When children testify: Direct Exam of a 10 year old son in his father's wrongful death case

  Photo:  Noelle celebrating her 21st birthday with a visit to the animal shelter in Nashville.

Photo:  Noelle celebrating her 21st birthday with a visit to the animal shelter in Nashville.

Children may be scared to testify in a trial.  But being on a witness stand can also be empowering for them.  They are having their day in court.  They are participating in an integral part of our country's foundational structure.  They are helping the process of determining the truth.

In this case, the trial judge does an excellent job of ensuring that the child feels safe and is as comfortable as possible.  Ellie the courthouse dog is brought in by a prosecutor.  When the child's name is called, he walks up to the stand with Ellie.  She lays at his feet.  And when the child becomes a little anxious, a timeout is taken so he can pet her.

We are calling the child in this wrongful death case.  He is an only child.  His father was a single custodial parent.  We will not have him on the stand for long.  But the jury needs to see who will be effected by their ultimate verdict.  Our goal is to get them to truly see this young boy.

The child testifies haltingly at first.  The questions are gentle and benign.  One after the other.  Moving along.  Not letting silences linger.  Eventually he relaxes, opens up, gets a little anxious, pets Ellie, and wins our hearts.  Here is his testimony:

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6     THE COURT:  Are you P?
7               THE WITNESS:  Yes.
8               THE COURT:  Hi, I am Judge Middaugh.
9               THE WITNESS:  Nice to meet you.
10               THE COURT:  Nice to meet you too.  Look
11   who you have got over there.  I am so jealous, is that
12   just the most fabulous dog?  She is a cutie.  So I'm
13   going to let the jury know that there is the dog in
14   the courtroom just to be here with P, just in
15   case we have a jury that's afraid of dogs.  Because
16   that happens sometimes.  So just to let them know that
17   there will be a dog here with P.  So Gabby, if
18   you would not mind telling the jury that P is
19   here and he has the courthouse dog with him.
20               Okay.  And we can get the jury.
21   (In Court/Jury In)
22               THE BAILIFF:  Please rise for the jury.
23               THE COURT:  Okay, have a seat.  So ladies
24   and gentlemen of the jury, as Gabby told you, we have
25   this young gentleman who is going to be testifying
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1   today.  And we have with him, we call her the
2   courthouse dog, but she actually belongs to this woman
3   who works in the courthouse.  And the dog's name is
4   Ellie.  Right?  And Ellie sometimes comes and helps
5   out when we have children testify.  And I will tell
6   you honestly, I try to get her up here as much as
7   possible.  So if you want to look at Ellie, you can
8   stand up and take a look, she is right there.
9   Otherwise she is very quiet and she just hangs out.
10   Okay?
11               So P, how old are you?
12               THE WITNESS:  10.
13               THE COURT:  All right.  Do you know what
14   the difference is between the truth and a lie?
15               THE WITNESS:  Yeah.
16               THE COURT:  What's the difference?
17               THE WITNESS:  Well, the truth is when you
18   are telling, you know, that's, that's not made up.
19               THE COURT:  All right.
20               THE WITNESS:  And a lie is something that
21   you just made up.
22               THE COURT:  Okay.  And do you know why you
23   are here today?
24               THE WITNESS:  To --
25               THE COURT:  You are going to testify, talk
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1   in court, right?
2               THE WITNESS:  Yeah.  About my dad.
3               THE COURT:  Yes.
4               THE WITNESS: (Inaudible).
5               THE COURT:  Okay.  And when you are in
6   court or do you tell the truth or is it okay to lie?
7               THE WITNESS:  Tell the truth.
8               THE COURT:  Okay.  So I will ask you
9   today, do you promise to tell the truth today?  What
10   are you going to say, do you promise to tell the
11   truth?
12               THE WITNESS:  I promise to tell the truth.
13               THE COURT:  Okay.  If during sometimes
14   when questions are asked if you don't understand the
15   question, will you promise me that you will ask the
16   lawyers to say the question again in a different way
17   so you understand it?
18               THE WITNESS:  Yes.
19               THE COURT:  Okay.  All right.  Then I will
20   take that as having sworn the witness in.  And the
21   first thing you are going to do is you need to state
22   your name, your full name, for the record?
23               THE WITNESS:  My name is P
24   H.
25               THE COURT:  All right.  And I'm going to
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1   tell you that this little thing right here, sometimes
2   placed over there, that is our microphone.  And we are
3   recorded courtroom, so everything is being recorded
4   and taken down when you say, so you need to make sure
5   you answer all the questions out loud and with words.
6   No nodding of your head and that kind of stuff,
7   understand?
8               THE WITNESS:  All right.
9               THE COURT:  Okay.  Go ahead.  Whoever.
10                   DIRECT EXAMINATION
11   BY MS. KOEHLER:
12       Q.   All right.
13               MS. KOEHLER:  I did want to introduce the
14   guardian ad litem.  Ms. Fargo West is here, Your
15   Honor.  (Inaudible).
16       Q.   (By Ms. Koehler) For the record can you tell
17   us your full name and your address?
18       A.   My name is PH and I don't
19   know my address.
20       Q.   Do you know where you live?
21       A.   I live in Conconully in the Winrow
22   Apartments.
23       Q.   And who do you live with?
24       A.   I live with my Aunt Mary?
25       Q.   Cousin -- lives -- who live (inaudible)?
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1       A.   I'm not sure.
2       Q.   Is Mason here today?
3       A.   Yes, he is.
4       Q.   I'm going to ask you some questions and if
5   you don't understand the questions, what are you going
6   to do?
7       A.   I'm going to ask you.
8               THE COURT:  You are going to ask her.  If
9   you don't understand the question, you are going to
10   ask whoever asks the question if they could say it a
11   different way so you can understand it, okay?  All
12   right.
13       A.   Yeah.
14       Q.   (By Ms. Koehler) So can you tell the jury
15   what your birth date is and how old you are?
16       A.   I am 10 years old and my birthday is
17   December 9th.
18       Q.   Where were you born?
19       A.   Where was I born?  I was born in Spokane.
20       Q.   And how long did you live in Spokane?
21       A.   I'm not sure.
22       Q.   Did you like Spokane?
23       A.   Yeah.
24       Q.   What did you like about Spokane?
25       A.   I loved that I grew up there.
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1       Q.   What are some of the favorite things that you
2   have done in Spokane?
3       A.   I don't know.
4       Q.   Do you go to school?
5       A.   Yes.
6       Q.   Where do you go?
7       A.   I go to Sunrise Elementary.
8       Q.   What grade are you in?
9       A.   Fourth.
10       Q.   What's your favorite subject?
11       A.   Reading.
12       Q.   What's the subject you hate the most?
13       A.   Math.
14       Q.   What kind of books are you reading in the
15   fourth grade?  Do you have chapter books?
16       A.   Yes.
17       Q.   What's the series that you like, do you have
18   captain -- inaudible)?
19       A.   Definitely not.  I don't -- I just read
20   like -- kind of like comic books, kind of any kind of
21   (inaudible).  I really like big chapter comic books
22   where people are just talking.  And I read like
23   (inaudible) like actual pages like that.  Fourth grade
24   Eagles, I think.
25       Q.   All right.  Tree House, do you read Tree
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1   House books?
2       A.   Tree House books?  No, I have heard of those.
3       Q.   How many kids are at your class?
4       A.   32.
5       Q.   So how long have you gone to this elementary
6   school?
7       A.   I'm not sure.
8       Q.   Do you remember going to a different
9   elementary school or have you always gone to
10   (inaudible) school?
11       A.   I (inaudible).
12       Q.   Where was the one you used to go to?
13       A.   (Inaudible) over in, over in Warden.
14       Q.   Pardon?
15       A.   Warden.
16       Q.   Who were you living with when you went to
17   this school?
18       A.   My cousin Mason, me, and my Aunt Mary.
19       Q.   Same people?
20       A.   Yes.
21       Q.   Which school do you like better?
22       A.   Warden.
23       Q.   Why?
24       A.   Because I do.  I miss all my friends there
25   really bad.  I thought I would be able to -- I thought
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1   we -- (inaudible), I thought -- I don't know.  Well, I
2   like that better over there, because it's really hot
3   over there.  Because I (inaudible) no more there.
4       Q.   Did you miss a lot of your friends when you
5   moved back to live with your dad in Spokane?
6       A.   Not that many actually, but yeah.
7       Q.   Did you develop more friends when you went to
8   school than before you started school?
9       A.   Can you say that again?
10       Q.   That was a weird question, wasn't it?
11               Before you started school did you live in
12   a neighborhood with lots of kids, or you mentioned
13   living with your dad?
14       A.   I was more (inaudible) living with my dad.
15       Q.   Tell us about that?  What does that mean?
16       A.   I mostly stayed in the house and watched TV.
17   Sometimes I was just hanging out with my mom and my
18   dad.
19       Q.   What would you do with your mom and dad?
20       A.   Watching a movie.  Play like Starrysky or
21   something.  It's kind of hard to remember it's been a
22   while ago.
23       Q.   I heard something, your uncle testified about
24   was it frisbee ball?
25       A.   Frisbee ball.
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1       Q.   What is frisbee ball?
2       A.   It's where -- it's where you get to have like
3   frisbees and they have got a point on them and they go
4   really, really far.  You put your finger inside and
5   throw them as hard as you can and try to -- it's like
6   this metal pull thing where -- where it's a like a
7   metal pull and then there is a whole bunch of chains
8   in the square box thing.  And you have to try to throw
9   it so it can hit the chains and then the -- you have
10   to come to the next one, the next one, next one, next
11   one, and then you -- you have a course and then
12   that's -- (inaudible).
13       Q.   How did you like to do that?
14       A.   I did it quite a bit.  I did it with my dad
15   and this one guy named Scotty.
16       Q.   So what other kinds of games like that did
17   you do outside?
18       A.   Oh, well, I know I was going to school.
19   There was one kid that would come over for a little
20   bit and my dad had like this nerf, nerf gun.  It was
21   of a missile one kind.  He would shoot it up in the
22   air and then we would try to catch it.  And whoever --
23   whoever would catch it, it would glow.  And if it hit
24   the ground it probably won't glow, it probably
25   wouldn't, because the hitting the ground it would
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1   light up.  Like the corner or something would go hum.
2   Just kind of lay there.
3       Q.   Did you do things like going hiking or would
4   you say you were an outdoors guy, or more of an urban
5   guy?
6       A.   Well, we went like there was like this -- me,
7   I lived in like this apartment place.  And we went --
8   went down like this trail, there was a bunch of trails
9   down there.  We -- oh, yeah, we went to -- we went to
10   this one place called it's water park.  We went
11   swimming there.  We just -- we went to parks too, so.
12       Q.   Your dad, were you pretty close to your dad?
13       A.   Yes.  I was very close to him.
14       Q.   Can you tell us a little bit about that?
15       A.   Well, um. [can't speak]
16       Q.   So your Uncle Mike said that you like to
17   barbecue a lot.  Did you go over to his house for
18   barbecues and things like that?
19       A.   Yeah.  When we went over for barbecues
20   sometimes -- most of the time it would be for like
21   holidays, birthday parties, stuff like that.  Or
22   sometimes in the summer, if it was just really hot.
23   It would be just like a hot weekend, we would go over
24   there.  That was like the main place where everybody
25   was going to go.  And like that, like on holidays,
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1   like on Christmas.
2       Q.   Christmas where everybody --
3       A.   I don't know it was just a family
4   get-together sometimes.
5       Q.   Can you tell us who you all is in your family
6   so we can kind of get to know your family a little
7   bit?
8       A.   My cousins and --
9       Q.   The people that you would spend time with.
10       A.   Oh, I would spend time with this girl named
11   Hally.  And it was my uncle, my uncle's daughter.  I
12   would -- I would sometimes -- sometimes when everybody
13   was inside, I would go outside and be playing soccer
14   with her.  And -- and --
15       Q.   That's okay.
16       A.   Huh?
17       Q.   You getting a little nervous.
18       A.   A little bit.
19       Q.   Take a drink of water and pet Ellie.  I think
20   she wants her tummy rubbed.  She is on her side.  Go
21   ahead, you can do that, no problem.
22       A.   You are very interesting.
23       Q.   Good.
24       A.   That's very good.
25       Q.   So would you mind sharing with us how it's
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1   been for you when your dad got sick, do you remember
2   that?
3       A.   Yeah.  I remember.
4       Q.   And do you feel that you are comfortable
5   sharing with us about that?
6       A.   Sure.
7       Q.   Sure.  Tell us about your dad getting sick.
8   That you -- (inaudible)
9       A.   Well, I kind of went through a lot of
10   sadness, because when my dad would talk to his friends
11   that he would be like so the doctor just told me like,
12   Oh, you got cancer.  (Inaudible) but he actually, he
13   actually got -- he was supposed to die in 2 months.
14   But he spent (inaudible) he passed away.  But he was
15   sick.  He had like this big puffed up thing on his
16   neck.  It was -- it felt like a big ice bag on top of
17   it.  And, oh yeah, me and him couldn't pay the rent
18   and stuff, so we just went over to our friend's house
19   for a little while.  Just moved to his friend's house
20   for a little while.  And there was there was two
21   teenagers, and a boy and his sister, and they were --
22   well, in that same picture.  I would hang out with
23   them when my dad was like downstairs watching TV.  But
24   when my dad would be out or doing something, like
25   going to the store or the hospital whatever, I would
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1   be like, I would be either be playing with those two
2   or I'd rather be playing on my, my (inaudible).
3       Q.   So your dad let you know what was going on?
4       A.   Um, well, I only pretty much heard like when
5   he would talk to his friends.  The stories, I would
6   get what he was saying.
7       Q.   And figured it out, you know?
8       A.   Yeah.  Yeah.  And my mom would tell me that
9   your dad is pretty sick, you know, but.
10       Q.   Were you really, really, really happy that he
11   got to live longer than they thought he would?
12       A.   Definitely, yeah.
13       Q.   So what did you do to to make -- make those
14   times really special for your dad, what did you do to
15   cheer him up?
16       A.   Well, I didn't really, at that time I really
17   I was like -- I never really -- I always forgot.  I
18   always forgot that he was sick, because we were always
19   having so much fun.  So I honestly didn't know until
20   when I was at school one day and it was like three --
21   maybe a month away from school summer.  And he said we
22   are going to go camping that summer, because we didn't
23   get to do it the last summer.  So and then -- and then
24   my mom told me my dad has to -- it's time for him to
25   go over to (inaudible)So I got pretty sad.
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1       Q.   So he -- again, anytime you don't want to
2   answer my questions, it's not going to -- it's okay to
3   say for you to say, I don't want to answer.  I don't
4   want to invade your privacy too much.  But if you are
5   okay talking then we will be here, you know.  We
6   really want to hear from you what you want to say,
7   okay?
8       A.   Okay.
9       Q.   Still doing okay?
10       A.   I'm fine.
11       Q.   Want to pet her one more time?
12       A.   Sure.
13       Q.   Okay.  Were you able to say good-bye to your
14   daddy before he died?
15       A.   The last time I said good-bye was -- was I
16   can't really remember, but I remember that it was the
17   last weekend that he spent at home, you know.
18       Q.   What did you guys do the last weekend?
19       A.   I can't really remember.  A little hard to.
20       Q.   Yeah.  So --
21       A.   I kind of feel it was like just the same
22   ordinary thing.  That's one of the things why I was
23   crying so much that he passed away.
24       Q.   So obviously you were very sad when he passed
25   away?
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1       A.   Yeah.
2       Q.   Have you been able to talk to somebody about
3   how to get through this time?
4       A.   Yeah.  I have had -- I don't know what they
5   are called.  People who help, that you can talk to.
6       Q.   Counselors?  Yeah?
7       A.   Counselors.  I have had counselors to -- I
8   still have a counselor actually.
9       Q.   Is that a her or him?
10       A.   It's a guy, yeah.  And he is sort
11   (inaudible).
12       Q.   Do you talk to him whenever you feel like it,
13   or do you have appointments?
14       A.   I have like appointments, I don't know when
15   the appointments are.  But like on Tuesday and
16   Fridays, like that.  (Inaudible).
17       Q.   So you do you see him a couple times a week,
18   or once a week?
19       A.   Once a week definitely.
20       Q.   Do you feel like that you have -- do you
21   really like -- I mean do you feel like it's a good
22   idea that you have counselor?
23       A.   Yeah.  Because then I get to express my
24   emotions and then he sends me back home.  Then I will
25   be able to talk to somebody instead of like being in
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1   my room and crying.
2       Q.   So you seem like you are one heck of a well
3   adjusted 10-year old.  And I guess my question is, how
4   have you been able to just stay so cool?
5       A.   My dad was all about that I guess.  I guess I
6   kind of just learned from him.
7       Q.   Tell us about that?
8       A.   To pull through.  To kind of pull through
9   whatever happens.  What happens, to just to keep on
10   going.
11               MS. KOEHLER:  Thank you, very much.
12               THE COURT:  Any questions?
13               MR. SMITH:  No questions, Your Honor.
14               THE COURT:  Any questions for P from
15   the jury?  You guys just want to pet the dog don't
16   you?  Okay.  Well, that means you are done.  And so
17   you can go and I guess you can take her with you,
18   though I am very sorry to see her go.  I don't think
19   she wants to leave.
20               UNIDENTIFIED FEMALE SPEAKER:  I think she
21   just wants to stay.
22               THE COURT:  I think she wants to stay here
23   in the courtroom with us for the day.
24               UNIDENTIFIED FEMALE SPEAKER:  She can stay
25   a while.
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1               THE COURT:  No, that's okay.  You can take
2   her, you can take her home.  Thank you, very much,
3   P.  You want to walk her out?  I bet you can?
4   Oh, she really does want to stay here.  That you very
5   much for letting her visit with us.
6               THE WITNESS:  Yeah.  Really, thank you.

Transcript from 2014 asbestos wrongful death trial. Little Boy transcript