Rule 601 Competency to Testify in General

Maine Restyling Note [November 2014]

Maine’s Rule 601 departs fairly significantly from its federal counterpart in establishing specific criteria for competency as a witness in the rule itself. These specific requirements have been carried over into the restyled version.

Federal Restyling Committee Note

The language of Rule 601 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to by stylistic only. There is no intent to change any result in any ruling on evidence admissibility.

Advisory Note – June 2015

This amendment deletes subdivision (c) of Rule 601 as redundant and unnecessary. The qualification and swearing of an interpreter as a witness is explicitly covered by Rule 604. There does not appear to be any good reason to provide in Rule 601 as well that an interpreter is subject to the rules relating to witnesses.

Advisers’ Note to former M.R. Evid. 601

(February 2, 1976)65

This rule eliminates all grounds of incompetency except those specifically recognized in the rules that follow. The only significant change is the abolition of the Dead Man’s Act. 16 M.R.S.A. § l et seq. The reason behind the exclusion of a survivor’s testimony concerning a transaction of a decedent when offered against the latter’s estate was that “where death has closed the mouth of one party, the law seeks to make an equality by closing the mouth of the other.” Wilson v. Wilson, 157 Me. 119, 123, 170 A.2d 679, 682 (1961). The rule reflects the belief that this surviving relic of the common law disqualification of parties as witnesses leads to more miscarriages of justice than it prevents. The Act manifests the cynical view that a party will lie when he cannot be directly contradicted and the unrealistic assumption that jurors, knowing the situation, will believe anything they hear in these circumstances. It has already been eroded by exceptions. 16 M.R.S.A. § 1, exceptions 1 through 6, and most important, 16 M.R.S.A. § 59, added by P.L. 1967, c. 406, which made the disqualification inapplicable in actions for personal injury or wrongful death. This eliminated one of the most controversial aspects of the Act. This rule does away with the rest of it.

Subdivision (b) is declaratory of Maine law.66 State v. Brewer, 325 A.2d 26 (Me. 1974). It allows the trial judge to decide as a preliminary

65 All of the statutes referenced in this Adviser’s Note have been repealed.

question whether a proposed witness is capable of expressing himself understandably and of understanding the duty to tell the truth. The trend is increasingly to resolve doubts in favor of letting the jury hear the evidence and appraise its credibility.

The Federal Rule is the same as subdivision (a) except that it provides for competency of a witness to be determined in accordance with state law in civil actions in which state law applies the rule of decision. This follows the same pattern as the Federal Rules on privilege. Subdivision (b) has no counterpart in the Federal Rule.

Advisory Committee Note

(April 1990 Amendment)

Under former Rule 601 as construed by the Law Court in State v. Hussey, 521 A.2d 278 (Me. 1987) the competency of a proposed witness is established by a finding by the trial judge that the witness (a) can express himself understandably, and (b) understands the duty to tell the truth. On appeal the trial court’s finding is reviewable for clear error.

Prior to the adoption of the Rules, a trial judge’s determination of the competency of a witness to testify was reviewable for abuse of discretion. Presumably if the trial judge thought under all the circumstances that the proposed witness’s testimony would not be reliable, he could refuse to let him or her testify at all. Under Rule 601 as construed in Hussey, a proposed witness could be disqualified from testifying only if the trial court made the finding that the witness either could not express himself or could not understand the duty to tell the truth.

If testimonial competency is to be determined by a simple preliminary finding, the threshold requirements for testimony should include the ability to perceive and remember. Certainly perception and memory are vital to a witness’s ability to bear testimony. These abilities or lack of them are often the subject matter of attacks on witness credibility. The rule as amended will screen out a witness who had no reasonable ability to perceive facts and

66 This paragraph of the Advisers’ Note has been superseded by the 1990 amendment—see the

1990 Advisory Committee Note herein.

reliably remember them. It is not intended to permit the trial judge to rule on the credibility of a witness in advance by not permitting the witness to testify.

At the time Rule 601 was enacted the Advisory Committee did not believe it was changing Maine law. The Advisor’s Notes to Rule 601 as originally enacted reads:

Subdivision (b) is declaratory of Maine law. State v. Brewer, 325 A.2d 26 (Me. 1974). It allows the trial judge to decide as a preliminary question whether a proposed witness is capable of expressing himself understandably and of understanding the duty to tell the truth. The trend is increasingly to resolve doubts in favor of letting the jury hear the evidence and appraise its credibility.

The then leading case, State v. Ranger, 149 Me. 52, 56 (1953) specifically refers to the ability to perceive and articulate in the following terms:

The proposed child witness should know the difference between truth and falsehood, and apparently must be able to receive accurate impressions of facts, and be able to relate truly the impressions received. The child witness should have sufficient capacity to understand, in some measure, the obligation of an oath; or to realize that it is wrong to falsify, and that if he does tell an untruth he is likely to be punished.

Although Rule 601 applies to all witnesses, it will be most frequently applied to children as proffered witnesses. The younger the potential witness, the more conscious should be the inquiry into whether the witness is able to perceive and relate sufficiently reliably so as to be a conduit for information into the courtroom.

Although the trial court may generally conduct voir dire on the competence of a witness outside the presence of the jury, that should not preclude a party from addressing the credibility and weight of the witness’ testimony by similar questions on cross examination.

The proposed amendment deletes the reference to interpreters from Rule 601.67 Interpreters are specifically regulated by Rule 604.