The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.
Interviewing children has evolved over the last 20 years as research has offered a better understanding of children’s abilities. Applying current knowledge to the court process means rethinking the way we assess children’s competency.
Traditionally, there are two types of competency. Basic competency concerns the child’s ability to perceive, remember, and communicate. Rule 601 of the Federal Rules of Evidence states that “[e]very person is competent to be a witness unless these rules provide otherwise,” and 42 states have adopted evidence rules very similar to the Federal Rules (Mueller & Kirkpatrick, 2009). As a result, most courts will not require any preliminary inquiry into basic competency, and this is sensible, because a truly incompetent child will falter under direct examination. Hence, the best means to assess a child’s basic competency is to receive her testimony for what it is worth.
If a court does require an inquiry into basic competency, this provides an opportunity to engage in narrative practice during rapport building with the child. The child can demonstrate her competency by answering open-ended questions about a neutral event from the beginning through the middle to the end.
The second type of competency is truth-lie competency. Rule 603 of the Federal Rules of Evidence requires that “[b]efore testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.” Rule 603 does not explicitly require an inquiry into a child’s understanding of the truth and his or her duty to testify truthfully, but it has been used to justify such an inquiry, and 15 states have explicit requirements in their rules of evidence that children must be capable of testifying truthfully. The assumption is that children must understand the affirmation to tell the truth in order for it to have an effect on their honesty.
If a court will allow it, the best approach to truth-lie competency is to ask the child to promise to tell the truth without requiring the child to demonstrate her understanding. A child-friendly version of the oath is “do you promise that you will tell the truth?” The use of the words “promise” and “will” ensure that even the youngest children, who may not understand promise, will understand what the questioner is asking for. Research has shown that children are most honest if they promise to tell the truth.
*Adapted from Appendix D, Handbook on Questioning Children: A Linguistic Perspective, by Anne Graffam Walker, Ph.D., 3rd Edition, May 2013. © ABA Center on Children and the Law., 2013 See original for sources. Available at www.ShopABA.org, $30, PC 34900008, ISBN: 978-1-62722-203-7