Family Court Act, Article 3, Juvenile Delinquency Part 4, § 343.1: Rules of evidence; testimony given by children

When a child who is between the ages of 7 and 16 is accused of a criminal act, the child's case is adjudicated through the Family Court. Instead of being charged with a crime, the child would be accused of being a juvenile delinquent. However, before a finding can be made that the child is a juvenile delinquent, a fact-finding hearing must be held during which evidence is presented. In cases where another child is a witness, there are special rules that must be followed. Under the rules of evidence described in New York Family Court Act, Article 3, Juvenile Delinquency, Part 4, Section 343.1, the rules regarding child witnesses are as follows:

  1. If a child does not possess sufficient intelligence or capacity because of age or mental defect, then he or she cannot be a witness.
  2. A witness who is under 9-years-old will not be required to testify under oath unless the court determines that he or she understands the nature of an oath. Such a witness may give unsworn testimony as long as the court is satisfied that the witness possesses sufficient intelligence and capacity to justify it.
  3. While a child may give unsworn testimony in a juvenile delinquent case, a minor cannot be found to be delinquent solely on that testimony.
Example

After juvenile delinquency proceedings Charles M. was adjudged to be a juvenile delinquent based on committing acts which, if committed by an adult, would have constituted the crimes criminal sexual act in the first degree and two counts of sexual abuse in the first degree. The victim was 5-years-old. The victim gave a statement describing the sexual acts that Charles M. allegedly performed. The statement was the basis of the petition against Charles M. However, the court did not first make a determination that the 5-year-old was competent to make a statement, and the 5-year-old's statement was not sworn. However, the court interpreted the statute to require that the petition and supporting documents must be provide a valid basis for prosecuting the accused juvenile and that the contents of the petition are reliable.

Related Statutory Provisions
  1. Fact-finding hearing; order of procedure: New York Family Court Act, Article 3, Juvenile Delinquency, Part 4, section 342.1
  2. Fact-finding hearing; removal: New York Family Court Act, Article 3, Juvenile Delinquency, Part 4, section 346.1
Remedy

Testimony given by a child can be challenged just as testimony given by an adult. For example, if the child makes a mistake as to the identity of the person who committed the illegal act, then the accused minor would have a defense to the juvenile delinquency charges despite the testimony of the child.

Family Court Act, Article 4, Child Protective Services, Part 3, section 343.1: Rules of evidence; testimony given by children
  1. Any person may be a witness in a delinquency proceeding unless the court finds that, by reason of infancy or mental disease or defect, he does not possess sufficient intelligence or capacity to justify reception of his evidence.
  2. Every witness more than nine years old may testify only under oath unless the court is satisfied that such witness cannot, as a result of mental disease or defect, understand the nature of an oath. A witness less than nine years old may not testify under oath unless the court is satisfied that he or she understands the nature of an oath. If under either of the above provisions, a witness is deemed to be ineligible to testify under oath, the witness may nevertheless be permitted to give unsworn evidence if the court is satisfied that the witness possesses sufficient intelligence and capacity to justify the reception thereof.
  3. A respondent may not be found to be delinquent solely upon the unsworn evidence given pursuant to subdivision two.
New York Juvenile Delinquency Lawyer

Having your child subjected to the juvenile delinquency process is frightening. The outcome of the process could have a significant impact on your child's future. Juvenile delinquency procedure is complicated and the rules are different from the rules that apply to criminal court cases. To ensure that your child's rights are protected, it is important that he or she has experienced representation. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully representing juvenile clients in New York Family Court as well as in criminal court who have been accused of committing misdemeanors and felonies. Contact us at 1.800.NY.NY.LAW (1.800.696.9529) to schedule a free, no obligation consultation regarding your case. We serve those involved in juvenile delinquency matters in the following locations:

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