Voir Dire For Child Witnesses

Voir Dire (for Child Witness Competency to Testify)

S48 [575] "Criminal trials involving allegations of the sexual abuse of a young child are particularly susceptible to wrongful convictions due to sympathy for the small 'victim,' intense revulsion elicited by the nature of the charges, and the ineffectiveness of traditional methods of impeachment when used with the child witness. The conventional competency determination, made on the basis of a pre-trial hearing, makes little or no attempt to accurately ascertain the child's level of developmental maturity or ability to reliably relate a series of events. There is rarely a meaningful attempt to ascertain whether the child witness is able to distinguish reality from fantasy. Rather, the child is often allowed to testify based upon a brief [575] and essentially meaningless inquiry designed to test [his] ability to parrot the difference between 'the truth' and 'a lie.'"

[577] "The entire [competency hearing may take] less than fifteen minutes.

"The defense attorney is often relegated to the role of a proverbial 'potted plant' during the proceedings. [He] may be given the opportunity to inquire of the witness directly, or [he] may be required to submit any requested questions to the court for the judge to ask."

[In the Nickel case, the defense attorney was not allowed to do either of the above. Despite having promised that he would allow the defense to submit questions that would then be asked by the Court, Judge Paul Czajka then broke his word, declaring 'Arthur' to be competent to testify, with no questions having been allowed from the defense.]

[578] "[W]hat, if anything, can be done to combat a judge's pro forma attitude toward competency hearings when it is a foregone conclusion that the child will be adjudged competent to testify...?"

"[W]hat is clear is that the lives of many individuals, including the child, will be changed forever as a result of the determination made at the conclusion of the hearing. Given that reality, it is both startling and problematic that the typical competency hearing is comprised of a meaningless ceremony..."

[584] "The abbreviated 'red pen, black pen' competency hearing dispenses with the statutory requirements of various states to evaluate the child's mental capacity at the time of the occurrence in question. The salient questions are whether the child can observe and register what happened, whether [he] has memory sufficient to retain an independent recollection of the events, whether [he] has the ability to understand and respond to simple questions about the occurrence. Unfortunately, these critical skills are rarely explored during the competency hearings.

"The child must be able to cognitively organize an event that actually occurred and also be able to differentiate it from his or her own thoughts and fantasies. Significantly, the child must be able to maintain these skills under pressure from adult authority figures in the courtroom."

[Later on in Nickel's trial, well after the competency 'hearing,' 'Arthur' acknowledged that he sometimes had difficulty distinguishing fact from fantasy.]

[596] "[T]he psychological impact on a young child of falsely testifying to abuse can endure throughout adulthood. These dangers make the need to properly [597] determine a child's competency to testify vital not only to a fair system of justice, but to the psychological well-being of both children and the accused."

P5 [780] "Perfunctory, one-word or non-verbal responses to mostly leading questions do not demonstrate that a child witness understands that there is a special moral duty to tell the truth while under oath, even if the child can differentiate between the truth and a lie."

[781] "[T]he prosecutor asked, if you promise to tell the judge the truth, what do you have to do, to which the witness replied, 'Tell the truth.'

Q. What happens if you tell a lie to a judge?

A. You get in trouble.

Q. What?

A. Like you go to jail because you get into trouble.

"As these excerpts illustrate, it was only by repeatedly prodding the witness's responses and asking follow-up questions that the prosecutor sometimes obtained the answers she sought...'However, merely getting the correct answer does not establish that the child understood that he had a moral duty to tell the truth and/or that he understood the nature of an oath.' *

"Reviewing the transcript of the hearing, the Court concludes that although the child witness may have stated on the record that he would get in trouble if he lied, he never stated that he is aware of the difference between truth and falsehood, lacks the ability to relate prior events and does not understand the nature of an oath."

P6 "Despite what appears to be an understanding of the proceedings, the child never gave an unequivocal answer that he would tell the truth.

"The child's varied answers to the prosecutor's questions cannot be rehabilitated by merely asking the same questions over and over..."

S14 [64] "[T]he trial court conducted a voir dire hearing to determine the girl's availability as a witness. The trial court found the girl unavailable to testify because she could not understand the difference between truth and falsehood and because of her inability to understand 'what is reality and what is imagination.'...The very fact that a potential witness cannot tell the truth from fantasy casts sufficient doubt on the trustworthiness of their out-of-court statements to require excluding them."

'Arthur' admitted exactly that on the witness stand.]

B4 [1185] "Petitioner argues his constitutional rights of confrontation and cross-examination, as well as his Fourteenth Amendment Due Process Rights, outweigh the psychotherapist-patient privilege. This Court agrees."

[ Nickel's trial lawyer tried to get 'Arthur's' therapy records, or at least have the judge examine them, but those requests were simply ignored or denied by the case's pre-trial hearing judge, Thomas Breslin .]

W13 [1176] "Where state or federal law provides that a competency determination must be made, failure to conduct an appropriate hearing implicates a defendant's due process rights."

[from dissent:] [1182] "The purpose of cross-examination is not only to test the accuracy of perception and the memory of the witness but to prove the witness's conscience, to discover whether in the story the witness is acting in accordance with the instruction of conscience to tell the truth. A witness who does not know what the truth is cannot be put to cross-examination."

[This was clearly the case with 'Arthur.']

"It is acknowledged by the parties and by this court that the case is unprecedented. The absence of precedent does not mean that we should decide the case in favor of the prosecution.

"If the witness is incapable of understanding the duty to testify truthfully, the witness is incompetent. The majority argues that: 'Incapacity to understand the duty to testify truthfully does not automatically offend the Confrontation Clause when the witness in question is a young child.' Try substituting 'insane' for 'a young child,' or substitute 'suffering from Alzheimer's disease.' The sentence would be nonsense. What makes it better in its present form? 'Being a young child' does ot convert incapacity to capacity.

"The 'necessities of the case' do not create competency. If your chief witness is incompetent, you do not have a case."

P7 [259] "The nine-year-old infant complainant's answers to the highly suggestive preliminary examination conducted by the Trial Judge and the prosecutor demonstrate that she did not have '"some conception" of the obligations of an oath and the consequences of giving false testimony.' ** Although she could differentiate between the truth and a lie, we are not satisfied that her perfunctory, one-word, or nonverbal responses to the mostly leading questions demonstrate that she understood that there is a special moral duty to tell the truth while under oath. Therefore, the trial court erred in allowing the witness to give sworn testimony."

P8 [907] "Prior to jury selection this court held a preliminary examination...to determine [the alleged victim's] testimonial capacity. At this proceeding he was so unresponsive to my questions that I found him incapable of providing sworn testimony...[T]he trial assistant requested a second opportunity for the boy to demonstrate his capacity to take and understand the nature of an oath. At this second interview the child was more responsive and articulated in a persuasive manner his understanding and recognition of the importance of testifying truthfully. For example, in the context of a family situation, he was able to give an example of truth telling and to explain the consequences of lying. On the basis of the boy's answers, behavior and demeanor on this second occasion, I ruled that he was able to understand the nature of an oath and qualified him as a sworn witness.

"Unfortunately, in the context of the trial, this assessment turned out to be wrong. It became increasingly clear during [the alleged victim's] testimony not only that the boy did not understand the importance of telling the truth but at times he became so unnerved by the questioning that he did not even know what the truth was. This was particularly apparent during cross-examination. His manner and answers indicated that his sole interest was to end the ordeal of testifying and that he was answering questions without regard to the content of what he was saying. He turned repeatedly to the court for guidance in responding to a relatively gentle cross-examination concerning both the details of the alleged sexual attack and his own background; he answered comparatively innocuous questions incorrectly, perhaps trying to divine what answer was being sought and to please the cross-examiner by supplying the desired answer, without regard for his answers' accuracy or truthfulness."

[908] "There is no reported case of a trial court reassessing its...determination of a witness's capacity at trial. As a rule, the determination of that capacity made prior to the trial is not altered by events at trial. However, as this case demonstrates, the more informal, comfortable atmosphere in which the exploration of a child's testimonial competence is conducted can result in a misevaluation of the child's capacity. Under these circumstances the trial court has an obligation to alter its determination. To hold otherwise would require the court to adhere mechanically to a ruling made in the exercise of its discretion which it knows to be erroneous."

[Needless to say, in the Nickel case, Judge Paul Czajka was not the least bit interested in revisiting his earlier assessment that 'Arthur' was competent to testify. (But Czajka had only been going through the motions anyway.)]

[910] "Accordingly, defendant's motion to set aside the verdict...is granted."

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* People v. Carrington, 859 N.Y.S.2d 897 (2008). ** People v. Parks, 390 N.Y.S.2d 848.