Children as Witnesses

• Publication year: 2002
• Pages: 15

31 Colo.Law. 15 Colorado Lawyer 2002.

2002, October, Pg. 15. Children as Witnesses

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15

Vol. 31, No. 10, Pg. 15

The Colorado Lawyer

October 2002
Vol. 31, No. 10 [Page 15]

Children and the Law

Children as Witnesses
by Shiela A. Rappaport

Sheila A. Rappaport is a Denver District Court Judge Criminal Division - (720) 865-9061

She approached the witness stand gingerly and, once seated her feet dangled several inches above the floor. An expectant stillness engulfed the courtroom as the 7-year-old began the arduous task of responding to the lawyer's questions. This child's presence in the courtroom and her role as a witness were the culmination of a long and complex analysis that began with the simple question: Should this child be called as a witness in this case? No lawyer or advocate makes this decision lightly.

This article discusses the numerous factors to consider, the necessary preparatory steps to be taken, and the evidentiary hurdles to be met before any child is called as a witness. As the number of cases increase in which children are presented as material witnesses, it is incumbent on practitioners to understand the considerations and requirements such a decision entails.

Determining Whether
The Child Will Testify

Certainly, the initial query is whether the child will be called as a witness. This question encompasses several considerations: availability, the child's age, maturity level and competency, and the efficacy and necessity of calling the child as a witness in the first place. Counsel should consider whether the case can be established without the child's testimony and, if so, whether tactical reasons still necessitate producing the child in court as a witness. Assuming that the child is the focus of the case, but will not be testifying, the child may be brought into court briefly so as to enable the jury or fact-finder to physically view the child.

Unavailability of a child witness may occur in two ways: physical unavailability and medical unavailability. Physical unavailability occurs when the child's presence for court cannot be achieved; medical unavailability refers to a child's inability to testify, predicated on competency or mental health concerns. A child may be found competent to testify, but may be prevented from doing so because of mental health concerns, such as the stress and trauma associated with recounting a difficult experience or personal retraumatization. Colorado cases indicate that a child of any age may be competent to testify if the legal standard is satisfied.1 In practice, however, it is unusual for a child over the age of 10 to be subjected to a one-trial competency hearing. Chronological age alone is not determinative of a child's ability to testify; varying degrees of cognitive and linguistic maturity are critical factors that must be addressed throughout the process.

Competency

A motion to determine competency of a child-witness should be filed by the proponent of the witness. However, in practice, this motion is usually filed by the opposing party. Even though the child may be under the age of ten years, the trial court is not obligated, sua sponte, to initiate a competency examination in the absence of a motion by one of the parties. Certainly, if the appropriate motion is filed, a competency hearing should be conducted in camera. An objection to the admission or exclusion of evidence predicated on competency of a witness must be made at the trial court level; otherwise, it will be deemed waived and not considered on review.2

CRS § 13-90-106 addresses the competency of a child-witness in general and, specifically, as it relates to civil or criminal proceedings involving child abuse, sexual abuse, sexual assault, or incest.3 Children under 10 years of age who appear incapable of receiving just impressions of facts about which they are examined, or of relating them truly, are deemed incompetent and may not testify.4 However, this proscription does not apply to a child under 10 years of age in any civil or criminal proceeding for child abuse, sexual abuse, sexual assault, or incest when the child is able to describe or relate in age-appropriate language the events or facts about which the child is being examined.5 This modified and inclusionary standard established in CRS § 13-90-106(1)(b)(II) applies not only to child victims, but also to other child witnesses if their testimony satisfies the statutory requirements.6

To establish the competency of a child-witness, the following must be established. The witness is: (1) capable of receiving just impressions of events, (2) has the ability to retain these...