David Hejmanowski - Contributing Columnist

“Truth is the same in all persuasions.”

— George Jeffreys

Titus Oates’ Case (1685)


— Dr. Laurence Peter

Too many cases start with a similar set of facts. A man uses his relationship with the parents of a young girl as well as the girl’s trusting nature to take advantage of her. Finally, under the weight of her horrible circumstances, the girl reveals the abuse to a school friend, a classmate, a playmate or a babysitter. That person reports the information to a trusted adult and an investigation begins.

The young girl is now released from the terrors of her abuser and is asked to tell her story. In conversations with medical professionals and law enforcement officers, she remembers additional facts and discounts the importance of others as she retells her story again and again. Each time, the adults around her make notes of their conversations and thank her for her honesty in talking with them. Eventually, she tells her story again, this time in front of a group of fourteen adults that she has never met- the Grand Jury.

Her abuser is indicted, charged with multiple counts of rape. He enters a plea of not guilty and the matter, after a series of preliminary hearings, is set for trial. Still, one major questioned remains: will the jury deciding his fate, his guilt or innocence, ever get to hear from the little girl? Will she be permitted to testify at all during his trial?

These facts don’t reflect any single case, but a compilation of circumstances far too similar and occurring far too often. The answer to the question about the little girl’s testimony is a resounding: maybe.

In order for a person to be permitted to testify, the court must be satisfied that the person understands the difference between right and wrong, between the truth and a lie. In most jurisdictions in the U.S. a person 10 years of age or older is presumed to be old enough to meet this standard. But potential witnesses who are under the age of ten must first submit to examination by the court.

In such an examination, the court will generally ask the child specific questions about their school, teachers, home life, etc. to determine first whether the child can relay general information about themselves and what they observe. The court will then usually ask several questions about whether the child can differentiate between what is true and what is not. Questions about whether it is right or acceptable to lie, whether there is punishment for lying and whether the child will agree or promise to tell the truth are also common.

Even if the court finds that the child may not testify, the child’s statements may still make their way to the ears of the jury. Several rules of evidence allow out of court statements to be admissible including those made when the person is seeking medical assistance or when the person is making an observation about something they’ve just seen.

Questions about whether a person under the age of 10 can testify occur not only in criminal trials, but also in juvenile delinquency trials and in trials of child abuse and neglect cases that occur in the Juvenile Court. The same analysis applies in those matters.

In each of these cases, prosecutors, family members and victim advocates also weigh the potential psychological impact of the child having to appear in court in front of their accuser and repeat their testimony yet again. Indeed, some cases are resolved out of court solely to avoid the need to have a child victim testify.

Courts carefully weigh these issues on a case-by-case basis, with each analysis intended to ensure a fair trial.

David Hejmanowski

Contributing Columnist

