CHILDREN ON THE WITNESS STAND

THE CHARGE WAS AGGRAVATED SEXUAL ASSAULT. IF CONVICTED, THE ACCUSED could go to jail for five years to life and pay up to a $10, 000 fine. In this case, as in so many others, the accused and the victim knew each other. They were mother and son.

On the witness stand in Judge John Ovard’s 265th District Court, four-year-old Danny beamed innocently at his mother as she sat at the defense table. The opening statements of the opposing attorneys had partially prepared those in the courtroom for Danny’s testimony, but there was still visible shock when he began to answer the questions put to him by the prosecuting attorney.

For almost an hour, in a child’s broken sentences, Danny detailed what he said his parents called “pee-pee games”-a sort of ménage à trois between mother, father, and child. He and his mother, Danny said, had engaged in sexual intercourse while she performed oral sex on his father.

Joan Alexander (assistant district attorney): “Okay, Danny, we were talking about some games. What kind of games were those?”

Danny: “The pee-pee games. “

Alexander: “Now, when you talked about these pee-pee games, did you play these games?”

Danny: “Yes. “

Alexander: “Who did you play these games with?”

Danny: “Irene and Dan. “

Alexander: “Now, you say Irene and Dan, are you talking about your real mom and dad?”

Danny: “Yes. “

Alexander: “Okay. When you would play these pee-pee games with Irene and Dan, who else was in the room? Anybody else in there?”

Danny: “No. “

Alexander: “All right. When you played these pee-pee games, did you play? Did you play the game?”

Danny: “Yes. “



THE CHAIN OF EVENTS THAT led to the unprecedented spectacle of child testifying against mother began in June of 1986 when a manager of a North Dallas motel called the police, convinced that Danny’s mother and father were engaged in drug sales and child abuse. The three, who had been staying at the motel, were taken to Lew Sterrett Justice Center, where a videotape of Danny and a county social worker was made. On the tape, Danny discussed what he said he and his parents had been doing. He showed explicit knowledge of sexual situations.

In past years, that tape could have been introduced as the state’s main evidence. Approximately half the states allow videotapes as evidence in child abuse cases, while the others restrict their use. But last summer, the Texas Court of Criminal Appeals ruled that videotapes alone were no longer sufficient for conviction.

“It goes back to the English common law, ” said Keith Hampton, the lead defense attorney for Danny’s mother. “As a defendant, you are supposed to be able to confront your accuser. “

With these vital and often devastating videotapes barred as evidence, prosecutors are now forced to call children Danny’s age to testify-with all the attendant problems that may cause.

“Nobody wants to put the child through the trauma of testifying in court, ” says David Edmondson, legal counsel for State Senator Hugh Parmer of Fort Worth. In the last session of the Texas Legislature, Edmondson assisted in the passage of a bill designed to give judges wider discretion in determining whether a child will testify. But there are fears as to the bill’s constitutionality. Parmer’s office sent an advisory to local district attorneys, warning that DAs should ask that judges admit videotapes as evidence only as a last resort. Clearly, child testimony will increase.

“What we have here is a confrontation between two strong areas of public policy” Edmondson says. “On one hand, we have the rights of the defendant. On the other hand, we have the need to protect children by pushing for a conviction. “

The four men and eight women in Judge Ovard’s courtroom eventually found Dan-ny’s mother guilty. The relatively light sentence-five years in prison-may have reflected the confusion and controversy inherent when children take the witness stand. Child testimony has ignited a firestorm of debate among mental health professionals and the legal community over the role of children in the courtroom.

On the one hand, constitutional safeguards of liberty mandate that accused persons face their accusers, even when the accusers stand three feet tall and wear Osh-Kosh B’ Gosh jumpers. On the other, there is genuine concern among attorneys and mental health workers that some children may be incapable of distinguishing between fantasy and reality and may be susceptible to “coaching” from overzealous social workers and prosecutors. Given the nationwide trend in child sexual abuse cases, more and more children may be taking the stand in the near future-and many defense attorneys worry that juries will automatically side with any child they see being dragged into such unsavory proceedings.

Are children reliable witnesses? Child advocates bristle at the suggestion that children on the stand might lie or that adults might misinterpret their claims. They do not buy the notion put forth by some attorneys who argue that children might learn about sexual behavior through fantasies, rock videos, and pornography, not through abuse.

“Abused children cannot afford the backlash of people not believing them, ” says Howard Davidson, director of the National Legal Resources Institute for Child Advocacy and Protection. Last fall, Davidson was in the area for a panel discussion on false allegations of sexual abuse sponsored by the Psychiatric Institute of Fort Worth. The panel debate underscored the division of opinion on child testimony. For his part, Davidson thinks that those who distrust child testimony are shutting their eyes to a grim reality.

“It has only been within the last few years that people have begun to believe that sexual abuse can happen within a family, ” Davidson said. “If you concentrate on false allegations, you are talking about a fraction of the total number of sexual abuse cases. “

But on the same panel, Dr. Arthur Green, associate professor of psychiatry at Columbia University College of Physicians and Surgeons, quoted statistics that he said show that as many as 25 percent of reported sexual abuse cases may be false.

“A majority of those false allegations are made in good faith, ” Green said. “But the things children say are open to misinterpretation, and we as adults and professionals do misinterpret. “

Another panelist, criminal defense attorney Tom Hill, said sexual abuse is one crime in which the prosecution has an automatic edge. “Sexual abuse is one of the easiest crimes to indict, ” he said. “If the prosecution tells a grand jury that they have a videotape of a kid’s testimony, they’ll get an indictment. And if I stand in front of a jury and say that my client was indicted for sexual abuse, the burden of proof has just shifted to me. “



DANNY’S CASE PROVIDES A model of the approaches used by prosecutors and defense in such cases. In a pretrial hear-ing last summer, the prosecution attempted to show that even though Danny was only four years old, he could distinguish truth from falsehood. They asked him questions like, “If I say my shirt is blue, is that the truth or a lie?” And they probed further: between the truth and a lie, which one is good and which one is bad?

The defense fought back by questioning Danny’s memory, reminding the judge that asking a four-year-old about something that happened one year ago is asking about a time span that represents one-fourth of his life. Is the child saying what he actually remembers about the incident, or what he was told about it later? To counter, a court-appointed psychologist stated that Danny has an IQ of 136. The prosecuting attorney, Alexander, used that testimony to intimate that Danny was no typical four-year-old, but was quite capable of reasoning out this situation and reporting it reliably.

Judge Ovard listened to the competing arguments and ruled that Danny could testify. It was a victory for the state, but it could have been a Pyrrhic victory. Attorneys, whether in civil or criminal proceedings, are always wary of calling small children to the stand. This is especially true in child custody cases, where children are sometimes called upon to choose between two bitter parents.

“Usually the pressure is too great, ” says Ike Vanden Eykel, a Dallas family lawyer. “There’s not an attorney alive who’s ever called a young child to the stand and didn’t die several deaths, worrying how it would turn out. “

Dallas psychologist Jeffrey Siegel has served as an expert witness for Vanden Eykel and other attorneys in child custody cases. Siegel, who has written extensively on the role of mental health techniques in the courtroom, approves of putting children on the witness stand in certain instances, but he believes that in most circumstances, subjecting a young child to the rigors of the courtroom can be damaging to the child and to the cause of seeking truth through the legal system. “In the case of children, you have to redefine what is a fact, ” says Siegel, “I’ve treated fourteen-year-olds who were unable to select their favorite brand of candy bar, much less discern the facts of a traumatic situation. “

Another objection to putting children on the witness stand has to do with the extensive coaching they often receive. In the trial of Danny’s mother, defense attorney Clay Rawlings sought to demonstrate that the boy had been coached almost to the point of having words and ideas put into his mind.

Rawlings: “Would you agree with me, Danny, that one of the reasons you still remember these things is, there are a number of people who keep,.. practicing with you? Is that true?”

Danny: “Yes. “

Rawlings: “Okay. Did they tell you that you were going to be-by coming up here today, that you could help your mommy and daddy?”

Danny: “Yes. “

The trial testimony indicated that representatives of the state might have practiced with Danny as often as once a week since he was taken from his parents. But coached or not, Danny began to contradict himself under further questioning from Rawlings.

Rawlings: “Now, Danny, you’ve told me, all this talk about the pee-pee games was pretend, right?”

Danny: “Yes. “

Rawlings: “Okay. Is that the truth?”

Danny: “Huh?”

Rawlings: “Is that the truth?”

Danny: “Yes. “

A final stretch of testimony consisted of Danny’s alternately telling prosecutor Alexander that the events took place, then telling Rawlings that they hadn’t.

Despite these contradictions, the jury voted to convict Danny’s mother. After the trial, some jury members admitted they were torn by the conflicting testimony and the presence of a small child on the witness stand. Julia Berry, a Dallas housewife and mother of four, didn’t like the way defense attorneys turned the boy back and forth. She says that she discounted much of Danny’s testimony, but still voted to convict his mother. More reluctant to convict was Joe Fletcher, a Grand Prairie man with grown children.

“If the child had been physically abused as well as sexually abused, you could determine that easier and vote for conviction, ” Fletcher said. “But this kid was so outgoing. He looked so normal. I remember thinking when he came into the courtroom and walked to the stand, what a cute kid. When he finished on the stand and we went back in the jury room, my hands were soaking wet. I knew how tough this was going to be.”

Ultimately, Fletcher was swayed toward conviction by Danny’s startling knowledge of sex and the female anatomy.

“He knew things that I don’t think kids four years old can find out on their own, ” Fletcher said. “It was tough, because the defense did a good job with his testimony. But I had to believe she was guilty.”



A NEW TRIAL WAS ORDERED for Danny’s mother after the judge ruled that jurors had been exposed to information about alleged drug use that was not part of the evidence in the trial. She is scheduled to be retried this summer, just before her husband goes to trial on similar charges.

Regardless of the outcome of this particular case, troubling questions will remain about the validity of a child’s testimony in such pressurized situations. Lest we “destroy a child in the process” of seeking justice, says Jeffrey Siegel, society must devise new procedures for using and evaluating child testimony. The legal and mental health communities work well together in many instances, Siegel says, but not when children are on the stand.

“The legal system is an adversary proceeding, ” he says. “The mental health professional, on the other hand, should be there to find out what really happened and correct the matter, not take sides. Once the wheels of justice begin to turn, the child and any semblance of family can be shredded in the process.”