This short blob/article was written for my, Eric Roy, and my staff’s own benefit. The rules outlined below are those that govern witness competency as dictated by Federal Rules of Evidence. That being said, many states adopt the Federal Rules of Evidence in part or in total. Thus, always look to your state rules specifically to determine how your local courts handle these matters.
The traditional competency requirements required that in order for a witness to be competent to testify that the proponent of the proposed witness needed to demonstrate that the proposed witness has four abilities. Those abilities are that: (1) the witness can or could perceive the facts at issue; (2) that the witness has the ability to remember; (3) that the witness has the ability to relate the information perceived to the finder of fact; and (4) finally that the witness recognizes his or her duty to tell the truth to the court. The purpose of these four requirements has nothing to do with relevance but everything to do with reliability of evidence. That being said, Federal Rule of Evidence 601 abolishes these traditional four requirements and rather requires only that the witness has firsthand knowledge per Federal Rule of Evidence 602.
Despite Federal Rule of Evidence 601, many judges believe that they still have power to exclude prospective witnesses if such witness exhibit’s a failing of one of the four abilities listed above. These judges believe they are empowered to do so under the guise of Rule 403. That being said, even if a court does rely on the four competency factors listed above, the burden of the opponent to exclude the witness on grounds of competency is still very high. That being said, if you wish to object to witness competency it is best to do so before the proposed witness is sworn in by the court. Essentially, you need to put your objection before the court and then request to voir dire the witness on the witness’s competency.
If the adverse witness suffers from a mental defect then you may want to consider objecting to the witness’s testifying on grounds of his or her lack of qualification. If you wish to do this then it is wise to obtain mental health records so as to impeach the witness. If the potential witness’s potential testimony is sufficiently damaging then you might think of bringing in an expert who has examined the proposed witness on prior occasion. You can put a mental health expert on the stand in your voir dire for purposes of demonstrating to the court that this witness lacks capacity to testify at trial. Once you put your expert on the stand you need to voir dire this expert. Demonstrate, through voir dire, that your expert is a qualified psychiatrist who in fact examined this proposed witness on prior occasion. Have your expert testify in voir dire that this witness has certain symptoms and diagnosis and that given this symptomology and diagnosis in the doctor’s opinion the witness is not competent to testify on the subject matter.
Another circumstance where you may find yourself objecting and requesting a voir dire of a proposed witness is in the context of a proposed child witness. If you don’t feel that the child is competent to testify then you can and should object prior to the child being sworn in. It then becomes incumbent upon the party wishing to introduce the child’s testimony to demonstrate that the child witness is competent to testify. If the child is your witness then you should voir dire your child witness so as to demonstrate that the child has the ability to perceive, remember, relate, and tell the truth.
If you find yourself in a situation where opposing counsel objects to your witness on the grounds that your witness does not have personal knowledge of the facts of which she intends to testify then you need to be prepared to voir dire your witness to demonstrate that the opposite is true. Demonstrate through a quick voir dire that your witness was present at the time the facts in issue arose so as to observe those facts as they occurred. Have your witness testify that he or she not only was present but that he or she in fact witness those same facts and events, and finally demonstrate to the court that your witness remembers those events. Beyond the fact that you need to demonstrate to the court that your witness is competent so as to overcome opposing counsel’s competency objection you also want to demonstrate to the jurors that your witness has intimate personal knowledge of those facts and events at issue and that your witness has a strong recollection of those facts. Thus it is wise to go beyond simply satisfying the court which requires a low standard of you. Do a thorough voir dire to demonstrate to the jurors that they can and should rely on your witness’s forthcoming testimony.
Another context in which you might find yourself in a position to object to the qualifications of a witness is when an opposing witness seeks to testify against your deceased client. Many states have these “dead man statutes” which protect the deceased’s interests by prohibiting testimony which might otherwise be rebutted but for one parties’ death. This may come about in the contexts of a contract disagreement. This could also arise in the context of a wrongful death law suit. If you represent the deceased parties’ estate in a wrongful death action then you may want to object to any adverse witness testimony which might otherwise be controverted by the deceased but for your client’s death. After you object to this proposed testimony, simply ask the court for permission to voir dire the proposed witness. Demonstrate through voir dire examination that whatever the proposed witness is about to testify to could be rebutted by your client if your client was in trial to do so. To do this simply show that the deceased would have had personal knowledge of some or all of the facts of which the adverse witness seeks to testify to.