In general

• Every person is competent to be a witness except as otherwise provided in these rules or by statute.

Evid. R. 601

• Rule 601's failure to presumptively exclude children does not prohibit special inquiry into their competency prior to testifying when the issue is raised by a defendant. . . . It is within the sound discretion of the trial court to determine whether a child is competent to testify based upon the judge's observation of the child's demeanor and responses to questions posed to her by counsel and the court, and a trial court's determination that a child is competent will only be reversed for an abuse of discretion.

Harrington v. State, 755 N.E.2d 1176, 1180-81 (Ind. Ct. App. 2001) (internal citations omitted)

• A child's competency to testify at trial is established by demonstrating that he or she

(1) understands the difference between telling a lie and telling the truth,

(2) knows he or she is under a compulsion to tell the truth, and

(3) knows what a true statement actually is.

Kien v. State, 866 N.E.2d 377, 385 (Ind. Ct. App. 2007)

• It is within the sound discretion of the trial court to determine whether the child is competent to testify.

Newsome v. State, 686 N.E.2d 868 (Ind. Ct. App. 1997)

• A trial court’s determination that a child is competent will only be reversed for an abuse of discretion.

Newsome v. State, 686 N.E.2d 868, 873 (Ind. Ct. App. 1997)

• Whether a witness is competent and whether a witness is credible are different questions, the former for the trial court and the latter for the jury.

Archer v. State, 996 N.E.2d 341, 347 (Ind. Ct. App. 2013), trans. denied

Procedural issues

• When the competency to testify is placed in issue it is the duty of the trial court to schedule a hearing in order to properly determine whether the witness is in fact competent to testify. . . The trial court has wide discretion in disposing of petitions of this kind and will be reversed only if it has clearly abused that discretion.

Gosnell v. State, 376 N.E.2d 471, 472 (Ind. 1978)

• The voir dire included questions put by counsel as well as those by the court. There is no reason in law or logic why the trial court should consider only the answers to its own questions. The nature of the question is determinative, not the author of the question. As long as the question seeks to determine to what extent the child understands ‘the nature and obligation of an oath’ and it occurs as an integral part of the court's inquiry prior to a ruling on the competency of the child, it is a proper part of the voir dire.

Martin v. State, 244 N.E.2d 100, 103 (Ind. 1969), reh’g denied

• The trial court was in error in refusing to permit defense counsel the opportunity to question the child regarding her understanding of truth or to do so himself.

Russell v. State, 540 N.E.2d 1222, 1225 (Ind. 1989)

• This Court has acknowledged that the trial court has wide discretion to allow leading questions and has approved the use of such questions to procure the testimony of young, inexperienced and frightened witnesses. Further, this Court has approved the use of hypotheticals as a method of qualifying a child witness . . . .

Phillips v. State, 550 N.E.2d 1290, 1298 (Ind. 1990), reh’g denied, abrogated on other grounds by Fry v. State, 990 N.E.2d 429 (Ind. 2013)

• Whether a child has ever indulged in a factual fabrication under everyday circumstances is neither relevant nor revealing as to such child's truthfulness as a sworn witness in a court proceeding. Rather, such questions may be characterized as tending to unreasonably harass, annoy or embarrass a witness, and may be properly excluded by the trial court in its discretion.

Smith v. State, 372 N.E.2d 511, 513 (Ind. Ct. App. 1978), reh’g denied

• [Lay and expert opinion testimony is admissible to show competence of child witness--as long as the witness doesn’t give an opinion as to the truthfulness of a child’s testimony]

Although it is entirely proper for the expert witness to state her opinion as to the general competence of the child witness and the child witness's ability to understand the subject, it was entirely improper for that same witness to review each item of the child's testimony and to specifically vouch for the truthfulness of such testimony. Such testimony was an invasion of the province of the jury in determining what weight they would place upon the child's testimony.

Head v. State, 519 N.E.2d 151, 153 (Ind. 1988)

Findings of competence

• Even under the old rule, which excluded witnesses under the age of 10, the inquiry should focus on the witness’s age at the time of his testimony and not at the time of the incident.

See Patterson v. State, 495 N.E.2d 714, 717 (Ind. 1986)(emphasis added)

• That a child understands he will be punished for not telling the truth can be sufficient for a finding of competency.

• During the competency hearing, Tony Strong was questioned by the prosecutor, by defense counsel, and by the trial judge. Upon the issue of the child's compulsion to tell the truth, there was evidence that Tony knew that he was supposed to tell the truth in court, that he would get in trouble if he didn't, that it was important to tell the truth in court, and that the important things being decided required that he tell exactly what happened in the past. The trial court's competency determination was not an abuse of discretion.

Strong v. State, 538 N.E.2d 924, 927 (Ind. 1989)

• While [a 7-year-old witness] clearly did not understand the meaning of the word “oath,” a child does not need to be able to define that term to be a competent witness.

LeMaster v. State, 498 N.E.2d 1185, 1188 (Ind. 1986)

• To be qualified to testify, a child need not be a model witness, have an infallible memory, or refrain from making inconsistent statements.

Casselman v. State, 582 N.E.2d 432, 435 (Ind. Ct. App. 1991)

• Before a child’s competency may be determined, the court must show the “child witness understood the difference between telling the truth and telling a lie, knew he was under compulsion to tell the truth, and knew what a true statement actually was.”

Casselman v. State, 582 N.E.2d 432, 435 (Ind. Ct. App. 1991)