On November 27, 2019, in Williamson County, Texas, Greg Kelley was declared to be innocent of Continuous Sexual Abuse of a Child. He had been wrongfully convicted by a Williamson County Jury in 2014 for that heinous crime and had been sentenced to 25 years in prison without a possibility of parole.

Where is the Reasoned and Impartial Investigation for Wrongful Convictions?

While I’m very happy for Greg and his family, I’m unhappy with the fallout. When a wrongful conviction is discovered and remedied, there’s reason to celebrate.  A wrong has been righted. Too often we fail to understand the reasons that lead to the horrifying and unjust result. Fingers are pointed, scapegoats identified. No reasoned and impartial investigation is done.

The Army relies on After Action Reviews to understand and improve its performance following armed conflict. We need this kind of review undertaken when a wrongful conviction in Williamson County is identified. Instead of pointing fingers at the cops, the jury, the prosecutors and the defense lawyers, let’s identify and understand where the problems lie and work to develop protocols to avoid them in the future.

Should a 4 Year Old Child Testify in Court?

I didn’t participate in the Kelley case but I did watch closing arguments at trial. His conviction was largely based upon the testimony of a 4 year old child. Let that sink in:

Police, prosecutors, a district court judge and a jury relied upon the testimony of a 4 year old child to support a conviction for one of the most serious crimes on the books. The crime carries a minimum sentence of 25 years without parole and a maximum of life in prison without parole.

Police and the forensic interviewers and prosecutors rely on and accept without question, the statements of children. It has been shown that children younger than 6, generally, cannot identify the source of their memories. They are much more vulnerable to undue influence and suggestibility. Developmentally, young children are not reliable witnesses.

Texas Code of Criminal Procedure and our rules of evidence largely enable testimony for the youngest child witnesses possible without adequate inquiry into the competency of a child to testify. The inquiry tends to be cursory therefore, we should create a statutory presumption that a child witness must be a minimum age, perhaps 6 years old or older to testify in court. Police, prosecutors and judges should be skeptical of relying on the testimony of children under six in the prosecution of criminal cases. We need guardrails to keep wrongful convictions from occurring.

Where is the investigation we need to identify the shortcomings in Greg Kelley’s case? The lessons learned are needed to guide police and prosecutors going forward to avoid future wrongful convictions.

You can view more of my comments at https://www.facebook.com/stevehesselaw

 

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