Can Police Question a Child Who Has Witnessed or Been a Victim of a Crime?

Like adults, children may refuse to talk to the police. Even with a willing child, officers and investigators must be very careful not to intimidate or influence the child.

Police are free to approach and question any child who may have witnessed or been the victim of a crime, just as they can contact and interview an adult. Police can question a child without a parent present and are not required to obtain permission from a parent before questioning the child.

However, if a parent is present when the police approach the child or police ask permission in advance, a parent can refuse to allow the child to be interviewed. A lawyer (hired by the parent) also can refuse an interview on a child’s behalf.

Children themselves can refuse to be questioned and can also request that a lawyer or a parent be present during any questioning. If police, including officers on the street and school police officers, begin questioning a child and the child requests that she be allowed to call a parent or have a parent present, the police should stop and allow her to do so.

This article addresses the topic of police interviewing children as witnesses or victims of crime. For information on police questioning children about possible involvement in criminal activity, see, Can the Cops Question My Child About a Crime?

Why Parents Refuse Permission

Parents may be hesitant to allow their children to talk to police about a crime for many reasons. As a parent, you might be concerned that police questioning and being part of a police investigation or criminal case could have a traumatic effect on your child. In some situations, a parent might worry about someone retaliating against the child. If the crime was violent and recent, many parents will focus on keeping their child calm and safe, and will expect that talking with the police will further upset the child.

Overriding Parents’ Decisions

Most of the time, you have the right to make choices for your child about whether the police will interview him or whether he will become involved in a criminal case. If you have your child in counseling and the counselor agrees that a police interview could traumatize or otherwise harm your child, the police and prosecutor’s office probably will respect your wishes, but this is not automatic or guaranteed in every case.

In certain cases or circumstances, the police may think it is your legal obligation as a parent to cooperate with an investigation. If a step-parent is suspected of improper behavior with your child, for instance, the police and other authorities may find it suspicious if you do not make your child available for interviews. Police could make a referral to child protective services if they feel you are protecting someone else and not acting in your child’s best interests, which is your legal duty. The police also might threaten you with criminal charges such as obstructing a police investigation or child neglect (for failing to pursue criminal charges against an offender who victimized your child).

Responding to Police Requests

If you have questions about allowing police to question your child about witnessing or being the victim of a crime, contact an attorney for advice about how to handle the situation. An attorney will know whether you must allow police to interview your child and what safeguards the police must use to avoid traumatizing your child.

If you believe your child witnessed or was the victim of a crime, it also is advisable to contact a children’s mental health professional for advice on how to help your child, or for treatment for your child. Remember, though, that mental health professionals also have a duty to report. If your child discloses abuse or criminal activity to the therapist, he may be required to report that information to authorities. Be sure to discuss this in advance with any mental health professional you allow to treat your child, so that you will be familiar with the rules and procedure.

Interviewing a Child Witness

If a child has witnessed or been a victim of a crime, the police need to be careful about how they talk to and question the child. Interviewing or interrogation can be traumatic and might cause the child to shut down and stop sharing information. Questioning by an authority figure or any adult also can influence a child’s memory or interpretation of events, or even what he says about an event.

The police must view any person with information about a crime as a possible witness at trial. If the person with information is a child, the police do not want to do anything that might cause that child to no longer be willing to talk to police or authorities about the crime. Police also do not want to handle interviewing the child in any way that might damage the child’s credibility. For instance, a defense attorney might argue that the form of questioning in an interview influenced a child witness and made her testimony so unreliable that she should not be allowed to testify.

If police need to question a child about suspected or alleged physical or sexual abuse, or if the child witnessed a very traumatic event, police normally refer the interview to professionals or an agency that has facilities and equipment for interviewing children. Many communities have “safe houses” for interviewing children, or offices with children’s furniture and toys, where the interviews are conducted only by professionals who are specially trained in techniques for interviewing children. The techniques, such as open ended questions, are designed to obtain as much information as possible from the child without improperly influencing or traumatizing the child. (An “open ended” question is one like this: “What happened after you got into the car?” A leading question, by contrast, sounds like this: “When did the defendant place his hand on your knee?” or “Did he unbutton your blouse?”)

Some states have special statutes that address the rights of child victims and witnesses. These laws may require, for instance, that the child be permitted to have a victim’s advocate or other support person present at any interview with the prosecution or police.

Children Testifying at Trial

Many states and the federal government have laws that address child victims and witnesses who testify at trials. Some laws permit children to testify with a support person present and even allow the child to sit on that person’s lap during the testimony. Some laws allow a child to testify by closed-circuit television or video deposition with the court’s approval. Closed-circuit television allows the child to testify without being in the same room as the defendant. A video deposition allows the child to testify outside the courtroom but with the defendant present. The United States Supreme Court has held that a state law allowing a child to testify by closed-circuit television does not violate the defendant’s right to confront the witnesses against him. Special arrangements for the child do not violate the defendant’s rights as long as:

  • there are safeguards to ensure the reliability of the testimony (the defendant’s lawyer is allowed to be in the same room as the child and cross-examine the witness), and
  • the special form of testimony is necessary to protect the child—for instance, when testifying in the same room may seriously traumatize or destabilize the child (be more than just uncomfortable or upsetting).

A child witness also could be allowed more breaks than an adult while testifying—if necessary. In some courts, judges allow the child to be accompanied by a courthouse dog—a dog specially trained to help children and other vulnerable witnesses feel calm and safe at the courthouse and during testimony. (This practice, however, is controversial. Defense attorneys may argue that the sweet sight of a child cuddling a lovable dog predisposes the jury to believe the child, to the detriment of the defendant.)

For a complete article on children testifying in criminal and civil proceedings, see Can a Judge Order My Child To Testify in a Criminal Case?

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