General Rule

General rules of competency

• Every person is competent to be a witness except as otherwise provided in these rules or by statute.

Evid. R. 601

• A person who is competent to testify in civil actions is also competent to testify in criminal proceedings.

IC 35-37-4-1

Interpretations of the general rules of competency

• [I]t is a general principal of law that everyone is presumed to be competent.

Walker v. State, 986 N.E.2d 328, 333 (Ind. Ct. App. 2013), trans. denied, cert. denied, 134 S. Ct. 911 (2014)

See Bellmore v. State, 602 N.E.2d 111, 117 (Ind. 1992), reh’g denied(citing Gosnell v. State, 376 N.E.2d 471, 472 (Ind. 1978))(“A witness is presumed to be competent.”)

• The general rule is that a witness is clothed with a presumption of competency.

Gosnell v. State, 376 N.E.2d 471, 472 (Ind. 1978)

• When the competency to testify is placed in issue it is the duty of the trial court to schedule a hearing in order to properly determine whether the witness is in fact competent to testify. If the evidence places the competency in doubt, the trial court should order the witness to be examined by a psychiatrist unless the State can show a paramount interest in denying the petition. The trial court has wide discretion in disposing of petitions of this kind and will be reversed only if it has clearly abused that discretion.

Gosnell v. State, 376 N.E.2d 471, 472 (Ind. 1978)

• The test of competency of a witness is whether the witness has sufficient mental capacity to perceive, to remember and to narrate the incident he has observed and to understand and appreciate the nature and obligation of an oath.

Ware v. State, 376 N.E.2d 1150, 1151 (Ind. 1978)

• A determination of a witness's competency lies within the sound discretion of the trial court and is reviewable only for a manifest abuse of that discretion.

Aldridge v. State, 779 N.E.2d 607, 609 (Ind. Ct. App. 2002)

See Archer v. State, 996 N.E.2d 341, 346 (Ind. Ct. App. 2013), trans. denied

Presumptions and burden of proof

• [Rule 601] does not create [a] burden-shifting presumption . . . which would allow a party opposing the witness to overcome this presumption by proving the witness' incompetence.

Newsome v. State, 686 N.E.2d 868, 872 (Ind. Ct. App. 1997)

• [Rule 601] does not prohibit a trial court from conducting a preliminary inquiry into witness competency.

Newsome v. State, 686 N.E.2d 868, 873 (Ind. Ct. App. 1997)

Note: “except as otherwise provided in these rules or by statute”

[This clause of Rule 601 preserves existing statutes regarding the competency of insane persons, and testimony governed by the Dead Man’s statutes.]

• Except as otherwise provided by statute, persons who are insane at the time they are offered as witnesses are not competent witnesses, whether or not they have been adjudged insane.

IC 34-45-2-2

Rule 602: Lack of Personal Knowledge

• A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. A witness does not have personal knowledge as to a matter recalled or remembered, if the recall or remembrance occurs only during or after hypnosis. Evidence to prove personal knowledge may consist of the witness's own testimony. This rule does not apply to a witness's expert testimony under Rule 703.

Evid. R. 602

Rule 602: Examples

• Testimony in a prosecution for theft concerning store labels and security tags affixed to stolen clothing constituted testimony from personal knowledge and was not hearsay.

See Steen v. State, 987 N.E.2d 159, 162 (Ind. Ct. App. 2013), trans. denied

• At trial, Tamara Hodson testified that she spoke with Hicks on the phone the day Koontz's body was discovered. Hodson said she told him that he should go to Koontz's manufactured home or “they would assume he did it.” . . . Hicks also contends that Hodson did not have personal knowledge that “they would assume he did it” and so the opinion should be excluded under Indiana Evidence Rule 602. Hudson's testimony did not violate Rule 602's mandate that a witness may not testify without personal knowledge of the matter. Hudson did not testify to what “they” actually thought but only to the fact that she told Hicks that other people might be suspicious if he did not go to the crime scene. Her personal knowledge of what she told Hicks cannot be questioned under Rule 602. Accordingly, the trial court did not err in admitting this testimony.

Hicks v. State, 690 N.E.2d 215, 223-24 (Ind. 1997)

Rule 603: Oath or Affirmation to Testify Truthfully

• Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness's conscience.

Evid. R. 603

• The statutory requirement that “before testifying, every witness shall be sworn to testify the truth, the whole truth, and nothing but the truth,” Sec. 299, Baldwin's 1934, supra, can be waived by the parties and if no objection is made to a witness testifying without being so sworn such waiver will be presumed. “Unless the party objecting thereto can and does show that he was not guilty of laches in permitting a witness to testify without being sworn, and that the testimony of the witness was false on some material matter at issue, a new trial will not be awarded because of such irregularity.”

Sweet v. State, 498 N.E.2d 924, 926 (Ind. 1986)