Reviewing Age, Oath And Capacity Requirements For Juvenile Witnesses

While FRE 601 provides that "[e]very person is competent to be a witness," are there any limitations concerning the competency of children to testify? A recent case shows that while FRE 601 provides little direction guiding the reception of a child as a witness, substantial guidance is provided by statute, in United States v. IMM, _ F.3d _ (9th Cir. March 31, 2014) (No. 11–10317)

FRE 601 provides a short, broad presumption that every individual is "competent" by serve as a witness. Under the FRE, only two classes of persons are specifically excluded from serving as witnesses -- the judge presiding in a case under FRE 605 and a juror sitting on a case under FRE 606. This does not mean that other standards do not exist for "admitting or excluding evidence" under FRE 1101(e). One area in which additional requirements are imposed involves the requirements specified by federal statute.- This statute was used in a Ninth Circuit case involving testimony by a child witness.

Trial Court Proceedings

The case involved defendant IMM who was a juvenile and was tried for sexual abuse of a minor. After questioning by the court, it admitted testimony by a child witness as to what he saw at the time of the alleged crime, even though the witness was the 7-years old brother of the defendant who was not over 12 years old at the time of the alleged crime. In questioning the prospective witness, the judge learned that the witness did not seem to understand precisely what his oath as a witness meant. The child explained tha he did not recall what had happened on the day of the alleged crime and that he had been told what to say at trial by his mother. Despite these admissions by the child, which might create some concern with the soundness of his testimony, the trial judge admitted his testimony. The judge reasoned that it was also clear from the child's response to the court's questioning that he could understand the difference between truth and falsity, as well as the special importance of speaking truthfully while testifying, because these factors went to the weight of his testimony rather than his competence to testify. Upon the defendant's conviction, raising as one issue the competence of the under-age witness.

Ninth Circuit Review

The Ninth Circuit affirmed the admission of the child witness's testimony. The circuit noted that:

[T]he district court concluded that the seven year old child was competent after a careful examination in open court, with questioning by the prosecutor, defense counsel, and the court. The hearing tested the child's ability to understand and answer simple questions, his understanding of the difference between truth and falsity, and his comprehension of the importance of telling the truth. The district judge, after observing the child and reviewing his answers, determined that he was competent to testify. That determination merits deference. As we have recognized, “[t]he competency of a child as a witness is a matter within the discretion of the trial judge and his decision will not be disturbed unless clearly erroneous.”
IMM, _ F.3d at _ (citing Pocatello v. United States, 394 F.2d 115, 117 (9th Cir. 1968) (noting child's appreciation of “the difference between truth and falsehood” and “the capacity for observation, recollection and communication” are vital to competency determinations for juveniles)).

In affirming the trial court's assessment of the witness as competent, the circuit noted several issues pertinent to the testimony by a juvenile. These included:

  • Statutory Guidance: The circuit noted that the trial court was properly guided by 18 U.S.C. § 3509(c)(2) (“a child is presumed to be competent”), as well as 18 U.S.C. § 3509(c)(8) (when a court examined the competence of a minor to testify, it may assess only “the child's ability to understand and answer simple questions.”)
  • Voir Dire Necessary: In deciding on competency of child witness, there should be a "careful examination in open court, with questioning by the prosecutor, defense counsel, and the court," testing "the child's ability to understand and answer simple questions, his understanding of the difference between truth and falsity, and his comprehension of the importance of telling the truth." (citing Pocatello v. United States, 394 F.2d 115, 117 (9th Cir. 1968) (“the difference between truth and falsehood” and “the capacity for observation, recollection and communication” are vital to competency determinations for juveniles))
  • Oath By Child: The circuit noted that a requirement that the child witness "understand exactly what an oath requires" was "too rigid" a requirement for satisfying the FRE Oath requirement, as even the ACN to the rule indicates the rule was "designed to afford the flexibility required in dealing with ... children” and in any event a simple affirmation is all that is required and the ACN noted that “[a]ffirmation is simply a solemn undertaking to tell the truth; no special verbal formula is required” and here in the court's questioning the child had affirmed his duty to tell the truth
  • Possible FRE 403 Problems The circuit noted the possibility that a child witness could create problems in the admission of a child's testimony, but as the defendant did not raise this issue, the circuit would not consider whether admission of the witness's testimony violated FRE 403 (as unduly prejudicial weighed against its low probative value) or FRE 602 (which required witness have personal knowledge, and it might have been argued that the witness lacked this since he admitted he was saying what his mother told him to say)
  • Sixth Amendment (Confrontation Clause) Problems The circuit noted that the defendant raised the question whether the child's "inability to understand his oath" would violate the defendant's right to confrontation of adverse witnesses. The circuit seemed to dismiss the fear explaining that the “[i]ncapacity to understand the duty to testify truthfully does not automatically offend the Confrontation Clause when the witness in question is a young child. At least where, as here, there is reason to believe that the incriminating testimony will be truthful, a young child may constitutionally be a witness.” (quoting Walters v. McCormick, 122 F.3d 1172, 1175–76 (9th Cir. 1997) (“No federal court has held that the Constitution places limits on allowing even the youngest child to testify at trial.”))

Assessment

As noted by the circuit, statute seemed to present a procedure that should be used to implement with regard to child witnesses. The statute governing the selection procedure appears below:

18 U.S.C. § 3509 (Child victims' and child witnesses' rights)

(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.
(5) Persons permitted to be present.--The only persons who may be permitted to be present at a competency examination are--
(A) the judge;
(B) the attorney for the Government;
(C) the attorney for the defendant;
(D) a court reporter; and
(E) persons whose presence, in the opinion of the court, is necessary to the welfare and well-being of the child, including the child's attorney, guardian ad litem, or adult attendant.
(6) Not before jury.--A competency examination regarding a child witness shall be conducted out of the sight and hearing of a jury.
(7) Direct examination of child.--Examination of a child related to competency shall normally be conducted by the court on the basis of questions submitted by the attorney for the Government and the attorney for the defendant including a party acting as an attorney pro se. The court may permit an attorney but not a party acting as an attorney pro se to examine a child directly on competency if the court is satisfied that the child will not suffer emotional trauma as a result of the examination.
(8) Appropriate questions.--The questions asked at the competency examination of a child shall be appropriate to the age and developmental level of the child, shall not be related to the issues at trial, and shall focus on determining the child's ability to understand and answer simple questions.
(9) Psychological and psychiatric examinations.--Psychological and psychiatric examinations to assess the competency of a child witness shall not be ordered without a showing of compelling need.


Conclusion

United States v. IMM affirms the central role statute plays in the process of assessing the admissibility of testimony by children. By implication the case directs attention to statute law, rather than to FRE 601, in finding guidance for the admission or exclusion of a witness who is a minor.

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