The Testimony Of Children Under Oath
Do Children As Young As Seven Years Old Testify In U.S. Courts?
Could it actually happen in American courts?
Yes. It can and does happen on a regular basis, although a seven year old is at the very lower end of the range at which children are called to testify as witnesses with any regularity.
Any witness which a court determines is competent to testify, which includes many, but not all, minors, testifies under oath.
Some jurisdictions have a hard and fast minimum age at which someone can be competent to testify (often age seven is the minimum), while other states make it a rule of reason for the court to evaluate on a case by case basis.
Child testimony can be used in any kind of case, not just sex offenses against children or child abuse and neglect cases, although those cases are the kind of cases where child testimony is most common.
Special Arrangements Sometimes Made For Child Testimony
While special arrangements for the form and circumstances of that testimony can sometimes be ordered by a court (sometimes raising constitutional issues regarding whether the "confrontation clause" right of a criminal defendant is violated in a criminal case under U.S. Constitutional law), the default rule is that a minor testifies in the same manner as anyone else.
Often the exact wording of the oath is changed when a child can't reasonable be expected to understand the normal wording.
Perjury In Cases Of Child Testimony Under Oath
If the person testifying under oath is a minor, a perjury offense would be presumptively tried in juvenile court rather than an adult criminal court.
Also, it is possible that even if a child is sworn and testifying under oath, that a child will not be old enough to prosecute for the crime of perjury, even in juvenile court, if the child intentionally commits perjury.
An oath has symbolic value and is believed by many people to have an effect, even when there is no credible threat of a perjury prosecution for lying under oath.
In practice, perjury prosecutions, even for adults, for court testimony, are vanishingly rare even in pretty clear cases, even though the crime is committed basically every day that courts are open for business.
For example, there are dozens of such prosecutions a year in Colorado including both in court and out of court sworn statements, and there are tens of thousands of evidentiary hearings and evidentiary trials each year in Colorado, or which perjury is actually committed in perhaps 5%-10% of such hearings and trials.
Alternatives To Child Testimony Under Oath
Evidence Of Unsworn Out Of Court Statements Made By Children
It is also possible for things that a minor says to be recounted by someone who heard them said or a transcript of a conversation with someone that was not under oath (in which case it is hearsay, but may come within an exception to the hearsay rule), or via a videotape of a child saying something (which is a record to be authenticated prior to its admission). But, in both of those cases, what the child says that the court considers as evidence is not testimony.
Interviews In Chambers Of Children
Another process by which courts obtain information from children, often in child custody cases, is for the judge to personally interview the children, not under oath and not with testimony taken down by a court reporter, either in or outside the presence of counsel for the parties (and almost always not in the presence of parents or any audience present at a hearing) in the judges chambers.
This is primarily done not to elicit evidence of facts, per se, so much as to discern the preferences, desires and concerns of the children themselves as expressed directly. Statements of preferences, desires and opinions of children, because they are not statements of fact and are instead statements of opinion, are by definition not capable of being prosecuted for perjury, since their truth or falsity is not objectively determinable.
These interviews are given more weight in the case of older children than in the case of younger children and this process would not be used at all for infants or pre-schoolers.