First, please understand that the following discussion applies to children who lie about being sexually molested. The following does not apply to a child who was molested. Those children can usually supply details because they are speaking of or responding to questions about events that actually happened to them. They have true knowledge, where a child that is lying is usually unable to supply details to events that never really happened. They may try, but a thorough and well planned cross examination will usually identify major inconsistencies.

There is no question that child abuse is real, but there is also no doubt that there are false allegations as well and the reasons are numerous. False allegations of abuse can result from divorce and/or custody cases or they could be the result of a child who is angry or a child who is just looking for sympathy. In real abuse, a child can provide specific and exact details because they are giving an account of something that actually happened to them, something they actually experienced. That is not usually the case in a false allegation.

Every case, every child and the manner in which every child's testimony may come in during trial can be different and unique, so the defense attorney must be prepared for any number of possible scenarios.

Of course, a great deal of the success will depend on the defense attorney.

• Do they have prior experience at cross-examining a child who is making an outcry of sexual abuse?
• Do they have experience in responding to various demeanors a child may exhibit?
• Are they honestly prepared or will their examination simply be going through the motions in an attempt to "do their job?"
• Is it their desire to get the child off the witness stand as fast as possible?
• Are they expecting to ask only limited questions?

The real question is what will the child's demeanor be? No emotion, flat and matter of fact, tears, withdrawn, belligerent or combative? Children of different ages may react and respond differently, but young children who resort to tears or are combative or belligerent seem to cause the majority of the problems for the defense. Many young children believe that tears will stop a cross-examination and not having to answer a defense attorney's questions would certainly relieve a great deal of stress on their part. Keep in mind several very important points:

• Frequently, children that are lying about being abused do not want to answer questions about it.
• Often children are coached before they take a witness stand, but coaching can be a mistake and coaching cannot cover every possible issue the accusing child may be confronted with.
• Many children are taken into the courtroom by the prosecutor prior to their testimony and actually put on the witness stand in an attempt to make them more comfortable.
• Children that are lying about abuse cannot provide details to events that never happened, but many will think they are required to have a response and many will provide one.
• The easiest response for a child that is lying is, "I don't know" and "I don't remember."
• Many children who are lying about being abused know before they ever testify that an attorney will be asking them questions and many attempt to come up with a plan to try and avoid that cross-examination. Many believe that tears or being combative will stop the questioning. Does that work? It can.

There are several considerations when dealing with a child who resorts to tears.

• Keep questioning them regardless of their tears. Many times a jury will see this as the defense attorney beating up a poor abused child and that alone could result in a conviction.
• Ask the Court for a recess. The defense attorney is showing the jury that they are going to do their job, but they are not going to beat up a child.
• Continue asking the Court for a recess every time the child resorts to tears. As a perfect example, I had a prior case where my client was facing 14 felony charges, 2 for rape, and he would have been sent to prison for life without possibility of parole if he had been convicted. As soon as the defense attorney began cross, the child began to cry. The defense attorney asked for a recess. When the child returned to the stand, as soon as the defense attorney began asking questions, she began crying again and again the defense attorney asked for a recess. That same scenario was repeated a number of times and it reached a point where the defense, the jury, the Court and even the prosecution got fed up, realizing it was all an act and an attempt to avoid answering questions. When the child returned to the witness stand for the final time, it was obvious that someone told her enough was enough. Now, keep in mind, a child has no protection on the witness stand - they have no one to answer questions for them - for all practical purposes they are on their own. In this case, when that child returned to the witness stand she was angry that her tears had not stopped her cross-examination, she was angry that she had been called down, and she was afraid of the defense attorney and the questions she might be faced with. That combination caused that child to become belligerent and irrational when discussing her abuse. Her testimony then became, "He took a shower with her every day for 3 years and he made her milk the cow every time they were in the shower." That was not just a simple inconsistent statement, it was "drastically" different than anything else she ever claimed and that totality resulted in a complete acquittal for my client. Had the attorney in that case simply pushed ahead when she began to cry, I would have expected a conviction.

Some defense attorneys approach a crying or a belligerent child differently.

• Some just push ahead when the child begins to cry.
• Some stop and sit down when the child begins to cry with a belief that the jury would convict their client because they would perceive the attorney was beating up on the child.
• Some stop when a child becomes combative. The worst case example was a 13-year-old female who began crying hysterically, beating her fist on the rail in front of her and yelling at the defense attorney, "You know he did this to me." "Why are you trying to get him off?" Confronted with this, some attorneys would immediately end their cross examination for fear of making the jury angry. One of the best approaches I have ever seen was as follows:
• • I know you are upset and this is the last place you want to be, but I do need to ask you a few questions. Let's say you were in school and another student accused you of stealing money from them and you didn't do it. Now, the principal was questioning you and that other student. You were happy because you were expecting the principal to really find out what happened, proving you did not do it, but as soon as the principal asked one question, the student who accused you pointed at you and yelled, "You know she stole my money, why are you letting her get away with it?"
  • Wouldn't that make you mad?
  • Wouldn't it upset you that they would not let the principal ask questions?
  • Wouldn't you want the truth to come out?
  • Wouldn't it bother you that the truth would never come out as long as they were acting that way? "But this is different, he really did it to me."
  • Well, this jury is just like that principal. They have to hear all the facts before they can really decide and all the facts will never come out unless everyone has a chance to discuss it and to ask questions. Do you need to take a break before we get started?
• Some ask for a recess and make it very clear to a jury that they have a job to do, that they are going to represent their client but they also have compassion for the accusing child and are not going to "bully" or "beat" them up.

The approach some defense attorneys use can result in the way a child on the witness stand responds.

• An aggressive approach can cause a child to shut down, go straight to tears or become belligerent. When this happens, some attorneys immediately end their examination based on their fear of risk to their client. Some just continue pushing and end up putting their client at risk.
• The successful attorneys I have seen usually use a soft approach that requires a child to respond with reason and it is not seen by the jury as attacking the child.

Children can be coached prior to their testimony, but that coaching cannot cover everything. Consider an approach that a child would not have been coached in and usually that can be found in "details" of the abuse. Coaching there is not considered necessary because the belief is normally that the child was abused.

The Importance of Follow-Up Questions

• Many times the success of the defense will be dependant on follow-up questions. If the accusing child makes a statement that makes them credible, is there a follow-up question that could remove that credibility?
• "Yes, I ran and jumped into his arms, but I hate him now." Allowing that statement to stand and go unchallenged can make the child appear credible. The follow-up could consist of:
  • Now, you just told the jury that you hate him. Why do you hate him?
  • Do you recall a few months back, after all this abuse was supposed to have happened, that you ran and jumped into his arms when he pulled up at your grandparent's home? "Yes, but I was only acting then because I did not want to upset my mother."
  • So, instead of just standing there beside your mom when he got there, you ran all the way from the house to the driveway and jumped into his arms just because you did not want to upset your mom?
  • Now, you have never seen him again after that day that you jumped into his arms until today, is that right?
  • So you are telling this jury that the very last time you saw him, you ran and jumped in his arms, but now today, as you sit here, you hate him?
  • When exactly did you start hating him?
• In the above, you are not trying to argue with the child, you are simply pointing out facts that they will feel a need to respond to and often they will become frustrated and lose credibility.
• I have observed a very successful approach in which the defense attorney shows photos to the accusing child that depict that child and the accused in a setting where the child appears to be very happy and content. Expect an argument from the State's expert that "A child will often migrate to their accuser," but most people on a jury don't usually buy into that theory when they are seeing a photo of the accusing child in a happy environment with the very person they are accusing. In addition to showing the photo to the jury, great success can also come from having the accusing child explain the photo. Although it may sound unreasonable, think about a child who has been tearful having to explain a series of photographs where they are being shown as being very happy with the very person they are accusing. That can easily frustrate them and result in their making statements that could be very beneficial to the defense.
• As with photos, have the child explain any card they may have given the accused. As a perfect example, a 9-year-old girl was accusing her step-father of molesting her. She cried and her testimony was credible. The defense attorney asked if she had ever given her step-father a "Father's Day Card," to which she responded she did not remember. The defense attorney presented her with a card and asked if she had given it to her step-father. She admitted she had. That card was not a stock card she or her mother had purchased, but rather a card that she personally prepared and it took her hours to do so. That man was acquitted because the jury could not believe that child would have spent that much time or care on a project for a man that was abusing her.
• Never lose sight of potential follow-up questions regarding "terminology" the child may use. As an example, in a case where a young girl accused her step-father of molesting her over a period of years, she constantly referred to him as her "Dad." The term "Dad" is an enduring term and not what one would expect a child to call a step-father who was abusing them. That same young girl told the jury she "hated" him, but she continued to call him "Dad." A question might have been, "You have told this jury that he molested you for years." "You have told this jury that you hate him." "You have told this jury that he married your mother and that he is your step-father." "Why do you keep calling him your Dad?"
• Follow-up questions are also critical once a basic questioning has been done where all allegations have been identified and discussed. As an example, "Now, in your first two interviews, you said he touched your private with his finger and that was all." "Do you remember that?" "You were also asked if he touched you with anything else and you said no." "Do you remember that?" "Starting in your third interview, you said he put his private "in" your private and repeated that for years." "Do you remember that?" "Now, putting his private into your private, is that just something you forgot during your first two interviews?" Questions of this nature simply send a message to the jury that something is just not right.

Thoroughness of Questions

• Many attorneys will ask only a few questions, believing that the more questions they ask put their case and their client in jeopardy. Sometimes the problem with that is, a child who is lying, but is faced with limited questioning, can come across as truthful and with credibility. A child can say, "He stuck his private in my private." If it happened, that child can provide details. If it did not happen, that same child cannot provide details to events that never happened. As a perfect example, a defense attorney asked a child to "demonstrate" the position they were in when her uncle put his private into her private. The child got down off the witness stand, sat on the floor, back straight up, legs together and feet apart about 10 inches. The defense attorney was shocked and asked, "That was the same position you were in for 4 years, every time your 300 pound uncle put his private in your private?" to which she responded, "Yes." Obviously, that was impossible.
• If you keep the child talking, many times they will self-destruct, but that will be effective when a defense attorney is properly prepared, the questions they are asking are legitimate and they do not negatively impact a jury.

Potential Questions for a Child Accuser

• Let's talk about the first time you say something happened to you.
• • How old were you?
  • Where were you living at that time?
  • What time of year was it?
  • • How do you remember that?
  • What was the temperature like outside?
  • • How do yo remember that?
  • What time of day was it?
  • • How do you remember that?
  • Describe the area where it happened.
  • Who was there?
  • Was anyone near - in the same house or location?
  • If so, who and where?
  • If this happened in the home, where were the other people who live there?
  • What happened?
  • What were you wearing?
  • What were they wearing?
  • What did you say?
  • What did they say?
  • What happened to your clothes?
  • What happened to their clothes?
  • Tell me everything they did to you?
  • Tell me everything they did to themselves?
  • What did they make you do?
  • How long did it go on?
  • Why did it stop?
  • What did it feel like?
  • What did they do when it stopped?
  • What did you do when it stopped?
  • What parts of your body were exposed?
  • What parts of their body were exposed?
  • Describe exactly what you saw?
  • What parts of your body were touched?
  • What were you touched with?
  • What parts of their body were touched?
  • What was their body touched with?
  • Did anything happen? (ejaculation)
  • Had anything like that ever happened to you before?
  • What did they say when it was all over?
  • What did you say when it was all over?
  • If they claim they were shown pornography
  • • Who showed you the images?
    • How many times did they show you the images?
    • When was the first time they showed you something?
    • What was the last time they showed you something?
    • Where did you see the images?
    • What exactly did you see?
    • How many images did you see?
    • Describe each image you saw?
    • What was said when you were shown the images?
  • If the allegation is oral sex
  • • How did he get it in your mouth?
    • What was he doing before he put it in your mouth?
    • How much of his penis went into your mouth?
    • How long did it stay in your mouth?
    • What did you do to try and stop him?
    • • Grit teeth?
      • Turn head?
      • Pull away?
    • What did his penis look like? Describe it in detail.
    • • How was it pointed?
      • • Up, down or straight out?
      • Any marks on or around his penis?
      • Color of hair?
      • Size of penis?
    • Did anything happen when his penis was in your mouth?
    • What made him stop?
    • What did he say when he stopped?
    • What did he do when he stopped?
    • What did you say when he stopped?
    • What did you do when he stopped?
    • How many times has he done this to you?
    • When was the first time?
    • When was the last time?
  • If allegation is vaginal or rectal penetration
  • • How did he get your clothes off?
    • How did his clothes come off?
    • Exactly where were you when it happened?
    • Describe exactly what happened?
    • What position were you in?
    • What position was he in?
    • Did it go in?
    • How far?
    • How long did it stay in?
    • What did it feel like?
    • Did anything happen when he was inside you?
    • When it was over, was there anything on your clothes?
    • When it was over, was there anything on his clothes?
    • How many times has he done this?
    • When was the first time?
    • When was the last time?
  • When did you tell
  • • Who did you tell first?
    • Why did you tell them?
    • How many people have you talked to about this?
    • Name?
    • Their position - doctor, social worker, law enforcement
    • When?
    • Was it recorded?
    • Who was there?
    • How many times did you talk to them about this?

    Let's talk about the next time you say something happened to you.

    • Repeat initial questions

    Let's talk about the last time you say something happened to you.

    • Repeat initial questions

The idea of the repeat questions and the specific detail is to show how many times the accusing child is unable to respond properly and the totality of that alone could result in an acquittal. Most people serving on a jury will not fault a child for "inconsistent" statements, a delayed outcry or failure to identify all abuse in a single setting, but many will find fault with a consistent and continuous "I don't know" and "I don't remember."

Also, note that the questions above were structured in such a manner that they did not provide possible answers for the child. As a perfect example, in the above, the question was asked, "Did anything happen," (ejaculation). Often that same question is presented to the child, "Did anything come out of his penis?" which certainly supplies a possibility for the child and the question alone could solicit a "Yes" response simply because the wording of the question implies that something could have come out. If such a mistake is made, the follow-up could resolve the issue. In a trial that exact question was asked and the young girl responded with a "Yes." The defense attorney immediately asked, "What color was it?" to which the little girl responded, "Blue." The "Coming out of the penis" was problematic for the defense, but the follow-up question and her response completely resolved that issue. That was a defense attorney thinking on his feet and not allowing what appeared to have been a credible response on the part of the child to stand. You do not want your questions to supply a credible response from the child.

There are no stock questions when preparing for a cross-examination of a child who is accusing someone of abuse because every child, every case, and every outcry is different, but much of a successful defense is in the ability to question the child in a non-threatening manner and in such a way that the jury does not find their overall allegation to be credible. That usually will not happen when an attorney simply wants to get the child off the stand as fast as possible. That child cannot rely on anyone to "respond" for them and when they are lying they will usually not appear credible during a well planned cross-examination.

There are two thoughts when considering the cross-examination of a child. One is to get the child off the stand as fast as possible and usually when that happens the child will have credibility. They can lose that credibility when they are subjected to a detailed and thorough cross-examination that shows they are unable to honestly supply specific details to the abuse they are alleging. Done properly, that is not seen as a simple and forgivable inconsistent statement. A child can easily say, "He stuck his private in my mouth," but that allegation can lose all credibility when the child has absolutely no explanation for how he did it or why she allowed it. Press for details.

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