Can A Judge Order My Child to Testify in a Criminal Case?

If your child has been ordered (subpoenaed) to testify in court, do not ignore the subpoena. You may, however, want to speak with the judge or an attorney about what to expect, and how to best prepare you child.

By , Attorney · UC Berkeley School of Law
Updated March 21, 2023

Unfortunately, just like adults, children can witness and be victims of crime. Sometimes, they're called to testify about it in court. Read on to find out if children can be subpoenaed to testify, and how courts and parents can help children who become witnesses in criminal proceedings.

Can a Minor Be Subpoenaed to Testify?

In a nutshell, yes, children who are witnesses to, or are victims of crimes can be ordered to testify in criminal cases.

While it might seem unfair for a court to require a child to testify, the U.S. Constitution sometimes demands it. The Sixth Amendment guarantees defendants in a criminal trial the "right to confrontation." In other words, a person's accusers must come to court and publicly state the allegations against the defendant, who has a right to cross-examine those witnesses (which usually happens through an attorney).

The drafters of the Constitution included the right to confrontation (and the right to a public trial) in part to make sure the government can't convict people of crimes based on secret accusations or untested evidence. Otherwise, the government would be free to make up a case against someone and lock them up for reasons that have nothing to do with whether they committed a crime (such as political reasons).

Does My Child Have to Testify?

If you receive a subpoena for your child, then yes, your child might 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.

So, you can't 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.

At What Age Is a Minor Qualified to Testify?

Testimony is helpful only if the witness is competent (qualified) to testify. In most states and in federal court, all children are presumed competent to testify, unless shown otherwise. A child is competent to testify if they can:

  • recall events accurately
  • communicate sufficiently
  • understand the difference between truth and lies, and
  • understand the importance of testifying truthfully.

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.

Usually, to determine whether a child is competent, the judge questions them, either in the judge's chambers or in a closed courtroom (with the attorneys present). Most judges are trained on how to put child witnesses at ease, and know how to make them feel as comfortable as possible during the discussion.

The judge will often ask age-appropriate questions to find out if the child understands the importance of telling the truth. For an older child, the discussion might be somewhat philosophical, but with a younger child, a judge might ask questions like, "If I said that my hair is purple, is that the truth or a lie?"

The judge's conversation with the child will provide a good idea of whether the child can recall events, communicate clearly, and understand they must tell the truth. Most children are found to be competent to testify.

Can a Child Testify Against a Parent?

Yes, children can and do testify against a parent when they are witnesses to, or victims of, a parent's criminal behavior. This often happens when a parent is charged with sexual abuse or other types of abuse or neglect.

Although it seems unfair that a child has to relive the experience in front of a courtroom full of people they don't know, the child's testimony is often critical to the prosecution's case. Most abuse happens in private, and often, the abuser and the victim are the only people present when it happens. This makes the child's testimony necessary for a conviction.

Isn't it Stressful for a Child to Testify in Court?

Testifying can be stressful even for adults. It takes little imagination to understand how stressful it can be for a child, especially when it involves events that were frightening or are embarrassing to talk about in a room full of adult strangers.

In response to this concern, many states have laws designed to protect child witnesses, especially when they're victims of sex crimes. For example, judges might close the courtroom while a child testifies. And many states allow children to testify in criminal cases through a one-way camera if the stress of the courtroom makes them unable to testify. This way, the defendant can see and cross-examine the child during testimony, but the child doesn't have to come face-to-face with the defendant. Sometimes, children can even testify by way of a videotaped deposition (interview), if they can't be available for trial.

Protecting Your Child When They Must Testify in Court

You can take steps to help ease the stress your child might have around testifying. You can talk to them about what it will be like to testify and how important it is to tell the truth. You can assure them they have done nothing wrong and that the court and the jury just want to hear from them about what happened. You might want to consult your child's pediatrician or psychologist and discuss what steps to take to prepare your child.

Often, courts are also a good resource for preparing a child to testify. For example, California courts have a free children's book for kids who are going to court for any number of reasons (including criminal, divorce, dependency, and delinquency cases). Some states have special programs for kids who have to go to court. For instance, there's a program in Spokane, Washington called, "Kids Court" where children and their parents go to court ahead of time for an educational session that preps them for the court experience. These kinds of programs let child witnesses familiarize themselves with the courtroom and the roles of the people they'll encounter when they testify (such as the judge, lawyers, and jury).

Also, if your child is the victim of a crime, your local district attorney's office might have victim advocates who can explain the court process to your child. Some non-profit organizations also have trained volunteers who accompany victims of sexual assault and domestic violence when they testify. And sometimes, children are allowed to hold a stuffed animal or similar item of comfort when they testify. The DA should know about any programs and procedures that will help your child deal with the stress of testifying.

Getting Legal Help

If you fear serious trauma to your child, you can talk to the attorneys about your concerns. Usually, the DA is the one who subpoenas a child victim or witness, and as noted above, they often have special services for child witnesses. (If you are the defendant, don't contact the DA. You could say something that harms your case without even realizing it. Talk only to your own criminal defense attorney.)

If you remain concerned, you might consider getting an attorney to represent your child's interests. It's unlikely that a court will completely quash a subpoena of a key witness in a criminal case, but an attorney might be able to help you get it modified to accommodate your child's needs. An attorney can also advocate for courtroom measures to reduce the stress of testifying and help you and your child navigate the criminal legal system.

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