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  • How Attorneys Question Children about the Dynamics of Sexual Abuse

    Posted on by JACK MKHITARIAN

    A child sad and looking out the window.New Mexico sex crimes are some of the most serious allegations someone can face. This is especially the case when the alleged victim is a child. In fact, if you are convicted of committing sexual abuse against a minor, you can go to prison for the rest of your life. Not only are these crimes serious but they can also be very challenging to defend. In part, dealing with a child witness poses a host of challenges and concerns.

    In any criminal case, the prosecution must call witnesses to testify. Witness testimony is considered evidence, which a judge or jury can use to convict a defendant. First, the prosecution will call a witness and conduct a direct examination. This typically entails the prosecutor asking open-ended questions about what happened. In the case of a New Mexico child sex abuse case, the prosecutor will ask the child to describe the defendant’s actions. While leading questions are generally prohibited on direct-examination, in reality, a judge is likely to give the prosecutor additional leeway when questioning a child witness. However, an experienced defense attorney will know when to object to a prosecutor’s line of questions.

    Once the prosecutor is finished with their direct examination of the child, it will then be the defendant’s turn to cross-examine the witness. Unlike the prosecution, the defense is permitted to ask leading questions of the child witness. Because New Mexico sexual assault cases often hinge on a witness’s credibility, an effective cross-examination is crucial.

    Of course, for several reasons, cross-examining a child witness requires a different strategy than when cross-examining an adult. But before getting into the specifics of cross-examining child witnesses, it is important to discuss the concept of witness competency. Any witness who takes the stand must be competent to do so. In the context of a child witness, this requires knowing the difference between the truth and a lie, and that they can appreciate the importance of the oath they are taking. In many cases, older children are presumed to be competent. However, when it comes to young children or older children with certain limitations, a defense attorney may successfully challenge a witness’s competency to testify.

    Strategies for Cross-Examining Child Witnesses in New Mexico Sex Abuse Cases

    One of the most challenging parts of defending against a child sex abuse case is overcoming the initial “gut feeling” many jurors have about these allegations. While all defendants are presumed innocent until proven guilty, it may not feel that way in a child sex case. Often, jurors will immediately sympathize with a child victim. On the flip side, these jurors may villainize a defendant before the evidence even comes out. While this is not allowed and should not happen, it must be accounted for.

    Given this reality, cross-examining a child witness requires a certain level of care and compassion. While it is critical to expose weaknesses in the child’s testimony, this cannot typically be done through the aggressive cross-examination displayed on courtroom dramas. Instead, defense attorneys must proceed with caution. In some cases, this means not trying to portray the witness as a “liar,” but as mistaken or imaginative.

    One strategy is using the timing of the allegations. Most children of a younger age have a reduced ability to understand and comprehend time. In many New Mexico child sex abuse cases, the child waits to make the allegations. In these cases, charges may be filed months or even years after the alleged crime. However, to prove a defendant’s guilt, the prosecution must identify the time period during which the alleged abuse occurred. If a child cannot identify the relevant time period, the defendant cannot be found guilty.

    Thus, an effective strategy when cross-examining child witnesses is to show the judge or jury that the child does not have a firm or accurate grasp of time. This can be done by asking questions about unrelated past events, such as what a child did for his birthday last year or who else was living at the child’s home at the time of the alleged assault. By taking the child’s answer and comparing it to verifiable facts, an attorney may be able to cast doubt on the child’s credibility, albeit not in an aggressive or intimidating way.

    Other Considerations Involving Child Witnesses

    The law recognizes that testifying in a criminal trial can be a traumatic experience for a child. At the same time, the Confrontation Clause guarantees a criminal defendant the right to confront their witnesses. However, in certain situations, the prosecution may ask the court to allow a child to testify remotely, from behind a screen, or through some other “alternate means.”

    When the prosecution makes this request, the court will conduct a hearing. During the hearing, the judge will decide whether the child would suffer “unreasonable and unnecessary mental or emotional harm” if forced to testify in open court. In doing so, the judge will consider:

    • Whether there are any alternative methods available for protecting the interests of the child or reducing the mental or emotional harm to the child;
    • Whether there are available means for protecting the interests of the child or reducing the emotional harm to the child without resorting to an alternative method;
    • The nature of the case;
    • The rights of the parties;
    • The importance of the child’s testimony to the case;
    • The extent of the emotional harm that the child may suffer if forced to testify; and
    • Any other relevant factors.

    After considering these factors, the court will then decide whether the child can testify through alternate means. Of course, having a child testify through alternate means can even further villainize a defendant, and every step should be taken to avoid this when possible.

    Contact an Experienced Sexual Abuse Law Firm Today

    If you have been charged with a New Mexico child sex abuse crime, you need the assistance of an experienced attorney who is ready to stand up for your rights. At the New Mexico Criminal Law Offices, we represent clients facing serious allegations of New Mexico sexual abuse against minors. We have decades of experience litigating these challenging cases, and know what it takes to succeed on our clients’ behalf. To learn more, and to schedule a free consultation with an experienced defense attorney, give us a call or contact us through our online form.