Minimum Age to Testify in Court
One of the things that may come as a surprise to many is that there are no hard and fast rules governing the exact age at which a minor may lawfully testify in court. For certain specific legal proceedings, state laws specify in which circumstances minors may testify, but both the general guidelines and those for specific circumstances vary widely between states, so they aren’t particularly reliable.
Beyond that, the United States Supreme Court case In Re Gault, 387 U.S. 1 (1967) held that juveniles cannot be treated for criminal proceedings differently than adults in violation of the Due Process Clause of the 14th Amendment, including the right to testify in their own defense. As such, the Supreme Court ruled that the necessity of a parent’s consent to act as a parent to a child does not absolve the court system of its duty to respect the rights enshrined in the Constitution , and therefore, it was decided that a child’s ability to testify was one of those rights.
Furthermore, courts have the latitude to appoint a guardian ad litem ad hoc to advocate for the best interests of the child. However, as In Re Interest of K.M., 975 A.2d 141 (Pa. Super. Ct. 2009) shows, even this is insufficient to extend to parents the authority to prevent their child from testifying. As far as the courts of record are concerned, the right of a juvenile to testify is absolute, inviolable and sacred. As Justice Brennan wrote in his dissent in In Re Gault, a child being forced to endure such a treatment could cause him or her to internalize the experience as a formative trauma, and such experiences cannot be deliberately inflicted upon people without their consent.
When Minors Can Give Testimony Without Parents
In some cases, a minor is not permitted to testify in a court proceeding without a parent present. However, there are many circumstances under which a minor child may be permitted to testify in court without a parent, including the following:
- Civil abuse matters. In a case involving civil abuse of a child by a parent, relatives, or other individuals in the child’s life, the court may take the child’s testimony outside the presence of the parents because it has a vested interest in protecting the child’s best interest. In these situations, the judge will explain that he is taking testimony outside of the presence of the parents and why he is doing it.
- Unwed parents. Because the rights of the unwed father and mother are derived through family law statutes, in matters involving only the unwed parents, there is no right to have an unchaperoned hearing with the child out of the presence of the parents. The parents must both be present.
- Cases involving reporting of a crime. Under California Penal Code § 11174.3, a child under 12 years old may be allowed to testify outside the presence of the parents in a proceeding concerning a violation of Penal Code § 11165.7 involving the reporting of a crime against the child. Parents have no right to be present during investigative interviews with the child or to be present during testimony in court.
- Cases that could endanger the child. Because of the child’s age, the nature of the case, and the amount of risk present, they may testify without parents present. The court will use its discretion when determining whether to permit the testimony.
Legal Rights of Child Testifiers
In order to test a minor’s testimonial acumen, a court may utilize a variety of legal protections to protect the child from harm and otherwise discerning the weight and credibility of the minor’s testimony. For example, where a case turns on contradictory statements of a child, a court may consider the presence of a parent. A contrived question often posed to child witnesses concerns their relationship with a given parent, presenting as a test of bias, but intended as a question of independence and belief. Since children easily manipulate their surroundings, including testing the validity of a parent’s attestation to the power of observation, the diminished ability of a child to discern the truth can lead to conflicts when observed behavior is weighed against photographic evidence. Corralling the child into a corner may yield some testimony but may also be viewed as coercive, in which case a court may find confidence in the behavioral display rather than the story being told. Thus, a court may afford broader discrimination in favor of other verifications of a child’s story, including corroborative accounts or taxonomic classifications (i.e., a parent categorization of the witness child’s level of truthfulness).
In some circumstances, a court may determine that a child is capable of testifying independently. In North Carolina, for example, the question of a six-year-old’s competence to testify was submitted to an expert who found the child to be "intelligent, articulate, emotionally stable[,]" and "capable of speaking in terms that would be understood by the jury." The court relied on the expert and overruled a defense objection, allowing the child’s testimony.
Some states have also adopted laws affording special protection to witnesses who are minors. In 1986, Massachusetts adopted a shield law to protect children from invasive courtroom examination. Since the law requires a "special finding" before such testimony may be adduced, the law violates the full force of the Sixth Amendment, which is made applicable states via the Fourteenth Amendment. Nonetheless, the Massachusetts legislature has determined that allowing children to testify without this protection is less desirable. Conversely, however, Wisconsin has deemed the applicability of such a statute as violating the Sixth Amendment, as the Court determined that the law "arbitrarily deprives the defendant of his right to confront the accusers and to adequately investigate their stories" at the discretion of the trial court. This aspect of the Sixth Amendment – the right to confront the accuser – has been given little treatment in many states, where the threshold question is whether a child is competent to testify. In addition, whereas certain states have given the child, or the state, the option of not allowing the child to testify (notwithstanding a finding of competency), others have not. Such differences between state courts may result in inconsistent applications of volunteering law. Since this is an area of law not uniformly codified or practiced, parents are encouraged to seek specific legal guidance from their attorney of choice.
Parental Consent and Involvement
In most instances, to benefit from specific provisions in the law, a parent may need to consent and request that a minor testify. Provisions for a guardian ad litem for a minor exist when a minor is required to testify in a courtroom or other judicial proceeding.
In matters of divorce or custody, the Courts will consider the recommendation of the child’s best interest attorney. This is the attorney paid by the Court to protect the child’s best interests, not the interests of the parents. A best interest attorney is used when the parents can’t agree on custody issues.
When a parent can provide informed consent for a minor to testify a judge doesn’t want to interfere in the right of the parent to make informed decisions regarding a child’s life. The granting of parental consent advantageously ensures a parent can be present , not only during the time of testimony, but also to coach, teach and guide the minor how to respond to certain questions and how to behave on the stand. Parents are regarded as playing a crucial role in the guidance and support of children.
However, in some circumstances, parental consent may not be necessary. Cases involving cases of sexual abuse often require a minor to testify without the consent of the parent. Typically, when a victim is of an older age, exists in a structured environment (like a homeroom in school) and exhibits symptoms of trauma, parental consent is not required.
Parents are often very concerned about the effects of their minor testifying. It is important to keep in mind that the rules of evidence protect the minor from experiences that can be harmful or traumatic.
Preparation of Minor Witnesses for Court
Usually, before a child testifies in court, a lawyer works with them to explain the process, what to expect, and to try to dispel any fears they may have. The attorney will discuss what sorts of questions might be asked and how to respond to those questions. The process is similar to a deposition, although it may be a more simplified version since it is aimed toward minors. The attorney might also provide some physical preparation for the trial, so as to avoid any surprises.
In addition, the attorney might also make sure that the minor has someone they know available to them in the courtroom so they know they have support. It can be very nerve-wracking and scary for most adults to testify in court, so imagine how difficult that would be for a child.
A courts handles minors differently, so these accommodations may vary on the judge and the courthouse. Another option is allowing the minor to use videotape or Skype to provide testimony. This is a much less formal situation and one that may be friendlier to the child. It might also be less intimidating because it can take place before the actual case is called or without having to appear in front of the judge and court staff. In addition, you would likely have much more flexibility and control of the situation than you would if you were in the court.
How Child Testimony Affects Court Proceedings
The testimony of a minor can sometimes be pivotal to a court case. For example, in the case of In re Savanna M., the Washington Court of Appeals upheld a juvenile court’s finding of sexual abuse against a father based largely on the victimization sexual abuse testimony of a 4-year-old minor. The court found that the child’s testimony was clear, consistent and positively corroborated by the evidence in a videotaped forensic interview.
In order for a court to admit a child’s testimony, the court must determine that the child is competent to testify. Factors considered by the court may include the child’s age and maturity, intelligence, understanding of the seriousness of the proceedings, ability to observe, recollection and narrate . A child may also be found competent to testify based on the nature and manner of their participation in the events in question.
ORC 3109.051 simply states that a child may testify in a divorce case if the judge finds the child competent to testify. Although there is little case law on this issue, it is likely the court must consider the same factors in determining a child’s competency as in the In re Savanna M. case above. Most judges will require the parents or attorneys to file a motion asking that the child’s competency be evaluated and request a hearing. At the hearing, the judge will meet with the child and ask them age appropriate questions regarding the meaning of a witness, the seriousness of lying and how long they have known the people involved in the case.