§ 18.05 CHILD COMPETENCY AND TESTIMONY

• Jurisdiction: United States

§ 18.05. CHILD COMPETENCY AND TESTIMONY

Child competency issues are raised in many cases,²³ including child abuse prosecutions.²⁴ Does the child have the mental capacity to accurately observe, recall, and relate, and the moral capacity to recognize the duty to testify truthfully? "With regard to children, intelligence, not age, is the guiding criteria in determining the competency of the witness."²⁵ In addition, there are significant problems due to a child's suggestibility.²⁶ One court noted an "emerging consensus in the case law relies upon scientific studies to conclude that suggestibility and improper interviewing techniques are serious issues with child witnesses, and that expert testimony on these subjects is admissible."²⁷

Some jurisdictions continue the older approach requiring a competency inquiry for children under 10 years of age.²⁸ Children under ten are often found competent, but generally a voir dire examination of the child by the trial court is required.²⁹More recent statutes, focusing on child sexual abuse cases, limit or abolish competency rules,³⁰ including the oath requirement.³¹ Rule 601 provides that every person is competent to be a witness, and a federal statute specifies that children are presumed competent to testify.³²

Procedure. It is not unusual for the trial judge to conduct a voir dire examination at a separate hearing or in chambers where defense counsel and the prosecutor have an opportunity to question the child.³³ No matter the procedure, the voir dire should be part of the record. Nevertheless, in many jurisdictions "there is no per se rule against conducting child competency proceedings in front of the jury, but by far the better practice is to excuse the jury."³⁴ Other states use hearings to determine competency when there is evidence that the child's memory has been "tainted" by parents or the police.³⁵

Psychological examination. Only in unusual circumstances will a child be subject to a psychological examination to determine competence.³⁶ Once the child is deemed competent to testify, the credibility of the child, like any other witness, is determined by the jury.

[A] Special Procedures

Some courts permit special methods when receiving child testimony — for example, one court permitted a child to testify while sitting on a relative's lap.³⁷ Rule 611(a) governs these situations. However, one court held that "[i]n the absence of extraordinary circumstances, . . . a trial judge should not make special accommodations sua sponte [mother sat behind five-year child complainant]. . . . [S]uch special accommodations should only be made if it has been determined, upon motion, that the requesting party has demonstrated a 'substantial need' for their implementation."³⁸

[B] Closed-circuit Testimony

The right of confrontation includes the right to face your accusers at trial. Nevertheless, there are exceptions.³⁹ In Maryland v. Craig,⁴⁰ the Supreme Court upheld a statutory procedure that allowed the use of a one-way closed circuit television for a child witness in a sexual abuse case, where the trial court first determined, after a hearing, that requiring the child to testify in the presence of the defendant would result in severe emotional distress. There must be a fact-specific inquiry; a court or statute cannot merely assume that young children will be traumatized by testifying in the presence of the accused.⁴¹ Fear of testifying in front of jury or in a large room is not sufficient.⁴² The accused can communicate with counsel by telephone; the federal statute requires "contemporaneous communication."⁴³

[C] Videotape Depositions

The federal statute also permits videotape depositions.⁴⁴ In United States v. Miguel,⁴⁵ the victim was allowed to give testimony via a videotaped deposition, while the defendant watched from another room by closed-circuit television. The judge, however, did not allow the defendant to communicate by telephone with counsel during the deposition, only during breaks. The Ninth Circuit reversed because the statute provided for "contemporaneous communication" with counsel "during the deposition."

A deposition is not automatically admissible at a subsequent trial. Another hearing with specific findings is again required. A deposition is a type of former testimony, a hearsay exception,⁴⁶ and its use in a criminal case raises confrontation issues.⁴⁷

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Notes:

^[23] See State v. Meadows, 581 S.E.2d 472, 475 (N.C. Ct. App. 2003) (witness was three years old when he saw his mother and Burgess being shot and five years at time of trial; no abuse of...