A LEGAL & PSYCHOLOGICAL CRITIQUE OF THE PRESENT APPROACH TO THE ASSESSMENT OF THE COMPETENCE OF CHILD WITNESSES

Abstract

The Canada Evidence Act requires an inquiry to determine whether a child has the requisite moral and intellectual capacity to testify. Caselaw suggests that a child must demonstrate an understanding of abstract concepts like "truth" and "promise" to be competent to testify. This article reports on a survey of Ontario justice system professionals, revealing significant variation in how judges conduct competency inquiries. Children are often asked about religious beliefs and practices, and are frequently asked developmentally inappropriate questions. The authors also report on their experimental research which indicates that children's ability to explain such abstract concepts as "truth," "lie," and "promise" is not related to whether children actually tell the truth. Child competency inquiries are demeaning to children, do not promote the search for the truth, and result in unnecessary appeals. The child competence inquiry should be abolished, though a judge should give a child simple instructions about the importance of truth telling, and ask the child to promise to tell the truth.