NCJ Number
107916
Journal
Journal of Family Law Volume: 25 Issue: 2 Dated: (1986-87) Pages: 287-356
Date Published
1986
Length
70 pages
Annotation
Both psychological evidence and judicial decisions support the view that the vast majority of children should be permitted to testify.
Abstract
The increasing frequency with which children are appearing as witnesses has produced a large amount of litigation on their competence to testify. As a result, the law on this topic is changing rapidly. To testify, a child must have certain characteristics, including the capacity to observe, sufficient intelligence, adequate memory, the ability to communicate, an awareness of the difference between truth and falsehood, and an appreciation of the obligation to tell the truth. No minimum age exists for children's testimony. In making decisions about children, some States follow the approach of Rule 601 of the Federal Rules of Evidence, which states that every person is competent to be a witness. Other State laws provide that children are incompetent unless they understand the nature of an oath. Still other States hold that children below certain ages, usually 10, 12, or 14, are presumptively incompetent unless determined otherwise. A voir dire examination is usually held to determine whether a child is competent. The trial judge has substantial discretion regarding the conduct of this examination. The burden of proof rests on the party challenging the child's capacity to testify. Attorneys should carefully prepare children for the competency examination. 271 footnotes.