705.1Competency of Witnesses [Rule 601]
- All witnesses are presumed to be competent, unless they are shown to be otherwise.
- A witness is not competent if he or she is unable to express him- or herself in a manner than can be understood, or is incapable of understanding the duty to tell the truth.
- If a witness’s competency is challenged by a party or called into question by the circumstances, the judge must satisfy him- or herself that the witness is competent, but the form and manner of that inquiry is left in the court’s discretion.
The Basic Rule
Rule 601 – General Rule of Competency; Disqualification of Witnesses
(a) General rule. - Every person is competent to be a witness except as otherwise provided in these rules.
(b) Disqualification of witness in general. - A person is disqualified to testify as a witness when the court determines that the person is (1) incapable of expressing himself or herself concerning the matter as to be understood, either directly or through interpretation by one who can understand him or her, or (2) incapable of understanding the duty of a witness to tell the truth.
The final section of this rule, G.S. 8C-106(c), addresses the disqualification of “interested persons,” meaning persons who stand to inherit property or acquire title from a deceased or incompetent person. This provision has virtually no applicability to criminal proceedings, so it is not discussed in this entry.
The summary below is adapted from the related Trial entry on Examination of Witnesses: Overview, Competency, and Qualifications.
Every person is deemed competent to be a witness, except as otherwise provided in the rules of evidence. See G.S. 8C-601(a); see also G.S. 8-49 (witness not excluded by interest or crime). For example, children as young as four years old have been found competent to testify. See State v. Kivett, 321 N.C. 404 (1988); State v. Robinson, 310 N.C. 530 (1984). Courts have similarly found elderly, disabled, mentally ill, or drug-addicted witnesses to be competent, as long as they satisfied the criteria for competency under the rules of evidence. See, e.g., State v. Forte, 206 N.C. App. 699 (2010) (elderly witness who had intermittent difficulty understanding the truth and testifying coherently was still competent); State v. Oliver, 85 N.C. App. 1 (1987) (16-year-old witness with mental functioning of a child was competent); In re Will of Leonard, 82 N.C. App. 646 (1986) (“unsoundness of mind is not per se grounds for ruling a witness incompetent under Rule 601”); State v. Fields, 315 N.C. 191 (1985) (witnesses who were abusers of alcohol and hallucinogens, and were impaired on the night in question, were not incompetent to testify).
However, the broad qualification of all competent witnesses is limited by several key exceptions applicable to criminal cases, including:
- A witness is disqualified if the witness is unable to express himself or herself in a manner that can be understood, either directly or through an interpreter, or is incapable of understanding the duty to tell the truth. G.S. 8C-601(b).
- A witness (other than an expert witness – see Rule 703) must have personal knowledge of the matter about which he or she is called to testify. G.S. 8C-602.
- Neither the presiding judge nor a jury member may be called as a witness in that case. G.S. 8C-605, 606(a). But see G.S. 8C-606(b) (permitting a juror to testify at an inquiry into the validity of a verdict or indictment).
- And, of course, the Fifth Amendment to the United States Constitution forbids the state from calling a defendant to testify against himself or herself.
Challenging and Determining Competency of a Witness
If the opposing party believes that a witness is not competent to testify, that party may object on competency grounds when the witness is called. The trial judge must determine witness competency if the issue is raised by a party or circumstances. This is typically done by conducting a voir dire examination of the witness before he or she testifies before the jury. See State v. Eason, 328 N.C. 409 (1991); State v. Fearing, 315 N.C. 167 (1988). The party opposing the witness’s competency has the burden of proof as witnesses are presumptively competent under Rule 601 unless shown otherwise. Because competency is a preliminary question of fact, the rules of evidence do not apply and the court may consider relevant information such as hearsay that might not otherwise be admissible. See In re Will of Leonard, 82 N.C. App. 646 (1986).
The judge must make a sufficient inquiry to satisfy himself or herself about the competency of the witness. The "form and manner of that inquiry rests in the discretion of the trial judge." In re Will of Leonard, 82 N.C. App. 646 (1986); but see State v. Huntley, 104 N.C. App. 732 (1991) (no authority for court to order witness to undergo psychological evaluation to determine competency).
Typically, the judge will allow the proponent of a witness to examine the witness at the beginning of the voir dire. The opponent of the witness then should be given an opportunity to cross-examine the witness, although denial of that opportunity does not necessarily violate the defendant’s rights. See State v. Beane, 146 N.C. App. 220 (2001) (not allowing defense to cross-examine proposed child witness was harmless error and cross-examination cured any prejudice); see also State v. Spaugh, 321 N.C. 550 (1988) (“When, as here, the evidence clearly supports a conclusion that the witness is competent, the trial court's failure to conduct a voir dire inquiry and make specific findings and conclusions concerning the witness's competency is, at worst, harmless error.”)
Competent vs. Credible
A witness who is deemed competent to testify under Rule 601 is still subject to impeachment and rigorous cross-examination regarding his or her credibility, truthfulness, and the accuracy of his or her memory, among other matters. See, e.g., State v. Williams, 330 N.C. 711 (1992); State v. Fields, 315 N.C. 191 (1985) (“it is in the jury’s province to weigh his evidence, not in the court’s to bar it”).