Testimony from Children

The Minnesota Court of Appeals recently issued an interesting opinion, looking at what formalities are required to accept children as witnesses. In the Matter of Welfare of J.J.W., No. A09-639 (Minn. App. Feb. 9, 2010) involved a four-year-old child's testimony about sexual abuse by a 16-year-old relative.

The judge swore the child in based on the following exchange: "[T.B.], you have just the cutest smile, [T.B.]. You going to tell us the truth today. Yes? All right. The record should reflect that she shook her head yes."

The defendant quite naturally challenged that oath as insufficient.  The appellate court affirmed, noting that earlier, the judge had asked numerous questions to establish the child's competence as a witness:

She told the judge her name and age, who did her hair, corrected the judge when he misstated her date of birth, told the judge that she went to a preschool which was not close to her home, that she watched Barack Obama on television, what toys she received for Christmas, and that it snowed the previous day. She also identified the gender of the judge and mother, and corrected the judge when he asked if it would be a lie to say mother was a boy. However, she could not recount what she had eaten for breakfast, whether she watched television, identify her favorite beverage, recall whether she celebrated Christmas, or name the president.

The judge found that she was "able to recall facts . . . to distinguish between what is true and what is not true within her age and limited capacity," and therefore was competent.  The appellate court found no reason to reverse that decision.

Although the opinion is unpublished, and therefore not binding, it offers an interesting illustration of how to lay the groundwork for a deposition of a child.

Hat tip: EvidenceProfBlog