Lynn McLain


Young children are frequently precluded from testifying at trial on the grounds of incompetency because they cannot answer questions about abstract concepts regarding “truth” and “lies.” In this situation, should the child’s earlier, out-of-court statements disclosing the abuse and identifying the abuser also be inadmissible? The stakes are huge. If young children cannot testify, and their out-of-court statements are precluded, they simply become safe prey, unprotected by the judicial system. The pivotal question becomes, are there procedures that can ensure fairness both to children and to their alleged abusers? This article argues that a child’s testimonial incapacity at trial ought not automatically bar the admission of nontestimonial statements that fall within exceptions to the hearsay rule. Admissibility should turn on whether, in light of principles of developmental psychology as applied to the particular child, at the time the child made the statement he was capable of making an accurate statement of that type: if so, the evidence ought not be excluded on the ground of incompetency to testify. Attacks on the child’s credibility should go to the weight of this evidence, not its admissibility.

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