State v. Mary Doherty
2 Tenn. 79 (1806)
Rule of Law:
A child witness who does not understand the nature and obligation of an oath is not competent to testify. Unsworn testimony is inadmissible as evidence before a grand jury under any circumstances.
Facts:
- Michael Doherty was murdered in Hawkins County.
- His daughter, Mary Doherty, who was between twelve and thirteen years of age, was accused of the crime.
- Mary's brother, a boy of about ten years of age, was presented as a potential witness.
- Upon examination, the boy was found to have no sense of the obligation of an oath, the consequences of false swearing, or any concept of a future state of existence.
- Before her arrest, Mary Doherty was known to have common sense and could talk like other people.
- After being arrested and incarcerated for approximately four months, Mary became almost entirely non-communicative, unresponsive, and appeared senseless.
Procedural Posture:
- The attorney-general brought the defendant's ten-year-old brother before the court for a competency examination to determine if he could testify before the grand jury.
- The court examined the boy and found him incompetent to be sworn as a witness.
- The attorney-general then moved to have the grand jury hear the boy's unsworn story, but the court denied the motion.
- Despite this, the grand jury found a true bill, and Mary Doherty was indicted for the murder of her father.
- Upon arraignment, Doherty stood mute.
- The court assigned counsel to represent her.
- When Doherty stood mute at a subsequent hearing, the court impaneled a special jury to inquire into the reason for her silence.
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Issue:
Is the unsworn testimony of a child witness, who does not comprehend the nature of an oath, admissible as evidence before a grand jury?
Opinions:
Majority - Per Curiam
No. The unsworn testimony of a child witness who does not comprehend the nature of an oath is not admissible before a grand jury. The court stated this rule is absolute, reasoning that while the law presumes discretion at age fourteen, it must be affirmatively shown for anyone younger. In this case, the ten-year-old boy was found to be the 'direct reverse' of having such discretion. Therefore, as he could not be sworn, his story could not be heard by the grand jury in any form.
Analysis:
This case affirms the foundational common law principle that witness competency is a prerequisite for testimony, with a key element being the witness's understanding of the testimonial oath. It underscores the court's role as a gatekeeper of evidence, applying strict standards even at the grand jury stage to ensure reliability. The decision establishes that a lack of capacity to understand the oath renders a potential witness completely incompetent, and this defect cannot be cured by allowing unsworn testimony. The latter part of the case text also serves as a historical illustration of the distinct common law procedure for handling a defendant who stands mute, which required a separate jury to determine if the silence was willful ('malice') or due to incapacity ('visitation of God').
