Child Witnesses in Criminal Proceedings: Key Considerations for Valid Evidence - Essay Sample

Introduction

In all criminal proceedings that involve children as witnesses, special care should be provided. Specifically, the evidence provided by a child witness can only be valid if specific key considerations are observed. Accordingly, in the recent past, perceptions of the competence of child witnesses are progressively changing. As such, very young children are being allowed to give evidence through interviews about criminal activities they may have witnessed. For example, in England, the legal system is putting in place mechanisms that are allowing very young children to give evidence that can be heard and tested. However, most practitioners still feel unconfident about cross-examinations or interviewing children, especially in certain crimes. It is unlikely for English courts to allow children below the age of five to give evidence.

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To understand clearly how child witnesses should be handled in criminal proceedings, this report will explore the case of Sykes who has been charged with sexually assaulting V, a daughter of his girlfriend. The three-year-old victim made the allegations of being sexually assaulted by Sykes a fortnight ago. Accordingly, the grandmother made a police report which resulted in V being removed from the current residence and enrolled to foster care. The victim is due to be interviewed by the police concerning the offence within the following week. Importantly, the trial against Sykes for this offense will be delayed by twelve months on the basis that he is currently facing trial for other severe sexual offences.

Therefore, the primary objective of this report is to help in developing an understanding of how young and vulnerable witnesses are recognized under the English Criminal Justice System. Moreover, the credibility of the supplied evidence by a child witness should be assessed in terms of competency and compellability. Finally, the issue of the defendant getting a fair trial will also be analysed and described.

Interviewing a Child Witness

The Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) outlines how vulnerable witnesses or victims should be treated. The primary objective of the Act is to maximize the accuracy and coherence of testimony given by witnesses/victims. Explicitly, under YJCEA 1999, a series of extraordinary measures directions (SMDs) are provided to guide how such evidence should be collected. In addition, the Coroners and Justice Act 2009 (C&JA 2009) allows minor modifications, reducing the rigid framework of the SMDs while at the same time increasing the age limits from seventeen to eighteen years on in relation to automatic eligibility as well as the prohibition of direct cross-examination or interviewing of the victims of cases involving sexual offences. On this basis, the general presumption is that a child below the age of eighteen like V qualifies to participate in providing testimony through recorded video interviews. Besides, they can participate through a live link unless the court has reason to believe that such methods will not improve the evidence's quality or that the child victim or child witness refuses to use these SMDs.

Therefore, a child witness is still required to present themselves in a court of law to carry out the cross-examination over a live video link regarding the contents of the pre-recorded interview. Besides, the enforcement of the Criminal Justice Act 2003 improved the evidence rules since it introduced the concept of evidence of propensity, which is very important in sexual offenses, and by conditionally permitting evidence that would have been previously characterized as hearsay. As such, it reshapes the adversarial character of the trial and eliminates some burden from the child witnesses or victims.

Within the English Court system, the use of full pre-recording of evidence is used in various states but under specific guidelines. Qualified are children below the age of sixteen who are witnesses to violent or sexual offenses, but the entire process should be conducted in not more than six months of committal. The child is required to watch the video of their examination-in-chief a day before the hearing so that their memory is refreshed. The cross-examination is done through a live-link in the company of a member of the Child Witness Service but in a different room from the counsels, the judge and the defendant(s). However, all objectionable materials are edited from the video and later given to the jury who will no longer require the presence or the victim/witness to make a ruling. At the international level, the United Nations Convention on the Rights of the Child foists a duty on member states to put in place additional care of child victims or witnesses' treatment in situations where a child victim has involved in the judicial process.

Thus, the provision restates the judiciary's obligation to protect the rights of the victims/witnesses. This different comparison demonstrates that English law conforms to the international law as well as to other common law jurisdictions although any adjustment to the adversarial legal process should be cautiously considered. Hence, the application and interpretation of the law must always be sensitive to the child witnesses' or victims' needs, but at the same time preserve the defendant's rights. In light of this, interviews involving children like in the current case should strictly observe the rights of the child (victim/witness). For example, the child must be interviewed in the presence of an adult guardian. Thus, for the current case, the grandmother should be present, given that the child victim's mother has a relationship with the accused. The exception rule reinforces that a child may not be accompanied if the parent or guardian is the alleged perpetrator, the court deems it not in the child's best interest to be accompanied, or the child expresses concern about being accompanied by their parent(s) or guardian. Another factor that should be considered is the application of a competency test, which can only be introduced if the court establishes a compelling reason. The justification of a competency examination is to help in determining whether or not the child witness/victim has the capacity to understand the interview questions as well as the importance of giving truthful information. In the determination of a child witness' or child victim's competency, the court has the authority to appoint an expert.

Additionally, the only persons allowed to be present during such a procedure include the judge, prosecutor, defence and victim lawyers, the support person, a court clerk or reporter and any other individual such as the guardian/ parent whom the court may deem necessary to the child's welfare.The law prohibits the cross-examination or interviewing of the child victim by the defence lawyer unless in the under the supervision of a competent judge whose duty would be to protect the child from being asked that may expose, intimidate or cause distress to the child. Further, it is advisable that the child is helped to predict and make sense of the questions being asked. This is besides helping them to feel comfortable and safe with the interviewing team since it may be necessary to separate them from their parent or guardian. For instance, the use of child-friendly environments, giving the child breaks as well as phrasing the questions in simple language or even using visual resources is vital. For example, research shows that children are generally able to communicate if they can tell and demonstrate. In addition, it is essential for the interviewer to understand the developmental stage of the child.

Summoning a Child Witness to Trial and the Pre-trial Procedure

According to Marchant the youngest child witness ever interviewed and proceeded to give evidence in the trial within an English law jurisdiction was aged four. However, she argues that where a child is appropriately interviewed the issue of limiting the age of a child witness should not arise since it is possible to interview children as young as two accurately. Thus, if proper planning is used and where developmentally appropriate questioning is used, such evidence can be accurately tested during trial. Therefore, about the current case, V can be requested to do an interview and consequently be asked to give evidence during the trial. As earlier mentioned, pre-trial video recorded interviews are currently applicable in most English Law jurisdictions, and the child witness/ victim should be allowed to re-visit those recordings a day before giving their account during trial. This allows the child witness/victim to refresh their memory of the event or the allegations that they have made against the defendant. Besides, the court must protect the child from being harassed or victimized especially by the defence team. For instance, the defence lawyer is not required to cross-examine the child witness and where such permission is granted a competent judge must be present to protect the child from being asked questions that may yield discriminating evidence.

The court also has to ensure that appropriate arrangements are made inside the courtroom. For instance, the provision of elevated sits and ensuring that the child sits close to their parent or guardian, their lawyer, and the support person during trial is the court's role. Thus, the court has to ensure that the child has been supplied with a support person whose purpose is to guide the child victim on the trial process. Also, the child victim has a right to be shielded from the entire court if the offense entails sexual offense or those involving grievous acts. The child's identity should remain anonymous, and they should be separated from the rest of the court through tainted glass walls. To this effect, the central role of the court in cases involving children victims or witnesses is to facilitate the child's safety and the protection of their rights. Accordingly, this position, therefore, supports the fact that V should be allowed to give evidence in the trial of Sykes since she is the primary witness given the fact that she lived with her mother who may be compromised or may fail to provide truthful testimony that may incriminate her boyfriend.

Ensuring Defendants in Cases Relying on Child Witnesses get a Fair Trial

The dictates of fair trial hold that all persons should be equal before tribunals or courts and that the court or tribunal should be impartial, competent, and independent. Importantly, this provision guarantees the accused to retain the presumption innocence, the right to counsel, and not to be compelled to self-incriminate. Under the English Law jurisdiction, the concept of fair trial and hearing are contained in the International Covenant on Civil and Political Rights (ICCPR). However, those involving children are contained in the Convention on the Rights of the Child (CRC).

From the facts of the case, it is clear that the trial will take more time before it commences (trial will start twelve months later since the accused is at the moment facing prosecution for other grave sexual offenses). As such, the child witness may not be able to recall the exact sequence of events in the case, and this may affect the reliability of their evidence. However, the court should be able to counter this challenge by using video recordings of all interviews of the victim. This will ensure that the account of the events is preserved and hence its credibility. Squarely, it is the role of the justice system to protect the defence from being exposed to an unfair advantage in cases involving children witnesses.

Another element that may compromise the aspect of the fair trial involves Article 14(1) of the ICCPR. This article provides that the public,...