Case Studies
Chapter 08: Competency of Evidence and Witnesses
Overview — Based on: State v. Armstrong, 2011 Ohio 6265, 2011 Ohio App. LEXIS 5173 (2011).
The defendant appealed his criminal convictions for kidnapping, three counts of rape, and two counts of gross sexual imposition. He contended that the trial court committed reversible error when it allowed the seven-year-old victim to testify against him because he alleged that she was incompetent as a witness because of her age. The facts offered at trial indicated that the defendant lifted the seven-year-old girl over a common fence separating two neighboring properties and managed to get her inside his home where he took sexual liberties with her and took pictures of her with his cell phone. The prosecution planned to call the complaining victim as a witness for the state.
Prior to the actual trial, the presiding judge conducted voir dire or questioning of the minor child to determine her level of competency. Ohio law does not conclusively presume that children under the age of 10 years are incompetent, but will allow such children to testify where a judge determines that the individual is competent as a witness. Under Ohio law, the competency of witnesses under the age of 10 must be established to the satisfaction of the trial judge according to Evid.R. 601. In making a determination concerning whether a child under 10 is competent to testify, the court must take into consideration (1) the child’s ability to receive accurate impressions of fact or to observe acts about which he or she will testify, (2) the child’s ability to recollect those impressions or observations, (3) the child’s ability to communicate what was observed, (4) the child’s understanding of truth and falsity and (5) the child’s appreciation of his or her responsibility to be truthful. Reviewing courts reconsider the trial court’s determination of a witness’s competency under an abuse-of-discretion standard and do not reverse unless the error would have made a difference in the outcome of the case.
In this case, during a pretrial judicial examination of the child, the child-victim was able to answer questions that related to her age, dealt with the facts considering her school situation, indicated who her favorite teacher was, and was able to tell the judge about her favorite book. From the questions asked by the judge, the child was able to the judge the difference between the concepts of being truthful and lying. From these pretrial questions, the judge determined that the child met the four elements of competency. Although a child does not have to take the oath to tell the truth, a child must have original perception, recollection, and an ability to communicate as well as an understanding of the importance of telling the truth and its consequences.