Chapter 4 - § 4.2 • CHILD WITNESSES


§ 4.2.1—Introduction

Colorado has established two different standards to determine the competency of child witnesses, depending on whether the court proceedings involve child abuse, sexual abuse, sexual assault, or incest. In any civil or criminal matter that does not implicate the above categories, children under 10 are prohibited from testifying if they "appear incapable of receiving just impressions of the facts respecting which they are examined or of relating them truly." C.R.S. § 13-90-106(1)(b)(I). For matters involving child abuse, sexual abuse, sexual assault, or incest, the child may testify so long as "the child 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." C.R.S. § 13-90-106(1)(b)(II). This competency standard will be applied to any such proceeding, even if the child is not the victim of the alleged abuse or assault. People v. Seacrist, 874 P.2d 438, 440 (Colo. App. 1993). In addition, a child may still testify even if he or she does not understand what it means to take an oath to tell the truth, or is unable to explain what it means to tell the truth. People v. Dist. Court, 791 P.2d 682, 685 (Colo. 1990). Trial courts have wide discretion to determine a child's competency to testify, and that determination will only be overturned for an abuse of discretion. People v. Trujillo, 923 P.2d 277, 280 (Colo. App. 1996) (citing People v. Aldrich, 849 P.2d 821 (Colo. App. 1992)). The fact that there may be inconsistencies in a child's answers usually reflects on credibility, not on competency. See Trujillo, 923 P.2d at 279-81 (upholding trial court's determination that a child was competent to testify, despite inconsistent statements).

However, the trial court's decision must be supported by specific findings as to the child's competency, otherwise reversal may result. See People v. Bowers, 801 P.2d 511, 519-20 (Colo. 1990) (agreeing with the court of appeals that the trial court erred in not specifying the reason that it found a child witness incompetent to testify). In the event that a child's in-court testimony is unreliable due to fear or anxiety caused by the courtroom environment, the child's prior out-of-court statements may be sufficiently trustworthy to be admitted under C.R.S. § 13-25-129. Id. at 519-25.

The opponent of the testimony should generally request a competency hearing and voir dire of a child witness in an effort to...

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