Evidence Question
During a civil trial, the plaintiff called a witness to testify on matters of which the witness has personal knowledge. When the court attempted to have the witness swear to tell the truth before testifying, the witness stated that he was an anarchist and refused to take any oaths or make any affirmation, but he was willing to testify. The defendant moved to have the witness disqualified.
Is the witness incompetent to testify?
(A) No, because the testimony would be on matters of which the witness has personal knowledge.
(B) No, because a person’s political beliefs do not alone render the person automatically incompetent.
(C) Yes, because under these facts, the witness was automatically incompetent to testify.
(D) Yes, because an anarchist may not testify in a governmental proceeding involving a judge.
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The correct answer is C.
The Federal Rules also provide that witnesses, excluding a trial judge and jurors who may be called as witnesses, are automatically incompetent to testify on only two grounds: 1) lack of personal knowledge of a matter about which the witness may testify as required by FRE 602; and 2) inability or refusal to solemnly swear (by affirmation or oath) to tell the truth under FRE 603. Inability may result from a lack of understanding. A person need not swear to a supreme being, but the oath or affirmation must demonstrate an appreciation for the obligation to tell the truth. Here, the witness’s refusal to “take any oaths or make any affirmation” renders the witness incompetent to testify because a witness must give an oath or affirmation to testify truthfully.
A is incorrect because it ignores the witness’s refusal to take an oath or affirmation, which rendered him automatically incompetent to testify.
B is incorrect because it is not the witness’s political beliefs alone that prevent his testimony, but rather, it is the witness’s refusal to take an oath or affirmation regarding his testimony.
D is incorrect because a person is not automatically barred from testifying based on the person’s status.
Evidence § I A(5)(b)(4)(b) Presentation of Evidence: Introduction of Evidence: Competency of Witnesses: Federal Rule is Less Restrictive: Presumption of Competency: Automatic Grounds of Incompetency