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The Simplicity of Competency

June 13, 2011

Before any witness may testify, the witness must be “competent.”  Yet the question of the competency of a witness hardly ever arises in an actual trial.  That’s because the Rules of Evidence have greatly simplified the issue by establishing a presumption that every witness is competent. 

Rule 601. General Rule of Competency

Every person is competent to be a witness except as otherwise provided in these rules.

Unless a party makes an objection to the testimony of a particular witness based on a claim that the witness is not competent to testify, the issue never arises.  If such an objection is made, the party offering the witness must present evidence to support a finding that the elements of competency are present as to that witness.  Several other issues may arise, which I’ll go over after I address the elements of competency.

The Elements of Competency

We find the elements of the competency of a witness in Rules 602 and 603.  First, the witness must take an oath, as required by Rule 603.  Second, the witness must have personal knowledge, as required by Rule 602.  The requirement of personal knowledge is broken down into three parts, so we may say there are four elements to competency.  Rule 603 is the simpler, so let’s look at that one first. 

Rule 603. Oath or Affirmation

Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so.

The rule does not require any particular language.  This point is addressed in two cases discussed in Our Book, pages 72-75.  The Fifth Circuit reversed a trial judge on the United States Tax Court for refusing to allow the appealing taxpayer to use the following language in her oath:

I, [Betty Ann Ferguson], do hereby declare that the facts I am about to give are, to the best of my knowledge and belief, accurate, correct, and complete.

Ferguson v. Commissioner of Revenue, 921 F.2d 588, 588-89 (5th Cir. 1991).

The Ninth Circuit reversed a district judge in a similar situation when the judge refused to allow the witness to use this oath:

Do you affirm to speak with fully integrated Honesty, only with fully integrated Honesty and nothing but fully integrated Honesty?

United States v. Ward, 973 F. 2d 730, 731-32 (9th Cir. 1992). 

Rule 602 requires that the witness have personal knowledge.

Rule 602. Lack of Personal Knowledge

A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.  …

This means that the witness must be able to communicate to the fact finder what he or she remembers from observations the witness made of relevant events.  Most courts and commentators, including the authors of Our Book, 55, break the requirements of Rule 602 down into three elements: (1) the witness must have perceived some relevant fact, (2) the witness must recollect what she perceived, and (3) the witness must be able to communicate what she recalls to the finder of fact.  If a witness can explain what she remembers seeing, hearing, smelling, tasting or touching, the witness satisfies Rule 602.   

In United States v. Phibbs, 999 F.2d 1053 (6th Cir. 1993), the court addressed a challenge to the competency of several co-defendants who testified against Phibbs.  The court engaged in a very informative discussion of competency under the Federal Rules, and concluded its discussion with this summary of the elements of competency:

After carefully reviewing the record, we conclude that the district court did not abuse its discretion in doing so. As long as a witness appreciates his duty to tell the truth, and is minimally capable of observing, recalling, and communicating events, his testimony should come in for whatever it is worth. It is then up to the opposing party to dispute the witness’ powers of apprehension, which well may be impaired by mental illness or other factors. As we are persuaded that Parks and McKeehan were at least minimally capable of offering reliable evidence, the possible weaknesses in their testimony went to its credibility, and so were to be assessed by the jury.

999 F.2d at 1070; Our Book, 81.

Here are a few interesting tidbits about the Competency of a Witness:

The Distinction between Competency and Credibility

The distinction between competency and credibility is an important one to grasp in understanding competency under the Federal Rules.  It is what the Sixth Circuit referred to in the last two sentences quoted above from Phibbs.  The distinction was also explained in United States v. Bedonie, 913 F.2d 782 (10th Cir. 1990), discussed in Our Book, 56, but it boils down to this: If an objection is made to the competency of a witness, the trial judge decides the question (but look below to see  exactly what the judge decides); but when a party challenges the believability of a witness (which they always do), the judge has nothing to do with it unless he is the fact finder; that’s for the jury.

The Judge Doesn’t “Decide” the Requirements of Rule 602

When ruling on an objection to the competency of a witness, the judge doesn’t actually make a decision as to whether or not the witness meets the three elements of Rule 602.  Rather, the judge determines whether “evidence [has been] introduced sufficient to support a finding that the witness has personal knowledge of the matter.”  If the party offering the witness presents evidence of the three elements, then the actual question of “whether” the witness has sufficient personal knowledge such that the jury should believe her … is for the jury!  Of course, the judge always has considerable discretion.

The Use of Interpreters

Rule 604 sets forth qualifications for interpreters, but the important point regarding the competency of a witness is that the witness must be able to communicate the testimony to the fact finder.  This often requires an interpreter.

The Child Witness

Competency objections often, perhaps usually, arise regarding the testimony of a young child.  Nevertheless, the rules are the same.  While the strategy of attacking or proving competence may be tailored to the unique challenges of a child witness, the child is still presumed competent pursuant to Rule 601, and when an objection is raised the trial judge looks to Rules 602 and 603 just as she would with any other witness.

The Intoxicated Witness

Cocktail Party Testimony?!  There is no specific rule regarding the permissibility of testifying while intoxicated.  Rather, the question is determined like any other question of competency.  If the witness can meet the requirements of Rules 602 and 603, then the trial judge has discretion as to how to handle the situation.  Lawyers facing such a situation have several options to offer to the judge, including: (1) delay the witness’s testimony until the witness sobers up, (2) conduct drug testing or medical examination to assist the judge in determining whether to allow the witness to testify at that time or later, (3) allow evidence of the intoxication before the jury to assist the jury in deciding whether to believe the witness, and (4) deliver to the witness a stern admonition.  One thing to remember is that showing up in court intoxicated is contemptuous conduct, and subjects the offender to criminal penalties, including jail.

Judges and Jurors as Witnesses

Rule 605 forbids the testimony of the trial judge under any circumstances.  Rule 606 allows the testimony of a juror only under limited circumstances.  Rule 606(a) provides that no juror may testify regarding the facts of the case.  Rule 606(b) explains when a juror may testify about the work of the jury and any improper influence upon it.  This is really more of a procedural question, not an evidence question.

Common Law Rules Regarding Competency

All common-law grounds of incompetency were eliminated by Rule 601, and for that reason there is no need to ever discuss them again.  I mention this only because the authors of Our Book and many others discuss these obsolete rules.  The Advisory Committee to the Federal Rules attempted to put the issue to rest in the first sentence of the “Note” to Rule 601:

This general ground-clearing eliminates all grounds of incompetency not specifically recognized in the succeeding rules of this Article.

State Competence Rules in Civil Trials

In a criminal case under the federal rules, there are no exceptions to the presumption of competency set out in Rule 601.  In civil trials, however, even under the federal rules, if some element of the case or defense is governed by State law, the competency of a witness “shall be determined in accordance with State law.”  This point is likely to never have anything whatsoever to do with any case any of you ever try, unless you happen to stumble upon the question of the applicability of a “dead man’s statute.”

The “Dead-Man’s Statutes”

There is no federal dead-man’s statute, or anything comparable.  Some states, including South Carolina, still have dead-man’s statutes, which generally provide that “in an action against an estate, a party with a financial claim against the estate cannot testify about personal transactions or communications with the decedent.”  Our Book, 61.  South Carolina’s dead man statute is found in section 19-11-20 of the South Carolina Code.  Like those in other states, it applies only in very limited circumstances.  When the statute applies, the witness may not testify.  The statute applies (1) only in an action against an estate of a deceased or insane person, (2) only to a witness who has an interest in the case in which the testimony is being given, (3) only when the witness’s interests can be affected by the testimony or by the result of the case, (4) only when the witness is questioned about a transaction or communication with a person who at the time of the testimony (not the transaction or earlier communication) was deceased or insane.  The statute has many exceptions, and the exclusion of relevant testimony under it is “disfavored.”  If you want to read more about it, look at Brooks v. Kay, 339 S.C. 479, 530 S.E.2d 120 (2000).

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