concurring in part and dissenting in part. I concur in the syllabus and in the judgment. I agree with Parts III, IV and V and the general discussion contained in Parts VI, VII and VIII of the majority opinion. I disagree in large measure with the discussion and conclusions flowing from Part II of the plurality opinion.
As suggested by Judge Mahoney below, the record in this case does not reflect any effort by the trial court to determine the child’s understanding or comprehension of the difference between true testimony and untrue testimony. There was no effort to determine whether Cynthia had any appreciation of the consequences of telling an untruth. It has been my experience that it is an extraordinary child that can be qualified as a witness at age five, let alone at an age of less than three years.
It has not been my experience that disqualification of a three- or four-year-old child necessarily leads to dismissal of a case or reluctance to prosecute it by the state. Physical evidence, and excited utterances and the like, combined with circumstantial evidence, often lead to convictions in this sort of case.
I am prepared to relax to some degree the Rules of Evidence in this area of the law but not to abandon the common-law rules as mandated by the General Assembly. The plurality opinion correctly reaches a like conclusion save for its determination as to when a child of tender years is “unavailable.” Like Justices Brown, Holmes and the Chief Justice, I feel a change in rules should come from the committee appointed for this purpose.