For the Defense - Vol. 4, Issue 4 - 19

Given that rule, Pennsylvania still requires an
examination of competency for child witnesses.180
The capacity of young children to testify has
always been a concern as their immaturity can
impact their ability to meet the minimal legal
requirements of competency. Common experience
informs us that children are, by their very
essence, fanciful creatures who have difficulty
distinguishing fantasy from reality; who, when
asked a question, want to give the "right" answer,
the answer that pleases the interrogator; who are
subject to repeat ideas placed in their heads by
others; and who have limited capacity for accurate
memory.
As such, the court requires a competency
examination of the immature witness. The test
set out by the court for competency of immature
witness is:
There must be (1) such capacity to
communicate, including as it does both
an ability to understand questions and to
frame and express intelligent answers, (2)
mental capacity to observe the occurrence
itself and the capacity of remembering what
it is that she is called to testify about, and
(3) a consciousness of the duty to speak the
truth.181
"Taint speaks to the second prong of the
competency test...the mental capacity to
observe the occurrence itself and the capacity of
remembering what it is that she is called to testify
about." 182
In Pennsylvania, if a witness is at least 14 years
old, they are entitled to the same competency
presumption as an adult.183 The court notes that
"the concerns underlying the three-part test for
evaluating the testimonial competency of minors
become less relevant as the witness's age increases,
ultimately being rendered totally irrelevant as a
matter of law by age fourteen."184 The critical age
for the competency determination is the age at
the time of testifying and not the age at the time
of the crime.185
Unlike the New Jersey hearing for taint where
the burden is on the prosecution to support the
admissibility by clear and convincing evidence, in
Pennsylvania, the burden is on the moving party.186
The moving party has to show some evidence
of taint in order to trigger an investigation of

competency on the issue of taint.187 Once some
evidence of taint is shown, the alleging party has
the burden of production and persuasion to show
taint by clear and convincing evidence.188
In determining a showing of some evidence
of taint the court must consider the totality
of the circumstances surrounding the child's
allegations.189 Factors relevant to the totality of
the circumstances of a showing of taint include:
*	 the age of the child;
*	 the existence of a motive hostile to the
defendant on the part of the child's primary
custodian;
*	 the possibility that the child's primary
custodian is unusually likely to read abuse
into normal interaction;
*	 whether the child was subjected to repeated
interviews by various adults in positions of
authority;
*	 whether an interested adult was present
during the course of any interviews; and
*	 the existence of independent evidence
regarding the interview techniques
employed. 190
In Commonwealth v. Davis, the Superior Court
of Pennsylvania found the evidence sufficient to
establish taint of a minor's testimony.191 In Davis,
the defendant was charged with criminal sexual
contact with his two children. During one of the
events, the defendant was alleged to have laid in
his bed with his 9-year-old son reading the bible.192
The first interview of the victim, J.D., was the
most relevant for the taint issue.193 A detective
interviewed the victim without the presence of
a parent. Before any questions regarding the
crime were asked, the detective stated to the
victim, "All right. Relax, little guy. I know this is
tough. I know dad has done some things that
weren't appropriate and that's what we're
going to talk to you about. Okay?"194 During
the interview, when asked general questions
about anything his father had done that he
"didn't think was right," the victim did not state
any sexual conduct on part of the defendant.195
The Detective then asked pointed and leading
questions regarding the circumcision incident.196
During the interview, when the victim could not
respond to questions, the Detective re-asked the
questions introducing sexual vocabulary which had
not been part of the victim's initial recollection.197
Vol. 4, Issue 4

l

For The Defense

19



For the Defense - Vol. 4, Issue 4

Table of Contents for the Digital Edition of For the Defense - Vol. 4, Issue 4

Contents
For the Defense - Vol. 4, Issue 4 - 1
For the Defense - Vol. 4, Issue 4 - 2
For the Defense - Vol. 4, Issue 4 - Contents
For the Defense - Vol. 4, Issue 4 - 4
For the Defense - Vol. 4, Issue 4 - 5
For the Defense - Vol. 4, Issue 4 - 6
For the Defense - Vol. 4, Issue 4 - 7
For the Defense - Vol. 4, Issue 4 - 8
For the Defense - Vol. 4, Issue 4 - 9
For the Defense - Vol. 4, Issue 4 - 10
For the Defense - Vol. 4, Issue 4 - 11
For the Defense - Vol. 4, Issue 4 - 12
For the Defense - Vol. 4, Issue 4 - 13
For the Defense - Vol. 4, Issue 4 - 14
For the Defense - Vol. 4, Issue 4 - 15
For the Defense - Vol. 4, Issue 4 - 16
For the Defense - Vol. 4, Issue 4 - 17
For the Defense - Vol. 4, Issue 4 - 18
For the Defense - Vol. 4, Issue 4 - 19
For the Defense - Vol. 4, Issue 4 - 20
For the Defense - Vol. 4, Issue 4 - 21
For the Defense - Vol. 4, Issue 4 - 22
For the Defense - Vol. 4, Issue 4 - 23
For the Defense - Vol. 4, Issue 4 - 24
For the Defense - Vol. 4, Issue 4 - 25
For the Defense - Vol. 4, Issue 4 - 26
For the Defense - Vol. 4, Issue 4 - 27
For the Defense - Vol. 4, Issue 4 - 28
For the Defense - Vol. 4, Issue 4 - 29
For the Defense - Vol. 4, Issue 4 - 30
For the Defense - Vol. 4, Issue 4 - 31
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For the Defense - Vol. 4, Issue 4 - 33
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For the Defense - Vol. 4, Issue 4 - 58
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