Delicate balance when a child takes the witness stand

September 06, 2006|By Julie Bykowicz | Julie Bykowicz,Sun reporter

Sitting in a booster seat on the witness stand, 6-year-old Dana leaned forward to answer a prosecutor's question: "Why don't you live with your mom anymore?"

"Because Neef shot her," the boy said. He pointed to the defendant, in a chair just a few feet away. "He shot her and then he left."

In another Baltimore courtroom days later, a prosecutor asked 10-year-old Jose, tidily dressed in a silver shirt and tie, "Do you know why you came to court today?"

"I was there when my dad was killed," he answered. "I think you need to ask me some questions because I was, like, a witness there."

Dana and Jose are some of the city's littlest murder witnesses, taking on a responsibility too scary for even some adults. They have both been to court in the past 10 days to tell jurors about the shooting deaths of their parents.

Veteran prosecutors and social workers say it's difficult - but worthwhile - to prepare a child for court. Defense attorneys, who almost always seek to have the children disqualified as witnesses, acknowledge they walk a fine line during cross-examination. Jurors tend to be sensitive to children, reacting negatively if an attorney pushes too hard.

The child and the courtroom players must begin with the basics, said Mary-Ann Burkhart, a city homicide prosecutor and former senior attorney with the American Prosecutors Research Institute's National Center for Prosecution of Child Abuse.

Asking a child to "swear or affirm under penalties of perjury" to tell the truth, as Maryland's court oath states, is likely to cause a young face to twist in confusion.

"They get in trouble for swearing," Burkhart said, so it makes more sense to ask the child to simply promise to tell the truth.

Helping children and prosecutors sort through such issues is Shannon B. Wood. Since 1999, Wood has been the full-time forensic social worker for the Baltimore state's attorney's office.

"They're called upon to do this very grown-up thing," Wood said of child witnesses. "They have seen a horribly traumatic event, and we want them to get up in front of a room full of strangers and talk about it."

On Aug, 25, Burkhart, an assistant state's attorney, took the hand of a little boy dressed in an oversized polo shirt and long shorts and led him into Judge Althea M. Handy's courtroom.

Dana was to be the first witness - the star witness - in the murder trial of Malik Vandiver, 18.

"Good morning," he told everyone as he popped onto a booster seat on the old wooden witness chair. The courtroom clerk leaned down to ask if he promised to tell the truth.

"Yes," he replied.

Burkhart started gently, asking general questions. Dana smiled slightly and swung back and forth in the chair as he gave his answers: He is a second-grader. He ate three boiled eggs for breakfast. (Was he hungry? she asked. "Yes!" he answered.)

Then Burkhart asked Dana about his mother, Bayonna Cox, 29. He said Neef - which is what Dana called the defendant - had shot her. He said he had heard "a boom" and saw Neef run from his mother's room.

"Did Neef have anything in his hands?" Burkhart asked.

"His gun," the boy replied.

Days after the Jan. 8, 2005, shooting, a social worker asked Dana if he knew what a gun looked like. In black marker, the boy drew a miniature handgun in the middle of a piece of yellow legal paper. At the top, he printed his name in big letters - only the "N" was backward.

Burkhart entered the drawing into evidence.

Dana testified that after Neef left the house, he went into his mother's room and "saw a lot of blood on the floor." He picked up his toddler brother and set him on the bed. He recognized a bullet shell.

Defense attorney Tom Kane, who has raised seven children of his own, began his cross-examination this way: "Dana," he said. "May I call you `Dana'?"

Later, Kane did a double take as Dana told him what he had been watching on television the morning of the shooting: Ed, Edd n Eddy, a popular show on the Cartoon Network.

"I'm sorry, I don't understand that," Kane said. "Is that a cartoon?"

Dana could be heard humming softly during courtroom pauses, such as bench conferences. During one conference, Burkhart objected to Kane's asking Dana specifics about the size of his bedroom - something she said a boy couldn't be expected to know.

"The fact that the state's witness has difficulty answering those questions doesn't mean I don't get to ask them," Kane said. Handy agreed with Kane but urged him be mindful of Dana's age.

Children can qualify as witnesses if they meet five criteria, said Assistant State's Attorney Julie Drake, head of the felony family violence unit.

They must be able to perceive what happened, remember it, articulate it in court, know what testifying under oath means and be able to tell the truth from a falsehood.

A 2004 U.S. Supreme Court decision about hearsay has left uncertainty as to whether guidance counselors, psychiatrists and others can testify on behalf of children who have told them about abuse.

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