Definition:
The word “competence” is used in two different senses in the rules of evidence. When modifying the noun “evidence” as in “competent evidence,” the word “competent” means “admissible” and more specifically “not hearsay,” When used to modify the noun “witness,” as used in this section, it means “legally capable of being” a witness.
Historical background to competency of witnesses:
The early common law rules of evidence were heavily influenced by religious law. One manifestation of that influence was the large number of rules designed to insure that perjury would not be committed. It was as if the courts took a moral responsibility for perjury committed by others in a trial. Consequently, rules of evidence were developed to keep perjury from occurring in court. One such set of rules, for example, related to the competency of witnesses and was designed to exclude as a witness anyone with an interest in the case and consequently, with a motive to lie. Another set of rules related to children who, because of their possible inability to understand the significance of the oath administered to all witnesses, were generally ruled incapable of testifying.\
Gradually, such rules had to give way to a system that permitted those with the most knowledge about the facts of a case, very often those with an interest in its outcome, at other times, children, to testify. However, the shadow of the earlier ecclesiastical influences on the rules of evidence remains as different jurisdictions retain remnants of some of those competency bars. These remnants may be brought into a federal trial through a conflict of laws rule.
Article 3 of Qanoon-e-Shahadat 1984:
All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind or any other cause of the same kind:
Provided that a person shall not be competent to testify if he has been convicted by a Court for perjury or giving false evidence:
Provided further that the provisions of the first proviso shall not apply to a person about whom the Court is satisfied that he has repented thereafter and mended his ways:
Provided further that the Court shall determine the competence of a witness in accordance with the qualifications prescribed by the injunctions of Islam as laid down in the Holy Qur’an and Sunnah for a witness, and. where such witness is not forthcoming the Court may take the evidence of a witness who may be available.
Explanation: A lunatic is not incompetent to testify unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.
Object of the Article:
The object of the article is that all persons are competent witnesses until they are prevented from understanding the question put to them or they cannot give a rational answer to that question and this may occur due to.
- Repugnancy to injunction of Islam
- Tender age.
- Extreme old age.
- Disease of mind or body.
- Any other such cause as the court deems to b reason of incompetency.
Impeaching the credit of Witness:
According to Article 151 of Qanoone Shahadar order 1984 the credit of a witness can b impeached by the adverse party or with the consent of the court by the party who calls him in the following ways.
- By the evidence of who testify that from the knowledge of the witness he believes that he is untrustworthy, like he has committed perjury or that he has committed great sin or he is of a bad character etc etc.
- By proving that he has taken bribe or has been promised to b bribed or has received any other inducement to give his evidence.
- By the proof of former statements inconsistent with any part of his evidence which he has already given.
- When a man is prosecuted for an attempt of rape or ravish.
Spousal disqualification:
A common law competency rule of unusual longevity is the rule relating to the spouse of a criminal defendant. At common law, in a criminal case, the defendant spouse had the right to preclude the prosecution from calling the spouse as a witness. This rule applied whether the defendant was the wife or husband. The rule did not apply when the crime alleged involved an intra-family dispute and so in an earlier version of a domestic abuse case, the defendant would not have had the right to keep the spouse from testifying. The only trigger for this common law competency bar to apply was the marriage, at the time of the trial, between the defendant and the purported witness.10 It did not matter whether the proposed testimony related to conversations between the spouses or observed events, or even events occurring before the marriage took place. All that mattered was that at the time of the trial the defendant and the purported witness were married.
The common law rule is that neither party to a marriage can be a witness in favour of or against the other, in a suit to which the other is a party, or has a direct or immediate interest. In a criminal proceeding in which one spouse is the defendant, the other is not a competent witness either for or against the defendant. However, if the case is brought by one spouse against the other spouse, spouses are competent to testify against each other.
The United States Supreme Court in Trammel v. United States, 445 U.S. 40 (1980) completely changed the common law rule in federal cases. In Trammel, the prosecution proposed to call the defendant’s wife against him in a narcotics case. Both husband and wife had been caught dealing in narcotics and a plea agreement had been reached with the wife requiring her to testify in exchange for not being prosecuted. The husband objected on common law grounds. The Supreme Court ruled that the common law rule giving the defendant the right to keep his or her spouse from testifying as a prosecution witness was abrogated under federal law. Instead, the purported witness now had the privilege of not testifying but if the witness consented11 to testify, then the defendant could not prevent the spouse from testifying.
Mentally infirm witnesses:
The mentally infirm witness, or a witness under the influence of alcohol or narcotics at the time of testimony, poses an acute conceptual problem under the federal approach to competency. Obviously a mental infirmity such as forgetfulness, neurosis, or even mild psychosis should not result in a finding that the witness is incompetent. Rather, those debilitating facts might have some bearing the credibility of the witness. Suppose, however, that the witness is seriously mentally ill to a degree that the witness is totally incapable of separating fantasy from reality. Or, suppose that the witness is heavily under the influence of drugs or alcohol when called to testify.
A lunatic person is also incompetent to testify, but we know that there are two types of lunacy, one is permanent and the other is temporary. The permanent lunatic person is completely incompetent to testify but in the second case he can testify between the gapes of being lunatic.
A person of unsound mind is incompetent because he cannot understand the nature of question and he cannot give its answer too, he is even unaware of his own condition then how can we convict a person on his witness.
Dead Man Statutes:
The Dead Man Statutes are a relic of special common law fear that interest in a case would lead to perjury and therefore must be avoided altogether. The logic of this relic is that a person might fabricate a claim against an estate knowing that the only witness able to refute the claim is dead. Under a strict common law approach, the way to avoid the risk of such false testimony is to make the evidence incompetent. Statutes rendering such evidence incompetent are known as Dead Man Statutes and their thrust is to prohibit a person from testifying about a conversation with the deceased or sometimes even an act by the deceased, in a suit brought by or against the estate. The problem, of course, is that an injustice results where there is a valid claim against the estate or the estate’s claim is without merit and the person having dealt with the deceased is unable to present evidence that should be received.
Many states have abandoned Dead Man Statutes altogether. In others, either by legislation or judicial gloss on the statutory provisions, the survivor may testify but the testimony will not support a judgment unless corroborated. In other instances, the court may permit the testimony where its exclusion would, in the court’s opinion, result in an injustice. Finally, it should be remembered that the terms of the Dead Man Statutes are restricted: they apply only in civil litigation and then, usually, only when the estate is a plaintiff or defendant.
Children:
There is no age limit before the court in declaring a child as court witness, but he has to pass out the test laid down by the Article 3 of Qanoone Shahadat order 1984 and the court should ascertain that he understands the nature of oath and question before a question is put to him.
The reasons for which child witness is not that much relied upon:
- children are the most untrustworthy class of witness.
- They often mistake dream for reality as if it all happened really.
- Repeat glibly as of their own knowledge what they heard from others.
- Greatly influence by fear and punishment.
- can also be influenced by reward.
Nazir Hussain vs state PLD 1984 Lahore 509:
In this case the witness was an eight years old child, she was raped and when the court asked her as to what happened she gave coherent and logical answer. It was held that she a competent witness even she was eight only.
The common law barred children below certain ages from testifying. Different states set the competency age at different levels; up to a generation ago in some states the age of competency was as high as 12. One consequence of the increased sensitivity to sexual and physical abuse of children is the significant lowering of the age at which children are deemed competent to testify. In one Missouri case, a child as young as 30 months was found to be competent. The trend in this changing area of the law is to avoid rigid age numbers in determining competence and to leave it to the court to determine whether a particular child is capable of telling the truth.
Under the Federal Victim’s Protection and Rights Act, a child is “presumed competent” but the court has the power to hold a hearing to determine whether the child is competent. “Age alone” is not a compelling reason to conduct such a hearing. The Act further provides that it does not abrogate Rule 601. (See Title 18, United States Code, Section 3509(c).) While the Act does not abrogate the rule, it gives the court at least the theoretical power to rule incompetent a class of witnesses not covered by Rule 601.
Women as a witness:
A question that repeatedly arises is that concerning the ‘position of women in Islam’. Muslim scholars have been able with great success – despite the onslaught of distortion and misrepresentation – to demonstrate the true position of Muslim women; especially of women’s liberation in the advent of Islam. The Islamic ruling on issues such as inheritance, the right to earn, the right to own property etc. have reinforced this position and have been prescribed by ALLAH – the One True God – long before western nations even thought of such concepts!
The issue of two women witnesses in place of one man is the concern of the present treatise. As will become clear to the sincere and objective reader, the intellectual status of a Muslim woman is neither marred nor degraded by the commandment that if two Muslim male witnesses are not available then one Muslim male and two Muslim females should be invited to witness. Rather, this injunction is in perfect harmony with the nature and psychology of the woman as will become evident through quotations from psychologists, psychiatrists and medical research.
And get two witnesses of your own men, and if there are not two men then a man and two women such as you choose for witnesses – so that if one of them errs, the other can remind her… [Baqarah 2:182]
Some general information regarding witnesses:
The competency of a witness depends upon the circumstances that exist when the testimony is given. Age, mental power, and capacity to understand the nature and obligation of an oath are the tests that determine the competency of a witness. An expert witness should possess special knowledge of the subject on which the jury’s knowledge would be inadequate without expert assistance. The general presumption is that a person is competent to be a witness. A mature person of normal appearance and demeanour offered as a witness is presumed to be a competent witness. Unless a mature person comes under exceptions provided in statutes, a person is presumed to be competent to testify.
A person can be a witness if he has sufficient intelligence to understand the nature of an oath and to give a reasonably accurate account of what the person has seen and heard regarding the matter in question. A competent witness should be capable of receiving, remembering, and narrating impressions. A witness should also be sensible to the obligation of an oath before the person can be permitted to testify.
A person should only testify to those facts that the person knows personally. Facts should not be given that are beyond the personal knowledge of the person. When two witnesses have equal means to have knowledge about a fact, they are equally competent to be witnesses in a case. Even if the person had acquired knowledge about a fact in an unlawful manner, the witness will be considered competent. If a witness is biased in favour of one litigant, also the person will be considered a competent witness.
Generally, the evidence provided by witnesses when information is derived from statements or writings of others is excluded. However, there are certain exceptions to the rule. A banker can testify about the details of a bank account, or transactions although the information is derived from the books of the bank.
A person’s testimony should not be excluded because the witness has a hearing problem. If the witness’s answers to the questions were responsive, then that person’s evidence need not be excluded. Deaf and mute persons are also competent witnesses. If deaf and mute persons are able to communicate the matter and are of sufficient mental capacity to observe the matters as to which they will testify and to appreciate the obligation of an oath their evidence will have value. However, trial courts can have interpreters for deaf and mute witnesses. Their evidence will be considered as direct evidence and not hearsay evidence.
A witness cannot be considered incompetent because of intoxication. However, if the person was virtually unconscious at the time of the event, the person can be considered incompetent. Persons intoxicated at the time they are offered as witnesses are excluded from testifying. Use of drugs also does not render a witness incompetent. However, addiction to drugs can affect the credibility and weight of the person’s testimony.
When a person is insane or mentally ill, it does not automatically render him an incompetent witness. The court tests whether the person affected with insanity has sufficient knowledge to apprehend the obligation of an oath and whether he is capable to give a correct account of the matters which the person has seen or heard, then the person can be considered a competent witness. The person should also be capable to perceive and narrate.
An attorney can be a competent witness on behalf of his client. In exceptional cases, and in the absence of disqualifying interest, an attorney for a case can testify without withdrawing from the litigation. An attorney can also be a competent witness against his client. With regard to privileged communications, an attorney cannot testify against his/her clients.
A judge is not incompetent to testify as a witness in a cause not on trial before him. However, a judge presiding in a trial cannot be a witness in the same trial. It is because a judge should avoid not only impropriety but the appearance of impropriety. Arbitrators can be made competent witnesses in the same cause. Judges cannot act as expert witnesses because it would be prejudicial to the other party against whom the judge gives expert judicial opinions.
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