Effectively Cross Examining the Child Witness
Cross examination can always be a challenging endeavor for any criminal defense trial lawyer. After all, the person on the stand is generally against you and will try to hurt you if they can. That being said, what happens if that witness is a child? This frequently adds two additional hurdles. Go too easy and the kid will walk over the top of you and you simply don’t get what you want. The other hurdle involves the perception of power. Get too aggressive and you make the jury despise you. Worse, it could endear the witness to the jury. They might start seeing the kid as their champion. This could be the worst of all worlds, especially if that witness is the alleged victim such as in child molestation cases. This article will focus on how an experienced criminal defense attorney should cross examine the child witness. If you are facing serious criminal charges in Minnesota and there are child witnesses or even a child alleged victim, make sure you sit down with an experienced criminal defense attorney with experience handling child witnesses.
“There is a fine line between letting a child witness walk all over you and having the jury despise you for going after the kid.”
When approaching a trial and knowing that you will be facing a child witness, there are a few steps an experienced attorney should remember in order to get the information they want and need for your client:
Short, declarative statement;
One fact at a time;
Only questions that promote Defense theory of the case;
Age appropriate language;
Limit questions to those you can’t get from other witnesses.
Short, Declarative Statements, One Fact at a Time and Only Questions that Promote the Defense Theory of the Case
While this article is about cross examining child witnesses, the first three on the list above apply to any and all witnesses a criminal defense attorney would face. First, short declarative statements because you aren’t asking questions really. You are making points with an affirmation at the end. If it sounds complicated, it can be. Example: You went to the store, right? Simple. Tight. Clear. Concise. Move on. Second, use one fact at a time. The simpler and more clear it is, the less push back you are going to get. One fact allows a simple yes or no and then you move on. Three, only use questions that promote the Defense theory of the case. Remember, this witness, child or otherwise, may want to hurt you and you know by preparation what it is in their testimony and previous statements and int the evidence that can help. Focus on it, highlight it and move on. This will provide a clean and simple answer for the jury.
“Some sage advice when cross examining a child witness: Be brief, be brilliant, be seated.”
Age Appropriate Language
This title might be a misnomer. The problem is no two children are alike. It is not just about age but also about mental development. As a result, preparation can be helpful. Talk to some kids around the age of the witness, whether your own or those with whom you have permission to speak. It may help with the approach. Also, it is important to consider the jury’s perception of the age of the witness. A jury could easily turn on the attorney and you and starting rooting for the witness. This is part of the line a smart attorney must walk.
Limiting Your Questions
Frequently when preparing for cross examination in trial, a good lawyer will look at which of the State’s witnesses will provide the necessary information to establish reasonable doubt. Normally, you pick that witness and go with it but this may not be the case with a child witness. Because of all of the concerns referenced above, it is sometimes much smarter for the experienced lawyer to limit those questions to the child witness that they can’t get anywhere else. In other words, if you can’t establish a fact with any other witness but the child witness, then it becomes a part of the cross.
Being Nimble is Always Critical
This conversation may sounds like everything is set in stone but of course it is not. Every plan comes with contingencies and for those of us who have tried a lot of criminal jury trials, we all know about the best laid plans. An experienced criminal defense lawyer should be prepared with every witness including the child witness. Execute that plan but know that if things shift, be prepared to shift as well. So, being nimble is important.
“In the end, it is not about being liked by the jury. It is about being effective in advocating for your client. If there is a hit to be taken on this issue, while being effective, your attorney must take the hit.”
Jack Rice is a nationally known and award winning criminal defense attorney. He is a former CIA Officer, a former prosecutor and a Board Certified Criminal Law Specialist. Jack is also called upon to teach trial skills to lawyers across the United States and around the world. He is the Founder of Jack Rice Defense, a boutique criminal defense firm based in St. Paul, Minnesota. Contact Jack Rice Defense for a free confidential consultation or call 651-447-7650 or 612-227-1339.