Case Study 1

Overview — Based on: Board v. Commonwealth, 2020 KY. App. Unpub. LEXIS 38 (2020).

The Commonwealth charged and convicted the defendant, Abigail Board, of one count of knowing exploitation of an adult over $300 and one count of theft by the unlawful taking of over $500. The victim, Bradley, was an adult with some mental disabilities that made him eligible to receive monthly benefits from the Social Security Administration.

Due to his disability, the government required him to have a representative payee to receive and handle the benefits that accrued on his behalf. Board had been selected to receive this money, which was deposited into her private checking account. The defendant did not segregate Bradley’s income from her own. Instead, she commingled his funds with her disability check and her daughter’s paycheck all in the same account. Board used Bradley’s money from the account to pay his rent and utilities, as well as buy his groceries and clothes. Eventually, Bradley moved into Board’s place of residence, and Board used his money for his expenses and for half of the rent, but did not give him all of his money, according to the allegation.

Later, friends of Bradley came to believe that Bradley was being cheated out of some of the Social Security money to which he was entitled, and they involved the police. A change of representative was made so that Bradley received the benefits to which he was entitled. A police investigation revealed that Board had been skimming money from the funds deposited for Bradley into her checking account. Based on a review of the records, a detective concluded that Board misappropriated approximately $27,000. She was brought to trial and convicted of theft and exploitation of an adult.

At the trial, Bradley was offered as a prosecution witness. Upon Board’s objection that Bradley should be excluded from testifying based on his lack of competency, the trial court conducted a hearing to determine his competency. One of Board’s appeal grounds involved her allegation that the trial court abused its discretion in finding Bradley competent to testify.

The trial court found Bradley met the minimum qualifications for competency set forth in Kentucky Rule of Evidence 601. The rule considers everyone competent unless the rules or law provide otherwise. Board argued that due to Bradley’s limitations, the trial court should have expanded KRE 601’s list of qualifications. The trial court disagreed with Board’s contentions, noting that the determination of a witness’s competency to testify falls within the discretion of the trial court. Bradley was permitted to testify as a competent witness.

Case Study 2

Overview — Based on: State v. Armstrong, 2011 Ohio 6265, 2011 Ohio App. LEXIS 5173 (2011).

The defendant appealed his criminal convictions for kidnapping, three counts of rape, and two counts of gross sexual imposition. He contended that the trial court committed reversible error when it allowed the seven-year-old victim to testify against him because she was incompetent as a witness because of her age. The facts offered at trial indicated that the defendant lifted the seven-year-old girl over a common fence separating two neighboring properties and managed to get her inside his home where he took sexual liberties with her and took pictures of her with his cell phone. The prosecution planned to call the complaining victim as a witness for the state.

Prior to the trial, the presiding judge questioned the minor child to determine her level of competency. Ohio law does not conclusively presume that children under the age of 10 years are incompetent, and will allow such children to testify where a judge determines that the individual is competent as a witness. Under Ohio law, the competency of witnesses under the age of 10 must be established to the satisfaction of the trial judge according to Evid.R. 601. In making a determination concerning whether a child under 10 is competent to testify, the court must take into consideration (1) the child’s ability to receive accurate impressions of fact or to observe acts about which he or she will testify, (2) the child’s ability to recollect those impressions or observations, (3) the child’s ability to communicate what was observed, (4) the child’s understanding of truth and falsity, and (5) the child’s appreciation of his or her responsibility to be truthful. Reviewing courts reconsider the trial court’s determination of a witness’s competency under an abuse-of-discretion standard and do not reverse unless the error would have made a difference in the outcome of the case.

In this case, during a pretrial judicial examination of the child, the child-victim was able to answer questions that related to her age and that dealt with facts surrounding her school situation, to indicate who her favorite teacher was, and to tell the judge about her favorite book. From the questions asked by the judge, the child was able to the judge the difference between the concepts of being truthful and lying. From these pretrial questions, the judge determined that the child met the elements of competency. Although a child does not have to take the oath to tell the truth, a child must have original perception, recollection, and an ability to communicate, as well as an understanding of the importance of telling the truth and its consequences.