A Legal & Psychological Critique of the Present Approach to the Assessment of the Competence of Child Witnesses
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Authors
Bala, Nicholas
Lee, Kang
Lindsay, Rod
Talwar, Victoria
Date
2000
Type
journal article
Language
en
Keyword
Alternative Title
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.
Description
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.
Citation
Bala, Nicholas et al. "A Legal & Psychological Critique of the Present Approach to the Assessment of the Competence of Child Witnesses" (2000). 38 Osgoode Hall Law Journal 3. 409-451
Publisher
Osgoode Hall Law School of York University