay. If, though, you are offering the statement for another purpose, it may be permissible. If, for example, you are offering the statement to show the child has been consistent in his/her statements. Also, if the child's statements are critical to you in making a psychological diagnosis, they may also be admissible. There are a number of other exceptions as well. In order for you to get a better handle on the rules surrounding hearsay, I suggest three things. First, e-mail me and ask for my paper on hearsay. I have a ten page primer that may be helpful to you. Second, always discuss your testimony with the prosecutor ahead of time and ask him or her to advise you on possible objections to your testimony and what, if anything, can be done to overcome those objections. Third, after the trial, ask the prosecutor to explain to you why certain testimony was not allowed. If you do this consistently, your knowledge of the hearsay rules will steadily increase. Don't be dismayed if you find that judges rule inconsistently on these issues. Some judges interpret the hearsay rules more liberally than other judges.
I am brand new to my Victim Advocate position, and I just began to see clients. Is there a right or wrong way in preparing a victim for testimony? Or what methods have been most successful in preparing them. Especially younger children or teens with hesitation to want to testify.
1.  Vli
 I am new to this position and an agent at a state level law enforcment office. I would like to interact with others in this position at the state and federal level as this seems to present unique challenges. ANy ideas?
2.  Victor Vieth
 In my response to other inquiries I've offered a variety of suggestions and recommended various articles and resources. One thing I haven't mentioned yet is the possibility of developing a Kids In Court program in your community. This program is one in which all children, young or old, are referred to and learn more about the court process. The program never discusses the abusive incident but does help children understand the court process. The program is open to all children who may testify, including those called by defense attorneys or those who may testify in civil court. The program can even be established under the auspices of the court. For more information about establishing such a program, please review an article by Martha Finnegan entitled Creating and Administering a Kids Court Program published in volume 15, issue 5 of Update. You can find the article by clicking on www.ndaa.org and then clicking on the publications section and then clicking on Update. You then simply scroll down to the articles published in 2000 and you will find it. If this doesn't work, e-mail me and I'll make sure you get a copy.
What are the guidelines related to Victim Advocates testifying in court and speaking at the sentencing?
1.  Victor Vieth
 As for any witness, it is important to consult with the prosecutor or child protection attorney before you testify. Find out, for example, if you will testify as a lay witness or an expert witness or both. A lay witness testifies as to facts you are aware of--such as emotions you may have seen in the child. An expert witness educates the judge or jury as to a relevant issue. In some jurisdictions, victim advocates have been allowed to testify as an expert witness. For example, an advocate may testify as to why court prepartion may allow a child to testify without crying or otherwise losing control of their emotions. This could be important because research shows jurors expect children to react emotionally when they testify and, if they don't, some jurors assume the child is not credible. There are wide variations, though, in how far you can go in testifying and some of this will depend on the type of court you are in (civil or criminal). For all of these reasons, it is essential to go over your testimony with the prosecutor before trial.
Do you have any suggestions that are specifically targeted at preparing persons (including children) with mental disabilities for court? Particularly when we have a sexual assault charge, we are required to both prove that the victim is "mentally defective" as well as being a competent witness. It seems like we are trying to prove two opposite facts. Explaining this to victims and their parents is often difficult too.
1.  Victor Vieth
 Laura Rogers, who now Directs the SMART Office for the Department of Justice, wrote a great article on this subject. Her article is entitled Successful Prosecution When the Sexual Assault Victim is Mentally Impaired. The article appears in volume 12(11) of Update (1999) and can be accessed at this web site: www.ndaa.org When you get to the site, click on the publications section, and then click on Update and then scroll down to the articles from 1999. If you can't find it, send me an e-mail and I'll make sure you get a copy.
Could you address the current state of privacy shields and closed circuit television for use in open court settings when questioning child witnesses? How is the balance maintained between victim privacy and open court policies?
1.  Victor Vieth
 With respect to closed ciruit televsion, the United States Supreme Court, in a case called Maryland v. Craig continues to allow for this procedure. However, the court must find that closed circuit testimony is necessary and that, without it, the child would be unduly traumatized. This is a very difficult burden for the government to meet. In many instances, the government may find it difficult to meet this burden unless the child actually sits in the witness stand and demonstrates he or she cannot testify. With respect to privacy shields, it is doubtful they could be upheld. However, courts have allowed the prosecutor to turn the child's chair from the defendant so that the child does not have to see the defendant. However, you can't turn the chair completely around so that only the child's back is visible to the defendant--that would violate the defendant's right of confrontation. For a more detailed discussion of this, I refer you to chapter three in John Myers' treatise Myers on Evidence in Child, Domestic and Elder Abuse Cases.
How effective is having children draw their family portraite in a custody or child abuse case?
1.  Victor Vieth
 Drawings can be very helpful to children. It allows them to express themselves more freely. Some children may be better at drawing than telling. Drawings may also allow the child to ease the anxiety in the forensic interview room by allowing the child to focus on a piece of paper rather than the interviewer. We as adults use drawings, maps and other materials to communicate. Why would we deny these tools to a child who may need them even more than we do? For more information about the value of drawings, Grant Bauer and Barb Hiltz wrote a great article entitled Drawings in Forensic Interviews of Children. The article is published in volume 16, issue three of Update. You can find the article by visiting the web site www.ndaa.org. Simply click on the publications section and then click on Update. Once there, scroll down to the articles published in 2003. If you can't find it, send me an e-mail and I'll make sure you get a copy.
Since Crawford, we have to put every child victim on the stand. Our judges, however, find that (in and of itself) sufficient for "opportunity for cross" even when the child freezes. What is your experience in other jurisdictions?
1.  Victor Vieth
 A defendant does not have the right to an effective cross-examination of the child, only the ability to confront the witness through cross-examination. Accordingly, when a child cannot answer because of memory difficulties or other factors, the defendant may nonetheless have had the opportunity to confront the witness. See Deleware v. Fensterer, 474 U.S. 15 (1985). This is not an easy question, though. If a child absolutely refuses to answer questions during cross-examination, this may trigger a violation of the confrontation clause. See Commonwealth v. Kirouc, 542 N.E.2d 270 (1989).
Recently, I was asked ("could your work with the children be considered Psychological preparation for court?") Some attorneys do not want the child to be prepared, through therapy, for this traumatic event. Do you believe that they are retraumatized during court hearing?
1.  Victor Vieth
 Some have argued that abused children should not be placed in therapy until after the case is resolved. Those who express this view are worried that placing the child in therapy will create memory and suggestibility issues that will be used by the defense attorney to attack the child's credibility. I strongly disagree with this view. First, if a child wants or needs therapy, it is unethical for the team to withhold this treatment. Second, therapy often makes the child a much stronger witness. This is because the child is better able to handle the anxieties in his or her life. Third, the therapist may be able to provide additional evidence to the prosecutor. If, for example, the therapist diagnoses the child with PTSD or other conditions, some states will admit the diagnosis as being consistent with trauma the child endured.
Sometimes during forensic interviews, older children and teens will ask about what happens next. As forensic interviewers, is there anything specific we should be telling the older kids and teens who do not ask, as to prepare them for the possibility of court?
1.  Victor Vieth
 Although children should be advised what happens next, the forensic interviewer is not the one who will be typically making this decision. Social services will be determining if the child is taken into protective custody, the police will be determining if a perpetrator needs to be arrested and a proseuctor will be determining if a case will be filed. Accordingly, the forensic interviewer should truthfully say he/she doesn't know what happens next but instead promise the child that someone will discuss this with them. If the forensic interviewer makes this promise, though, she should make sure that an appropriate member of the team is assigned to address these issues with the child.
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