705.1Competency of Witnesses [Rule 601]

The Basic Rule

Rule 601 – General Rule of Competency; Disqualification of Witnesses

G.S. 8C-601(a), (b).

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.

Legal Overview

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:

1. 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).
2. 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.
3. 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).
4. 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.”)