Due Process

Defendant appealed the decision of the trial judge sustaining the violation of R.I.G.L. 1956 § 31-20-12 (stopping for school bus required). Defendant claimed that the trial judge abused her discretion when she determined that the defendant’s son was not competent to testify because she observed that the child was “too nervous” and stated she was “not going to put [the defendant’s son] through that.” The Court held that generally, witnesses are presumed to be competent to testify until proven otherwise, however, children present unique circumstances and should be evaluated to determine the competency and trustworthiness of their testimony. The Rhode Island Supreme Court in State v. Girourard, 561 A.2d 882, 886 (R.I. 1989), set out four capacities that the trial judge must be satisfied that the child possesses in order for a child to be competent to testify: the ability to observe, to recollect, to communicate, and to appreciate the necessity of telling the truth. Here, the Court held that the trial judge’s decision that the defendant’s son was not competent was an abuse of discretion because she did not conduct the analysis prescribed in Girourard to determine if the child was competent to testify. Accordingly, the Court reversed the decision of the trial judge and dismissed the violation.City of Providence v. Gerald Fogel, C.A. No. T11-0055 (November 21, 2011).pdf