National District Attorneys Association

 

NATIONAL CENTER FOR PROSECUTION OF CHILD ABUSE


Volume 17, Number 1, 2004

Update


Ethical Obligations of Child Abuse Prosecutors and Allied Professionals: Understanding the Interconnection

Introduction

Child abuse investigations and subsequent prosecutions involve numerous professionals. These include law officers, prosecutors, social workers, psychologists and medical professionals. The success or failure of a case depends not only upon competent and thorough participation by all involved, but also upon adherence to all ethical guidelines by each of the participants.

As an attorney and public servant, a prosecutor represents the interests of the state and is obligated to follow state ethics rules, court rules, case law and statutes. Prosecutors should also be aware of the National Prosecution Standards issued by the National District Attorneys Association.'2 Moreover, because the prosecutor's decisions may result in the most serious of consequences, including loss of life or liberty, the prosecutor is rightfully held to a higher ethical standard than the lawyer in private practice.3

The prosecutor, however, is not alone in the duty to observe ethical mandates. Indeed all professionals involved in child abuse prosecutions must heed their own ethical guidelines. Thus, it benefits the prosecutor to understand not only his or her own legal ethical duties, but also the ethical obligations of other professionals involved in investigating and prosecuting child abuse cases. Further, knowledge and awareness of other professionals' ethical mandates may strengthen a given case if that knowledge is put to use in case preparation. For example, the American Psychological Association ethical guidelines can serve as a useful tool in cross-examination of an opposing witness who will testify regarding psychological issues.

Child Witnesses

In the context of child abuse cases, ethical challenges in the prosecutor's role can grow even more demanding when vindicating the rights of vulnerable child witnesses. Multidisciplinary teams often have many complicated issues to address in child abuse cases, but must always be certain to understand and adhere to ethical guidelines of each member. These dictates must also be considered when dealing with child witnesses and other professionals.

Careful knowledge of ethical guidelines can often work to the benefit of both the witness and the child abuse prosecutor. For example, the National Prosecution Standards call on prosecutors to take cases involving a child witness into consideration for priority case scheduling. This can assist with internal trial scheduling. While these standards are meant for prosecutors, the American Bar Association (ABA) guidelines are directed to all attorneys involved in a child abuse case. Thus, these guidelines should be foremost in every prosecutor's trial notebook and strongly advocated for in most circumstances.

ABA Guidelines for Fair Treatment
of Child Witnesses in Cases Where
Child Abuse is Alleged

ABA guidelines, which apply to both defense attorneys and prosecutors, can be very heIpful to bring to the attention of a judge, especially during a difficult trial. (The guidelines governing crime victims in general can also be very useful and prosecutors should be familiar with them, but only the guidelines for child witnesses are covered here). They are as follows:

A Team Approach

1. A multidisciplinary team involving the prosecutor, police and social services resource personnel should be utilized in the investigation and prosecution of cases where a child is alleged to be a victim or witness to abuse in order to reduce the number of times that a child is called upon to recite the events involved in the case as well as to create a feeling of trust and confidence in the child.

a) Members of such teams should receive specialized training in the investigation and prosecution of cases where children are alleged victims and witnesses of abuse.

b) Whenever possible, the same prosecutor should be assigned to handle all aspects of a case involving an alleged child victim or witness including related proceedings outside the criminal justice system.

A Speedy Trial

2. In all proceedings involving an alleged child victim, the court should take appropriate action to ensure a speedy trial in order to minimize the length of time a child must endure the stress of his or her involvement in the proceeding. In ruling on any motion or request for a delay or continuance of a proceeding involving an alleged child victim, the court should consider and give weight to any potential adverse impact the delay or continuance may have on the well-being of a child.

Procedural Reform

3. In criminal cases and juvenile delinquency and child protection proceedings where child abuse is alleged, court procedures and protocol should be modified as necessary to accommodate the needs of child witnesses including:

a) If the competency of a child witness is in question, the court should evaluate competency on an individual basis without resort to mandatory or arbitrary age limitations.

b) Leading questions may be utilized on direct and cross-examination of a child witness subject to the court's direction and control.

c) To avoid intimidation or confusion of a child witness, examination and cross-examination should be carefully monitored by the presiding judge.

d) When necessary, the child should be permitted to testify from a location other than that normally reserved for witnesses who testify in the particular courtroom.

e) A person supportive of the child witness should be permitted to be present and accessible to the child at all times during his or her testimony, but without influencing the child's testimony. The child should be permitted to use anatomically correct dolls and drawings4 during his or her testimony.

g) When necessary, the child should be permitted to testify via closed-circuit television or through a one-way mirror so long as the defendant's right to cross-examine is not impaired.

h) Persons not necessary to the proceedings should be excluded from the courtroom at the request of the child witness or his or her representative during pretrial hearings in cases where the child is alleged to be the victim of physical, emotional or sexual abuse.

i) At pretrial hearings and in child protection proceedings the court, in its discretion, if necessary to avoid the repeated appearance of a child witness, may allow the use of reliable hearsay.

j) When necessary the court should permit the child's testimony at a pretrial or noncriminal hearing to be given by means of a videotaped deposition.

Legislative Initiative

4. State legislatures should, where necessary, enact appropriate legislation to permit modification of court procedures and evidentiary rules as suggested herein and in addition should:

a) extend the statute of limitations in cases involving the abuse of children; b) establish programs to provide special assistance to child victims and witnesses or enhance existing programs to improve the handling of child abuse cases and minimize the trauma suffered by child victims, in cooperation with local communities and the federal government.

Media Responsibility

5. The public has a right to know and the news media have a right to report about crimes where children are victims and witnesses; however, the media should use restraint and prudent judgment in reporting such cases and should not reveal the identity of a child victim.5 (see footnote6 for media guidelines on this point).

Other Providers

The prosecutor should also have a working knowledge of the ethical guidelines and restraints of the other professionals with whom he or she works. Most professionals involved in the child protection field also have their own guidelines:

  • Police Officers- The International Association of Chiefs of Police has an ethics department. They also have a model policy and a policy paper, which do not address child abuse investigations specifically, but are applicable to such investigations.7

  • Social Workers- Code of Ethics of the National Association of Social Workers.8 The National Association of Social Workers does not have a standard specifically related to child abuse. However, their general ethical guideline and principles are applicable to situations where child abuse may be a factor. The guideline is based on six core values from which their ethical principles are derived.9

  • Psychologists- Ethical Principles of Psychologists and Code of Conduct10

  • Marriage and Family Therapists- American Association for Marriage and Family Therapy Code of Ethics11

  • Pathologists- Guidelines for Ethical Behavior for Pathologists12

  • Pediatricians- Institutional Ethics Committees13

  • Forensic Scientists- Code of Ethics and Conduct14

  • Criminal Court Judges- The Model Code of Judicial Ethics15

  • Juvenile and Family Court Judges- National Council of Juvenile and Family Court Judges Canons of Judicial Ethics16

  • Treatment Providers- The American Medical Association Principles of Medical Ethics,17 The American College of Emergency Physicians Expert Witness Guidelines for the Specialty of Emergency Medicine,18 The Association for the Treatment of Sexual Abusers Code of Ethics,19 and the American College of Medical Genetics Guidelines for Expert Witness Testimony for the Specialty of Medical Genetics.20

  • Court Appointed Special Advocates- Standards for National CASA Association Member Programs21

  • Guardians Ad Litem- Both the American Bar Association22 and the National Association of Counsel for Children23 publish standards of practice. These standards are specific for Guardians Ad Litem who are attorneys.24

  • Volunteer Administrators- Professional Ethics in Volunteer Administration 25

Discussing these guidelines on direct examination will illustrate that both the prosecutor and witness are familiar with their ethical guidelines and adhere to them. Familiarity with ethical obligations can also be very effective on cross examination, particularly with witnesses who appear unfamiliar with their own professional guidelines.

Suggestions

In summary, always consult your ethical rules and guidelines, including your state statutes, case law, etc. to ensure you are meeting all ethical considerations from charging throughout trial and appeal. Make your ethical obligations known to other professionals with whom you work and get to know their ethical obligations. Take the lead in engaging your multidisciplinary team in a dialogue about ethical obligations and institutional practices to ensure compliance with these obligations. Work the ethical obligations of experts into your direct and cross-examinations. Finally, contact NCPCA for additional information.

 

1 Senior Attorney, APRI's National Center for Prosecution of Child Abuse. The author wishes to thank Erika Ragland, NCPCA staff attorney and Whitney Fisler, NCPCA law clerk, for their research and assistance on this article.

2 National Prosecution Standards, 2nd Edition, National District Attorneys Association, 1991, amended in 1997. Additionally, see Doing Justice: A Prosecutor's Guide To Ethics and Civil Liability, National College of District Attorneys, 2002.

3 United States v. Young, 470 U.S. 1, 25 (1985).

4 These terms are no longer used by the professionals utilizing these tools. Instead, they are referred to as anatomical dolls and anatomical diagrams. See Using Anatomical Dolls In Child Sexual Abuse Forensic Interviews, APRI Update, Vol. 13, No. 8 and The Use of Anatomical Diagrams in Child Sexual Abuse Forensic Interviews, APRI Update, Vol. 15, No. 5.

5 See www.abanet.org/crimjust/victi.html. (These guidelines were established in 1985. Although a committee updated the commentary in 2002, the guidelines are still in effect and have not been replaced.)

6 Radio-Television News Directors Ass'n & Found., Code of Ethics and Professional Conduct, Identifying Juveniles Guideline (Sept. 14, 2000), available at http://www.rtnda.org/ethics/juve.shtml. See also, Radio-Television News Directors Ass'n & Found., Code of Ethics and Professional Conduct, Interviewing Juveniles Guideline (Sept. 14, 2000), available at http://www.rtnda.org/ethics/juvi.shtml.

7 Int'l Ass'n of Chiefs of Police, Model Policy (n.d.).

8 Nat'l Ass'n of Soc. Workers, Code of Ethics of the National Association of Social Workers (last revised 1999), available at http://www.socialworkers.org/pubs/code/code.asp.

9 Id. at 1

10 Am. Psychological Ass'n, Ethical Principles of Psychologists and Code of Conduct (June 1, 2003), available at http://www.apa.org/ethics/code2OO2.html

11 Am. Ass'n for Marriage and Family Therapy, American Association for Marriage and Family Therapy Code of Ethics (July 1, 2001), available at http://www.aamft.org/resources/LRMPlan/Ethics/ethicscode2001.asp. See also, Richard S. Leslie, The Duty to Report Child Abuse, Fam.Therapy Mag., Mar./Apr. 2003, at 44.

12 Am. Soc'y of Clinical Pathologists, Guidelines for Ethical Behavior for Pathologists (1999).

13 Am. Acad. Of Pediatrics Committee on Bioethics, Institutional Ethics Committees, 107(1) PEDIATRICS, (Jan. 2001).

14 Am. Acad. of Forensic Scis., Code of Ethics and Conduct (Feb. 23, 2000), available at http://www.aafs.org/default.asp?section -id=aafs&page_id=aafs_bylaws#article2.

15 ABA, Model Code of Judicial Ethics (Aug. 2003), available at http://www.abanet.org/cpr/mcjc/code_rev_hod.pdf (the Joint Commission to Evaluate the Model Code of Judicial Conduct is reviewing the Model Code for possible revisions in 2005). See also, American Judicature Society, Center for Judicial Ethics (acting as a clearinghouse for information on judicial ethics), available at http://www.ajs.org/ethics.

16 Nat'l Council of Juv. & Fam. Ct. JJ., Canons of Judicial Ethics (July 20-23, 2003).

17 Am. Med. Ass'n, Principles of Medical Ethics (June 17, 2001), available at http://www.ama-assn.org/ama/pub/category/2512.html.

18 Am. Coll. of Emergency Physicians, Expert Witness Guidelines for the Specialty of Emergency Medicine (Aug. 2000), available at http://www.acep.org/1,560,0.html. See also American College of Emergency Physicians, Code of Ethics for Emergency Physicians (Oct. 2001), available at http://www.acep.org/1,1118,0.html.

19 Ass'n for the Treatment of Sexual Abusers, Association for the Treatment of Sexual Abusers Professional Code of Ethics (2001), available at http://www.atsa.com/pdfs/COE.pdf.

20 Matthew J. McGinniss et al., Guidelines for Expert Witness Testimony for the Specialty of Medical Genetics, GENETICS IN MED., Nov./Dec. 2000.

21 Nat'l CASA Ass'n, Standards for National CASA Association Member Programs (Sept. 2002), available at http://www.casanet.org/download/guides-manuals/standards-and-self-assessment-for-casa-programs/ncasaa-standards-for-member-programs-10-02.pdf.

22 ABA, Standards of Practice for Lawyers who Represent Children in Abuse and Neglect Cases (Feb. 5, 1996), available at http://www.abanet.org/child/childrep.html.

23 INat'l Ass'n of Counsel for Children, NACC Recommendations for Representation of Children in Abuse and Neglect Cases (Apr. 28, 2001), available at http://www.naccchildlaw.org/documents/naccrecommendations.doc. See also, Nat'l Ass'n of Counsel for Children, ABA/NACC Revised Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases (Apr. 21, 1999), available at http://www.naccchildlaw.org/documents/abastandardsnaccrevised.doc.

24 See also, Standards of Practice for Guardians ad Litem, BREVITY (Nat'l Council of Juv. & Fam. Ct. JJ.), Jan. 22, 2004, at 3 (discussing state specific guidelines where individual states may adopt criteria for non-attorney Guardians ad Litem), available at http://training.ncjfcj.org/attorney_gals.htm.

25 Ass'n for Volunteer Admin., Professional Ethics in Volunteer Administration (1999), available at http://www.avaintl.org/advocacy/ethicprinciples.pdf.

 

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