KANSAS SEX CRIMES & CHILDREN TESTIFYING AGAINST YOU

Once charged with a sex crime against a child, and if you plan to take your case to trial, you may wonder if the alleged victim will be called to testify. If you know anything about your right to confront your accuser, then you probably think the child should testify. However, some believe that children cannot be asked to testify. This blog will help demystify the question of, "Can a child be called to testify against you in a sex crimes case?" The short answer is "yes". Kansas statute does allow (and sometimes demands) for children to testify, in any case where they are victims, or witnesses, of crimes, to include sex crimes. The case of State v. Eaton does a great job of outlining some of the nuances related to child witnesses. Here's a summary:

• This applies to children under the age of 13;
• You may be denied the opportunity to confront the child, face-to-face, in open court, based on public policy;
• Testimony can be videotaped or by closed-circuit television, and that may not be a violation of your Kansas or United States Constitutional rights;
•  The prosecutor must establish cause for this exception. Many defense attorneys will argue against this request;
• The testimony of the child can occur inside or outside of courtroom;
• The only people who may be present during this process are your attorney, the State and the child (along with anyone who will tend to the welfare and well-being of the child);
• In addition, in a separate room, those who are recording or responsible for the equipment operation will document the testimony;
• Only the attorneys can ask questions;
• Because your attorney will have the opportunity to cross-examine the alleged victim/witness, Kansas case law believes you to have been given appropriate opportunity to confront; and
• You, the jury and the judge will be able to see and hear the child's testimony but, the child will not be able to see or hear any of you.

Besides your right to confront, if the child is the alleged victim the Kansas prosecutor certainly will need their testimony. They have the burden of proof. They will issue a subpoena to the child's parent or guardian demanding their appearance. Should the caregiver ignore, or refuse to comply with, the subpoena they can be found in contempt and face penalties (to include jail time). 
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By the way, you cannot exclude the child from testifying because it would be traumatic to them and/or unreliable. Rather, your attorney will have to work to point to the deficiencies in the testimony offered. This is typically done by pointing out inaccuracies in statements, excluding witnesses or experts, cross-examination, filing applicable motions (ex. Motion to Suppress), etc..
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Tip: Don't confuse a criminal sex crimes case with a Kansas Child in Need of Care (CINC) case. CINC cases are civil matters, and your rights and the burden of proof are different; therefore, how the child is permitted/required to testify varies. Remember though, these two cases can be run together or apart, and what occurs in one will likely impact the other. 

If you have questions about your specific case call NOW (913) 602-7288. Payment plans are available.