Competency Challenges Must Be Prompt

State of Washington v. C.M.B. (2005)

The Washington Court of Appeals has ruled that the defense waives any challenge to a child’s competency to testify if it does not make the challenge before or during the child’s testimony. To allow later challenges, the court said, “would make a game of the criminal justice system.” State of Washington v. C.M.B., 125 P.3d 211 (No. 55295-3-I, Dec. 19, 2005).

C.M.B., a juvenile, was charged with first-degree Child Molestation of five-year-old G.B. The court conducted a pre-trial hearing to decide whether G.B.’s hearsay statements were admissible and found they were. Defense counsel did not challenge G.B.’s competency to testify, though, and the court did not rule on it. G.B. testified at trial, and the juvenile was found guilty.

On appeal, the defense argued that prior Washington case law obliged the trial court to “assume the initiative” to determine whether a child witness was competent to testify.

The court of appeals disagreed. The prior case, it said, had been undermined by Washington legislation in 1986:

The changes in the statutes removed the distinction between the competency of children and adults … . Under the current statutes, a child is presumptively competent at any age.

Hence, the court concluded, a trial judge need consider whether a child is competent only if a party challenges his or her competency.

The appellate court added that competency must be challenged before or during a child’s testimony:

The competency of a witness is determined at the time the witness is offered, or as soon as it becomes apparent. The objecting party may not wait and hear the testimony and then, if it is unfavorable, object to the competency of the witness.