Children as Witnesses: Competency and Rules Favoring Their Testimony
| Publication year | 1983 |
| Pages | 1982 |
1983, December, Pg. 1982. Children as Witnesses: Competency and Rules Favoring Their Testimony
Although a child witness is more often encountered in the area of juvenile law, this topic is thought to be of interest to family law practitioners as well.
The testimony of children is important to the legal system, both for the protection of their rights and to assist the courts in the search for truth. However, the rules of competency and evidence differ from those of the adult witness in certain significant respects, particularly due to action taken by the Colorado legislature in 1983. This article discusses what is required to establish the competency of child witnesses and some of the evidentiary rules which favor child witnesses.
The general rule regarding testimonial competency of children has remained essentially unchanged since the nineteenth century when the U.S. Supreme Court addressed the issue in Wheeler v. United States.(fn1) In restating the rule set down by a leading English case,(fn2) the court held that a child who was five years, six months old at the time of trial was not incompetent to testify to an event occurring seven months earlier. The court stated,
While no one would think of calling as a witness an infant only two or three years old, there is no precise age which determines the question of competency. This depends on the capacity and intelligence of the child, his appreciation of the difference between truth and falsehood, as well as of his duty to tell the former. The decision of this question rests primarily with the trial judge. . . .(fn3)
At common law, a child witness was presumed competent at the age of fourteen. Colorado's child witness statute lowers the age of this presumption. C.R.S. 1973, § 13-90-106(1)(b) states:
Who may not testify:(1) The following persons shall not be witnesses:
(b) Children under the age of ten years who appear incapable of receiving just impressions of the facts representing which they are examined and of relating them truly.
The first Colorado appellate case to construe this statute was City of Victor v. Smilanich,(fn4) in which the court held that a six- and one-half-year-old boy was not incompetent to testify about events occurring six months earlier. The court stated that Colorado's child witness statute implies that the competency of a child witness under the prescribed age is a question that the sound discretion of the trial court should determine.
The rule of Smilanich has been applied consistently.(fn5) It was clarified in People v. Marn,(fn6) where the court held that two children, ages nine and ten, who knew the difference between right and wrong and who could recall and relate past events and understood their duties to tell the truth, need not understand an oath before testifying.
It is apparent from examining the opinions that the court is really concerned with the witness' moral obligations to tell the truth. If a witness displays these abilities, he will be held competent to testify regardless of the fact that he may not give an adequate technical, legal definition of the term "oath." It is relevant that the [child witness] statute itself does not refer to a specific understanding thereof.(fn7)
Thus, for a young child's testimony to be considered as evidence, the trial court must evaluate the child and determine if he is incompetent. This determination should be made after an in camera examination of the child by the trial judge and, for the convenience of all parties, should occur prior to trial.
House Bill 1019, passed by the 1983 Colorado General Assembly, modifies § 13-90-106...
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