CASA, Kids and the Criminal Justice System

By Charlie Childress, Family Law Specialist, Children’s Rights Clinic, University of Texas, Austin

In the last issue, you got a great overview of the criminal justice system from our guest columnist, LaRu Woody. As a Court Appointed Family Advocate, usually with the specific role of Guardian ad Litem, you have a well defined role, specific duties and a right to be heard on the best interest of the child you represent in the civil suit for protection of that child. In contrast, you do not have a defined role in the related criminal trial.

Although many prosecutors have victims’ counselors who may work with children to help them get through the process, there is no requirement that the child have either an attorney or a guardian in the criminal case.

The child you represent in the CPS case may be a victim of a criminal offense or may simply be a witness to a crime. As you know, most judges in CPS cases attempt to protect the child from having to testify in open court; you will find this is not as common in the criminal courts.

More than 90% of criminal cases are resolved by plea bargains. However, if the case goes to a contested trial the defendant’s right to confront his accuser may force the prosecutor to put the child on the witness stand. As with Chapter 104 of the Family Code, the Legislature has recognized that having to testify may further traumatize a child who is already a victim.

Available alternatives to having a child directly face the alleged abuser in open court at the criminal trial are set out in Article 38.071, Code of Criminal Procedure. The child must be younger than 13 years of age and “unavailable to testify in the presence of the defendant” on a specific list of offenses. This is a very complex provision and difficult to read. Some judges and prosecutors, perhaps for that reason, do not like to use it. A little knowledge about the availability of this tool may help you encourage its use to protect the child.

Sec. 8 of Article 38.071 directs that in “making a determination of unavailability under this article, the court shall consider relevant factors including the relationship of the defendant to the child, the character and duration of the alleged offense, the age, maturity, and emotional stability of the child, and the time elapsed since the alleged offense, and whether the child is more likely than not to be unavailable to testify because:

of emotional or physical causes, including the confrontation with the defendant; or
the child would suffer undue psychological or physical harm through his involvement at the hearing or proceeding.

Sec. 10 of Article 38.071 directs that in “ordering a child to testify under this article, the court shall take all reasonable steps necessary and available to minimize undue psychological trauma to the child and to minimize the emotional and physical stress to the child caused by relevant factors, including the confrontation with the defendant and the ordinary participation of the witness in the courtroom.”

Among the options available to permit the child to testify with minimum trauma are: (a) use of a Child Advocacy Center or similar interview tape made before the charges were filed (Section 2 or Section 5); (b) live testimony of the child by closed circuit television in a manner that “shall attempt to ensure that the child cannot hear or see the defendant” (Section 3); and (c) use of a pre-recorded deposition of the child’s testimony taken outside the courtroom for showing in the courtroom with similar safeguards to those applicable to live testimony (Section 4). All the provisions of Article 38.071, Code of Criminal Procedure, attempt to balance the child’s protection with the defendant’s rights—for example by requiring that the defendant be permitted to see the child’s testimony without being in the presence of the child, and to consult with his attorney at critical times.

If the child seems fragile, you may be able to encourage the use of these tools simply by asking that they be considered and by providing contact information for the child’s therapist or other professionals who could help show why the child needs such protection.

If the child has unusual expenses, it may be possible for the provider to recover some of the costs from the Victims’ Compensation Fund managed by the Texas Attorney General’s Office. Funds may be paid to service providers on behalf of the child. Among the kinds of claims that may be paid are medical, hospital, physical therapy and nursing care charges, as well as psychiatric care and counseling required as a result of the abuse. More information about the Crime Victims’ Compensation Fund can be found at the Attorney General’s web site: www.oag.state.tx.us/victims/cvc.shtml.

Although you have no official role in the child’s criminal case, as a person who knows the child perhaps better than anyone else, you can be a valuable resource.