Difference between revisions of "Competency to Testify"

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*'''Oath or Affirmation''' - In many courts 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. If the individual does not understand the oath or affirmation, then they may be incompetent to testify.<ref>Federal Rules of Evidence - Rule 603. Oath or Affirmation</ref>
 
*'''Oath or Affirmation''' - In many courts 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. If the individual does not understand the oath or affirmation, then they may be incompetent to testify.<ref>Federal Rules of Evidence - Rule 603. Oath or Affirmation</ref>
 
*'''Knowledge''' - A witness is only competent to testify if they have personal knowledge of the facts that they will testify. <ref>Federal Rules of Evidence - Rule 602. Lack of Personal Knowledge</ref>
 
*'''Knowledge''' - A witness is only competent to testify if they have personal knowledge of the facts that they will testify. <ref>Federal Rules of Evidence - Rule 602. Lack of Personal Knowledge</ref>
*'''Language'''
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==Mentally Disabled==
 
==Mentally Disabled==
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If there is a question of mental disability then it is the duty of the opposing counsel to raise the issue of competency of the adult. If one party raises the question of a witness's competency to testify, the court may order a hearing where:
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#The witness must answer questions as to their ability to tell the truth
 +
#The witness is asked whether then understand what an oath or affirmation is.
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#The witness is examined to determine whether the understand the duty to speak the truth in terms of everyday social conduct.
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At the end of the hearing,  the judge will determine whether the witness is competent to testify. The burden of prof is on the opposing party to prove incompetence.
  
 
==Children==
 
==Children==
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The rules for children are similar to those of the mentally disabled.  However, if a child is very young they may be presumed to be incompetent to testify.
  
 
==Spouses==
 
==Spouses==

Revision as of 14:21, 3 July 2010

As a general rule most witnesses are presumed to be competent and able to give reliable testimony. However, competency may be tested for each individual witness. In the U.S. Federal Courts, competency is determined on a case by case basis. Following are some of the situations a criminal defense attorney may encounter regarding testimonial competency.

Following are general requirements for competency:

  • Oath or Affirmation - In many courts 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. If the individual does not understand the oath or affirmation, then they may be incompetent to testify.[1]
  • Knowledge - A witness is only competent to testify if they have personal knowledge of the facts that they will testify. [2]


Mentally Disabled

If there is a question of mental disability then it is the duty of the opposing counsel to raise the issue of competency of the adult. If one party raises the question of a witness's competency to testify, the court may order a hearing where:

  1. The witness must answer questions as to their ability to tell the truth
  2. The witness is asked whether then understand what an oath or affirmation is.
  3. The witness is examined to determine whether the understand the duty to speak the truth in terms of everyday social conduct.

At the end of the hearing, the judge will determine whether the witness is competent to testify. The burden of prof is on the opposing party to prove incompetence.

Children

The rules for children are similar to those of the mentally disabled. However, if a child is very young they may be presumed to be incompetent to testify.

Spouses

Judges

Because of the inherent conflict of interest, a judge should not be allowed to testify as to facts in a trial over which she is presiding. [3]

Jurors

A juror should not be allowed to testify as to the facts in a trial over which she is a trier of fact. However, in certain circumstances a juror may be called to testify as to whether extraneous prejudicial information was improperly brought to the jury's attention, whether any outside influence was improperly brought to bear upon any juror, or whether there was a mistake in entering the verdict onto the verdict form. [4]

Notes

  1. Federal Rules of Evidence - Rule 603. Oath or Affirmation
  2. Federal Rules of Evidence - Rule 602. Lack of Personal Knowledge
  3. Federal Rules of Evidence - Rule 605. Competency of Judge as Witness
  4. Federal Rules of Evidence - Rule 606. Competency of Juror as Witness