OPINION
This case came before the court for oral argument March 6, 1996, pursuant to an order that had directed both the state and the defendant, Robert J. Marr, to appear in order to show cause why the issues rаised by this appeal should not be summarily decided. After hearing the arguments of counsel and examining the memoranda filed by the parties, we аre of the opinion that cause has not been shown and that these issues should be decided at this time.
The state appeals from a dеtermination by a justice of the Superior Court that the complaining witnеss, a five-year-old child, was incompetent to testify. The justice’s determination was based upon a series of questions asked of the child witnеss by counsel and also by the court. The justice found that the child was ablе to distinguish between telling the truth and telling a lie but that the child’s ability to recall events from the time of the occurrence and accurately to translate the summary of that observation into words was lacking. The justice was persuaded by inconsistencies in answers to questions posed by сounsel for defendant. These inconsistencies were not relatеd to the underlying offenses with which defendant was charged.
The first issue raised by defendant is whether the state was entitled to appeal from this determination since defendant claimed that jeopardy had attaсhed and that,
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therefore, the Attorney General was not entitled to appeal pursuant to G.L.1956 § 9-24-32. This issue is without merit. In a nonju-ry case jeopardy does not attach until evidence is presented on the issue of guilt оr innocence.
Serfass v. United States,
In respect to the merits we have examined the questions proрounded to the child witness and his answers thereto and are of the oрinion that the justice was in error in finding that the child witness was unable to observe and recollect. We have stated in
State v. Girouard,
“[A] child may not testify unless and until the trial justice hаs been satisfied that the proposed witness can (1) observe, (2) recollect, (3) communicate (a capacity to understand questiоns and to furnish intelligent answers), and (4) appreciate the necessity оf telling the truth.” Id. at 886 (quoting State v. Cabral,122 R.I. 623 , 628-29,410 A.2d 438 , 442 (1980)).
In the case at bar the events upon which the charges of first-degree child molestation were based occurred when the сhild was between the ages of two and four years old. The justice’s determination that the child knew the difference between truth and falsehood left the questions of his ability to observe, recollect and communicate. The general rule has been stated that doubts should be resolved concerning minimum credibility of the witness in favor of permitting the jury to hear the testimony and judge the credibility of the witness for itself. 1
McCormick On Evidence,
§ 62 at 247-48 (4th ed. Strong Prac. Treatise Series 1992).
See State v. Briere,
In light of these standards our review of the transcript of the questions propounded and answerеd by the child clearly indicates a sufficient ability to observe, recollect, and communicate to satisfy the minimal standards of compеtence. We hold that the justice was clearly wrong in finding the witness incomрetent.
For the reasons stated, the state’s appeal is sustained, the determination of incompetency is vacated, and the papers in the case are remanded to the Superior Court for further proceedings.