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Andrew Bergh
Andrew Bergh

September 2, 1999

Court case turns on a Barney doll

By ANDREW BERGH
Special to the Journal

O.J. Simpson testifying with a stuffed teddy bear in his hands?

A ludicrous image to say the least.

Child witnesses, however, are a different story. According to professional studies, children find comfort in dolls or stuffed animals and should be allowed to hold them while testifying.

But as State v. Aponte reveals, even toy animals have their drawbacks. In that case, a prosecutor innocently gave a Barney doll to a very young witness so she would feel more comfortable in the courtroom. The problem was, the judge wouldn't let the defense attorney ask the little girl any questions about the circumstances of the gift.

Which proved to be a big mistake. Because before one could mouth the words "purple dinosaur," the defendant was claiming her conviction should be reversed because her Sixth Amendment right to confront witnesses had been violated.

The Aponte case involves a child abuse prosecution in Bridgeport, Conn.

Our account begins on April 7, 1990, which is when Nissa Aponte gave birth to a healthy baby girl. (For privacy reasons, court records don't mention the infant's name.) But parenting apparently didn't suit Aponte, who asked a friend to raise her daughter when she was only 18 months old.

After a change of heart and a skirmish in court, Aponte regained custody of her daughter in February 1994. The toddler, only two months shy of her fourth birthday, was still in good health.

But not for long.

On March 30, 1994, Aponte drove to her mother's house to drop off her daughter. The child's eyes were black and swollen. When the mother asked why, Aponte explained that her daughter had struck the inside of the car.

While bathing the little girl, however, Aponte's mother saw numerous marks on her body. She secreted her granddaughter to the home of a neighbor, who in turn contacted the Bridgeport police.

The child was soon whisked away to a nearby hospital, where she stayed several days. Lab tests showed internal bleeding consistent with an injury to the pancreas. The overall diagnosis was "battered child syndrome."

Aponte eventually faced four felony charges, implicated by statements that her daughter gave to the police and hospital staff.

Just five years old when the case went to trial, Aponte's daughter had the dubious distinction of being the youngest victim to testify in a Connecticut courtroom.

Hoping to make his key witness more comfortable while testifying, the prosecutor bought her a Barney doll shortly before trial. At about that same time, the victim viewed photographs of her injuries, confirming that mom was the culprit.

While testifying at trial, the victim clutched the Barney doll as she was questioned by the prosecutor. When shown the same photographs of her injuries, she again pointed the finger at her mother.

So far, so good, the prosecutor probably thought. During cross-examination, however, the defense attorney learned for the very first time that Barney had been bought by the taxpayers.

That discovery lead to a semi-ugly exchange outside the presence of the jury.

Screaming foul, Aponte's attorney argued that giving the victim a stuffed toy was tantamount to bribery. Since the victim thought the prosecutor was the "greatest thing since cream cheese," the attorney said, it was only fair that he be allowed to cross-examine the child regarding the timing and circumstances of the gift to show a possible bias on her part.

These allegations were "frivolous," countered the prosecutor, who asked the judge to tell the defense attorney to "keep his mouth shut." He accused Aponte's lawyer of trying to cause a mistrial, as there was "absolutely nothing" to show the victim's testimony had been influenced by the gift.

The prosecutor prevailed in the short run, as the judge ruled that he engaged in no misconduct and was simply trying to make the victim feel more comfortable. Moreover, the court wouldn't let Aponte's attorney interrogate the girl about the Barney doll in an effort to expose her suggestibility.

Although Aponte was found guilty, you probably already know what happened.

Awarding the mother a new trial, the Connecticut Supreme Court noted that psychological research has shown preschool age children to be much more suggestible than older children and adults.

The complimentary Barney doll was therefore improper, the court ruled, even if the prosecutor had good intentions. The trial judge only exacerbated this problem, the court added, by not allowing Aponte's attorney to explore the gift's impact during his cross-examination of the victim.

The bottom line is that you can score this case as follows: U.S. Constitution - 1, Barney - 0.


Seattle lawyer Andrew Bergh, a former prosecutor and insurance defense attorney, now limits his practice to plaintiff's personal injury cases. He fields questions via email at andy@berghlaw.com.


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