March 2020 FROM THE JUDGES DESK: Potential Changes Coming to Ohio’s Evidence Rule on the Competency of Witnesses continued from page 20 A 2009 analysis found that forty two of the fifty states in the United States had abandoned any mandatory evaluation of the competency of a child-witness and had, instead, adopted an evidence rule similar to the federal rule determining that “every person is competent to testify.” 12 Following the national trend, and the rejection of the notion that the ability to tell the truth bears religious roots, the Ohio Commission on the Rules of Practice and Procedure recommended and the Supreme Court adopted the following revision to Evid. R. 601:
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(A) Every person is competent to be a witness except as otherwise provided in these rules. (B) A person is disqualified to testify as a witness when the court determines that the person is: (1) Incapable of expressing himself or herself concerning the matter as to be understood, either directly or through interpretation by one who can understand him or her, or (2) Incapable of understanding the duty of a witness to tell the truth.13 The rule change will thus require any party seeking to raise the issue of the competence of any witness to bring the matter to the court’s attention, rather than demand that the court to initially certify the competence of a witness prior to testimony.
ENDNOTES:
C.B. Mueller and L.C. Kirkpatrick, Evidence (4th edn.)(2009). 13 The balance of Evid. R. 601 remains the same as in previous versions. 12
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Hillbilly Elegy: A Memoir of a Family and Culture in Crisis by J.D. Vance
rsvp to: daybar.org/bookclub March 2020 Dayton Bar Briefs
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