social work

Competence to Testify (Myers,  John  E.B.,  2016  Unpublished  Draft  Manuscript.  With  Permission)  

A witness is a person who takes an oath to testify truthfully, and who provides

information that is relevant in a legal case. All witnesses must be competent to testify.

The elements of testimonial competence are: (1) Capacity to observe; (2) Sufficient

memory capacity to recall events; (3) Ability to communicate; (4) Understanding of the

difference between truth and lies; and (5) Appreciation of the duty to tell the truth in

court.

The rules of evidence assume that everyone has these capabilities. Thus, FRE 601

provides, “Every person is competent to be a witness . . . .” In practice, issues of

testimonial competence only arise when testimony is offered from children or adults with

mental disability or dementia.

With a child witness, an attorney may try to prevent the child from testifying by

arguing the child is incompetent. If legitimate concerns arise about a child’s

understanding of the difference between truth and lies, or the duty to tell the truth, the

judge holds a hearing called a competency examination (Myers, 2016). The judge and

attorneys ask the child questions to determine whether the child possesses the capacity to

testify. Most children as young as four have the necessary capacity, and can demonstrate

that capacity when they are questioned by experienced professionals. (See Lyon &

Saywitz (1999)). Thomas Lyon and Karen Saywitz produced helpful, research-based,

materials to question young children about testimonial competence. (See Lyon (2014),

Lyon & Saywitz (1999); Saywitz & Camparo (2014)).

Chapter TWO: COMPETENCE OF WITNESSES --University of Wisconsin Law School

A. Introduction

1. Definition

The word "competence" is used in two different senses in the rules of evidence.

When modifying the noun "evidence" as in "competent evidence," the word "competent"

means "admissible" and more specifically "not hearsay," When used to modify the noun

"witness," as used in this section, it means "legally capable of being" a witness.

2. Historical background to competency of witnesses

The early common law rules of evidence were heavily influenced by religious

law. One manifestation of that influence was the large number of rules designed to insure

that perjury would not be committed. It was as if the courts took a moral responsibility

for perjury committed by others in a trial. Consequently, rules of evidence were

developed to keep perjury from occurring in court. One such set of rules, for example,

related to the competency of witnesses and was designed to exclude as a witness anyone

with an interest in the case and consequently, with a motive to lie. Another set of rules

related to children who, because of their possible inability to understand the significance

of the oath administered to all witnesses, were generally ruled incapable of testifying.

Gradually, such rules had to give way to a system that permitted those with the

most knowledge about the facts of a case, very often those with an interest in its outcome,

at other times, children, to testify. However, the shadow of the earlier ecclesiastical

influences on the rules of evidence remains as different jurisdictions retain remnants of

some of those competency bars. These remnants may be brought into a federal trial

through a conflict of laws rule.

3. Conflicts of laws

Since a determination as to who may be a witness is often an outcome-focused

determination, the drafters of the federal rules of evidence recognized that in a diversity

case or any other case where local law applied, it would make sense for local rules on

competence to apply. As a result, Rule 601 provides that where state law provides the

basis for a claim or defense, state rules on competence govern. This is not a technical or

minor provision since competency rules vary greatly from jurisdiction to jurisdiction.

This great variation is traceable to the differing extent to which differing jurisdictions

have accommodated or changed the large number of competency rules inherited from the

common law.

B. Federal Law

Federal Rule 601 provides that all persons are competent witnesses except as

provided for in the rules. Rule 601 represents the ultimate rejection of the elaborate

system of common law competency bars. The two exceptions provided for in the rules do

nothing to mitigate the broad sweep of Rule 601. Rule 605 renders the judge incompetent

as a witness in a case where the judge presides and Rule 606 disqualifies jurors in cases

where they serve as jurors. Since, as a practical matter, judges and jurors are not likely to

be called, under the rule, essentially, anyone is competent to be a witness.

While not rules of evidence, the rules of professional responsibility have the

effect of adding the last player in the trial scenario to the list of ineligible witnesses: the

trial attorney. Under the rules of professional responsibility, an attorney is not permitted

to testify in a case he or she is trying unless the proposed testimony relates to the chain of

custody of a document or thing to be placed into evidence. Since the last link in the chain

is normally stipulated to,9 the only instance where the trial lawyer’s testimony is

permitted rarely materializes. Thus the trial lawyer is also effectively precluded from

being a witness.

1. Spousal disqualification

A common law competency rule of unusual longevity is the rule relating to the

spouse of a criminal defendant. At common law, in a criminal case, the defendant spouse

had the right to preclude the prosecution from calling the spouse as a witness. This rule

applied whether the defendant was the wife or husband. The rule did not apply when the

crime alleged involved an intra-family dispute and so in an earlier version of a domestic

abuse case, the defendant would not have had the right to keep the spouse from testifying.

The only trigger for this common law competency bar to apply was the marriage, at the

time of the trial, between the defendant and the purported witness.10 It did not matter

whether the proposed testimony related to conversations between the spouses or observed

events, or even events occurring before the marriage took place. All that mattered was

that at the time of the trial the defendant and the purported witness were married.

The United States Supreme Court in Trammel v. United States, 445 U.S. 40

(1980) completely changed the common law rule in federal cases. In Trammel, the

prosecution proposed to call the defendant's wife against him in a narcotics case. Both

husband and wife had been caught dealing in narcotics and a plea agreement had been

reached with the wife requiring her to testify in exchange for not being prosecuted. The

husband objected on common law grounds. The Supreme Court ruled that the common

law rule giving the defendant the right to keep his or her spouse from testifying as a

prosecution witness was abrogated under federal law. Instead, the purported witness now

had the privilege of not testifying but if the witness consented11 to testify, then the

defendant could not prevent the spouse from testifying.

2. Mentally infirm witnesses

The mentally infirm witness, or a witness under the influence of alcohol or

narcotics at the time of testimony, poses an acute conceptual problem under the federal

approach to competency. Obviously a mental infirmity such as forgetfulness, neurosis, or

even mild psychosis should not result in a finding that the witness is incompetent. Rather,

those debilitating facts might have some bearing the credibility of the witness. Suppose,

however, that the witness is seriously mentally ill to a degree that the witness is totally

incapable of separating fantasy from reality. Or, suppose that the witness is heavily under

the influence of drugs or alcohol when called to testify. What are the powers of the court

under these unusual circumstances?

One approach is to take Rule 601 literally. On its face, Rule 601 sets forth two

classes of incompetent witnesses: the court and the jury. The most basic principle of rule

construction points to the conclusion that there are therefore no other grounds of

incompetency. Courts, on the other hand, have been reluctant to so conclude and thereby

totally abandon the power to exclude all other possible witnesses as incompetent,

especially where there is evidence that a witness has consumed a fairly powerful drug

close to the time of testifying. In those cases, there has at least been an implication that

the trial court has the power to exclude entirely as incompetent a witness under the

influence of drugs at the time of testifying.12 See United States v. Meerbeke, 548 F.2d

415 (2d Cir. 1976) and United States v. Harris, 542 F.2d 1283 (7th Cir. 1976).

C. State Law

In addition to the contemporary remnant of the spousal competency bar, there are

two competency issues in state proceedings that merit attention, either because they

surface in state litigation or because they may be incorporated into federal practice under

Rule 601.

1. Dead Man Statutes

The Dead Man Statutes are a relic of special common law fear that interest in a

case would lead to perjury and therefore must be avoided altogether. The logic of this

relic is that a person might fabricate a claim against an estate knowing that the only

witness able to refute the claim is dead. Under a strict common law approach, the way to

avoid the risk of such false testimony is to make the evidence incompetent. Statutes

rendering such evidence incompetent are known as Dead Man Statutes and their thrust is

to prohibit a person from testifying about a conversation with the deceased or sometimes

even an act by the deceased, in a suit brought by or against the estate. The problem, of

course, is that an injustice results where there is a valid claim against the estate or the

estate's claim is without merit and the person having dealt with the deceased is unable to

present evidence that should be received.

Many states have abandoned Dead Man Statutes altogether. In others, either by

legislation or judicial gloss on the statutory provisions, the survivor may testify but the

testimony will not support a judgment unless corroborated. In other instances, the court

may permit the testimony where its exclusion would, in the court’s opinion, result in an

injustice. Finally, it should be remembered that the terms of the Dead Man Statutes are

restricted: they apply only in civil litigation and then, usually, only when the estate is a

plaintiff or defendant.

2. Children

The common law barred children below certain ages from testifying. Different

states set the competency age at different levels; up to a generation ago in some states the

age of competency was as high as 12. One consequence of the increased sensitivity to

sexual and physical abuse of children is the significant lowering of the age at which

children are deemed competent to testify. In one Missouri case, a child as young as 30

months was found to be competent. The trend in this changing area of the law is to avoid

rigid age numbers in determining competence and to leave it to the court to determine

whether a particular child is capable of telling the truth.

Under the Federal Victim's Protection and Rights Act, a child is "presumed

competent" but the court has the power to hold a hearing to determine whether the child

is competent. "Age alone" is not a compelling reason to conduct such a hearing. The Act

further provides that it does not abrogate Rule 601. (See Title 18, United States Code,

Section 3509(c).) While the Act does not abrogate the rule, it gives the court at least the

theoretical power to rule incompetent a class of witnesses not covered by Rule 601.

D. Determinations

When resolution of a competency question requires a factual hearing, the fact

issue is one for the court. Consequently, the court conducts a hearing in the absence of

the jury and preferably, to avoid wasting the jury’s time, in advance of trial. Where the

court rules that a witness is competent, the same facts considered but found insufficient

by the court to render the witness incompetent may resurface during the cross-

examination of the witness for purposes of challenging the witness's credibility.