A child is competent to testify as a witness unless “the court finds, after questioning, that the [child] does not have sufficient physical or mental capacity or sense of obligation to testify truthfully or understandably; or [the MREs] provide otherwise.” MRE 601. “For a witness who is a [young] child, a promise to tell the truth takes the place of an oath to tell the truth.” M Crim JI 5.9.
In criminal and delinquency proceedings only, a child’s (declarant) statement describing sexual acts performed on or with the defendant or accomplice is admissible, if it corroborates the declarant’s testimony during the same proceeding and:
“(1) the declarant was under the age of ten when the statement was made;
(2) the statement is shown to have been spontaneous and without indication of manufacture;
(3) either the declarant made the statement immediately after the incident or any delay is excusable as having been caused by fear or other equally effective circumstance;
(4) the statement is introduced through the testimony of someone other than the declarant; and
(5) the proponent of the statement makes known to the adverse party the intent to offer it and its particulars sufficiently before the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it.” MRE 803A(1)–(5).1
Only the declarant’s first corroborative statement is admissible under MRE 803A. However, a statement that is inadmissible under MRE 803A because it is a subsequent corroborative statement is not precluded from being admitted via another hearsay exception. People v Katt, 468 Mich 272, 294-297 (2003) (finding that the statement was admissible under the residual hearsay exception).2
The scope of an in camera interview of a child is limited to determining the child’s preference and should not cover other best interest of the child factors. In re HRC, 286 Mich App 444, 451-452 (2009); MCR 3.210(C)(5). The rules of evidence do not apply to in camera proceedings regarding a child’s custodial preference. MRE 1101(b)(6).
In child-custody proceedings, a trial court must take testimony in open court on any issues regarding a child’s abuse or mistreatment. Surman v Surman, 277 Mich App 287, 302 (2007). According to the Surman Court:
“[A]lthough courts should seek to avoid subjecting children to the distress and trauma resulting from testifying and being cross-examined in court, concerns over the child’s welfare are outweighed when balanced against a parent’s due process rights.” Id. at 302.3
1 See also MCR 3.972(C), which applies to child protective proceedings and contains a rule similar to MRE 803A.
2 Provisions previously found in MRE 803(24) now appear in MRE 807. See ADM File No. 2021-10, effective January 1, 2024.
3 See Section 3.5(G) on using closed-circuit television as a means to protect a child from the trauma of courtroom testimony and/or the defendant’s presence in the courtroom.