Chapter 8: Competency of Evidence and Witnesses

Case Study 1

Overview Based on: State v. Van Oostendorp, 2017 UT App 85 (2017).

The defendant Van Oostendorp and the victim met one spring season on the Internet and developed an in-person relationship that included consensual sexual activity. As the relationship continued into the late summer, the relationship began to deteriorate. The defendant, Van Oostendorp, began to use verbally abusive language to describe the female victim in this case. His verbal abuse denigrated the victim in a variety of ways. Additionally, he initiated physical abuse by pushing and shoving the victim. Van Oostendorp began to demonstrate a temperamental personality, and he would take his anger out on the female victim.

At one point in the Fall of the year, Van Oostendorp held the victim’s head in a position during oral sex that caused her to vomit during the encounter. During a later altercation in which he accused the victim of being unfaithful, the defendant grabbed a gun and threatened to hold it to her head to make sure she was answering truthfully concerning the infidelity alleged by the defendant. He threatened to beat her and scalp her so that her daughter would no longer have a mother. For unknown reasons, the pair temporarily reconciled their differences.

At different times, they quarreled over the phone and through text messages, but they buried their differences and made some plans for a particular weekend. At some point, the defendant called the victim and told her to “get ready” for him and that he was coming over. The victim cleaned up to get ready for him; she was unsure what was about to happen. The defendant arrived early while the victim was still in the shower. He smacked her with his belt and placed the leather part in her mouth while she was still in the shower. After she left the bathroom, the defendant sodomized her against her wishes. Finally, he put her in the shower a second time and told her to clean off. According to her trial testimony, after the victim exited the shower, she was in pain, physically shaking, and bleeding. When asked by the prosecutor during direct exam whether the sexual encounter in the bathroom was consensual, the victim testified, “No, it was not.”

The trial court denied a pretrial motion by the defendant for a determination of whether the victim was competent to testify at trial, and whether such testimony would be reliable if she did testify. The court denied the motion, and said that cross-examination could test her credibility and probe her competency. The defendant did not deny the sexual activity, but argued that it was consensual in nature, or that he was mistaken concerning consent and supported that idea based upon the couple’s prior “rough” relationship and sexual history.

The trial resulted in the conviction of the defendant for forcible sodomy, among other crimes. The defendant appealed on a variety of issues, and contended that the state failed to prove forcible sodomy beyond a reasonable doubt. He based this contention on his allegation that the victim was not competent to testify at trial and that her testimony should have been excluded. Without her testimony, there was no way the government could prove the case beyond a reasonable doubt.

According to the reviewing court, the question that really was presented on appeal involved the issue of whether the victim was properly allowed to testify concerning the events perpetrated upon her by the defendant. (As a general rule, a witness is competent if the witness takes an oath, has original perception, has sufficient memory, and has an ability to communicate.) Under Utah law, every person is considered to be competent unless the rules of evidence provide otherwise. A witness may testify to matters and observations only where the witness has personal knowledge of the matter. In order to be allowed to testify about observed events, the witness must be proven to have had the opportunity and the capacity to have perceived the events in question. According to the reviewing court, this is a fairly low standard, and most witnesses will be permitted to testify. The victim admitted that for some specific aspects of the sodomy, she had some memory loss, but said she had no defect of memory for the fact that it did occur.

When there is a question concerning his or her competency, may a witness offer testimony at a trial court if he or she is confused concerning the order of events but is not confused about what actually happened?

Yes. The defendant contended that the victim was incompetent to testify against him and directed the reviewing court’s attention to a statement in the victim’s psychological evaluation that indicated she had experienced some memory losses for specific aspects of the sodomy. The defendant contended that these memory gaps rendered her incapable of observing and perceiving the events in question and that they prevented her from recalling the events, even if she had perceived them initially during the time that they occurred.

The reviewing court noted that to be competent as a witness, the witness must have had the original capacity to have perceived the events and to possess the present ability to recall them. According to the court, a witness is competent to testify if the witness perceived a relevant event and can recall the event and tell it to the court. In this case, the psychological report actually explained the minor nature of the memory gaps reported by the victim. The witness admitted that some of the order of the events “were jumbled up” for her and that she did not recall exactly when the defendant removed his clothing. Such a minor memory problem is quite different from that of witnesses who concede that they have no recollection of a particular event.

In this case, the reviewing court noted that the trial transcript demonstrated that the victim had both an opportunity and a capacity to have perceived sodomy. She did recount that event in detail, and was able to explain the crime itself, without any interruption in her testimony and without any prompting by trial counsel. In this case, it was clear to the reviewing court that her memory and testimony were based on her perception of the events at the time they actually occurred. The appellate court also clearly stated that any gaps in her memory would go to the weight of her testimony, and would not be related to its admissibility.

The appellate court affirmed the conviction for forcible sodomy as well as the other crimes involved in this case.

See Chapter 8, Section 8.10.

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.

As a strong general rule, do children of tender years have to meet the elements of competency, except for the requirement of taking an oath to tell the truth?

Yes. In order to testify at criminal trials, children must meet most of the requirements that are applied to adults. As a substitute for the oath, they must know the difference between lying and telling the truth. In addition, original perception is required, just like for adults, as is recollection and an ability to convey this information to the judge or jury. Where an issue concerning competency of young witnesses arises, judges normally conduct an inquiry in the presence of both attorneys and the parties or their representatives. The decision of the judge concerning competency is reviewed based on the concept of “abuse of discretion.”

See Chapter 8, Section 8.12.

Although the child-witness in this case was only seven years old at the time of the alleged offense, did the judge pursue the proper technique in determining whether she was competent as a witness despite her tender years of age?

Yes. The trial court conducted an examination of the child prior to trial to determine her competency as a witness. The judge asked questions of the child that, through her answers, indicated that she understood the duty to tell the truth, that she remembered what happened to her based on her original experiences, and that she had sufficient verbal communication skills to tell the jury what happened to her while she was with the defendant. The reviewing court in this case did not disturb the judge’s determination of the child’s competency because it found that the judge had not abused his discretion in determining the competency of the child.