Andrea M. Alonso and Kevin G. Faley
Andrea M. Alonso and Kevin G. Faley ()

In New York state, there is no CPLR section regarding the admissibility of testimony of a child witness. Instead, civil cases have adopted the standard created in criminal cases. The rule originates in NY CLS CPL §60.20 which creates a presumption that witnesses under nine-years of age are incompetent to testify. (Although most courts follow the rule that only those under nine are presumed incompetent, two judges in Supreme Court, Kings County—Justice Francois Rivera and Justice Martin Solomon—apply this presumption to anyone 17 years of age or younger.)

This presumption must be rebutted before an infant can give sworn deposition testimony or before an infant can testify at trial. It is adequately rebutted when a trial court conducts a swearability hearing, a voir dire, of the infant and determines that the witness is competent to testify.

It is important that the testimony be sworn as the general rule is “an unsworn statement is not competent evidence, and therefore, is deemed insufficient to either demonstrate entitlement to summary judgment, or to raise a triable issue of fact … .” Medina v. City of New York, 19 Misc. 3d 1121(A) (N.Y. Sup. Ct. April 18, 2008).

‘Carrasquillo’

Carrasquillo v. City of New York is a civil case that adopted the criminal presumption. In Carrasquillo, plaintiff mother sought to bar her eight-year-old daughter’s pretrial deposition testimony at trial. Id. Defendants conducted a deposition of the daughter. However, plaintiffs contended that infant should be deemed unsworn and her testimony precluded.

In regards to the assertion that the daughter was too young to testify, the court stated that “[there] is no precise age at which an infant is competent to testify under oath.” Id. Instead the test is an individual one where the party seeking to admit the testimony has to overcome the presumption of incompetence set out in CPL §60.20. In order to do so, the infant has to show sufficient intelligence and capacity and have some conception of the obligations of an oath and the consequences of giving false testimony. That duty to determine the witness’s cmpetency falls to the trial judge and “failure to conduct a preliminary examination is error.” Id. Accordingly, the competency determination must be made judicially as a matter of law.

The court did not permit the use of the deposition as evidence because the examination as to plaintiff-daughter’s competence was made by a notary public at the time of the deposition instead of by a judge. The court does not allow notaries public to make such determinations for two reasons. The first is that notaries public have “no authority to make the inquiry and determination of the infant’s competence.” Second, a judge is necessary to ensure there are safeguards for the infant’s protection. Id.

The court explained that such testimony would be deemed unsworn as the determination of competence had to occur before the oath was taken and not after it was given by the notary public. The court only allowed the deposition for impeachment purposes of the plaintiff-daughter’s other testimony.

‘Stickland’

Strickland v. Police Athletic League, 22 Misc. 3d 1107(A) (N.Y. Sup. Ct. Jan. 12, 2009), presented similar issues. In Strickland, a child attended a movie with a group of children and afterwards a teenage boy pushed the child causing the child to fall and suffer facial injuries. Plaintiff-child had an oath administered to him by a notary public following a voir dire assessing his competence.

The court, in finding that the deposition was invalid, noted that in the plaintiff’s voir dire, he responded to questions with mostly one word answers such as “yes,” “no,” and “huh.” The court also noted that the infant-plaintiff was sworn in by a notary public, his swearing in was not on the record, and there were no questions to determine if he understood the consequences of lying under oath. The court said that under these circumstances the deposition under oath could not be sustained and was deemed to be unsworn.

In Quinones v. Caballero, 10 Misc. 3d 486 (N.Y. Sup. Ct. June 15, 2005), the court addressed the question of whether it is necessary for the court itself to examine a minor independently if a case relying on a minor’s sworn deposition is before the court on a summary judgment motion. In Quinones, the infant-plaintiff slipped and fell on defendant’s sidewalk At her deposition, her answers indicated that it was likely defendants had properly cleared the sidewalk of snow where she fell. Defendants moved for summary judgment based on this testimony.

The court explained that plaintiff’s counsel did not raise any competency issues in the motion papers as counsel needed to rely on the same deposition testimony to prove the case. Therefore, the court ruled that if a party against whom a minor’s testimony will be used does not object to it, the court may rely on the account without the infant’s further appearance and examination and can assess competence from the record itself. The court found the infant-plaintiff to be competent after reviewing the deposition and granted the summary judgment motion.

‘Nisoff’

Criminal cases are also illustrative of the determination a court makes in weighing whether to accept a child’s testimony. In People v. Nisoff, a defendant had been convicted of public lewdness in part because of the testimony of two witnesses, a sworn 10-year-old (an older version of §60.20 applied to those under 12 years) and an unsworn eight-year-old girl. People v. Nisoff, 36 N.Y.2d 560 (N.Y. 1975). Defendant argued that the court abused its discretion in allowing the 10-year-old’s testimony and that the eight-year-old did not possess sufficient intelligence and capacity to testify as a matter of law.

In weighing these claims, the court explained that, with respect to the nature of an oath, the 10-year-old indicated that an oath meant “to swear to tell the truth.” The examination also revealed that she had a high scholastic average, knew the difference between right and wrong, knew that telling a lie was wrong and that lying was a sin. These elements weighed in favor of the 10-year-old and satisfied the trial justice that she should be allowed to testify.

In contrast, although the eight-year-old was able to define an oath, she did not fully understand its complete nature. On the other hand, she was able to differentiate between right and wrong and knew that lying was a sin. The trial court weighed these competing factors and was not satisfied that she had sufficient intelligence to testify. As such, the 10-year-old was permitted to give sworn testimony while the eight-year-old was only permitted to give her testimony unsworn.

The Court of Appeals noted that the tests given to potential child witnesses are “individualistic in nature.” People v. Nisoff, 36 N.Y.2d 560 (N.Y. 1975). The court noted that there is no set requirement that will absolutely make a child witness eligible versus disqualification. The trial court has a “degree of latitude” in making this determination and a court will not normally discount a trial court’s determination of competence. Id. The Court of Appeals ruled that the trial judge did not abuse its discretion in allowing the 10-year-old to give sworn testimony or in letting the 8-year-old give unsworn testimony.

‘Morales’

If Nisoff demonstrated the nature of the discretion of the trial judge’s power in these determinations, then People v. Morales addresses the inquiries that should be guiding that determination. People v. Morales, 80 N.Y.2d 450 (N.Y. Dec. 17, 1992)

In Morales, defendant was indicted for crimes he committed against his stepchildren. One involved an infant who required a competency assessment. The court explained that the examination typically involves the following inquiries: “does the child know the difference between a lie and the truth; does the child know the meaning of an oath; does the child understand what can happen if she tells a lie; and does the child have the ability to recall and relate prior events.” Id. The court explained that a child should generally be able to meet these inquiries in order to be deemed competent.

Conclusion

In New York, the method for assessing a child witness’s competency is the same in both civil and criminal cases. Prior to the administration of an oath, the court will conduct a hearing to determine if the child is competent to give sworn testimony. The court will make this determination sui generis and will seek to determine if the child understands the consequences of lying and telling the truth as well as a general concept of what an oath is. If these standards are not met, and a child does not meet a trial judge’s competency standards or if the hearing is conducted by an unauthorized person, the court will not allow the testimony except for impeachment purposes.