Murder Trial Raises Issue of Child Witnesses : Courts: Defense seeks to block prosecution’s plans to subpoena two children, ages 3 and 5, to testify in case against their mother, accused of murdering her husband and burying his body in the front yard.

Defense attorneys for the Solana Beach woman charged with murdering her husband and then burying his body in the couple’s front yard are trying to block the prosecutor’s plan to subpoena the couple’s two children, ages 3 and 5, to testify at their mother’s preliminary hearing.

In papers filed in Vista Municipal Court, the attorneys say the prosecution’s desire for Kimberly Delon’s two children to testify is “highly unusual and cruel” and could lead to “the very real result of permanent further traumatic injury” to the children.

But the district attorney’s office said it is not unusual for young children to testify in criminal proceedings because they are frequently overlooked by crime scene investigators as witnesses who might have seen or heard something that would help resolve a point of contention or otherwise be a clue.

“Law enforcement officers tend to forget that eye witnesses--or ear witnesses--to what happens in a house are the kids themselves,” said Catherine Stephenson, chief of the district attorney’s family protection division.

“Sometimes they’re overlooked as too young, or because we don’t want to interfere in their lives. But the fact of the matter is, their lives already have been dramatically altered.

“They may have information that can potentially bring both sides closer to the truth, and we need the opportunity to air what they may know or have seen or heard.”

Delon, 34, already has admitted to killing her husband, Bernard, 33--but said she stabbed him in the back Aug. 31 in self-defense after he attacked her, the latest in a series of physical, emotional and verbal attacks she said she endured from him.

She buried her husband’s body in a garden in the front yard and notified authorities of the killing the next day. Her attorneys said she tried to hide the body and delayed calling law enforcement out of panic and a desire to shield her children from the killing.

In an unusual move that Delon’s attorneys thought might lead to the dropping of charges against her, Delon allowed herself to be interviewed by Deputy Dist. Atty. Ann Barber at length about the killing and the events leading up to it. Her attorneys, Charles Goldberg and Ron Frant, thought that by allowing their client to be interviewed about the discussion of her self-defense motive, the case would be dropped altogether at a pretrial conference Oct. 25.

Instead, Barber said she would not drop the case, and she put Delon on notice that she wanted to subpoena the two children, a 3-year-old boy and a 5-year-old girl.

The children have not been interviewed by police or the prosecutor, so there is no way of knowing what they have to say or can contribute to their mother’s trial, the defense attorneys argued in court papers filed Wednesday.

The children are living with their mother, who as released on $75,000 bail.

They accused Barber of going on a “fishing expedition” at the expense of the children’s well-being, saying it would expose the children “to a traumatic experience which will only compound the trauma they continue to experience.”

The children “on a daily basis observe the trauma, which is evident in the eyes and demeanor of their mother, and additionally, attempt to grapple with the concept that they no longer have a father.”

The children are under a psychologist’s care, the attorneys said.

Stephenson, who frequently uses the testimony of children in court cases--typically involving child abuse or sexual molestation--said judges go to great lengths to protect the children from intimidation or other courtroom tensions that could affect their testimony.

“We accommodate their needs. We ask age-appropriate questions. Neither side is allowed to intimidate them, and we don’t confuse them. We treat children with care and consideration--and they can be amazing in their recollection of an event.”

She said children as young as 2 1/2 have testified in courts in San Diego County.

“All witnesses, regardless of age, are presumed competent to testify. If they’re not, that will come out in questioning,” she said. “But you can’t presume they don’t understand that it’s important to tell the truth.”

Stephenson said she was unable to discuss the specifics of the Delon case and what the couple’s two children might contribute to their mother’s preliminary hearing, scheduled for Nov. 25.

Ray Murphy, a child psychologist who frequently is called as an expert witness by both prosecutors and defense attorneys, said that, although the value of testimony by a 3-year-old might be questioned, a 5-year-old witness can prove quite credible.

“At that age, a child can differentiate truth from fantasy and portray events pretty accurately,” he said. “Research is pretty supportive of a child’s memory as being pretty valid and significantly related to a core event.”

The value of a child witness is based on his “intellectual and emotional level, his sophistication, maturity, and whether he’s been traumatized by the event. It’s an individual process. I’ve seen 5 year olds who don’t qualify as good witnesses, and 4 year olds who do.”

The defense attorneys said that, if the two children are allowed to testify, the judge would consider “a multitude of alternatives,” including having them videotaped in judge’s chambers “as opposed to injuring them further through the adversarial process in an open court attended by a media circus.”

A hearing to decide on the motion to quash the subpoenas is set for Nov. 21.