Evidence Issues Involving Children

Many years ago my colleague Janet Mason recruited me to teach about evidence issues in abuse, neglect, dependency, and termination of parental rights cases. She asked because most of the appellate law was criminal. After some grumbling, I produced a skinny 10-page paper in 2001. I’ve been adding to it ever since, and it has grown to a much longer chapter in the just-released 2017 edition of Abuse, Neglect, Dependency, and Termination of Parental Rights Proceedings in North Carolina. Although the manual is not about criminal cases, it may be helpful to those who work in the criminal courts. You can access the manual at no charge here. You can jump directly to the evidence chapter here.

The manual may be helpful in general to criminal law practitioners in understanding the complicated world of juvenile proceedings (the shorthand term the manual uses for abuse, neglect, dependency, and TPR proceedings), which may parallel a criminal case when there are allegations of abuse or neglect. The evidence chapter is more directly relevant to criminal law practitioners, as it covers issues that arise in both criminal and juvenile cases, particularly evidence issues involving children.

In evidence as in other areas of law, context matters. Some of the issues that are significant in criminal cases are not significant in juvenile cases. For example, the Sixth Amendment right to confrontation in criminal cases, as interpreted in the U.S. Supreme Court’s landmark decision in Crawford v. Washington, doesn’t apply in noncriminal juvenile cases. The admissibility of “prior bad acts” under Evidence Rule 404(b), a frequent battleground in criminal cases, is infrequently at issue in juvenile cases, particularly juvenile cases involving allegations of neglect because the cases involve a broader inquiry into how the child was treated. Judicial notice is a big concern in juvenile cases but hardly at all in criminal cases. (For an excellent discussion of the application of Crawford in criminal cases, see Jessica Smith’s benchbook chapter on the subject and her earlier bulletin on evidence issues involving child victims and witnesses.)

The law overlaps in many respects, however. In both criminal and juvenile cases, child evidence issues can be broken into three broad categories: testimony by children; testimony about out-of-court statements by children; and opinion testimony about children. In the evidence chapter, you’ll find a review of criminal cases and the growing body of juvenile case law in each category, including the competency of a child to testify and accommodations for a child who takes the stand; restrictions on hearsay and common exceptions, such as the requirements for admitting hearsay statements by children to medical and non-medical personnel; and the law on opinion testimony, both lay and expert.

Kudos to my colleagues Sara DePasquale and Jan Simmons for this impressive edition of the manual. Many thanks to the Court Improvement Program of the North Carolina Administrative Office of the Courts, and particularly to CIP Manager Kiesha Crawford, for their continued support of the manual and other efforts to implement best practices in juvenile court. If you forget where to find the manual, bookmark the School’s Indigent Defense Manuals website, where we post defender manuals and, under the Other Manuals tab, links to other resources of interest such as this manual. If you want a bound version of the manual, you’ll be able to buy it here soon. Happy reading!