When is a Child Witness Competent to Testify?

State v. Bueso, 225 N.J. 193 (2016).  Today, the Supreme Court addressed the issue of how a trial court should evaluate the competency of a child witness to testify.  The child in question, M.C., was a seven-year old girl who alleged that, at age five, she had been sexually molested by defendant, who was the boyfriend of M.C.’s cousin, a cousin who occasionally babysat M.C.  Without objection by defendant, M.C. testified at defendant’s trial.  Defendant was convicted of aggravated sexual assault, sexual assault, and endangering the welfare of a child.  On appeal, defendant contended, for the first time, that M.C. was not competent to testify.  The Appellate Division agreed, finding plain error by the trial court.  The Supreme Court reversed and reinstated the conviction.  Justice Patterson wrote the unanimous opinion.

Before reaching the question of whether M.C. was competent to testify, Justice Patterson had to address a waiver issue.  The State argued that defendant had waived any right to contest M.C.’s competency by failing to object at the trial level.  The State cited cases from other states and from federal court in support of that position.

Justice Patterson correctly noted, however, that Rule 2:10-2, which provides that issues not raised below can be presented on appeal, but under a more stringent, “plain error” standard of review, governs.  She observed that “that high standard [plain error], provides a strong incentive for counsel to interpose an objection, enabling the trial court to forestall or correct a potential error.”  There was no basis to substitute waiver for the plain error standard in this context.  Thus, the Court declined to follow the State’s cited cases and bar defendant from raising the competency issue.

In addition to the plain error standard of review, defendant faced another standard of review hurdle.  Justice Patterson stated the “general rule that all persons should be qualified to testify, and that disqualification should be the exception.”  That principle is embodied in Evidence Rule 601.  On the facts here, defendant did not establish that the exception should apply.

Justice Patterson carefully detailed the process by which the trial judge determined that M.C. was competent to testify.  First, the prosecutor questioned M.C., using both leading and non-leading questions to “introduce[ ] the concept of telling a lie.”  Second, the prosecutor’s questions “became more pointed.  The prosecutor inquired about the consequences of lying, and analogized the duty to tell the truth at school to the duty to testify truthfully in court.”  Finally, the trial judge took over the questioning, asking M.C. to say whether a hypothetical statement that a book is round was true or a lie.  M.C. responded that it was a lie, since a book is “a rectangle.”  M.C. also testified persuasively to her understanding of the difference between the truth and a lie in response to the prosecutor’s questions, such that, Justice Patterson concluded, the decision to allow her to testify was not an abuse of discretion.

Defendant complained that the trial judge had erred by allowing the prosecutor to question M.C., insisting that only the trial judge is allowed to examine a child witness about competency.  Justice Patterson rejected that argument, noting that although a trial judge may be in the best position to do that questioning, it is not an abuse of discretion to allow the prosecutor to ask questions.

The Appellate Division had also found the prosecutor’s use of leading questions improper.  This too was error.  Justice Patterson cited numerous authorities to support the principle that “leading questions are frequently permitted in the examination of child witnesses.”  But trial courts must exercise “careful oversight” in allowing such questions, though trial judges have discretion in this area.

In the course of her opinion, Justice Patterson cited and discussed prior cases that had addressed the competency of child witnesses.  She observed, as to those cases, that the examination of the children was “not optimal.”  Similarly, she found the questioning in today’s case “well short of ideal,” though sufficient to support the trial judge’s decision under the plain error standard.  The Court concluded, however, by suggesting that its Criminal Practice Committee “consider developing model questions for use in competency determinations involving child witnesses.”

This case demonstrates the importance of standards of review.  Given the standards applicable here, it was difficult for defendant to prevail, and he did not.  “[W]ell short of ideal” questioning might or might not have sufficed in a case that did not involve the plain error standard.  But it was good enough to uphold the trial judge’s decision that M.C. was competent to testify here.