Interviewing an Unrepresented Child Prosecuting Witness in a Criminal Case Alleging Physical or Sexual Abuse of the Child
Adopted: January 27, 2012
Opinion rules that a criminal defense lawyer or a prosecutor may not interview an unrepresented child who is the alleged victim in a criminal case alleging physical or sexual abuse if the child is younger than the age of maturity as determined by the General Assembly for the purpose of an in-custody interrogation (currently age 14) unless the lawyer has the consent of a non-accused parent or guardian or a court order allows the lawyer to seek an interview with the child without such consent; a lawyer may interview a child who is this age or older without such consent or authorization provided the lawyer complies with Rule 4.3, reasonably determines that the child is sufficiently mature to understand the lawyer’s role and purpose, and avoids any conduct designed to coerce or intimidate the child.
Introduction:1
This ethics opinion examines when a criminal defense lawyer or a prosecutor may interview a child who is the prosecuting witness in a criminal case alleging physical or sexual abuse of the child. The opinion is purposefully limited to this factual situation and does not address whether a lawyer may, for example, interview a child who is a witness to a crime but is not the victim of the crime. The absence of an opinion on the latter subject does not, however, mean that the Ethics Committee has concluded that such interviews are permissible without consent or authorization of a parent, guardian or the court. A lawyer should take into consideration the principles articulated in this opinion when considering whether to interview any child who was a witness to a violent crime especially one involving the child’s family members.
The opinion addresses a difficult dilemma for a lawyer who has a duty to prepare competently by investigating each case and interviewing key witnesses but who does not wish to cause further harm to a child who may have been traumatized by physical or sexual abuse.In preparing this opinion, the Ethics Committee received input from mental health professionals and child advocates. That input led to the committee’s determination that the emotional and intellectual sophistication of a child cannot be determined by a lawyer or established by an opinion of the Ethics Committee. However, the General Assembly has determined that a child at a certain age is legally mature for the analogous purpose of responding to an in-custody interrogation.N.C. Gen. Stat. §7B-2101(b). In the absence of a better benchmark, the committee accepts the General Assembly’s policy decision on this issue.
When a lawyer is considering whether to seek the consent or authorization of a parent or guardian or a court order2 allowing the lawyer to interview a child who is alleged to be the victim of physical or sexual abuse, the lawyer should keep in mind the following information provided to the committee by the experts it consulted.Excessive interviews of child victims lead to additional trauma for the child.A person who is not trained in techniques for forensic interviewing of children often makes grave errors that can taint the interview or add to the child’s trauma.It is preferable for the interview to be performed by a professional.To avoid intimidating the child, a support person for the child (family member or other appropriate person) should be present at the interview.In light of the foregoing, a lawyer should investigate whether forensic interviews with the child have already taken place and are available on tape; if a tape of an interview with the child is available, the lawyer should consider forgoing further interviews.
Inquiry #1:
Attorney A represents a criminal defendant on a charge of taking indecent liberties with a child.To prepare for trial, Attorney A would like to interview the child who is the victim of the alleged crime.The child is not a party to the criminal action.She does not have a lawyer and a guardian ad litem has not been appointed to represent her interests.May Attorney A interview the child without the consent of the child’s parent or legal guardian?
Opinion #1:
Yes, if the child is older than the age of maturity for the purpose of an in-custody interrogation as determined by the General Assembly in N.C. Gen. Stat. §7B-2101(b) which provides that an in-custody admission of a child under the age of 14 is inadmissible if the interrogation was made outside the presence of the child’s parent, guardian, custodian or attorney. Below the age designated in the statute, it is presumed that a child cannot understand the purpose of an interview with a lawyer, the lawyer’s role, or the child’s right to decline the interview or terminate the interview at any time.If the child is this age or older, Attorney A may seek an interview with the child without the consent of the child’s parent or legal guardian, provided Attorney A respects the rights of the child and there is no legal requirement that the consent of the parent or legal guardian be obtained.If the General Assembly changes the designated age in N.C. Gen. Stat. §7B-2101(b), or a successor statute, this opinion shall be similarly changed.
It is Attorney A’s professional duty to prepare competently and diligently to defend the client; a priori, in most cases this includes interviewing the victim of the alleged crime if the victim will consent to the interview.Nevertheless, a child frequently does not have the emotional or intellectual maturity to make an informed decision about whether to consent to the interview or the emotional or intellectual maturity to understand the role of the lawyer or the purpose of the interview.
Rule 4.3(b) states that, when dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not
state or imply that the lawyer is disinterested.When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.
As noted in comment [1] to Rule 4.3, “[a]n unrepresented person, particularly one not experienced in dealing with legal matters, might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client.”
Many children are inexperienced in legal matters and will not understand the role of a lawyer who seeks an interview. Many children will naively defer to the lawyer because he or she is an adult.Many children will be easily misled or subject to the undue influence of an authority figure such as a lawyer.Because of their psychological and emotional immaturity, it is, therefore, presumed that a lawyer may not interview a child who is younger than age 14 without violating Rule 4.3(b) unless the lawyer obtains the prior consent or authorization of the child’s (non-accused) parent or legal guardian or obtains an order from a court with jurisdiction.
A child who is age 14 or older may be interviewed without prior consent or authorization of a parent, guardian or the court provided the lawyer who seeks to interview the child reasonably determines that the child is sufficiently mature to understand, when disclosed by the lawyer, (1) the role of the lawyer, (2) who the lawyer represents, (3) that the purpose of the interview is to prepare the case for trial, (4)the right to have an adult present during the interview, and (5) that the child is at liberty to refuse or to terminate the interview.If the lawyer cannot reasonably conclude that the child is sufficiently mature, both emotionally and intellectually, to understand the five disclosures, the lawyer may not interview the child unless a legal guardian or parent consents or a court orders the interview. If the conduct of the legal guardian or the parent toward the child is at issue in the criminal case, consent must be obtained from a guardian ad litem, a court or other appropriate person or entity with authority to give consent. See opinion #3; see also Rule 7.1 of the General Rules of Practice for the Superior and District Courts (providing procedure for appointment of lawyer to serve as guardian ad litem for minor who is victim or potential witness in a criminal proceeding).
Rule 3.4(b) prohibits a lawyer from counseling or assisting a witness to testify falsely. This includes making improper suggestions or offering inducements that might lead a naïve and vulnerable child to change or alter his or her testimony. Although a lawyer may reasonably conclude that a child who is age 14 or older is sufficiently mature to consent to the interview, the lawyer may not engage in emotional manipulation or other forms of undue influence, coercion or intimidation that may inhibit or alter the witness’s testimony.
Rule 4.2(a) prohibits a lawyer from communicating about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter unless the other lawyer consents or the communication is authorized by law or court order.Before interviewing a child, if allowed to do so under this opinion, the lawyer must determine whether the child is represented and, if applicable, follow the requirements of Rule 4.2(a).
Inquiry #2:
May the prosecutor interview the child who is the alleged victim of physical or sexual abuse?
Opinion #2:
Yes, subject to the same constraints set forth in opinion #1.
This opinion does not impede a prosecutor’s fulfillment of the duty under the Crime Victims Rights Act, N.C. Gen. Stat. Chap. 15A, Article 46, to offer a victim the opportunity to consult with the prosecutor to obtain the views of the victim about the disposition of the case.See N.C. Gen. Stat. §15A-832(f).N.C. Gen. Stat. §15A-841 states that, if the victim is mentally or physically incompetent, the victim’s rights under the Act may be exercised by the victim’s next of kin or legal guardian.A prosecutor may, therefore, fulfill his or her duty under the Act by speaking with the parent or guardian of an alleged victim who is under age of 14.
Inquiry #3:
The defendant is the child’s parent or legal guardian and is accused of conduct that, if proven, would constitute abuse or neglect of the child.May the defendant’s criminal defense lawyer interview the child subject to the constraints set forth in Opinion #1?
Opinion #3:
In most instances of alleged child abuse or neglect by a parent or guardian, a guardian ad litem (GAL) and, on occasion, an attorney advocate are appointed to represent the child. RPC 249 prohibits a lawyer from communicating with a child who has been appointed a GAL unless the lawyer obtains the consent of the attorney advocate or, if only a GAL is appointed, the GAL. If a GAL has not been appointed for the child, the lawyer may interview the child subject to the constraints set forth in Opinion #1.
Endnotes
1. This opinion does not address legal issues relating to due process or the confrontation clause.
2. It is contemplated that a lawyer could seek the court’s permission to interview the child without obtaining the consent of a parent or guardian.The child would not, of course, be compelled to submit to the interview.