Admissibility of Child Witness Testimony

In many domestic violence and sex cases involving child victims, the prosecution may intend on calling a child as a witness. On the one hand, these types of cases often have very few witnesses, so a child’s testimony can be critical to the government’s case. However, on the other hand, children’s brains are not fully developed, and they may lack the ability to testify honestly and accurately in court. Thus, the admissibility of child witness testimony is often one of the first major issues in these cases. At the Olsinski Law Firm, PLLC, our aggressive criminal defense attorneys command an in-depth knowledge of the statutory and constitutional protections our clients enjoy. We use this knowledge to limit unreliable testimony and effectively cross-examine admissible child testimony that still raises questions about its veracity.

As a general matter, there are two issues related to child witness testimony. The first is whether the child is competent to testify. Under the North Carolina Evidence Code, “[e]very person is competent to be a witness except as otherwise provided in these rules.” Thus, the default is that a child is competent to provide testimony, and there is no minimum age a child must be to testify. However, a witness is not competent to testify if they are 1.) incapable of expressing themselves concerning the matter they are testifying about or 2.) incapable of understanding the duty of a witness to tell the truth.

Child witnesses can raise either of these concerns. For example, very young children may be incapable of providing a coherent version of events. Similarly, even older children may not understand the importance of providing truthful testimony, given what is at stake.

The next issue is the reliability of a child witness’ testimony. This comes up once a court determines that the child is competent to testify. Once the child testifies, it is up to your defense attorney to cross-examine the child to expose any inconsistencies in their story. Of course, cross-examining a young child requires a certain level of tact as to not turn the jury against the defendant.

The United States Supreme Court has held that, in certain situations, the potential trauma a child may face when testifying outweighs the defendant’s rights under the Confrontation Clause to confront their accuser. Thus, under North Carolina law, a child may testify remotely if each of the following is met:

• The child would suffer severe emotional distress by testifying in the defendant’s presence;
• The child’s ability to communicate with the judge or jury would not be impacted by the fact that they were not physically present in the courtroom.

Given these requirements, most often, courts only allow children to testify remotely when they are the victim of a crime, such as in a rape or indecent liberties with a minor case.

If a judge permits a child witness to testify remotely, the judge must do everything possible to preserve the defendant’s constitutional rights to confront their accusers. Thus, defense counsel must be able to be in the same room as the child when they testify, and defense counsel must also have the opportunity to confer with the defendant during the child’s testimony.

If you were recently charged with a sex offense allegedly committed against a minor, it is imperative that you reach out to an experienced North Carolina criminal defense attorney as soon as possible. The admissibility of child witness testimony is likely going to be crucial in your case, and the lawyers at the Olsinski Law Firm, PLLC, can ensure that your rights are protected throughout the trial. To learn more, and to schedule a free consultation with a Charlotte sex crimes lawyer, give us a call at 704-405-2580. You can also reach our Concord criminal defense lawyers at 704-918-4747.