One of the more difficult issues that a criminal defense attorney can face
is the situation where a child is the victim of a crime and the child
must be questioned regarding various issues - usually those which involve
difficult and adult topics. For people charged with crimes involving child
abuse or sexual assault of a child, most of the time the primary witness
is a child. Sometimes the child is only defined as such because of the
law. As an example, in Nebraska, First Degree Sexual Assault of a “child”
is defined, as follows:
(1) A person commits sexual assault of a child in the first degree:
(a) When he or she subjects another person under twelve years of age to
sexual penetration and the actor is at least nineteen years of age or older; or
(b) When he or she subjects another person who is at least twelve years
of age but less than sixteen years of age to sexual penetration and the
actor is twenty-five years of age or older.
Neb. Rev. Stat. §28-319.01 (2015).
For the purposes of this particular statute, a “child” is someone
under the age of sixteen.
Anyone who has had any interaction with young children or teenagers certainly
will agree there is a difference between a “child” who is
fifteen years of age and a child who is 8 years old.
The older one may sneak an occasional beer and is full of teenage angst
and the younger may still believe in Santa Claus or the Easter Bunny.
When the child is younger, getting accurate information from a child can
be difficult. That isn’t to suggest that younger children knowingly
lie, but the truth is, younger children are more susceptible to suggestion
One of the first issues that any criminal defense attorney should look
at when an important witness is a child is whether or not the witness
- as a child - is even competent to provide testimony in a court of law.
In determining whether a child is a competent witness, the trial court
"must determine whether a child is sufficiently mature to receive
correct impressions by his or her senses, whether the child can recollect
and narrate intelligently, and whether the child can appreciate the moral
duty to tell the truth."
In re Interest of M.L.S., 234 Neb. 570, 571-72 (1990). In making this determination, the child's
age is not a determinative factor, but is to be taken into consideration.
In re Interest of M.L.S., supra.
The key factor in the analysis involves the 3rd factor - whether the child can appreciate the moral duty to tell the truth.
Criminal defense attorneys frequently miss the opportunity to develop facts
indicating that a child is not competent to testify because the child
cannot appreciate the moral duty to tell the truth. In cases involving
child victims, criminal defense attorneys generally ask easy, kid-friendly
questions about the facts relating to the incident leading to the filing
of criminal charges; however, those same attorneys fail to ask other detailed
questions going to the competency of the child as a witness.
As an example, almost every child has told a lie to someone of authority.
That lie has been told even though the child may have understood how important
it is to tell the truth. If little Johnny has a history of lying about
whether or not he physically abuses or hits the family dog, and little
Johnny knows he gets into trouble for lying and has been punished for
lying in the past, it is imperative that a defense attorney understand
that point. Restated simply, if little Johnny believes his parents are
the ultimate decision-makers when it comes to consequences for lying,
and little Johnny still lies to his parents, then it can easily be argued
that little Johnny is not competent to testify at a trial because he does
not appreciate the moral duty to tell the truth.
Taking the deposition or statement of a child witness should include questions
about the child’s history of lying. Those questions should also
be posed to the child’s parents or care-takers. An attorney should
also ask questions to parents and care-givers about the child’s
reputation for honesty or manipulation amongst the family. Certainly if
the parents believe the child has a reputation for lying or manipulating
situations, that is a strong factor to argue that the child is not competent
to testify because the child does not fully understand the moral duty
to tell the truth - the last factor in determining competency.
Defense attorneys should equate the judge or jury in a criminal case to
a child’s parent(s). If the child will knowingly lie to a parent,
a defense attorney should argue that the child will also lie to a judge
or jury. Certainly, the argument should be made that if a child lies to
his or her own parent(s), then it might even be more likely that a child
would lie to a judge or jury considering the powerful influence parents
have over a child as opposed to the stranger who is a judge or the group
of adults that make up a jury.
In a situation when a child has a history of lying to parents or other
care-givers, a pretrial Motion in Limine should be filed and it should
be argued that the child is not competent to testify. When making any
such argument, be certain to include an argument under 403 that any testimony
would also be unfairly prejudicial considering the child’s history
of lying and inability to tell the truth.