Child under nine and sworn testimony: which statement is correct?

• A. There is an irrebuttable presumption that a child under nine cannot testify
• B. A child under nine is always incapable of testifying
• C. There is a rebuttable presumption of incapacity; the child may testify if demonstrates sufficient intelligence and understands the oath
• D. The court may permit sworn testimony without a capacity demonstration

Answer: (C)

In New York, a child’s ability to testify is decided by the court and centers on capacity, not just age. There is a presumption that a very young child cannot testify, but this presumption is rebuttable. The child may testify if they show enough intelligence and truly understand the oath and what it means to tell the truth. The judge assesses whether the child can comprehend questions, remember and communicate answers, and grasp the obligation of truthful testimony. If the child demonstrates those abilities, sworn testimony is allowed; if not, the child may not provide sworn testimony, though other arrangements or forms of evidence may be used.

This aligns with the idea that capacity isn’t fixed by age alone and emphasizes the need for understanding the oath and the truth-telling obligation. The other statements misstate the rule: capacity isn’t irrebuttably presumed, a child under nine isn’t categorically incapable, and sworn testimony can’t be permitted without at least some showing of capacity.