AuthorGordon P. Cleary
Competency: General
§300 In General
§310 Competency: General
§311 Competency to Stand Trial
§312 Criminal Responsibility
§300 WITNESSES 3-2
§300 In General
There are both substantive and procedural rules
which must be satisfied before a witness has the
competency to testify. What the witness says must be
competent evidence also.
§310 Competency: General
Rule 601 of the Federal Rules of Evidence
provides a general rule of competency. The rule
Every person is competent to be a witness unless
these rules provide otherwise. But in a civil case,
state law governs the witness’s competency regarding
a claim or defense for which state law supplies the
rule of decision.
Rule 601 eliminates all grounds of witness
incompetency relating to either a claim or defense to
which federal law provides the rule of decision, unless
a rule of competency is specifically recognized in the
Federal Rules of Evidence. Therefore, a witness is not
incompetent to testify because of age, mental
incapacity, race, national origin, moral depravity,
conviction of crime, religious belief, marital
relationship, or connection with any litigation as a
party, attorney or other interested person. Although
these specific classifications were once regarded as a
ground of incompetency, they are now merely methods
to impeach a witness, rather than preclude a witness
from testifying.
The only general competency requirements now
recognized in the Federal Rules are those contained
in Rules 602 and 603. Rule 603 requires every
witness declare that he will testify truthfully by
either oath or affirmation. Rule 602 requires that a
witness possess personal knowledge before he
testify. These rules, when taken together, require
(1) The witness possess the capacity accurately
to perceive, record and recollect impressions of fact
(i.e., the witness has physical and mental capacity);
(2) The witness perceived, recorded and
recollected impressions that have a tendency to
establish a fact of some consequence in the litigation
(i.e., the witness has personal knowledge);
(3) The witness is capable of understanding the
obligation to tell the truth (i.e., the oath or affirmation
requirement); and
(4) The witness possesses the capacity to express
himself understandably (i.e., narration) (NOTE:
Rule 604 allows, where necessary, that the witness
express himself understandably with the aid of an
See M. G, H  F
E §601.1 at 379 (3rd ed. 1991).
The following section details the elements
necessary to support a finding of witness competency.
Before a witness will be permitted to testify,
evidence must be introduced to show the following:
the witness has personal knowledge pursuant
to Rule 602;
the witness has the ability to narrate what he
perceived through his senses, either through
his own words or those of an interpreter;
the witness must declare by either oath or
affirmation, that he will testify truthfully
pursuant to Rule 603.
These are the only requirements necessary under
the Federal Rules. There is no requirement of mental
qualification. In fact, the Advisory Committee’s notes
to Rule 602 and 603 state that any standards of mental
capacity have proved to be too elusive to be workable.
In fact, there are few cases where any witness was
actually disqualified on the grounds of mental
Although mental capacity per se is no longer
sufficient grounds to establish witness incompetency,
a witness whose mental capacity has been severely
questioned or attacked may be excluded by the trial
court on the grounds that “no reasonable juror could
possibly believe that the witness in fact possesses
personal knowledge, [under] Rule 602, or understands
the difference between the truth and a lie or fantasy
and a duty to tell the truth, Rule 603.” M. G,
H  F E §601.1 at 380 (3rd
ed. 1991).
NOTE: Trustworthiness or reliability is not an
issue to consider in the court’s determination whether
to admit a witness’ testimony; rather, the competency
of the witness is the proper focus of inquiry.
• If a witness has given directly contradictory
evidence, the witness is nevertheless
competent to testify. However, the witness
may be impeached.
If the witness is of doubtful capacity, that
problem poses a question of credibility as
opposed to competency.
Witnesses with histories of mental illness may
be allowed to testify whenever they:
can appreciate the duty to tell the truth
ha ve the ability, at least minimally, of
observing, recalling and communicating
the nature of events perceived.
Incompetency to stand trial as a result of a mental
condition does not preclude the person from being a
witness. The party calling the witness must have the
opportunity to make a proffer and record to determine
the witness’ ability to testify. See Parrot v. Wilson,
707 F.2d 1262 (11th Cir. 1983).
Federal Rule of Evidence 601 abolishes most of
the traditional attacks on competency. Even if a
witness is competent, i.e., he can observe, remember,
narrate and recognize the duty to tell the truth, the law
may under certain circumstances render him
incompetent as a witness. For example, a witness
spouse may meet all of the criteria of competency, yet
be barred from testifying against the other spouse.
The law may recognize some social policy, such as
protecting the stability and integrity of marriages and,
therefore, prohibit the spouse from testifying.
Similarly, an attorney can meet all of the competency
requirements, but be rendered an incompetent witness
against his client because of the attorney-client
If you wish to challenge a witness’ competency:
File a motion in limine if you anticipate that a
witness will be challenged on competency
• Object as soon as the person is called to the
• Object before the person is even sworn as a
• Ask the court to allow you to voir dire the
witness. See §230 Motion to Voir Dire Witness,
Examine the person’s qualifications as a
appreciation of duty to tell truth,
capable of observing,
capable of recalling,
capable of communicating and narrating.
Consider challenges to:
witnesses with histories of mental illness,
child witnesses where they are
insufficiently aware of need to tell the
Ask that the court rule that the witness is
incompetent to testify.
In most jurisdictions the witness will have to be
sworn in to answer the voir dire questions, but the
oath usually requires him to swear only to answer
truthfully the questions about his competency. In
some jurisdictions, however, the court does not
require that the voir dire examination be sworn.
Because competency issues fall within evidentiary
doctrines designed to insure reliability of relevant
evidence, the trial court (as opposed to the jury) must
decide whether the witness is competent to testify.
Because of this fact, many courts allow an attorney
bringing a competency challenge against a witness to
present extrinsic evidence on the issue of competency.
For example, extrinsic evidence can consist of
psychiatrist’s testimony that:
• The witness is incapable of recognizing the
duty to tell the truth;
The witness is incapable of observing facts in
a rational manner;
The witness is incapable of relating facts
observed in a rational manner.
The trial court can also allow lay witnesses to
testify concerning issues relevant to another witness’
competency. While the lay witness may not render an
opinion as to competency, the lay witness can:
• Describe events where the proposed witness
demonstrated a lack of an ability to recognize
the duty to tell the truth;
Testify factually about problems the proposed
witness has in observing or relating facts
observed in a rational manner.
If the court decides that the witness is competent
to testify:

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