“yes” or “no” accurately. An even bigger question is whether


children with some disabilities should be asked leading questions at all. In a crimi- nal trial setting, there is an obvious dichot- omy involving the use of leading questions. All forensic examiners who interview chil- dren are trained to avoid leading questions when possible. Studies suggest that some children (particularly young children or chil- dren with intellectual disability) may pro- vide inaccurate responses if the questions are asked in a leading manner. Indeed, a forensic interview that contains leading questions will be attacked vociferously by the defense at trial. Those same children are subjected to vigorous cross-examination


by leading


questions by defense counsel. What sense does that make? Does a defendant’s right to confrontation include the right to ask questions in a manner that confuses a child with disabilities and results in clearly inac- curate responses? We once had a trial where a defense ex- pert attacked the credibility of a ten year- old boy with disabilities because leading questions were asked during the initial in- terview. The expert went so far as to claim the questions had forever “tainted” the child’s memory. But the same child was subjected to a three-hour deposition with leading questions by defense counsel,6


and


an exhausting cross-examination by lead- ing questions at trial. We recently had a trial where an adult woman with intellectual disability answered nearly every cross-examination question with a “yes”—regardless of whether the leading question contradicted her careful narrative responses on direct examination.7 For her, leading questions could just as well be in a foreign language. The right to confront witnesses with


leading questions is not in the Constitu- tion. Judges should be prepared to weigh the right to cross-examine by leading ques- tions against the child witness’s right under the Americans with Disabilities Act to reach a fair result for both the child and the de- fendant. These are novel issues, with no firm answers, that will undoubtedly require fact-specific analysis and further study.


Commitment Needed


If there is any hope of changing the dire statistics of children with disabilities who are sexually and/or physically abused, the legal community must work to break down the barriers that prevent children with dis- abilities from accessing our court system.


NOTE: This article was adapted for Ver- mont practitioners from the upcoming ar- ticle to be published in Child Law Practice,


“Lessons learned: Protecting Children with Disabilities,” to highlight changes needed in Vermont. This article is printed with per- mission of the American Bar Association Center on Children and the Law. ____________________ Christina Rainville, Esq., is the Chief Deputy State’s Attorney for Bennington County, where she heads the Special Inves-


tigations Unit. ____________________ 1


“Children with disabilities more likely to ex- perience violence,” World Health Organization, Note for the Media, July 12, 2012, at http:// www.who.int/mediacentre/news/notes/2012/


child_disabilities_violence _20120712/en. 2


42 U.S.C. §12132. 3


The United States Supreme Court held that the ADA applies to state courts in Tennessee v.


Lane, 541 U.S. 509 (2004). 4


457 Mass. 512 (2010). 5 Under Sections 16, 17, and 24 of the Youth


Justice and Criminal Evidence Act of 1999, chil- dren with mental disorders, physical disabilities or “significant impairment of intelligence and so- cial functioning,” are eligible to testify outside the courtroom if the court finds that “the qual- ity of evidence given by the witness is likely to be diminished” due to the child’s disability. See


http://www.legislation.gov.uk /ukpga/1999/23. 6


victims in sexual assault cases. 7


Vermont’s rules at the time, which have since been changed, permitted depositions of child


The jury fully understood her disability and convicted the defendant of sexual assault and sexual assault on a vulnerable adult despite her contradictory cross-examination by leading questions.


www.vtbar.org


THE VERMONT BAR JOURNAL • FALL 2013


29


The Children’s Corner


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