§ 18.01   Introduction [211-12]

 

Witness competency concerns the witness’s qualifications to testify.  Mental competence (capacity) involves the witness’s ability to observe, recall, and relate.  Moral competence focuses on the witness’s recognition of the duty to testify truthfully, which is fortified by the oath requirement.  At one time, common law rules of incompetency or disqualification had immense impact on trials because there were so many categories, including the parties, whose testimony was deemed unreliable due to their interest in the case.  These rules have generally evolved over time into impeachment rules.

 

Federal rule.  Rule 601 provides that all witnesses are competent, and the drafters stated that there were no competency requirements.  Nevertheless, some federal cases have suggested that the testimony of a witness who does not have the capacity to recall may be excluded under Rule 403.

 

§ 18.02   Oath Requirement FRE 603 [212-13]

 

Rule 603 requires witnesses to swear or affirm to the truthfulness of their testimony.  The purpose of the oath is merely to add a stimulus to truth-telling.  Moreover, a perjury prosecution requires the taking of an oath.  The form of the oath or affirmation is not important.

 

§ 18.03   Mental Competency [213-14]

 

Persons of “unsound mind” were automatically disqualified from testifying at common law.  This is not true today.  Even those adjudged insane are not necessarily disqualified because the test for insanity differs the standard for witness competency and focuses on a different point in time. 

 

§ 18.04   Ability to Communicate  [214]

 

On rare occasions, a witness’s competency to testify has been challenged for the lack of ability to communicate.  Except where the witness’s disability precludes cross-examination, the courts have permitted witnesses to testify through a variety of devices such as hand signals, language interpreters, and computers.

 

§ 18.05   Child Competency & Testimony  [214-17]

 

Child abuse cases have had a substantial impact on the law of evidence, and competency has received renewed attention.  Some jurisdictions continue the older approach of making children of ten years of age or older presumptively competent.  Children under 10 are often found competent, but generally a voir dire examination of the child by the trial court is required.  More recent statutes, focusing on child sexual abuse cases, limit or abolish competency rules, including the oath requirement in one state.  Rule 601 provides that every person is competent to be a witness, and a federal statute specifies that children are presumed to be competent. 18 U.S.C. § 3509(c)(2).

 

§ 18.06   Dead Man Statutes  [217-18]

 

These statutes, which are still found in a number of states, are intended to protect the estates of deceased or incompetent persons against fraudulent claims. While this is a noble aim, it is how these statutes accomplish this goal that is troublesome. Typically, they disqualify a surviving party from testifying if the other party dies.

 

§ 18.07   Competency of Judge: FRE 605  [218-19]

 

Rule 605 disqualifies the presiding judge as a witness.  No objection is required to preserve the issue for appeal.

 

§ 18.08    Competency of Jurors: FRE 606  [219-20]

 

                        [A]       Juror as Witness

 

Rule 606(a) prohibits a juror from testifying in a case in which that juror is serving as a member of the jury.  A party must object to a juror testifying but an opportunity to do so outside the presence of the jury is provided.

 

                        [B]       Impeachment of Verdicts & Indictments

 

Under Rule 606(b), jurors are incompetent to testify about the validity of a verdict or an indictment if the subject of their testimony involves internal influences.  This would encompass compromise verdicts, quotient verdicts, speculation about insurance coverage, misinterpretation of instructions, mistakes in returning a verdict, and interpretation of a guilty plea by one defendant as implicating codefendants.

 

However, a juror is competent to testify about extraneous prejudicial information that has come into the deliberation process – e.g., statements by the bailiff or the introduction of a prejudicial newspaper account into the jury room.  In addition, a juror is competent to testify about outside influences that have been improperly brought to bear on the deliberation process. 

 

 

§ 18.09   Competency of Attorneys  [221]

 

Neither Rule 601 nor any other evidence rule makes an attorney incompetent to testify. Nevertheless, the rules of professional responsibility generally preclude an attorney from accepting employment or continuing to represent a client if the attorney will likely be a necessary witness in the case. See Model Rule 3.7(a).

 

§ 18.10   Choice of Law  [221-22]

 

The second sentence of Rule 601 provides: "However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law." This phrase was added to the federal rule so that state Dead Man statutes would apply in federal trials where state law applies.