EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, February 1, 2010

Competent Opinion: Supreme Court Of New Hampshire Reverses Sexual Assault Conviction Based Upon Incorrect Competency Ruling

New Hampshire Rule of Evidence 601 provides that:

(a) General rule of competency. Every person is competent to be a witness except as otherwise provided by statute or in these rules. 

(b) Incompetence of a witness. A person is not competent to testify as a witness if the court finds that the witness lacks sufficient capacity to observe, remember and narrate as well as understand the duty to tell the truth.

It was the finding of the Supreme Court of New Hampshire in its recent opinion in State v. Horak, 2010 WL 114537 (N.H. 2010), that the complainant lacked this last capacity that led it to reverse and remand.

In HorakChristopher Horak was convicted of sexual assault for engaging in sexual contact with a person thirteen years of age or older whom he knew to be mentally defective. Horak lived with the complainant and her mother for nine years, and the complainant was twenty-two years old and "born with disabilities and required daily care such as changing her diapers and assistance with showering, dressing and brushing her teeth."  

Horak was convicted in large part based upon the testimony of the complainant, and, after he was convicted, he appealed, claiming that the trial court should have deemed the complainant incompetent to testify at trial. Now, the opinion goes into quite a bit of detail regarding the questioning leading to the complainant being deemed competent to testify at trial, and you can read all of this questioning in the court's opinion. Here, however, are the three main exchanges:


On direct examination of the complainant, the prosecutor inquired:

Q. And now do you know the difference between telling the truth and a lie?

A. Yeah.

Q. And is it-is it good or bad to tell the truth?

A. I'm not sure about that.

Q. Is it good or bad to tell a lie?

A. No, I'm not sure about the lie.

Q. And do you want to tell the truth?

A. Of course.


On voir dire, the defense attorney asked her whether it is “okay to sometimes lie?” The following exchange then took place:

A. Oh, well, sometimes to lie.

Q. Can you say that again...?

A. Sometimes is a lie.

Q. When is [it] okay to lie?

A. Well, that's a hard question. I don't know what is a lie, but-I don't know what is a lie. I don't know a lie. I can't remember. I can't remember anything.

Q. So can you think of any examples when it's okay to lie?

A. Yeah.

Q. Can you tell us one of those examples?

A. What's that?

Q. When it's okay to lie?

A. That's a hard question to ask. I don't-I don't know what it is. Oh, man, I can't remember anything of this, oh, God. I can't get it all out. I'm here to tell the truth. I'm here to tell the truth of what happened.



the trial court questioned the complainant. After asking the complainant to identify what the judge held in his hand, to which she replied, "Pen," the judge asked whether, if he told her what he was holding was a glass, "would I be lying or would I be telling the truth?" The complainant responded, "What do you mean?" The judge again asked whether, if someone told the complainant what the judge was holding was a glass, "would that person be lying or telling the truth?" The complainant answered, "a lie."

The court then asked:

THE COURT: ... Can you tell me what happens if somebody lies?

A. What do you mean?

THE COURT: Well, that's what I want to know from you. What happens if somebody lies? They don't tell the truth? What do you think happens to people?

A. Oh, boy. They get in trouble when they lie.

After the complainant's last answer, the trial court ruled that she was competent to testify. After he was convicted, Horak appealed, claiming, inter alia, that the trial court erred in deeming the complainant competent to testify, and the Supreme Court of New Hampshire

agree[d] with the defendant that the complainant's single correct answer, considered together with her prior incorrect ones, does not demonstrate that she understood the difference between the truth and a lie. We cannot agree with the State that "[a]fter confusing voir dire from both sides, the trial court was able to cut through the confusion." Rather, the record shows only that the trial court was able to elicit a correct response to the same type of question that both parties had previously posed and to which the complainant had responded incorrectly.

The court thus reversed Horak's conviction. This ruling was a difficult one for me to swallow, but looking at the above facts, I don't see how the court could have reached a different result because it seems clear that the complainant did not fully understand the duty to tell the truth.



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I defended a case a few years ago, involving allegations os sexual assault on a four-year-old child. At the preliminary exam, the judge asked the child a few questions, several times each, like, "Is it a good thing, or a bad thing, to tell a lie?" Half the time, the child gave one answer, half the time, the other. After about twenty minutes of this, the judge called us into chambers, and told the prosecutor and me that he could not find the child competent to testify. The fact that this hearing had been scheduled for about 4:00 p.m. on a Friday afternoon didn't hurt the defense, either.

Posted by: Greg Jones | Feb 4, 2010 8:01:43 AM

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