ESTABLISHING THE COMPETENCY OF CHILDREN
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.
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.
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
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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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A. WHEN: ASSESSING THE CHILD’S ABILITY TO MEANINGFULLY
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
3. Document the child’s verbatim statements and your observations in the Contact
Notebook. See Procedural Guide 0400-503.05, Standards for Documenting
B. WHEN: DETERMINING A CHILD’S UNDERSTANDING OF
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
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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.
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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.
Section Level Approval
OVERVIEW OF STATUTES/REGULATIONS
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 http://www.leginfo.ca.gov/calaw.html
Division 31 Regulations http://www.cdss.ca.gov/ord/PG309.htm
Title 22 Regulations http://www.dss.cahwnet.gov/ord/PG295.htm
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
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HARD COPY None
LA Kids: None
CWS/CMS: Contact Notebook
Jurisdictional/Dispositional Hearing Report
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