Pennsylvania Rules of Evidence – Rule 601- Witness Competency

Attorney Chris Powell, Powell Law Scranton PACHRIS’ CRIMINAL LAW COMMENTS:

The Rules of Evidence are quite familiar to many individuals, such as hearsay and evidence relating to writings or recordings. Let’s start with discussing witnesses. In all cases, the witness must be competent to testify. This is found under Pennsylvania Rules of Evidence Rule 601.

As a general rule, every person is competent to be a witness except as provided by Rule 601. However, a person who is incompetent to testify if the Court finds that because of a mental condition or immaturity, the person is incapable of perceiving accurately, is unable to express himself, has impaired memory or does not sufficiently understand the duty to tell the truth.

The above items are true and tested reasons for challenging a witness prior to his/her testimony. The burden of proving incompetency rests on the party challenging the competency. As stated above, all witnesses are competent to testify unless disqualified by any one of the four basic “defects.”

How does one determine whether a witness is competent? When a party objects to the competency of a witness, the Judge conducts a hearing to determine competency. A challenge to a witnesses’ competency should be made before the witness testifies.

Competency issues really come up with children of tender ages. Many of the recent rulings involve various sex crimes committed on young children. The Judge conducts a competency hearing outside the presence of a jury and determines whether the child understands the difference between right and wrong. The determination of whether a child is competent does not depend on the child’s age but rather on his/her intelligence, and specifically, the child’s ability to understand the consequences of lying to the Court.When a witness is under the age of 14 years old, there must be a search by

When a witness is under the age of 14 years old, there must be a search by judicial inquiry as to mental capacity of this individual. However, discretion rests entirely with the Judge to make the ultimate decision. Nevertheless, the Pennsylvania Supreme Court has determined that the ability of a six-year-old child to properly recall and comprehend past events is inherently suspect. Therefore, as the child begins to approach maturity, it is more likely that a competency hearing will not take place.

The other issue under Rule 601 is whether there is evidence of some taint. That is, there should be an inquiry as to whether the child’s testimony was prompted by questions from adults and tainted. Usually, this involves some sexual abuse. However, it is not limited to that subject. Once the child reaches the age of 14 years old, even if the incident occurred when he/she was below the age of 14 years old, a competency hearing is not required. The Pennsylvania Courts have found children to be competent to testify but at the same time have found children to be incompetent to testify.

The Supreme Court in 1997 ruled that a 15-year-old was incompetent to testify because he did not demonstrate the recognition of the duty to tell the truth. However, at the same time, a 6-year-old was found competent to testify based on clear, responsive answers she gave to the District Attorney, defense council, and the trial Judge. In this case, the Superior Court ruled a 6-year-old girl would be competent to testify.

In conclusion, the Court seems to decide on both sides of this issue. It is strictly fact driven by individuals who may testify. A proper objection should be filed challenging the competency of an individual well before they take the stand to begin testifying.

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