§4.08 Child’s Testimony

[1] In General
[2] Hearsay
[3] Special Accommodations

[1] In General

Special considerations apply to a child witness. For example, you may refuse to permit a child to testify if the testimony will cause psychological stress and injury, and the potential benefit derived from testifying does not outweigh the injury it will cause. [In re Jennifer J. (1992) 8 CA4th 1080, 1086.]

The general evidentiary rules regarding competency apply. [See EC §§700, 701.] Inconsistencies in a child’s testimony go to credibility, not competency. [In re Katrina L. (1988) 200 CA3d 1288, 1299.]

[2] Hearsay

Hearsay statements of a child under age 12 may be included in the social study report and may be sufficient to sustain a jurisdictional finding, unless an objecting party establishes that the statement is unreliable because it was the product of fraud, deceit, or undue influence. [WIC §355(c)(1)(B); CRC 5.684(d)(2).]

Other hearsay exceptions include:

• The child dependency hearsay exception, under which a child’s hearsay statements are admissible if you find sufficient indicia of reliability, but the statements must be corroborated if the child is not available for cross-examination [In re Cindy L. (1997) 17 C4th 15, 35];
• The social study exception, under which statements of a child in a social worker’s report are admissible if the statements bear indicia of reliability [In re Lucero L. (2000) 22 C4th 1227, 1242–1243]; and
• Other statutory exceptions, for example, statements of a child who was a victim of abuse or neglect if the child is under 12 and the statements were made for medical diagnosis or treatment [EC §1253].

[3] Special Accommodations

The child may give recorded testimony in your chambers outside the parents’ presence if the parents’ attorney is present and if:

• You determine that testimony in chambers is necessary to ensure truthful testimony [WIC §350(b)(1); CRC 5.534(c)(1)];
• The child is likely to be intimidated in the more formal courtroom setting [WIC §350(b)(2); CRC 5.534(c)(2)]; or
• The child is frightened to testify in front of the parent or parents [WIC §350(b)(3); CRC 5.534(c)(3)].