Sometimes it is a difficult question: should you find a child witness competent to testify? Children are not as mature as adults and there are myths about their capacity to tell the truth. There is no doubt that children can be intimidated by the court process.
Similar to its federal counterpart, Delaware Rule of Evidence 601 states that
Every person is competent to be a witness unless these rules provide otherwise.
Attorneys most commonly attempt to have child witnesses deemed incompetent under Rule 601, but they are usually unsuccessful, as was the case in Cathell v. State, 2020 WL 1157921 (Del. 2020).
In Cathell, Marisa Cathell was convicted of Second-Degree Assault of a minor based upon physically abusing a four year-old child. At trial, the child testified against Cathell after a colloquy with the judge that included the following:
Q. And so if I say to you – what color is my hair?
Q. And if I say to you no, I have purple hair, would that be the truth or a lie?
A. A lie.
Q. Ok. And if I say to you, you have very pretty brown hair, would that be the truth or a lie?
A. The truth.
Q. The truth. Okay. And if I say to you there’s a dinosaur sitting in that chair over there, would that be the truth or a lie?
A. A lie because there’s no dinosaur.
* * *
Q. So which is better telling the truth or telling a lie?
A. The truth.
* * *
Q. So is it good to tell the truth or bad to tell the truth?
A. It’s good to tell the truth.
Q. Is it bad to tell a lie or good to tell a lie?
A. It’s a bad thing to tell a lie.
In rejecting Cathell’s ensuing appeal, the Supreme Court of Delaware held that
Based on this colloquy, the court found that the child understood the difference between the truth and a lie; she understood that she needed to tell the truth; and she promised that she would tell the truth. After reviewing the Superior Court’s voir dire with the child, it is clear that the court did not abuse its discretion under Rule 601 by allowing the child to testify and allowing the jury to determine the weight and credibility it would place on the testimony.