If you want to avoid having to put your child on the witness stand, you might consider taking a prerecorded statement.
You are in the middle of a divorce, or custody case, and you want to avoid getting the kids involved in it as much as possible. Obviously, you don’t want your child to be put on the witness stand to be put in the spotlight while being asked questions about mom or dad.
Unfortunately, there are times where they are the only ones that have the information that is needed for the case, especially when it comes to child abuse. Fortunately, there is an alternative to putting a child on the witness stand to testify through the use of a prerecorded statement.
What is a Prerecorded Statement?
There are ways to protect kids from this harsh experience. One way to get the child’s statement without having them testify in open court is by admitting a prerecorded statement into evidence. A prerecorded statement is an audio and video recording that can be done in advance to then show to the court.
A prerecorded statement of the child can be recorded from home and then admitted into evidence without having the child go to court. This can be beneficial because it takes pressure from the child and protects their mental health from what will very likely be a traumatic experience. However, there are some specific requirements that must be met.
What are the Requirements?
Not every child has the ability to provide a prerecorded statement to use in court and avoid testifying. There are several requirements that must be met for the recording to admitted into evidence:
- The child must be 12 years of age or younger;
- The child in the case is alleged to have been abused;
- The child’s statement was recorded before the proceeding;
- The child’s statement is recorded with both video and audio;
- No attorney for a party was present when the statement was made;
- The recording equipment was capable of making an accurate recording, the operator was competent, and the recording is accurate and has not been altered; and
- The child’s statement wasn’t made in response to questions that were calculated to lead the child to make a particular statement. Only open-ended questions, no leading questions.
—See Prerecorded Statement of Child – Tex. Fam. Code § 104.002(1)-(5)
If all of these requirements are not met, then the prerecorded statement cannot be admitted into evidence.
Another important step is to make sure that the person who interviewed the child in the recording is present at the court proceedings and available to testify or be cross-examined by either party.
—See Prerecorded Statement of Child – Tex. Fam. Code § 104.002(6)
How can I prepare to make a Prerecorded Statement?
If you have determined that a prerecorded statement of a child is necessary for your case, here are some steps you can take before you start recording. Just a little bit of prep-work in advance could make the difference between your child’s voice being heard, and an abuser getting away scot-free.
First, it is important to talk to the child and make sure that they are ok with giving a recorded statement about the alleged abuse. They should understand that you’re going to ask them some questions about the alleged abuse so they aren’t blindsided by the topic. You shouldn’t pressure the child to make a statement if they aren’t comfortable talking about it yet.
Second, write down a list of questions that you want to ask the child. These questions should be open-ended and related to the abuse. Do not ask questions that try to lead the child to give you a specific answer. Remember, you want your child to tell their story. You don’t want to tell their story for them.
A good tip for asking open-ended questions is to start your questions with the following words: who, what, when, where, why, and how. You should ask open-ended questions because otherwise, your prerecorded statement might not be admissible.
Open-ended questions are also the best way for the child to explain their emotions and opinions and give an accurate account to the court. Our Blog “How to Testify to Win in Court” gives more examples on how to give good testimony and how questions are asked.
A good rule of thumb in order to avoid asking leading questions is the Yes/No test. If the question can be answer with a Yes/No, then it is probably a leading question.
Third, after making a list of questions, please send this list to your attorney for review. The reason for the review is to make sure that your questions are open-ended, and relevant to the alleged abuse.
Finally, go over the questions with the child in advance. Do not write down their answers to the questions or attempt to influence their answers. Your goal here is to let the know what you’re going to ask so they can think about how they want to word their answers. Remember, all you’re doing here is removing the “fear of the unknown.”
How to Record the Child’s Statement
Now that you have your questions ready, all you need is to record the interview. When recording the child’s statement, the following steps must be followed so the statement can be used in court.
- Make sure you have a working camera and microphone for the recording. You can use your cellphone, a video camera, or even your computer’s webcam for this.
- Set up the recording device so that both the child and you (or the person conducting the child’s interview) are visible.
- At the beginning of the recording identify yourself by giving your full name and ask the child to identify themselves by asking them for their full name.
- Ask the child if they know what the difference is between a truth and a lie. Ask them to explain what a lie is, and to explain what the truth is. Then, ask them if they promise to only tell the truth.
- Ask the child the questions that you prepared. Pause after asking each question and let them answer and explain their answer. Try not to talk over each other so the recording is clear, and you can hear what everyone is saying. You may have to ask some follow-up questions if the child’s answer wasn’t clear (How did that make you feel? Who was it that did that? Was there anything else that happened? Is there anything else you want to tell me about that day?)
What to do After Recording the Statement
After you finish all the questions, stop the recording and make sure that it saved properly. You should review the recording to make sure that the video and audio quality is clear and that both your voice and the child’s voice are identifiable.
Don’t forget to save the interview on your device, a USB, or another storing device and send it to your attorney. In fact, go ahead and make a backup. The only thing worse than having to record a child’s statement is having to record it twice.
Finally, you must give each party to the case an opportunity to view the recording before it is offered into evidence. You can’t just surprise them with it at trial.
—See Prerecorded Statement of Child – Tex. Fam. Code § 104.002(7)
Needing a prerecorded statement means that your child is alleged to have been abused. We pray that your family is never placed in the position of having to use the prerecorded statement of a child.
–Authored by Carolina G. Truesdale, Esq.,
Matthew Harris Law, PLLC – Family Law Division
1101 Broadway, Lubbock, Texas, 79401
Tel: (806) 702-4852 | Fax: (800) 985-9479