Opinion by Attorney Louis Lombardi

A child under the age of eighteen may be sworn and take the oath as long as it can be demonstrated that the child understands that there is a moral duty to tell the truth, even if the child can differentiate between the truth and a lie. Strickland v. Police Athletic League, Inc., 2009 N.Y. Slip Op. 50067 (U) (Kings, Supreme, 2009). So, the inquiry into whether a child can be sworn an oath is much more than just telling the difference between the truth and lies but also the moral reasoning to comprehend why one should not lie. A child must understand the consequences of lying. Id. Obviously, the closer a child is to being an adult, the more likely one can meet this standard.

Although there is reasoning that a child can be sworn in by a notary, there is case law that indicates this can only occur with judicial oversight as a notary has no power to make the inquiry and determination of the child’s competency. Id. The courts have permitted the administration of the oath but only under court oversight. Id. The court in the process of voir dire can access the child’s ability to answer questions, whether the answers are substantive or just one-word responses along with the child’s demeanor – are they fidgety or are there other signs of lack of awareness as to the requirements of the oath. Id.

NY’s Criminal procedure Law is helpful as to the issue of swearing a child for testimony in a case. See NY CPL § 60.20 (2). In this statute, the age of

presumed incompetency and thus the need to voir dire the child is under nine. Id. Using this as a guideline, as there is no need for judicial oversight, one could swear in a child nine years and older.

A notary should not administer the oath to a child as it can only be done by a judge. This is a strict rule for those children under the age of nine. As for children over the age of nine, there is an argument to be made that a notary can swear the child as there is no requirement for the judiciary to conduct a voir dire of that child like there is for children under nine. However, there should be some inquiry as to the child’s understanding of the moral duty to tell the truth, especially the closer one gets to the age of nine. The inquiry must be sufficient to allay any concerns as to the competency of the child as there is no precise age as to when an infant is competent to testify. Carrasquillo v. City of New York, 866 N.Y.S. 2d 509, 22 Misc. 3d 171, 2008 N.Y. Slip Op. 28400 (NY, Supreme, 2008).

The best rule of thumb especially with significant matters when deciding whether to administer the oath to a child or not is the more consequential the underlying document or testimony is involving, the more likely one should ask for judicial guidance.