Guest Post: Competence of Child Witness - A Tale of Judicial Discretion

(This is a guest post by Kaustubh Garg)

S. 118 of Indian Evidence Act 1872 [“IEA”] provides powers to the court to render a witness incompetent if she is unable to comprehend questions or give logical answers by reason of “tender years, extreme old age, disease (body or mind), or any other cause of same kind”. However, this provision and its interpretation by courts is not without problem. This post seeks to explore the position of competence of witnesses under IEA. It argues that S. 118 confers wide discretion in courts to conduct competency examination of witnesses, which results in rendering incompetent child witness’ testimony admissible. The first part argues that courts have merged competency with credibility while interpreting S. 118. The second part highlights that reliance on cross-examination and witness demeanour is an ineffective standard to judge competency of a witness. The third, and last, part suggests an amendment to S. 118, to make the examination of competence of witness mandatory. The scope of the paper is limited to analysing the competency of tender-age children (at most, 11-12 year olds).

Conflating Competency And Credibility 

The purpose of competency requirements is to determine child witness' intelligence, memory power, and capacity to observe events [see R. Selvaraja v. S. Latha ¶10 (Madras HC, 2013)]. The child must possess cognitive skills to decipher the event she witnessed, and recount memories accurately before court during trial. Moreover, the child must comprehend, and give intelligent answers to questions about the occurrence of events, for which she is called to testify. The competency hearing also reflects a child’s understanding of difference between right and wrong.

As opposed to adult witnesses, child witnesses pose inherent reliability risks in their testimony because of their susceptibility to tutoring, inability to distinguish between real and imagined events, and weakening or twisting of memory over time. In India, where the legal system is ridden with delays, there is a greater risk of a child's memory being prone to self-distortion or manipulation. In addition to the above reasons, examining competency of a child witness becomes even more necessary in child sexual abuse cases, where the sole testimony of victims can determine the guilt of an accused.

S. 118 of IEA confers wide discretion to courts in terms of examining the competency of a witness through voir dire examination. In Rameshwar Singh v. State of Rajasthan (SC, 1951), it was held that trial courts possess powers to decide whether a voir dire examination is necessary. However, the failure to conduct this examination is regarded as a mere procedural irregularity and does not make testimony of a child witness inadmissible. The power to determine competency entirely lies within the discretion of a trial court judge, which inevitably has a considerable influence on the outcome of the case. Furthermore, the court have tended to ignore their responsibility to examine the capacity and intelligence of child witness through preliminary examination.

In exercise of this wide discretion, courts have muddled the distinction between competency and credibility / reliability stage (with some exceptions). For instance, in Himmat Sukhadeo Wahurwagh v. State of Maharashtra (SC, 2009), the Court held that “Sanjay (the witness) was aware of what had happened in the answers given by him in the course of his evidence which clearly proved that he was a competent witness”. This judgment is not an aberration, rather it is reflective of a general trend of courts have consistently examined the competency during witness testimony, relying upon evidence, demeanour, and response to cross-examination [see, Janardhan Tewary v. State of Bihar ¶5 (SC, 1970); S. Anbazhagan v. State ¶24 (Madras HC, 2017); Kabiraj Tudu v. State of Assam ¶10 (Gauhati HC, 1992); Sanjay Kumar v. State (SC, 2014)].

It must be highlighted that competency is a pre-requisite to admissibility and reliability of evidence. Competency determines the probative value of a witness, which ensures that incompetent witnesses are not allowed to testify in court. Determining competence is not an assessment of truth or accuracy of testimony, rather it involves ascertaining the capability of a witness in form of observation, recollection, communication, etc. which is a pre-cursor to giving reliable testimony. Issues of credibility and reliability only affect the weight ascribed (probative value) to the evidence of a witness by court on the basis of accuracy or inconsistencies. The above approach of Indian courts aligns with Wigmore’s requirement of competent child witnesses. Wigmore suggests that the fact-finder must evaluate credibility of a child’s testimony just as any other witness, thereby arguing for exclusion of competency requirements. Moreover, he states that a logical way is to “put the child upon the stand and let the story come out for what it may be worth” because of a child's tendency to speak her mind straightforwardly.

As a result of Wigmore’s influence, the interpretation of courts has been to exclude the barriers to admissibility of testimonial evidence of child witness. The credibility risks can be effectively examined during trial because they only become apparent in the course of testimony. Moreover, any minor inconsistencies will not affect the reliability of other aspects of witness’s testimony. In contrast, the risk relating to witness’ memory distortion, lack of capacity to observe, recollect etc. can be examined before trial and failure to satisfy the requirements would exclude testimony entirely from the trial. 

By examining competency and credibility together, courts have conflated two entirely different aspects, which is incorrect from the procedural aspect of the law.

Increasing Reliance on Cross-Examination – Not A Sufficient Alternative

The courts have laid reliance on the cross-examination and demeanour of the witness to test the competency of child witness. Firstly, cross-examination is an ineffective exercise in absence of a voir dire examination of child witnesses. Research studies analysing testimony of child witnesses highlight that repeating the mere details of a non-event (i.e. fingers were caught in a mousetrap) repeatedly (7-8 times) in front of children would actually lead to a situation where children started believing in the happening of that non-event even if the children had never suffered any harm from the mousetrap. Even though the event did not occur, the “memory” of the event was produced by researchers. As observed earlier, a child witness is prone to suggestibility, and by repeating the same story to the children the researchers created a “real event” in their mind. 

The purpose of cross-examination is to create a distinction between truth tellers and liars and its effectiveness to discredit a false witness cannot be doubted. However, cross-examination is unlikely to be effective where a witness believes her version to be true. In cases where the child witness has been thoroughly tutored, or where the memory is 'produced', a child actually believes her memory of the event as demonstrated by the above research. More importantly, if the child hears the story same repeatedly, she becomes “will commit it to memory and will be able to retell it upon request”. Since she believes the story to be true, the witness is unlikely to falter in direct as well as cross-examination. Moreover, child witness’ demeanour will reveal no indication of falsehood because of the sole reason that the witness does not know that story is false. The same rationale was adopted in relaxing oath requirements for children because of their tendency to speak what they believe irrespective of whether it is true or false. Perhaps Wigmore’s understanding of the child competency requirement overlooks the possibility of tutoring, which is unlikely to be discovered during cross-examination. Therefore, pre-trial examination becomes necessary to assess the memory, intelligence of the child witness. 

Even if a court highlights some inconsistencies in the tutored part of testimony, the court does not exclude the whole evidence from trial. For instance, in Gagan Kanojia v. State of Punjab (SC, 2006), the Court severed materially inconsistent portions of the testimony from the rest. Although a part of testimony was unreliable, the Court held that the remaining part can be taken into consideration for corroborative purposes [see, Jharna Debnath v. State of Tripura ¶24 (Gauhati HC, 1999); Damber Singh Chhetri v. State of Sikkim ¶132 (Sikkim HC, 2018)]. The testimony will still have persuasive value, which along with other available evidence, will influence the result of the trial. The competency examination would have ensured that testimony of an incompetent child witness is inadmissible in court. As observed earlier, admissibility of evidence of an incompetent witness can result in prejudice to the accused in the trial.

Secondly, courts have provided special exemptions to the children while giving testimony, which hinders the effective cross-examination of a witness. Various measures have been provided to safeguard the child witness from being traumatised by needing to look at the accused, such as screens, videotaped testimony, and closed-circuit television [see Sakshi v. Union of India ¶27 (SC, 2004)]. Moreover, with the onset of COVID-19, virtual hearings are extended to all cases and not just restricted to cases involving child victims. Since the past two years, the testimony of witnesses (including children) are being recorded through video-teleconference (‘VTC’). While the use of VTC does provide an opportunity for cross-examination, the medium significantly reduces the effectiveness of this aspect of a trial.

Effective cross-examination requires not only the chance to ask questions of witnesses, but also the ability to communicate with them and perceive their answers. VTC technology falls short in this aspect of engagement because it does not allow parties to efficaciously observe oscillations and inconsistencies in the course of giving testimony. The reduction of a courtroom testimony to television image does not provide an equal opportunity for observation of non-verbal cues such as facial expression, body postures, and eye contact etc., which are quintessential for examining witness’ demeanour. Moreover, courts have to face technological issues which interferes with the recording of testimony and observing demeanour. Virtual trials even provide an opportunity for child witnesses to give evidence or answer questions using material placed before them, which can frustrate the entire purpose of cross-examination.

Courts have put further limitations by allowing cross-examination only on the basis of written questions submitted to a judge for child witnesses on occasion. Even though it is necessary to guard child witnesses from potential traumatisation, these guidelines can influence proceedings in ways that may be helpful to child witnesses in the form of exercising control over questioning and cross-examination, examining the difficulty of questions, etc.

Apart from the best interests of witness, courts also need to ensure that an accused gets a fair trial and prevent false convictions. Adopting a no-enquiry approach to examine competency of child witnesses or by conflating it with credibility, courts have relaxed preliminary requirements for child witness testimony. As observed above, cross-examination is ineffective in determining competency or possibility of such witnesses being tutored, and so the excessive reliance on this testimony for determining convictions can lead to devastating outcomes. 

Courts have returned convictions on the sole testimony of child witnesses (even 6 year olds) [see, State of UP v. Krishna Master ¶6 (SC, 2010); Ratansinh Dalsukhbhai Nayak v. State of Gujarat (SC, 2003); Hari Om v. State of UP ¶22 (SC, 2021)]. It cannot be doubted that child sexual abuse presents unique legal concerns. Unlike other crimes, there will be little or no evidence apart from the victim's testimony. The current system of determining guilt on the sole testimony of the child without examining its competency is seriously flawed, and consequences of not conducting voir dire examinations are dangerous. It becomes necessary that the pre-trial examination must be mandatory, which will make a realistic assessment of witness’ development maturity and ability to provide reliable information in a trial. 

Reviving the Voir Dire Examination

Earlier parts of the post show how not conducting voir dire examination of child witnesses can led to dangerous outcomes at trial. Indian courts have seldom conducted preliminary examination to examine competency of a witness [see, P. Ramesh v. State ¶12 (SC, 2019); Dinesh Chand v. State (Govt. of NCT of Delhi) ¶6 (Delhi HC, 2019). However, those examinations were only limited to questions related to name, parents’ name, class, day, date etc. These type of questions makes little or no attempt to accurately examine the developmental maturity or ability to observe, memorize or recollect series of events. Most courts have a set template of questions which are not a true assessment of a child's ability and competence, thereby affecting the quality of the testimony. 

Before conducting preliminary examinations, the court must obtain information about the child, by conversing with family members (if they are not engaged in the incident), other caretakers, or educators. Also, information can be obtained from the school, pre-school, neighbours of children which might give potential areas for inquiry of the child witness. Based on the research of Dr. Sherrie Bourg Carter, child witness ought to be asked to explain specific events of life such as vacations, birthdays, or about any specific school events. The timeline of events must be similar as events alleged in the criminal case. The child’s answers can be compared with the description by an adult to determine accuracy of events. These questions would test the child’s observation of that particular incident, and its recollection before court. Since criminal trials are generally delayed, it also helps in testing the memory of a child and account for any distortion that takes place. Because questions are not known to the child and are of a general nature, the question of tutoring or preparing about these questions is ruled out. Although these questions will be easy to answer, this will provide information about competency of a child witness. More importantly, asking informal questions of general nature would likely result in establishing truth and rapport and familiarising witness with the courtroom environment. 

The above tests cannot be made mandatory because of S. 118 of IEA, which allows discretion to the judges to conduct the competency tests. Which is why I suggest an amendment be made to S. 118 of IEA which makes voir dire examination mandatory for tender years’ children. For child witnesses, incompetency must be the rule and competency is the exception.