Public-domain · open source
OpenJurist

238 Mass. 322

Commonwealth v. Tatisos

Massachusetts Supreme Judicial Court · decided 1921-04-07

<p>Witness, Child. Practice, Criminal, Determination of competency of child witness, Exceptions. Child.</p> <p>The mere fact, that a girl was just past six years of age when she was offered by the Commonwealth as a witness at the trial of an indictment for an assault upon her with intent to commit rape, did not as a matter of law disqualify her as a witness.</p> <p>Where a judge presiding at the trial of an indictment, in the exercise of his discretion after an examination of a child offered as a witness by the Commonwealth, has found and ruled that the child is competent to testify, such ruling will not be revised upon an exception by the defendant unless it is clearly erroneous.</p> <p>At the trial of the indictment above described, the girl was carefully questioned by the judge on one day, after which the judge stated that he could not then bring himself “to the conclusion that this girl can qualify as a witness.” With the permission of the judge, the girl received instructions from a priest of her mother’s religious faith between court days and, after further extended examination on the next day by the judge and by the defendant’s counsel, the judge permitted her to testify. Held, that no error appeared in the action of the judge.</p>

Key passage — most relied on by later courts

““The ultimate test cannot be the amount of moral training and religious understanding, but must depend upon the existence of understanding sufficient to comprehend the difference between truth and falsehood, the wickedness of the latter and the obligation and duty to tell the truth, and, in a general way, belief that failure to perform the obligation will result in punishment. The child need not and probably will not understand this in all its fulness; it is unnecessary for her to do so.””

quoted by 1 later decision, including DeGroot v. Van Akkeren

Relies on Wheeler v. United States · Commonwealth v. Reagan · Commonwealth v. Robinson

Good law ✅— No negative treatment on recordhow we know

Decided 1921-04-07

How this case has been cited

Cited by 43 later decisions — most recently October 2017 · most notably Commonwealth v. Dockham (1989), Commonwealth v. Whitehead (1980)

43 state decisions

1501921193019401950196019701980199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Jenney, J.

¶1In the trial of an indictment for an assault with, intent to commit rape upon Catherine M. Stafford, a child about five years and ten months old at the time of the alleged assault, and “just past” six years at the time of the trial, the child was permitted to give material evidence in behalf of the Comm on - wealth. The sole exception is to her competency as a witness.

¶2It is clear that the tender years of the child did not disqualify her. While age is of importance, it is not the test. The child might have been much older and still have been unqualified to give testimony. Her capacity to observe, remember, and give expression to that which she had seen, heard, or experienced, was the crucial consideration.

¶3Much which cannot be reproduced by the printed word depends on the child’s appearance and manner. It is seldom that the discretion of the trial judge can be revised; its exercise must have been clearly erroneous to justify such action. This is because the question for decision is almost always one of fact and hence not reviewable. Commonwealth v. Hutchinson, 10 Mass. 225. Commonwealth v. Robinson, 165 Mass. 426. Commonwealth v. Reagan, 175 Mass. 335. Commonwealth v. Ramage, 177 Mass. 349. Commonwealth v. Marshall, 211 Mass. 86. Commonwealth v. Teregno, 234 Mass. 56. Wheeler v. United States, 159 U. S. 523.

¶4The defendant urges that the witness did not understand the nature of the required oath and for that reason was improperly permitted to testify. As to this no precise line can be defined, and cases placed on one side or the other. The ultimate test cannot be the amount of moral training and religious understanding, but must depend upon the existence of understanding sufficient to comprehend the difference between truth and falsehood, the wickedness of the latter and the obligation and duty to tell the truth, and, in a general way, belief that failure to perform the obligation will result in punishment. The child need not and *326probably will not understand this in all its fulness; it is unnecessary for her to do so. See Wigmore on Ev. §§ 1817, 1821; St. 1870, c. 393, § 1; G. L. c. 233, §§ 15, 19, 20. The question now considered also must be decided by the trial judge in the exercise of a wise discretion, and an appellate tribunal ordinarily will not review his determination. Commonwealth v. Mullins, 2 Allen, 295. O’Connor v. Hallinan, 103 Mass. 547.

¶5If a child does not have the necessary understanding to comprehend the mature of the obligation imposed by the oath of a witness, he may be instructed in open court, or his testimony deferred until such instruction has been given. Commonwealth v. Lynes, 142 Mass. 577.

¶6Applying these long settled principles to this case, no error appears. The child was examined twice, on different days, in the absence of the jury, and instructed by a priest in the interval. After most careful consideration, she was permitted to testify. While the bill of exceptions refers to the rulings of the judge it is evident that no ruling of law was made except such as followed the findings of competency necessarily made by the judge before the witness was permitted to testify.

¶7 Exceptions overruled.

/238/mass/322 · .json · Public domain