Introduction to Child Witnesses in Criminal Cases
Most everyone knows what happens when a witness is called to testify in a criminal case: that witness must swear to “tell the truth, the whole truth, and nothing but the truth” before he or she is allowed to testify. In fact, this is only part of the story: Before a witness is permitted to testify, he or she must be capable of understanding this oath or obligation and agree to carry it out. For most adults, this is not a difficult hurdle to surmount. However, in child abuse and child sex crime cases, the prosecution’s “star witness” is often the underage child victim who may or may not be old enough to understand an oath or what it means to “promise to tell the truth.”
Child Witnesses Must Be Able to Understand the Nature of the Oath
When a child witness is called to testify in a criminal case (often by the prosecution), the prosecution is taking a major risk. Testifying about abuse or sexual contact can be difficult for adults, much less children. The trauma of testifying is further magnified by the fact that the child is being asked sensitive questions in front of adult strangers and may be testifying against a family member. However, before any of these concerns arise comes a more basic problem: Does the child understand what it means to be a witness?
Courts have inherent power to declare that certain individuals – including children – are not qualified to testify as witnesses in cases. To determine whether a particular child in a specific case should be disqualified because the child cannot understand the witness’s oath, a judge and/or the parties are permitted to ask questions of the child. For example, some judges will ask the child if the child understands the difference between the “truth” and a “lie.” The judge may also ask the child which the child should tell in court – a “lie” or the “truth.” Other judges may give the child an example of a truthful statement and a false statement and ask the child to indicate which statement is true and which is false. So long as the judge is ultimately satisfied that the child understands the difference between truth and falsehood and promises to tell the truth, the court can allow the child to testify. See the article on child witness examination by the Arizona Bar Association.
A Child Witness Who Is Not Able to Testify May Be “Unavailable”
Defendants in criminal cases alleged to have been committed against children should not rejoice prematurely just because the child victim in their case is found not able to testify. In many cases, a child who is not able to understand the difference between truth and falsehood (and, therefore, who cannot be a witness) is declared “unavailable.” If this occurs, the prosecution may be able to admit the statements the child made concerning the alleged criminal act without the child needing to be present to testify. This can be especially harmful to a criminal defendant because:
- The jury does not get to see the child’s demeanor while testifying;
- The defendant does not get to cross-examine the child about the veracity of the statement;
- The defendant is not able to ask the child any questions about the context of the statement.
Handling a child witness in a criminal case is a tricky matter. A judge may allow a child to testify as a witness so long as the judge is convinced the child knows the difference between truth and a lie and the child promises to tell the truth. While the experience of testifying can be traumatic to a child, having a child declared “unavailable” makes the defendant’s task of combatting the child’s statements much more difficult.