The Competency of Children to Testify: Psychological Research Informing Canadian Law Reform

Abstract

AbstractThe competency inquiry has traditionally been a critical initial challenge for child witnesses, most of who are called to testify about their own victimization or as witnesses of family violence. In most common law countries children can only testify if they can correctly answer questions about such abstract concepts as the “oath,” the “promise” and “truth.” These inquiries can be confusing to children, and may prevent children who are capable of giving important evidence from testifying. Recent psychological research establishes that the ability of children to answer questions about the meaning of such concepts as “truth” and “promise” is not related to whether they will actually tell the truth, but the act of “promising to tell the truth” increases the likelihood that children will tell the truth. Informed by this research, in 2006 Canada significantly reformed its laws governing the process for determining the competence of child witnesses. The last section of the paper briefly surveys laws that govern the competency of child witnesses in a number of other jurisdictions and offers proposals for reform.