Federal Evidence Review

Presumption of witness competency under FRE 601 applied to 13-year old victim testifying about sexual assault; Oath requirement under FRE 603 was fulfilled by questions that the witness “understood she had promised to tell the truth” and that she appreciated “the difference between a truth and a lie” and “knew that she was to tell the truth in court” and would be “punished if she told a lie,” in United States v. Allen J., 127 F.3d 1292, 1295-96 & n.3 (10th Cir. 1997) (No. 96-2276), cert. denied, 532 U.S. 1013 (1998)

What standards apply to determine whether a witness is competent to testify and whether a witness understands the obligations under the oath? While there are not many cases discussing both of these requirements, a Tenth Circuit case reviewed the standards concerning the competency of a witness, under FRE 601, and the oath requirement, under FRE 603.

In a bench trial, defendant Allen J., who was under 21 years of age, was determined to be a juvenile delinquent under the Federal Juvenile Delinquency Act, for committing sex offenses within the Navajo Nation Indian Reservation in New Mexico after raping a twelve year old female. Before trial, the defendant challenged the competency of the minor victim suggesting “the possibility that [the victim] may suffer from Fetal Alcohol Syndrome or Fetal Alcohol Exposure” and “mild retardation and learning disabilities.” Allen J, 127 F.3d at 1294. The trial judge found no compelling reason had been presented for a competency examination even if she had a learning disability. After defense counsel suggested she had poor verbal skills, the judge asked the agent who interviewed her whether she had difficulty understanding him, and he responded she did not.

As the minor victim was called to testify, the trial court raised some initial questions to determine that she understood the importance of the oath. The trial court asked:

“‘Do you understand what it is to tell the truth?’ and ‘Do you know the difference between the truth and a lie?’ The victim did not respond to the judge’s questioning. The court then asked the prosecutor to try questioning the witness. The prosecutor began with simple questions (‘[W]hat is your last name?’, ‘How old are you?’, and ‘Where do you live?’), which the victim answered. After about thirty questions along these lines, almost all of which the victim was able to answer correctly, the prosecutor shifted to questions relating to the difference between the truth and lies. Among other questions, the prosecutor asked the victim if she understood she had promised to tell the truth in court, to which the victim responded affirmatively. After this series of questions, which established the victim knew the difference between a truth and a lie, knew she was to tell the truth in court, and knew she would be punished if she told a lie, the court directed the prosecutor to proceed to the heart of her case.”

After the minor’s testimony and presentation of other evidence, the defendant was determined to be a juvenile delinquent. On appeal, he raised one issue concerning “whether the trial court erred in finding the victim competent to testify.” Allen J., 127 F.3d at 1293.

The Tenth Circuit affirmed the witness testimony, noting witness competency was governed by FRE 601 which provides a presumption “[e]very person is competent to be a witness.” FRE 601. Issues concerning mental capacity were left for the trier of fact to determine the weight and credibility of the evidence. Augmenting the “general presumption of competency found in Rule 601,” the circuit noted a separate “specific statutory presumption [that] children are competent to testify,” under 18 U.S.C. § 3509(c)(2). Allen J., 127 F.3d at 1294 (footnote omitted). To overcome the presumption attending to child testimony, the opposing party holds “the burden of providing a compelling reason for questioning the child’s competence.” Allen J., 127 F.3d at 1295 (citing 18 U.S.C. § 3509(c)(2), (4)). The defendant failed to present a “compelling reason” to overcome the presumption.

The circuit viewed the challenge to the minor victim’s testimony essentially as an attack on credibility, which was a matter for the finder of fact. The circuit also noted that “[o]ver one hundred years ago, the Supreme Court held it was proper for a five-year-old to give critical testimony in a capital case. Since that time, the trend in the law has been to grant trial courts even greater leeway in deciding if a witness is competent to testify.” Allen J., 127 F.3d at 1296 (citing Wheeler v. United States, 159 U.S. 523, 524, 526 (1895) (in capital murder trial, five-year old son of deceased was competent to testify; noting competency “depends on the capacity and intelligence of the child, [the child’s] appreciation of the difference between truth and falsehood, as well as of [the child’s] duty to tell the former”; warning trial courts in making witness competency assessments to avoid “staying the hand of justice”); other citations omitted).

The circuit further noted that the initial questions of the minor victim by the trial judge did not constitute a competency examination but instead comported with the oath requirement under FRE 603. The rule provides:

“Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’s mind with the duty to do so.”

As the circuit explained: “In addition to confirming for the court the victim understood the oath, the initial questioning of the victim also served “to awaken the witness’ conscience and impress the witness’ mind with the duty to [testify truthfully],” as required by Rule 603.” The trial court “did not err and fully complied with the requirements of Rule 603.” Allen J., 127 F.3d at 1295-96 n.3.

As the Allen J. opinion underscores, under FRE 601, the courts apply a presumption of competence that the opponent of the testimony must overcome. Under the oath requirement of FRE 603, the court ensures that the witness is aware of the obligation to tell the truth. The questions posed to the minor witness fulfilled this standard.