Florida/Georgia Personal Injury & Workers Compensation

...Quite often the distinction between a child's competency to be a witness and the child's credibility as a witness becomes blurred. See R. Morey, The Competency Requirement for the Child Victim of Sexual Abuse: Must We Abandon It?, 40 U.Miami L.Rev. 245, 282-283 (1985). The amendment to section 90.605(2), Florida Statutes (1985), contemplates the possibility that a child who is unable to separate fantasy from reality may still understand the obligation not to lie....

...nation conducted at the beginning of the child's videotaped deposition, the trial court found the child was competent to testify "within the confines of what is reasonable for a four-year-old." This finding does not satisfy the criteria set forth in section 90.605(2), which require the trial court to determine whether "the child understood the duty to tell the truth or the duty not to lie." In interpreting this statute, Florida courts have held that it is the duty of the trial court to determine...

...The court then rejected a challenge to admission of the hearsay predicated on the child's demonstrated inability to articulate the difference between the truth and a lie, one element of the traditional test to determine competency. Glendening, 503 So.2d at 340, citing Bell v. State, 93 So.2d 575 (Fla. 1957); § 90.605(2), Fla....

...l the truth. Before finding the child competent to testify as a witness, the trial court should determine that the child is capable of observing and recollecting facts, is capable of narrating those facts, and appreciates the need to tell the truth. § 90.605(2), Fla....

...03(23) procedural safeguards. Reversed and remanded for proceedings consistent with this opinion. ERVIN and BARFIELD, JJ., concur. NOTES [1] The statutory provisions applicable to the competency issue raised in this appeal are sections 90.603(2) and 90.605(2), Florida Statutes (1985). Section 90.603(2) provides: A person is disqualified to testify as a witness when the court determines that he is: ..... (2) Incapable of understanding the duty of a witness to tell the truth. Section 90.605(2) provides: (2) In the court's discretion, a child may testify without taking the oath if the court determines the child understands the duty to tell the truth or the duty not to lie.

...uffer a discernible physical injury. However, the trier of fact, which in these cases is often a jury, will be vested with the responsibility of determining the credibility of Mrs. Willis's testimony and the evidence presented in this case. Further, section 90.605 of the Florida Evidence Code operates to guard against giving false testimony in a court proceeding by requiring that each witness "declare that he or she will testify truthfully," and by mandating that each witness take an oath or affirmation to this effect which must be noted in the record....

oath prior to addressing the trial court. See § 90.605(1), Fla. Stat. (2018) (“Before testifying, each

...ideo taped testimony that she was unable to articulate the difference between the truth and a lie, an essential element of the traditional test for determining the competency of a witness of tender years. Bell v. State, 93 So.2d 575 (Fla. 1957). See § 90.605(2), Fla....

...Craig also requires that the witness testify under oath. Children are not required to testify under oath in Florida, [7] but the trial court may allow a child to testify if the child understands "the duty to tell the truth or the duty not to lie." § 90.605(2), Fla....

...e. Questions are to be asked in a gentle, patient, and non-aggressive manner, recognizing the tender years of the child. f. Appropriate recesses are to be taken at intervals appropriate to children of tender years, as suggested by Dr. Kuehnle. [7] Section 90.605(2), Florida Statutes (1989), reads as follows: (2) In the court's discretion, a child may testify without taking the oath if the court determines the child understands the duty to tell the truth or the duty not to lie.

...ether the child is capable of narrating those facts to the court or to a jury, and (3) whether the child has a moral sense of the obligation to tell the truth." Id. at 753 (citing Lloyd v. State, 524 So.2d 396 (Fla. 1988), and sections 90.603(2) and 90.605(2), Florida Statutes (1985))....

...Although the child was "relatively articulate and intelligent, she *1204 was not unequivocally capable of separating fact from fantasy." Griffin, 526 So.2d at 755. It is possible that a child who cannot separate fact from fantasy may nevertheless understand the moral obligation to tell the truth. Id. at 754 (citing section 90.605(2), Florida Statutes (1985))....

...nced. Although Houck raises several points on appeal, only those relating to the trial court's conduct of the suppression hearing merit discussion. An unsworn witness is not competent to testify. Crockett v. Cassels, 95 Fla. 851, 116 So. 865 (1928). Section 90.605, Florida Statutes (1981), requires that " each witness shall declare that he will testify truthfully, by taking an oath or affirmation......

...ct the witnesses to perjury charges." We disagree and find that the manner of administering the oath was binding. Oaths are binding if they convey the seriousness of the proceeding to the witness and assure the truthfulness of the testimony. [3] See § 90.605, Fla....

...Thus, the reliability element was not met in this case. As to the second requirement of Craig, the child did not testify under oath; however, a child in Florida is not required to testify under oath if the child understands "the duty to tell the truth or the duty not to lie." § 90.605(2), Fla....

...l the truth. Before finding the child competent to testify as a witness, the trial court should determine that the child is capable of observing and recollecting facts, is capable of narrating those facts, and appreciates the need to tell the truth. § 90.605(2), Fla....

...told. Our reference in Griffin to a child's "moral sense" of the obligation to tell the truth merely is a restatement of the statutory requirement that a child "understands the duty to tell the truth or the duty not to lie." Id. at 753 n. 1, citing § 90.605(2), Fla....

...Our statement that "knowing the difference between the truth and a lie does not impute a moral obligation or sense of duty to be truthful," id., while certainly true, falls short of a requirement to understand the moral underpinnings of truth-telling, as well it should; we do not require this of adults who testify. Section 90.605(2) contains no requirement that a child understand why there is a duty to tell the truth; the statute merely requires that the child understand that there is a duty to tell the truth....

...Based upon these errors, we must reverse the order of restitution. Since we must remand this case for a new hearing, we note the trial court may not rely upon unsworn testimony and solely upon argument of counsel as the basis for determining the amount of restitution. See § 90.605, Fla....

...Criminal Procedure 3.850. We affirm and write solely to address Mr. Murphy's contention that the circuit court erred in permitting his trial counsel and expert witness (also an attorney) to testify at the evidentiary hearing without taking the oath. Section 90.605, Florida Statutes requires that each witness take the oath before testifying....

...nd nothing but the truth?" The witness's answer shall be noted in the record. (2) In the court's discretion, a child may testify without taking the oath if the court determines the child understands the duty to tell the truth or the duty not to lie. § 90.605, Fla....

...T.A., 528 So.2d 974, 975 (Fla. 2d DCA 1988). In order to preserve the issue for appeal, an objection to the trial court's failure to administer the witness oath must be lodged with the trial court. In a case involving a trial that occurred prior to the effective date of section 90.605(2), Florida Statutes (Supp....

...dered as evidence. The statements of the various witnesses in the EOA investigation were not made under oath. Before testifying in either a judicial or administrative hearing a witness is required to "declare that he or she will testify truthfully." § 90.605(1), Fla....

...[A]pparently on the basis of the de minimis competency examination conducted at the beginning of the child's videotaped deposition, the trial court found the child was competent to testify "within the confines of what is reasonable for a four-year-old." This finding does not satisfy the criteria set forth in section 90.605(2), which require the trial court to determine whether "the child understood the duty to tell the truth or the duty not to lie." In interpreting this statute, Florida courts have held that it is the duty of the trial court to determine...

180 L.Ed.2d 610 (2011). We also note that section 90.605(1), Florida Statutes (2015), imposes an oath

...capable of understanding the duty of a witness to tell the truth." § 90.603, Fla. Stat. (1988). Moreover, in the court's discretion, "... a child may testify without taking the oath if *522 the court determines the child understands the duty to tell the truth or the duty not to lie." § 90.605, Fla....

...r and a half years old at the present time, was capable of observing and recalling facts, narrating those facts to the court or to a jury, and whether or not the witness had the moral sense and not only obligation to tell the truth. Under 90.603 and 90.605 this determination must be made before the court can allow a witness to proceed....

...imony and not its admissibility. In its written order, the trial court recognized that the child was extremely bright and precocious; however, the court also recognized that she was emotionally needy and that she had made many incredible statements. Section 90.605(2), Florida Statutes (2006), provides that, as a matter of trial court discretion, "a child may testify without taking the oath if the court determines the child understands the duty to tell the truth or the duty not to lie." In determ...

...ce he was about to give would be the truth. Finding no error, we affirm. "An unsworn witness is not competent to testify." Houck v. State, 421 So.2d *295 1113, 1115 (Fla. 1st DCA 1982) (citing Crockett v. Cassels, 95 Fla. 851, 116 So. 865 (1928) and § 90.605, Fla. Stat.). Section 90.605, Florida Statutes, requires that each witness take an oath before giving testimony....

...by taking an oath or affirmation in substantially the following form: "Do you swear or affirm that the evidence you are about to give will be the truth, the whole truth, and nothing but the truth?" The witness's answer shall be noted in the record. § 90.605(1), Fla. Stat. (2007). The only exception is that a court may, in its discretion, allow a child to testify without taking the oath, if the court determines that "the child understands the duty to tell the truth or the duty not to lie." § 90.605(2), Fla. Stat. (2007). Here, the trial court started the hearing by having his trial clerk administer an oath in substantially the form set forth in section 90.605 to both Willis and petitioner Romano....

...r the lower tribunal committed error based on the issues and evidence before it."). With respect to the issue raised, the trial judge correctly followed the law by refusing to allow Willis to testify without taking an oath. Houck, 421 So.2d at 1115; § 90.605, Fla....

that she had made many incredible statements. Section 90.605(2), Florida Statutes (2006), provides that

duty to tell the truth or the duty not to lie.” § 90.605(2). Because a challenge to the child victim’s

ERVIN and BOOTH, JJ., concur. . We recognize that § 90.605(2), Fla.Stat. (Supp.1976), effective July 1, 1978

PER CURIAM. AFFIRMED. See § 90.605(1), Fla. Stat.; United States v. Fowler, 605 F.2d 181, 185 (5th Cir

does not reflect that any witness was sworn. See § 90.605, Fla.Stat. (1991). Essential testimony was received