united-states children testimony law-in-fiction
Can children be placed, and required to testify, under oath in American courts?
<p>In one scene of the film <a href="https://en.wikipedia.org/wiki/I_Am_Sam" rel="nofollow noreferrer"><em>i am sam</em></a> the character Lucy, seven years old, is questioned in some kind of court under oath. When her story is "shaky", she is reminded that she is under oath and not allowed to lie.</p>

<p>Is this authentic? Could it actually happen in American courts?</p>

<h1>The Testimony Of Children Under Oath</h1>
<h3>Do Children As Young As Seven Years Old Testify In U.S. Courts?</h3>
<blockquote>
<p>Could it actually happen in American courts?</p>
</blockquote>
<p>Yes. It can and does happen on a regular basis, although a seven year old is at the very lower end of the range at which children are called to testify as witnesses with any regularity.</p>
<p>Any witness which a court determines is competent to testify, which includes many, but not all, minors, testifies under oath.</p>
<p>Some jurisdictions have a hard and fast minimum age at which someone can be competent to testify (often age seven is the minimum), while other states make it a rule of reason for the court to evaluate on a case by case basis.</p>
<p>Child testimony can be used in any kind of case, not just sex offenses against children or child abuse and neglect cases, although those cases are the kind of cases where child testimony is most common.</p>
<h3>Special Arrangements Sometimes Made For Child Testimony</h3>
<p>While special arrangements for the form and circumstances of that testimony can sometimes be ordered by a court (sometimes raising constitutional issues regarding whether the &quot;<a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4212261/" rel="nofollow noreferrer">confrontation clause</a>&quot; right of a criminal defendant is violated in a criminal case under U.S. Constitutional law), the default rule is that a minor testifies in the same manner as anyone else.</p>
<p>Often the exact wording of the oath is changed when a child can't reasonable be expected to understand the normal wording.</p>
<h3>Perjury In Cases Of Child Testimony Under Oath</h3>
<p>If the person testifying under oath is a minor, a perjury offense would be presumptively tried in juvenile court rather than an adult criminal court.</p>
<p>Also, it is possible that even if a child is sworn and testifying under oath, that a child will not be old enough to prosecute for the crime of perjury, even in juvenile court, if the child intentionally commits perjury.</p>
<p>An oath has symbolic value and is believed by many people to have an effect, even when there is no credible threat of a perjury prosecution for lying under oath.</p>
<p>In practice, perjury prosecutions, even for adults, for court testimony, are vanishingly rare even in pretty clear cases, even though the crime is committed basically every day that courts are open for business.</p>
<p>For example, there are dozens of such prosecutions a year in Colorado including both in court and out of court sworn statements, and there are tens of thousands of evidentiary hearings and evidentiary trials each year in Colorado, or which perjury is actually committed in perhaps 5%-10% of such hearings and trials.</p>
<h1>Alternatives To Child Testimony Under Oath</h1>
<h3>Evidence Of Unsworn Out Of Court Statements Made By Children</h3>
<p>It is also possible for things that a minor says to be recounted by someone who heard them said or a transcript of a conversation with someone that was not under oath (in which case it is hearsay, but may come within an exception to the hearsay rule), or via a videotape of a child saying something (which is a record to be authenticated prior to its admission). But, in both of those cases, what the child says that the court considers as evidence is not testimony.</p>
<h3>Interviews In Chambers Of Children</h3>
<p>Another process by which courts obtain information from children, often in child custody cases, is for the judge to personally interview the children, not under oath and not with testimony taken down by a court reporter, either in or outside the presence of counsel for the parties (and almost always not in the presence of parents or any audience present at a hearing) in the judges chambers.</p>
<p>This is primarily done not to elicit evidence of facts, per se, so much as to discern the preferences, desires and concerns of the children themselves as expressed directly. Statements of preferences, desires and opinions of children, because they are not statements of fact and are instead statements of opinion, are by definition not capable of being prosecuted for perjury, since their truth or falsity is not objectively determinable.</p>
<p>These interviews are given more weight in the case of older children than in the case of younger children and this process would not be used at all for infants or pre-schoolers.</p>

<p>I have no idea about what the movie implied, but the courts generally do not allow a child to be put on the stand in the way that an adult witness to a crime is. The first question that has to be asked is whether the child is "competent;" in particular they have to know the difference between telling the truth and lying, and they have to promise to tell the truth. The trial judge must decide whether to interview the child at all (the attorneys do not interview the child). <a href="https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=5032&amp;context=lalrev" rel="nofollow noreferrer">This article</a> reviews the prerequisites for any child involvement in such a hearing in Louisiana. In the case of <a href="https://casetext.com/case/watermeier-v-watermeier-3" rel="nofollow noreferrer">Watermeier v. Watermeier</a>, the trial judge intended a procedure that was overly protective of the child, running afoul of basic principles of our adversarial system, where the judge alone would interview the child with no record being made. The court held that the attorneys of the parties (but not the parents) could be present, and a record was to be made. Attorneys are allowed to ask pertinent questions in the initial competency phase, where the judge determines whether the child has a "proper understanding." After that is determined, the attorney may be present as observers, but cannot ask questions. Additionally, it is allowed that the judge's intended plan of an attorney-free interview with no record is allowed if the parties do not object.</p>

<h2>Yes</h2>

<p>Children can be (and are) required to give evidence in courts all over the world including the USA. There are generally special rules in place to protect them such as by using video link and not allowing aggressive cross-examination. They may or may not be sworn and the court usually investigates that the child understands the difference between truth and lies. Their evidence must be weighed by the trier of fact just like anyone else’s.</p>

<p>An example of laws regarding children’s evidence is the <a href="/questions/tagged/new-south-wales" class="post-tag" title="show questions tagged &#39;new-south-wales&#39;" rel="tag">new-south-wales</a> [Evidence (Children) Act 1997]<a href="http://www7.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/repealed_act/ea1997145/" rel="nofollow noreferrer">1</a>.</p>

<p>If the case was about custody, it would be normal for the child to be consulted, both on her opinion and on what she knows about what happened in the past. It would certainly not be normal to require a seven-year-old to stand up in public and call either her mother or her father a liar; but it could happen, if the parents and their attorneys put their own interests ahead of hers, and the judge allows it.</p>

<p>If the girl is required to give evidence, then the <a href="https://www.law.cornell.edu/rules/fre/rule_603" rel="nofollow noreferrer">Federal Rules of Evidence</a> say "Before 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. ... Notes:
The rule is designed to afford the flexibility required in dealing with religious adults, atheists, conscientious objectors, mental defectives, and children. Affirmation is simply a solemn undertaking to tell the truth; no special verbal formula is required... Perjury by a witness is a crime, 18 U.S.C. §1621." so though there need not be a religious oath, the girl must be sworn, and can be reminded that lying in the witness box is a crime.</p>

<p>There are two factors working against this happening; first it is unlikely that a custody battle will be in a federal court, and the rules that apply will be whatever is prescribed by the actual system; and secondly I cannot imagine any family court judge allowing this cross-examination to hurt a child in such a way. But it is a possibility for the dramatic purposes of a film, yes.</p>

<p>In the United States, if a child is to testify, the attorney giving the direct examination will usually be permitted to threat the child as "a hostile witness" which in legal jargon means they can ask leading questions.</p>

<p>An example, a non-leading question may would look like "Where were you on the night of June 25, 2019 (Or a generic name, such as the "night of the incident"?" and the witness will provide his answer.</p>

<p>A leading question will typically be phrased where the witness can only answer yes or no, I.E. "Were you in bed at your mommy's house when daddy hit mommy?" And the child would respond yes.</p>

<p>The reason for this isn't necessarily because the child is mean towards the attorney, and called him a doodoo head, but rather because the child might not associate the specific event of daddy hitting mommy with a specific date OR the use of the generic term "the incicident".  A good lawyer would coach the child in making the association with "the incident" Daddy hitting Mommy, but the child might forget or still not understand.   Alternatively, the child might be capable of giving a specific date to the event but he remembers that date a bit too much or runs through a typical formula day, thus the question asked will get the child to say "I was in the toy room playing trucks and then I was in the kitchen having dinner and then I went back to the toy room and played dinosaurs and then it was bath time so I was in the bathroom and I was naked and playing with my..."</p>

<p>Naturally, whatever the kid was playing with in the bath tub is not relevant to being a witness to possible domestic abuse, but that is a hard concept for child to understand.  Alternatively, the child could be precocious that day and call questioning counsel "A big DooDoo Head" in a "from the mouth of babes" moment of knowing that a lawyer who you are testifying for is still a lawyer and all the unpleasantness implied.</p>

<p>It should be noted that any witness in cross-examination is automatically considered hostile under this definition, so questions given to direct hostile witnesses sound very much like questions asked if the child was being crossed.</p>

<p>As mentioned above, the affirmation to testify truthfully will be given to the witness in such away that they can understand.  It's not uncommon for the judge to ask the child if he understands the differnce between telling the truth and telling a lie and that telling a lie is wrong.  In the United States, the age of Criminal Responsibility is typically set by the state.  33 states have no specific age on the books where while the remaining states list an age somewhere between 6 and 11 years old.   At the federal level it is 11 years old.</p>

<p>If the child below the Age of Criminal Responsibility is given testimony while under oath and lies, they will not be charged with the crime of perjury because they cannot reasonably be held liable for committing a crime or understanding that they could go to jail for lying under oath, even if they know lying is morally wrong.  For the 33 states with no Age of Criminal Responsibility, Prosecutor discretion may prevent a perjury case against a kid from going forward as a case of perjury against a kid in elementary school may smack of excessively cruel and unusual punishment under any recommended sentence and if nothing else and one hopes the prosecutor is reasonable to dismiss on this charge.  As the prosecutor is an elected office in the united states, the more cynical thought is that the prosecutor will not bring the case to court as her next challenger in the election might use this case to secure votes from the public who would want their elected officials to use more common sense than legal sense in handling such cases.</p>

<p>If there is any punishment is to be give, it may come in the form of the judge, feeling particularly parently, opting to, at a later date, have the kid come to the court room for a mock trial where the reason why lying is bad is explained and the consequences of how lying in a trial could mean a bad guy doesn't go to jail or worse, that a good guy does.  He might conclude this "mock trial" by "sentencing" the kid to a "time out of no more than 15 minutes in his room or other appropriate time out spot of his custodial supervisor's choosing" and then remand him to the custody of his parent or other legal guardian.  He could spice it up with other legalese such as allowing mom to count time served in case mom already punished him or give the real world sentenced time but make parole eligible after 15 minutes of served time to be determined by mom.  In this example, the kid isn't actually charged with any crime and the judge is merely acting as he would in a real perjury trial to show the kid that lying under oath is considered a very serious crime.   It helps if the judge contacts the parent with the offer to teach so mom knows that it isn't a real criminal summons, and the kid isn't really being prosecuted and can even involve siblings as character witnesses.  Done gently, it's more a cute than it is "scare'em straight" and offers more than just the moral lesson to the kid, as the judge is showing elements of procedural law to the child.  Speaking from personal experience, I have two judges in the family who would often act like judges in a legal case when dealing with myself and my siblings naughty behavior.  I also recall enough of my childhood to know by age four, I never wanted to be in a position where getting out of time out was contingent on my sister of two years my junior having any input in the matter.</p>
