In Family Court, children are often witnesses to matters before the Court. Children may witness domestic violence between their parents. They may provide exculpatory information to refute allegations of adultery or neglect. In such cases, trial Courts usually shy away from placing children on the witness stand in open Court and instead conduct child interviews in the judge’s chambers, where the child’s testimony is critical. The prevailing view is that method of information testing protects children.
In cases brought by the Division of Child Protection and Permanency (DCP&P, formerly DYFS), the child is the subject of the action. The child is person alleged to be in need of protection. So, courts go above and beyond — not only to ensure the child is subjected to in-court testimony, but also to avoid any child testimony, including child interviews. In DCP&P cases, children’s hearsay statements of abuse may be admitted into evidence; however, no such statement is sufficient to make a finding of abuse absent corroboration. N.J.S.A. 9:6-8.46(a)(4). Despite this broad exception to the hearsay rule, the Court must still find “credible, corroborative evidence” as a precondition to admissibility of the statement. New Jersey Division of Youth and Family Services v. L.A., 357 N.J.Super. 155, 167 (App.Div.2003).
Anecdotal experience finds that judges in DCP&P matters often prefer to admit the child’s statements of abuse in lieu of live testimony. But what happens when there is no corroboration for the child’s statements, rendering them inadmissible? The Division may still choose to proceed, in which case the child’s testimony is required. Trial judges, many of whom were litigators before they were elevated to the bench, are often adept at handling direct examination.
But what about cross examination? What happens when defense counsel desires to confront a child witness with inconsistent statements? What happens if the trial judge does not “confront” the child, but rather, gingerly explores the topic with the child? Is not cross examination the best device we have in an adversarial system for unearthing the truth? What becomes of that adversarial system when a trial judge refuses to become adversarial with a witness, and hence, defense counsel is deprived of the most effective means of challenging the child’s statements?
What about the element of surprise? With a witness on the witness stand, defense counsel can confront the witness with pictures, recordings, written statements – anything likely to call into question the witness’s credibility. A witness’s credibility is always at issue when he or she testifies; therefore, the New Jersey Rules of Evidence contemplate allowing broad latitude to counsel when exploring the witness’s truthfulness. N.J.R.E. 611(b). A party may introduce extrinsic evidence relevant to credibility, whether or not that extrinsic evidence bears upon the subject matter of the action. State v. Johnson, 216 N.J. Super. 588, 603 (App. Div. 1987). What happens when defense counsel is deprived of the element of surprise, inasmuch as she must present the information to the trial judge (and opposing counsel) in advance, rather than during live testimony? Certainly, that takes some of the momentum out of the questioning.
There are no easy answers to these questions. But, raise these questions (and more) when presenting questions to the trial judge to be asked of the witness. R. 5:8-6 affords counsel the right to pose questions to be asked of the child by the trial judge. Use the presentment of questions as your opportunity to educate the judge about the inconsistencies. Just as there are times when attorneys ask marginally appropriate questions of witnesses moreso to elicit a reaction than to obtain the answer to the question – so, too, should counsel use every opportunity to present questions to inform the Court of weaknesses in the Division’s case.