Legal representation: child witness/deposition [Archive]

Michael Jacobs

08-01-2004, 01:10 PM

"alittlefreedom" <alittlefreedom@verizon.net> wrote in message
news:<sq5gg0pdeuiej8dh37h406h6l2efcosq4j@4ax.com>... My child (next month will be 13) was served with a subpoena today to testify in depo against a close relative.

I'm assuming this is a criminal investigation against the relative but
won't speculate further on what it's about since you told us nothing
of the facts.
Investigators have already interviewed him out of my presence.

It may be a close question under your state's law whether you had a
right to be present, or to have _your_ lawyer present, as opposed to a
lawyer specially appointed by the Court to represent only the
interests of the child. The child is not the target of the
investigation and thus does not have to be accorded "Miranda" rights.
Did you _request_ to be present at the informal interview? What did
they say in response to your request? I understand they did not tell
you what it was about. Did you ask? If you were concerned at that
time about your child being interviewed alone on unknown subject
matter, did you think of looking for a lawyer then? The time to ask
for specific advice from a local lawyer would have been before the
interview took place, not now, after it's all over. Lawyers can do a
lot of things to protect your rights, but even if you _had_ legally
enforceable rights in this matter, a lawyer can't easily un-do a
waiver of those rights that you freely granted to your adversary
before the lawyer was consulted.
Considering the nature of the investigation, I am DEEPLY disturbed that they did not disclose why they were interviewing him otherwise I would have insisted on being present. The interview upset him quite a bit.

I don't know enough from your post to comment on that, but is it
equally possible that the subject matter of the knowledge your child
held about the behavior of your relative is what upset him? Don't mix
up the messenger with the message. Also (see above) I'm not sure you
had a right to "insist" on anything. Consulting a local lawyer before
the interview could have told you what your rights were in the matter.
Apparently my son's answers were not what they were looking for, now they want him to answer questions through deposition.

To the contrary, if the informal interview showed that your child knew
nothing of relevance to the pending case, they would not have bothered
to request a deposition on the record to preserve his testimony under
oath for possible use at trial. He undoubtedly told them stuff in
the interview that they may want to use against your relative at
trial. Requesting a deposition means they think he knows enough
relevant information to be worth the time and expense of hiring a
court reporter and creating a formal testimonial record of what your
son knows. Only a small fraction of the potential witnesses who get
interviewed actually know enough to be worth calling to testify at
trial; it sounds like your son is one.
My concern is with the well being of my child. I don't want him to go alone.

That is a reasonable concern. Like any witness, he is entitled to
legal representation of HIS interests at the deposition.
Although I WILL be there

You'd better consult an atty now to find out if _you_ are also
entitled to be there, so you don't go to the hearing location and wind
up sitting out in the hall while it goes on, due to a misunderstanding
of your local law. I don't know the answer, but the atty you consult
will.
I'd like to know where to look into finding an attorney who will be by his side so he won't feel intimidated and who will look out for his interests.

If you know and trust any attys at all, asking them would be a place
to start. (DO NOT ask the attys representing your relative, of course
-- I'm sure you can see that would be a conflict of interest for
them). Even if it's not their area of practice, they could recommend
someone who could help you. Or, ask friends who have ever been
represented by a lawyer for anything, get his name, and then follow
through with that lawyer in the same way. Another option would be
your local bar association's referral service.
Also can anyone give me an idea of anything else I should be aware of or consider?

It may be that the Court would appoint a lawyer, at the State's
expense, to represent your child's interests. Have you asked the
prosecutors if they are willing to ask the Judge to do that?

The problem with having a lawyer of _your_ choice "representing" the
child is that in this case it is possible your interests are more in
line with those of your relative and adverse to those of your child.
A lawyer that _you_ pick, and you pay, may be seen by the court as not
truly independent and beholden to the person who is paying his bills.
Now don't get mad, I'm not saying that's so in your particular case,
but it's the rationale for court-appointed counsel for children
involved in litigtion, to avoid even the appearance of undue influence
on the child.
We are in Florida.. Thank you

There should be plenty of lawyers there who can help you. Good luck
to your family,

--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
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For confidential professional advice, consult your own lawyer in a
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300