Swearing in Tommy: Should children testify?

By Jennifer M. Paine

Attorney, Cordell & Cordell, P.C., Detroit office

Note: This is the first part of a three-part series. Click here to read Part 2 and click here to read Part 3.

The wood was smooth and cold against the back of his legs. Tommy sat slouched on the courtroom bench, his feet dangling above the marble floor, unable to reach even with his tiptoes. He grasped a red plastic truck between sweaty fingers and, his head hung low, shuffled his eyes back and forth, quickly so no one would see, between Mom and Dad. They stood on the other side of the knee-high gate with men in black suits and ties, arguing softly, but he could see the daggers they let out silently with their whispers. Mom pointed an angry finger at him. Then Dad did. A woman hurried through the courtroom, carrying an armful of files. One page slipped from the top, but she kept brushing by. Then the little wooden door in the corner swung open, and a giant man in black stepped out with a police officer. 

“Tommy, why don’t you come talk to me,” said the stranger, “and we’ll have a little chat.” The officer tugged him from his bench, fingers clutching into his shoulder, and dragged him to the stranger. “Go get him, son,” said Dad. “Love you,” said Mom. The stranger squinted his eyes, scrutinizing the boy.

Have you ever struggled over whether your child can, or should, testify? And what happens to him if he does? Can you ever guarantee your child’s words to the judge are what they tell you at home? And what if your spouse planted thoughts? How can you protect your rights? Can you?

You are not alone. Here are some suggestions.

When children come to court to testify, they come as fact witnesses, preference witnesses, or both. These are the two forms of children’s testimony: fact testimony and preference testimony. Fact testimony refers to the child’s first-hand knowledge of events: what the child saw, heard, felt, did, and so forth. This form of testimony is admissible, absent a statute or court rule to the contrary, in all family cases where facts are in dispute. Preference testimony refers to the child’s wishes for a particular custody outcome in the case, i.e. whether the child wants to live with Mom, Dad or both. This form of testimony is limited in most states to child custody cases.


Fact Testimony: Who, What, Where, When, How

Each state legal system makes special provisions for handling children in the courtroom. The provisions range from special family courts, the first one adopted in Illinois in 1899, to special evidentiary rules for taking child testimony during trial, particularly over sensitive issues like neglect and sexual abuse. Unfortunately, when dealing with these issues, the child will often be the only witness with firsthand knowledge of the events in dispute. Therefore, the child’s testimony is crucial to a proper presentation of the case, and to putting the abusive party to punishment. However, each parent’s constitutional and statutory trial rights, like the constitutional right to confrontation, do not evaporate merely when a child testifies. Accordingly, to facilitate child testimony but accommodate parent’s rights, a court will allow a child to testify with certain safeguards, but not shrouded in secrecy.

There is a common misconception that children have to be a certain age to testify. At one time, this was true. Research suggested that children were vulnerable to making serious errors in their testimony. Therefore, there was little to no guarantee of trustworthiness, the touchstone for evidence admissibility. Children under a certain age, usually 7 or 14 years old, could not testify.

In the majority of states, however, this is no longer true. Additional research and increasing reports of child abuse and neglect, among other things, prompted reform. Most states have dropped their child testimony bans in favor of rules that allow children to testify while allowing the fact-finder to afford the testimony as much (or as little) weight as deemed appropriate considering the child’s age, testimony and demeanor. Even in the minority of states that do require children to be a certain age to testify, the requirement is usually a presumption, not a bright-line rule banning testimony.

Evidentiary rules now presume witnesses are competent. A competent witness meets the minimum requirements to testify. In general, unless the judge finds after questioning the person that the person does not have sufficient physical or mental capacity or sense of obligation to testify truthfully and understandably, every person is competent to be a witness.

In most states, special evidentiary rules apply to children witnesses. The judge may determine whether the child is competent in a pretrial motion, in chambers and off the record, or in front of the jury in open court. See, e.g., People v Houghtelling, 183 Mich App 805; 455 NW2d 440 (1990). The court may converse with the child in a dialogue that appears friendly and light-hearted to gauge whether the child knows the difference between right and wrong, knows the consequences of telling a lie, knows not to tell a lie, and can recall the events in dispute. For example, the judge may ask the child to describe her 5th birthday party to determine whether she remembers events from two years ago, around the time of the events in dispute. The judge must conclude that the child has the capacity to observe, remember and communicate what she observed and the capacity and sense of obligation to testify truthfully and understandably about what she observed. Using this method, even witnesses as young as 4 years old have testified. See, e.g., People v Kasben, 158 Mich App 252; 404 NW2d 723 (1987). 

Even if the child is competent to give fact testimony, state rules may require the court to take additional precautions (or the parent offering the testimony to jump additional hurtles) before the child can testify. For example, in divorce cases in Vermont, the judge must appoint an attorney for the child before the child is called as a witness. 15 VSA § 594. The child may only serve as a witness if the judge finds, after a hearing on the issue, that (1) the child’s testimony is necessary to assist the fact-finder in determining the issues before it; (2) the probative value of the child’s testimony outweighs the potential detriment to the child; and (3) the evidence sought is not reasonably available by other means. Id. The competency examination may occur with the judge in chambers, with any other persons attending at the judge’s discretion, and a court reporter must record it. Id.

Procedural rules for state courts are a matter of state law, so be sure to check your state’s laws for the child testimony precautions applicable to your case. 

As you can imagine, not all parents embrace the idea of their children testifying about personal, embarrassing and/or traumatic events in open court, on the record, before a judge and/or jury. They object, pointing out the re-lived trauma their children suffer, red-faced or timid in the witness box. For example, in the Michigan case Breneman v Breneman, 92 Mich App 336; 284 NW2d 804 (1979), the trial court permitted an 11-year-old boy to testify about several incidents of abuse from his mother and stepfather, who struck him with a paddle, punched him in the nose and knocked him to the floor. The mother objected and, on appeal, argued that the trial court committed reversible error by allowing the child to testify because “in a child custody dispute, the child should not be subjected to the additional pain of having to testify in open court and be cross-examined as he would be if he were a witness in ordinary criminal or civil litigation.” Id. The appellate court disagreed, holding that those concerns only apply to preference testimony; for fact testimony, “as a general rule an 11-year-old child is competent to  testify . . . unless the court finds after questioning [him] hat he does not have sufficient physical or mental capacity or sense of obligation to testify truthfully and understandably[.]” Id. This boy did.

Moreover, the policy considerations (protecting children from having to choose between parents) did not apply when the allegation is physical abuse and the goal to protect the child from further abuse. 

Note: This is the first part of a three-part series.Click here to read Part 2 and click here to read Part 3.


Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.

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