The age of innocence

THE monthly Current Issues Group, having invited a trial court judge to lead the discussion, was peppering the guest with its views on today's hottest legal topic: the prosecution of offenders against children. ``I teach second grade,'' said one. ``I know how delicate kids of that age are. It's bad enough being the victim of a pervert. Why do you magnify the child's agony by making her come into court and letting the man's attorney cross-examine her just as though she were an adult?''

``What do you think we should do?'' the judge asked.

``Well, you could let the child tell what happened in some friendlier place than a courtroom. Have a trained pediatric social worker question her in a play-oriented space, while a hidden camera and microphone record everything. Then play the videotape for the jury.''

``Fine, but how should we handle cross-examination?''

``You mean by the defense lawyer? We don't need that Perry Mason stuff. The social worker would make sure the truth comes out.''

``Don't children sometimes have trouble differentiating between reality and fantasy?''

``That's a nonproblem, or at least much less of a problem than you legal people think it is. Besides, the social worker would relate to the child to keep things straight.''

``What about a child who is deliberately lying -- from whatever motive? I was thinking of those children in 1692 whose testimony convicted the Salem `witches,' or the types of juvenile malice that William Golding wrote about in ``Lord of the Flies,'' and Richard Hughes described in ``A High Wind in Jamaica.''

``Children don't lie about child-molesting,'' the teacher said.

``But,'' said the judge, ``suppose one of your students were for some twisted reason to accuse you of having improperly touched her. Would you be content to have this child's fabrication put to the jury from the invulnerability of a TV screen?''

The teacher's thoughtful, silent look gave the answer.

Beyond the truism that where you stand depends upon where you sit, the question of justice in child-sex-offense cases touches the deepest roots of our national commitment to fairness and due process of law.

If one assumes, as many seem to, that someone accused of sexual impropriety with a child is certainly (or at least quite probably) guilty, then the most important thing is to make the child-victim's ordeal as brief and as painless as possible.

But the Constitution and our innate sense of fair play insist on recognizing that an accusation is not a conviction, and that every defendant, no matter how repugnant the crime with which he is charged, is innocent until proven guilty beyond a reasonable doubt. That recognition requires us to permit the defendant to subject all the state's witnesses to what the legal scholar John Wigmore called the greatest engine ever devised for ascertaining the truth: cross-examination.

A judge must allow the defense lawyer reasonable scope in cross-examining the child. The court cannot protect the witness (at least not in the sense that the teacher first had in mind). Whether a lawyer's common sense would temper the attack is another story.

Even before the child takes the stand, the judge, out of the jury's presence, must decide whether the child knows the difference between truth and falsehood, and whether the child understands the consequence of lying.

Untrained, unskilled, unaided, the judge tries to formulate questions that will allow an intelligent and plausible conclusion, while avoiding any influence on the youngster's mind or memory. No judge has yet developed a workable litmus.

If the child is very young, perhaps under four, the line between the real and the imagined is so vague, the grasp of punishment as a consequence of lying so tenuous, that prosecution is virtually impossible.

Unless, like the teacher, we trade a presumption of innocence for a presupposition of guilt.

Hiller B. Zobel sits on the Massachusetts Superior Court.

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