See also: CHILDREN; DRUGS; DYING DECLARATIONS; INSANITY; INTERPRETERS
PERSONAL KNOWLEDGE.

1.  Competency of Witnesses Generally

A witness is generally deemed “competent” if he or she has personal knowledge of the matters testified to, can communicate to the trier of fact either directly or through an interpreter, and understands the significance of the oath.{footnote}Cal. Evid. Code §§ 701-02; Ill. Rev. Stat., ch. 38, & 115-14;
CHECK Ill. Rev. Stat. ch. 38, & 155-1 (criminal cases); {/footnote}  Some authorities add that the witness, at the time of the events in question, must have been capable of observing and remembering what transpired.{footnote}Ark. R. Evid. 601; Conn. R. Evid. 601; Idaho R. Evid. 601; Me. R. Evid. 601.
See also Jack B. Weinstein et al., 3 Weinstein’s Evidence, & 601-9[01], at 601-09 (1995) (trial court must find that witness possesses "minimum credibility.").{/footnote}

While only a witness who is competent may testify, courts are generally not required to make a preliminary inquiry into a witness’ competence before allowing the witness to testify. Indeed, FRE 601 goes so far as to provide, “Every person is competent to be a witness except as otherwise provided in these rules.”{footnote}See also Ark. R. Evid. 601; N.D. R. Evid. 601; State v. James, 560 A.2d 426 (Conn. 1989) (trend is to treat competency as one aspect of credibility); Ricketts v. State, 488 A.2d 856, 857 (Del. 1985){/footnote}  Since the only other federal rules explicitly rendering certain witnesses incompetent deal with judges and jurors as witnesses,{footnote}FRE 605, 606.
But see FRE 602 (witnesses must testify from personal knowledge) and FRE 603 (requirement of oath or affirmation, implying that witness must be capable of understanding duty to tell the truth).{/footnote} this rule on its face seems to allow the court no discretion to exclude other witnesses on the grounds of incompetence.

The rule has not been read so literally, however.{footnote}See S. Saltzburg et al., Federal Rules Of Evidence Manual R. 601, 603 (1994).{/footnote} Where the issue is raised, courts frequently cite the traditional requrements of competence.{footnote}See. e.g., United States v. Phibbs, 999 F.2d 1053, 1070 (6th Cir. 1993), cert.  denied, 114 S. Ct. 1070 (1994) ("As long as a witness appreciates his duty to tell the truth, and is minimally capable of observing, recalling, and communicating events, his testimony should come in for whatever it is worth.").

{/footnote}  Some courts have construed FRE 601 and its state counterparts as creating a rebuttable presumption of competence.{footnote}United States v. Raineri, 91 F.R.D. 159, 163 (W.D. Wis. 1980).
State v. Superior Court, 719 P.2d 283, 287 (Ariz. Ct. App. 1986); King v. State, 877 S.W.2d 583, 589 (Ark. 1994); People v. Alexander, 724 P.2d 1304, 1307 (Colo. 1986).
See also Tenn. R. Evid. 601 ("every person is presumed competent to be a witness except as otherwise provided in these rules or by statute.”).
CHECK State v. Gordon, 478 N.W.2d 68 (Wis. Ct. App. 1991) {/footnote}

Documentary evidence which is barred by an exclusionary rule is sometimes referred to as incompetent.{footnote}Check On Lee v. United States, 343 U.S. 747 (1952).{/footnote}  Such rules are discussed in specific articles elsewhere in this work. This article deals with the issue of competence as it applies to witnesses.

2.  Particular Grounds for Declaring a Witness Incompetent

There are a number of traditional grounds for disqualification which are no longer considered such.  Witnesses are no longer disqualified from testifying merely because:

· they are a party{footnote}Ala. Code § 12-21-163 (1995) (civil cases); Ala. Code ’12-21-220 (1995) (criminal cases); 735 Ill. Comp. Stat. 5/8-101 (1995).
See Bodansky, The Abolition of the Party-Witness Disqualification: An Historical Survey, 70 Ky. L.J. 91, 93 (1981-1982).{/footnote}
· they are a party’s attorney (see ATTORNEYS)
· they are a party’s spouse (see MARITAL EXCLUSIONARY RULES)
· they have some other interest in the outcome of litigation{footnote}735 Ill. Comp. Stat. 5/8-101 (1995).{/footnote}
· they have been convicted of a crime (see CONVICTIONS)
· they have previously committed perjury (see PERJURY)
· they are not religious (see RELIGIOUS BELIEF)
· they are a minor (see CHILDREN)
· they are mentally ill
· they are addicted to alcohol or drugs (see DRUGS; INTOXICATION)

Some special grounds for disqualifying a witness as not "competent" to testify are still recognized, however.  See HYPNOSIS; JUDGES; JURORS; DEAD MAN’S STATUTES, MARITAL COMMUNICATIONS. 

3.  Mental Disability of Witness

A witness’ mental illnes or disability does not necessarily render him or her incompetent to testify.{footnote}United States v. Odom, 736 F.2d 104, 112 (4th Cir. 1984); U.S. v. Lightly, 677 F.2d 1027 (4th Cir. 1982) (reversing conviction where court excluded defense witness who was previously adjudicated criminally insane and incompetent to stand trial; treating physician testified that witness understood oath and could communicate what he had seen); United States v. Gutman, 725 F.2d 417, 420 (7th Cir.), cert. denied, 469 U.S. 880 (1984).
But see 6A Colo. Rev. Stat. § 13-90-106(1)(a) (1987) (persons of unsound mind are not permitted to testify).{/footnote}  Mental illness or disability will only disqualify a witness from testifying where the disability so severely impairs the witness’ perception, memory and ability to communicate, that the testimony would be unhelpful to the jury.{footnote}United States v. Roach, 590 F.2d 181 (5th Cir. 1979)
 Check United States v. Gutman, 725 F.2d 417 (7th Cir. 1984).{/footnote}  In many states, however, that a witness has been previously adjudiated mentally insane or incompetent creates a presumption of incompetency to testify.{footnote}  In re Waite’s Guardianship, 14 Cal. 2d 727 (1939).

Contra United States v. Lightly, 677 F.2d 1027 (4th Cir. 1982).
Contra People v. William Jones, 528 N.E.2d 648 (Ill. 1988) (that a witness has been found feebleminded and a conservator appointed over them does not render him incompetent to testify).{/footnote}  See also INSANITY AND INCOMPETENCE–Presumptions.

3.  Procedure

3(a).  Generally

Competency is a preliminary question of fact to be determined by the court,{footnote}FRE 104(a) (“Preliminary questions concerning the qualification of a person to be a witness…shall be determined by the court….)
People v. District Court, 647 P.2d 1206, 1211-12 (Colo. 1982); Tex. R. Crim. Evid.  601 (a)(2).{/footnote} and the court may consider inadmissible evidence in making its determiniation.{footnote}FRE 104(a) (“In making its [competency] determination [the court] is not bound by the rules of evidence except those with respect to privilegs.”); FRE 1101(d)(1) (to same effect).{/footnote}  The manner in which a witness’ competence is determined is left to the trial court’s discretion, and no formal hearing is required.{footnote}United States v. Gerry, 515 F.2d 130 (2d Cir. 1975).{/footnote}
The burden is on the party opposing the witness’ testimony to establish that the witness is incompetent.{footnote}Ill. Rev. Stat. ch. 38 & 115-14(c).
See also ADMISSIBILITY–What Evidence May Be Considered As Foundation?; PHYSICIAN-PATIENT PRIVILEGE–Cases Where the Privilege Inapplicable.{/footnote}  Failure to make a timely objection to a witness’ competence waives the objection.{footnote}  United States v. Odom, 736 F.2d 104 (4th Cir. 1984); Pocatello v. United States, 394 F.2d 115 (9th Cir. 1968).{/footnote} 

3(b). Law to Be Applied

In federal suits where state law controls, such as diversity cases, the federal courts apply state law relating to competency.{footnote}FRE 601 provides:

[I]n civil actions and proceedings with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law.
See also Brand v. Brand, 811 F.2d 74 (2d Cir. 1987) (in diversity case, court required to apply New York Dead Man’s Statute); Waltzer v. Transidyne Gen. Corp., 697 F.2d 130 (6th Cir. 1983); Super Value Stores v. First Nat’l Bank, 463 F.Supp. 1183 (M.D. Ga. 1979).{/footnote}  The law to be applied is the law in force at the time of trial, not at the time of the events at issue.{footnote}97 C.J.S. Witnesses § 51 at 439 (1957). 
Cf. Scott v. McDonald, 70 F.R.D. 568, 573 (N.D. Ga. 1976).{/footnote}
 

§ 4.  Competence to Contract

§ 5.  Testimentary Capacity

Competence.  All persons are presumed mentally competent.  One who seeks to prove lack of testamentary capacity bears the burden of proof.{footnote}Sloger v. Sloger, 26 Ill. 2d 366, 186 N.E.2d 288 (1962).{/footnote}  Once a person has been found incompetent, however, it is presumed that they remain so until the contrary is shown.{footnote}People ex rel Drury v. Catholic Home Bureau, 34 Ill. 2d 84, 213 N.E.2d 817 (1954).{/footnote}

5.  Appeal

A court’s ruling on competency is a factual determination, and is reviewed for an abuse of discretion{footnote}Broussard v. State, 910 S.W.2d 952 (Tex. Crim. App. 1995).{/footnote} or clear error.{footnote}State v. Mazerolle, 614 A.2d 68, 71 (Me. 1992). {/footnote}

Bibliography

Bodansky, The Abolition of the Party-Witness Disqualification: An Historical Survey, 70 Ky. L.J. 91, 93 (1981-1982).
Ermert, Comment, Mental Disorder in Witnesses: An Overview of Competency and Credibility Issues, 41 Ala. L. Rev. 167 (1989).
Colquitt & Gamble, From Incompetency to Weight and Credibility: The Next Step in an Historic Trend, 47 Ala. L. Rev. 145 (1995).