Child Rights and Remedies

By Robert C. Fellmeth | Go to book overview

CHAPTER NINE
Child Rights
as Abuse Victims/
Witnesses

A. CHILD COMPETENCY TO TESTIFY

Competency to testify traditionally requires adequate intelligence to make the testimony of value, and an understanding of the duty to tell the truth. Both tests apply to the situation at trial, not when the events testified about occurred. An exception is sometimes drawn where a child is so young when the events occurred that he or she is incapable of their accurate recall. Witness competency is traditionally determined just before trial (through a motion in limine) or through voir dire at trial (out of the presence of the jury).

At common law, children below the age of 14 have been presumed incompetent to testify as witnesses in court while those who have reached 14 are presumed competent. In either case, the presumption may be rebutted with evidence to either allow or disallow testimony. Some states draw the line for presumption shift at 10 years of age. Evidence scholars have criticized the tendency of some courts to bar testimony of child witnesses, contending that it reflects a distrust of the primary jury role—to evaluate credibility of witnesses.1 The trend has been to more liberally allow testimony, deferring to the jury its proper weight, consistent with Rule 601 of the Federal Rules of Evidence, which presumes that every person is competent to testify.

Historically, objections about child testimony have centered around four issues: perception, memory, narration, and truthfulness. Studies during the 1970s and 1980s rebutted much of that concern, finding that children were not more prone than adults to give false testimony.” Language limitations and complexity may require questions to be simplified, and leading questions are commonly permitted.

The primary concern evolving in the 1990s is that children are “suggestible” as witnesses, that a parent or other authority figure can plant detailed facts or stories which children can come to believe and testify about with dangerous efficacy. Sociologically, the emotional trauma during divorce and the regrettably common use of children by one parent against the other has led to increasing accusations of child abuse or molestation. Not all of these accusations have merit, and children have been enlisted by one or both parents to buttress a case against the other. The result has been added suspicion concerning the credibility of child testimony.

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