EvidenceProf Blog

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

Wednesday, June 4, 2014

That's Childish: Article About Indiana Cold Case Reveals Shift in Hoosier State's Treatment of Child Witnesses

According to an article in IndyStar,

The 37-year-old murder case against Michael Ackerman came down to the medical evidence from a 1977 autopsy and the testimony of a then-3-year-old witness....

At the time, the testimony of a 3-year-old would not have been allowed in court. Retired Indianapolis police officer James Stobe testified Monday that, under existing rules of evidence at that time, children under the age of 7 were not considered competent witnesses.  That rule changed in 1994, Strobe said. The new rule starts with a presumption that all children are competent to testify, unless that is challenged by the defense.

So, what was the prior rule?

According to Burrell v. State, 701 N.E.2d 582, 585 (Ind.App. 1998),

Although Indiana Code Section 34–1–14–5 formerly presumed incompetency of children “under ten (10) years of age, unless it appears that they understand the nature and obligation of an oath,” that subsection was repealed in 1990. In January of 1994, the following rule became effective: “Every person is competent to be a witness except as otherwise provided in these rules or by act of the Indiana General Assembly.” Ind. Evidence Rule 601.  

Rule 601's failure to presumptively exclude children does not prohibit special inquiry into their competency prior to testifying when the issue is raised by a defendant. Rather, Rule 601, read in conjunction with the repeal of the subdivision regarding children in the witness competency statute, abandoned the previous arbitrary lines drawn regarding age, in favor of a rule which assumes competency until otherwise demonstrated by the opponent of the testimony.



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