Chapter 6 601 Competency of Witnesses

• Library: Evidence Guide 2003

§601 Competency of witnesses

§602 Lack of personal knowledge

§603 Oath or affirmation

§604 Interpreter

§605 Competency of judge as witness

§606 Competency of juror as witness

§607 Who may impeach

§608 Impeachment by evidence of character and conduct of witness

§609 Impeachment by evidence of conviction of crime

§610 Religious beliefs or opinions

§611 Mode and order of interrogation and presentation

§612 Refreshment of recollection

§613 Impeachment by prior inconsistent statement of witness

§614 Calling and interrogation of witness by court

§615 Exclusion of witness

§616 Impeachment by evidence of bias

§617 Impeachment by contradiction

§601 Competency of Witnesses

(a) General rule

Except as otherwise provided in this section or by law, every person is presumed to be competent to be a witness.

(b) Child witness

(1) Victims of particular criminal acts

Any child under age ten who is alleged to have been a victim of an offense under Chapters 565, offenses against the person, 566, sexual offenses, or 568, RSMo, offenses against the family, is competent as a witness in any judicial proceeding involving such an alleged offense.

(2) Other child witness

A child witness under the age of ten is presumed incompetent to be a witness. Such a child may be competent if the child has been shown to exhibit: (1) an understanding of, or intelligence to understand on instruction, an obligation to speak the truth; (2) the capacity to translate into words the memory of the observation; (3) the mental capacity to truly observe and register the occurrence; and (4) a memory sufficient to retain an independent recollection of the observations made.

(c) Mentally incompetent witness

A person who has been adjudicated mentally incompetent or who is lawfully confined to a mental institution is presumed incompetent to be a witness. Such a person may be competent if the person has been shown to have an understanding of the obligation of the oath and sufficient mind and memory to notice, recollect, and communicate the events.

Notes

Subdivision (a)—General rule

Subdivision (a) is consistent with Missouri “enabling statutes,” which have removed many of the common law testimonial disabilities. See § 491.010, RSMo 2000; § 546.260, RSMo 2000; §504, supra; § 491.050, RSMo 2000. Generally, witnesses are presumed to possess the requisite understanding of the obligation to tell the truth, memory, perception, and ability to communicate the events to which testimony is given. Matters classified as privileged, as distinguished from competency of a witness to testify thereto, are treated in Chapter 5.

Subdivision (b)—Child witness

Subpart (1)—Victim of particular criminal acts

When a child under age ten is alleged to have been the victim of an offense under Chapters 565, offenses against the person, 566, sexual offenses, or 568, RSMo, offenses against the family, the victim is competent as a witness and allowed to testify without qualification in any judicial proceeding involving such an alleged offense. Section 491.060(2), RSMo 2000. The constitutionality of § 491.060(2) was at issue in State v. Williams, 729 S.W.2d 197 (Mo. banc 1987), where the Court found:

1. no due process violation because the criminal defendant maintained a “fair opportunity to defend against the State’s accusations”
2. no denial of equal protection because the statute “does not arbitrarily classify various criminal offenders”; and
3. no right of confrontation violation because the defendant maintained an opportunity for effective cross-examination

See also State v. Silvey, 894 S.W.2d 662, 669 (Mo. banc 1995). Because of the conclusive competency of particular child victims, the only way the child victim’s testimony can be excluded is under § 491.060(1), “mentally incapacitated” persons, subdivision (c), infra. State v. Beine, 730 S.W.2d 304, 307–08 (Mo. App. E.D. 1987).

Subpart (2)—Other child witness

Except as victims of particular crimes, Subpart (1), above, the effect of § 491.060(2), RSMo 2000, is to create a rebuttable presumption of incompetency of a child under the age of ten. But the trial judge exercises considerable discretion to determine whether the child witness meets each of four requirements of competency. The correct procedure is through an adequate preliminary inquiry conducted out of the presence of the jury. See Kordonowy v. Kordonowy, 887 S.W.2d 809, 811–13 (Mo. App. E.D. 1994). The voir dire examination of the child need not be conducted in the presence of a criminal defendant. Kentucky v. Stincer, 482 U.S. 730 (1987).

The child must exhibit a “[p]resent understanding of or intelligence to understand, on instruction, an obligation to speak the truth.” State v. Starks, 472 S.W.2d 407 (Mo. 1971) (quoting 5 Burr W. Jones, Commentaries on Evidence § 2106, p. 3954). The child need not understand the formal oath or the specific legal consequence of failing to tell the truth in a courtroom; rather, a “practical understanding of the abstract concepts of truth and falsity” is sufficient. State v. Sanders, 533 S.W.2d 632 (Mo. App. E.D. 1976).

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The child must possess the “capacity truly to translate into words the memory of such observation.” 5 Burr W. Jones, Commentaries on Evidence § 2106, p. 3594; see State v. Ball, 529 S.W.2d 901, 904–06 (Mo. App. E.D. 1975). But see State v. Feltrop, 803 S.W.2d 1, 10 (Mo. banc 1991) (six-year-old properly excluded from testifying where she could not remember day her mother was killed and failed to exhibit an understanding of the obligation to tell the truth).

It is also required that the child possess the “mental capacity at the time of the occurrence at issue truly to observe and register such occurrence” and a “memory sufficient to retain an independent recollection of the observations made.” 5 Burr W. Jones, Commentaries on Evidence § 2106, p. 3594; see State v. Brown, 902 S.W.2d 278, 286–87 (Mo. banc 1995). “[T]he younger the child is at the time of the occurrence the more dubious becomes his capacity” to meet the requirement, and “the longer the intervening period between the occurrence and the trial, the more suspect becomes the sufficiency of the child’s memory to bridge that time interval. . . .” Hildreth v. Key, 341 S.W.2d 601, 609–13 (Mo. App. S.D. 1960). Other considerations include whether the event was such that it would tend to leave a lasting impression upon the child’s recollection. See State v. Armoneit, 588 S.W.2d 24 (Mo. App. E.D. 1979).

Subdivision (c)—Mentally incompetent witnesses

All witnesses should be found to understand the obligation to tell the truth, and that may be questionable as to persons who are so ill or confused as to raise an assertion of unsoundness of mind. Section 491.060(1), RSMo 2000, creates a rebuttable presumption of incompetency of one lawfully confined to a mental institution or adjudicated mentally incompetent. But the trial judge exercises considerable discretion in determining whether the presumption of incompetency is overcome through evidence that the witness “understands the obligation of the oath, has sufficient mind and memory to notice, recollect and communicate the events.” State v. Dighera, 617 S.W.2d 524, 526–28 (Mo. App. W.D. 1981); see also Clark v. Reeves, 854 S.W.2d 28, 30–31 (Mo. App. W.D. 1993).

No presumption of incompetency exists unless the person has been lawfully confined to a mental institution or adjudicated mentally incompetent. Otherwise, the burden rests on the party objecting to the testimony to overcome the usual presumption of competency. See State v. McCarty, 460 S.W.2d 630, 637 (Mo. 1970); McCrary v. Ogden, 267 S.W.2d 670, 672 (Mo. 1954).

Subdivision (c). Others disqualified by law

Illustrative of other persons who, in particular circumstances, may be declared incompetent to testify is one who is presented as a witness for the state but who has been jointly charged in the same indictment as a defendant in the case, whether in the same or separate trials, unless the charge or charges against the co-indictee contained within the indictment have been disposed of through a plea of guilty, dismissal, or nolleprosequi. Section 546.280, RSMo 2000, a legislative regulation of the practice to be pursued where the state desires to use as a witness a codefendant jointly indicted, specifically to be distinguished from where the state may elect to separately indict, provides:

When two or more persons shall be jointly indicted or prosecuted, the court may, at any time before the defendants have gone into their defense, direct any defendant to be discharged, that he may be a witness for the state. A defendant shall, also, when there is not sufficient evidence to put him on his defense, at any time before the evidence is closed, be discharged by the court for the purpose of giving his testimony for a codefendant. The order of discharge shall be a bar to another prosecution for the same offense.

See State v. Chyo Chiagk, 4 S.W. 704, 705–09 (Mo. 1887).

Section 210.839.3, RSMo 2000, states that, in a paternity proceeding, a male witness proffered to testify concerning his sexual intercourse with the mother at or about the probable period of conception of the child but whose identity and address were not provided in a notice to the adverse party at least 30 days before trial is incompetent to testify.

Exceptions to disqualification

While § 546.280, RSMo 2000, prevents a defendant who is jointly charged with others from testifying on behalf of the state, the statute is inapplicable when codefendants are charged in separate indictments, even if it is alleged that the crimes were committed “in concert” with others. See State v. Shives, 601 S.W.2d 22, 29 (Mo. App. W.D. 1980). A co-indictee is free to testify for the state once the charges pending against him or her have been disposed of. See State v. Blevins, 427 S.W.2d 367, 369 (Mo. 1968).

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