I Swear: Court Of Appeals Of Minnesota Notes Flexibility Of Courts In Allowing Children To Be Sworn As Witnesses

Like its federal counterpart, Minnesota Rule of Evidence 603 provides that

Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so.   

And, as the recent opinion of the Court of Appeals of Minnesota in In the Matter of the Welfare of J.J.W., 2010 WL 431490 (Minn.App. 2010), makes clear, courts have been flexible in allowing children to be sworn as a witness.

In J.J.W., J.J.W. was charged with delinquency for second-degree criminal sexual conduct based upon acts that he allegedly committed against his four year-old niece, T.B. At a competency voir dire, T.B.

told the judge her name and age, who did her hair, corrected the judge when he misstated her date of birth, told the judge that she went to a preschool which was not close to her home, that she watched Barack Obama on television, what toys she received for Christmas, and that it snowed the previous day. She also identified the gender of the judge and mother, and corrected the judge when he asked if it would be a lie to say mother was a boy. However, she could not recount what she had eaten for breakfast, whether she watched television, identify her favorite beverage, recall whether she celebrated Christmas, or name the president.

The court found that this was enough to establish T.B.'s competency to testify at trial (and the Court of Appeals later concluded that this was the correct ruling). Subsequently,

[t]he day after the competency hearing, T.B. testified. The district court swore T.B. as a witness based on the following exchange: “[T.B.], you have just the cutest smile, [T.B.]. You going to tell us the truth today. Yes? All right. The record should reflect that she shook her head yes.” In the previous voir dire establishing competency, the district court and T.B. had discussed the difference between telling lies and truths, and T.B. had identified statements by the district court about the judge's gender and mother's gender as false.

T.B. thereafter testified against J.J.W., who was eventually adjudicated as delinquent. J.J.W. then appealed, claiming, inter alia, that the judge did not properly administer an oath or affirmation to T.B. in compliance with Minnesota Rule of Evidence 603. The Court of Appeals of Minnesota noted that in its previous opinion in State v. Morrison, 437 N.W.2d 422 (Minn.App. 1990), it found the procedure proper when "the child witness 'indicated she knew what a lie was, what the truth was, and nodded her head when asked to promise to tell the truth.'"   

The court the found that "[t]he administration of the oath" in the case before it

invoked the importance of honesty on the witness stand. The swearing-in was accomplished in a manner similar to that in Morrison: the district court asked if the witness would tell the truth and the witness promptly nodded her head in affirmance.

J.J.W. argued, however, that "[e]ven if the affirmation complied with Minnesota law,...United States Supreme Court jurisprudence regarding the Confrontation Clause of the Sixth Amendment bars her testimony." The court noted, though, that the Supreme Court's opinion in Crawford v. Washington, 541 U.S. 36 (2004), did not address the validity of oaths under Rule 603 and found that "[p]ost-Crawford federal cases decided under a federal rule concerning oaths, which is similar to the Minnesota rule, have been flexible in allowing children to be sworn as a witness." Based upon this flexibility, the court had no problem upholding the procedure used by the lower court. 

-CM