§601 Competency of Witnesses

• Library: Evidence Restated Deskbook (2021 Ed.)

§601 Competency of Witnesses

A. General rule of competency. Every person is presumed competent to be a witness except as otherwise provided by law.

B. Persons incompetent to testify. The following persons are incompetent to testify:

1. Mentally incapacitated. A person who is mentally incapacitated at the time of the person's production for examination.

2. A child under ten years of age who appears incapable of receiving just impressions of the facts respecting which the child is examined, or of relating them truly.

Exception. Unless mentally incapacitated, a child who is alleged to be a victim of an offense under Chapter 565, RSMo (offenses against the person), Chapter 566, RSMo (sexual offenses), or Chapter 568, RSMo (offenses against the family), is considered a competent witness and is allowed to testify without qualification in any judicial proceeding involving the alleged offense. The trier of fact is permitted to determine the weight and credibility to be given to the testimony.

3. Attorney in regard to privileged communications. An attorney, concerning any communication made to the attorney by the attorney's client in that relation, or that attorney's advice thereon, without the consent of the client.

4. Spiritual advisor in regard to privileged communications. Any person practicing as a minister of the gospel, priest, rabbi, or other person serving in a similar capacity for any organized religion, concerning a communication made to that person in the professional capacity as a spiritual advisor, confessor, counselor, or comforter.

5. Medical care provider in regard to privileged communications. A physician licensed under Chapter 334, RSMo, a chiropractor licensed under Chapter 331, RSMo, a licensed psychologist, or a dentist licensed under Chapter 332, RSMo, concerning any information that the person may have acquired from any patient while attending the patient in a professional character, and which information was necessary to enable that person to prescribe and provide treatment for the patient as a physician, chiropractor, psychologist, or dentist.

Notes

A. General rule of competency

The general rule that every person is competent to be a witness is brought about through Missouri "enabling statutes," removing most common law testimonial disabilities.

See:

· Section 491.010.1, RSMo 2016 ("No person shall be disqualified as a witness in any civil suit or proceeding at law or in equity, by reason of his interest in the event of the same as a party or otherwise, but such interest may be shown for the purpose of affecting his credibility.")

· Section 546.260.1, RSMo 2016 ("No person shall be incompetent to testify as a witness in any criminal cause or prosecution by reason of being the person on trial or examination, or by reason of being the husband or wife of the accused, but any such facts may be shown for the purpose of affecting the credibility of such witness; . . . .")

· Section 491.050, RSMo 2016 ("Any person who has been convicted of a crime is, notwithstanding, a competent witness; however, any prior criminal convictions may be proved to affect his credibility in a civil or criminal case and, further, any prior pleas of guilty, pleas of nolo contendere, and findings of guilty may be proved to affect his credibility in a criminal case. . . .")

· Section 546.250, RSMo 2016 ("No person shall be rendered incompetent to testify in criminal causes by reason of his being the person injured or defrauded, or intended to be injured or defrauded, or that would be entitled to satisfaction for the injury, or is liable to pay the costs of the prosecution.")

As a result, Missouri courts presume "that a witness is competent to testify, except for a few statutory exceptions, including mental incapacitation." State v. Rauch, 118 S.W.3d 263, 273 (Mo. App. W.D. 2003).

Whether a person is competent to testify is a discretionary determination for the trial court to make outside the presence of the jury. The "ruling will not be reversed on appeal except upon a showing of clear abuse of that discretion." Id.; see Cardenas v. Dir. of Revenue, 339 S.W.3d 608, 612 (Mo. App. S.D. 2011) (reversing the judgment of the trial court as a clear abuse of discretion for holding the testimony of a police officer during a proceeding challenging the revocation of a licensee's driving privileges to be incompetent and inadmissible because nothing in the record supported this determination); see also generally Ferguson v. Ga., 365 U.S. 570 (1961) (disqualification of a defendant or a witness from being asked questions by his counsel to elicit his unsworn testimony is prohibited under the Sixth and Fourteenth Amendments (guaranteeing the right to the effective assistance of counsel)); Washington v. Tex., 388 U.S. 14 (1967) (the Sixth Amendment right to compulsory process for obtaining witnesses was violated by a statute barring principals, accomplices, and accessories in the same crime from acting as witnesses for each other).

No presumption of incompetency because of need of interpreter when unable to speak or hear

"Cases dealing with the testimony of witnesses unable to speak or hear have uniformly held that they are not thereby deemed incompetent merely because of that disability." Kley v. Abell, 483 S.W.2d 625, 627 (Mo. App. E.D. 1972); see also State v. Smith, 102 S.W. 526, 528 (Mo. 1907) (ten-year-old child who was deaf and mute was a competent witness); State v. Howard, 24 S.W. 41, 45 (Mo. 1893) (a person deaf and mute from birth is not presumed to be incompetent).

B. Persons incompetent to testify

1. Mentally incapacitated person

The disability is contained in § 491.060(1), RSMo 2016: "The following persons are incompetent to testify: (1) A person who is mentally incapacitated at the time of his or her production for examination."

Burden of proof

The competency of a witness, objected to on the ground of incapacity, is for the trial court. State v. Smith, 102 S.W. 526, 528 (Mo. 1907). The determination will not be reversed except for clear abuse. State v. Robinson, 835 S.W.2d 303, 308 (Mo. banc 1992).

The burden of showing that someone is mentally incapacitated is placed on the party objecting to the competency of the witness on that ground. State v. Herring, 188 S.W. 169, 174 (Mo. 1916). "A prior adjudication of mental incompetence or a record of confinement in a mental hospital is not conclusive; a witness must exhibit some mental infirmity and fail to meet the traditional criteria for witness competence." State v. Newton, 963 S.W.2d 295, 297 (Mo. App. E.D. 1997). The traditional criteria hold that a witness:

is competent to testify if the witness shows:

(1) a present understanding of, or the ability to understand upon instruction, the obligation to speak the truth;

(2) the capacity to observe the occurrence about which testimony is sought;

(3) the capacity to remember the occurrence about which testimony is sought; and

(4) the capacity to translate the occurrence into words.

Id. at 297; see also Herring, 188 S.W. at 174.

Rebuttable presumption of incapacity if person confined to a mental institution under lawful process or adjudicated as mentally ill

Section 491.060(1), RSMo 2016, creates a presumption that:

a person confined to a mental institution under lawful process or adjudicated as mentally ill is absolutely incompetent as a witness. The presumption may be overcome . . . by extrinsic evidence that the witness understands the obligation of the oath, has sufficient mind and memory to notice, recollect and communicate the events. The burden to rebut the presumption of incompetency . . . rests on the party who offers the witness.

State v. Dighera, 617 S.W.2d 524, 526–27 (Mo. App. W.D. 1981) (citations omitted).

Rebuttal occurred in State v. Darty, 619 S.W.2d 750, 751 (Mo. App. E.D. 1981). The court of appeals held that treatment at a mental hospital in the past and monthly outpatient treatment did not establish an "unsound mind" under § 491.060(1) (currently enacted as "mentally incapacitated" in § 491.060(1)). See also Dighera, 617 S.W.2d at 526–28) (in rape and sodomy prosecution, the victim was held competent to testify although, at the time of trial, she was confined to a mental health center under order of the court and could not see, hear, or speak).

Similarly, in Szramkowski v. Szramkowski, No. ED 93149, 2010 WL 2284222, at *5 (Mo. App. E.D. June 8, 2010), testimony was accepted from a person adjudged to be incompetent by reason of dementia (notwithstanding that § 475.078.3, RSMo Supp. 2019, declares such a person presumed to be incompetent) because the presumption of incompetency was held rebutted.

Testimony contrary to physical fact, habitual drunkenness, addiction, and mental deficiency

That testimony may be contrary to physical fact . . . does not render the witness incompetent, but merely affects credibility and the weight the trier of fact chooses to accord that testimony. Nor does a condition of habitual drunkenness, or of addiction to narcotics, or of mental deficiency, [by itself] overcome the presumption of competency of such a person to give testimony.

State v. Johnson, 714 S.W.2d 752, 759 (Mo. App. W.D. 1986) (citations omitted).

Raising the issue of competency

If the defense wants to challenge the competency of a witness for the State, it is recommended that a motion be filed for the hearing. At the hearing, the defendant can present evidence, cross-examine, and call its psychiatrist to show incapacity. The State can also present evidence, including testimony by the witness and its psychiatrist, to show that the witness is competent. State v. Robinson, 835 S.W.2d 303, 307 (Mo. banc 1992); see also State v. Whitsett, 134 S.W. 555, 560–61 (Mo. 1910) (a defendant did not preserve for appeal the question of a witness's soundness of mind when the...