Competency

Question 1

Competency

Answer 1

Who do we allow to testify

Question 2

Historical Rule/Common Law: No longer valid

Answer 2

NOT competent to testify:

o Mental incapacity

o Religious belief

o Criminal conviction – felony or misdemeanor

o Infancy – child

o Party to the action – plaintiff or defendant

o Spouse of party to action

o Accomplice to party to action

o Any other interested person to action

Question 3

Modern View

Answer 3

• All witnesses assumed competent so long as:

• Witness can take an oath (promise to god) or affirmation (promise to tell the truth)

• Unless it can be shown the witness has: (in which case cannot take witness stand)

• No relevant knowledge
• Cannot recall; or
• Cannot testify truthfully

Question 4

Competency requirements

Answer 4

• Capacity to appreciate the obligation to speak truthfully
- Appreciate oath in court

• Capacity to observe
- Person must have personal knowledge

• Capacity to recollect
- Ability to remember

• Capacity to communicate

• Not necessarily to speak
• Communicate in some way – can be deaf, speak other languages (interpreters)

Question 5

United States v. Lightly

Answer 5

Just because someone was criminally insane, does not mean did not understand the oath or have capacity to take stand. Can testify. Maybe you can impeach, though.

Question 6

Child Witness

Answer 6

General Rule: All witnesses presumed competent to testify

• Children must know the difference between a truth and a lie

Question 7

Lawyers as Witnesses

Answer 7

TRY TO AVOID - Frown upon lawyers as witnesses

Question 8

Judges as Witnesses

Answer 8

No! Cannot be called as witness in own case.

Question 9

Jurors as Witnesses

Answer 9

No! Even if excused from case, cannot be called as a witness.