0904

I would say: "I object that this witness has not been shown to be competent to testify. Five-year-olds are not presumed to be competent, and there is no explicit evidence Julian understands the difference between truth and lies, or that he understands his obligation to testify truthfully."

Any questions? E-mail me at tanford@indiana.edu and include the reference 906.

What other questions should be asked of the child? Standard practice is to establish that the child knows what a lie is, and that it is bad. For example

Q: Julian, if I said I was a big fish, would I be lying?
A: Yes.

Q: And if I said that it was raining here in the courtroom, would that also be a lie?
A: Yes.

Q: Do good people tell lies, or do they tell the truth?
A: The truth.

Q: So will you be a good boy today and tell the truth?
A: Yes.

Some lawyers ask whether kids who lie get punished or sent to time out, but this may be too much embedded in middle-class culture. Not all kids have responsible parents who send them to time-out if they lie.

There are two-and-a-half exceptions to the rule that everyone is competent.

1) Deadman’s statutes in wills/estates cases.
2) Previously hypnotized witnesses whose memory may have been implanted by suggestion.
3) In some states, witnesses who claim to have recovered old memories during therapy (usually of childhood sexual or emotion abuse).

In problem 9A part 3, if the defense objected to Conrad’s competency, how should the court rule? When you think you know the answer, click here.