Competent to Testify? Assessing the Credibility of Minors in Sexual Assault Cases
Submitted by New Jersey Sex Crime Lawyer, Jeffrey Hark
This blog discusses State v. Bueso, an appeal of a trial court conviction of first and second-degree aggravated sexual assault charges as well as a third-degree endangering the welfare of a child charge. This conviction was reversed and remanded for a new trial on April 22, 2014 by the Superior Court of New Jersey, Appellate Division. On appeal the focus was not on the charges of sexual assault but rather on the competency of a child-victim to testify at trial.
The Defendant was charged with committing the assaults when the child (M.C.) was between four and five years old, but the trial did not occur until she was seven. All the prosecution’s facts at trial were based on M.C.’s testimony in a video recording and at the trial itself. It is alleged that the Defendant, who lived at the house of M.C.’s babysitter, orally raped M.C. on several occasions. Because this form of sexual assault is not physically traumatic there is no way to corroborate it with physical evidence.
In order to be competent to testify it has to be shown that the person testifying has the capacity to “observe, recollect and communicate” about the matters he/she is being asked under oath. When the person testifying is a child it does not matter if they are sophisticated enough to understand the legal implications of lying under oath, only that they are not supposed to lie and they understand what a lie is. The judge has a duty to confirm that the child has conceptual awareness of the difference between truth and lies and that the child understands their duty to tell the truth. But on appeal it shown that the trial court only asked whether M.C. understood that if someone said a rectangular book was round this would be a lie. Afterwards, the prosecutor asked directed questions concerning truth and lies that only required ‘yes’ and ‘no’ answers. It was held this was not sufficient to confirm that M.C. was competent enough to testify.
During M.C.’s testimony she was inconsistent about how many times she was allegedly assaulted by the Defendant and when those events occurred. This is what first brought her competency into question. However, because the Defendant did not object at trial, the “plain error standard” is applied. This means that on appeal, the errors of the trial court are disregarded “unless it is of such a nature as to have been clearly capable of producing an unjust result.” N.J. R.A.R 2:10-2. In this case because all of the evidence of sexual assault was based on the testimony of M.C. this standard was clearly met.
Download the entire case here.