CLOSING ARGUMENTS: A selection of passages dealing with 'Children Speaking the Truth'

MR. SPIVEY (for the defense)   Now, when you put a child on the witness stand in court and they're being direct examined by one side and cross-examined by the other, you're going to expect the child to get confused and going to expect the child to have problems, and you worry about that. Because nobody wants to take advantage of a child and nobody wants the fact that the child has to be in the courtroom. And if y'all have taken any offense about the fact that we had cross-examined the children, I hope that you would simply keep in mind that it's something that has to be done in a situation like this. There's no way to avoid it. It's not something that should vary to be done in a courtroom.

These questions about the child's concept of what's real and what's not real should have been asked in a therapy session. When the child is setting in therapy session and saying real babies were killed in outer space, the therapist's response should be to do something to get that child back in contact with reality, not with a set of ritualistic or satanic charts and start working with the child and go off into yet another wild story. What does that do to the child, his sense of what is true and what's is not? I think Doctor Shopper put it very accurately when he said, "Yes, children will tell you the truth. They'll tell you what they understand the truth to be. It doesn't necessarily mean it is the truth. It's whatever they think is true." At one time this child thought it was true that babies had been killed that it happened out of space when she was a little bitty child. It's a story that should not make any sense to her now. She's got a lot of confusion at this point about which stories are real and which ones not, what she's supposed to say and what she's not supposed to say.

You look at Andy. Now, here's a child that's old enough to know that you're not hung by your neck from a limb and tree. You die. Here's a child that's old enough to know that there's not a salt water pond behind Mr. Scott's house that's full of sharks and they take them out in the water and let them swim around the boat while the cook from day care throws food out to keep them circling around the boat. And then when you had your fun for today, you scoop them up with a shark machine that Mr. Scott invented. These are the children that -- they should know better. They should know the difference. But they can't know the difference now. Because it's one thing they learned in the last three years is that when you talk about this topic, anything goes. And if you want something sad to see in a case, that's something sad to see.

Mr.  MILLER (for the defense)   How many "yes" or "no" questions have we had in this case? How many statements that are being made by parents to you that sound like full-blown statements out of a child's mouth are actually their reconstructions of conversations.

You recall Doctor Everson said you don't ask questions like "did Mr. Bob put his ding-dong in your mouth?" You recall that that's precisely the question that Michelle Zimmerman asked in her first session with the first children she saw.

Now, you can say or you can ask that question "did Mr. Bob put his ding-dong in your mouth?" The child says "no." You ask it several more times and the child says "yes." And you reconstruct that to say Kyle or Brian, or whoever you want, whoever's name you want to put in there, said Mr. Bob put his ding-dong in his mouth. Well, the child didn't say it. And for the most part the child didn't say the things when they were on the witness stand. Remember that. Remember those issues. Those are critical issues because they do make a difference, because they're important in this case. Because you remember, it's not what the children said so much as it is how do they come to say it.

Mr. HART (for the prosecution)   They also talked about reasonable doubt. And yes, ladies and gentlemen, if you have a reasonable doubt as to any elements of any of the charges, then you are not to find Bob Kelly guilty of those charges. But it's important that you focus on what it is that you do not have doubts about. You don't have to wonder whether there was real or pretend snakes. We don't have to prove whether the snakes, the kids talked about, were real or pretend. Whether the animals that they talked about or puppets as some of the children said, whether they were real. None of that has to be proved to you beyond a reasonable doubt. And none of that information is elements of the case.

Now, it's important for you to look at. And we have never said it wasn't important. You need to look at everything that the children said before court and in court. You need to think about what the children said when they were on the witness stand. You need to think about what the parents said they said. You need to think about the way that they talked with them. The way they took their journals. You need to think about the fact that they were in therapy sessions. I know that you're not going to be able to remember everything that everybody said, but that's why it was presented. It's presented because it is important. It is important for you to know what was said and how it was said. But some of those things the defense seemed to ask about ....What did the defense ask about? The defense went through and asked about everything but what Bob Kelly did. They went through and asked about snakes and frogs and everything weird that they could find in any of the therapy notes. And they asked about what other people did, what the children said the other people did to them. But they did not cross-examine the children on the actual allegations that they made against Bob Kelly that are the subject of the charges that are pending in this case. Why? If they wanted to know the truth about the actual charges, about the actual allegations of child sexual abuse, why didn't they ask about it. Their own experts say that is the best way to find out.

Doctor Raskin says you can say "tell us about that" and you'll get the complete story. But they didn't. We don't have to prove everything the children said is true.

And ladies and gentlemen, we have put on expert, Mark Everson, to say that children don't always say -- that when children talk about these things that not everything they say is absolutely true. And that part of some of what the expert says is true, that children because of their age, their developmental level, their language difficulties, their perception, their lack of knowledge don't always understand everything. They don't always understand.

If you think about your own dealings with children, they don't see things as adults do. They don't even see things as older children do. There are things they do not understand because of their lack of knowledge at that age. They're not always able to articulate to us what it is they're trying to tell us.

How many conversations have you had with children where you spend several minutes just trying to make sure that you're on the same wave length? Make sure that you really understand what the child was asking and to make sure that the child really understands what it is you're actually saying because it doesn't actually meet up? You have to talk in a different level. You can't always bring them up to your level like Doctor Raskin suggests.

You have to get down to their level and talk to them in a way that they will understand. Make sure you understand what they're saying and they understand what you're saying.


The children now talk about seeing pretend babies and pretend animals, puppets. Well, at two, three, four years old children see a puppet show and they may think it's real. They talk about their stuffed animals as being real. There are things that are real to young children, but not real to children as they get older. Not real to us. We don't know what they're saying, all the things that they talked about.

But again, we don't have to prove whether or not there were real dolls or not; whether or not a hamster was actually killed or children were made to believe a hamster was killed. What we have to prove is the elements of the offenses that the Judge will charge you on tomorrow. That's what we have to prove to you beyond a reasonable doubt. That the children know what they are talking about when they told you that Bob Kelly stuck his finger up their butt. That Bob Kelly put his penis in their mouth. If you believe that they know what they're talking about there, and that that's true and that's not fantasy, that's reality base, then we've proved our case.

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