State v. Superior Court In and For Pima County
| Decision Date | 15 March 1986 |
| Docket Number | CA-SA,No. 2,2 |
| Citation | 149 Ariz. 397,719 P.2d 283 |
| Parties | , 60 A.L.R.4th 353 The STATE of Arizona, Petitioner, v. The SUPERIOR COURT of Arizona, In and For the COUNTY OF PIMA, and Honorable John G. Hawkins, a judge thereof, Respondents, and Scott James SKALA, Real Party in Interest. 0328. |
| Court | Arizona Court of Appeals |
Petitioner brought this special action to challenge the trial court's order in a child molestation case concluding that the three-year-old victim is not competent to testify as a witness and that the victim's out-of-court statements to others are inadmissible. The real party in interest, the defendant, was charged by indictment with one count of child molestation. The court's order followed a hearing to determine the competence of the victim, defendant's daughter, pursuant to A.R.S. § 13-4061, and the admissibility of her out-of-court statements under A.R.S. § 13-1416. The particular facts of this case warrant the exercise of our discretion to assume jurisdiction. The victim and key witness is three years old, substantial delay would result from an appeal, and the statutes involved are of fairly recent vintage. A.R.S. §§ 13-4061 and 13-1416. See State v. Superior Court of the State of Arizona, in and for the County of Maricopa, 129 Ariz. 156, 629 P.2d 992 (1981).
Following the hearing at which the victim, her mother, a detective and two physicians testified, the court concluded that the victim Both the defendant and the state agree that the trial judge and counsel were unaware that the competency statute, A.R.S. § 13-4061, had been revised. Thus, the court applied the former version of A.R.S. § 13-4061 and § 12-2202 in determining the competency of the victim to testify as a witness.
A.R.S. § 13-4061 was revised effective May 16, 1985. 1 That statute now provides: "In any criminal trial every person is competent to be a witness." Previously, A.R.S. § 13-4061 prescribed the application of civil competency standards to criminal proceedings. Under the former version of the statute, § 12-2202 applied to preclude as witnesses children under ten years of age "who appear incapable of receiving just impressions of the facts respecting which they are to testify, or of relating them truly." While Rule 601, Rules of Evidence, 17A A.R.S., provides that every person is competent to be a witness except as otherwise provided by statute, the previous version of § 13-4061, incorporating § 12-2202, removed the presumption of competency of a child less than ten years old.
The amended version of § 13-4061, follows the federal rule, which presumes every person to be competent as a witness. See Fed.R.Evid. 601. Neither age, mental capacity nor feeble-mindedness renders a witness incompetent or disqualified. Judge Weinstein suggests that it would "probably be more accurate to say that [in determining questions under Rule 601], the court will decide not competency but minimum credibility." 3 Weinstein's Evidence p 601, at 601-10 (1985). 2
Defendant argues that, even under the revised competency statute, the court's ruling was correct. Defendant contends that in order to be found competent to testify the child must understand her duty to testify truthfully and must "grasp the abstract concept that deal[s] with truth and falsity." See Rule 603, Rules of Evidence, 17A A.R.S. Under early common law the testimony of young children was often excluded due to their inability to understand the nature of the oath. See 2 Wigmore, Evidence § 505 (Chadbourn rev. 1979). With the 1975 adoption of the federal rules, upon which our rules are based, the advisory committee recognized an elimination of incompetency grounds and adopted a more flexible approach in dealing with young children. See Fed.R.Evid. 601 and 603 Advisory Committee notes ("Affirmation is simply a solemn undertaking to tell the truth; no special formula is required.")
Flexibility is the key to determining the competency of very young children. A preschool-aged child generally does not understand abstract concepts such as oath, duty, truth or lie. A child's testimony may be rambling and disjointed, characterized by lack of continuity, spotty memory and an inability to discuss specific dates and times. Those failings, however, go to the credibility of the witness and the weight to be given the testimony, not to competency. See Appeal in Pinal County Juvenile Action Nos. J-1123 and J-1124, 147 Ariz. 302, 709 P.2d 1361 (App.1985).
A competency determination is no longer mandatory for children under the age of ten years. A.R.S. § 13-4061; see State v. Schossow, 145 Ariz. 504, 703 P.2d 448 (1985). This does not mean that a witness may never be challenged on competency grounds. But since there are no longer artificial bases for disqualifying a witness as incompetent, such as youth, old age or feeble-mindedness, the inquiry into the competency of a challenged witness has been narrowed. The traditional preliminary examination is no longer required, but a trial judge has broad discretion to address such challenges and determine the issue raised. 3 See Weinstein, supra, at p 601. Competency to testify does not require that the child comprehend the abstract concepts of truth, falsehood and duty to testify truthfully. The fact of the extreme youth of the witness and any inconsistencies in her testimony are matters to be considered by the jury in connection with her credibility and the weight which should be given to her testimony, but do not affect competency. See State v. Jerousek, 121 Ariz. 420, 590 P.2d 1366 (1979); State v. Roberts, 139 Ariz. 117, 121, 677 P.2d 280, 284 (App.1983).
In instances of extreme youth, to find a lack of competency, the judge must be convinced that no trier of fact could reasonably believe that the prospective witness could have observed, communicated, remembered or told the truth with respect to the event in question.
In this case, both the trial judge and state's counsel questioned the victim. While many of the questions were posed in terms of hypotheticals and focused upon determining whether the child understood what it means to tell lies or the truth, the examination did reveal the witness' ability to understand questions and respond meaningfully. She responded accurately to preliminary questions regarding her name, age, and whether she had any siblings, and she also responded accurately to questions regarding the colors of items in the courtroom. Also, while she did not grasp abstract concepts, she readily pointed out errors of fact in various questions. For example, the following questions by the state's attorney led to testimony which established the child's capacity to discern factual errors:
"Q. Now, do you know what color does red look like? Do you know what color red looks like? Do you have a red in there?
A. (Indicating.)
THE COURT: The record may reflect that she has a red crayon in her hand.
Q. (By Mr. Owen) Can I borrow the red crayon for a minute? ... Now, Nicole, if I told you that this--if I said Nicole, this is a black crayon, would that be right?
A. But it's red.
* * *
* * *
Q. If you did something--if your mommy said Nicole, don't cross the street, would you cross the street?
A. (Witness shaking head no.)
Q. If you crossed the street after your mommy told you not to, do you think you'd get in trouble?
A. (Witness shaking head no.) I did not.
* * *
* * *
Q. What kind of doll is this, do you know?
A. White.
Q. White. Is this a dog?
A. It's a cat.
Q. It's a cat. Does this cat have pants on?
A. (Witness shaking head no.)
Q. What does it have on?
A. T-shirt.
* * *
* * *
Q. Have you ever seen anybody with a beard before? Do you know what a beard is? What's a beard?
A. I don't know beard.
* * *
* * *
Q. This is a dog. Woof.
A. But it isn't. It's a cat."
While the judge recognized that the witness could accurately report fact even in response to questions containing factual errors and that her difficulty with abstract concepts was consistent with her young age, he found her incompetent to testify under the former standards of A.R.S. § 13-4061 and § 12-2202. The ruling was based also on a finding that the witness was unable to appreciate the oath. The trial court's determination of competency was not based upon the current statute, and the order is therefore vacated. In view of the witness' testimony in this case and the current status of the law, we hold that this witness is competent to testify. It is for the jury to judge her credibility.
The revision of the general rule of competency was simultaneous with the amendment of A.R.S. § 13-1416, which governs the admissibility of out-of-court statements by a child. 4 Section 13-1416 provides:
" § 13-1416. Admissibility of minor's statement; notice.
A. A statement made by a minor who is under the age of ten years describing any sexual offense performed with or on the minor by another person or any act of physical abuse of the minor, which is not otherwise admissible by statute or court rule, is admissible in evidence in any criminal or civil proceeding if both of the following are true:
1. The court finds, in an in camera hearing, that the time, content and circumstances of the statement provide sufficient indicia of reliability.
2. Either of the following is true:
(a) The minor testifies at the proceedings.
(b) The minor is unavailable as a witness, provided that if the minor is...
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