Kids are being forced to testify in court. Seriously?


I am appalled. Toddlers are being led into makeshift courts at the border to testify on their own behalf in deportation hearings. Seriously?

Anyone who has paid attention and/or watched a crime show on TV knows that in order to be able to testify, a person must be deemed “competent”.  Competency can be challenged on the grounds of mental illness, memory loss, cognitive disabilities – and age - among others.

Although laws vary around the country, at common law a child under the age of 14 was presumed incompetent to testify. Courts that allow the testimony of children under that age make a determination of competency for each individual witness, and provide a multitude of safeguards to prevent harm to the child throughout the process.  No such safeguards are in place in the “processing” of Hispanic children at the border – many have no advocate with them at all as they take a seat on the witness stand.

Addressing child development, John Hopkins says that an average child of that age should be able to group similar items, identify colors, and linguistically use most speech sounds (often distorted), describe the use of items like forks and cars, and answer simple sentences like:  “What do you do when you’re hungry?”.

Now imagine that child answering this question:

“What testimony can you give the court to be able to determine if you have a legitimate claim for imminent danger from gang and cartel violence sufficient to qualify for asylum and be admitted into the United States rather than be deported back to your country of origin?”

The response, as actually happened in one border hearing, is likely to be for the child to climb up onto the counsel table.

Does a child of this age have the ability to convey the reality of their lives back home – where their parents are actively trying to shield them from that reality?  Do they have any idea of what their life could be like in America?

Now, add the overlay of recently being removed from their homes, making a harrowing and exhausting 2,000 mile trip on foot, being rent from the arms of their parents, traumatized by isolation from them, and cared for by strangers – many with a language barrier – who won’t touch them.  Experts have been telling us for weeks that children subjected to this level of fear and trauma often revert to an earlier age in their development, physically, emotionally and mentally.  So now the judges are questioning a child functioning as a 2 year old?

I spent over 20 years in the courtroom in various capacities, including as a litigation consultant and appellate brief writer. I have sat in the courtroom for hundreds of hours and have never, ever, not once, experienced the phenomena of a toddler testifying – not in any type of case – even family law. Any judge who allowed such testimony would be open to appellate review and I can’t imagine any outcome other than a finding of error.

It is surreal that we are even having this conversation.  We all know, intuitively, that this policy is insane, absolutely insane.  It is a sham made to give the appearance of due process to a system that Trump says should not observe that Constitutional nicety.

Amazingly, Judge Jack. H. Weil, an experienced immigration judge, recently stated that toddlers can be taught immigration law sufficient to allow then to testify meaningfully in court without the aid of an attorney. In sworn testimony at a federal court in Oregon in a suit brought by the ACLU objecting to having young children testify in deportation hearings unrepresented, Judge Weils said:

“I’ve taught immigration law literally to 3-year-olds and 4-year-olds. It takes a lot of time. It takes a lot of patience. They get it. It’s not the most efficient, but it can be done.’’

Now just think.  If you had strayed over the border into another country while traveling, and were facing a deportation hearing – in another language – in an unfamiliar court system – with unfamiliar laws and practices – and uncertain consequences - would you think you could be adequately “taught” their immigration law to be able to testify without counsel?

Now imagine you’re 3 years old, and miss your mom and dad and your home really bad. Can the court possibly elicit any meaningful testimony from you?

I am appalled.