§ 18.11 KEY POINTS

• Jurisdiction: United States

§ 18.11. KEY POINTS

Witness competency concerns the witness's qualifications to testify. Mental competence involves the witness's ability to observe, recall, and relate. Moral competence focuses on the witness's recognition of the duty to testify truthfully, which is 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. 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 would have been disqualified at common law and the information needed to evaluate their credibility.

Federal rule. Rule 601 provides that all witnesses are competent, and the drafters stated that there were no competency requirements. Nevertheless, some federal cases have suggested that the testimony of a witness who does not have the capacity to recall may be excluded under Rule 403.

Oath requirement. Rule 603 requires witnesses to swear or affirm to the truthfulness of their testimony. The purpose of the oath is merely to add a stimulus to truth-telling. Moreover, a perjury prosecution requires the taking of an oath. The form of the oath or affirmation is not important.

Mental competency. Persons of "unsound mind" were automatically disqualified from testifying at common law. This is not true today. Even those adjudged insane are not necessarily disqualified because the test for insanity differs from the standard for witness competency and focuses on a different point in time. The trial court has the authority to order a psychiatric or psychological examination of a potential witness challenged on mental competency grounds, but few courts do so.

Ability to communicate. On rare occasions, a witness's competency to testify has been challenged for the lack of ability to communicate. Except where the witness's disability precludes cross-examination, the courts have permitted witnesses to testify through a variety of means such as hand signals, language interpreters, and computers.

Child competency and testimony. Child abuse cases have had a substantial impact on the law of evidence, and competency has received renewed attention. Some jurisdictions continue the older approach requiring a competency inquiry for children under 10 years of age. Children under ten are often...