Out of the Mouths of Babes: Can Children Be Forced to Testify in Court?

By:      Robert B. George, Esquire
            [email protected]

Prompted by a recent legal issue, I did some digging into whether a child may be compelled to testify in criminal court proceeding.  My research into this issue indicates that children who are witnesses to or victims of crimes may be required to testify in criminal cases.

If you receive a subpoena for your child, the simple answer is that your child will very likely have to testify. A subpoena is a court order that an individual appear at a certain time and place to testify in a case. You cannot simply ignore a subpoena that has been properly issued and served upon a child.  A parent or legal guardian 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. In some instances, the child who is the subject of the subpoena could also be subject to adverse action on the part of the court for failing to comply with a subpoena.  In order to attempt to avoid compliance with a subpoena, you must first file a motion with the court to either modify or quash it, which is best handled by an attorney.

While it may seem unfair for a court to require a child to testify, the United States Constitution, as well as the proper functioning of our judicial system, sometimes requires it. For example, the Sixth Amendment of the United States Constitution guarantees criminal defendants the right to confrontation. This guarantee has been interpreted to mean that a person’s accusers must come to court and state, in public and on the record, the allegations against the defendant, in order to allow the defendant the opportunity to cross-examine the witnesses who have been called upon to testify against them.

Assuming that a child witness has been properly called upon to testify in a case, he/she must first be determined to be competent, or qualified, to testify. Generally, judges decide on a case-by-case basis whether a child is competent to testify.  In most state and federal courts, all children are presumed competent to testify. But in order to be determined actually competent to testify, a child must meet the following criteria:

  1.  must be able to recall events accurately;
  2.  must be able to communicate;
  3.  must understand the difference between truth and lies; and
  4.  must understand the importance of testifying truthfully.
Generally, some children as young as three or four years old may be determined to be competent to testify, but other children are simply too young or too immature to be competent witnesses. In order to determine whether a child may testify, the judge interviews the child, usually in the judge’s chambers or in a closed courtroom. This conversation can provide the judge with a good idea of whether the child can recall events and communicate clearly. The judge will often ask age-appropriate questions to determine whether the child understands the importance of telling the truth.

In response to concerns about the trauma that children may be subjected to when being compelled to testify in court, many states have enacted laws that offer ways to protect them. For example, judges may close the courtroom while a child testifies. During the 1980s, many states began allowing children to testify in criminal cases via closed-circuit camera. The defendant could then observe the child during the testimony, but the child did not have to confront the defendant face-to-face. Sometimes, children can also testify via videotaped deposition.

Even if a child is ordered to testify and found to be competent to testify, there are steps which may be taken by counsel and/or the court to protect the child from the stress of testifying. If you are the parent or legal guardian of a child who has been called upon to testify, there are steps that you can take to protect your child. You can talk to your child about what it will be like to testify and how important it is to tell the truth. You may want to have your child examined by the child’s pediatrician or psychologist, to discuss what steps to take to properly prepare your child. If your child is the victim of a crime, your local district attorney’s office may offer victim advocates who can explain the court process to your child. If you think that testifying could seriously harm your child, you may also want to consider hiring a private attorney to advocate on behalf of your child.

Qualified private attorneys, including the attorneys at the Law Firm of DiOrio & Sereni, LLP, should be able to tell you what protections, if any, are available for your child.  If you fear serious harm to your child, it is particularly important that you obtain your own attorney to represent your child’s interests in the case, and possibly ask the court to quash or modify the subpoena.

The attorneys at the Law Firm of DiOrio & Sereni, LLP are experienced and available to help you. Contact Robert B. George, Esquire at 610-565-5700, or send him an e-mail at [email protected].

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