Establishing The Competency Of Children To Testify

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					                                   Procedural Guide


                            TO TESTIFY

Date Issued:          08/09/10

    New Policy Release

    Revision of Existing Procedural Guide 0300-503.11, Establishing the Competency
    of Children to Testify, dated 01/09/02

    Revision Made:         NOTE: Current Revisions are Highlighted

    Non-substantive revisions have been made.

Cancels: None

                                 DEPARTMENTAL VALUES

This Procedural guide supports the Department’s efforts to improve safety for children
by providing CSW with instructions to maximize the likelihood that a child’s statements
can be admitted into evidence at the Jurisdiction/Disposition court hearing.

                             WHAT CASES ARE AFFECTED

This Procedural Guide is applicable to all new and existing referrals and cases.

                                 OPERATIONAL IMPACT

Evidence Code 701 states that a person is qualified to be a witness if the person is
capable “of expressing himself or herself concerning the matter so as to be understood,
either directly or through interpretation by one who can understand him and is capable
of “understanding the duty of a witness to tell the truth.” In re Malinda S., and other
cases, established that children’s statements as they appear in the
Jurisdiction/Disposition court report are admissible as evidence. Further, In re: Kailee
B. established that the child’s testimony may be entered into evidence by way of the

0300-503.11 (Rev. 08/10)                                               Page 1 of 6
court report even if the child, by virtue of his/her fear of the environment, shyness and
so forth, would not otherwise be competent to testify.
These precedents have substantially reduced the frequency by which children must
testify. However, they may be called by the parents’ attorneys for the purpose of cross-
examination. Further, in serious cases where the child’s testimony constitutes the only
evidence, the judicial officer may require live testimony from the child. For this reason,
it is important that the CSW, prior to interviewing a child concerning the allegations in a
case, obtain information from the child relative to his or her potential competence to
provide meaningful testimony.

When questioning the child, several things must be kept in mind. First, never ask
leading questions. An example of a leading question in this context is, “the sky is blue,
isn’t it?” Never ask the child compound questions such as “is it right or wrong to lie?”,
“is your shirt green or yellow?” or “would your mom give you candy or punish you if you
told a lie?” Most young children have difficulty with these types of questions.

    NOTE: Leading questions are usually defined as those which suggest a desired
          answer or which can be answered with a simple "yes" or "no".

It is important to question the child in an age-appropriate manner. For example,
children under the age of approximately six years have difficulty with time concepts.
Younger children may not grasp prepositional phrases such as “over” and “under.”

Most children who are at least four years of age understand the concept of a lie,
although they may use words such as “make believe” to describe a falsehood.
However, even older children may have trouble with this concept, especially if the child
is developmentally delayed or has experienced social/environmental deprivation.

Although all children who are verbal, even those who may not be competent to testify,
should be interviewed, information relating to the child’s potential competency should be
obtained prior to questioning the child regarding the allegations. The child’s statements
relating to competency, as described below, must precede the child’s statement
regarding the allegations in the Jurisdiction/Disposition court report. See Procedural
Guide 0300-503.10, Writing the Jurisdictional/Dispositional Hearing Report.

It is not in the CSW’s area of expertise to determine a child’s competency to testify; this
lies within the purview of the court and only the court. However, the CSW must provide
the reader of the report sufficient information for a reasonable assessment of the child’s
competency to be made. Ultimately, however, the court will make the determination in
the event the child is called to testify.

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CSW Responsibilities

1. Establish a rapport with the child by talking with him or her about subjects unrelated
   to the allegation(s), e.g., friends, school, toys and so forth.

2. Make note of the child’s language development.
    a.) Does the child appear to comprehend the interviewer’s questions?
    b.) Does the child speak in sentences comprised of a noun and verb to express his
        or her thought?
    c.) Are the child’s responses consistent with the questions?
    d.) Does the interviewer understand what the child appears to be attempting to
    e. If the child appears able to communicate intelligibly, proceed to the guidelines in
       Part B.

3. Document the child’s verbatim statements and your observations in the Contact
   Notebook. See Procedural Guide 0400-503.05, Standards for Documenting

CSW Responsibilities

1. Explain to the child that the interviewer will be asking important questions.

2. Do not ask the child to define “truth” or “lie.” Young children will typically not have
   the ability to define or describe abstract concepts such as these. Introduce these
   concepts in the following manner:
    a.) Begin the examination of the child’s ability to distinguish truthfulness from
        falsehood by making a simple declarative statement such as “My shirt is red.”
    b.) Ask the child," If [insert the name of a third party] said [X] would that be true?"
        E.g. "If Elmo from Sesame Street said that he was the color yellow, would that
        be true?"

0300-503.11 (Rev. 08/10)                                                 Page 3 of 6
    c.) If the child has established that (s)he understands the difference between truth
        and falsehood, establish whether the child understands that it is wrong to tell a
        i.)   Ask the child, “is it good to lie?” If the child answers in the affirmative, ask
              other questions to determine whether the child actually believes it is good to
              lie. An example of such a question would be to ask the child to recall a lie
              (s)he has told and the consequences for telling the lie. Questions regarding
              whether it is “good” or “bad” to lie might then be repeated.
        ii.) If the child demonstrates knowledge that lying is wrong, ask the child what
             some consequences of lying might be.

               NOTE: Nearly all children, by the time they understand the nature of a lie,
                     also understand that lying is wrong. They may, however, have
                     difficulty expressing the concept.

3. If the child has demonstrated that (s)he is competent to testify by demonstrating an
   ability to intelligibly communicate and to comprehend the importance of telling the
   truth, elicit a promise from the child to be truthful during the remainder of the
4. Document the child’s verbatim statements regarding the allegations whether or not
   the child appears to be competent in the Contact Notebook. See Procedural Guide
   0400-503.05, Standards for Documenting Contacts.
5. When possible, document the questions posed to the child verbatim in the Child’s
   Statement section of the court report.

     NOTE: Because the child’s statement regarding the allegations may be
           admissible, even in the absence of the child’s competence to testify in
           court, it is important to continue interviewing the child in that regard,
           regardless of the CSW’s assessment of the child’s competency. CSWs
           should document any impressions or assessments regarding the child's
           ability to communicate in a stressful/court-like setting (a formal location in
           the presence of adults who are strangers in the eyes of the child, etc.)
               There are court cases recognizing that a child may be capable of
               competently relating information in a social setting and then fail to qualify
               as a competent witness in the stressful environment of a courtroom.
               If the child is questioned properly, recording the CSW’s questions will
               serve to demonstrate that the child was not led or otherwise improperly
               influenced during the interview.

0300-503.11 (Rev. 08/10)                                                   Page 4 of 6
6. Include the results of the competency assessment as well as the child’s verbatim
   statement regarding the allegations in the Jurisdiction/Disposition Court Report.
   See Procedural Guide 0300-503.10, Writing the Jurisdictional/Dispositional Hearing

7. If the child does not appear to be competent to testify, notify County Counsel as
   soon as possible and well prior to the Jurisdiction/Disposition court date.

                                   APPROVAL LEVELS

  Section            Level                               Approval
A.-B.                           None


Evidence Code Section 701
(a)        A person is disqualified to be a witness if he or she is: (1) Incapable of
           expressing himself or herself concerning the matter so as to be understood,
           either directly or through interpretation by one who can understand him; or (2)
           Incapable of understanding the duty of a witness to tell the truth.
      (b) In any proceeding held outside the presence of a jury, the court may reserve
          challenges to the competency of a witness until the conclusion of the direct
          examination of that witness.

In Re Malinda S., 51 Cal. 3d 368, 1990
In Re Kailee B., 18 Cal. App. 4th 719, 1993


California Code          
Division 31 Regulations  
Title 22 Regulations     

                                   RELATED POLICIES

Procedural Guide 0300-503.10, Writing the Jurisdictional/Dispositional Hearing Report
Procedural Guide 0300-506.06, Conversations with County Counsel
Procedural Guide 0400-503.05, Standards for Documenting Contacts

0300-503.11 (Rev. 08/10)                                                 Page 5 of 6
                             FORM(S) REQUIRED/LOCATION

HARD COPY             None

LA Kids:              None

CWS/CMS:              Contact Notebook
                      Jurisdictional/Dispositional Hearing Report

SDM:                  None

0300-503.11 (Rev. 08/10)                                            Page 6 of 6

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