A Sacramento State education professor is calling for federal legislation to protect child victims of crime from being cross-examined by defendants who choose to represent themselves in court.

Allowing a defendant to directly cross-examine his or her alleged victim risks re-traumatizing the child and causing long-term psychological damage, the professor, Sue Hobbs and her writing partner Gail Goodman argue.

The article by Hobbs, an assistant professor of child development, and Goodman, a UC Davis professor of psychology, was published Oct. 18 in the International Journal of Child Maltreatment.

In the article, they write the use of intermediaries to cross-examine child victims should be standard practice for cases in which the defendant represents him- or herself.

“When children have to appear in court, both as victims and as witnesses, the two most frightening parts are seeing the defendant and cross-examination," Hobbs said. "So, having them endure cross-examination by the defendant can cause additional undue harm to child victims.”

Intermediaries are available in the United States’ court system, but their use is at the judge's discretion, and the burden is on the prosecution to prove they are necessary. Hobbs and Goodman argue, instead, that the burden should be placed on the defense to prove the defendant’s right to directly confront an alleged victim overrides any potential harm to the victim.

Forcing a child to be cross-examined by an alleged attacker or abuser carries multiple risks, Hobbs said. The experience, as she and Goodman write in the paper, “can force the (child) not only to relive the trauma, but also to experience continued negative emotions associated with the trauma, such as anger, fear, humiliation, and powerlessness.”

It can erode their faith in the criminal justice system, making them less likely to report crime. In addition, the defendant could use the cross-examination to cause additional harm or threaten the child in ways undetectable to the judge or jury.

Assistant Professor of Child Development Sue Hobbs is calling for new legislation to protect child witnesses in the courtroom.

The authors' concerns, however, go beyond the effect on the child and speak directly to the heart of the legal system. Research shows that extreme stress, such as that resulting from a hostile cross-examination, decreases a child's ability to accurately recall events. The use of a neutral intermediary, Hobbs and Goodman argue, can help alleviate that stress.

“It would benefit the factfinders of the court to have an intermediary cross-examine the child if they want to get to the truth,” Hobbs said.

Hobbs and Goodman first became involved with the issue in 2016, when former Arizona kindergarten teacher Christopher Simcox was convicted of two counts of molestation and one count of furnishing obscene material to a minor. Simcox represented himself during trial and insisted on cross-examining his alleged child victims.

Hobbs and Goodman prepared expert testimony arguing that the children would be harmed by Simcox's cross examination, but multiple courts ruled for Simcox. (Ultimately, as prosecutors and child advocates prepared to appeal to the U.S. Supreme Court, Simcox abandoned his plan.)

As a result of the Simcox case, Sens. Jeff Flake and Dianne Feinstein sponsored a bill to prevent accused child molesters who represent themselves from cross-examining their victims. The bill lapsed in Congress.

Other countries with adversarial court systems allow defendants to represent themselves, though many make provisions for child victims and witnesses to protect them from cross-examination by the accused. In the United States, however, the practice is allowed to satisfy the Sixth Amendment guarantee that accused people may confront witnesses against them.

The proposal outlined in the article, Hobbs argues, continues to allow defendants to confront their accusers – albeit through an intermediary – thus keeping with the spirit of the Sixth Amendment.

"You don’t want to overlook the rights of the child victim or the witness when you’re looking out for the defendant,” Hobbs said. “You need to balance the rights of everyone involved, and I believe we can do that.”

The article, “Self-representation: Pro se cross-examination and revisiting trauma upon child witnesses,” can be read online in the International Journal of Child Maltreatment. – Jonathan Morales