Summary of the Rules on Examination of a Child Witness

Applicability:
Child witnesses (any person who at the time of giving testimony is below
the age of 18 years) who are:
1. Victims of a crime
2. Accused of a crime
3. Witness to a crime
n all criminal and non!criminal "roceedin#s in$ol$in# child witnesses.
%he #uardian ad litem may &le motions for:
1. nter"reter for child
2. 'acilitator to "ose (uestions to the child
3. )i$e!lin* tele$ision testimony in criminal cases where the child is a
$ictim or a witness
+. Screens, one!way mirrors and
Before testifying, a child shall take an oath or afrmation to tell
the truth.
Competency: -.otion for com"etency examination/
%he Court shall conduct a com"etency examination of a child, motu "ro"io
or on motion of a "arty when it &nds that su0stantial dou0t exists
re#ardin#:
1. A0ility of the child to "ercei$e,
2. Remem0er,
3. Communicate,
+. 1istin#uish truth from falsehood, or
2. A""reciate the duty to tell the truth in court.
A "arty see*in# a com"etency examination must "resent "roof of
necessity of com"etency examination.
! A#e of the child 0y itself is not a su3cient 0asis for com"etency
examination.
! 4efore examination of com"etence there must 0e:
o 5roof of necessity from the "arty challen#in# his
com"etence
o 6rder from the Court
Examination of a child as to his com"etence shall 0e conducted only 0y
the 7ud#e. Counsel for the "arties, howe$er, can su0mit (uestions to the
7ud#e that he may, in his discretion, as* the child.
%he (uestions as*ed at the com"etency examination shall 0e a""ro"riate
to the a#e and de$elo"mental le$el of the child8 shall not 0e related to the
issues at trial8 and shall focus on the a0ility of the child to remem0er,
communicate, distin#uish 0etween truth and falsehood, and a""reciate
the duty to testify truthfully.
Interpreter for child:
%he child may 0e a""ointed 0y the court, motu "ro"io or u"on motion, an
inter"reter whom the child can understand and whio understand the child
to inter"ret for him9her when a child:
1. 1oes not understand the En#lish or 'ili"ino lan#ua#e,
2. s una0le to communicate in said lan#ua#es due to
a. 1e$elo"mental le$el
0. 'ear
c. Shyness
d. 1isa0ility
e. 6r other similar reason
f a witness or mem0er of the family of the child is the only "erson who
can ser$e as an inter"reter for the child, he shall not 0e dis(uali&ed and
may ser$e as the inter"reter of the child.
%he inter"reter, howe$er, who is also a witness, shall testify ahead of the
child.
Facilitator:
%he court may, motu "ro"io or u"on motion, a""oint a facilitator if it
determines that the child is una0le to understand or res"ond to (uestions
as*ed.
Who may 0e a facilitator:
1. Child "sycholo#ist
2. 5sychiatrist
3. Social wor*er
+. ;uidance counselor
2. %eacher
<. Reli#ious leader
=. 5arent
>. Relati$e
f the court a""oints a facilitator, the res"ecti$e counsels for the "arties
shall "ose (uestions to the child only throu#h the facilitator.
%he (uestions shall either 0e in the words used 0y counsel or, if the child
is not li*ely to understand the same, in words that are com"rehensi0le to
the child and which con$ey the meanin# intended 0y counsel.
Support ersons:
6ne or two of child?s own choosin# to "ro$ide him9her emotional su""ort
1. 4oth su""ort "ersons shall remain within the $iew of the child
durin# the testimony
2. 6ne of the su""ort "ersons may accom"any the child to the witness
stand
a. 5ro$ided he9she does not com"letely o0scure the child from
the $iew of the o""osin# "arty, 7ud#e or hearin# o3cer
0. .ay 0e allowed to hold the hand of the child or ta*e other
a""ro"riate ste"s to "ro$ide emotional su""ort in the course
of the "roceedin#s
c. Shall not "rom"t, sway or in@uence the child durin# his9her
testimony
f the su""ort "erson chosen 0y the child is also a witness, the court may
disa""ro$e the choice if it is su3ciently esta0lished that the attendance of
the su""ort "erson durin# the testimony of the child would "ose a
su0stantial ris* of in@uencin# or aAectin# the content of the testimony of
the child.
Courtroom en!ironment
%o create a more comforta0le en$ironment for the child, the court may, in
its discretion, direct and su"er$ise the location, mo$ement and
de"ortment of all "ersons in the courtroom includin# the "arties, their
counsel, child, witnesses, su""ort "ersons, #uardian ad litem, facilitator,
and court "ersonnel.
%he child may 0e allowed to testify from a "lace other than the witness
chair.
%he witness chair or other "lace from which the child testi&es may 0e
turned to facilitate his testimony 0ut the o""osin# "arty and his counsel
must ha$e a frontal or "ro&le $iew of the child durin# the testimony of the
child.
%he witness chair or other "lace from which the child testi&es may also 0e
rearran#ed to allow the child to see the o""osin# "arty and his counsel, if
he chooses to loo* at them, without turnin# his 0ody or lea$in# the
witness stand.
%he 7ud#e need not wear his 7udicial ro0e.
Bothin# in this section or any other "ro$ision of law, exce"t o3cial in!court
identi&cation "ro$isions, shall 0e construed to re(uire a child to loo* at the
accused.
Accommodations for the child under this section need not 0e su""orted 0y
a &ndin# of trauma to the child.
What may 0e "ermitted durin# trial:
1. Allow the child reasona0le "eriods of relief while under#oin# direct,
cross, re!direct, and re!cross examinations as often as necessary
de"endin# on his de$elo"mental le$el.
2. 5ermit the child to use dolls, anatomically!correct dolls, "u""ets,
drawin#s, manne(uins, or any other a""ro"riate demonstrati$e
de$ice to assist him in his testimony.
3. Allow the child to ha$e an item of his own choosin# such as a
0lan*et, toy, or doll.
+. %he court may "rohi0it a counsel from a""roachin# a child if it
a""ears that the child is fearful of or intimidated 0y the counsel.
2. Allow the child witness to testify in a narrati$e form.
<. Allow leadin# (uestions in all sta#es of examination of a child if the
same will further the interests of 7ustice.
". #i!e$link testimony
a. 5rosecutor, counsel or #uardian ad litem may a""ly for an
order that the testimony of the child 0e ta*en in a room
outside the courtroom and 0e tele$ised to the courtroom 0y
li$e!lin* tele$ision.
b. 5erson see*in# such order shall a""ly at least 2 days 0efore
the trial date, unless the court fnds on the record that the
need for such an order was not reasonable foreseeable.
c. %he court may motu "ro"rio hear and determine, with notice
to the "arties, the need for ta*in# the testimony of the child
throu#h li$e!lin* tele$ision.
d. %he court may order that the testimony of the child 0e ta*en
0y li$e!lin* tele$ision if there is a su0stantial li*elihood that
the child would suAer trauma from testifyin# in the "resence
of the accused, his counsel or the "rosecutor as the case may
0e. %he trauma must 0e of a *ind which would im"air the
com"leteness or truthfulness of the testimony of the child.
e. f the court orders the ta*in# of testimony 0y li$e!lin*
tele$ision:
i. Se"arate room in the "resence of the #uardian ad
litem, one or 0oth of his su""ort "ersons, the facilitator
and inter"reter, if any, a court o3cer a""ointed 0y the
court, "ersons necessary to o"erate the closed!circuit
tele$ision e(ui"ment, and other "ersons whose
"resence are determined 0y the court to 0e necessary
to the welfare and well!0ein# of the child8
ii. %he 7ud#e, "rosecutor, accused, and counsel for the
"arties shall 0e in the courtroom. %he testimony of the
child shall 0e transmitted 0y li$e!lin* tele$ision into the
courtroom for $iewin# and hearin# 0y the 7ud#e,
"rosecutor, counsel for the "arties, accused, $ictim,
and the "u0lic unless excluded.
iii. f it is necessary for the child to identify the accused at
trial, the court may allow the child to enter the
courtroom for the limited "ur"ose of identifyin# the
accused, or the court may allow the child to identify
the accused 0y o0ser$in# the ima#e of the latter on a
tele$ision monitor.
i$. %he court may set other conditions and limitations on
the ta*in# of the testimony that it &nds 7ust and
a""ro"riate, ta*in# into consideration the 0est
interests of the child.
%. Screens, one$&ay mirrors, and other de!ices to shield child
from accused
a. 5rosecutor or #uardian ad litem may a""ly for an order that
the chair of the child or that a screen or other de$ice 0e
"laced in the courtroom in such a manner that the child
cannot see the accused while testifyin#.
b. f the court #rants such a""lication, the courtroom shall 0e
arran#ed to ena0le the accused to $iew the child.
'. (ideotaped deposition
a. 5rosecutor, counsel or #uardian ad litem may a""ly for an
order that a de"osition 0e ta*en of the testimony of the child
and that it 0e recorded and "reser$ed on $ideota"ed.
b. f the court &nds that the child will not 0e a0le to testify in
o"en court at trial, it shall issue an order that the de"osition
of the child 0e ta*en and "reser$ed 0y $ideota"ed.
c. %he 7ud#e shall "reside at the $ideota"ed de"osition of a
child. 607ections to de"osition testimony or e$idence, or
"arts thereof, and the #rounds for the o07ection shall 0e
stated and shall 0e ruled u"on at the time of the ta*in# of the
de"osition.
d. f the order of the court is 0ased on e$idence that the child is
una0le to testify in the "hysical "resence of the accused, the
court may direct the latter to 0e excluded from the room in
which the de"osition is conducted. n case of exclusion of the
accused, the court shall order that the testimony of the child
0e ta*en 0y li$e!lin* tele$ision in accordance with section 22
of this Rule.
e. f, at the time of trial, the court &nds that the child is una0le
to testify for a reason stated in section 22-f/ of this Rule, or is
una$aila0le for any reason descri0ed in section +-c/, Rule 23
of the 1CC= Rules of Ci$il 5rocedure, the court may admit into
e$idence the $ideota"ed de"osition of the child in lieu of his
testimony at the trial. %he court shall issue an order statin#
the reasons therefor.
)earsay *+ception in Child Abuse Cases
1. 4efore the statement may 0e admitted, its "ro"onent shall ma*e
*nown to the ad$erse "arty the intention to oAer such statement
and its "articulars to "ro$ide him a fair o""ortunity to o07ect.
2. f the child is a$aila0le, the court shall, u"on motion of the ad$erse
"arty, re(uire the child to 0e "resent at the "resentation of the
hearsay statement for cross!examination 0y the ad$erse "arty.
When the child is una$aila0le, the fact of such circumstance must
0e "ro$ed 0y the "ro"onent.
3. %he child witness shall 0e considered una$aila0le under the
followin# situations:
a. s deceased, suAers from "hysical in&rmity, lac* of memory,
mental illness, or will 0e ex"osed to se$ere "sycholo#ical
in7ury8 or
0. s a0sent from the hearin# and the "ro"onent of his
statement has 0een una0le to "rocure his attendance 0y
"rocess or other reasona0le means.
+. When the child witness is una$aila0le, his hearsay testimony shall
0e admitted only if corro0orated 0y other admissi0le e$idence.
Se+ual Abuse Shield ,ule
nadmissi0le e$idence:
1. E$idence oAered to "ro$e that the alle#ed $ictim en#a#ed in other
sexual 0eha$ior
2. %o "ro$e the sexual "redis"osition of the alle#ed $ictim
Exce"tion: E$idence of s"eci&c instances of sexual 0eha$ior 0y the alle#ed
$ictim to "ro$e that a "erson other than the accused was the source of
semen, in7ury, or other "hysical e$idence
A "arty intendin# to oAer such e$idence must:
1. 'ile a written motion at least &fteen -12/ days 0efore trial,
s"eci&cally descri0in# the e$idence and statin# the "ur"ose for
which it is oAered, unless the court, for #ood cause, re(uires a
diAerent time for &lin# or "ermits &lin# durin# trial8 and
2. Ser$e the motion on all "arties and the #uardian ad litem at least
three -3/ days 0efore the hearin# of the motion.
4efore admittin# such e$idence, the court must conduct a hearin# in
cham0ers and aAord the child, his #uardian ad litem, the "arties, and their
counsel a ri#ht to attend and 0e heard.