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Admissibility Of Child Witness: Legal And Psychological Aspect

This research paper highlights the admissibility of the evidences obtained from a child which also includes the difficulties faced by those minors. It also raises the points how the procedures and scenarios differ when it comes to obtaining evidences from adults. It elucidates different tactics followed by the court to obtain authentic evidence from juveniles and also keeping in mind about their physical and mental well-being.

This analysis also throws light on how modern innovations and technologies which also affects the child's witness and the developments that are necessary to be taken into consideration for a fair proceeding.

  • How do judges and legal professionals weigh the credibility of child's witness testimony as compared to adult witness and what factors influence their decisions?
  • What role do expert witnesses such as child psychologists and social workers, play in determining the admissibility of child's testimony. How can their input be improved?
  • How modern technology impacts the admissibility and reliability of child witness in modern legal proceeding?
Literature Review
Indumathi M J M J & Dr. Rangaswamy D Nayak, "A Study On Admissibility Of Child Witness In View Of Indian Administration Of Justice System", Vol.5 & Issue3, international journal of legal developments and allied issues, Pages 49 to 55 (May 2019)

In this paper the author basically tried to give idea on the future study on child witnesses in regard to that this article also explores three areas i.e., Children's capacity to offer truthful testimony, the distress that young witnesses are likely to undergo, and the perceived reliability of child testimony. The main objective of this paper is to prevent recurrent traumatization and permanent consequences for children who testify about violence they have watched or experienced.

Dr. Caesar Roy, "Position Of Child Witness Under Indian Evidence Act, 1872 - An Analytical Study", Volume1& Issue1, Academic Journal of Law and Judiciary, Pages 24 to 29 (April 2018)

This research article critically highlights the admissibility of child witness in accordance to Indian Evidence Act 1872 Section 118 of the Indian Evidence Act of 1872 describes witness competence. So, according to this clause, a youngster of a delicate age can testify provided he has the intellectual capacity to grasp inquiries and is given rationale responses thereto. There is no definite age set by legislation during which individuals are exempt from giving testimony.

Barry Nurcombe, "The Child As Witness: Competency And Credibility", Journal of the American Academy of Child Psychiatry, Pages 473 to 480 (1986)

This research paper tries to throw light upon When it comes to kid witnesses, the words competency and credibility are defined. The factors used by courts to determine a child's ability to testify are reviewed, as is research on the influence of memory limits on children's testimony. Susceptibility to external influence, emotional excitation, and extended latency are all factors summarised in this paper.

In the present scenario, there are a considerable pile of cases in Indian courts awaiting for resolution and in order to iron out these cases with minimal delay the court requires all the necessary tools to carry out their obligated roles and responsibilities. Current technological advancements have led dynamic changes to judges prospectives towards dealing a case and giving prominent conclusion to it.

As we know it is very much vital to keep in mind for any judicial reform in India or overseas before concluding a case it is an important factor for the judges and attorneys to collect evidences from the witness involved in that case, as it acts as a proof for the courts and also helps the judges to put forward their own conclusion based on the evidences placed before them.

Children are known to be most precious and greatest creation of God, there innocent brains are like the wet cement which can be molded in any shape, for that reason they should be handled with much care while collecting witness from them. As we are aware of the fact that children are innocent in narrating any fact or incident that they had seen but their statements also play a huge role in punishing the offender.

A witness is a person who aware about the incident or was present on spot while the happening of any incident and has the ability to recognize a fact through his senses and describe it. A child witness refers to someone who is a minor while giving witness at court of justice. In India there is no such codified law or rule which restricts the child to give witness, any child who pass the competency test, who is mature enough to understand the circumstances can be a witness to the case and contributes a huge role in providing justice to the innocent.

Notion Of A Competent Witness

"Witnesses are the eyes and ears of Justice"-- Bentham

After determining the significant facts and circumstances that needs to be proved before the court as well as who owns the burden of proof. The next challenge that come into picture is how to present the information before the court like by the means of witness, records or documents. In case of presentation of documents, the authenticity of documents is also taken into consideration.

The prosecution is not limited to the conduct or the manner in which the witness deposed, to assess the veracity of the witness. It can also investigate the underlying conditions and possibilities to construct an accurate picture of the credibility of witness.

The capacity of a person to provide evidence prerequisite on oath and affirmation to him. By asking appropriate questions the court can determine the witness's ability to give evidence, which also includes the explanation by the eyewitness about the happenings and the occasions coherently up to a level based on the intellectual capability and knowledge. In case of a minor if he satisfies these conditions, his credibility as a witness is established.

All people are considered to be testified as witness unless the court determines that they are barred from comprehending questions asked to them and are unable to frame logical answers to the proposed questions because of their youthful years, extreme old age or some sort of body or mind disease.

Child Testimony In India

It is the crucial facet for the Indian Legal system when children are the innocent bystanders to the offences. Child testimony refers to the legal procedure in which the evidences are obtained from the child witnesses. The Indian judicial system emphasizes the need for safeguarding the rights and interests of kids and likewise making sure that their evidence is relevant and trustworthy.

According to Section 118 of Indian Evidence Act, any person, including a child or an elderly person, other than a tender year, extreme old age, a disease, whether of body or mind, or any other similar cause, is competent to be considered a witness in a court of law if he or she is able to understand or provide reasonable answers to the questions put to him.[1]

Before concluding to register the compatibility of child's witness the court performs a "VOIR DIRE" examination in order to decide whether a child is able or not to provide evidence as witness. Voir Dire refers to 'speaking the truth.' It alludes to an initial investigation conducted by the court in which the witness is examined by various questions and is expected to give genuine answers to the proposed questions, if the responses obtained seems as insufficient or are contradictory in nature then the witnesses are rejected by the judges.

In case of child witness the court asks some rudimentary questions to the child like the child's name, address, name of school etc... After the court of Justice has been completely pleased with the answers it allows permission to the child to appear as a witness before it. However, this test acts as corroborative evidence.

In the case a Rameshwar v. State of Rajasthan[2] it was held that understanding the oath is not mandatory under the age of 12, and everyone is competent to testify unless they are unable to comprehend what they are asked for. However, the court must reconsider the requirement for corroboration if they feel the testimony is insufficient. As it undermines the credibility of witness, and yet has no effect on admission.

When a child of young age, who is unable to respond effectively the questions put forward to it and also not matured enough to describe the events, then in this kind of situation there is high chances of the corroboration of the evidence. On contrary to it if the young witness is able to understand the out-turn of the activities and gives authentic answers to the questions asked then the amount of the requirement of corroborative proof is less, decided in the case of Suryanarayana v. State of Karnataka[3].

As it is said that absolutely nothing in law can affect the competency of witness or can prevent the person from giving witness. Although, the overall rule is that a competent witness is also compellable, but there are circumstances where the competency is explicitly different from compellability. Therefore section 118 to 121 as well as section 133 deals with the competency of the testifier.

The issue of universal compellability has not been specifically addressed by Evidence Act. Despite of the fact that the eyewitness is competent the evidence may be disallowed due to lack of compellability. By way of example, when it comes to speculations and confession done before the police officer.

In a nutshell, the management of child witness in India is a difficult but requisite within the Judicial system. The key concern while accumulating the evidence should be the protection and well-being of the child. Ongoing efforts should be made to strengthen the process along with the assisting systems to ensure the justice is served while minimizing the pain suffered by children participating in judicial matters.

Analogous Study
United Kingdom
In the United Kingdom, according to "Section 53(1) of the Youth Justice Criminal Evidence Act 1999", as a general rule all people are competent to give evidence regardless of the age. However, if they do not comprehend the question or are unable to give reasonable answers to the questions then they are deemed to be incompetent as mentioned in "Section 53(3)" of the said act[4].

As a result, considering the capability to grasp and respond of the underage witness the Judges will decide whether that kid is competent enough or not. Almost identical to Indian scenario, it is also applicable to individuals of all ages and does not designate a certain age for the presumption of the competency of the observer. There is no requirement to swear before the court if the kid is under the age of 14, while the court will decide to take oath or not based on their comprehending ability for the youngsters, who are above the age of 14[5].

The court has the power to order differently and it is also acceptable as well as weights the same as the evidence given in court i.e., to record an interview or connect to the testimony through virtual connections. Conversely, the system appears to be more well- established in United Kingdom. The notion of corroboration of statement presented by the underage witnesses has been abandoned, which favors in the improvement of the safeguard of the child witnesses. The use of technology also encourages and comforts the young witnesses.

United States

In light of the federal character of the United States, different states use different mechanism for the competency of the child witnesses. There are two conventional tests for the competency of child's witness. The most fundamental sort of competence comprises the child's capacity to observe, remember and communicate. "Federal rules of evidence of United States Rule 601states that any individual is qualified to be a witness unless these rules specify differently".

Preliminary investigations are rarely done as majority of the states follow these criteria. The procedure followed here is akin to the Vior Dire concept followed in India to assess the kid's ability i.e., the judge asks the young observers about some neutral occurrences in their life.

The next form of competence is 'truth-lie competence'. According to "Rule 603 of the federal rules of evidence necessitates oath by the witnesses that guarantees that they speak the truth, and also instills a feeling of obligation in their conscience." [6] Despite of the fact that this regulation does not mentions about the minor youngsters. To testify weather a kid can, give witness truthfully or not 15 states in U.S. had already made it an essential rule. Basically, the youngster is asked to pledge and expected to answer the truth to questions put to them.

However, several states have an age restriction, in numerous jurisdictions below 10 year of age is considered as incompetent to be a witness for a case unless the court has some different prospective towards them. In contrary to that some states have the minimum age as 14 years. Nonetheless, on case-by-case basis, the court has the power to assess whether the witnesses early age makes him/her incompetent or not.


In Canada, the admissibility of child's witness depends on both statutory and common law standards. In case the information obtained from the kid admissible or not depends on various factors such as ability to comprehend and speak, ability to deliver a trustworthy testimony etc. The minor witness also has the facility to be assisted by techniques such as testifying behind a screen via, a closed-circuit television.

In simple terms, the admissibility of child witness of one country varies from the other but there are some common factors such as kid's competency, special accommodations, the credibility of their evidences etc.

Testimony Of The Child And Oath

The legal standard for oath-taking competence is rather simple. The witness must be able to understand the distinction between the truth and lying as well as the important role of stating the truth. The question must be addressed of the eyewitness in order to determine testimonial competence are not specified in any legislation. The competency criteria are not based on the presentation of an abstract comprehension on the nature of truth and lying.

The witness can only understand the parameters of truth and lies only when he/she is able to realize that truth refers to "what really happened" not falsehoods, if a witness is able to understand the responsibilities behind the oath and knows the criteria and is aware of the punishments of lying in the court.

According to section 4 of the Oath Act 1969, "all witnesses are to take oath and affirmation, and according to the proviso of that said section this rule will not be applicable to the children below 12 years of age."[7]This law has been also framed in such a way that it intends to establish whether the youngster would be able to understand its significance or not.

If the young child is unable to understand what the truth behind this oath refers to, then its just to arouse the kid's conscience. Although courts ask frequent questions to analyze child's knowledge on oath and affirmation.

However, if the oath is to have any effect, such an investigation appears to be necessary. Furthermore, the form of the "affirmation" is not required, allowing courts to adjust the phrasing to accommodate the child's developmental level. If a youngster, seems to be unable to comprehend, a simpler term may be substituted.

Most courts do not consider the kids to be familiar with word and the meaning of "Oath", and many just allow them to merely vow and describe the events clearly. Although studies have been conducted and it has been discovered that even older students have also faced difficulties in figuring out the term "Oath".

An omission to administer Oath under "Oath Act 1969" will have no impact on the admission of evidence unless the court believes the witness is otherwise incompetent was decided in the case Bhagwania v. State of Rajasthan[8]

In Ghewar Ram v. State of Rajasthan[9], it was held that once the juvenile witness deemed to be competent, then if he fails to comprehend the term oath then it will not affect or invalidate the legal proceeding nor results in inadmissibility of the evidence.

In Rameshwar v. State of Rajasthan[10], the Supreme Court held that failing to administer an oath, even to an adult, affects only its credibility not its competency.

The authenticity of Juvenile witness testimony would be determined by the context of each case. But the sole caution that the court should take while evaluating the confession of the young witness is that the young observer must be equally trustworthy as any other competent witness and special care should be taken of the kid from being tortured or from facing any kind of uncomfortable circumstances while giving witness.

Memory And Recall Challenges

It is said that children memory is like a sponge, they have the ability to absorb information quickly and effectively just like a sponge absorbs water. Several researches have revealed young children to be a great observer and also excellent in describing the physical attributes of a known or unknown individual in a better manner as compared to adults.

Despite of the fact that children are fantastic spectators, studies have also shown that they face much difficulties in turning observation into verbal reports. As described above in that situation children make errors but not inherently more severely than adults when it comes to basic occurrences.

Recent researches have concluded that recalling is a fundamental memory mechanism that develops at a young age. Infants as young as one year old possess some degree of memory recognition ability. Similarly, kids above the age of four exhibit nearly adult level recognition recalling abilities. Many elements including age, sex, race, environment, and familiarity have been identified to affect the child's memory. These are some findings that indicates that young ones can be trusted testimonies in identifying criminals.

In addition to this there are other factors that also have some role in memory and recalling capacity of the child. They are as follows;
  • Trauma and stress: When children are involved in legal proceedings they might go through stress or trauma which may interfere with their recollection ability. Such emotional variables might cause inconsistencies and mistakes while giving testimonies.
  • Sensitive Issues: The little ones may demonstrate memory gaps and issues in recalling a situation involving sensitive themes such as abuse or violence, because of the emotional discomfort induced by those events.
  • Leading Questions: To stop untrustworthy and forced evidence, the courts while interrogating juveniles must exercise caution in avoiding asking misleading and provocative questions. The court also has the power to look after whether the questioning pattern was impartial and equitable.
  • Expert Testimony: Court might allow expert testimonies credible specialist and child psychologists who are able to provide insights into the young one's memory, suggestibility, and may identify the factors that influence trauma on their capacity to recall events.
  • Unique Processes: To decrease the stress and psychological anxiety level in the juvenile, the court may accommodate some specific processes like employing screens to distance them from the accused, permitting support individuals in court, or offering breaks during testimony.
  • Limited attention span: Children typically possess shorter attention and focus as compared to adults, thus rendering it more difficult for them to retain prolonged and complicated experiences. This also results in fluctuations of their attention in certain parts of a situation while forgetting the rest.
  • Frequent Interviews: As each interview may deliver fresh knowledge or solidify previously presented elements, it might strongly affect a child's recalling capacity. Attention needs to be executed to limit the number of interviews and their potential for memory manipulations.
Considering these difficulties, it is vital for the court system to be attentive and gentle while extracting and evaluating any proof from the Juvenile witness. These might include adopting suitable inquiring tactics avoiding inappropriate inquiries and taking into account child's age, cognitive ability, and emotional condition. Further, the participation of special expertise such as child psychologists etc. might assist the court in better understanding the kid's recall and retention abilities.

Requirement Of Corroboration

Young kids are known to be the most hazardous witness because of their early ages, they frequently confuse between their dreams and actual world. They are adept at quickly digesting and replicating information. They reiterate as of their very own understanding and what they have gathered from other people and are heavily affected by the factors such as fear of retribution, desire of a reward etc. As a result, relying on a uncorroborated proof obtained from a minor is risky.

In the case, Arbind Singh v. State of Bihar[11] the Supreme Court ruled that it is widely recognized that the young observers are more suspectable to torture. Consequently, the court should ought to look for corroboration, especially when the data obtained from the kid exposes indications of torturing.

While the law recognizes the child to be a proficient witness, a kid who lacks the capacity to express an appropriate viewpoint concerning the circumstances of the happenings due lack in maturity of mind likewise isn't deemed by the court to be a testimony on whose given information the court can completely rely upon in the absence of other corroborative evidences, as they are a simple prey to torturing and manipulation of the evidences, therefore the data obtained must be carefully scrutinized. As a result, the court always seeks appropriate corroboration of any evidence obtained, decided in the case Bhagwan Singh v. State of M.P.[12]

Lastly, the necessity of corroboration of the evidence acquired from the children who testified as witnesses has developed to represent a more refined and case specific approach. While corroboration will still be necessary in some situations, the emphasis is on determining the reliability of the young witness in the framework of a specific case. The purpose is to preserve the rights of all parties concerned, and also keeping an eye upon giving a fair chance to the evidences obtained from a Juvenile.

Role Of Expert Witnesses In Obtaining The Testimony

When it comes to assessing the admissibility of kid's witness, there is a huge role in the part of expert witnesses such as child psychologists and social workers. Their skill set is utilized in assessing the young one's ability to give the evidence as well as they facilitate in interpreting the comments in the way the court can understand.

The professionals who have expertise in this field are able to determine whether the child is fit to testify or not. These includes few points like evaluating the kid's awareness in determining the distinction between truth and falsehood, in addition to this they have also their experience in determining the kid's capacity to communicate and recall the event effectively, they are also very determined in providing insights of a kid's psychological status in case of trauma and stress endured by the child.

These specialists by assisting the necessary information and condition during this process help the judges and attorneys in better understanding how these minors see and evaluate the information, which is a very crucial part while evaluating their evidences. Based on their evaluation these experts may suggest need for counselling or any kind of therapy for the child's well-being.

There are several methods that can be used in improving these process like experts should keep a current on the newest methodologies and research. This highlights that they have most relevant and up-to-date materials to provide before the court. Coordination among several sorts of professionals (for example, psychologists, social workers, and pediatricians) can give a more thorough and nuanced view of a child's conditions. Developing processes for constructive criticism and superior monitoring can aid in maintaining the most stringent guidelines for practice among expert witnesses.

Eventually, the purpose is to make sure that expert evidence is accurate, instructive, and useful in assisting the court in making choices that are in the best interests of the child.

Impact Of Modern Technology

The credibility of a minor in modern court procedures has been significantly impacted by technological advances. Based on how these modern innovations are being used this can have both beneficial and detrimental effect. Below have been a few of the most significant methods that present-day technology influences kid testimonies in court procedures:
  • Video Recording- This has evolved as an essential tool for monitoring interviews for kid witnesses. It enables both visual and aural records of the child's evidence, aiding the authenticity of their testimony. Videotapes can also demonstrate the child's behavior and emotions throughout the interview, useful in determining their believability.
  • Distant Testimony- Videoconferencing and other remote communication enable young witnesses to give evidence without physically being present. This helps in reducing the emotions, anguish, and stress the young one might feel in court while explaining the happenings.
  • Digital Evidences- Technological records such as text messages, social media postings, and other digital interactions may be preserved and retrieved using modern technology. These documents act as proof to confirm or refute a child's testimony.
  • Psychological Evolutions- Advances in science and technology allow for better estimations of a child's capacity for testimony and the possible influence of trauma on their ability to offer truthful evidence.
  • Suggestive Influence: When interrogated over electronic media, such as video chats or text messages, rather than face-to-face interviews, the little ones may be more sensitive to suggestive influence.
  • Privacy and Ethical Concerns- Protecting the privacy and well-being of innocent observers while utilizing science and technology, particularly in situations involving sexual abuse or violence, is a major problem. Ethical concerns arise when recording or broadcasting kid testimony.
  • Technical Issues- Technical flaws or defects in video recording, remote testimony, or electronic evidence can cause problems in court and impact the admissibility and trustworthiness of minor witness statements.

In simple terms, contemporary technology has both improved and complicated the admissibility and trustworthiness of child witness evidence in court. Innovation can provide useful tools for enhancing the accuracy of child testimony and preserving the rights of children participating in judicial matters when implemented responsibly and fairly. And it can also act destructively if not used with proper care.

In a nutshell it can be determined that the data obtained from the young one should be thoroughly reviewed before its accepted. The credentials obtained from the kid might be stated out of his own imagination may not be reality and constant at times. Therefore, these statements may act as a barrier in a fair trail it should be represented carefully.

If there is proof in the record that a youngster has been trained, the court must either partially or fully disregard his account. However, the substance of the child's statement might indicate how often he is being taught. As a result, the court must decide if the child's witness is a distinct witness, as well as their competency and trustworthiness, which may differ from case to case.

  1. Indian Evidence Act 1872, s/118
  2. Rameshwar v. State of Rajasthan 1952 AIR 54
  3. Suryanarayana v. State of Karnataka, AIR 2001 SC 482
  4. Youth Justice Criminal Evidence Act 1999
  5. Section 55(2)(a) of Youth Justice Criminal Evidence Act 1999
  6. The Federal Rule of Evidence of U.S.
  7. Section 4 and 5 of the Oath Act 1969 r/w Section 118 of Indian Evidence Act 1872 & Section 7 of Oath Act 1969
  8. 2001 Cri.L.J 3719(Raj.)
  9. 2001 Cri.L.J 4460(Raj.)
  10. A.I.R 1952 S.C 54
  11. A.I.R 1994 S.C 1068
  12. A.I.R 2003 S.C 1088

Award Winning Article Is Written By: Ms.Rituparna Panda
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