The age of the child does not necessarily determine whether a child can or should testify. But in Washington, the admission of testimony by children under age 10 is within the discretion of the trial court. Children under the age of 10, who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly, may not be considered competent to testify.



Generally, a child may be held competent to testify if that child (1) understands the obligation to speak the truth on the witness stand; (2) has the mental capacity, at the time of the occurrence concerning which the child is to testify, to receive an accurate impression of it; (3) has a memory sufficient to retain an independent recollection of the occurrence; (4) has the capacity to express in words a memory of the occurrence; and (5) has the capacity to understand simple questions about the occurrence. The final determination of whether the child is competent to testify will rest with the judge, who will evaluate and listen to the child, as well as consider the child's demeanor and manner of testifying.

Likelihood of Going to Court It's important to remember that most child injury cases do settle without going to court or trial. Statistically speaking, the chance that a typical personal injury case will go to trial is extremely small, probably less than 5% of all cases. I believe that the likelihood of a personal injury case involving a minor child will go to court is even smaller. This assumes however that the evidence of liability against the defendant is strong and the injuries are fairly serious and supported by the medical doctors and other experts involved in the case. Despite the low probability of a child injury case ever going to court, I have found however that the case must be thoroughly prepared as if it were going to trial. Insurance companies and their attorneys will not agree to pay a premium settlement offer unless they are convinced that there exists a strong possibility of a jury awarding much more money if the case goes to trial. A case that has been competently and thoroughly prepared will therefore increase the likelihood that the case will settle short of trial.