Are certain procedures beneficial in the testimony of the expert witness for the prosecution of sexual abuse? Vermont has specified certain criteria for the use of expert testimony in these areas. It is the purpose of this paper to share such areas with other States in the enhancement of selecting those for the use of expert testimony in such cases.

Specifically being addressed is the child as a witness, use of developmental interpreters and use of experts for the prosecution. A very simple but true statement is that prosecution of child sexual abusers has been fraught with many difficulties. Questions arise as to the child's creditability as a witness, implantation of sexual abuse by well meaning but inexperienced relatives or professionals, and errors made by "experts" and prosecutors within the field of sexual abuse. It is not within the realm of this paper to also discuss the raging controversy surrounding the cries of "false memory syndrome" relegated to adult's now disclosing childhood sexual abuse. It would be an interesting paper in it's own right.

The competency of the child to testify is one of the first lines of attack used by defense attorneys. The Vermont Rule of Evidence 601(b) characterizes competent witnesses as those who the "court determines that

(1) the proposed witness is incapable of expressing himself concerning the matter so as to be understood by the judge and jury either directly or through interpretation by one who can understand him, or

(2) the proposed witness is incapable of understanding the duty of a witness to tell the truth." (Vermont Prosecution Manual, pg 61)

In the use of the child as a witness to their own victimization, Vermont Courts do not see age as the determining factor but the child's ability to differentiate between truth and lies. In State v Audette (1970) an eight year old child was found to be competent; State v Sorrell (1989) a six year old's was deemed competent when she replied that her mother would be mad if she lied. Two and three year old children were also found to be competent in State v Hunsaker (1984) and State v Taylor (1985).

A persistent defense attorney may not drop the issue of a child's competency to testify after one go around, but continue to question the status. In State v Dodge (1992) a Vermont judge "noted that competency is a fluid concept and a child may be competent one day, and not the next." (Vermont Prosecution Manual, pg 62)

The procedure to determine competency of the child in the state of Vermont is generally a series of questions of short duration held within the courtroom, chambers, or child's room "immediately prior to the trial" (Vermont Prosecution Manual, pg 63). All efforts are made to accommodate the needs of the child including exclusion of the defendant during the competency hearing. "The United States Supreme Court in Kentucky v Stincer, (1987) held that excluding the defendant from the competency hearing does not violate his rights under the confrontation clause of the Sixth Amendment nor under the Due Process Clause of the Fourteenth Amendment." (Vermont Prosecution Manual, pg 63)

It was also held in State v Audette that a defense attorney must confine questions to matters of competency and cannot seize the opportunity to excessively question the child as to the facts of the abuse itself. See Appendix 1 for Sample of Competency Questions.

Another tactic used by defense attorneys is to request that the child undergo psychological testing to determine competency. This approach has been determined to be detrimental to the emotional well being of the child. It has been repeatedly held that the issue of witness competency is at the discretion of the trial court. State v Sullivan (1985) and Hoover v State (1991).

In State v R.W. (1986) the court held specifically "that the 'psychiatric testing on the issue of witness competency is an extraordinary measure' and that there must be a substantial need shown by presenting evidence which reasonably indicates something peculiar, unique, or abnormal about the young witness that would influence the witness' competency" (Vermont Prosecution Manual, pg 65)

The use of a Developmental Interpreter has only been used four or five times in the State of Vermont and is a relatively new procedure. See Appendix III for cases and decisions. Developmental Interpreters are individuals who are trained and skilled in communication with young children for the purpose of obtaining testimony in legal proceedings. Although some attorneys object, it is "analogous to the use of a foreign language translator in questioning non-English speaking persons and is justified primarily on the same grounds." (Vermont Prosecution Manual, pg 77)

Without the use of this type of interpreter, the child is left to comprehend questions often directed on an adult level. The consequence is often inaccurate or incomplete testimony. Children, and particularly chronically sexually abused children, are very adept at absorbing emotional climates within their environments. The Developmental Interpreter is also well versed in skills to establish and maintain the necessary rapport with young children during the court procedures. This would also include the appropriate use of questions and demeanor required during questioning. A Developmental Interpreter is generally drawn from the counseling profession, usually a child psychologist or mental health professional, who have working knowledge of age appropriate child development. It is essential however, that these professionals be versed in the difference between interviewing techniques used for clinical practice as opposed to those used for legal ones. The use of leading questions in the elicitation of information from the child is detrimental to the case of the prosecutor.

It is also important that the interpreter only assist the child to communicate and not tell the child what to say. This was one of the concerns voiced by a judge in State v Parizo (1989) The other concern was the issue of whether use of an interpreter would force the defense to waive rights to cross examination. "In the use of videotaped testimony where a developmental interpreter is utilized, Maryland v Craig, (1990) held that the Confrontation Clause does not guarantee criminal defendants an absolute right to a face-to-face meeting with the witness against them at trial. Rather, the Court held that the Clause's main purpose is to ensure reliability of the evidence against a defendant by subjecting such evidence to the rigors of the adversary process, including taking the oath, cross-examination and an opportunity for a jury to observe the demeanor of the witness." (Vermont Prosecution Manual, pg 82) The Vermont Supreme Court held a similar view in State v Sprague (1984) in which the defendant was allowed to view the proceeding through a two way mirror and consult with his counsel who was conducting the cross examination of the child in the room.

The use of expert witnesses was described in the Vermont Prosecution Manual to be "fertile area for reversible error". (Vermont Prosecution Manual, pg 150) There are very definite lines drawn for permissible, impermissible and questionable uses of expert witnesses. In the State of Vermont it bears mentioning and heeding the holding of State v Wetherbee (1991). "The Court suggested that the practice of using the same expert both to describe the symptoms generally, and to state that the child exhibits those symptoms, raises the danger of impermissible comment on the child's credibility. The Court reasons that using the expert for both of these points suggests to the jury that the expert believes the child's claim to have been abused." (Vermont Prosecution Manual, pg 151)

Vermont is fairly lenient in affirming qualification of experts. Most cases assume the expert has at least minimal experience and education in the area of child sexual abuse. Only one case in Vermont questioned the qualification of an expert under the topic covered here. It was upheld in, 148 Vt at 461 that "the witness had a BA in elementary education and a master's degree in social work with specialization in children; had attended at least one state workshop, had pursued various studies in the area of sexual abuse and at the time of her testimony was employed as a children's social worker for Northeast Kingdom Mental Health. She had been employed there for five years and had counseled eighteen children, nine of whom were under the age of 16, who had reported sexual abuse in the latter two of those five year." (Vermont Prosecution Manual, pg 166) I

In State v Bubar (1985) the court upheld the qualification of a witness who had assisted four rape victims over a four and onehalf year period, attended several training sessions concerning the problems of rape victims and was well read on the subject of the effects of rape victims. Although the Vermont Court is relatively lenient in its assessment of expert witnesses for the prosecution, the prosecution should and can be vigilant in its objections to the experts used by defense attorneys. Many organizations who deal with child abuse have accumulated information on defense experts who often appear as experts for the defense. "The National Center for Prosecution of Child Abuse has bibliographies and materials for dissemination on many of these defense experts." (Vermont Prosecution Manual, pg 167)

Topics which may be discussed by experts for the State are the following:

1. Post-Traumatic Stress Disorder or Child Abuse Syndrome or profile.

2. Cognitive development of children

3. Incidence of insanity among child abusers

4. Physical symptoms

Topics Impermissible for expert testimony are as follows:

1. Credibility of the child victim © direct or indirect comment

2. Identity of the abuser

3. Opinion as to the child's character for truthfulness

4. Opinion that the child was abused.

. Statements by the child. Questionable uses of expert witnesses which will be listed but not detailed later in the report are:

1. Use of child's therapist as expert.

2. Child displays age inappropriate knowledge

3. Opinion that child was abused, independent of child's statements

4. Syndrome evidence absent need for rehabilitation

5. Offender profile or dysfunctional family evidence.

Sample Competency Questions: The following is taken verbatim from (Vermont Prosecution Manual)

"What is your name?

How old are you?

Where do you live?

Do you have any brothers and sisters?

What are their names?

Do you have any pets?

What are their names?

Do you go to school?

What grade are you in at school?

What did you have for breakfast this morning?

Do you have a best friend?

What is your best friend's name?

What do you like to do with your best friend?

Do you know what a lie is?

If I said the judge's robe was pink, would that be a lie?

Is it good or bad to tell the truth?

If I said to you that you are (true age), would that be the truth

or a lie?

Can you promise to tell the truth here today?"

Holdings Relative to Child Witness Competency. The following case summary is taken verbatim from (Vermont Prosecution Manual)

State v Sorrell

(1989): The Court held that a six

year old victim was competent to testify at trial where the child's response that her mother would be mad at her if she lied demonstrated that she was capable of understanding the duty to tell the truth. The Court reasoned that the trial court has broad discretion in determining a child's competency.

State v Gabaree, 149 Vt. 299 (1988)

The Vermont Supreme Court affirmed a trial court's denial of a defense motion for psychiatric examination of a child victim.

State v Audette, 128 Vt 374 (1970):

An eight year old was found competent to testify where the court was satisfied that the child understood the difference between lying and telling the truth, the significance of an oath, and the obligation to be truthful in her testimony. The Court held that only questions relating to the child's competency should be asked and no inquiries should be made regarding substantive trial testimony during the competency hearing.

Holdings relative to Developmental Interpreters Information taken verbatim from (Vermont Prosecution Manual)

State v Bickford (1987):

The trial court allowed (but did not order) the State and Defense to utilize a developmental interpreter to ask questions of a 3 year old child utilizing age appropriate vocabulary and grammar so that the child could understand the questions.

In Re: R.D., Docket No 97-12-870sJ (Feb 1988, Fisher, J.):

Court found that "children because of their age and disabilities are difficult to understand by those who are not familiar with their articulation"

State v Sheppard (N.J. Super. Ct Law Dir 1984)

Acknowledged that it is the duty of every court to conduct its proceedings in such a manner that the truth be determined. When the evidence compels it, special consideration must be given to child victims. "Truth is the ultimate quest. This is the proper interest of the prosecution, the defense, the jury, the judge and all our society in all our judicial proceedings."

Commonwealth v Ludwig (1987):

Further upheld State v Sheppard stating that such a witness is at a decided disadvantage in the quest for truth.

Area of Questioning for Defense "Experts". Information taken verbatim from (Vermont Prosecution Manual).

Education and experience in the field of child abuse.

If a physician, is he board certified.

What professional publications does he regularly receive or read?

Has he ever published any articles on the subject, and if so, in professional publications or in the popular press (or even better, in "men's magazines")?

How many sexually molested children has he treated, and over what period of time?

Was the molestation the focus of the treatment, or was it primarily in other areas?

What experience does he have in the detection of sexual abuse of children?

How does he evaluate the credibility of a report of sexual abuse?

Has he ever been qualified as an expert in the field?

Has he ever been found not qualified.

Has he ever testified for the State in a sexual abuse case?

Does he accept the existence of child abuse syndrome, as recognized by the Vermont Supreme Court?