Last week I concluded a seven day jury trial involving allegations that my client committed domestic violence against his ex wife. Fortunately for my client, it took the jury less than an hour to find my client not guilty. Prior to going to trial I attempted to convince the Deputy District Attorney that he should not proceed with the case, since the only corroborating evidence he had was the supposed statement that the parties' seven year old son gave to the police. The ex wife had taken their seven year old son to the police station about two hours after the incident to make a police report. When I explained to the prosecutor that the child was an unreliable witness due to the child's age, the prior inconsistent statements he made to our investigator, and because of the fact he was not in a position to have witnessed the incident, the prosecutor dryly replied that he was still going forward with the case because he had interviewed the child and believed his story. Small children do not make very good witnesses for a variety of factors, and they should be called to the stand only when it is absolutely necessary. In the seventeen years that I have practiced law, I have only seen small children called to the stand on a couple of occasions. Not only do small children generally make poor witnesses, but the emotional impact of calling a child to the stand has to be great. In this case, the little boy was called to testify against his father in a rather minor incident. I can only imagine the strain this experience will have on their relationship and the feelings of guilt the poor child will feel for the rest of his life for taking the stand. Once again I am reminded that exercising one's discretion not to proceed with a "domestic violence" case has to be allowed within our system of justice.
Written by: Donald P. Schweitzer