To reduce the risk of trauma for child witnesses, a revised Supreme Court (SC) rule updates when they may testify by video and when judges may admit recorded investigative interviews as evidence in child abuse cases.
The SC en banc approved the Revised Rule on the Examination of Child Witnesses, which covers child victims of crimes, children in conflict with the law and other child witnesses in criminal, civil, special and administrative proceedings, and specifies when courts may use recorded depositions in place of live testimony.
Remote testimony
Under Section 28, a judge may order remote testimony if there is a substantial likelihood that testifying would traumatize the child and that the trauma would impair the completeness or truthfulness of the child’s testimony.
In making that decision, judges must consider factors including the child’s age and health, any threats against the child and the child’s relationship with the accused or opposing party.
Judges may limit whom the child sees or hears during the videoconference while preserving the accused’s constitutional right to confront witnesses.
Recorded interviews and depositions
In child abuse cases, Section 30 allows courts to admit a recorded investigative interview or its transcript as corroborating evidence in place of certain sworn statements if the child testifies at trial.
If the child is unavailable under the rule, courts may admit the interview or transcript as an exception to the hearsay rule if a multidisciplinary team conducted the interview and the recording meets requirements for authenticity and preservation.
The party offering the interview under that exception must show that the child’s statement was elicited through “open-ended and neutral questions” and “was not a product of improper suggestion or instigation,” the rule states.
Under Section 30, the interviewer must be available for questioning at trial, and the recording is inadmissible unless all parties receive a copy of the recording or transcript and have a chance to review it before it is offered as evidence.
Section 29 separately allows the prosecutor, counsel or guardian ad litem to request a recorded deposition, which the court must order if it finds that the child will be unable to testify in court or by videoconference at trial.
The accused or opposing party retains the right to counsel and to cross-examine the child during the deposition, which the court may admit in place of live testimony if it finds at trial that the child is unavailable under the rule and explains its reasons in an order.
Protections for child witnesses
Section 34 says a child witness “shall not be subjected to any form of compulsory process” to secure an appearance, though courts may compel a parent, guardian or custodian to secure the child’s presence.
A child who testifies at a judicial proceeding or gives a deposition may choose one or two people to provide emotional support.
Section 33 requires any sexually explicit or sensitive material to be presented in court with the child absent.
Courts must direct a social worker to assess the child using information already available and must order necessary therapy and treatment for children who have suffered abuse.
To protect children’s privacy, the rule requires records concerning a child to remain confidential and under seal and provides that publishing information identifying a child covered by the rule or an immediate family member may be grounds for contempt.
Follow Tan Briones & Associates on LinkedIn for more legal updates and law-related articles.
