The Child Witness

Publication year1993
22 Colo.Law. 1201
Colorado Lawyer

1993, June, Pg. 1201. The Child Witness


Vol. 22, No. 6, Pg. 1201

The Child Witness

by Francis W. Jamison

Colorado Rules of Evidence ("CRE") 601 states that "every person is competent to be a witness except as otherwise provided in these rules, or in any statute of the State of Colorado." The common law rule is that a judge may bar a witness from giving testimony if the offered witness is shown to be unable to (1) receive, (2) remember and (3) relate information truthfully. Is CRE 601 a departure from the common law rule? The answer is no. All courts still claim to apply the three common law requirements. What is apparent from CRE 601 is that the judicial bias is clearly in favor of allowing persons to be witnesses if they meet minimum standards. This is especially true of children.

This article discusses the child witness---qualifying the witness, conduct of the trial, experts and exhibits, hearsay and exceptions, and confrontation. Finally, the article considers special problems that arise when dealing with the child witness.


Any lawyer who hopes to introduce or bar a child from being a witness must be well aware of the very special and "stretched" specific rules governing the child witness. Although the common law rule and some rudiments of the oath persist, they are significantly overshadowed by the strong tendency to allow testimony of children.

Mental Capacity (Competency)

Generally, children will be found competent to testify if they have sufficient mental capacity to (1) observe, (2) recollect, (3) communicate and (4) have some sense of moral responsibility to tell the truth. Where neither counsel questions the child witness' ability to observe and relate facts accurately, the trial court may find the witness competent on a minimum record. For example, in one case, a seven-year-old witness was found competent after communicating to the court a knowledge of the child's

grade in school, the defendant's first name, that the day was 'Bronco' day, and that various people were dressed accordingly, the difference between the truth and a lie, and the consequences for telling one or the other.(fn1)

Because each of the four prongs of the test are joint and not several, all four must be satisfied.(fn2) Some courts include an additional "reasonableness" factor to the test when the child in question is of an extremely young age.(fn3) Understanding an oath or other abstract concept will not control an examination for competency. The four-prong test should be used instead.

The fourth prong, which requires "some sense of moral responsibility to tell the truth," deserves close scrutiny. The Colorado Supreme Court no longer imposes the "long-standing requirement of the common law that a witness affirm in some manner the duty to speak truthfully before testifying as a witness," when the witness in question is a child witness.(fn4) Instead, where CRS § 13-90-106(1)(b)(II) governs,

[the] sole requirement imposed on the prospective child witness is that he or she be "able to describe or relate in language appropriate for a child of that age the events or facts respecting which the child is examined."(fn5)

An alternative construction of the statute was offered in the form of a dissent in the above case. The dissent attempted to harmonize the statute with CRE 603 through authorization of the

receipt of the sworn testimony of a child witness . . . as long as the child is capable of understanding the obligation to tell the truth and is "able to describe or relate in language appropriate for a child of that age the events or facts respecting which the child is examined."(fn6)

The result of the dissent would be to place the determination of children's competency by reason of their understanding of the obligation to tell the truth back within the sound discretion of the trial court.

[Please see hardcopy for image]

Francis W. Jamison, Denver, is Professor of Law at the University of Denver College of Law.

A finding of incompetence by the trial court must be supported by the specific


reasons which led to the finding.(fn7) This requirement attempts to ensure that, on appeal, a proper determination of the reliability of a child's hearsay statement may be made from the record. For example, if a child's incompetency rested on an inability, at the time of the alleged act, to receive just impressions of fact, the statements may be inherently unreliable for any purpose However, if the incompetence was predicated only on the child's inhibition in a courtroom environment, the out-of-court statements may still be inherently trustworthy.(fn8)

Discretion of Trial Judges

It remains commonly held that trial court judges have wide discretion to determine the competency of a child witness and that their decisions will not be overturned on appeal, absent a strong showing of abuse of this discretion.(fn9) Proper exercise of this discretion includes competency examinations of a child witness which are limited in nature. Trial court judges do not need to be as exhaustive in their questioning as the situation may allow. A particular examination may end when the child witness' testimony discloses an understanding that, on the whole, the child had the ability to receive just impression of fact and that these facts were related truthfully.(fn10)

At the trial court level, application of the four-prong test will be used to examine children of tender years. If the children fail to meet any of the separate elements of this test, they should be found incompetent. Again, discretion rests with the judges.

The judges also have the responsibility of control over the mode of interrogation of "infant" witnesses. Discovery of the truth should be accomplished without any undue embarrassment or mental damage to the children. Trial judges retain great discretion over this area and will not be overruled, absent a showing of abuse of this discretion.(fn11)

Procedure of Hearing to Determine Competency

The court in a competency hearing may exclude the defendant from the voir dire hearing, provided that the defense retains the right to cross-examine the witness and the basic components of the Sixth Amendment right to confrontation remain.(fn12) Where these basic components of the confrontation clause are preserved, the...

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