One of the first issues that arises with the testimony of a child witness is competency. Clearly, children incapable of verbal expression are not competent witnesses. Beyond that however, the defense may have a tough time convincing a judge that the child witness is not competent to testify. However, this doesn’t mean the issue should not be challenged.
The specific rule of evidence on competency is found at N.J.R.E. 601. However, it is the case law that really damages the defendant’s rights here. For example, in State v. G.C., 188 N.J. 118 (2006), the New Jersey Supreme Court held that the trial court properly determined that the child victim was competent to testify. After asking a series of questions, the child told the judge that it was good to tell the truth and that she was not going to tell a lie. Despite the fact that this doesn’t indicate anything about the child’s understanding of what a lie is, the New Jersey Supreme Court found that this was enough.
Of course, a defense attorney should insist upon more. A common test is asking the child victim questions about what is going on right now. If a judge picks up a pen and says, if I say that I am not holding a pen, is that the truth or a lie. Almost every child will say its a lie. However, this is a rudimentary understanding of truth and lies based upon direct perception. Instead, the defense attorney should submit questions that focus more on the defense them of the case such as “if your Mommy told you that (fill in the blank) happened and it really didn’t, would you say it was the truth?”. The child can also be asked to come up with some examples of a lie, especially ones that the child may have told before.
I don’t expect most judges to rule that a child is not competent to testify on the eve of trial but that doesn’t mean you shouldn’t make a record. However, if there is something in the child’s school records or medical records to indicate that there may be serious competency issues, then this motion should be made way in advance of trial. This may make it easier for the judge or the State to resolve the case in some other fashion such a plea or dismissal.