Learning Outcomes
After reading this article, you will be able to identify the requirements for witness competency under the Federal Rules of Evidence, distinguish between general and special disqualifications, and apply these principles to MBE-style questions. You will understand how personal knowledge, the oath, and exceptions such as the Dead Man's Statute affect witness admissibility.
MBE Syllabus
For MBE, you are required to understand the rules governing who may testify as a witness in federal court. This includes the general competency requirements, the effect of personal knowledge and oath, and the treatment of special categories such as children, mentally incapacitated persons, judges, jurors, and parties affected by Dead Man statutes. You should be able to:
- State the general rule of witness competency under the Federal Rules of Evidence.
- Apply the requirements of personal knowledge and the oath or affirmation.
- Recognize when special disqualifications (e.g., judge, juror, Dead Man's Statute) apply.
- Analyze the competency of children, mentally ill persons, and convicted felons.
- Identify when state law governs competency in diversity cases.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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Which of the following is NOT a general requirement for witness competency under the Federal Rules of Evidence?
- Personal knowledge of the matter
- Ability to communicate
- Absence of criminal record
- Oath or affirmation to testify truthfully
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A 7-year-old child is called as a witness. What must the judge determine before allowing the child to testify?
- That the child has never lied before
- That the child understands the duty to tell the truth and can observe, remember, and communicate
- That the child has a parent present in court
- That the child has attended school
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Under the Federal Rules, who is absolutely barred from testifying in a trial over which they preside?
- A convicted felon
- A juror
- The presiding judge
- A party to the case
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In a federal diversity case, which law governs witness competency?
- Federal Rules of Evidence
- State law of the forum state
- Law of the witness’s domicile
- Law of the state where the contract was made
Introduction
Competency determines whether a person may give evidence as a witness in court. The Federal Rules of Evidence presume all persons competent unless a specific rule provides otherwise. However, certain minimum requirements must be met before any witness may testify. This article explains the general competency rule, the essential requirements of personal knowledge and oath, and the main exceptions and special disqualifications tested on the MBE.
General Rule of Competency
The Federal Rules of Evidence establish a broad presumption of competency. Any person is competent to be a witness unless the Rules provide otherwise. This means most adults, children, and even those with mental illness may testify if they meet the basic requirements.
Key Term: Competency of Witnesses
The legal fitness of a person to give evidence as a witness in court, determined by the applicable rules of evidence.
Basic Requirements for All Witnesses
To be competent, every witness must satisfy two core requirements:
- Personal Knowledge: The witness must have observed the matter about which they testify. Testimony based on speculation or what others told the witness is not sufficient.
- Oath or Affirmation: The witness must declare they will testify truthfully, by oath or affirmation.
Key Term: Personal Knowledge
Direct knowledge of a fact gained through a witness’s own perception, required for admissibility of testimony.Key Term: Oath or Affirmation
A formal promise to tell the truth, required of all witnesses before testifying.
Ability to Communicate and Understand Truthfulness
The witness must be able to communicate their testimony so the court and jury can understand it. Additionally, the witness must appreciate the obligation to tell the truth. The judge may exclude a witness who cannot understand the duty to testify truthfully or cannot communicate understandably.
Special Categories of Witnesses
Children
Children may testify if the judge finds they can observe, remember, communicate, and understand the duty to tell the truth. There is no fixed minimum age. The judge will question the child to determine competency.
Mentally Incapacitated Persons
Mental illness or incapacity does not automatically disqualify a witness. The judge must determine if the person can observe, remember, communicate, and understand the obligation to tell the truth. If so, the witness is competent.
Convicted Felons
A criminal record does not make a witness incompetent under the Federal Rules. However, prior convictions may be used to impeach the witness’s credibility.
Special Disqualifications
Judges and Jurors
The presiding judge in a case may not testify as a witness in that trial. Jurors are also incompetent to testify before the jury in which they sit, except in rare circumstances (e.g., to show outside influence or racial bias during deliberations).
Key Term: Dead Man’s Statute
A state law that bars an interested party from testifying about communications or transactions with a deceased person in certain civil cases.
Dead Man’s Statutes
The Federal Rules do not contain a Dead Man’s Statute, but state law may supply one in diversity cases. These statutes prevent an interested party from testifying about communications with a deceased person when the testimony is offered against the decedent’s estate.
State Law in Diversity Cases
In federal diversity cases, witness competency is determined by state law if state law supplies the rule of decision for the claim or defense. This most often arises with Dead Man’s Statutes.
Worked Example 1.1
A 6-year-old child is the only eyewitness to a car accident. The child is called to testify in federal court. The judge questions the child and finds she can describe what happened, remembers details, and promises to tell the truth. Is the child competent to testify?
Answer: Yes. The child meets the requirements of personal knowledge, ability to communicate, and understanding the duty to tell the truth. There is no minimum age for competency.
Worked Example 1.2
In a federal diversity case, the plaintiff sues the estate of a deceased person. The forum state has a Dead Man’s Statute. The plaintiff, an interested party, seeks to testify about a conversation with the decedent. Is the plaintiff competent to testify?
Answer: No. In a diversity case, state law governs competency. The Dead Man’s Statute bars the plaintiff from testifying about communications with the decedent.
Exam Warning
In federal court, a judge or juror may not testify as a witness in the trial over which they preside or sit. Attempting to call the judge or a sitting juror as a witness will result in exclusion of their testimony.
Revision Tip
Always check for state law competency rules in diversity cases, especially Dead Man’s Statutes. On the MBE, if the question involves a civil case in federal court under diversity jurisdiction, and the issue is whether an interested party may testify about communications with a decedent, apply the state’s Dead Man’s Statute if one exists.
Key Point Checklist
This article has covered the following key knowledge points:
- The Federal Rules presume all persons competent to testify unless a rule provides otherwise.
- Every witness must have personal knowledge and take an oath or affirmation to testify truthfully.
- Children and mentally ill persons may testify if they can observe, remember, communicate, and understand the obligation to tell the truth.
- Judges and jurors are not competent to testify in trials over which they preside or sit.
- Dead Man’s Statutes may bar interested parties from testifying about communications with a decedent in diversity cases if state law applies.
- In federal diversity cases, state law governs witness competency when state law supplies the rule of decision.
Key Terms and Concepts
- Competency of Witnesses
- Personal Knowledge
- Oath or Affirmation
- Dead Man’s Statute
