The fact that a child witness is unresponsive or evasive in response to certain questions on the witness stand does not render the child's out-of-court statements inadmissible under the child hearsay statute or violate the Sixth Amendment confrontation rights of the defendant. See Bright v. State, 197 Ga.App. 784, 785–786(4), 400 S.E.2d 18 (1990). See also McGarity v. State, 212 Ga.App. 17, 20–21(4), 440 S.E.2d 695 (1994); Blandburg v. State, 209 Ga.App. 752, 752–753(1), 434 S.E.2d 510 (1993).
And, a child victim is allowed to testify regardless of the child's ability to understand the nature of an oath. See OCGA § 24-6-603 (b) ; Gibby v. State , 213 Ga. App. 20, 22 (2) (d), 443 S.E.2d 852 (1994) (decided under former OCGA § 24-9-5 (b) ); Bright v. State , 197 Ga. App. 784, 784 (3), 400 S.E.2d 18 (1990) (same). The child simply becomes an unsworn witness.
Supra, 197 Ga. App. at 785 (4). Bright explained: Bright v. State, 197 Ga. App. 784, 785 (4) ( 400 SE2d 18) (1990). The thrust of the child witness statute is to allow the jury, which must be convinced of guilt beyond a reasonable doubt, to judge the credibility of a child's accusations. If a child, who has reported [abuse] to an adult permitted to testify to the out-of-court statement at trial, is incapable of reiterating the accusation at trial or is unresponsive or evasive during cross-examination, the jury must decide the child's credibility, taking into consideration the child's maturity and ability to withstand the pressure and intimidation of the courtroom environment.
The competency of the children could be established in this civil action only by demonstrating that they understood the nature of an oath, as required by subsection (a) of that statute. See In the Interest of K.T.B., supra. Compare Jenkins v. State, 235 Ga. App. 53, 55 (1) (b) ( 508 S.E.2d 710) (1998) (criminal case controlled by limited provisions of existing subsection (b)); Gibby v. State, supra at 22 (2) (d) (criminal case controlled by broader provisions of former subsection (b)); Bright v. State, 197 Ga. App. 784, 785 (4) ( 400 S.E.2d 18) (1990) (criminal case controlled by broader provisions of former subsection (b)). A review of the record shows that Ms. Woodruff, as the proponent of the admissibility of the children's inculpatory statements, completely failed to prove the "availability" of the young declarants.
Indeed, contrary to Allison's argument, "[t]he fact that a child witness is unresponsive or evasive in response to certain questions on the witness stand does not render the child's out-of-court statements inadmissible under [the former Child Hearsay Statute] or violate the Sixth Amendment confrontation rights of the defendant." Kirkland v. State , 334 Ga. App. 26, 32 (2), 778 S.E.2d 42 (2015) ; see also Stegall v. State , 297 Ga. App. 425, 426, 677 S.E.2d 441 (2009) ("the availability requirement of [the former Child Hearsay Statute] is met whenever the victim takes the stand, even if the victim is uncommunicative or unresponsive") (citation and punctuation omitted); Bell v. State , 263 Ga. App. 894, 896 (1), 589 S.E.2d 653 (2003) (holding that child victim's refusal to respond to questions did not make her an unavailable witness; rather, it merely affected her credibility); Bright v. State , 197 Ga. App. 784, 785 (4), 400 S.E.2d 18 (1990) ("So long as the witness is made available for confrontation and cross-examination, the defendant's rights are protected, even if the witness is uncommunicative or unresponsive."). Instead, "[a] witness’ responsiveness or unresponsiveness, evasiveness or directness, verbal skills, intelligence, memory, perception, and apparent understanding are all factors which can be assessed by the jury and may raise a reasonable doubt."
However, there is also a line of cases in which we have held that a child who is uncommunicative, unresponsive or evasive during questioning is available within the meaning of OCGA § 24-3-16. As we explained in Bright v. State, 197 Ga. App. 784 ( 400 SE2d 18) (1990), Bell v. State, 263 Ga. App. 894, 896 ( 589 SE2d 653) (2003); Smith v. State, 228 Ga. App. 144, 146 (3) ( 491 SE2d 194) (1997); Byrd v. State, 204 Ga. App. 252, 253 (1) ( 419 SE2d 111) (1992).
See Atkinson v. State, 243 Ga. App. 570, 575 (2) ( 531 SE2d 743) (2000); Court of Appeals Rule 25 (c) (2). See Warren v. State, 265 Ga. App. 109, 110 ( 592 SE2d 879) (2004); Thomas v. State, 255 Ga. App. 261, n. 1 ( 565 SE2d 130) (2002); Bright v. State, 197 Ga. App. 784 (1) ( 400 SE2d 18) (1990). See Cobb v. State, 268 Ga. App. 66, 67-68 ( 601 SE2d 443) (2004); Drummer v. State, 264 Ga. App. 617, 618-619 (1) ( 591 SE2d 481) (2003); Mack v. State, 263 Ga. App. 186, 186-187 (1) ( 587 SE2d 132) (2003).
The thrust of the child witness statute is to allow the jury, which must be convinced of guilt beyond a reasonable doubt, to judge the credibility of a child's accusations. If a child, who has reported child molestation to an adult permitted to testify to the out-of-court statement at trial, is incapable of reiterating the accusation at trial or is unresponsive or evasive during cross-examination, the jury must decide the child's credibility . . . The manner in which the witness responds to cross-examination is, itself, evidence as to credibility.' Bright[v. State, 197 Ga.App. 784, 785, 400 S.E.2d 18, 20 (1990)]. `A witness' responsiveness or unresponsiveness, evasiveness or directness . . . are all factors which can be assessed by the jury and may raise a reasonable doubt.
The thrust of the child witness statute is to allow the jury, which must be convinced of guilt beyond a reasonable doubt, to judge the credibility of a child's accusations. If a child, who has reported child molestation to an adult permitted to testify to the out-of-court statement at trial, is incapable of reiterating the accusation at trial . . . the jury must decide the child's credibility.Bright v. State, 197 Ga. App. 784, 785(4) ( 400 S.E.2d 18) (1990). Accord, Smith v. State, 228 Ga. App. 144, 146-147(3) ( 491 S.E.2d 194) (1997).
A witness' responsiveness or unresponsiveness, evasiveness or directness, verbal skills, intelligence, memory, perception, and apparent understanding are all factors which can be assessed by the jury and may raise a reasonable doubt.Bright v. State, 197 Ga. App. 784, 786 ( 400 S.E.2d 18) (1990). Dumas was given full and fair opportunity to cross-examine the victim in this case.