Whether a child should testify is a struggle in every instance when it arises. I have previously blogged on the law, the Jethrow standard that the Court applies in determining the process of a child testifying. (Click here). Today’s is a practical view on how the Court conducts children testifying in a Civil case.
So, how does child testimony work? It depends on the Judge. I have seen the following;
1) The Judge clears the Courtroom of all persons except the Judge, the Court Reporter and the child.
Here the Judge does the questioning. The Judge is trying to determine the child’s truthfulness, their intellectual capacity for the retaining and reporting the information sought and whether is admissible and relevant. This process takes as long as the court deems necessary. I have stood in the hall for an hour while the Court conducts the interview. Upon the Court concluding, the parties and lawyers are brought back in and the Judge summarizes the child’s testimony. There may or may not be an opportunity for questioning.
2) The Judge takes the child and the Court reporter to his/her chambers (office).
Again the Judge does the questioning, but it is in a less intimidating setting. The judge’s office is usually much more “familiar” and personalized than the Courtroom. Judge’s do this to put the child more at ease. The relative same process of above is used, just in a different location.
3) The Judge, the lawyers, the child and Court Reporter go into the Judge’s chambers.
Here the Judge let’s the lawyers do the questioning. Now, the Judge is making sure that the lawyers maintain a respectful and appropriate tone and the child is not subject to interrogation or cross-examination in the true sense of the word, but the child is responding directly to the lawyers. The Judge determines what is relevant and admissible in all instances.
4) The child takes the witness stand and is questioned by each lawyer and possibly the Judge, in the presence of the parents. For a very young child this procedure will not be used. For an older child, say 14 and up, this is more common.
Ultimately, the age of the child, the issues at hand and the wishes of the parent’s are the deciding factors in how the child testimony is handled. The famous quote from the Jethrow case is;
“We reiterate that parents in a divorce proceeding should if at all possible refrain from calling any of the children of their marriage, of tender years at least, as witnesses, and counsel should advise their clients against doing so except in the most exigent cases. The reason and wisdom behind this precaution need no amplification. We also hold, however, as we must that no parent can be precluded from having a child of the marriage in a divorce proceeding testify simply because of that fact.” Jethrow v. Jethrow, 571 So.2d 270, 274 (Miss. 1990).
Matthew Thompson is a Child Custody Litigation Attorney in Mississippi.