Preventing Child's Testimony in Custody Case Due to Pending Criminal Charge

[WhoDat]

My question involves criminal law for the state of: Louisiana

I have a question in regards to a testimony someone who is 10 years old. The child was a witness of something that happened where one of the relatives might possibly be charged with a simple battery. At this point it is not clear if the person will be charged, however there is a police report. The case has to do with custody so the judge in a civil court is planning on talking to the child regarding the incident (a watermeier hearing) and it will be recorded by the court reporter and will have an official transcript. How can a person who possibly will be charged protect his/her rights from whatever might be said in that testimony? In criminal court the child would not be called in on the stand because of the child's age but the testimony in the civil court and the transcript could potentially damage the person in criminal court. Can that be argued to the civil court judge as a reason for the child not to testify?
Please, see this situation in the light as "innocent until proven guilty"
Thanks

[cyjeff]

You have a constitutional right to confront your accuser.

You can, of course, dispute the testimony in court.

I will say, however, that the rules for a civil suit are different than criminal court.

[DavidForthoffer]

The purpose of a Watermeier hearing is for the judge to understand the child's preferences for a custody hearing. The judge is entitled to do that, based on his determination of whether the child is "a person of proper understanding". Although parents are excluded from a Watermeier hearing in chambers, their attorneys must be allowed to participate in the competency examination by asking questions and registering appropriate but only necessary objections.

This does not mean the attorney of a potential defendant in a criminal case has the right to attend and participate.

In criminal court the child would not be called in on the stand because of the child's age

Not so. A child of any age may be allowed to testify, if the child is a "person of proper understanding". Age alone is not the determining factor. This is the same test as in a Watermeier hearing. If the child is not a "person of proper understanding", then the child may not testify in either the Watermeier hearing or a criminal case. Conversely, if the child is a "person of proper understanding" and testifies in the Watermeier hearing, then that testimony should be excluded from any criminal case because it is not "best evidence" since the child would be competent as a "person of proper understanding" to testify in the criminal case.

The defendant in a criminal case has a Sixth Amendment right to confront and cross-examine witnesses against him, regardless of their age.

So it seems a potential defendant's rights are already procedurally protected in Louisiana, if the defendant has a competent attorney.

[Mr. Knowitall]

If the person being charged isn't a parent, there's nothing that the person can do - they have no say in how the custody matter is conducted. If the person who is being charged is a parent, the person can prevent the child's testimony by negotiating a resolution of the custody issue that is pending before the court such that the child does not need to testify. Quite possibly that would mean 'letting the other side win'.

[DavidForthoffer]

If the person who is being charged is a parent, the person can prevent the child's testimony by negotiating a resolution of the custody issue that is pending before the court such that the child does not need to testify.

It is still up to the judge whether the child testifies. What both parents agree to may not be in the child's best interest. If the judge senses that, he can decide to listen to what the child wants, regardless of what the parents want.

[cyjeff]

If the person being charged isn't a parent, there's nothing that the person can do - they have no say in how the custody matter is conducted. If the person who is being charged is a parent, the person can prevent the child's testimony by negotiating a resolution of the custody issue that is pending before the court such that the child does not need to testify. Quite possibly that would mean 'letting the other side win'.

MKIA, I read this as someone not related to the custody case being a bit worried that their violent episode was about to be entered into the court record.

[WhoDat]

Yes, Cyjeff is right in his second reply. The person is not a parent and it has more to do with being worried that the child's testimony will be in the court record and will be used against the person later. What can the person's lawyer file (specifically citing what rights the accused person has???) to prevent the child, who is a jaded witness due to the parent putting pressure on the child, from testifying?

[cyjeff]

Yes, Cyjeff is right in his second reply. The person is not a parent and it has more to do with being worried that the child's testimony will be in the court record and will be used against the person later. What can the person's lawyer file (specifically citing what rights the accused person has???) to prevent the child, who is a jaded witness due to the parent putting pressure on the child, from testifying?

Not a damn thing.

You are trying to intimidate a 10 year old witness to a crime.

That is it's own crime.

What you can do is dispute the testimony in your own trial.

Or, better, you could stop hitting people. That would be better than figuring out ways to intimidate children when they want to tell on you.

[WhoDat]

First of all...be nice. Second of all, I did not hit anybody and i am not the accused. The other parent is pressuring the child to lie and say that something happened that never happened. The person who is being accused needs protection and that's why I am asking what can be filed to prevent the child from testifying. The child is under a lot of pressure and is not eager to testify so I am trying to protect the child's mental health as well in this situation. So, what can be filed..and please, only criminal lawyers respond..to prevent a witness who is under pressure to lie..to testify? No more personal attacks, please. I came to this site for ideas, not to be attacked!

[aardvarc]

The child gets to testify. If anything the child says comes back around later in some other case, then the child can be made a witness in that case too, and getr called to the stand to be cross examined by both sides as a witness in that new case. They don't just "cut and paste" the child's testimony from the first case.