This will be a funky Sunday. Nothing will change that. Tomorrow morning I will cross examine a six-year-old girl. She contends my client touched her where she should not have been touched. I know what the issues are in this case, but I have never enjoyed the cross examination of a child.
Under Connecticut law, there is no age below which a child is presumed incapable of testifying. A child need only demonstrate that she understands the concept of truthfulness and promises to tell it. A lawyer challenging such a witness's capacity must persuade a court the witness can't do be truthful. That is a difficult, and, in this case, impossible task -- I've watched videotaped interviews with the child. She is no stranger to the world of shared truths.
This exposes another of the many fault lines in the law separating civil from criminal court. No six year old can form a binding contract. As a matter of law, such a child lacks the capacity to make binding agreements. But they are capable, we say, of telling the truth. I am troubled that the civil side regards children as more suspect than the criminal side.
But to do otherwise would be to make it impossible for children to testify. Often, a child is the only witness. This is especially so in child sex cases where the allegations are that horrible things occur in dark places, where there are no witnesses. Making a contract requires greater judgment than discerning a fact.
Years ago, I defended a man accused of sodomizing his three daughters. When the youngest, age eight, testified, something inside me came close to breaking. "What did your father's pee-pee look like?" I asked, in a sing-song tone of voice. The child faltered when it came time to describing the act. The jury acquitted on that count. I think of that child often and of how, in the midst of cross-examination of her, I nearly broke down in tears. At that moment I would have adopted her if only to save her from the likes of me.
Tomorrow's case promises similar horror. The child says she was touched. We have a videotape of her recanting the accusation prepared by her father. The state has charged the father with tampering with a witness, in this case his own child. The layers on this onion yield noxious fumes.
I believe me client is innocent. He will testify that he did not touch the girl. There is no physical evidence corroborating the claim. Indeed, the location of the alleged assault almost certainly could not be the place of a crime of this sort. But....
But in order to overcome the accusations, I must stand in the well of a court and confront this witness. I am lacking in courage today, and will spend the day, and the better part of the night, mustering the means to go toe-to-toe with a six-year-old.