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

15 Pages Posted: 9 Dec 2011 Last revised: 24 May 2013

See all articles by Jules Epstein

Jules Epstein

Widener University - Widener University School of Law

Date Written: December 8, 2011


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.

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

JEL Classification: K14, K41

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:

Jules Epstein (Contact Author)

Widener University - Widener University School of Law ( email )

4601 Concord Pike
P.O. Box 7286
Wilmington, DE 19803-0474
United States

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