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Sun Mar 29, 2015, 06:50 AM

 

Should a 3-year-old child's testimony to his teacher (on child abuse) be admitted in court?

A 3 year old with bruises on his face told his teacher that his step-dad caused the injuries. She called child protective service and the man ended up being tried and convicted. The judge ruled that a 3 year old was incompetent to testify, but his words to the teacher count as evidence.

The accused says that he should be able to exercise his Constitutional right to confront the witness ( the 3 year old) or else the kid's testimony to the teacher cannot be admitted in court. What's your say?

http://www.cleveland.com/open/index.ssf/2015/02/supreme_court_case_from_clevel.html

60 replies, 5073 views

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Reply Should a 3-year-old child's testimony to his teacher (on child abuse) be admitted in court? (Original post)
dariomax Mar 2015 OP
Chemisse Mar 2015 #1
marble falls Mar 2015 #2
Vinca Mar 2015 #3
dariomax Mar 2015 #7
Erich Bloodaxe BSN Mar 2015 #33
smirkymonkey Mar 2015 #40
GGJohn Mar 2015 #16
Chemisse Mar 2015 #35
sendero Mar 2015 #4
surrealAmerican Mar 2015 #5
dariomax Mar 2015 #9
Igel Mar 2015 #10
alphafemale Mar 2015 #6
Post removed Mar 2015 #11
alphafemale Mar 2015 #12
99Forever Mar 2015 #13
alphafemale Mar 2015 #18
Post removed Mar 2015 #19
boston bean Mar 2015 #25
smirkymonkey Mar 2015 #41
Snotcicles Mar 2015 #43
GGJohn Mar 2015 #21
ScreamingMeemie Mar 2015 #37
boston bean Mar 2015 #15
alphafemale Mar 2015 #20
boston bean Mar 2015 #22
davidpdx Mar 2015 #23
boston bean Mar 2015 #24
davidpdx Mar 2015 #27
99Forever Mar 2015 #26
davidpdx Mar 2015 #28
99Forever Mar 2015 #29
Gormy Cuss Mar 2015 #45
cwydro Mar 2015 #34
boston bean Mar 2015 #30
smirkymonkey Mar 2015 #42
BainsBane Mar 2015 #56
Chemisse Mar 2015 #36
jtuck004 Mar 2015 #8
MannyGoldstein Mar 2015 #14
Orrex Mar 2015 #17
dariomax Mar 2015 #50
Orrex Mar 2015 #51
Erich Bloodaxe BSN Mar 2015 #31
alphafemale Mar 2015 #32
dariomax Mar 2015 #48
dariomax Mar 2015 #57
Chemisse Mar 2015 #38
dariomax Mar 2015 #47
Erich Bloodaxe BSN Mar 2015 #53
lumberjack_jeff Mar 2015 #39
Lancero Mar 2015 #44
elehhhhna Mar 2015 #46
BainsBane Mar 2015 #49
LWolf Mar 2015 #52
qazplm Mar 2015 #58
LWolf Mar 2015 #60
Kalidurga Mar 2015 #54
teenagebambam Mar 2015 #55
dariomax Mar 2015 #59

Response to dariomax (Original post)

Sun Mar 29, 2015, 07:19 AM

1. This paragraph sums up my concern:

"Statements by child witnesses present particular reliability risks due to children's susceptibility to particular modes of questioning, suggestion, and coaching," says a brief from the organization. "The unreliability of child-witness testimony is established not only by an extensive body of research but also by numerous wrongful convictions that were secured on the basis of child-witness testimony that subsequently proved untrue."


I don't think small children should have to face the defendants in court, but I do think that witness testimony, such as the day care provider's, needs to have a lot of supporting evidence to go with it.

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Response to Chemisse (Reply #1)

Sun Mar 29, 2015, 07:49 AM

2. Difficult choice, eh? The possible victim is also an unreliable witness and not for any culpable....

reason. On which side do we allow "justice" to err? I surely don't know.

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Response to dariomax (Original post)

Sun Mar 29, 2015, 08:12 AM

3. I would think the child's words - which are totally spontaneous - would be the best evidence.

To not admit them into evidence might be sealing the kid's fate. If the step-dad is found innocent for lack of evidence, how do you not return the child to the family?

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Response to Vinca (Reply #3)

Sun Mar 29, 2015, 08:35 AM

7. At first the child said he fell

 

Wasnt that both spontaneous and wrong?

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Response to dariomax (Reply #7)

Sun Mar 29, 2015, 10:58 AM

33. Abused children (or even adults) are often intimidated and 'coached' by their abusers.

The tv trope shorthand for this is the 'I ran into a door'/'fell down the stairs' line coming from an abused person. Ie, the person is told to give a lie if asked about the injuries. If that's the case, it's in no way 'spontaneous'.

They need to discover exactly what the teacher might have said to the child in eliciting the words about the step-parent to see if those words were spontaneous or 'led'.

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Response to Erich Bloodaxe BSN (Reply #33)

Sun Mar 29, 2015, 12:14 PM

40. I always used to say I fell or that I walked into a door

 

whenever anyone asked about my bruises or scrapes. I was ashamed that I was being abused, I thought it was my fault. Sometimes children will say that first because it feels too threatening to tell the truth, for a number of reasons.

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Response to Vinca (Reply #3)

Sun Mar 29, 2015, 10:12 AM

16. Please read about the McMartin case and the Wenatchee witchhunt

and then get back to us and tell us if you still believe your statement.

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Response to Vinca (Reply #3)

Sun Mar 29, 2015, 12:00 PM

35. How spontaneous were they?

That's the problem. It is incredibly easy to lead a small child to say what you expect them to say. The truth is quite malleable to a three-year-old. A story about what happened is just as valid as the reality. Even if the questions were not leading in the slightest, you can still get a wild tale from a toddler.

That's why there was a sudden epidemic of day care sexual abuse back in the 1980s(?). Day cares were closed; caretakers arrested. And each time it happened, more parents anxiously asked their children if any of the teachers ever touched them or took their clothes off, etc. Most of the charges were dropped and convictions overturned, once it became evident that it was more the result of mass hysteria transmitted to the children by adults.

When a child talks about something that could be considered abuse, it is suggestive of abuse and needs to be investigated. But other evidence needs to be established before anyone goes to prison.

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Response to dariomax (Original post)

Sun Mar 29, 2015, 08:15 AM

4. Only if the kid...

... has NEVER been alone with a prosecutorial minion, i.e. "interrogated" without tapes the jury can see because it is well known that kids are easily coached.

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Response to dariomax (Original post)

Sun Mar 29, 2015, 08:17 AM

5. I think the judge ruled appropriately.

With a child that young, what they say (to the teacher in this case) shortly after the incident will be far more reliable than what they might say months later.

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Response to surrealAmerican (Reply #5)

Sun Mar 29, 2015, 08:36 AM

9. The first thing he said was that he fell

 

How reliable is that?

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Response to dariomax (Reply #9)

Sun Mar 29, 2015, 09:35 AM

10. Probably not very.

And that's the problem. Youngsters' testimony's a can of worms.

1. Kids will often say what they think they need to say. Perhaps to protect a parent, possibly out of fear or confusion. Yeah, they're "lying," but they're not of age and it's hard for a kid that's three to consistently stand up to an adult or take sides against a caregiver s/he's bonded with. "I fell" is a lot better than "Daddy beat the crap out of me."

2. Memories are flexible and reconstructed every time you recall something. You don't usually remember words or details. You fill them in. They can be altered, adapted, revised, even planted or created. And that's with adults. You don't recall the original event, you recall the event as you last remembered it.

With kids it's very easy for this to happen. It happens with adults, but it's fairly common with kids. Even without manipulation.

The kid at first said he fell. Then the story changed. Did it change because mommy talked to him? Because the guy he's accusing now didn't give him something he wanted and the kid's being vindictive? Because some other adult asked and planted the idea in his head? It could go either way. But the veracity of that initial, more spontaneous claim can be evaluated. It's harder to evaluate how true the revised story is: You already know it's revised. Heck, that first story might already be revised from what happened.

Teachers make mistakes, as do all people, but at least that's a kind of corroboration as to what the kid said at a given time. The closer to the actual event, the better--it's why contemporaneous records matter in law suits. Even if we assume that a 3-year-old really can distinguish clearly between saying the truth and saying things that aren't true (but which he might sincerely believe to be true).

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Response to dariomax (Original post)

Sun Mar 29, 2015, 08:18 AM

6. Something that fell out of a rats ass > An asshole that hit a 3 year old in the face

That little whining punk about his rights to confront and verbally bully the tiny child he has already pummeled?

I hate to share the air with some dreadful assholes.

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Response to alphafemale (Reply #6)


Response to Post removed (Reply #11)

Sun Mar 29, 2015, 09:53 AM

12. Manhate?

Keep his fists off a babies face and we're cool.

His entire future was lost when he can't keep his hands from injuring a child.

Fuck off asshole.

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Response to alphafemale (Reply #12)

Sun Mar 29, 2015, 10:05 AM

13. Yes manhate.

Here's what your sort of presupposing of guilt can do:

http://losangeles.cbslocal.com/2014/08/04/30-years-later-key-figures-reflect-on-mcmartin-child-abuse-case/

Shame on you.

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Response to 99Forever (Reply #13)

Sun Mar 29, 2015, 10:15 AM

18. Shame on a human piece of trash that has no defense other than bullying a battered baby.

Sell that horseshit someplace else.

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Response to alphafemale (Reply #18)


Response to Post removed (Reply #19)

Sun Mar 29, 2015, 10:35 AM

25. That's not very nice. You called her a "manhater" out of the blue.

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Response to boston bean (Reply #25)

Sun Mar 29, 2015, 12:17 PM

41. Exactly! WTF? It's more like abusive, child beating asshole hater.

 

What was with that leap of assumption?

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Response to boston bean (Reply #25)

Sun Mar 29, 2015, 12:24 PM

43. +1 nt

 

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Response to 99Forever (Reply #13)

Sun Mar 29, 2015, 10:23 AM

21. Or this one.

Last edited Sun Mar 29, 2015, 12:08 PM - Edit history (1)

The Wenatchee Witch Hunt of 1994-95.

http://en.wikipedia.org/wiki/Wenatchee_child_abuse_prosecutions

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Response to GGJohn (Reply #21)

Sun Mar 29, 2015, 12:05 PM

37. For me, the worst will always be the Kellers. 2 decades of their lives...lost.

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Response to alphafemale (Reply #12)

Sun Mar 29, 2015, 10:12 AM

15. I just served on a jury for your post. I voted to leave it.

the "manhate" comment was more offensive, imho.

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Response to boston bean (Reply #15)

Sun Mar 29, 2015, 10:23 AM

20. lol...I was alerted?

Yeah.

That manhate comment sent me full fang.

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Response to alphafemale (Reply #20)

Sun Mar 29, 2015, 10:27 AM

22. Yeah, it was bait. got left to leave vote 4-3.

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Response to alphafemale (Reply #12)

Sun Mar 29, 2015, 10:30 AM

23. I was on the jury, a bit shocked at the outcome.

On Sun Mar 29, 2015, 09:06 AM an alert was sent on the following post:

Manhate?
http://www.democraticunderground.com/?com=view_post&forum=1002&pid=6431917

REASON FOR ALERT

This post is disruptive, hurtful, rude, insensitive, over-the-top, or otherwise inappropriate.

ALERTER'S COMMENTS

Is this what passes for discussion on this forum these days? "Fuck off asshole."

You served on a randomly-selected Jury of DU members which reviewed this post. The review was completed at Sun Mar 29, 2015, 09:14 AM, and the Jury voted 3-4 to LEAVE IT.

Juror #1 voted to LEAVE IT ALONE
Explanation: sometimes the response is necessary, to the absolute insulting comment. Leave it.
Juror #2 voted to LEAVE IT ALONE
Explanation: No explanation given
Juror #3 voted to HIDE IT
Explanation: Everything up until the part where the poster writes the last line is within bounds. It is telling someone to "fuck off" and calling them an asshole that is against the rules on DU
Juror #4 voted to LEAVE IT ALONE
Explanation: No explanation given
Juror #5 voted to HIDE IT
Explanation: I like this poster, but I always vote to hide personal attacks like this. I do understand the emotion that probably caused it however.
Juror #6 voted to HIDE IT
Explanation: over the line
Juror #7 voted to LEAVE IT ALONE
Explanation: Not sure who "fuck off asshole" is directed at. The stepdad in the OP, or 99Forever?

-----------------------------------------------------------------------------------------------------------

It would be interesting to hear from Juror #1 who voted to leave it alone and basically said the person had it coming, Juror #2 and #3 voted to leave it with no explanation.

The person alerted on had 2 hides already in the past 90 days and narrowly averted a 3rd.

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Response to davidpdx (Reply #23)

Sun Mar 29, 2015, 10:33 AM

24. Do you need a fainting couch?

Just kidding!

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Response to boston bean (Reply #24)

Sun Mar 29, 2015, 10:43 AM

27. I'm on my bed so it wouldn't help me

Let me put it this way, really nothing surprises me that much when it comes to DU juries. I think they are what they are.

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Response to davidpdx (Reply #23)

Sun Mar 29, 2015, 10:43 AM

26. Apparently, it's okay to directly violate TOS and use vile personal insults...

... if it's aimed at a man.

"Some animals are more equal than others."- George Orwell in Animal Farm

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Response to 99Forever (Reply #26)

Sun Mar 29, 2015, 10:46 AM

28. Well I think you can probably guess which juror I was

I always try to leave a explanation of my vote. It is disappointing that many people will serve on a jury and don't bother to share the justification of their vote.

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Response to davidpdx (Reply #28)

Sun Mar 29, 2015, 10:50 AM

29. I do also.

Seems the honorable thing to do. But then, quite clearly, there are some people who have no honor or scruples.

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Response to 99Forever (Reply #29)

Sun Mar 29, 2015, 12:53 PM

45. The absence of juror comments indicates neither a lack of honor or scruples.

Commenting is optional.

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Response to davidpdx (Reply #28)

Sun Mar 29, 2015, 11:00 AM

34. I was on the jury.

I voted to hide and left my explanation.

I understand the emotion of the poster who was alerted on, but I always vote to hide personal attacks.

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Response to 99Forever (Reply #26)

Sun Mar 29, 2015, 10:52 AM

30. Really, you think the jury result was a case of misandry?

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Response to boston bean (Reply #30)

Sun Mar 29, 2015, 12:19 PM

42. Some people see misandry everywhere,

 

even where it doesn't exist. They just have an axe to grind.

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Response to 99Forever (Reply #26)

Sun Mar 29, 2015, 02:28 PM

56. yes, holding all those positions of political power

CEOS of major corporations, 99 percent of the richest people in the world, police, and all state structures of power makes men so oppressed.

Neither the child abuser nor you represent all men, and I would imagine a good many men find the association quite insulting.

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Response to alphafemale (Reply #12)

Sun Mar 29, 2015, 12:03 PM

36. Wow.

People are wrongly accused all the time. That's why there are trials: to establish guilt, or not.

But maybe you'd like to skip the trial and rally up a lynch mob instead.

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Response to dariomax (Original post)

Sun Mar 29, 2015, 08:35 AM

8. Sure. A 3 year old could never be misinterpreted, and a teacher would never make a mistake. n/t

 

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Response to dariomax (Original post)

Sun Mar 29, 2015, 10:13 AM

17. If he claimed to be reincarnated, people would accept it as unquestionable truth.

I would imagine that the teacher's testimony was about what the child said, rather than about what really happened to the child.

To that end, the "evidence" is what was said to the teacher (i.e., what the teacher observed), so the teacher is the witness to be confronted, not the child.

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Response to Orrex (Reply #17)

Sun Mar 29, 2015, 02:08 PM

50. The only thing the teacher witnessed was...

 

The words of a witness.

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Response to dariomax (Reply #50)

Sun Mar 29, 2015, 02:11 PM

51. Well, yeah.

If the teacher were asked "what happened to the child on that day to cause the bruises?" then the answer would be hearsay.

If the teacher were asked "what did the child tell you?" then that answer would be testimony.

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Response to dariomax (Original post)

Sun Mar 29, 2015, 10:53 AM

31. How does an adult 'confront' a 3 year old?

I would consider it child abuse to put a 3 year old in a courtroom.

Get a judge, a child psychologist, the defense, and the prosecution to agree on a set of neutral questions for the child psychologist to ask the 3 year old, videotape his testimony, and play that in court.

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Response to Erich Bloodaxe BSN (Reply #31)

Sun Mar 29, 2015, 10:58 AM

32. Exactly. Asshole just wants the chance to bully the child.

Debate the evidence that a bruise could be from a fall.

But you don't get to swear in a damn infant and badger them on a witness stand.

That is insane.

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Response to alphafemale (Reply #32)

Sun Mar 29, 2015, 02:05 PM

48. So the teacher can badger the child...

 

But the accused can't?

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Response to alphafemale (Reply #32)

Sun Mar 29, 2015, 02:41 PM

57. The defense likes the idea of a clinical setting outside of court

 

Your claim that the defendant just want to bully the child is therefore unfounded:

Justice Kennedy asked what defense thought of interviewing the child in a clinical, theurapeutic setting as described by Erich. Defense was ok with it. :

Defense Lawyer (page 28):
"andifproperfindings
14 weremadetakenoutsideofacourtroom,perhapseven
15 throughanexpert,Ithinkaverystrongargumentcould
16 bemade,ifitwerenecessarytobemadetothisCourt
17 oranyother,thatifbyinterviewingthechildoutside
18 ofacourtroominamoretherapeuticsettingismore
19 likelytobeabletoenablethechildtotellhisstory
20 andtoanswerquestions,thenthat'swhatconfrontation
21 isallabout."


http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-1352_o7jq.pdf

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Response to Erich Bloodaxe BSN (Reply #31)

Sun Mar 29, 2015, 12:06 PM

38. Exactly.

And that is the way it is done routinely, I believe. Although sometimes I think the child meets with the judge, although maybe not a child that young.

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Response to Erich Bloodaxe BSN (Reply #31)

Sun Mar 29, 2015, 02:03 PM

47. So you don't trust the teacher do you?

 

Given that you believe only a child psychologist is to be trusted.

You seem to agree with the opinion that the child's testimony to the teacher should not be evidence. Right?

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Response to dariomax (Reply #47)

Sun Mar 29, 2015, 02:19 PM

53. It's not my job to 'trust' anyone, but

a teacher's job is different than a psychologist's, especially one trained to work with kids for the justice system. The teacher could, completely innocently, say something that 'led' the child to change how he/she discussed getting bruised. It's like when you have 'double blind' experiments - in those cases, during the experiment, even the researchers don't know which test subjects are the 'control' and which are the experimental group, because if they did, they might subconsciously do things to alter the outcomes. A teacher, like a health care worker, is a mandatory reporter of child abuse, and might be 'looking' for such abuse, and thus be more likely to find it, whether or not it's there. That's why you want a specially trained third party without a stake in the outcome to try and find out the truth.

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Response to dariomax (Original post)

Sun Mar 29, 2015, 12:12 PM

39. 1) it's hearsay. 2) "incompetent to testify" means what it says - an unreliable testimony.

 

Child abuse sucks, but this is straightforward. We shouldn't be convicted of crimes based on what someone privately tells a third party - particularly when that someone is determined to be incompetent to testify.

This whole case hinges on the idea that the boy was competent to privately give accurate information to the teacher (who then accurately recounts that information for the court), but not to the court directly. If nothing else, the boy isn't available to hear if the teacher is accurately testifying.

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Response to dariomax (Original post)

Sun Mar 29, 2015, 12:43 PM

44. Jury results, post #6

REASON FOR ALERT

This post is disruptive, hurtful, rude, insensitive, over-the-top, or otherwise inappropriate.

YOUR COMMENTS

Was wondering how long it'd take a MRA to pop out of the woodwork and start railing on people who didn't support this man.

JURY RESULTS

A randomly-selected Jury of DU members completed their review of this alert at Sun Mar 29, 2015, 12:37 PM, and voted 4-3 to HIDE IT.

Juror #1 voted to HIDE IT
Explanation: "Manhate"
Juror #2 voted to HIDE IT
Explanation: The use of "Man-hater" is going over the top.
Juror #3 voted to HIDE IT
Explanation: Easy hide. MRAs and their privilege suck.
Juror #4 voted to LEAVE IT ALONE
Explanation: No explanation given
Juror #5 voted to LEAVE IT ALONE
Explanation: I don't see any TOS violation
Juror #6 voted to LEAVE IT ALONE
Explanation: No explanation given
Juror #7 voted to HIDE IT
Explanation: No explanation given

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Response to dariomax (Original post)

Sun Mar 29, 2015, 01:14 PM

46. no direct contact, Skype the kid to the judge if absolutely necessary.

 

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Response to dariomax (Original post)

Sun Mar 29, 2015, 02:05 PM

49. Only if one wants to do something about child abuse

My answer is yes. The reliability can be questioned in court and evaluated by jurors.

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Response to dariomax (Original post)

Sun Mar 29, 2015, 02:14 PM

52. I don't know.

I'm a teacher, not a lawyer. I only have opinions to offer.

My pertinent opinions:

While the accused may have a right to face the accuser, the victim should also have the right not to be confronted, manipulated, or bullied by the abuser...regardless of age.

Children are much more easily influenced and damaged...and research says they are unreliable. When a child's testimony is needed in court, it can be provided by video, and obtained by professional psychologists; lawyers listening in can provide the questions.

A three yo is too young.

A teacher can report what was said and observed without offering interpretation. Very often, teachers fulfill their legal and moral obligation to report suspected abuse and/or neglect, but nothing ever comes of it. Visits and investigations by DHS generally don't turn up evidence of abuse unless it happens right in front of investigators or there are physical marks. That leaves a whole world of hidden abuse that never gets addressed. Children are often left in abusive and/or neglectful situations much too long, causing long-term damage.

Children have fewer rights than their parents, who are given the benefit of the doubt repeatedly. I understand the reasons why. I'm not suggesting we take children's words over their parents'; I'm saying that we have many, many, many children out there who need help but don't get it because our systems are inadequate and, in too many cases, our hands are tied.

I have these kids in my classroom every year. This month, a student and younger sibling, 7 years old, had to face their father in court and testify to his sexual abuse in the process of removing his parental right to unsupervised visitations. They are afraid of him. Last year, another student, an 11 yo, had to testify to, not only his own abuse, but the abuse of other children he'd witnessed in his home. Sitting on the stand with the abuser staring them down while they do so is traumatizing, to say the least.

Clearly, the testimony of older children is allowed in court. Three years old? If admitted at all, it should be by video, live-streamed or not, where the child is in a protected environment.

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Response to LWolf (Reply #52)

Sun Mar 29, 2015, 02:42 PM

58. and all of that is answered

by the fact that we have procedures for young children to testify where they are not directly facing the accused (whether by CTC or a screen or what have you).

The idea that this was about either having the child testify in the physical presence of the accused or not testify at all is false.

So the idea that the judge declared the three year old incompetent to testify is somewhat problematic to me, because there should be a path by which we can ask this child questions in the least manipulative way possible.

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Response to qazplm (Reply #58)

Sun Mar 29, 2015, 02:56 PM

60. Regardless of

whether or not research supports that, or whether or not it's developmentally appropriate to question a 3 yo?

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Response to dariomax (Original post)

Sun Mar 29, 2015, 02:25 PM

54. Yes she is testifying to what the child told her.

It is a lot like a murder trial, thankfully this didn't turn into one. The victim tells a third party what the defendant told her. It's part of the evidence. The three year old could be treated as an unavailable witness.

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Response to dariomax (Original post)

Sun Mar 29, 2015, 02:27 PM

55. When I was in kindergarten (1971-ish)

I had a scratch on my face one day. I had absolutely no idea how it got there - I had probably scratched myself on the face, or brushed against a tree branch or something.

A teacher and teacher's aide took me aside and started questioning me about it. They WOULD NOT accept "I don't know" as an explanation. I was not released from questioning until I had named someone who had scratched me, and the scenario in which it had happened. Which was totally fabricated on my part.

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Response to dariomax (Original post)

Sun Mar 29, 2015, 02:47 PM

59. What if the mother, not the step-dad, beat the children?

 

I just found out that three of the 3-year-old siblings are currently removed from their mother's custody due to her abuse:

p. 32 (Defense lawyer speaking):

"Again,rememberthatLP'sthreeoldersiblingshadall beenremovedfromthehomealreadyforhismother's abuseandneglect."
http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-1352_o7jq.pdf


The plot thickens.ญญ

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