Is the child telling the truth?
Video recorded interviews of child victims and witnesses in criminal cases help jurors answer that question. But defense attorneys are questioning whether the way those interviews are presented to juries gives undue weight to statements and accusations by child victims.
That issue is at the center of two cases under consideration by the Colorado Supreme Court.
In cases that can take years to prosecute, video recorded interviews between children and trained forensic interviewers provide the timeliest look at the child describing the alleged crime in an environment far less intimidating than a police station or courtroom.
But there is a thin line between when a forensic interviewer is providing a jury with context about an interview and when they imply the statements are true, public defenders in the two cases argued on Tuesday. When forensic interviewers are called to explain how an interview is done, describing their training and techniques can unfairly give the children’s statements credibility — a determination defense attorneys say should be left solely to the jury.
“That type of testimony is only for the purpose of establishing that this is believable,” Tracey Renner told the state’s high court.
Renner represents Julio Vena lonzo, who was convicted in 2007 of sexual assault on a child. The judge in Venalonzo’s trial erred when he allowed the forensic evaluator to discuss her training and experiences in other cases without qualifying her as an expert witness, Renner said.
The defense attorney for Anthony Marsh, who was convicted in 2008 on seven counts of sexual abuse on a child, made similar arguments. In that case, the judge should not have allowed the forensic interviewer to instruct the jury to focus on “core details” in the child’s statements, said Anne Amicarella, Marsh’s attorney.
The Supreme Court will issue a written opinion later, but during the argument the justices repeatedly asked attorneys on both sides “where is the line?”
Child victims — often the only witness to the alleged crimes — are routinely brought to forensic interviewers after they disclose some sort of abuse or are a victim of a violent crime. Forensic interviewers, who are trained to ask nonleading, open-ended questions, meet with children in spaces designed to make them feel safe and comfortable enough to discuss the incidents.
If attorneys want to play those recordings for the jury, typically the forensic interviewer must testify about the interview.
“We’re not searching for any specific answer. The purpose is to elicit information from the child in their own words,” said Jodi Byrnes, director of the forensic interview program at the Denver Children’s Advocacy Center.
Byrnes has done more than 1,000 forensic interviews with children. She has been called to testify about the interview in roughly 85 percent of the cases that resulted in criminal charges.
“It is not my job to give my opinion,” Byrnes said.
That is the answer Byrnes gives when asked if she believes the child was being truthful during the interview. Byrnes, who was not involved in either of the cases pending in the Supreme Court, will describe her training and experiences in other cases to provide context about the interview, she said.
Speaking generally about the issue, Denver defense attorney Megan Downing said any attempts to bolster or frame a child’s account is problematic.
“There is a fine line between discussing the circumstances of a child’s out-of-court interview and discussing the statements themselves,” Downing said. “When a witness elaborates on the child’s demeanor or the content of the child’s statements, and goes so far as to offer an opinion about them, it’s arguably crossing the line into the jury’s job to decide those issues.”
In almost every case in which a recording is played, the child victim or witness must also testify in front of the jury, said Krislene Lorenz, a senior deputy district attorney in Jefferson County. But the video recordings allow jurors to see the child discussing the alleged crime in a space where they feel safe.
Usually the interviews are done closer in time to the alleged crime. Children can be 1 to 3 years older by the time they take the witness stand, Lorenz said.
“These cases are so incredibly difficult because often times we have the word of a child against the word of the perpetrator, and adults pull most of the power in society,” Lorenz said. “Any little bit of evidence we can provide the jury, to allow them to believe the child, is helpful.”
Jordan Steffen: 303-954-1794, jsteffen@denverpost.com or @jsteffendp
