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[J-264-1996] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA, Appellee

v. CALVIN WASHINGTON Appellant

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No. 0062 E.D. Appeal Docket 1996 Appeal from the Order of Superior Court entered on February 27, 1996 at 3156PHL94 affirming the Order of the Court of Common Pleas of Philadelphia County at No. 27, 28, 30, 32, 35, 38, 41, 42 September Term, 1992 Argued: December 12, 1996

CONCURRING OPINION

MADAME JUSTICE NEWMAN

DECIDED: December 22, 1998

Although I agree with the majority that we must reverse Appellant's conviction, I cannot join in the pronouncement of a per se rule that requires a competency hearing for a child witness to take place outside the presence of the jury. Instead, I would leave it to the discretion of the trial court to determine whether the jury should be present for the competency hearing. If the court decided to have the jury present, I would require only that the court give the jury an explanatory instruction regarding the difference between competency and credibility.

As the majority notes, there is a division of authority among jurisdictions that have considered the issue of whether the competency examination of a child witness

should be conducted in the presence of the jury. The courts of several jurisdictions have expressed a strong preference for conducting the competency hearing outside the presence of the jury, but no jurisdiction has embraced the per se rule that the majority adopts today.
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A significant reason for avoiding a per se rule is that, contrary to the majority's presumption, the competency hearing will not always be prejudicial to the defendant. See State v. Harris, 1988 WL 38034 (Ohio App. 5 Dist. 1988). Indeed, in this case Appellant most likely benefited from the jury's observing the competency examination because the jury had an opportunity to hear D.T. admit that she had told lies in the past, that she had practiced her testimony with the assistant district attorney before going to court, and that if her mother asked her to, she would lie in court. I.T. made similar

admissions during preliminary questioning. Because I reject the majority's presumption that the defendant will always be prejudiced by the jury's observing the competency hearing of a child witness, I must also reject the majority's per se rule.

I prefer the approach taken by the courts of Wisconsin and the District of Columbia. In those jurisdictions, the trial court has the discretion to hold the
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See Majority Slip Opinion, at 7, n.5. The Court of Appeals of Ohio, that state's intermediate appellate court, has repeatedly stated in

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dicta that voir dire of a child must occur outside the presence of the jury. State v. Wood, ___ Ohio App. 3d___, ___ N.E.2d ___ (1993); State v. Cobb, 81 Ohio App. 3d. 179, 610 N.E.2d 1009 (1991); State v. Bunch, 62 Ohio App. 3d 801, 577 N.E.2d 681 (1989).

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competency hearing in the presence of the jury, but if the court decides to do so, it is required to instruct the jury that competency is a legal issue for the judge, while credibility is a factual issue exclusively for the jury. This approach gives the court the necessary flexibility to tailor the proceedings to the particular case and provides adequate assurance that any prejudice to the defendant will be minimized.
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In this case, however, the trial court chose to conduct the competency hearing in the presence of the jury, but failed to give the jury any instructions as to the meaning of the proceedings and the court's rulings. Consequently, the jury could have been left with the mistaken impression that the court's finding the witnesses competent to testify was equivalent to finding that they would tell the whole truth. Thus, while I would find no fault with the court's decision to hold the competency hearing in the presence of the jury, I would reverse Appellant's conviction on the ground that the court erred in failing to instruct the jury appropriately.

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See Majority Slip Opinion, at 7, n.4.

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Pennsylvania Law