(Code 1981, §24-6-603, enacted by Ga. L. 2011, p. 99, § 2/HB 24; Ga. L. 2013, p. 294, § 4-41/HB 242.)
The 2013 amendment, effective January 1, 2014, substituted "dependency" for "deprivation" near the middle of subsection (b). See editor's note for applicability.
Cross references.- Testimony as to child's description of sexual contact or physical abuse, § 24-8-820.
Oath or affirmation to testify truthfully, Fed. R. Evid. 603.
Editor's notes.- Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."
Law reviews.- For article, "The Need for a Special Exception to the Hearsay Rule in Child Sexual Abuse Cases," see 21 Ga. St. B.J. 50 (1984). For article, "An Analysis of Georgia's Proposed Rules of Evidence," see 26 Ga. St. B.J. 173 (1990). For note, "The Georgia Child Hearsay Statute, and the Sixth Amendment: Is There a Confrontation?," see 10 Ga. St. U.L. Rev. 367 (1994). For comment discussing the effect of mental unsoundness on the competency of witnesses, in light of O'Shea v. Jewel Tea Co., 233 F.2d 530 (9th Cir. 1956), see 19 Ga. B.J. 533 (1957). For comment on Western & A.R.R. v. Hart, 95 Ga. App. 810, 99 S.E.2d 302 (1957), holding that the accuracy of the opinion of a 12 year old as to the speed of a train is a matter for the jury to decide and its admission into evidence was not error, see 20 Ga. B.J. 395 (1958). For comment on Bacon v. State, 222 Ga. 151, 149 S.E.2d 111 (1966), see 18 Mercer L. Rev. 506 (1967).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1868, § 3800, former Code 1873, § 3856, former Code 1882, § 3856, former Civil Code 1895, § 5273, former Penal Code 1895, § 1012, former Civil Code 1910, § 5862, former Penal Code 1910, § 1038, former Code 1933, §§ 38-1607, 38-1701, and former O.C.G.A. §§ 24-9-5 and24-9-60 are included in the annotations for this Code section.
Oath or affirmation required of all.
- In this state, an oath or affirmation is required of all witnesses, and unsworn statements are not treated as amounting to evidence, except in specified cases from necessity. Huiet v. Schwob Mfg. Co., 196 Ga. 855, 27 S.E.2d 743 (1943) (decided under former Code 1933, § 38-1701).
Framing oath according to religious faith.
- It was not error to accept testimony of a witness who declined to take an oath, saying: "Well, I'm not going to swear but I promise to tell you the truth." Chapman v. State, 257 Ga. 19, 354 S.E.2d 149 (1987) (decided under former O.C.G.A. § 24-9-60).
Objection to lack of oath or affirmation.
- When a party, without objection, allows a witness to go on the stand and testify against the party without being first sworn, such party cannot, after verdict against the party, urge in this court the failure of the witness to take the oath as a ground for rejecting the brief of the evidence, which has the approval of the trial judge, since such objection was not raised in the court below. Neidlinger v. Mobley, 76 Ga. App. 599, 46 S.E.2d 747 (1948) (decided under former Code 1933, § 38-1701).
When a party, without objection, allows a witness to testify against the party without first being sworn, that party, through the party's failure to object, has waived the requirements of an oath. Belcher v. State, 173 Ga. App. 509, 326 S.E.2d 857 (1985) (decided under former O.C.G.A. § 24-9-60).
Former Georgia witness competency statutes presented a reasonable requirement regarding the minimal level of understanding for people participating in one of the most important functions of government and did not violate the equal protection clause. Ambles v. State, 259 Ga. 406, 383 S.E.2d 555 (1989) (decided under former O.C.G.A. § 24-9-5).
State had standing to challenge the former Georgia witness competency statutes. Ambles v. State, 259 Ga. 406, 383 S.E.2d 555 (1989) (decided under former O.C.G.A. § 24-9-5).
No hearing unless specific ground of incompetency alleged.
- When, before the defendant's first trial, the defendant made the defendant's "motion to exclude the testimony of the victim on grounds of incompetency . . . pursuant to §§ 24-9-5 &24-9-7 [now repealed]" in the broadest of terms without distinctly alleging what category of "persons who do not have the use of reason" the victim fit into, and at no point in the defendant's first or second trials did the defendant raise a distinct objection to the competency of the witness, but simply requested a hearing without specifying any valid ground of incompetency as applied to the facts and circumstances of the case, the court did not err in refusing to conduct an examination. In addition to the court's observation of the victim and the victim's testimony during the course of the first trial, no applicable specific ground of incompetency was alleged. Webb v. State, 187 Ga. App. 348, 370 S.E.2d 204 (1988) (decided under former O.C.G.A. § 24-9-5).
Nothing in the record to indicate witness could not understand trial oath.
- Ruling that a witness was incompetent to testify under former O.C.G.A. § 24-9-5(a) (see now O.C.G.A. §§ 24-6-601 and24-6-603) failed since there was absolutely nothing in the record to demonstrate that the witness could not understand the nature of the trial oath simply because the witness was originally from Somalia and spoke in halting English. Trueblood v. State, 248 Ga. App. 78, 545 S.E.2d 628 (2001) (decided under former O.C.G.A. § 24-9-5).
Role of Court
Trial court determines competency of a witness and jury decides credibility. Bearden v. State, 159 Ga. App. 892, 285 S.E.2d 606 (1981) (decided under former O.C.G.A. § 24-9-5).
Children
Constitutionality.
- Former subsection (b) of O.C.G.A. § 24-9-5 (see now O.C.G.A. §§ 24-6-601 and24-6-603) did not violate due process; it was not fundamentally unfair to require one accused of child molestation to face one's accuser, even if the accuser was unable to articulate the meaning of an oath, and the defendant had the opportunity to cross-examine the child witness, and test the child's credibility before the jury. Sims v. State, 260 Ga. 782, 399 S.E.2d 924 (1991) (decided under former O.C.G.A. § 24-9-5).
Subsection (b) of former O.C.G.A. § 24-9-5 (see now O.C.G.A. §§ 24-6-601 and24-6-603) applied equally to all those accused of child molestation, and therefore did not violate the equal protection clause of the federal constitution. Sims v. State, 260 Ga. 782, 399 S.E.2d 924 (1991) (decided under former O.C.G.A. § 24-9-5).
Child "available to testify" in former O.C.G.A. § 24-3-16 (see now O.C.G.A. § 24-8-820) meant one competent to testify under former O.C.G.A. § 24-9-5 (see now O.C.G.A. §§ 24-6-601 and24-6-603). For offenses occurring before April 19, 1989, including child molestation, a child incompetent as a witness was not available to testify and any out-of-court statements were not rendered admissible by former § 24-3-16. Hunnicutt v. State, 194 Ga. App. 714, 391 S.E.2d 790 (1990) (decided under former O.C.G.A. § 24-9-5).
Former O.C.G.A. §§ 24-9-5 and24-3-16 (see now O.C.G.A. §§ 24-6-601,24-6-603, and24-8-820) must be construed together. Bright v. State, 197 Ga. App. 784, 400 S.E.2d 18 (1990) (decided under former O.C.G.A. § 24-9-5); McGarity v. State, 212 Ga. App. 17, 440 S.E.2d 695 (1994);(decided under former O.C.G.A. § 24-9-5).
Child was considered "available to testify" under former O.C.G.A. § 24-3-16 (see now O.C.G.A. § 24-8-820) only if the child was "competent" to testify within the meaning of former O.C.G.A. § 24-9-5 (see now O.C.G.A. §§ 24-6-601 and24-6-603). Shaver v. State, 199 Ga. App. 428, 405 S.E.2d 281, cert. denied, 199 Ga. App. 907, 405 S.E.2d 281 (1991) (decided under former O.C.G.A. § 24-9-5).
Former O.C.G.A. § 24-9-5 (see now O.C.G.A. §§ 24-6-601 and24-6-603) did not expand the circumstances under which hearsay statements of a child could be admitted in evidence. Thornton v. State, 264 Ga. 563, 449 S.E.2d 98 (1994) (decided under former O.C.G.A. § 24-9-5).
Competency of children to testify in a divorce action could be established only by demonstrating that the children understood the nature of an oath as required by subsection (a) of former O.C.G.A. § 24-9-5 (see now O.C.G.A. §§ 24-6-601 and24-6-603). Woodruff v. Woodruff, 272 Ga. 485, 531 S.E.2d 714 (2000) (decided under former O.C.G.A. § 24-9-5).
No required showing child competent to testify.
- For offenses involving child victims occurring after April 19, 1989, a determination that the child victim is competent to testify was not necessary; a child witness was "available" for purposes of the Child Hearsay Statute, former O.C.G.A. § 24-3-16 (see now O.C.G.A. § 24-8-820), as long as the child was physically available to appear at trial. Gibby v. State, 213 Ga. App. 20, 443 S.E.2d 852 (1994) (decided under former O.C.G.A. § 24-9-5).
Statement admissible regardless of child's age or degree of comprehension.
- Out-of-court statements of a victim of child molestation are admissible whenever the victim is available to appear at trial, whether or not the child is capable of understanding the nature of an oath and thus regardless of age or degree of comprehension. Lang v. State, 201 Ga. App. 836, 412 S.E.2d 866 (1991) (decided under former O.C.G.A. § 24-9-5).
Oath not required when child did not comprehend oath's nature.
- Under subsection (b) of former O.C.G.A. § 24-9-5 (see now O.C.G.A. §§ 24-6-601 and24-6-603), which provided that in certain limited categories of cases a child was deemed legally competent to testify, the prerequisite administration of the oath otherwise called for by former O.C.G.A. § 24-9-60 had been obviated when the child did not comprehend the oath's nature. The child simply became an unsworn witness, made so because incapable of taking an oath. Bright v. State, 197 Ga. App. 784, 400 S.E.2d 18 (1990) (decided under former O.C.G.A. §§ 24-9-5 and24-9-60).
Children who did not understand nature of oath were incompetent.
- Porter v. State, 237 Ga. 580, 229 S.E.2d 384 (1976), cert. denied, 430 U.S. 956, 97 S. Ct. 1603, 51 L. Ed. 2d 806 (1977) (decided under former Code 1933, § 38-1607).
Mentally retarded children subject to competency challenge.
- Former O.C.G.A. § 24-9-5 (see now O.C.G.A. §§ 24-6-601 and24-6-603) was construed as subjecting children to a competency challenge based on the allegation that children did not understand the nature of an oath. Children, like adults, were also subject to a competency challenge on the ground that the children do not have the use of reason because of mental retardation. Sizemore v. State, 262 Ga. 214, 416 S.E.2d 500 (1992) (decided under former O.C.G.A. § 24-9-5).
Determining factor in deciding competency of a witness to testify was not age but rather the ability to understand the nature of an oath. Horton v. State, 35 Ga. App. 493, 133 S.E. 647 (1926) (decided under former Penal Code 1910, § 1038); Young v. State, 72 Ga. App. 811, 35 S.E.2d 321 (1945);(decided under former Code 1933, § 38-1607).
Standard of intelligence required to qualify child as a witness is not that the child be able to define the meaning of an oath, nor that the child understand the process under which the oath is administered, but rather that the child know and appreciate the fact that as a witness the child assumes a solemn and binding obligation to tell the truth relative to the case and concerning such matters as the child may be interrogated on, and that if the child violates the obligation the child is subject to be punished by the court. Jones v. State, 219 Ga. 245, 132 S.E.2d 648 (1963) (decided under former Code 1933, § 38-1607); Smith v. State, 247 Ga. 511, 277 S.E.2d 53 (1981); Alvin v. State, 253 Ga. 740, 325 S.E.2d 143 (1985), overruled on other grounds by Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530, 2006 Ga. LEXIS 840 (2006) (decided under former Code 1933, § 38-1607);(decided under former O.C.G.A. § 24-9-5).
Knowledge of nature of oath.
- It is enough if children know the mere nature of an oath, regardless of knowledge of the oath's effects, and whether or not the children have such knowledge is to be determined by the court on a preliminary examination. Peterson v. State, 47 Ga. 524, later appeal, 50 Ga. 142 (1873) (decided under former Code 1868, § 3800); Moore v. State, 79 Ga. 498, 5 S.E. 51 (1887); Young v. State, 122 Ga. 725, 50 S.E. 996 (1905) (decided under former Code 1882, § 3856); Beebee v. State, 124 Ga. 775, 53 S.E. 99 (1906); Young v. State, 125 Ga. 584, 54 S.E. 82 (1906) (decided under former Penal Code 1895, § 1012); Richardson v. State, 141 Ga. 782, 82 S.E. 134 (1914); Reece v. State, 155 Ga. 350, 116 S.E. 631 (1923) (decided under former Penal Code 1895, § 1012);(decided under former Penal Code 1895, § 1012);(decided under former Penal Code 1910, § 1038);(decided under former Penal Code 1910, § 1038).
Challenge for "understanding truth."
- Understanding the truth was one element of understanding the nature of an oath, and as such, subsection (b) of former O.C.G.A. § 24-9-5 (see now O.C.G.A. §§ 24-6-601 and24-6-603) excepted a child from a competency challenge brought on such basis. Norton v. State, 263 Ga. 448, 435 S.E.2d 30 (1993) (decided under former O.C.G.A. § 24-9-5); Jeffries v. State, 272 Ga. 510, 530 S.E.2d 714 (2000), cert. denied, 531 U.S. 1116, 121 S. Ct. 864, 148 L. Ed. 2d 777 (2001);(decided under former O.C.G.A. § 24-9-5).
Child should not be held competent when the child does not understand nature of oath.
- While questions of this character are to be left largely to the discretion of the trial judge, the judge should not hold a child-witness competent when it does not appear that such witness sufficiently understands the nature and obligation of an oath to testify in the case. Pace v. State, 157 Ga. App. 442, 278 S.E.2d 90 (1981) (decided under former Code 1933, § 38-1607).
It was not necessary for child to understand meaning of the word "oath." Pace v. State, 157 Ga. App. 442, 278 S.E.2d 90 (1981) (decided under former Code 1933, § 38-1607); Raborn v. State, 192 Ga. App. 99, 383 S.E.2d 650 (1989);(decided under former O.C.G.A. § 24-9-5).
It is not necessary that a child understand the penalties for perjury in order for the trial court to rule the child competent to testify. Hill v. State, 251 Ga. 430, 306 S.E.2d 653 (1983) (decided under former O.C.G.A. § 24-9-5).
Age not determinative of competency as a witness. Johnson v. State, 146 Ga. 190, 91 S.E. 42 (1916) (decided under former Penal Code 1910, § 1038).
Capacity to commit crime not determinative of competency as a witness. Johnson v. State, 61 Ga. 35 (1878) (decided under former Code 1873, § 3856).
Testimony of children sufficiently reliable.
- Record contained sufficient evidence of indicia of reliability when the two girls, who were 12 and 10 years old, were interviewed separately on at least two different occasions, their statements were consistent with each other over time, the state's witnesses were all professionals trained in interviewing victims of child abuse without asking leading questions, and all three considered the girls credible. Gibby v. State, 213 Ga. App. 20, 443 S.E.2d 852 (1994) (decided under former O.C.G.A. § 24-9-5).
Failure of trial court to conduct examination on the issue of whether the witness understands the nature of an oath is reversible error when the witness is under 14 years of age. Bennett v. State, 145 Ga. App. 56, 243 S.E.2d 265 (1978) (decided under former Code 1933, § 38-1607).
Examination of child sufficient.
- When the principal state's witness against a defendant is a child and on examination by the court to determine the child's competency to testify stated the child knew what it meant to tell a lie and that the child was supposed to tell the truth, such examination was sufficient to determine whether the child understood the nature of an oath as required by law. Turpin v. State, 121 Ga. App. 294, 173 S.E.2d 455 (1970) (decided under former Code 1933, § 38-1607); Decker v. State, 139 Ga. App. 707, 229 S.E.2d 520 (1976);(decided under former Code 1933, § 38-1607).
Since each child testified that the child knew the meaning of an oath, the child's belief in God, that it was wrong to lie, and that the child would tell the truth, the fact-finder and the district attorney could decide such statements were sufficient to establish the child understood the nature of the child's oath. Bearden v. State, 159 Ga. App. 892, 285 S.E.2d 606 (1981) (decided under former Code 1933, § 38-1607).
When the record revealed that, during the trial the prosecuting attorney asked the victim, nearly nine years old, a series of questions, the answers to which clearly demonstrated that the child understood both the difference between truth and falsehood and the importance of telling only the truth, and the record further revealed that the defendant's counsel failed to question the witness following the examination by the state, or to object at that time on competency grounds, counsel's conduct amounted to a waiver of the right to raise the issue of the witness's competency on appeal. Wood v. State, 195 Ga. App. 424, 393 S.E.2d 720 (1990) (decided under former O.C.G.A. § 24-9-5).
Since the trial court examined each of three juvenile witnesses at the beginning of his or her testimony to ascertain that the child knew the difference between telling the truth and telling a lie and understood why telling the truth was better than telling a falsehood, and obtained from each witness a promise to tell the truth in response to questions from counsel, it was not an abuse of discretion to allow the children to testify. Carter v. State, 195 Ga. App. 489, 393 S.E.2d 746 (1990) (decided under former O.C.G.A. § 24-9-5).
Since the 15-year-old victim of a sexual abuse testified at trial that the victim knew it was bad to tell a lie, that the victim would be punished if the victim did so and that the victim also understood the importance of telling the truth, the trial court did not abuse the court's discretion in refusing to strike the victim's testimony. Lott v. State, 206 Ga. App. 886, 426 S.E.2d 667 (1992) (decided under former O.C.G.A. § 24-9-5).
Defense counsel was not ineffective for falling to challenge the competency of child witnesses because both victims were asked to demonstrate their understanding of the difference between the truth and a lie and both stated that they would tell the truth; the defendant gave no basis upon which, had defense counsel challenged their competency, the trial court would have ruled the children incompetent to testify, and defense counsel was not required to make a meritless objection. Vaughn v. State, 307 Ga. App. 754, 706 S.E.2d 137 (2011) (decided under former O.C.G.A. § 24-9-5).
Presumption not conclusive.
- Child over 14 is presumed competent to testify, but to hold that this presumption is so conclusive that the court is inhibited from examining the witness on this point unless objection has been specifically made on one of the grounds stated in this statute would be to circumscribe the authority of the court to elicit the truth, and would seriously impede the administration of justice. Schamroth v. State, 84 Ga. App. 580, 66 S.E.2d 413 (1951) (decided under former Code 1933, § 38-1607).
Trial court determines if child competent.
- It is left to sound discretion of trial court to determine whether or not a child of tender years is a competent witness; and when the court examines a child as to the child's understanding of the nature of an oath and decides that the child is competent to testify, this court will not interfere, if it does not appear that such discretion has been manifestly abused. Gordon v. State, 186 Ga. 615, 198 S.E. 678 (1938) (decided under former Code 1933, § 38-1607); Young v. State, 72 Ga. App. 811, 35 S.E.2d 321 (1945); Russell v. State, 83 Ga. App. 841, 65 S.E.2d 264 (1951) (decided under former Code 1933, § 38-1607); Middleton v. State, 194 Ga. App. 815, 392 S.E.2d 293 (1990);(decided under former Code 1933, § 38-1607);(decided under former O.C.G.A. § 24-9-5).
Competency of a child as a witness is within the sound discretion of the court, and the court's ruling will not be disturbed unless there is a manifest abuse of discretion. Adams v. State, 166 Ga. App. 807, 305 S.E.2d 651 (1983) (decided under former O.C.G.A. § 24-9-5).
Trial court had sound discretion to determine whether a child was competent to testify. Hill v. State, 251 Ga. 430, 306 S.E.2d 653 (1983) (decided under former O.C.G.A. § 24-9-5).
Once a child's competency has been thoroughly tested in court, it is within the sound discretion of the trial court whether or not to rule the child competent to testify as a witness. Pope v. State, 167 Ga. App. 328, 306 S.E.2d 326 (1983) (decided under former O.C.G.A. § 24-9-5).
Testimony admitted erroneously.
- When an examination by the court shows that the child has no knowledge of the nature of an oath, it is error to permit the child to testify over proper objection. Horton v. State, 35 Ga. App. 493, 133 S.E. 647 (1926) (decided under former Penal Code 1910, § 1038).
Infant's admission against interest.
- While the decision of whether a child, or "infant," is competent to testify is one made in the sound discretion of the judge, based upon the capacity of the child to know the nature of the oath rather than upon the child's years, the admission in evidence of an infant's admission against interest must be very carefully scanned because of the child's immaturity and the deleterious effect such admissions would have. Howard v. Hall, 112 Ga. App. 247, 145 S.E.2d 70 (1965) (decided under former Code 1933, §§ 38-1601, 38-1607, 38-1610, 38-1611, 38-1612).
No error in refusing to give statute in charge.
- Since the question of the competency of a victim's ten-year-old brother was one of law for the trial court to determine, the court did not err in refusing to give in charge to the jury the requested language contained in former O.C.G.A. § 24-9-5 (see now O.C.G.A. §§ 24-6-601 and24-6-603) which was relevant only to that issue. Dennis v. State, 158 Ga. App. 142, 279 S.E.2d 275 (1981) (decided under former Code 1933, § 38-1607).
Inconsistency in a child's testimony did not render the child incompetent to testify, but went to the child's credibility as a witness. Pendergrass v. State, 168 Ga. App. 190, 308 S.E.2d 585 (1983) (decided under former O.C.G.A. § 24-9-5).
When a four-year-old victim expressed the victim's understanding of the difference between the truth and a lie and of the importance of telling the truth, expressed a fear of punishment if the victim did not tell the truth, and stated that the victim would tell the truth, there was no abuse of the trial court's discretion in the court's determination that the child was competent to testify, even though there may have been some inconsistency in the child's responses. Hutton v. State, 192 Ga. App. 239, 384 S.E.2d 446 (1989) (decided under former O.C.G.A. § 24-9-5).
Child witness's unresponsiveness to a number of questions as put by the defendant did not constitute a deprivation of defendant's constitutional confrontation right so as to require that the witness's out-of-court statements be stricken since the defendant was not denied the right to a thorough and sifting cross-examination of a witness who appeared to answer as well as the witness was capable of answering. Bright v. State, 197 Ga. App. 784, 400 S.E.2d 18 (1990) (decided under former O.C.G.A. § 24-9-5).
Defendant's right to confront and cross-examine a child witness was protected in spite of the child's unresponsiveness on cross-examination as to the merits of the case brought against the defendant; the child's unresponsiveness did not preclude the defendant from thoroughly cross-examining the child as to the veracity of hearsay statements made against the defendant's interests by the child's parents and the caseworker. Byrd v. State, 204 Ga. App. 252, 419 S.E.2d 111 (1992) (decided under former O.C.G.A. § 24-9-5).
Trial court did not abuse the court's discretion in ruling competent to testify children who witnessed a crime since the children testified that to tell the truth means "to tell what really happened" as opposed to "making something up," and also testified that the children understand the significance of their oath to tell the truth while testifying in court and that if the children lied they would "get in big trouble." Hill v. State, 251 Ga. 430, 306 S.E.2d 653 (1983) (decided under former O.C.G.A. § 24-9-5).
When a child was examined at length by the court and by counsel, and the court found that the child was inattentive and not responsive, and also found that there were inconsistencies in the testimony of the child, there was no abuse of discretion in the court refusing to allow the child to testify. Batton v. State, 260 Ga. 127, 391 S.E.2d 914 (1990) (decided under former O.C.G.A. § 24-9-5).
After two videotapes of interviews with a child were showed to a jury, the child was called as the court's witness and testified similarly, and the child was examined by all parties, there was no abuse of the court's discretion in finding the child qualified to testify, nor in admitting the videotapes. Frazier v. State, 195 Ga. App. 109, 393 S.E.2d 262 (1990)(Trial held prior to April 19, 1989).(decided under former O.C.G.A. § 24-9-5).
For illustrations of preliminary examination to test a child's competency, see Minton v. State, 99 Ga. 254, 25 S.E. 626 (1896) (decided under former Penal Code 1895, § 1012); Gaines v. State, 99 Ga. 703, 26 S.E. 760 (1896); Miller v. State, 109 Ga. 512, 35 S.E. 152 (1900) (decided under former Penal Code 1895, § 1012);(decided under former Penal Code 1895, § 1012).
Children held competent in the following cases.
- See Johnson v. State, 76 Ga. 76 (1885) (child of six) (decided under former Code 1882, § 3856); Marshall v. State, 74 Ga. 26 (1884) (child of seven) (decided under former Code 1882, § 3856); Minton v. State, 99 Ga. 254, 25 S.E. 626 (1896) (child of eight) (decided under former Penal Code 1895, § 1012); Hicks v. State, 105 Ga. 627, 31 S.E. 579 (1898) (child of ten) (decided under former Penal Code 1895, § 1012); Central of Ga. Ry. v. Skandamis, 40 Ga. App. 78, 149 S.E. 60 (1929) (child of twelve) (decided under former Civil Code 1910, § 5862); Thurmond v. State, 220 Ga. 227, 138 S.E.2d 372 (1964) (child of eight) (decided under former Code 1933, § 38-1607); Perryman v. State, 244 Ga. 720, 261 S.E.2d 588 (1979) (victim's nine-year-old daughter) (decided under former Code 1933, § 38-1607); Brown v. State, 167 Ga. App. 245, 306 S.E.2d 361 (1983) (child of seven) (decided under former O.C.G.A. § 24-9-5); Aleywine v. State, 169 Ga. App. 805, 315 S.E.2d 35 (1984) (child of eight) (decided under former O.C.G.A. § 24-9-5); Westbrook v. State, 186 Ga. App. 493, 368 S.E.2d 131, cert. denied, 186 Ga. App. 919, 368 S.E.2d 131 (1988) (child of five) (decided under former O.C.G.A. § 24-9-5); Syfrett v. State, 210 Ga. App. 185, 435 S.E.2d 470 (1993) (child of nine) (decided under former O.C.G.A. § 24-9-5).
Testimony of competent child, not formerly sworn, admitted.
- Testimony of a child witness who, in response to questioning by the state, demonstrated that the child was aware that the child was under an obligation to tell the truth and could have been punished for not doing so, and who was shown to be competent, was properly admitted although the child was not sworn, when, after the preliminary questioning by the state, the defendant failed to request that the child be formally sworn and did not object to the child's testifying. Hilson v. State, 204 Ga. App. 200, 418 S.E.2d 784 (1992) (decided under former O.C.G.A. § 24-9-5).
Parent's objection to competency of child rejected.
- In an action wherein two parents were found to have deprived an adopted child due to one parent's sexual abuse of the child and the other parent's failure to protect the child from such abuse, the juvenile court did not abuse the court's discretion by allowing the testimony of a forensic interviewer regarding statements made by the child as the Child Hearsay Statute, former O.C.G.A. § 24-3-16 (see now O.C.G.A. § 24-8-820), permitted such testimony, despite the parents' challenges to the competency of the child. In the Interest of B.H., 295 Ga. App. 297, 671 S.E.2d 303 (2008) (decided under former O.C.G.A. § 24-9-5).
Jury judges child's credibility.
- Thrust of the child witness statute, former O.C.G.A. § 24-3-16 (see now O.C.G.A. § 24-8-820), was to allow the jury, which must be convinced of guilt beyond a reasonable doubt, to judge the credibility of a child's accusations. If a child, who had reported child molestation to an adult permitted to testify to the out-of-court statement at trial, was incapable of reiterating the accusation at trial or was unresponsive or evasive during cross-examination, the jury must decide the child's credibility. Jones v. State, 200 Ga. App. 103, 407 S.E.2d 85 (1991) (decided under former O.C.G.A. § 24-9-5).
OPINIONS OF THE ATTORNEY GENERAL
Editor's notes.
- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 38-1701 are included in the annotations under this Code section.
Affirmations.- Former statute although dealing with oaths as given in the trial of cases, nevertheless substantiated the belief that the word "swear" could be stricken and the word "affirm" used in loyalty oaths. 1948-49 Op. Att'y Gen. p. 565 (decided under former Code 1933, § 38-1701).
RESEARCH REFERENCES
Am. Jur. 2d.
- 81 Am. Jur. 2d, Witnesses, §§ 78 et seq., 82, 86 et seq.
Qualifying Child Witness to Testify, 35 POF2d 665.
C.J.S.- 98 C.J.S. (Rev), Witnesses, §§ 92, 102, 108 et seq., 124 et seq., 132 et seq., 215, 216, 238, 245, 270, 290, 447.
ALR.
- Mental condition as affecting competency of witness, 26 A.L.R. 1491; 148 A.L.R. 1140.
Infant's admissions out of court as evidence in civil cases, 89 A.L.R. 708; 12 A.L.R.3d 1051.
Refusal to permit an otherwise competent witness to take witness stand because of mental or physical condition not amounting to unsoundness of mind, 97 A.L.R. 893.
Competency of child as witness as affected by fact that his prosecution for perjury is prohibited, 159 A.L.R. 1102.
Testimony of children as to grounds of divorce of their parents, 2 A.L.R.2d 1329.
Admissibility of deposition of child of tender years, 30 A.L.R.2d 771.
New trial in criminal case because of newly discovered evidence as to sanity of prosecution witness, 49 A.L.R.2d 1247.
Competency of young child as witness in civil case, 81 A.L.R.2d 386.
Declarant's age as affecting admissibility as res gestae, 83 A.L.R.2d 1368; 15 A.L.R.4th 1043.
Cross-examination of witness as to his mental state or condition, to impeach competency or credibility, 44 A.L.R.3d 1203.
Witnesses: child competency statutes, 60 A.L.R.4th 369.
Validity, construction, and application of child hearsay statutes, 71 A.L.R.5th 637.
Sufficiency, under rules 603 and 604 of Federal Rules of Evidence, of wording of oath, affirmation, or other declaration made by witness, or proposed witness or by court, relating to truthfulness of witness's testimony, 127 A.L.R. Fed. 207.