Rule on Examination of a Child Witness (A.M. No. 004-07-SC) - ALBURO ALBURO AND ASSOCIATES LAW OFFICES

Photo from Pexels | RDNE Stock project

The following post does not create a lawyer-client relationship between Alburo Alburo and Associates Law Offices (or any of its lawyers) and the reader. It is still best for you to engage the services of a lawyer or you may directly contact and consult Alburo Alburo and Associates Law Offices to address your specific legal concerns, if there is any.

Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.

AT A GLANCE:

The Rule on Examination of a Child Witness shall govern the examination of child witnesses who are victims of crime, accused of a crime, and witnesses to crime. It shall apply in all criminal proceedings and non-criminal proceedings involving child witnesses.

The objectives of this Rule are to create and maintain an environment that will allow children to give reliable and complete evidence, minimize trauma to children, encourage children to testify in legal proceedings, and facilitate the ascertainment of truth.

Child Witness

Any person who at the time of giving testimony is below the age of eighteen (18) years. In child abuse cases, a child includes one over eighteen (18) years but is found by the court as unable to fully take care of himself or protect himself from abuse, neglect, cruelty, exploitation, or discrimination because of a physical or mental disability or condition.

Best interests of the child

The totality of the circumstances and conditions as are most congenial to the survival, protection, and circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the child and most encouraging to his physical, psychological, and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the child.

Guardian ad litem

The court may appoint a guardian ad litem for a child who is a victim of, accused of, or a witness to a crime to promote the best interests of the child. In making the appointment, the court shall consider the background of the guardian ad litem and his familiarity with judicial process, social service programs, and child development, giving preference to the parents of the child, if qualified. The guardian ad litem may be a member of the Philippine Bar. A person who is a witness in any proceeding involving the child cannot be appointed as a guardian ad litem.
The guardian ad litem:
1. Shall attend all interviews, depositions, hearings, and trial proceedings in which a child participates;
2. Shall make recommendations to the court concerning the welfare of the child;
3. Shall have access to all reports, evaluations, and records necessary to effectively advocate for the child, except privileged communications;
4. Shall marshal and coordinate the delivery of resources and special services to the child;
5. Shall explain, in language understandable to the child, all legal proceedings, including police investigations, in which the child is involved;
6. Shall assist the child and his family in coping with the emotional effects of crime and subsequent criminal or non-criminal proceedings in which the child involved;
7. May remain with the child while the child waits to testify;
8. May interview witnesses; and
9. May request additional examinations by medical or mental health professionals if there is a compelling need therefor.
The guardian ad litem shall be notified of all proceedings but shall not participate in the trial. If the guardian ad litem is a lawyer, he may object during trial that questions asked of the child are not appropriate to his developmental level.
The guardian ad litem may communicate concerns regarding the child to the court through an officer of the court designated for that purpose.
The guardian ad litem shall not testify in any proceeding concerning any information, statement, or opinion received from the child in the course of serving as a guardian ad litem, unless the court finds it necessary to promote the best interests of the child.
The guardian ad litem shall be presumed to have acted in good faith in compliance with his duties described in sub-section (b).

Competency

Every child is presumed qualified to be a witness. However, the court shall conduct a competency examination of a child, motu proprio or on motion of a party, when it finds that substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court.

A party seeking a competency examination must present proof of necessity of competency examination. The age of the child by itself is not a sufficient basis for competency examination.
To rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party challenging his competence.
Only the following are allowed to attend a competency examination:
1. The judge and necessary court personnel;
2. The counsel for the parties;
3. The guardian ad litem;
4. One or more support persons for the child; and
5. The defendant, unless the court determines that competence can be fully evaluated in his absence.
Examination of a child as to his competence shall be conducted only by the judge. Counsel for the parties, however, can submit questions to the judge that he may, in his discretion, ask the child.
The questions asked at the competency examination shall be appropriate to the age and developmental level of the child; shall not be related to the issues at trial; and shall focus on the ability of the child to remember, communicate, distinguish between truth and falsehood, and appreciate the duty to testify truthfully.
The court has the duty of continuously assessing the competence of the child throughout his testimony.

Examination of a child witness

The examination of a child witness presented in a hearing or any proceeding shall be done in open court. Unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally.

The party who presents a child witness or the guardian ad litem of such child witness may, however, move the court to allow him to testify.

Interpreter for child

When a child does not understand the English or Filipino language or is unable to communicate in said languages due to his developmental level, fear, shyness, disability, or other similar reason, an interpreter whom the child can understand and who understands the child may be appointed by the court, motu proprio or upon motion, to interpret for the child.
If a witness or member of the family of the child is the only person who can serve as an interpreter for the child, he shall not be disqualified and may serve as the interpreter of the child. The interpreter, however, who is also a witness, shall testify ahead of the child.
An interpreter shall take an oath or affirmation to make a true and accurate information.

Facilitator to pose questions to child

The court may, motu proprio or upon motion, appoint a facilitator if it determines that the child is unable to understand or respond to questions asked. The facilitator may be child psychologist, psychiatrist, social worker, guidance counselor, teacher, religious leader, parent, or relative.
If the court appoints a facilitator, the respective counsels for the parties shall pose questions to the child only through the facilitator. The questions shall either be in the words used by counsel or, if the child is not likely to understand the same, in words that are comprehensible to the child and which convey the meaning intended by counsel.
The facilitator shall take an oath or affirmation to pose questions to the child according to the meaning intended by counsel.

Support persons

A child testifying at a judicial proceeding or making a deposition shall have the right to be accompanied by one or two persons of his own choosing to provide him emotional support.
1. Both support persons shall remain within the view of the child during his testimony.
2. One of the support persons may accompany the child to the witness stand, provided the support person does not completely obscure the child from the view of the opposing party, judge, or hearing officer.
3. The court may allow the support person to hold the hand of the child or take other appropriate steps to provide emotional support to the child in the course of the proceedings.
4. The court shall instruct the support persons not to prompt, sway, or influence the child during his testimony.
If the support person during the testimony of the child would pose a substantial risk of influencing or affecting the content of the testimony of the child.
If the support person who is also a witness is allowed by the court, his testimony shall be presented ahead of the testimony of the child.

Waiting area for child witnesses

The courts are encouraged to provide a waiting area for children that is separate from waiting areas used by other persons. The waiting area for children should be furnished so as to make a child comfortable.

Courtroom environment

To create a more comfortable environment for the child, the court may, in its discretion, direct and supervise the location, movement and deportment of all persons in the courtroom including the parties, their counsel, child, witnesses, support persons, guardian ad litem, facilitator, and court personnel. The child may be allowed to testify from a place other than the witness chair. The witness chair or other place from which the child testifies may be turned to facilitate his testimony but the opposing party and his counsel must have a frontal or profile view of the child during the testimony of the child. The witness chair or other place from which the child testifies may also be rearranged to allow the child to see the opposing party and his counsel, if he chooses to look at them, without turning his body or leaving the witness stand. The judge need not wear his judicial robe.

Recess during testimony

The child may be allowed reasonable periods of relief while undergoing direct, cross, re-direct, and re-cross examinations as often as necessary depending on his developmental level.

Testimonial Aids

The court shall permit a child to use dolls, anatomically-correct dolls, puppets, drawings, mannequins, or any other appropriate demonstrative device to assist him testimony.

Mode of questioning

The court shall exercise control over the questioning of children so as to (1) facilitate the ascertainment of the truth, (2) ensure that questions are stated in form appropriate to the developmental level of the child, (3) protect children from harassment or undue embarrassment, and (4) avoid waste of time.

Leading questions

The court may allow leading questions in all stages of examination of a child if the same will further the interests of justice.

Objections to questions

Objections to questions should be couched in a manner so as not to mislead, confuse, frighten, or intimidate the child.

Corroboration

Corroboration shall not be required of a testimony of a child. His testimony, if credible by itself, shall be sufficient to support a finding a fact, conclusion, or judgment subject to the standard of proof required in criminal and non-criminal cases.

Excluding the public

When a child testifies, the court may order the exclusion from the courtroom of all persons, including members of the press, who do not have a direct interest in the case. Such an order may be made to protect the right to privacy of the child or if the court determines on the record that requiring the child to testify in open court would cause psychological harm to him, hinder the ascertainment of truth, or result in his inability to effectively communicate due to embarrassment, fear, or timidity. In making its order, the court shall consider the developmental level of the child, the nature of the crime, the nature of his testimony regarding the crime, his relationship to the accused and to persons attending the trial, his desires, and the interests of his parents or legal guardian. The court may, motu proprio, exclude the public from the courtroom if the evidence to be produced during trial is of such character as to be offensive to decency or public morals. The court may also, on motion of the accused, exclude the public from trial, except court personnel and the counsel of the parties.

Live-link television testimony in criminal cases where the child is a victim or a witness

a) The prosecutor, counsel or the guardian ad litem may apply for an order that the testimony of the child be taken in a room outside the courtroom and be televised to the courtroom by live-link television.

Before the guardian ad litem applies for an order, he shall consult the prosecutor or counsel and shall defer to the judgment of the prosecutor or counsel regarding the necessity of applying for an order. In case the guardian ad litem is convinced that the decision of the prosecutor or counsel not to apply will cause the child serious emotional trauma, he himself may apply for the order.

The person seeking such an order shall apply at least five (5) days before the trial date, unless the court finds on the record that the need for such an order was not reasonably foreseeable.

b) The court may motu proprio hear and determine, with notice to the parties, the need for taking the testimony of the child through live-link television.

c) The judge may question the child in chambers, or in some comfortable place other than the courtroom, in the presence of the support person, guardian ad litem, prosecutor, and counsel for the parties. The questions of the judge shall not be related to the issues at trial but to the feelings of the child testifying in the courtroom.

d) The judge may exclude any person, including the accused, whose presence or conduct causes fear to the child.

e) The court shall issue an order granting or denying the use of live-link television and stating the reasons therefor. It shall consider the following factors:

The age and level of development of the child;
His physical and mental health, including any mental or physical disability;
Any physical, emotional, or psychological injury experienced by him;
The nature of the alleged abuse;
Any threats against the child;
His relationship with the accused or adverse party;
His reaction to any prior encounters with the accused in court or elsewhere;
His reaction prior to trial when the topic of testifying was discussed with him by parents or professionals;
Specific symptoms of stress exhibited by the child in the days prior to testifying;
Testimony of expert or lay witnesses;
The custodial situation of the child and the attitude of the members of his family regarding the events about which he will testify; and
Other relevant factors, such as court atmosphere and formalities of court procedure.

f) The court may order that the testimony of the child be taken by live-link television if there is a substantial likelihood that the child would suffer trauma from testifying in the presence of the accused, his counsel or the prosecutor as the case may be. The trauma must be of a kind which would impair the completeness or truthfulness of the testimony of the child.

g) If the court orders the taking of testimony by live-link television:

The child shall testify in room separate from the courtroom in the presence of the guardian ad litem; one or both of his support persons; the facilitator and interpreter, if any; a court officer appointed by the court; persons whose presence are determined by the court to be necessary to the welfare and well-being of the child;
The judge, prosecutor, accused, and counsel for the parties shall be in the courtroom. The testimony of the child shall be transmitted by live-link television into the courtroom for viewing and hearing by the judge, prosecutor, counsel for the parties, accused, victim, and the public unless excluded.
If it is necessary for the child to identify the accused at trial, the court may allow the child to enter the courtroom for the limited purpose of identifying the accused, or the court may allow the child to identify the accused by observing the image of the latter on a television monitor.
The court may set other conditions and limitations on the taking of the testimony that it finds just and appropriate, taking into consideration the best interests of the child.

h) The testimony of the child shall be preserved on videotape, digital disc, or other similar devices which shall be made part of the court record and shall be subject to a protective order.

Screens, one-way mirrors, and other devices to shield child from accused

The prosecutor, counsel, or guardian ad litem may apply for an order that the chair of the child or that a screen or other device be placed in the courtroom in such a manner that the child cannot see the accused while testifying. Before the guardian ad litem applies for an order under this section, he shall consult with the prosecutor or counsel. The court shall issue an order stating the reasons and describing the approved courtroom arrangement.
If the court grants an application to shield the child from the accused while testifying in the courtroom, the courtroom shall be arranged to enable the accused to view the child.

Videotaped deposition

The prosecutor, counsel, or guardian ad litem may apply for an order that a deposition be taken of the testimony of the child and that it be recorded and preserved on videotape. Before the guardian ad litem applies for an order, he shall consult with the prosecutor or counsel.
If the court finds that the child will not be able to testify in open court at trial, it shall issue an order that the deposition of the child be taken and preserved by videotape.
The judge shall preside at the videotaped deposition of a child. Objections to deposition testimony or evidence, or parts thereof, and the grounds for the objection shall be stated and shall be ruled upon at the time of the taking of the deposition. The other persons who may be permitted to be present at the proceeding are:
1. The prosecutor;
2. The defense counsel;
3. The guardian ad litem;
4. The accused
5. Other persons whose presence is determined by the court to be necessary to the welfare and well-being of the child;
6. One or both of his support persons, the facilitator and interpreter, if any;
7. The court stenographer; and
8. Persons necessary to operate the videotape equipment.
The rights of the accused during trial, especially the right to counsel and to confront and cross-examine the child, shall not be violated during the deposition.
If the order of the court is based on evidence that the child is unable to testify in the physical presence of the accused, the court may direct the latter to be excluded from the room in which the deposition is conducted. In case of exclusion of the accused, the court shall order that the testimony of the child be taken by live-link television. If the accused is excluded from the deposition, it is not necessary that the child be able to view an image of the accused.
The videotaped deposition shall be preserved and stenographically recorded. The videotape and the stenographic notes shall be transmitted to the clerk of court where the case is pending for safekeeping and shall be made a part of the record.
The court may set other conditions on the taking of the deposition that it finds just and appropriate, taking into consideration the best interests of the child, the constitutional rights of the accused, and other relevant factors.
The videotaped deposition and stenographic notes shall be subject to a protective order.
If, at the time of trial, the court finds that the child is unable to testify for a reason, or is unavailable for any reason, the court may admit into evidence the videotaped deposition of the child in lieu of his testimony at the trial. The court shall issue an order stating the reasons therefor.
After the original videotaping but before or during trial, any party may file any motion for additional videotaping on the ground of newly-discovered evidence. The court may order an additional videotaped deposition to receive the newly discovered evidence.

Hearsay exception in child abuse cases

A statement made by a child, describing any act or attempted act of child abuse, not otherwise admissible under the hearsay rule, may be admitted in evidence in any criminal or non-criminal proceeding subject to the following rules:

Before such hearsay statements may be admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object. If the child is available, the court shall, upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for cross-examination by the adverse party. When the child is unavailable, the fact of such circumstance must be proved by the proponent.
In ruling on the admissibility of such hearsay statement, the court shall consider the time, content and circumstances thereof which provide sufficient indicia of reliability. It shall consider the following factors:
1. Whether there is a motive to lie;
2. The general character of the declarant child;
3. Whether more than one person heard the statement;
4. Whether the statement was spontaneous;
5. The timing of the statement and the relationship between the declarant child and witness;
6. Cross-examination could not show the lack of knowledge of the declarant child;
7. The possibility of faulty recollection of the declarant child is remote; and
8. The circumstances surrounding the statement are such that there is no reason to suppose the declarant child misrepresented the involvement of the accused.
The child witness shall be considered unavailable under the following situations:
1. Is deceased, suffers from physical infirmity, lack of memory, mental illness, or will be exposed to severe psychological injury; or
2. Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means.
When the child witness is unavailable, his hearsay testimony shall be admitted only of corroborates by other admissible evidence.

Admissibility of videotaped and audiotaped in-depth investigate or disclosure interviews in child abuse cases.

The court may admit videotape and audiotape in-depth investigative or disclosure interviews as evidence, under the following conditions:

The child witness is unable to testify in court on grounds and under conditions established under the above-mentioned.
The interview of the child was conducted by duly trained members of a multidisciplinary team or representatives of law enforcement or child protective services in situations where child abuse is suspected so as to determine whether child abuse occurred.
The party offering the videotape or audiotape must prove that:
1. The videotape or audiotape discloses the identity of all individuals present and at all times includes their images and voices;
2. The statement was not made in response to questioning calculated to lead the child to make a particular statement or is clearly shown to be the statement of the child and not the product of improper suggestion;
3. The videotape and audiotape machine or device was competent to operate it;
4. The videotape or audiotape is authentic and correct; and
5. It has been duly preserved.

The individual conducting the interview of the child shall be available at trial for examination by any party. Before the videotape or audiotape is offered in evidence, all parties shall be afforded an opportunity to view or listen to it and shall be furnished a copy of a written transcript of the proceedings.

The fact that an investigative interview is not videotaped or audiotaped as required by this section shall not by itself constitute a basis to exclude from evidence out-of-court statements or testimony of the child. It may, however, be considered in determining the reliability of the statements of the child describing the abuse.

Sexual Abuse Shield Rule

Inadmissible evidence- the following evidence is not admissible in any criminal proceeding involving alleged child sexual abuse:
1. Evidence offered to prove that the alleged victim engaged in other sexual behavior; and
2. Evidence offered to prove the sexual predisposition of the alleged victim.
Exception- evidence of specific instances of sexual behavior by the alleged victim to prove that a person other than the accused was the source of semen, injury, or other physical evidence shall be admissible.

A party intending to offer such evidence must:

File a written motion at least fifteen (15) days before trial, specifically describing the evidence and stating the purpose for which it is offered, unless the court, for good cause, requires a different time for filing or permits filing during trial; and
Serve the motion on all parties and the guardian ad litem at least three (3) days before the hearing of the motion.

Before admitting such evidence, the court must conduct a hearing in chambers and afford the child, his guardian as litem, the parties, and their counsel a right to attend and be heard. The motion and the record of the hearing must be sealed and remain under seal and protected by a protective order. The child shall not be required to testify at the hearing in chambers except with his consent.

Click here to subscribe to our newsletter

Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries regarding legal services, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/ 0917-5772207/ 09778050020.

0 Shares

Leave a Reply Cancel reply