Chapter 4 - § 4.1 • INCOMPETENT WITNESSES

• Jurisdiction: Colorado

§ 4.1 • INCOMPETENT WITNESSES

§ 4.1.1—Introduction

There is a general presumption that all witnesses are competent to testify, unless they fall within specific exceptions. C.R.S. § 13-90-101 provides as follows:

All persons, without exception, other than those specified in sections 13-90-102 to 13-90-108 may be witnesses. Neither parties nor other persons who have an interest in the event of an action or proceeding shall be excluded; nor those who have been convicted of crime; nor persons on account of their opinions on matters of religious belief. In every case the credibility of the witness may be drawn in question, as now provided by law, but the conviction of any person for any felony may be shown for the purpose of affecting the credibility of such witness. The fact of such conviction may be proved like any other fact, not of record, either by the witness himself, who shall be compelled to testify thereto, or by any other person cognizant of such conviction as impeaching testimony or by any other competent testimony. Evidence of a previous conviction of a felony where the witness testifying was convicted five years prior to the time when the witness testifies shall not be admissible in evidence in any civil action.

See also CRE 602.

This general presumption of competency is limited by other statutes, particularly C.R.S. § 13-90-102 through -108, as well as the Rules of Evidence. For example, CRE 602 requires that the witness have personal knowledge of the subject matter of his or her testimony. The Colorado Supreme Court provided the following summary of the presumption, "Unless it is provided otherwise by statute or by rule, every person with personal knowledge of the matter on which he is to testify is competent to be a witness." Wise v. Hillman, 625 P.2d 364, 367 (Colo. 1981).

The question of whether a person is competent as a witness is for the trial judge to decide. See generally People v. Bowers, 773 P.2d 1093, 1096 (Colo. App. 1988); People v. Galloway, 677 P.2d 1380, 1381 (Colo. App. 1983). A trial judge's decision on competency is given considerable deference, and will only be overturned for an abuse of discretion. See, e.g., Galloway, 677 P.2d at 1381 ("The trial court has wide latitude in determining competency and its finding may not be altered unless there was an abuse of discretion."); People v. Lancaster, 605 P.2d 67 (Colo. App. 1979). In making this determination, courts generally look to whether the witness "is able to observe and...