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Excerpt from Chief Judge Lay’s dissent in United States v. Spotted War Bonnet, 882 F.2d 1360 (8th Cir. 1989)
This excerpt, from the dissent in the case described in your text, provides the actual transcript upon which the court based its competence decision.
. . .
Another grave concern in this case, and one which is interrelated to the suggestive and coercive interviewing techniques discussed above, relates to the competency of these very young children [Annie and Skylene] to testify in court.
In laying a foundation for Annie's testimony at trial, the prosecutor asked her a number of simple and basic questions. Annie failed to respond to many of the inquiries and had difficulty remembering certain events. For example:
Q. Last night when you talked to me did we tell you to say anything here today?
A. Yeah.
Q. What did we tell you to say?
A. [No response.]
Q. Can you remember?
A. No.
Q. You don't remember anything about last night?
A. No.
Q. Do you know what it is to tell a lie?
A. No.
* * * *
Q. Do you ever make up stories?
A. [No response.]
Q. Can you answer that one?
A. [No response.]
Q. Can you answer me, Annie?
A. No.
Q. Can you answer me?
A. Yes.
Q. Do you ever make up stories?
A. No.
Q. Are you going to make one up today?
A. No.
Q. Do you promise not to make up any stories today?
A. No.
Transcript at 45–46.
. . .
. . . These children were very young and demonstrated significant difficulty in remembering the events about which they were called to testify. In my judgment it was incumbent upon the trial court to conduct a voir dire in order to determine the children's competency under the circumstances existing in this case. . .
Annie demonstrated significant problems with short term memory. It was imperative that the trial court develop this issue to determine whether Annie was competent to testify in this case.
· Judge Weinstein has observed in his treatise on evidence that it is not enough for a child to demonstrate an understanding of the oath to testify truthfully. A child is not competent to testify unless he or she is also capable of accurate recollection of the events about which he or she is called upon to testify. 3 J. Weinstein & M. Berger, Weinstein's Evidence 601–32 to –35 (1988). Instead, the court treated this issue as a matter relating only to credibility and left it to be decided by the jury.
The record on its face demonstrates that Annie was not competent to testify. It was evident from her failure to answer many of the questions that she was very frightened. More significantly, she was unable to recall past events as demonstrated by her great difficulty remembering what had occurred the night before. Consequently, it is difficult to understand how she could accurately recall something that occurred several years before at a time when she was less than four years old. There is absolutely nothing in the record, brought out by either counsel or by the court, which in any way rehabilitates Annie's very apparent problems with memory and recall.
Indeed, Skylene (as well as Annie) had difficulty with recall of events and facts. For example, Skylene was very confused about her birth date. Transcript at 15, 30. However, far and away the most disturbing aspect of either child's testimony was that neither one demonstrated an independent recollection of the alleged sexual abuse by their father. Skylene and Annie could only recall the content of her discussions with Dr. Curran. Skylene gave the following answers at trial:
Q. * * * Are you remembering what you told Dr. Curran, is that what you're telling us about today?
A. Yes.
Q. So you are not remembering what dad did, you're remembering what you told Dr. Curran?
A. Yes.
Q. You can't remember what dad did, you can only remember what you told Dr. Curran?
A. Yes.
Transcript at 38. Annie also demonstrated an absence of independent recollection of the events at issue in this case:
Q. How long ago did you talk to Dr. Curran?
A. [No response.]
Q. A long time ago?
A. Yes.
* * *
Q. Are you trying to remember what you said to Dr. Curran?
A. Yes.
Q. Is it hard to remember everything you said to Dr. Curran?
A. Yes.
Q. Can you remember things that happened a long time ago or are you trying to remember things you said to Dr. Curran?
A. [No response.]
Q. Are you trying to remember what you said to Dr. Curran?
A. Yes.
Transcript at 77. Neither child could remember the actual events themselves. This is very troubling considering the fact that the children's testimony is the only “direct” evidence offered against the defendant in this case. . . . .
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