March 19, 2018 February 21, 2018 / Julie Brook, Esq.
When it comes to preparing a child to testify at trial, there are at least three things that differ from preparing an adult witness.
The focus should be on putting the child at ease. A child may be very frightened at the prospect of having to testify. It may help alleviate this fear to take the child and parents on a tour of the courtroom where the trial will take place. It’s important to analyze each child individually to determine how best to prepare that child. It may be best to just talk with the child to learn what he or she remembers, or you may want to ask the child questions in a non-leading manner to make the child more comfortable answering questions.
The court may permit leading questions on direct. In appropriate circumstances, the court may allow an attorney to ask a child leading questions during direct examination to elicit accurate testimony. Similarly, leading questions may be permitted to refresh recollection. But be sure to carefully prepare a young witness to testify and don’t rely on the court permitting you to lead the witness simply because he or she is a child. Under Evid C §765(b), the court must take special care to protect witnesses under age 14 from undue harassment or embarrassment and to restrict unnecessary repetition of questions.
The attorney-client privilege includes a guardian ad litem. The attorney-client privilege is broader when it comes to young children because it’s been applied to statements made by the child in response to questions asked by a guardian ad litem at the request of the child’s attorney, either to prepare the child’s answers to interrogatories or to help the attorney prepare for trial. See De Los Santos v Superior Court (1980) 27 C3d 677 (matters that minor communicates to attorney for purpose of prosecuting or defending action are subject to attorney-client privilege whether guardian obtains knowledge by presence at consultation between attorney and minor or secures information from minor for transmission to attorney). The rationale of De Los Santos appears to apply generally when preparing a minor to testify at trial.
Witness preparation is extremely important to success at trial. Get more practical advice on preparing all types of witness for trial in CEB’s California Trial Practice: Civil Procedure During Trial, chap 5. For in-depth coverage of preparing expert witnesses to testify, check out CEB’s California Expert Witness Guide, chap 12. And let the experts walk you through choosing and preparing your witnesses in CEB’s program Preparing Witnesses for Deposition and Trial, available On Demand.