BENTONVILLE -- A 10-year-old boy took the witness stand in a Benton County courtroom to describe the abuse he had endured at the hands of a man sitting in the same room.
The boy told the court Elmer Martinez-De Lao had raped him two years earlier. A jury later found Martinez-De Lao guilty of rape, for which he was sentenced to 40 years in prison following the July 2021 trial.
Sometimes the verdict in a criminal trial hinges on the testimony of a child, who is asked to explain to a room full of strangers and even family members the details of the worst moments of his or her life.
The scene plays out in courtrooms in Northwest Arkansas and nationwide.
Children were first allowed to provide courtroom testimony with the 1895 U.S. Supreme Court decision allowing a 5-year-old to serve as a witness, according to the American Academy of Pediatrics. It's now estimated more than 100,000 children appear in courts each year, according to the academy.
Benton County Circuit Judge Robin Green said for child witnesses, an issue does arise regarding their ability to be sworn to tell the truth when testifying.
"In that instance, we have to first ascertain that the child knows the difference between the truth and a lie, and second, that they will promise only to tell the truth," she said.
Prosecutors
The boy in the Martinez-De Lao case explained on the stand a lie is if he claimed to have eaten something and did not.
Tim McDonald, who handles sexual abuse cases for the Benton County Prosecuting Attorney's Office, was the one questioning the boy.
The 10-year-old was able to explain being inappropriately touched and sexually abused by Martinez-De Lao.
"It's never a good situation when you have to make a child relive a horrific situation," McDonald said.
McDonald said prosecutors want to meet with children in a safe environment.
"We try not to make them go through the details of the abuse, but at the same time we want to make sure they are prepared," he said. "As much as you talk to a child, you have no idea what they are going to say until they testify."
Matthew Durrett, Washington County's prosecuting attorney, said the youngest person he had called to testify was 8 or 9 years old. He said other people in his office have had witnesses who were 9 years old at the time.
"No parent wants to put their child on the stand having to be cross-examined by a defense attorney and being in the same room with the offender," McDonald said. "But without children testifying, we can't hold the offenders accountable."
Some states allow children to testify by video or previous statements to be used as evidence, but Arkansas is not one of those states, McDonald said.
Prosecutors also show children the courtroom ahead of time to show them where everyone will be sitting.
"The courtroom is an intimidating place for anyone, much less a child who is being asked to talk about the worst thing that has happened to them, so we don't want the first time they see it to be when they are brought to the witness stand during a trial," McDonald said.
"We explain to them where everyone will be sitting, the role of the judge and jury, and let them know who all will be present. For most kids, their biggest fear is having to be in the same room as the person that has hurt them."
McDonald said children are told there will be a bailiff present to make sure everyone follows the rules.
"If they want to, we let them sit in the witness stand and explain what it means when someone objects and we reiterate that the most important thing is to tell the truth," McDonald said.
Durrett said prosecutors often face situations where a defendant believes a witness won't testify.
"Sometimes it's due to inability to testify; other times it's due to a witness' unwillingness to testify," Durrett said. "In either situation, you have to make an evaluation of the case both with and without the witness' testimony. If there's sufficient evidence without the witness, we go ahead without him or her. If there isn't, we would most likely not be able to move forward with the case."
Defense attorneys
Ben Catterlin, who represented Martinez-De Lao, said questioning or cross-examining a child is extremely difficult.
"Depending on the subject matter, you have to walk a fine line between being aggressive and direct, but not intimidating or bullying," Catterlin said. "The last thing you want is the jury to think you're being mean or rude to a kid that's on the stand. It doesn't look good for you or your client and you lose credibility."
Catterlin said his demeanor is generally nice and soft-spoken, and he tries to use the subject matter against them when questioning children. He said children know bits and pieces of things, but when asked about more difficult parts of the subject, they usually end up saying something that doesn't make sense or contradicts what they are alleging.
"Adults are 'no holds barred' if you will," Catterlin said about the difference between questioning children and adults. "I always start respectful and to the point, but if they get mad or frustrated you can keep on going because the jury is seeing what kind of person this is, and it's affecting their credibility as a victim, especially when they contradict their previous testimony through cross-examination."
Bentonville attorney Shane Wilkinson has been on both sides questioning children. The defense attorney was once a deputy prosecutor assigned to handle child abuse cases.
Wilkinson said he had several 7-year-olds testify and one as young as 4 when he was a prosecutor. Wilkinson said there was a case when another 4-year-old was declared incompetent to testify, but he was able to use other evidence at trial.
"As a prosecutor, you truly need to make sure they are comfortable in the courtroom, understand to tell the truth and make sure their testimony isn't tainted by others -- family members or friends," Wilkinson said. "As a defense attorney, I am looking for the same things as I did as a prosecutor. Do the timelines make sense, are the allegations consistent and what holes are there in the story?"
Children are witnesses not just in criminal cases. They also may be called in domestic relations cases.
Bentonville attorney Victoria Morris said she's called children as witnesses in such cases. She said they normally are at least 12 years old, but she's called a 10-year-old as a witness before.
Morris said she considers a child's age and maturity when deciding whether to call a child to testify.
She said judges will clear the courtroom when the child testifies and even the parents are not present. The parties must agree to clearing the courtroom before judges will do it, she said.
Morris said attorneys still have to qualify or show that the child knows the difference between right and wrong or the truth and a lie.
Torres case
Not all children who testify are the victims. Some may be key witnesses for prosecutors.
Mauricio Torres of Bella Vista was tried three times for killing his 6-year-old son. Torres' biological daughter testified at each of the trials.
She was 9 years old when she took the stand at the first trial. She was 12 at the second trial and 15 when she testified in February during the third trial.
Benton County Prosecuting Attorney Nathan Smith said children face unique challenges when they testify in the presence of their abusers. Smith questioned the girl at each of the trials.
Prosecutors emphasize to children they are only responsible for telling the truth, not for the outcome of a case, Smith said.
"I have never been more impressed by any witness than I have been with this young lady," Smith said. "For her and her parents to agree to go through this ordeal three times demonstrated a tremendous amount of courage and a deep love for her brother. By her testimony, she spoke the truth that helped convict the guilty and honored her brother's memory. I know that God has wonderful plans for her life."
Courthouse dog
Man's best friend can also be a child's best friend in court.
During a Benton County trial in September 2021, an 8-year-old girl testified against her accused rapist. The jury found Donald Thatcher guilty of raping the girl. He was sentenced to 60 years in prison.
August, a courthouse facility dog, sat at the girl's feet during her testimony. The dog had been brought into the courtroom while jurors weren't present and remained out of jurors' sight while she was on the stand.
David Ethredge, prosecuting attorney for the 14th Judicial District, allowed Benton County prosecutors to use August, the district's facility dog, to support the girl at the trial. The 14th District comprises Baxter, Boone, Marion and Newton counties.
Benton County recently added its own facility dog -- Ari III.
"I am so excited that we get to be the home base for Arkansas' newest courthouse dog, Ari III, " Smith said. "I have seen firsthand that the presence of a calm, kind dog can give a child the courage to talk about some of the worst things imaginable, both in interviews and while testifying in court. While Ari is still new on the job, I know that he will be a faithful companion to children all over Arkansas who are victims."