Children in court: protection for the young vs. defendants' rights

SOME child specialists, as well as legal experts, are calling it a ``second victimization.'' They say that young people who have already been molested by particular adults are further subjected to an anguishing experience in the criminal-justice system. So they want to change the rules regarding the taking of testimony from the young in criminal proceedings.

The arguments: Children are easily traumatized. A courtroom experience might harm them. They cannot always understand the questions they are being asked. They need to be able to tell their stories in a friendly and nonthreatening setting. Confronting face-to-face someone they have accused of wrongdoing could be a devastating experience.

The solutions: Alter traditional judicial procedures for the young. Use closed-circuit television and videotapes to take testimony. Set aside the rules of evidence to admit uncorroborated testimony in and out of the courtroom. Don't force youngsters to eyeball their antagonists. And close all proceedings to the media.

The problems with the solutions: These alternatives may be unfair and unconstitutional. Furthermore, they may be unnecessary.

Josephine A. Bulkley, who heads a project on child sexual abuse law reform for the American Bar Association, indicates that a host of recently passed federal and state laws designed to facilitate children's testimony could run afoul of defendants' rights. Lawyer Bulkley is specific: ``The constitutional issues raised by the new videotaping and closed-circuit television statutes include the defendant's right to a fair trial under the due-process clause of the Fourteenth Amendment, the defendant's Sixth Amendment right to confront witnesses, and the public's (and the press's) First Amendment right to attend criminal trials.''

However, Miss Bulkley and others point out that judges and lawmakers may be able to scale some of these constitutional hurdles (indeed some already have) if there is a case made that standard procedures would intimidate a child witness or that special practices would not disadvantage the accused.

For instance, videotaped testimony may be sought in conjunction with -- instead of in lieu of -- a child's direct testimony at the trial. Further, some courts may be willing to forgo a youngster's personal appearance and rely on videotape or closed-circuit television testimony if there is ``compelling evidence'' that on-the-spot questioning would be harmful to a youngster.

Supreme Court rulings permitting public access to trials -- usually via the press -- might also be satisfied in child-abuse cases by cross-examining a youngster in private but before a camera, and then showing such testimony to the jury, press, and public via tape.

However, even these compromises raise other questions regarding a child's responses to a camera as opposed to facing a jury and the accused. And there is continued disagreement whether ``leading'' questions to children actually clarify issues for them or tend to elicit distorted responses.

Many juvenile and family court judges who deal with child-abuse cases say they try to make children feel comfortable and relaxed in the court by winning their confidence and assuaging their fears. However, some of these same jurists are concerned that such special care could unfairly tip the scales of justice against adult defendants who are afforded no similar coddling.

University of Nebraska psychologist Gary Melton, who studies the courtroom demeanor of children, suggests that perhaps the preoccupation with special handling of children in the courtroom is unwarranted. Dr. Melton stresses that much more research is needed. But his findings, so far, indicate that ``kids are not special'' in the context of responding to the court in sex abuse cases. Some are susceptible to adult suggestions or vulnerable on the witness stand; others are less so than more mature people. He also insists that individual youngsters will react differently to the use of videotapes and closed-circuit television.

Melton's main theme is that communication to children should be direct and clear. One reservation he has is over the use of anatomically correct dolls to help youngsters recall a story of sexual abuse.

``There's a risk of giving them [youngsters] words for things they don't have,'' he explains. ``And when kids start using adult language, they may become less believable.'' A Thursday column