Taking legal depositions of children can be a special challenge for both attorneys and court reporters. The lawyers need to handle young witnesses gently to get correct answers and good information from them. Having a court reporter present is especially important in case there is a question about the child’s veracity later.
Attempting to place a child under oath is somewhat controversial in the legal world. Most lawyers will avoid deposing minors unless it is crucial to the case. As a result, it does not happen very often. While state laws vary on the details, minors are generally accepted as witnesses, sometimes with special permission from the judge. The most important factor is that the child understands the difference between the truth and a lie. One way to be sure the child understands is to simply ask them. For example, a blond lawyer might say to the child, “My hair is blue,” then ask the witness if this is the truth or a lie. To be considered a viable witness, the child should be able to say it is a lie.
The youngster should also be aware that telling a lie has consequences. Asking the child what will happen if they tell a lie after promising to tell the truth in the deposition should yield an answer that is basically true, but may bring a smile to some faces. For example, most children believe if they lie they can be arrested, be put in jail or “get in really big trouble.” Responding in this manner makes them acceptable as a witness.
At the beginning of a deposition transcript, court reporters usually put in a preamble that a witness is sworn. In the case of child witnesses, you may sometimes say instead that the witness “promised to tell the truth.” Depending on the age of the minor child and state laws, the oath is often handled as a solemn promise rather than being sworn.
The most challenging part for court reporters is being able to hear the child. Most kids are soft-spoken, especially when they are nervous. The lawyers and court reporter may need to remind them to speak up frequently. This should be a friendly reminder, rather than a correction, to keep the child at ease. In the case of delicate subjects, a child may get upset and begin to cry. This makes it extremely difficult for the court reporter to understand what they are saying and accurately take down their testimony. In such cases, it is best to stop the deposition and take a recess. Once the witness has calmed down, it will be easier to get a clear record.