§ 18.01 INTRODUCTION: FRE 601

• Jurisdiction: North Carolina

§ 18.01. INTRODUCTION: FRE 601

Witness competency concerns the witness's qualifications to testify.¹ Mental competence involves the witness's ability to observe, recall, and relate.² Moral competence focuses on the witness's recognition of the duty to testify truthfully, a duty fortified by the oath requirement. At one time, common law rules of incompetency or disqualification had immense impact on trials because there were so many categories, including the parties, whose testimony was deemed unreliable due to their interest in the case.

However, many of these rules have evolved over time into impeachment rules. Thus, the trend is to provide the jury with more information — both the testimony of persons who were disqualified at common law and the information needed to evaluate their credibility.³ The following chart illustrates this point:

Common Law Disqualification Rule Interest (e.g., parties and spouses) Infancy Crime of infamy Insane, idiot, inebriate Infidel Current Impeachment Rule Bias⁴ Sensory or mental defect Conviction of crime (Rule 609) Sensory or mental defect Oath (Rule 603, see also Rule 610)

Federal rules. Federal Rule 601 provides that all witnesses are competent, and the drafters stated that there were no competency requirements.⁵ Nevertheless, some federal cases have suggested that a witness may be disqualified if he "does not have the capacity to recall, or that he does not understand the duty to testify truthfully."⁶ In effect, this approach turns the competency issue into a Rule 403 issue.

A different rule, Rule 702, governs the competency or qualifications of expert witnesses. In addition, Rule 603 specifies an oath requirement, and Rules 605 and 606 deal, respectively, with the competency of the trial judge and jurors.

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Notes:

^[1] The competency of a witness to testify differs from the competency of evidence. The latter typically concerns exclusionary rules in contradistinction to relevancy rules. Thus, under Rule 402, relevant evidence may be excluded due to the hearsay rule, a "competence" rule. See supra § 1.03 (law of evidence).

^[2] Ladd, Uniform Evidence Rules in the Federal Courts, 49 Va. L. Rev. 692, 714 (1963) ("Competency of a witness is based upon the capacity of a witness to tell the truth, accompanied with a consciousness of the obligation to do so.").

^[3] In 1918, the Supreme Court refused to be bound by "the dead hand of the common law rule of 1789" and wrote that it was "the conviction of our time...