Civil Litigation Legal Topics Litigation Strategy Trial Strategy

Is the Witness Competent?

465261223Would you know what to do if you believed that a potential witness may not be competent to testify? Take it to the judge before the witness takes the stand.

Under California law, a witness’ competency, i.e., ability to comprehend and relate events, is a preliminary fact to be determined under Evid C §405.

Lack of competency may be based on the ability of the witness. If a witness can’t communicate in an intelligible fashion, either directly or through an interpreter, or is incapable of understanding the duty to tell the truth, the witness isn’t competent to testify. Evid C §701. A child’s competence to testify is challenged and established in the same way as any other witness. See People v Harlan (1990) 222 CA3d 439, 452, 271 CR 653.

Lack of competency may also be based on the witness’s position. For example, a presiding judge or a juror who is sworn and impaneled may not testify in that trial. Evid C §§703-704.

To determine whether a witness is incompetent, the judge may hold a hearing outside the jury’s presence (Evid C §402), and, if the judge finds that the witness is competent to testify, the jury won’t be told of the judge’s prior hearing or determination. Evid C §405(b)(1).

The judge can consider a wide range of information in determining a witness’s competency, but the judge can’t consider

  1. Temporary confusion or disorientation. A finding of temporary confusion or disorientation isn’t equivalent to a finding of incompetency. For example, in Sanders Constr. Co. v San Joaquin First Fed. Sav. & Loan Ass’n (1982) 136 CA3d 387, 395, 186 CR 218, in which a diabetic witness was found competent even though he suffered momentary diabetic confusion and disorientation while testifying.
  2. Subjective assumptions. Judges can’t use their own subjective assumptions in determining a witness’ competency. In Manguso v Oceanside Unified Sch. Dist. (1984) 153 CA3d 574, 582, 200 CR 535, the court held that excluding testimony from a teacher’s former students was improper because the trial judge had based his ruling on the subjective assumption that students cannot recall childhood events.

If you anticipate that a witness’ competence may be at issue, call that issue to the judge’s attention (e.g., through a motion in limine) at the earliest possible time, so that the judge can make arrangements for a hearing.

For more on witness competency and examining witnesses generally, turn to CEB’s California Trial Practice: Civil Procedure During Trial, chap 11. This useful practice guide also includes a discussion of preliminary fact hearings in chapter 7.

Related CEB blog posts:

© The Regents of the University of California, 2014. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

5 replies on “Is the Witness Competent?”

Be cautious about presenting any witness that you believe may not be “competent.” Such a witness may not be reliable or consistent; such a witness my “agree” with almost any proposition suggested in cross-examination. Such a witness my not be capable of being briefed and may not be capable of limiting testimony to the questions actually posed.

Generally, do not count on the testimony of a witness with questionable competency to “make your case.”

John Mounier

The Mounier Law Firm
Attorneys Protecting Seniors
Elder Protection Attorneys

San Francisco, California, USA
35 Miller Avenue, Ste. 206
Mill Valley, Marin County, CA 94941

In a civil case, plaintiff is unemployed except for babysitting children of family members. Defense subpoena’s 7 year old for deposition, hoping the child will testify that her aunt *(the plaintiff) does not seem emotionally distressed. Is that proper testimony?

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