S.J.W. raped a developmentally disabled boy, 14 years old. At trial, S.J.W.’s attorneys challenged the competency of the victim as a witness. The trial court held that the burden was on S.J.W. to show that the witness was not competent. The court of appeals held that the burden was on the party offering the witness to show the witness was competent, not the other way around, but that the error was harmless.
Let me just pause right there to state why the court of appeals holding would be unruly. Every witness in a criminal trial offered by the State would have to go through a litany of questions as to their competency when the same wouldn’t really be in question. It makes sense that the burden is on the person challenging competency to prove incompetency. Anything else would be just plain silly.
The supreme court agreed with me of course. Its because I’m wise and incredibly handsome:
We may better frame this issue as whether a trial court should presume a child is competent or incompetent to testify. If a trial court should presume a child witness is competent, then the party challenging the child’s competency has a burden to rebut that presumption by establishing that the child is not competent to testify. Conversely, if a trial court should presume a child witness is incompetent, then the party offering the child witness has a burden to rebut that presumption by establishing that the child is competent to testify. As noted, the trial court here started with the presumption that 14-year-old children are competent to testify. The Court of Appeals would have trial courts presume that all children are incompetent to testify.
. . .
Because RCW 5.60.050 no longer makes any reference to age, the default rule for all witnesses should apply, i.e., that every person is presumed competent to testify. See RCW 5.60.020 (“Every person of sound mind and discretion . . . may be a witness in any action, or proceeding”); ER 601 (“Every person is competent to be a witness except as otherwise provided by statute or by court rule.”); see also State v. Smith, 97 Wn.2d 801, 803, 650 P.2d 201 (1982) (“Where there has been no such [adjudication of insanity], the burden is on the party opposing the witness to prove incompetence.”). Requiring a trial court to presume a witness is incompetent based solely on his age would be inconsistent with the current statutory scheme that gives no weight to the witness’s age. A six-year-old child (as in Allen) may be more competent to testify than an adult in a given case; no court should presume a child is incompetent to testify based upon age alone. Rather, we hold that courts should presume all witnesses are competent to testify regardless of their age.
(The Prof: Incredibly Handsome and Wise)