Witnesses

• Author: Gordon P. Cleary
• Pages: 93-208

3-1

3. WITNESSES

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

states:

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

that:

(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

interpreter).

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.

Elements

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

capacity.

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,

3-3 COMPETENCY: GENERAL §310

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.

Accordingly:

• 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).

Tactics

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

privilege.

If you wish to challenge a witness’ competency:

• File a motion in limine if you anticipate that a

witness will be challenged on competency

grounds.

• Object as soon as the person is called to the

stand.

• Object before the person is even sworn as a

witness.

• Ask the court to allow you to voir dire the

witness. See §230 Motion to Voir Dire Witness,

supra.

• Examine the person’s qualifications as a

witness.

— 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

truth.

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: