Rule 601 Competency of Witnesses

Rule 601 is similar to former Alaska R. Civ. P. 43(g) (1) which it supersedes. It is almost identical to Rule 101 of the Model Code of Evidence and Uniform Rule 17 (1953). The Comment to the Model Code’s Rule outlines the way Rule 601 will work: When there is a dispute concerning a person’s capacity to be a witness, the judge must determine whether the proposed witness can express himself understandably and understands his duty to tell the truth. The opponent has the burden of seeing that the question is raised and that there is evidence before the judge which would justify him in finding incapacity. The appearance of the witness or his conduct in court may be such as to impel the judge to raise the question and to lead him to treat the appearance or conduct as persuasive evidence of incapacity, and consequently to bring forward evidence of capacity. Ordinarily, however, the opponent must raise the objection and support it. The policy of the rule “is that matters of the witness’s opportunity for perception, knowledge, memory, experience and the like go to the weight to be given to his testimony rather than to his right to testify.” Commissioner’s Note to Uniform Rule 17 (1953). But the rule recognizes that some witnesses should not be permitted to appear before the trier of fact because their testimony is entitled to no consideration. Federal Rule 601 states that “[e]very person is competent to be a witness.” The drafters may have held the view that all witnesses are capable of being understood and able to understand the meaning of an oath, or they may have assumed that other rules would screen out those persons deemed to be incompetent by Alaska Rule 601. See, e.g., Federal Rules 403 and 603; K. Redden & S. Saltzburg, Federal Rules of Evidence Manual 268-69 (2d ed. 1977). See also United States v. Killian, 524 F.2d 1268 (5th Cir. 1975). Alaska Rule 601 is clear on its face. It provides a direct approach to the problems of dealing with young children and with older persons whose condition, whether permanent or temporary, raises questions about their capacity to assist the trier of fact. The Rule rejects any argument that one who is unable to understand the duty to tell the truth may still present evidence that a trier of fact could use to support a judgment. It also requires exclusion of a witness whose expressions cannot be understood by the trier of fact, thereby insuring that leading questions do not serve to put words in an uncommunicative witness’s mouth that may not accurately express the knowledge possessed by the witness. Like former Alaska R. Civ. P. 43(g) (1), Rule 601 has no provision resembling a Dead Man’s Act.