Competency Flashcards
Competency
Who do we allow to testify
Historical Rule/Common Law: No longer valid
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
Modern View
• 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
Competency requirements
• 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)
United States v. Lightly
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.
Child Witness
General Rule: All witnesses presumed competent to testify
- Children must know the difference between a truth and a lie
Lawyers as Witnesses
TRY TO AVOID - Frown upon lawyers as witnesses
Judges as Witnesses
No! Cannot be called as witness in own case.
Jurors as Witnesses
No! Even if excused from case, cannot be called as a witness.
