AuthorGordon P. Cleary
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
DENCE §601.1 at 379 (3rd ed. 1991).
The following section details the elements nec-
essary 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 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.”
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 compe-
tent to testify. However, the witness may be
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).
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
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 Wit-
ness, supra.
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 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.

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