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A Michigan murder with a 3-1/2-year-old girl as the sole alleged witness is part of a growing phenomenon: the use of very young children as witnesses in criminal proceedings. Experts in legal and educational circles say that prosecutors have become more comfortable with putting younger and younger witnesses on the stand. The preschool-age Michigan girl allegedly saw her father stab her mother and two siblings to death this summer. The child, who turned 4 on July 23, may testify against her father and has been interviewed by a forensic examiner. “I think prosecutors now might use a 3-year-old to testify where they wouldn’t dream of it 20 years ago,” said Lucy McGough, a family law professor at Louisiana State University Law School and author of “Child Witnesses: Fragile Voices in the American Legal System.” “To a greater degree more and more young children are being used as witnesses.” Behind the increase in the use of child witnesses is improved training of prosecutors, according to experts. Following the 1980s child abuse scandals, in which hundreds of social workers and educators were falsely accused of child sexual abuse, prosecutors nationwide placed increased emphasis on training lawyers in the areas of child reliability and child interviewing. For example, the National College of District Attorneys, a national school for prosecutors at the University of South Carolina, offers courses in child interviewing and reliability. Some state chapters of the National District Attorneys Association, based in Virginia, also offer training to prosecutors on working with children. Also contributing to the trend: A growing number of young children are witnessing violent acts, so their testimony is crucial. Defense lawyers voice concerns about child testimony. They are skeptical as to whether a child is telling the truth or has been manipulated by adults. They are particularly concerned, they say, about officers obtaining confessions from children. “The kid might start out with their own story, but my concern is, whose story is it when it comes before the jury?” said defense attorney Larry Kaluzny, a solo practitioner in West Bloomfield, Mich., who is representing the father in the Michigan case. “Once the ball starts rolling, if it is a lie, [children] can’t stop. And at some point it either becomes the truth for them, or it’s impossible for them to turn things around.” Other cases involving very young witnesses include the Charles Forshee murder trial, in which a 3-1/2-year-old Texas boy alleged that he saw his foster father suffocate his 2-year-old brother. The boy was 4 when he testified against Forshee, who was acquitted last October. Texas v. Charles Forshee, No. 922270 183rd (Jud. Dist. Ct., Harris Co., Texas). In Florida last year, five children aged 8 to 11 took the stand in a Leon County courtroom and testified that their babysitter allegedly forced them into having sex. The sitter was convicted. Florida v. Kendrill Bonds, No. 20002703 (Leon Co. Cir. Ct., 2 Judicial, Leon City, Fla.). MCMARTIN While child reliability has long been a vexing legal issue, lawyers say it became a leading social concern following the McMartin preschool case from the 1980s, in which several people in suburban Los Angeles spent years in jail falsely accused of molesting and photographing naked children in the nonexistent catacombs of a school. “That case was good because it brought the [reliability] issue to a forefront and created highly-trained experts in the field who don’t make mistakes like those that occurred in some of those cases,” said Deborah Carley, chief deputy prosecutor in the Oakland County, Mich., office, which is handling the recent murder case. “We train all of our prosecutors who deal with children to a much greater extent than we did in the past.” Carley said prosecutors today are not only less fearful of putting very young children on the stand, but they also feel more obligated to do so. “We now prosecute cases where the victims are younger than ever before,” she said. And so are some of the defendants, noted Michigan attorney Daniel Bagdade, who represented 11-year-old Nathaniel Abraham, the youngest child ever to be charged with murder as an adult. Nathaniel was convicted of second-degree murder but sentenced as a juvenile in 1999. Michigan v. Abraham, No. 9763672DL (6th Circ. Jud. Ct. Fam. Div.) “Definitely the behavior of children has gone downhill in the last number of years,” said Bagdade, a solo practitioner from West Bloomfield, Mich. Most recently, Bagdade has been hired by the court to represent the 4-year-old who allegedly saw her father kill her family. THE MICHIGAN TRIAL On June 23, a day after Daniel Franklin allegedly stabbed to death his ex-wife and her two daughters, the little girl gave this account of what happened to a forensic examiner: “Daddy got a knife from the kitchen and stabbed my mom, Rockell and Taria. Rockell asked if they could say good-by to their mother, and he said no and killed them,” the child was quoted as saying in court documents reported by the Detroit Free Press. Carley said it has not yet been determined if the child will testify against her father. She said much depends on the child’s mental state when the case goes to trial, perhaps months from now. Kaluzny, who is representing Franklin, said he will probably object to using the child’s testimony, arguing that the girl is not competent. He said a lot depends on what other evidence the prosecution comes up with. He said if the child’s testimony becomes the key piece of evidence, then an expert will have to testify as to the child’s competency. Michigan v. Daniel Franklin, No. 03-81921 (50th Distr. Ct., Pontiac, Mich.). Meanwhile, Kaluzny hesitated to guess how a judge will rule on the child’s competency. He said that in the last five years he has seen a growing number of young children take the stand. “I haven’t seen a judge say no yet to a child being able to testify,” Kaluzny said. Oakland County Circuit Judge Gene Schnelz said the key criterion in deciding whether to allow a child’s testimony is competency, specifically, whether a child can distinguish between lying and telling the truth. “The only oath you give them is, ‘Do you promise to tell the truth?’ ” said Schnelz, a former magistrate judge with 37 years of experience on the bench. Schnelz noted that when he deals with potential child witnesses, he asks them to give an example of what a promise means. He also makes up exaggerated things. “You say, I’m wearing a yellow robe. … If the child says, ‘Yeah, it’s a pretty shade, too,’ then you say, ‘Whoa, we have a problem here.’” Schnelz said. Schnelz said that a growing number of children are called to the stand now because prosecutors have become more aggressive in trying child violence cases. He said this is largely due to the increased reporting of child abuse and domestic violence, which, he believes, has helped the courts deal better with children. Defense counsel are learning how to handle child witnesses as well. Houston attorney Stanley Schneider challenged a child’s credibility in the Texas foster-parent murder trial, in which he defended Forshee, a foster parent accused of suffocating a 2-year-old boy because the child would not stop crying. The witness was the victim’s brother, Lucas, who testified that he saw Forshee smother his baby brother with a pillow. “A child is presumed by many advocates to always be a truth teller,” said Schneider, of Schneider & McKinney. “But if you take the child in other settings, in the school setting, for example, most people will tell you children are liars.” Or, he said, they are just confused about what really happened, which is what he argued before the jury when he told them that it was Lucas, an abusive boy with a history of hurting kids, who killed his brother, and that Forshee was actually trying to administer CPR to the boy, which was revealed in a 911 tape. He said another key defense strategy was challenging the boy’s memory, showing that Lucas could not remember simple things like his foster parents owning a dog or going on trips with them. “The state’s theory was that my client just cracked because he had a crying baby in the house and he was working long hours,” he said. But Schneider convinced the jury otherwise, using dozens of witnesses to paint Forshee as a loving and caring foster parent to more than 90 children in 17 years. Forshee was acquitted on Oct. 2, which, Schneider said, was expected “when you start balancing the perspective of the child and who Charlie [Forshee] was.” In the last three years, Schneider has cross-examined five children under the age of 14 in three separate criminal trials — two involving sexual abuse and one involving murder. All ended in acquittals. Schneider said his defense tactics included the following three arguments: the child is not competent; the child’s testimony was manipulated or made up by another person; the abuse never happened, it was in the imagination of the child. “You carry through the theme from the beginning to the end,” Schneider said. THE PROSECUTOR’S VIEW Anshu (Sunni) Mitchell, the prosecutor in the Forshee murder trial, said she doesn’t regret putting Lucas on the stand. “It was obviously a very difficult decision, but we did it closed circuit, and we minimized his exposure to anybody. I think it was necessary in this case,” Mitchell said. Before deciding to use Lucas as a witness, Mitchell said, she spent a lot of time with the boy. The two met at his home, sometimes at her office, and would talk about his family, his baby brother, and then they gently got into what happened the night his brother died. “I didn’t have any questions about his competency from the minute that I met him,” Mitchell said. “I never sensed any problem in his differentiating between the truth and a lie. All we wanted him to do is tell the truth about what he saw.” Despite the acquittal, and the boy’s forgetfulness during trial, Mitchell said she never doubted Lucas’ story. “He was so consistent at all times about what had happened,” Mitchell said. “I didn’t view it as his testimony falling apart. I view it as a 4-year-old child that got tired. He had been there all day. When he was asked questions that weren’t important he got tired and disinterested.”

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