As per the rules of evidence, when a child witness testifies in court, it is mandatory to measure, due to their youth, and tenderness of mind, whether the child witness is competent. It is contrary to law to allow a child who does not appreciate the difference between the truth and a lie to be sworn as a witness; it might work an injustice, and imperils the search for truth. So prior to witnesses being sworn, when either party expects to call a child as a witness, the Court, or the attorneys conduct a preliminary hearing to determine the potential child witness's competency. The particular age when a child is per se deemed competent, can vary, but typically the age of seven is the standard. A host of factors are considered, but stories abound in court lore that are too rich not to share. I have one and what follows is the case of a chastened defense attorney and sobered onlookers when a little child, probably no more than five years of age, put us all in our place. It also aptly illustrates the point that one ought not to ask a question in court, at least, of any witness if one cannot reasonably anticipate the answer to such question. This particular child witness also happened to be the alleged victim of the crime and was to testify on the State's behalf against the accused. I asked her things like what color is the Judge's robe, black, or orange? Where do you go to school, Nashville or Mars? Intuiting that she had, I ended by asking her if she'd ever told her mother a story that was not true.
Yes, she said, and I got punished. Finished and satisfied she had passed the requisite test of competency, I sat down.
Now it was defense counsel's mission to delve further, hoping to expose her weakness, deceit and youth by wily cross examination. The defense attorney, a capable litigator, sweetened her voice, as is common when addressing a young child. A tall woman, she leaned over the lectern, feigning gentleness and inquired of the girl:
..now, you know my client, and you know you this lady, she pointed to me, has listened to your story and brought him here and accused him of hurting you, correct? The little girl looked at the accused and back at the defense attorney,
yes, I know that.
And you know that it is bad to make up stories and that when you do, people can get hurt?
Yes, I know that too.
And you told us a moment ago, you have lied before?
The little girl looked at her feet and steadied her gaze up to meet the eyes of the defense attorney,
yes, I have lied to my mother before.
The defense attorney looked at her client, the accused, and continued-
Ok, now tell us, who would be harmed in this room if you told a lie in here, today?
The little girl glanced around the courtroom, meeting all our eyes. She looked directly at her inquisitor and replied:
All of us.
Think of the times you've been present when the air gets sucked from a room-the times when someones wisdom precedes them. I assure you, this was one of those times. I did not hesitate to smile at the little sage, and blinked back tears. The girl sat, non-plussed by the lengthy silence.
The defense attorney pressed her hands together as she righted herself. Well, your Honor, I have no further questions. The Court smiled and pronounced her competent.
The trial commenced, and justice was served, the boy was held accountable for his misdeeds, for his harming the little girl. At the conclusion, after he was sentenced and as I gathered my things to exit with the girl and her family, the Judge interrupted. She addressed the girl by her first name and asked her to step forward.
I wish there was a way I knew to thank you properly. You have done us a great service here today by reminding us of truth, and how vital it is. Thank you.
The little girl looked at her beaming mother and me. She shrugged and said,
You are welcome, Judge, took her mother by the hand and vanished, leaving us wiser and better for her visit.