Evaluating Children's Competency to Testify: Developing a Rational Method to Assess a Young Child's Capacity to Offer Reliable Testimony in Cases Alleging Child Sex Abuse

Abstract

There are few crimes which elicit a response as emotionally charged as those involving an allegation of child sexual abuse. Given the paucity of physical and scientific evidence in many cases and the resulting need to rely almost exclusively on the testimony of a very young child, the cases present unique challenges for judges, prosecutors and criminal defense attorneys. While many scholars have addressed the dangers inherent in questioning children, such as creating false memories and improperly influencing testimony, there has been little exploration of the means employed by courts to evaluate a child’s ability to offer reliable testimony. Many courts make a threshold finding of competence to testify after only a cursory examination that does not adequately test the child’s true capacity to provide credible and factually accurate testimony. This article explores the nature of children’s testimony and the inadequacy of the traditional competency hearing in either testing the child’s ability to distinguish fantasy from reality or in judging his or her understanding of the consequences of testifying truthfully. The article provides suggestions for restructuring the competency hearing to make it a meaningful process by which the judge and jury can determine the young child's capacity to offer reliable testimony.