Rule 601 General Rule of Competency

• Jurisdiction: Arizona

Every person is competent to be a witness except as otherwise provided in these rules or by statute.

Comment

This rule provides that every person is competent to be a witness except as otherwise provided in these rules or by statute.[1] A.R.S. Sec. 12-2201 provides that, as a general rule, every person, including a party, may testify,[2] except as otherwise provided by law. A.R.S. Sec. 13-4061 was amended in 1985 to provide that every person is competent to be a witness in a criminal trial. The trial court therefore does not have the power to preclude a witness from testifying in a criminal action on the basis of competency. The witness must be allowed to testify, with the jurors to determine whether the witness is credible.

A.R.S. Sec. 12-2202(1) prohibits testimony by persons of unsound mind from testifying in a civil action. A.R.S. Sec. 12-2202(2) sets age 10 as the presumptive age of competency for children in a civil action. A child under 10 years of age may not testify in a civil action unless the party offering the child as a witness establishes that the child is capable of receiving just impressions of the facts or relating the facts truly.[3] There is no arbitrary age limit under which the testimony of a child is automatically rejected; this is instead left to the discretion of the trial court based upon an evaluation of the child's degree of understanding and knowledge.

Competency is a question for the trial court to determine under Rule 104(a).[4] Competency relates to the time when the person is called as a witness, and not to the time when the events occurred.[5] The test the trial court must use to determine whether a person's mind is so unsound that the person is not competent to be a witness is whether the person's mental derangement or defect is such that the person is deprived of the ability to perceive the event, remember the event, or relate the event.[6] Other than A.R.S. Sec. 12-2202(2), there is no statutory prohibition to testifying on the grounds the witness suffered a defect in perception. This instead goes to credibility, which is a question for the jurors.[7]

Cases

601.010 Every person is competent to be a witness except as provided by statute or by the rules.

Zimmer v. Peters, 176 Ariz. 426, 861 P.2d 1188 (Ct. App. 1993) (because trial court considered only written record and did not take evidence or conduct any live examination before concluding that plaintiff was not competent to be witness, trial court abused discretion).

601.020 The determination whether a person is competent to be a witness is a matter left to the sound discretion of the trial court, which should be exercised in favor of allowing the person to testify.

State v. Jerousek, 121 Ariz. 420, 590 P.2d 1366 (1979) (trial court's discretion practically unlimited; where trial court, prosecutor, and defense attorney questioned 8-year-old victim in chambers, finding by trial court of competency without psychiatric examination of victim not abuse of discretion).

Zimmer v. Peters,...