Opponent of Child Witness Bears Burden on Competency, Court Rules

State of Washington v. S.J.W. (2010)

The Washington Supreme Court has unanimously held the burden of proof regarding a child witness’s competency to testify belongs to the party opposing the child’s testimony. It thus affirmed a conviction for raping a 14-year-old developmentally delayed boy. State of Washington v. S.J.W., 170 Wn.2d 92, 239 P.3d 568 (2010).

The parents of W.M., the developmentally delayed boy, sometimes paid S.J.W., also 14, to watch him. After W.M. reported to his father S.J.W. had “stuck his pee-pee in his butt,” S.J.W. confessed to that and to oral intercourse.

At a hearing on W.M.’s competency to testify, the defense called several witnesses to support its contention W.M. was not competent. The State called no witnesses, and the court did not examine W.M. The court ruled S.J.W. bore the burden to show W.M. incompetent and had not done so.

S.J.W. was convicted. He appealed.

The Washington Court of Appeals ruled the trial court erred by not assigning the burden of proof on competency to testify to the party offering the child’s testimony. It affirmed the conviction, though, by finding W.M. competent and the trial court’s error therefore harmless. State of Washington v. S.J.W., 149 Wn. App. 912, 206 P.3d 355 (2009).

On further appeal, the supreme court characterized the issue as “whether a trial court should presume a child is competent or incompetent to testify.”

The supreme court noted Revised Code of Washington 5.60.050 had been amended to remove its requirement witnesses be of “suitable age” as well as its suggestion children younger than ten needed special scrutiny. The statute now reads:

The following persons shall not be competent to testify:

(1) Those who are of unsound mind, or intoxicated at the time of their production for examination, and

(2) Those who appear incapable of receiving just impressions of the facts, respecting which they are examined, or of relating them truly.

The supreme court construed this to apply to children the “default rule”—that every person is presumed competent to testify. For support, the court pointed to a federal statute on child competency to testify, 18 U.S.C. Sec. 3509, and that statute’s application in United States v. Allen J., 127 F.3d 1292, 1294 (10th Cir. 1997).

The court closed by saying the “Allen factors,” taken from State of Washington v. Allen, 70 Wn.2d 690, 692, 424 P.2d 1021 (1967), “continue to be a guide when competency is challenged.” Those factors set forth the ingredients that make up competency to testify.