To Care or To Scare: Shielding of Child Witness and the Defendant’s Right to Confrontation

Raphael Kok Chi Ren, University of Malaya

25 August 2008, 1115, Moot Court

The final essay in the first session stares at the vulnerability of this group of people in a court of law. How does one balance a child’s right not to be intimidated by an adult when giving evidence and the right of the accused to question his witness? Watch Raphael advance a solution that he believes balances the rights of both parties.

Abstract

This article relates to the recent law reform efforts taken across various common law jurisdictions to allow child witnesses to be shielded from the accused in criminal trials.

In the adversarial trial system, oral testimony from witnesses constitutes the main form of evidence for a judge or jury to determine the guilt or innocence of the defendant. Another integral part of the system is the requirement for the witness to testify in the presence of the accused.

But lately, the law has recognised that special relaxation of the confrontation rule must be given to child witnesses, who are easily traumatised by the sight of the accused.

To what extent should child witnesses be protected by the law? How truly valuable is a defendant’s right to confrontation?

This article seeks to answer such questions, and in doing so, suggest a legal regime which fairly balances the rights of both parties.