Rule 603.1  Disqualifications.  A person
is disqualified to be a witness if the person is (1) incapable of expressing
oneself so as to be understood, either directly or through interpretation by
one who can understand the person, or (2) incapable of understanding the duty
of a witness to tell the truth. [L 1980, c 164, pt of §1; gen ch 1985]



 



RULE 603.1 COMMENTARY



 



  The intent of this rule, which is similar to Cal. Evid. Code
§701, is to complement Rule 601 supra, and to require disqualification of
witnesses whose incapacity either to articulate in an understandable fashion or
to understand the truthtelling obligation renders their testimony valueless.



  Under this rule the competency of a witness is a matter for
determination by the court.  Competency has traditionally embodied a level of
threshold capacity "to understand the oath and to perceive, recollect, and
communicate that which he is offered to relate."  Law Revision Comm'n
Comment to Cal. Evid. Code §701.  Capacity to perceive and to recollect are implicit
in Rule 602's personal knowledge requirement.  This rule covers the oath and
the ability to communicate, matters which may be of concern in cases of
youthful or mentally infirm witnesses.



  This rule generally restates existing Hawaii law.  A superseded
statute, Hawaii Rev. Stat. §621-16 (1976) (repealed 1980) (originally enacted
as L 1876, c 32, §50; am L 1972, c 104, §1(k)), provided that the court could
"receive the evidence of any minor; provided, that the evidence of the
minor is given upon his affirmation to tell the truth...; provided also, that
no such evidence shall in any case be received unless it is proved to the
satisfaction of the court...that the minor perfectly understands the nature and
object of the affirmation...."  To the extent that the previous law
required a "perfect" understanding, the current rule effects a
liberalization of the competency standard for children.  In Republic v. Ah
Wong, 10 H. 524, 525 (1896), the court said: "There is no precise age
within which children are excluded from testifying.  Their competency is to be
determined, not by their age, but by the degree of their knowledge and
understanding."



  In Territory v. Titcomb, 34 H. 499, 502 (1938), the court
announced that "the proper test must always be, does the lunatic
understand what he is saying, and does he understand the obligation of an
oath?....  [I]f he can stand the test proposed, the jury must determine all the
rest."  Rule 603.1 is consistent with the Ah Wong and Titcomb decisions.



 



Case Notes



 



  Issue of complainant's competency to testify was reasonably
called into question, and trial court committed plain error in failing to
engage in independent inquiry and make an express finding as to whether
complainant was competent to testify before allowing complainant's substantive
testimony to be exposed to jury; supreme court not convinced beyond reasonable
doubt that error harmless.  74 H. 479, 849 P.2d 58.



  Testimonial capacity of mentally defective person.  5 H. App.
659, 706 P.2d 1333.