Witnesses

• Author: Gordon P. Cleary
• Pages: 91-196

3-91

3. WITNESSES

Competency: General

§300 In General

§310 Competency: General

§311 Competency to Stand Trial

§312 Criminal Responsibility

§300 WITNESSES 3-92

§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 pro-

vides 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 recog-

nized 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 litiga-

tion 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 wit-

ness 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 recol-

lected 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. GRAHAM, HANDBOOK OF FEDERAL EVI-

DENCE §601.1 at 379 (3rd ed. 1991).

The following section details the elements nec-

essary 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 pur-

suant to Rule 603.

These are the only requirements necessary

under the Federal Rules. There is no requirement of

mental qualification. In fact, the Advisory Commit-

tee’s notes to Rule 602 and 603 state that any stan-

dards of mental capacity have proved to be too elu-

sive 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 incompeten-

cy, 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. GRAHAM, HANDBOOK OF FEDERAL EVIDENCE §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

3-93 COMPETENCY: GENERAL §310

of the witness is the proper focus of inquiry.

Accordingly:

• If a witness has given directly contradictory

evidence, the witness is nevertheless compe-

tent 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

— have the ability, at least minimally, of

observing, recalling and communicating

the nature of events perceived.

Incompetency to stand trial as a result of a men-

tal 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, remem-

ber, 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 mar-

riages and, therefore, prohibit the spouse from testi-

fying. 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 Wit-

ness, 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 insuffi-

ciently 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 eviden-

tiary doctrines designed to insure reliability of rele-

vant 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 testi-

fy concerning issues relevant to another witness’ com-

petency. While the lay witness may not render an opin-

ion 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 pro-

posed witness has in observing or relating

facts observed in a rational manner.

If the court decides that the witness is compe-

tent to testify:

• Wait for your opportunity to attack the credibil-

ity of the witness during cross examination; and

• Impeach the witness’ competency by demon-

strating an inability to recognize the duty to

tell the truth and to relate facts observed in a

rational manner.