COMPETENCY

Competency is the willingness of the court to hear evidence from a particular witness. At common law, a person could be disqualified from giving testimony by having a financial interest in the outcome of the suit, by being married to a party, by having a lack of religious belief, by having been convicted of a felony, or due to race, infancy, or insanity. Under the modern trend, any person can testify as a witness if they are physically and mentally qualified. However, the credibility of the testimony may be affected by their financial interest, a felony conviction, etc. The Federal Rules adopt the trend toward abolition of rigid grounds for disqualification, except in diversity cases where jurisdiction turns on state law. There are four requirements:

1) Ability to communicate: The witness must be capable of expressing himself so as to be understood by the jury. If the witness testifies through an interpreter, it must be shown that the interpreter is qualified in the foreign language in question and is under oath to make a true translation.

2) Personal Knowledge: A witness may only testify to matters of personal knowledge. Such knowledge must be garnered through the witness senses (typically sight or hearing). Personal knowledge is a jury question subject to a judges finding of sufficient evidence. The only exception is an expert witness.

3) Obligation of truthfulness: The witness must be capable of understanding the duty, to tell the truth.

4) Time of competency: Competency relates to the condition of the witness at the time he is called to testify. A loss of memory after the event in question, with a restoration prior to trial, does not render a witness incompetent.

Application: Preliminary Fact: The witness competency is a preliminary fact question. The trial judge must determine competency before a witness is permitted to testify.

Children: A child of any age may be permitted to testify as long as the trial judge is satisfied that the child possesses the ability to observe, recollect, and communicate.

Mental incompetents: The mental disease or defect must be of such a degree that the persons ability to perceive, recall, and testify is so impaired that the testimony is worthless.

Criminals: A convicted felon may give testimony. The fact of the conviction may serve as a basis for impeachment.

Atheists: Lack of religious belief has no effect on a witness competency, nor may it be considered as affecting credibility. It does not affect either the admissibility or the weight of the testimony.

Narcotics addiction: Addiction goes only to weight.

Personal Knowledge: Only expert witnesses are competent to testify about matters in dispute without direct personal knowledge.

Judge as Witness: A judge is not disqualified as a witness merely by virtue of judicial office. Judges may be subpoenaed or appear voluntarily to testify just as any other person. However, serious problems of possible prejudice arise if a judge takes the witness stand in the very case over which he is presiding. The majority view holds that it is up to the judge to determine whether being called as a witness might deprive either party of a fair trial. Some statutes provide that the trial judge cannot testify if either party objects. Under the Federal Rules, no objection is necessary; the presiding trial judge is absolutely incompetent to testify.

Juror as Witness: Traditional: The prevailing view is that a juror is competent to testify in the case in which he is serving. Modern: A juror cannot testify (or give an affidavit) if either party objects.

Testimony to jury deliberations: At common law, a juror was never allowed to impeach his own verdict. Jurors were incompetent to testify in post-verdict proceedings for the purpose of attacking or supporting the jury verdict. The modern trend is to allow a wider latitude of juror testimony but to restrict the grounds on which jury verdicts may be overturned. Under the Federal Rules, juror testimony or affidavits are admissible only to show any outside influences improperly brought to bear on any member of the jury (threats to family), or extraneous prejudicial information improperly brought to the jurys attention (news releases).

Attorney as Witness: An attorney is a competent witness, even in a trial in which he is involved. However, this may raise serious ethical and professional responsibility issues depending on the nature and scope of the testimony.

Party Testimony: A party to a civil action under common law was incompetent to testify. The party was deemed to be too interested to give reliable testimony.

Deadman statutes: A party is incompetent to testify to any matter or fact occurring before the death of a deceased party to the action. Because of the frequent unfairness involved, these statutes are narrowly construed to only apply if a money judgment is sought and only when the action is against the estate. An executor may waive a dead man statute by consent or failure to object to the testimony.

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