FROM THE JUDGES DESK

Potential Changes Coming to Ohio’s Evidence Rule on the Competency of Witnesses

By The Honorable Mary Kate Huffman Montgomery County Common Pleas Court

In January, 2020, the Ohio Supreme Court filed with the legislature changes to certain rules of practice and procedure. If the leg islature fails to take action on the proposed changes, the modified rules will go into ef fect on July 1, 2020. 1 One of the significant changes adopted by the Court revises the rule related to the competency of witnesses. Cur rently Evid. R. 601 provides that every person is competent to testify, except “those of unsound mind and children under the age of 10.” Thus, under the existing version of the rule, the court must undertake a mandatory evaluation of the competence of a witness under the age of 10 be fore the witness may testify. Courts frequently determine the competence of child witnesses, particularly in criminal matters. The Ohio Supreme Court, upon the recommendation of the Commission on the Rules of Practice and Procedure, opted to modernize the existing antiquated rule on the competence of witnesses in favor of a presumption of competence for all witnesses, regardless of age.

The current version of Evid. R. 601 finds its roots in religious doctrine. Historically, courts considered children of “tender age” incompe tent to testify, resulting from the belief that a child could not understand the gravity or nature of the oath to be administered. Influenced by Canon Law, which automatically rejected the testimony of all males under the age of 14 and females under the age of 12, courts focused on a religious justification for not permitting a child to testify. Children, and often women, were perceived as inherently sinful, lacking in moral or religious understanding, and, therefore, in capable of the truth. Thus, the focus of witness competence became the ability to understand religious principles. When children were

Dayton Bar Briefs March 2020 20 permitted to testify, an independent corroboration requirement served as an impediment to conviction for any crime where the victim was a child. Throughout the Eighteenth Century and to the mid-Nineteenth Century, “children were only permitted to give evidence on oath provided they could demonstrate sufficient understanding of the actual implications of ‘burning in hell’ if they lied.” 2 Competence to testify, then, continued to focus on the religious significance of the oath. In some cases, before their testimony could be admitted, children endured a “crash course” in religious education to influence the child’s understanding of the religious oath. 3 Children lacking in religious education, or unwilling to undergo religious indoctrination, were deemed incompetent to testify. 4 Reliance on religious understanding of the oath administered to witnesses suffered criticism beginning in the mid-Nineteenth Century. Courts began equating the com petence of child witnesses with the ability to distinguish between the truth from a lie. 5 The support for the truth v. lie litmus test of com petency found its roots in the notion that if a child lacks an understanding of the distinction, he or she would be less likely to tell the truth. 6 Recent research demonstrates, however, that younger children are no more “likely to tell lies than older children or adults, although younger children may lie about different things than adults.” 7 One Canadian research study found that even with children who recognize the difference between the truth and a lie, and acknowledge that it is “bad” to lie, there remains no demonstrable relationship between a child’s understanding of the concepts and actual truthtelling. 8 Research supports the proposition, though, that administration of an oath to tell the truth significantly increases the likelihood that a child will tell the truth. 9 Research confirms that reliability of a child witness’ testimony finds influence in perceptual, intelligence, memory, and communication skills, and the court’s admonition to tell the truth. 10 The core criteria for assessing testimonialcompetency include: (1) ability to observe and recall an event; (2) ability to understand and respond to questions related to the event; (3) ability to understand the importance of telling the truth in court; and (4) psycho-social and contextual factors affecting testimonial ability. 11

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ENDNOTES: 1 For a complete list of rule changes, go to http://

www.supremecourtofohio.gov/ruleamendments/ documents/2020%20P&P%20(As%20Filed%20 with%20GA).pdf 2 Kim Stevenson, “Children of a Very Tender Age Have Vicious Propensities”: Child Witness Testimonies in Cases of Sexual Abuse, Law, Crime and History 1 (2017). 3 R. v. Murphy, (1795) 1 Leach 430. 4 See Stevenson, supra. note 1. 5 R. v. Holmes, (1861) 2F&F 788. 6 See Nicholas Bala, Kang Lee, R.L.C. Lindsay and Victoria Talwar, The Competency of Children to Testify: Psychological Research Informing Canadian Law Reform, 18 Int’l. J. Child. Rights, 53, 58 (2010). 7 Id. at 59. 8 Id. at 61. 9 Id. at 63. 10 Sharon Kruger, Gertie Pretorius, and Tumi Diale, A Psychological Perspective on Competency Testing of the Child Victim and Witness of Sexual Offences in South Africa, 17 Child Abuse Research 1, 6 (2016). 11 Id.