Children who are witnesses to or victims of crimes may be ordered to testify in criminal cases. Generally, judges decide on a case-by-case basis whether a child is competent (qualified) to testify. But, even if a child is subpoenaed (ordered) to testify and found competent, there are steps the court can take to protect the child from the stress of testifying.
While it may seem unfair for a court to require a child to testify, the constitution sometimes requires it. The Sixth Amendment guarantees criminal defendants the right to confrontation. This has been interpreted to mean that a person’s accusers must come to court and state, in public and on the record, the allegations against the defendant and allow the defendant (through his or her attorney, if any) to cross-examine them. The right to confrontation ensures that people are not convicted based on secret accusations or evidence.
Testimony is helpful onlyif the witness is competent (qualified) to testify. In most states and in federal court, all children are presumed competent to testify. In order to be competent to testify, the child must:
Generally, children as young as three or four years old may qualify to testify, but some children are simply too young or too immature to be competent witnesses. In order to determine whether a child is competent, the judge interviews the child, usually in the judge’s chambers or in a closed courtroom. A conversation can give the judge a good idea of whether the child can recall events and communicate clearly. The judge will often ask age-appropriate questions to tease out whether the child understands the importance of telling the truth. For an older child, this may take the form of a philosophical discussion. For a younger child, a judge may ask questions such as, “If I said that my hair is purple, is that the truth or a lie?”
If you receive a subpoena for your child, then yes, your child may have to testify. A subpoena is a court order that a person appear at a certain time and place to testify in a case. A parent who fails to bring a child to court after the child has been subpoenaed can be found to be in contempt of court, which can result in fines or even jail time. For more information on contempt proceedings, see Failure to Appear in Court. You cannot ignore a subpoena. In order to get out of a subpoena, you must file a motion to modify (change) or quash (overturn) it, which is best handled by an attorney.
There has been a fair bit of concern about whether testifying, especially against defendants in sexual abuse cases, can traumatize children. Testifying can be stressful for adults. Now, imagine being seven or eight years old and having to go into a big room, filled with adults you do not know, sit in a chair in front of everyone with a microphone, and answer questions about something you do not want to talk about it. Sounds pretty traumatic, right?
In response, many states have enacted laws that offer ways to protect children, and specifically, child victims of sex crimes, when they testify in court. Judges may close the courtroom while a child testifies. During the 1980s, many states began allowing children to testify in criminal cases via closed-circuit camera. This way, the defendant could see the child during the testimony, but the child did not have to come face-to-face with the defendant. Sometimes, children can testify via videotaped deposition (interview). In some states, child witnesses can also visit a courtroom before testifying to familiarize themselves with the surroundings and with court proceedings.
You cannot ignore a subpoena for your child to testify, but you can talk to the attorneys in the case about your worries. Local attorneys should be able to tell you what protections, if any, are available for child witnesses in your state. If you fear serious trauma to your child, you may want to obtain your own attorney to represent your child’s interest in the case and possibly quash or modify the subpoena. An attorney can help you, and your child, navigate the criminal justice system.