Top Federal Lawyers discuss considerations on cross-examining a child witness. As part of every criminal defense lawyer’s trial practice, he or she will have the opportunity to confront and challenge, through cross-examination, the testimony of a child witness. Most frequently, such a witness is alleged to be the victim of the crimes charged. In other cases, such a witness may serve the role of an eyewitness, or someone who otherwise corroborates the Government’s theory of the case in some manner. This type of witness requires a skilled approach. Moreover, some criminal defense attorneys have not had he experience of cross-examining a child witness at trial. Although one could write endlessly about the important considerations that go into the preparation and execution of this type of cross-examination, here a few:
1) regardless of the child witness’ ability to provide entirely complete or accurate information they will be viewed with great empathy and sympathy by the jury. Accordingly, proceed with the utmost care and caution. It is far too easy to be immediately perceived by the jury as being unfair and a “jerk” to the child witness.
2) in light of 1) the lawyer’s tone and voice should be “mellow,” appropriate to th age of the witness. and entirely professional. There is no need for voice raising, and certainly not yelling. At the same time, talking in a contrived or babyish manner is not advised or required either
3) the defense lawyer should also carefully consider his or her placement in the courtroom. Getting too close and familiar, in terms of courtroom space, is likely to turn off the jury and make the defense lawyer appear to be attempting to engage in intimidation. However, a close but respectful distance can be effectively utilized – and there may be room to advance towards the witness in a sympathetic manner if that appears advisable.
4) the defense lawyer should attempt, at the outset of the examination, to establish trust and the appearance of fairness with the witness. This may be achieved by telling the witness the ground rules of the examination – including telling the witness such things as – it is acceptable to ask the lawyer to repeat the question and even suggesting that there may be some poor or bad questions framed. Defense counsel may even tell the witness that it is awkward for he or she t examine the witness because some of the subjects areas are personal or unfamiliar.
5) when impeaching do so in a tone and manner that is less accusatory than is typical.
6) despite 1) through 5), the defense lawyer may find that, as the examination progresses, be or she may be able to be more firm depending on the competency, confidence, or demeanor of the young witness. Indeed, for example. each 16 year old witness, is not the same.
There are a myriad of other considerations with regard to the cross-examination of a young witness.
Matthew Chivari
Leonard Trial Lawyers
October 12, 2023