Witness Competence and Credibility: the Relevance of Religious Beliefs

• Publication year: 1997
• Pages: 121

26 Colo.Law. 121 Colorado Lawyer 1997.

1997, June, Pg. 121. Witness Competence and Credibility: The Relevance of Religious Beliefs

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121

Vol. 26, No. 6, Pg. 121

The Colorado Lawyer
June 1997
Vol. 26, No. 6 [Page 121]

Specialty Law Columns
Civil Evidence
Witness Competence and Credibility: The Relevance of Religious Beliefs
by Adam R. Eaton

Adam R. Eaton is an associate with Holme Roberts & Owen LLP, (303) 861- 7000

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Persons interested in submitting articles for publication in this column may contact Lawrence Zavadil with Holme Roberts & Owen LLP in Denver, (303) 861-7000

Q. -Whether, in 1870, a witness' religious beliefs were admissible to prove competency and to assess credibility?

A. -Yes. Today, however, Colorado has eliminated the "religious believer" competency requirement, and Colorado Rules of Evidence ("C.R.E.") 610 excludes evidence of religious beliefs to impair or enhance a witness' credibility.

Assumed Facts

In 1870, Joe Blasphemous filed suit against Temple, alleging breach of an oral agreement to sell several stained glass windows to be installed in Temple's new building.1 In its defense, Temple denied the existence of any agreement with Joe.

At trial, Joe's lawyer called him to testify as to the existence and terms of his oral contract with Temple. Citing his lack of religious beliefs, Joe refused to take an oath. Joe did state that he would tell the truth. Temple's lawyer objected to Joe's testimony in its entirety. How would the court have ruled in 1870? Would the result differ today?

Discussion

At common law, the competency of a witness to testify required belief in a "divine being" who would punish false testimony.2 Witnesses were required to swear an oath as a means of insuring truthful testimony. If the oath-taker lied, a deity would be "angry and outraged."3 The oath required a belief in a Supreme Being. Lack of faith was grounds for finding a witness incompetent to testify.4

During the late nineteenth century, most states abandoned this competency requirement, either by state constitutional or statutory enactments, or through constitutional interpretation.5 By territorial act in 1872, Colorado eliminated religious beliefs as a prerequisite to witness competency.6 Dating back to 1883, Colorado's general statutory provision on witness competency, CRS § 13-90-101 prevents the...