Affirmative Court Duty To Assess Witness Competence Absent From FRE 601

In a felon in possession of ammunition trial, when seven-year-old witness stopped answering prosecutor's questions about his father (the defendant’s) role in charged crime, the trial court had no duty to conduct a competency hearing to determine the child’s competence sua sponte because the jury was fully able to weigh the child's credibility, so that there was no plain error in admitting the child’s testimony, in United States v. Kelly, 436 F.3d 992 (8th Cir. Feb. 13, 2006) (No. )

Under the FRE there are a number of different rules that create an obligation in the trial court to screen evidence, acting as a "gate keeper." For instance, this duty is most dramatically seen in the protection of the entry of reliable expert testimony under FRE 702 and Daubert. Other rule do not impose as heavy a burden as that of gate keeper under FRE 702. One fine example is found in FRE 601 regarding a witness's competence to testify. A 2006 case in the Eighth Circuit explored the extent of the trial court's gatekeeping responsibilities under the witness competence rules governing the lay witness.

In the case, during defendant Kelly's trial as a felon in possession of ammunition, the prosecution called to testify the child of accuser Jones, Kelly's companion and the mother of the called child, who was also Kelly's son). The child had been a witness to the events that led to discovery of the defendant's possession of arms.

Apparently defendant Kelly argued with his companion Jones while her children, including one that was Kelly's son waited in his car which was parked outside. As his companion left the residence, “a man came out of the house and shot at her and the car five times, hitting the car in several places. She sped away. Kelly then telephoned Jones's mother, confessing to the shooting, but claiming he wanted only to scare Jones.” United States v. Kelly, 436 F.3d at 994.

Jones reported the incident with the defendant to the police and allowed them to tape-record a statement by her seven-year old son (who was Kelly's son as well) who said that Kelly did the shooting which was being charged. However, by the time of the defendant's trial it appears that the couple reconciled and so Jones recanted.

At trial, she now testified that it was an “unknown, masked assailant” who had shot at her and the children. Her seven-year-old son also refused to cooperate in giving evidence against the defendant, so the court admitted the taped interview police made of the child describing the incident, as a prior inconsistent statement under FRE 613(b).

The jury found Kelly guilty, as charged. On appeal the defendant claimed the trial court erred in admitting the seven-year-old’s statement and that “the court should have held a hearing, sua sponte, because the child's testimony indicated he was incompetent to testify” and the court had an obligation to inquire. United States v. Kelly, 436 F.3d at 996.

The circuit did not indulge in a long explanation of why it affirmed the trial court’s admission of the child’s testimony. The circuit noted that the defendant had failed to object at trial. Consequently, the issue was reviewed for plain error. Using that plain error standard, the circuit noted that “[c]hildren are presumed competent to testify.” United States v. Kelly, 436 F.3d at 996 (citing FRE 601) (emphasis added); United States v. Rouse, 111 F.3d 561, 567 n.3 (8th Cir. 1997) (“Children are presumed competent to testify, and the district court made specific findings that each child witness was competent.”)).

The circuit's analysis was not extensive: “the record shows the child only became uncooperative when questioned about [the defendant] his father's role. The jury is capable of weighing the credibility of the child's testimony, making a competency hearing unnecessary in this case.” United States v. Kelly, 436 F.3d at 996.

Notably, at least in crimes in which a child is a victim, federal law supplements FRE 601 and defines a child victims’ testimony as presumptively competent. See 18 U.S.C. § 3509(c). That section of the United States Code states:

(c) Competency examinations.--
(1) Effect on Federal Rules of Evidence.--Nothing in this subsection shall be construed to abrogate rule 601 of the Federal Rules of Evidence.
(2) Presumption.--A child is presumed to be competent.
(3) Requirement of written motion.--A competency examination regarding a child witness may be conducted by the court only upon written motion and offer of proof of incompetency by a party.
(4) Requirement of compelling reasons.--A competency examination regarding a child may be conducted only if the court determines, on the record, that compelling reasons exist. A child's age alone is not a compelling reason”

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Federal Rules of Evidence
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