Colorado § 13-90-106 - Who may not testify.

§ 13-90-106. Who may not testify.

(1) The following persons shall not be witnesses:

(a) Persons who are of unsound mind at the time of their production for examination;

(b) (I) Children under ten years of age who appear incapable of receiving just impressions of the facts respecting which they are examined or of relating them truly.

(II) This proscription does not apply to a child under ten years of age, in any civil or criminal proceeding for child abuse, sexual abuse, a sexual offense pursuant to part 4 of article 3 of title 18, C.R.S., or incest, when the child is able to describe or relate in language appropriate for a child of that age the events or facts respecting which the child is examined.

Source: L. 1883: p. 290, § 2. G.S. § 3648. R.S. 08: § 7273. C.L. § 6562. CSA: C. 177, § 8. CRS 53: §153-1-6. C.R.S. 1963: § 154-1-6. L. 83: (1)(b) amended, p. 635, § 1, effective April 22. L. 89: (1)(b)(II) amended, p. 862, § 1, effective April 12. L. 2003: (1)(b)(II) amended, p. 1433, § 24, effective April 29.

ANNOTATION

I. General Consideration.

II. Mental Incompetency.

III. Incompetency of a Child.

I. GENERAL CONSIDERATION.

Applied in People v. Norwood, 37 Colo. App. 157, 547 P.2d 273 (1975); People v. Trujillo, 40 Colo. App. 220, 577 P.2d 297 (1977).

II. MENTAL INCOMPETENCY.

Every person of unsound mind is not incompetent to testify as a witness. Howard v. Hester, 139 Colo. 255, 338 P.2d 106 (1959).

Fact that a child is under care of a psychologist is merely one factor for the court to consider and does not necessarily affect the child's competency to testify. People v. Piro, 671 P.2d 1341 (Colo. App. 1983).

In determining whether a compelling reason exists for a psychological examination of a witness, the trial court must balance the possible emotional trauma and embarrassment to, or intimidation of, the witness against the likelihood of the examination producing relevant, as distinguished from speculative, evidence. People v. Piro, 671 P.2d 1341 (Colo. App. 1983).

Decision to order involuntary psychiatric examination of a witness for purpose of determining competency to testify is within the sound discretion of the trial court and should only be granted where a compelling reason for it exists. Where defendant's only grounds for challenging competence of witness because of mental state pertained to credibility rather than competence, court did not err in denying motion. People v. McGhee, 677 P.2d 419 (Colo. App. 1983).

An adjudication of insanity only raises a rebuttable presumption of incompetency. People v. Coca, 39 Colo. App. 264, 564 P.2d 431 (1977).

An adjudication of insanity is sufficient to create a prima facie showing of incompetency, shifting the burden of proof of competency to the proponent of the testimony. People v. Coca, 39 Colo. App. 264, 564 P.2d 431 (1977).

There need not be a formal adjudication of sanity prior to testifying. People v. Coca, 39 Colo. App. 264, 564 P.2d 431 (1977).

The mere fact that an individual has been adjudicated as a feebleminded person does not disqualify him as a witness. Howard v. Hester, 139 Colo. 255, 338 P.2d 106 (1959).

Adjudication of insanity does not conclusively render a witness incompetent. People v. Coca, 39 Colo. App. 264, 564 P.2d 431 (1977).

The matter of permitting an aged person to testify rests largely in a trial court's discretion, and its determination will not be disturbed in the absence of a clear abuse of discretion. Howard v. Hester, 139 Colo. 255, 338 P.2d 106 (1959); Garrison v. People, 158 Colo. 348, 408 P.2d 60 (1965).

A witness's intoxication, alone, is not sufficient to determine that the witness is incompetent to testify. There is nothing in the record that indicated the witness lacked the capacity to observe, recollect, communicate, and understand the oath to tell the truth. The witness was thoroughly cross-examined by defense counsel and the court informed the jury of the witness's intoxication status. There was no error in allowing the witness's testimony. People v. Alley, 232 P.3d 272 (Colo. App. 2010).

Further, a witness's intoxication, alone, does not require the court to conduct a competency hearing. The court has wide latitude to determine whether to admit an intoxicated witness's testimony, and it is the jury's role to determine the witness's credibility. People v. Alley, 232 P.3d 272 (Colo. App. 2010).

If a witness has the capacity to observe, recollect, and communicate he is competent, and his mental deficiency is considered only insofar as it affects the weight to be given his testimony. Howard v. Hester, 139 Colo. 255, 338 P.2d 106 (1959).

A person adjudged incompetent may testify so long as the trial court determines through appropriate voir dire examination and proper testimony in camera that, regardless of sanity, the witness appreciates and understands the nature and obligation of the oath and is capable of accurate recollection and narration. People v. Coca, 39 Colo. App. 264, 564 P.2d 431 (1977).

When no question is raised as to competency, weight of testimony is for jury. The plaintiffs did not examine the witness on voir dire, nor did they object to her testimony on the grounds that she was of unsound mind. Testimony that the witness was a retarded individual and frequently told untrue stories was for impeachment purposes. No question was raised as to the admissibility. Under this state of the record the weight of the witness's testimony was for the jury alone. Kirk v. Himes, 170 Colo. 378, 461 P.2d 444 (1969).

Abuse of discretion. Where the court concluded that the witness, who had previously been adjudicated insane, was competent, without making any inquiries of the witness to determine present competency, the ruling constituted an abuse of discretion. People v. Coca, 39 Colo. App. 264, 564 P.2d 431 (1977).

Sufficiency of verdict and medical report in release hearing. The difference between release and insanity proceedings militates against viewing the jury verdict and medical report in the release hearing as sufficient in themselves to support a finding of competency to testify. People v. Coca, 39 Colo. App. 264, 564 P.2d 431 (1977).

The court of appeals will not attempt to ascertain from the transcript alone whether the witness was competent at trial. People v. Coca, 39 Colo. App. 264, 564 P.2d 431 (1977).

For determination of "unsound mind" by review of transcripts, see People v. District Court, 647 P.2d 1206 (Colo. 1982).

III. INCOMPETENCY OF A CHILD.

Law reviews. For article, "Children as Witnesses: Competency and Rules Favoring Their Testimony", see 12 Colo. Law. 1982 (1983). For article, "The Child Witness", see 22 Colo. Law. 1201 (1993). For article, "Children as Witnesses", see 31 Colo. Law. 15 (Oct. 2002).

There is no per se rule against conducting a child competency hearing in front of the jury, but the better practice is to excuse the jury. The defendant was not prejudiced by holding the hearing in front of the jury. People v. Wittrein, 221 P.3d 1076 (Colo. 2009).

The provision of this section does not apply to all children under 10 years of age, but only to those under that age who "appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly". Victor v. Smilanich, 54 Colo. 479, 131 P. 392 (1913).

Child six and one-half years has been permitted to testify. Where it appeared that a boy of six and a half years understood that he was required to tell the truth, and could be punished if he did not, that he had a fair understanding of the obligation of an oath, and of the facts which he detailed, held, that no abuse of discretion was committed in receiving his testimony. Victor v. Smilanich, 54 Colo. 479, 131 P. 392 (1913).

The trial court committed no error in permitting a boy seven and one-half years of age to testify where, after extensive examination, the court determined that the boy was competent and was capable of receiving just impressions of fact and truthfully relating the same. Berger v. People, 122 Colo. 367, 224 P.2d 228 (1950).

Some eight-year-olds may testify. Where the record shows lengthy cross-examinations of the eight-year-old witness, both during the initial voir dire and during her testimony in open court, and her testimony was clear and not obviously coached or rehearsed, the trial court did not abuse its discretion in finding that the witness was competent to testify in an indecent liberties action. Jordan v. People, 161 Colo. 54, 419 P.2d 656 (1966).

If a witness has the ability to observe and relate facts accurately and understand the moral obligation to tell the truth, then he will be held competent to testify regardless of the fact that he may not know or be able to give an adequate technical, legal definition of the term "oath". Marn v. People, 175 Colo. 242, 486 P.2d 424 (1971).

Competency of such children is addressed to court's discretion. This language clearly implies that the competency of a child as a witness under the prescribed age, is a question addressed to the sound discretion of the trial court to determine. Victor v. Smilanich, 54 Colo. 479, 131 P. 392 (1913); Pillod v. People, 119 Colo. 116, 200 P.2d 919 (1948); Wesner v. People, 126 Colo. 400, 250 P.2d 124 (1952); Hood v. People, 130 Colo. 531, 277 P.2d 223 (1954); Harris v. People, 174 Colo. 483, 484 P.2d 1223 (1971); People v. Lancaster, 43 Colo. App. 328, 605 P.2d 67 (1979), aff'd, 200 Colo. 448, 615 P.2d 720 (1980); People v. Hise, 738 P.2d 13 (Colo. App. 1986); People v. District Court, 791 P.2d 682 (Colo. 1990); People v. Vialpando, 804 P.2d 219 (Colo. App. 1990); People v. Seacrist, 874 P.2d 438 (Colo. App. 1993).

Court's determination will not be disturbed unless abused. When, therefore, the trial court has determined this question, it will not be disturbed on review, unless it appears from the examination of the child on the voir dire, or from his testimony, that the trial court clearly abused its discretion. Victor v. Smilanich, 54 Colo. 479, 131 P. 392 (1913); Holm v. People, 72 Colo. 257, 210 P. 698 (1922); Brasher v. People, 81 Colo. 113, 253 P. 827 (1927); Marn v. People, 175 Colo. 242, 486 P.2d 424 (1971).

Each case turns on its own facts. The competency of a witness in any case turns upon the facts in the particular inquiry. Hood v. People, 130 Colo. 531, 277 P.2d 223 (1954).

An objection to the admission or exclusion of evidence on the ground of the competency of a witness must be made in the trial court. Otherwise, it will not be considered on review. Holm v. People, 72 Colo. 257, 210 P. 698 (1922); Pillod v. People, 119 Colo. 116, 200 P.2d 920 (1948); Harris v. People, 174 Colo. 483, 484 P.2d 1223 (1971).

Limited voir dire examination not prejudicial. If, on a limited examination of a child witness by the court, the child was permitted to testify and its testimony discloses that on the whole she was capable of receiving just impressions of the facts respecting which she was examined, and that she related them truthfully, and it is further disclosed that she had an idea of the obligation of an oath in connection therewith, then it is at once apparent that the quick judgment of the trial court was correct and no prejudice to the defendant occurred by the brief voir dire examination. Wesner v. People, 126 Colo. 400, 250 P.2d 124 (1952).

Declarant's testimonial incapacity due to age does not vitiate admission of declarant's assertion under the res gestae exception to the hearsay rule. Lancaster v. People, 200 Colo. 448, 615 P.2d 720 (1980).

Statements admitted under excited utterance exception to hearsay rule. Even if a child's age makes him incompetent to testify, this incapacity does not vitiate the admission of his statements under the excited utterance exception to the hearsay rule. People v. Ortega, 672 P.2d 215 (Colo. App. 1983).

Inconsistencies in testimony go to weight of evidence, not victim's competency to testify. People v. Galloway, 726 P.2d 249 (Colo. App. 1986).

Child under ten years of age is competent to testify as witness if the child is able to describe or relate in language appropriate for a child that age the events or facts about which the child is being examined. People v. Bowers, 801 P.2d 511 (Colo. 1990); People v. Trujillo, 923 P.2d 277 (Colo. App. 1996).

Child presumed competent. As with other witnesses, defendant has the burden of establishing that a child witness is incompetent. People v. Gillispie, 767 P.2d 778 (Colo. App. 1988).

Finding that child is incompetent to testify pursuant to this section does not automatically preclude admission of child's hearsay statements if such statements fall within exception to hearsay rule; however such finding is significant where the hearsay exception requires the child to have the ability to understand the purpose of questioning and to relate accurate information. Oldsen v. People, 732 P.2d 1132 (Colo. 1986).

Finding child incompetent to testify due to child's reluctance to answer questions in courtroom setting does not automatically impair the guarantees of reliability of child's hearsay statement and render such statement inadmissible. People v. Bowers, 801 P.2d 511 (Colo. 1990).

A child is not competent to testify in a sexual assault proceeding if he or she is unable to describe or relate in language appropriate for a child of that age the events or facts respecting which the child is examined. People v. District Court, 776 P.2d 1083 (Colo. 1989); People v. Diefenderfer, 784 P.2d 741 (Colo. 1989).

This section does not require that all of the child's testimony be in language that is appropriate to the child's age. Where most of the child's testimony was in age-appropriate language, the court did not abuse its discretion in allowing the child to testify even though she used the phrase "sex abuser", which was not appropriate to her age. People v. Seacrist, 874 P.2d 438 (Colo. App. 1993).

Purpose of adoption of subsection (1)(b)(II) was to allow juries to assess the weight and credibility of the testimony of victims of child abuse. People v. District Court, 791 P.2d 682 (Colo. 1990).

The lesser standard established in subsection (1)(b)(II) does not apply only to the sexual assault victim, but may be used to allow any child to testify in a sexual assault case if the child's testimony satisfies the statutory requirements. People v. Seacrist, 874 P.2d 438 (Colo. App. 1993).

A child need not be able to understand what it means to take an oath to tell the truth and need not be able to explain what it means to tell the truth in order to be judged competent to testify under subsection (1)(b)(II). People v. District Court, 791 P.2d 682 (Colo. 1990).

Questioning a child-witness about the actual events of the charged offense is not required before a determination of his or her competency can be made. People v. Trujillo, 923 P.2d 277 (Colo. App. 1996).

The manner and scope of examination at competency hearings should be left to the sound discretion of the trial court. People v. Trujillo, 923 P.2d 277 (Colo. App. 1996).

Trial court did not abuse discretion in limiting defendant's cross-examination of child-witness at the competency hearing about the alleged acts of sexual assault or in finding her competent to testify at trial where the victim was able to relate the events or facts upon which she was examined. People v. Trujillo, 923 P.2d 277 (Colo. App. 1996).

Six-year-old child determined competent to testify in criminal sexual abuse proceeding. People v. Stackhouse, 2012 COA 202, 411 P.3d 708, aff'd on other grounds, 2015 CO 48, 386 P.3d 440.