This policy provides CSWs with guidelines for determining whether or not a child is competent to testify. This guidance is meant to maximize the likelihood that a child’s statements can be admitted into evidence at a Jurisdictional/Disposition court hearing.

This policy guide was updated from the 08/09/10 version, as part of the Policy Redesign, in accordance with the DCFS Strategic Plan.

Competency of Children

A child’s statements in the Jurisdiction/Disposition court report are admissible as evidence.  In addition, a child’s testimony may be entered into evidence by way of the court report in lieu of testimony, due to the child’s fear of the courtroom environment or shyness.

All children who are verbal, even those who may not be competent to testify, must be interviewed. Prior to interviewing a child concerning the allegations in a case, the CSW must assess whether or not the child is competent to testify. Documentation of the child’s statements relating to competency must precede the child’s statements regarding the allegations in the Jurisdictional/Dispositional court report.

When interviewing a child, it is important to question the child in an age-appropriate manner. Never ask leading questions or compound questions.

It is not in the CSW’s area of expertise to determine a child’s competency to testify; this authority lies with the court.  However, the CSW must provide sufficient information to the hearing officer so that a determination as to the child’s competency can be made by the court.

Assessing a Child’s Ability to Communicate Meaningfully

CSW Responsibilities

1. Establish a rapport with the child by talking with them about subjects unrelated to the allegation(s), e.g., friends, school, toys.
2. Make note of the child’s language development by exploring and documenting the following in the Contact Notebook:
   1. Does the child appear to comprehend the interviewer’s questions?
   2. Does the child speak in sentences comprised of a noun and verb to express their thought?
   3. Are the child’s responses consistent with the questions?
   4. Does the interviewer understand what the child appears to be attempting to convey?
   5. If the child appears able to communicate intelligibly, proceed to the guidelines below, in Determining a Child’s Understanding of Truthfulness.

Determining a Child’s Understanding of Truthfulness

CSW Responsibilities

1. Explain to the child that the interviewer will be asking important questions.
2. Do not ask the child to define "truth" or "lie."  Young children will typically not have the ability to define or describe abstract concepts such as these.  Introduce these concepts in the following manner:
   1. Begin the examination of the child’s ability to distinguish truthfulness from falsehood by making a simple declarative statement such as, "My shirt is red."
   2. Ask the child," If [insert the name of a third party] said [X] would that be true?"
      • For example, "If Elmo from Sesame Street said that he was the color yellow, would that be true?"
3. If the child has established that they understand the difference between truth and falsehood, establish whether the child understands that it is wrong to tell a lie.
   1. Ask the child "Is it good to lie?"  If the child answers in the affirmative, ask other questions to determine whether the child actually believes it is good to lie.  (Nearly all children, by the time they understand the nature of a lie, also understand that lying is wrong.  They may, however, have difficulty expressing the concept.)
   2. Ask the child to recall a lie(s) they have told and the consequences for telling the lie.  Questions regarding whether it is "good" or "bad" to lie can then be repeated.
4. If the child demonstrates knowledge that lying is wrong, ask the child what some consequences of lying might be.
5. If the child has demonstrated that they are competent to testify by demonstrating an ability to communicate intelligibly and to comprehend the importance of telling the truth, elicit a promise from the child to be truthful during the remainder of the interview.
   • Even if a child has not demonstrated that they are competent to testify, it is important to continue interviewing the child in that regard because the child’s statement regarding the allegations may be admissible.
6. If the child does not appear to be competent to testify, notify County Counsel as soon as possible and well before to the Jurisdiction/Disposition court date.

Documenting the Interview with the Child

CSW Responsibilities

1. Document in the Contact Notebook any impressions or assessments regarding the child’s ability to communicate in a stressful setting (such as a courtroom).
   • There are court cases recognizing that a child may be capable of competently relating information in a social setting and then fail to qualify as a competent witness in the stressful environment of a courtroom.
2. Document in the Contact Notebook the child’s verbatim statements regarding all allegations as to whether or not the child appears to be competent.
3. When possible, document in the Contact Notebook the questions posed to the child verbatim in the Child’s Statement section of the Jurisdiction/Disposition court report.
   • If the child is questioned properly, recording the CSW’s questions will serve to demonstrate that the child was not led or otherwise improperly influenced during the interview.

Referenced Policy Guides

0300-503.10, Writing the Jurisdiction/Disposition Report

0300-506.05, Communication with Attorneys, County Counsel, and Non-DCFS Staff

Statutes

Evidence Code Section 701 – States that a person is disqualified to be a witness if he or she is:

• Incapable of expressing himself of herself concerning the matter so as to be understood either directly or through interpretation by one who can understand him or her.
• Incapable of understanding the duty of a witness to tell the truth.