Abstract

http://ssrn.com/abstract=1969962
 


 



Ruminations on an Ethical Issue When Examining the Child Witness: Zealous Advocacy or Destroying Evidence


Jules Epstein


Widener University - School of Law

December 8, 2011

Widener Law Review, Vol. 19, p. 165 (2013)
Widener Law School Legal Studies Research Paper No. 11-53

Abstract:     
The prosecution of Earl Bradley, based on a cache of videotape evidence confirming horrific abuse of children by their pediatrician, resolved without testimony from a single child victim/witness. Yet the spectre of a possible trial in a case such as this brings with it significant questions of professional responsibility regarding the questioning of child witnesses. In a symposium devoted to the Bradley case, a hypothetical was posed to the audience asking whether defense counsel may ‘trigger’ a child witness’ fear, rendering her unavailable to testify. The precise hypothetical asked whether, when a client tells counsel “just mention the words ‘Nightmare on Elm Street’ and the child will freeze and not say a word,” counsel may then use that phrase in a question at a pre-trial competence hearing or at trial (ensuring the child’s inability to testify).

Because the audience participation discussion failed to answer the question, this rumination on the problem followed. It examines the Model Rules, and determines, ultimately, that it is only by informing those rules with criminal law provisions [particular witness tampering statutes] and considerations of evidentiary relevance that a conclusive resolution can be made. Whether a concussive physical act or a concussive question, when there is no evidentiary relevance and the intent is to procure unavailability, the conduct is banned. That this leaves tremendous opportunity for zealous advocacy, even with the heightened stakes in a trial for charges of child abuse, is without doubt. But an attack on the right to testify based on extra-legal matters has no place in the courtroom, or in any lawyer’s arsenal.

Number of Pages in PDF File: 15

Keywords: child witnesses, evidence, cross examination, legal ethics

JEL Classification: K14, K41

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Date posted: December 9, 2011 ; Last revised: May 24, 2013

Suggested Citation

Epstein, Jules, Ruminations on an Ethical Issue When Examining the Child Witness: Zealous Advocacy or Destroying Evidence (December 8, 2011). Widener Law Review, Vol. 19, p. 165 (2013); Widener Law School Legal Studies Research Paper No. 11-53. Available at SSRN: http://ssrn.com/abstract=1969962

Contact Information

Jules Epstein (Contact Author)
Widener University - School of Law ( email )
4601 Concord Pike
P.O. Box 7286
Wilmington, DE 19803-0474
United States
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