Recently, I was asked if a witness must be a certain age in order to testify in court. Although case law describes in more detail the issues relating to witness competency in Illinois, 725 ILCS 5/115-14 outlines that every person, regardless of age, is qualified to be a witness.
The statute further states that a person is not qualified to be a witness only if he or she is “(1) Incapable of expressing himself or herself concerning the matter so as to be understood, either directly or through interpretation by one who can understand him or her; or (2) Incapable of understanding the duty of a witness to tell the truth.”
Prior to a witness’ testimony, a party may request that the court determine if a witness is competent to testify. The hearing shall be conducted outside the presence of the jury and the burden of proof shall be on the moving party.
Even though not required by law, many times a party calling a very young witness to the stand seeks to qualify the witness anyway. Questions may be asked regarding the roles of persons in the courtroom, tests of memory and the difference between truth and a lie and the impact of telling falsehoods are elicited.
Being a witness is stressful for adults. Being a young child witness can be even more so. The “qualifying” questions may allow a child to become more comfortable in a strange setting before the crux of the testimony begins.
Lori G. Levin
Attorney at Law
180 N. LaSalle, Suite 3700
Chicago, IL 60601