appellate court reviewed competency de novo—without deference—where trial court’s decision was based wholly on documents, and appellate court had all the documents before it
How later courts described this case
- appellate court reviewed competency de novo—without deference—where trial court’s decision was based wholly on documents, and appellate court had all the documents before it
- at time of making an out-of-court hearsay statement, later offered at trial to prove its truth, the declarant "understood his obligation to tell the truth;" "knew the difference between truth and falsehood;" "had the mental capacity ... to understand simple questions;" and "the ability to express his recollection in words"
- “When demonstrative evidence ... is more prejudicial than probative, courts should refuse its admission.”
- disallowing contribution claim where parents allowed child to wander free in neighborhood; child electrocuted at utility power station
Written by the judges who cited it.
Later courts went against this
Declined to follow by Bell v. State, 147 Wash. 2d 166 (2002)
We therefore decline to apply the Jenkins approach under these circumstances.
The opinion
Durham, J.
(concurring in part, dissenting in part) — I agree that this case should be remanded for a new trial as discussed in sections II and III of the majority opinion. However, I do not agree that the trial court erred by admitting the deposition of Lance Sinka and I respectfully dissent to section I of the majority opinion.
The majority holds that Lance's deposition should not have been admitted because he was not, as a matter of law, competent to testify. To reach this result, the majority reviews de novo the decision to admit the testimony, substitutes its own judgment for that of the trial court, and confuses admissibility with credibility. I disagree with both *109 the standard of review applied and the analysis of competency.
The determination of the competency of a child witness is within the discretion of a trial judge and should not be overturned absent a manifest abuse of discretion. Laudermilk v. Carpenter, 78 Wn.2d 92, 102 , 457 P.2d 1004 , 469 P.2d 547 (1969). In its opinion, the majority states, without citation of authority, that when the trial court makes its determination of competency on documentary evidence, this court may review de novo the trial court's finding. While I agree that the trial court's opportunity to view a child's demeanor is an important reason for leaving this determination to the discretion of the trial court, there are other equally compelling reasons for deferring to the trial court on the issue of competency.
The basis of the appellate courts' policy of deferring to trial courts' discretion stems from the basic structure of the judicial process. The primary function of an appellate court is to provide guidance on legal issues. The primary function of a trial court is to apply those legal guidelines to particular factual situations. Determination of competency is often a close factual question on which two reasonable fact finders may disagree. Absent an abuse of discretion, I see no reason for usurping the trial court's function as a fact finder and reversing its decision merely because we would have reached a different result. This encourages the appeal of close factual questions, thereby undermining both the authority of the trial court and the proper role of appellate courts.
More importantly, I agree with the trial court's finding that Lance was competent to testify. Lance's testimony at the deposition clearly demonstrates that he met the five criteria for competency set out in State v. Allen, 70 Wn.2d 690, 692 , 424 P.2d 1021 (1967), which interpreted RCW 5.60.050. 2 Lance's deposition testimony indicates that he is *110 aware of his surroundings and can answer questions intelligently. At the beginning of the deposition he testified:
Q Let me ask you some questions, Lance. Tell me your name?
A Lance.
Q What is your last name?
A Sinka.
Q How old are you, Lance?
A Seven.
Q Do you go to school?
A Yep.
Q Where?
A Chelan, right by the high schools.
Q What grade are you in?
A First.
Q What is the name of your teacher?
A Mrs. Pusey.
Mrs. Holman: P-u-s-e-y.
A My brother calls here [sic] Mrs. Pewey (ph. sp.).
Q (By Mr. Baker) I bet you don't call here [sic] Mrs. Pewey, do you?
A No. I'd go to the principal.
His understanding of the obligation to speak the truth is also apparent from his deposition:
Q Lance, let me ask you a couple of other questions. It's important that you tell me the truth when I ask you a question.
A Okay.
Q Because a lot of people are concerned about what happened, and we want to know exactly what happened—
A That's the truth.
Q —as best you can recall. You understand what it means to tell the truth, don't you?
A Mm-hmm. I never lie.
Q You never lie?
A Only when I was four years old, three years old, or two years old, or one year old. That's the only time I lied.
*111 Q When you were really little?
A Mm-hmm.
Q In the questions that you have been answering for me just now, the things you have just told me, were they the truth?
A Yep.
Q All of it?
A Mm-hmm.
And later in the deposition:
Q (By Mr. Baker) Lance, when I started to talk to you, do you remember promising me to tell the truth?
A Yes.
Q Did you know what that meant?
A Yes.
Cross Examination (Continuing)
By Mr. Greive:
Q What did it mean?
A It means if you lie you would get in bad trouble.
He demonstrated his ability to receive an accurate impression of the accident at the time it occurred, to express his memory of it in words and to understand simple questions about it:
Q Do you remember when you and Jonathan went over to the substation?
A Yep.
Q And went inside of the substation?
A No.
Q No what? You didn't go inside the substation?
A No. He just went in there. When it shocked him, I went in there.
Q You went in after he was shocked?
A Yep.
Q Where were you when he got shocked?
A Outside the fence.
Q Why didn't you go in?
A I knew it was a power plant.
Q You knew it was a power plant?
A (The witness nods.)
Q How did Jonathan get inside there?
A Climbed over the fence, and there wasn't no barbed wire like over — around the fence they usually have barbed wire on it, and that only half of the size only *112 has barbed wire on it.
Q The part that he climbed over didn't have any barbed wire?
A Mm-hmm.
Q Could you see that there was barbed wire other places around it?
A Yes, because we ride our bikes around there in the mud.
Q On that day or other days?
A Other days, all kinds of days.
Q Had Jonathan ever climbed over there before that you know of?
A No.
The majority finds Lance to be incompetent on the grounds that his memory is not "sufficient to retain an independent recollection of the occurrence", the third criteria established in State v. Allen, supra at 692 . In reaching this conclusion, the majority relies on what it characterizes as inconsistencies in his testimony concerning his understanding, prior to the accident, of the dangers of electricity. The testimony which the majority finds inconsistent is, at best, vague. It is, however, clear from the entire deposition that Lance knew the substation was dangerous. What is unclear is when he learned about "electricity". If this is an inconsistency in his testimony, it is a minor and highly technical one, which would be relevant only to the credibility of his testimony, to be determined by the jury, not to his competency to testify, a judicial decision. State v. Woodward, 32 Wn. App. 204, 207-08 , 646 P.2d 135 (1982).
The requirement that a child have the ability to retain an independent recollection of an occurrence does not require that a child's testimony be consistent in all aspects. Children, as well as adults, often testify inconsistently. This affects their credibility, not their competence. Woodward , at 207-08. In this case, Lance obviously had an independent recollection of the accident and of how the substation looked to him:
Q How did you know about it?
A Because I heard, seen it, heard the electricity, plus I *113 seen the little things going around and around. There's kind of like fans?
Q Before you went in there, before you went into the substation itself, could you hear any noise at all?
A A little bit.
Q What did it sound like?
A Like a snake.
Q That's very good. Could you hear that noise before Jonathan went into the substation?
A Yep.
Q After Jonathan went into the substation?
A Then he climbed up on there and I told him to get down, and he didn't hear me. I yelled louder, and he didn't just pay attention. He didn't pay attention.
As referred to above, he even corrected the examining attorney when a question made it appear as if the attorney were confused as to the order of events:
Q Do you remember when you and Jonathan went over to the substation?
A Yep.
Q And went inside of the substation?
A No.
Q No what? You didn't go inside the substation?
A No. He just went in there. When it shocked him, I went in there.
Q You went in after he was shocked?
A Yep.
This testimony demonstrates that Lance had an independent recollection of the accident. I am satisfied that this is sufficient to establish his competency. The credibility of his testimony is for the jury to determine.
Finally, I am concerned about the impact of this decision on the many other cases, such as those involving child abuse, in which a child is an important and sometimes sole witness. By substituting its own judgment as to competency, and then by confusing that issue with credibility, the majority may have unintentionally set a higher standard for admission of children's testimony than can realistically be met.
I would affirm the trial court's finding that Lance was *114 competent to testify. In all other respects I concur with the majority.
Andersen, J., and Hamilton, J. Pro Tern., concur with Durham, J.
RCW 5.60.050 provides in part:
"The following persons shall not be competent to testify:
*110 "(2) Children under ten years of age, who appear incapable of receiving just impressions of the facts, respecting which they are examined, or of relating them truly."