Child-Friendly Courtrooms: Items for Judicial Consideration by Angie Von Pageler, J.D. and Meghan M. Weller, J.D.

Child-Friendly Courtrooms: Items for Judicial Consideration

Last fall, a children’s advocacy center staff person searched for a lifeline for a young child sexual abuse victim. This little girl was to testify in criminal proceedings against her alleged perpetrator, a family member.  The thought of appearing before this particular defendant in a room filled with strangers to recount the details of such a painful, personal trauma caused the child to break down.  Prosecutors became concerned that they would be unable to proceed without the girl’s testimony.  The director of the local children’s advocacy center charged with facilitating the case reached out to colleagues for help in identifying a solution.  Suggestions came in the form of an electronic copy of a bench book, Child-Friendly Courtrooms: Items for Judicial Consideration. One recommendation seemed to fit this situation perfectly, and following a discussion with the judge and defense counsel, accommodations were made to ensure that the child could testify in a more comfortable manner while preserving the rights of the defendant and the integrity of the criminal justice system. 


Each day, children across the country become involved in the judicial system through no fault of their own.  While many court cases are instituted to protect the best interests of the child in question, the complex nature of the legal process may further traumatize an already vulnerable person. Courtroom furnishings are built to accommodate adults.  Chairs may be too low and railings too high - obstructing a small person’s view of the courtroom and its parties.  Authoritative figures preside over and participate in courtroom proceedings.  An adult with a gun guards the door, and a person frequently wearing all black wielding a large, wooden hammer tells everyone what to do.  By nature, traditional courts of law were not created with an eye for the special developmental needs of children.  Rather, they were established to address the grievances and transgressions of adults, and they are intended to command both attention and respect.  Interactions with the American justice system may be enough to rattle the average adult, and the anxiety felt by a child in the justice system is only magnified.  In some cases a child may be the only witness available to testify, and the verdict may depend on the child’s ability to accurately articulate events from memory. The adult memory can be tricky, tempered by stress, perspective and the passage of time. In turn, a frightened child’s ability to recall traumatic events may be negatively affected by perceived pressure or misinterpretations stemming from legal proceedings that the child may not understand. Because of the crucial role these children play in the execution of justice, there is a pressing need to modify conventional practices to protect and facilitate children’s involvement in judicial proceedings, while preserving the integrity of the judicial system.


Through grant funding provided by the Children’s Justice Act and the Court Improvement Program through the Supreme Court of Texas, Permanent Judicial Commission for Children, Youth and Families (Children’s Commission), Children’s Advocacy Centers of Texas, Inc. (CACTX) was able to research, draft and release Child-Friendly Courtrooms: Items for Judicial Consideration, a bench book and reference sheet intended to aid courts in determining appropriate accommodations for child witnesses.  The development of this tool was further guided by a judicial advisory committee who graciously lent their expertise and perspective to forming the content and format of this publication. Child-Friendly Courtrooms provides an overview of the current state of Texas law regarding child-friendly court accommodations and recommendations based on the unique developmental needs of child witnesses. 


Child-Friendly Courtrooms was researched and drafted last year, and followed on the heels of Senate Bill 578, a bill authored by Texas State Senator Troy Fraser during the 82nd Legislature. SB 578 codifies judicial discretion in permitting certain child-friendly court accommodations.  As amended, Texas statute now provides judges significant latitude to modify certain procedures surrounding a child witness’ testimony in court. Several elements of child-friendly modifications were addressed.  First, the legislation establishes that courts shall conduct proceedings surrounding a child’s testimony in an age-appropriate manner. Children, particularly school-aged children, generally do not have control over many aspects of their day-to-day activities. The adults who care for them dictate when they will eat, when they will sleep, and when they are permitted to play.  As such, children are usually not accustomed to asking for breaks. The updated statute allows for age-appropriate breaks. The age-appropriate provision in statute reminds participants in legal proceedings to be mindful of a child witness’ unexpressed needs.  Children, like adults, have unique internal clocks that lend themselves to varied levels of energy and awareness throughout the day.  This may result in a more alert and expressive child in the morning and a more withdrawn or easily distracted child in the afternoon.  Such tendencies directly affect a child’s ability provide clear and accurate testimony.  As such, the amended statute provides that consideration shall be given to the time of day in which a child testifies to maximize the child’s understanding of the questions and proceedings, and to limit trauma to the child. 


This new legislation also  authorizes the presence of support persons and comfort items for children in criminal cases. Some courts have permitted a parent or victim advocate to accompany a child witness to the stand, provided that the view of the witness box remains unobstructed during any testimony.  Child witnesses are also permitted to have a comfort item (such as a toy or security blanket) during testimony. Research shows that the physical touch of a comforting personal belonging often leads to a psychological sense of well-being, decreased anxiety and increased speech and memory functions.  In line with these findings, some Texas counties have implemented courtroom animal programs that provide a trained facility (therapy) dog to accompany a child witness to court.  Courts nationwide have commented on the visible effecta therapy animal has on a child’s demeanor  on the stand.  Some have observed that the presence of a therapy dog in court is not unlike the use of other service animals, such as seeing-eye dogs. 


Further, this legislation provides that courts shall use child-friendly language in administering oaths and posing questions during the examination of the child witness.  Oaths may be modified to ensure that children understand what is expected of them while testifying.  Modifications may include breaking up the traditional oath given to adults and posing shorter, more digestible questions to the child.  Some courts choose to have a conversation with the child, wherein the judge asks if the child understands the difference between the truth and a lie, and if the child understands that he or she must tell the truth while testifying.  Questions containing multiple parts, double negatives or difficult vocabulary can confuse a child and needlessly obstruct the fact-finding process.  Short questions using simple language are most effective in eliciting clear answers from children.  In the event that the child becomes confused or does not understand a question posed, the statute provides that the court shall explain to the child that he or she has the right to ask for clarification or restatement of a question.


Finally, this legislation establishes that a court may set any other conditions and limitations on the taking of a child’s testimony that it finds just and appropriate, considering the interests of the child, the rights of the defendant, and any other relevant factors.  This provision gives judges the greatest latitude in protecting the rights and needs of child witnesses while safeguarding the rights of the accused.  Courts may choose to prioritize dockets and expedite cases that involve child witnesses. Delays and continuances are not only economically burdensome, but may also negatively impact the outcome of a case. Administrative adjustments may ensure that cases involving children are resolved in a timely manner, thus preserving crucial memories that may fade over time while minimizing the trauma that can result from a prolonged court experience.  Courts may also choose to permit child witnesses to use testimonial aids, such as anatomically correct dolls and drawings, to assist in eliciting clear and intelligible testimony.  Such aids may help a child overcome fear or an inability to find the right words to describe his or her thoughts.  Particularly in cases of sexual abuse, young children often lack vocabulary to clearly describe their own body parts, particularly in the kind of detail required in court proceedings. Testimonial aids can assist in reducing some of the anxiety that accompanies such wrenching testimony in young witnesses.  Courts may also consider providing a child-friendly waiting area for children waiting to testify.  Hearings and trials can be unpredictable, and a child scheduled to provide testimony may spend hours in hallway waiting to be called. A space dedicated to child witnesses might ease a child’s anxiety about his or her upcoming testimony.  Such an area need not be elaborate, however a separate space equipped with a few age-appropriate diversions, snacks, or a comfortable seating area for the child to do homework or listen to music would go far in diminishing anxiety prior to testimony.


Two legal interns were hired by Children’s Advocacy Centers of Texas to assist in researching and drafting the Child-Friendly Courtrooms project. Two professional groups, a Judicial Advisory Committee and a Stakeholder Advisory Committee, were formed to provide critical and practical feedback for the project.  The Judicial Advisory Committee, comprised of judges with experience in child-related cases from across the state, was crucial in lending guidance regarding the needs of the judicial audience. “The information in Child-Friendly Courtrooms is useful to all child advocates, however, it was essential that the guide be most accessible for members of the judiciary who preside over these cases and require up-to-the-minute information on child-friendly courtroom practices,” stated Judge Chris Oldner, chair of the Judicial Advisory Committee.  Stakeholder committee members included prosecutors, mental health professionals, and advocates who work with child victims and witnesses. Despite demanding schedules, members of each committee made themselves available to review and critique drafts of Child-Friendly Courtrooms, providing an invaluable contribution. Thanks to the input of members of the Judicial Advisory Committee, what began as an idea grew to include not only a 40-page bench book, but also a condensed bench card as a means of providing an easy and abbreviated reference to judges pressed for time. Members of the Stakeholder Committee were able to provide points of view from the field to shape Child-Friendly Courtrooms into a relevant discussion of real challenges as encountered by child witnesses.


Copies of Child-Friendly Courtrooms have been distributed to members of the Texas judiciary, district and county attorneys, local CASA programs, Department of Family and Protective Services regional attorneys, and each of the 65 local children’s advocacy centers across the state.  The content of the project will also be presented at the Winter Regional Conferences for New Judges, held by the Texas Center for the Judiciary.  CACTX is currently collecting feedback from judges across the state as they review the project and critique its relevance. Of the evaluations received to date, 100% of respondents report an increased awareness of the challenges facing child witnesses in the courtroom. 

 

Child-Friendly Courtrooms: Items for Judicial Consideration may be downloaded from www.cactx.org.  Hard copies may be requested via email at avonpageler@cactx.org.


Children's Advocacy Centers of Texas, Inc. is the statewide membership association, representing the Texas network of 65 local children's advocacy centers. Founded in 1994, CACTX is the largest state association of CACs in the nation.  Our membership reflects the vast diversity of Texas, each with their own unique approach to fulfilling our shared mission of protecting and providing for children through facilitating a coordinated and child focused approach to the investigation and prosecution of crimes against children.