0903

I would respond:

"Rule 601 says everyone is competent to be a witness."

If further argument were needed, I would point out there is no blanket exception for old people with poor eyesight, and no proof that this witness totally lacks the ability to perceive events, remember them, and communicate about them.

Indeed, the only real requirement is found in Rule 603 -- the witness must take an oath designed to impress upon the witness’s conscience the need to tell the truth.  The standard oath is:

"Do you promise to tell the truth, the whole truth, and nothing but the truth?"

These oaths used to be religious -- a witness put his or her hand on a Bible and swore to tell the truth "so help me God" -- but religious oaths went out of fashion years ago. They may even be improper, because they bring religious belief into a secular governmental function, and set up a potential conflict with Rule 610 -- the jury might evaluate those witnesses who took a religious oath as more trustworthy than those who declined to take a religious oath.

If you get the chance, you should see the beginning of the movie "Disorder in the Court," starring the Three Stooges, as they attempt to administer an oath to Curly Howard so he can be a witness. It is impossible to reproduce the scene accurately in writing. See

http://www.youtube.com/watch?v=C6q37n7GDCY

The moral of this story is, that if Curly Howard is competent to be a witness, everyone is competent.

Questions? Email tanford@indiana.edu and refer to 0903.

What about children? There used to be a rule that children under 7 were not competent, those over 13 were competent, and those between 7 and 12 had to be shown to be competent. That’s been replaced by a common sense procedure where the child is put on the stand and asked some questions to establish that the child has basic competency - perception, memory and ability (willingness) to communicate -- and an indication that the child recognizes this as a serious event and will cooperate and tell the truth.

In the movie "Big Daddy," a five-year-old Julian is called as a witness. The hearing proceeds:

Atty: Your honor, we'd like to call Julian McGrath.
Q: If it's ok with you Julian, I'd like to ask you a few questions. This is just you and me talking so don't even pay attention to all these people. Can you tell me how old you are?
A: Five.

Q: And what's your birthday?
A: July 15th.

Q: Do you know where you were born?
A: Toronto.

Q: Toronto? I thought you were from Buffalo?
A: I moved to Buffalo with my mommy.

Q: And for the past six weeks, you have been living with Sonny, is that right?
A: Yes.

Q: Tell us about .......

What objection could the opponent make to Julian's testimony? When you think you know the answer, click here.