The policy of the modern law is that disqualification of witnesses is disfavored, and almost every person is deemed competent to testify, provided they have personal knowledge of the events about which they are testifying.1 This policy eviscerates several old common-law restrictions on a person’s ability to testify in a case. For example, individuals having a direct, vested interest in the subject matter of the lawsuit were deemed incompetent to testify.2 A convicted felon was also deemed to be incompetent to testify.3 A spouse could not testify in a matter in which the other spouse was a party, where the non-party spouse was immediately interested in the result.4 One who did not believe in God was also deemed incompetent.5 None of these restrictions now exist.6 Under the modern rule, sensory, mental or moral prerequisites are not specified, with such disabilities going to the weight of the testimony rather than its admissibility.7 For example, the fact that a witness is shown to have lied in the proceeding or in an earlier proceeding does not render the testimony of the witness inadmissible on the ground that the witness is not competent, as the credibility of the witness may be assessed by the jury.7.1
The rules as to competency of a witness do not identify any mental, moral or physical qualifications for a witness to testify. These issues go to the weight of the testimony, not the competency of the witness to testify. Thus, a person suffering from a mental or physical impairment is competent to testify as a witness so long as the witness is able to distinguish truth from falsity and to understand his obligation to tell the truth in his testimony.7.2
At common law, a child 14 years old or older was presumed competent to testify. There was no precise age when a child below 14 was conclusively presumed to be incompetent to testify. Age, standing alone, was not the sole criterion of competency. Rather, the issue was whether the child had the intelligence to understand the difference between telling the truth and telling a lie, the ability to recall and the ability to communicate and express himself or herself.8 Under Delaware Rule of Evidence 601, even a child under 10 is presumed to be competent to testify provided the tria1 judge is satisfied by voir dire that the child understands the obligation to tell the truth, and the difference between truth and falsehood.9 Under the rule and a separate statute, it is not necessary that a child understand the obligation of an oath.10
There remain, however, some restrictions on the ability of certain individuals to testify. The judge presiding at a trial may not testify in that trial as a witness.11 A judge who has presided at any stage of a trial and has made any rulings in the case that are still controlling is prohibited from testifying at any subsequent stage of the trial, as this risks destroying the appearance of judicial impartiality, since the rights of the parties have been fixed by one who subsequently has adopted a position in favor of one of the parties.11.1
Apart from questions of testimonial privilege,12 there is no evidentiary proscription against calling a party’s current or former attorney to the stand, although the better practice is that it should not be done except in cases of real necessity.13 The Delaware Rules of Professional Conduct, however, prohibit lawyers acting as advocates in a trial from testifying as witnesses except where (i) the testimony relates to an uncontested issue, or (ii) the testimony relates to the nature and value of legal services rendered in the case.14 An attorney acting as both advocate and witness threatens the integrity of the judicial proceedings in that (i) the attorney may be more susceptible to impeachment on the ground of interest or bias, thereby limiting his or her effectiveness in either role; (ii) the lawyer’s dual role may prejudice opposing counsel by inhibiting cross-examination of the advocate-witness; and (iii) the attorney may, inadvertently or otherwise, inject unsworn testimony into the cross-examination of other witnesses and during arguments to the trial judge and/or the jury.14.1
A member of the jury may not testify before that jury in the trial of the case in which the juror is sitting.15 Further, a juror may not be called as a witness in any hearing related to the validity of a verdict or an indictment to testify to any “intrinsic” matter, i.e., any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon the mind or emotion of that or any other juror influencing that jury to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection with the deliberations.16 Examples of “intrinsic” matters include discussions among jurors, intimidation or harassment of one juror by another and other intra-jury influences.17 A juror, however, may testify as to “extrinsic” prejudicial information that was improperly brought to the jury’s attention or whether any outside influence was brought to bear upon any juror.18 Examples of extrinsic influences include exposure to news items about matters pending before the jury, consideration by the jury of extra-record facts about the case, communication between third parties and jurors relevant to the case to be decided, and pressure or partiality on the part of the court. 19 The purpose of this rule is to preserve the sanctity of the jury’s deliberations.20
1. .D.R.E. 601, 602. See also Feleke v. State, 620 A.2d 222, 225 (Del. 1993); Ricketts v. State, 488 A.2d 856, 857 (Del. 1985); Connor v. Lyness, 284 A.2d 473, 476 (Del. 1971), overruled on other grounds by Sammons v. Ridgeway, 293 A.2d 547 (Del. 1972); Great Lakes Steel Corp. v. Baysoy, 157 A.2d 902, 909 (Del. 1960) (witness must have personal knowledge); State v. Roane, Cr. A. No. IN85-12-0262, slip op. at 13, Babiarz, J. (Del. Super. Jan. 24, 1992).
2. De Pusey v. Du Pont, 1 Del. Ch. 77, 81 (Del. Ch. 1819); Lalley v. Truitt, 9 Del. 578, 4 Houst. 578, 581 (Del. Super. 1874); State use of Stockley v. Connoway, 7 Del. 206, 2 Houst. 206, 208 (Del. Super. 1860); Union Bank of Delaware v. Prettyman, 7 Del. 16, 2 Houst. 16, 19 (Del. Super. 1858); Cleaver v. Ogle, 6 Del. 453, 1 Houst. 453, 454 (Del. Super. 1857); Hosea v. Kinney, 6 Del. 141, 1 Houst. 141, 143 (Del. Super. 1855); Nicholson v. Frazier, 4 Del. 206, 4 Barr. 206, 207 (Del. Super. 1844); Jefferson v. Stewart, 4 Del. 82, 4 Harr. 82, 83 (Del. Super. 1843); State v. Williams, 2 Del. 532, 2 Harr. 532 (Del. Gen. Sass. 1836); Bailey v. Capelle, 1 Del. 449, 1 Harr. 449, 450 (Del. Super. 1834); Randel v. President, Directors & Co. of Chesapeake & Delaware Canal, I Del. 233, 1 Herr. 233, 295-96 (Del. Super. 1833); Newbold v. Wilkins, 1 Del. Rpts. 433, 1 Barr. 433 (Del. Super. 1832). In 1881, this common law rule was abrogated by the passage of 16 Del. Laws, ch. 537, which, after subsequent amendments, was repealed in 1981 in light of the adoption of D.R.E. 601.
3. State v. Turner, 1 Houst. Cr. Cases 76, 78 (Del. 0. & T. 1859); State v. Anderson, 5 Del. 493, 5 Barr. 493, 494 (Del. Gen. Sess. 1854); State v. Timmons, 2 Del. Rpts. 528, 2 Harr. 528 (Del. Gen. Sess. 1833); State v. Johnson, 1 Del. Cas. 335, 336 (Del. Quarter Sess. 1793). This rule was abrogated in 1859 by the adoption of 11 Del. Laws, ch. 598, which was repealed in 1981 in light of the adoption of D.R.E. 601.
4. State v. Smith, 57 A. 368, 369 (Del. Gen. Sess. 1904); Bradley v. Kent’s Ex’r, 32 A. 286 (Del. Super. 1886); Doe ex rel. Burton v. Roe, 7 Del. 49, 2 Houst. 49, 52-3 (Del. Super. 1859). This rule was abrogated in 1891 by the adoption of 19 Del. Laws, ch. 260, which, after subsequent amendments, was repealed in 1981 in light of the adoption of D.R.E. 601.
5. Perry’s Adm’r. v. Stewart, 2 Del. 37, 2 Harr. 37 (Del. Super. 1835); State v. Townsend, 2 Del. 543, 2 Harr. 543, 543-44 (Del. Gen. Sass. 1839).
6. D.R.E. 601.
7. Feleke v. State, 620 A.2d 222 (Del. 1993); Ricketts v. State, 488 A.2d 856 (Del. 1985); Truman v. Watts, 598 A.2d 713, 717 (Del. Fam. 1991).
7.1. Outten v. State, 650 A.2d 1291, 1295-96 (Del.), cert. denied, 515 U.S. 1145 (1995).
7.2. State v. Baker, ID #0302013230, slip op. at 4-8, Stokes, J. (Del. Super. Aug. 7, 2003). See also Smith v. State, No. 441, 2007, Steele, J. (Del. Aug. 28, 2008), disposition reported at 857 A.2d 2 (Del. 2008) (TABLE) (no abuse of discretion to allowing victim with cerebral palsy to testify).
8. Kelleum v. State, 396 A.2d 166, 167-68 (Del. 1978).
9. Taylor v. State, 849 A.2d 405, 409 (Del.2004); Feleke v. State, 620 A.2d 222, 225 (Del. 1993); Ricketts v. State, 488 A.2d 856, 857-58 (Del. 1985); Jones v. State, No. 287, 1990, slip op. at 7-8, Moore, J. (Del. June 19, 1991) (ORDER), disposition reported at 599 A.2d 413 (Del. 1991) (TABLE); Truman v. Watts, 598 A.2d 713 (Del. Fam. 1991); State v. Roane, Cr. A. No. 1N85-l2-0262, slip op. at 14-15, Babiarz, J. (Del. Super. Jan: 24, 1992); State in the Interest of Richard P., Nos. AN9O-3445, 90-4-417-1, 2C and 90040369-00, slip op. at 4-6, Wakefield, J. (Del. Fam. Aug. 21, 1991).
10. 10 Del. C. § 4302; Feleke v. State, 620 A.2d 222, 225 (Del. 1993). Such lack of understanding may be considered by the trier of fact in judging the child’s credibility. 10 Del. C. § 4302. This statute abrogates the old common-law rule to the contrary. See State v. Miller, 1 Del. Cas. 512 (Del. 1814).
11. D.R.E. 605. See also Jones v State, No. 287, 1990, slip op. at 7 n. 1, Moore, J. (Del. June 19, 1991) (ORDER), disposition reported at 599 A.2d 413 (Del. 1991). In cases where the judge is not presiding, judges should not testify as character witnesses as this injects the prestige of the judicial office into the proceedings and may be misunderstood by the jury as an official testimonial. This restriction does not give rise to a testimonial immunity, however, but imposes on judges a duty to discourage parties from calling them as character witnesses. Del. Code Jud. Cond., Canon 2(8) and commentary.
11.1. McCool v. Gehret, 657 A.2d 269 (Del. 1995).
12. See chapter 15.
13. Phillips v. Liberty Mut. Ins. Co., 235 A.2d 835, 839 (Del. 1967); Food Fair Stores, New Castle, Inc. v. Howard, 212 A.2d 405, 409 (Del. 1965); Kuratle v. Pyle, 107 A. 788, 789-90 (Del. Ch. 1919), modified, 110 A. 659 (Del. 1920); Real Estate Trust Co. v. Wilmington & N. C. E. R. Co., 77 A. 756, 758-60 (Del. Ch. 1910), modified on other grounds, 77 A. 828 (Del. 1910); Crooks v. Purnell, 9 Del. 305, 4 Houst. 305, 306 (Del. Super. 1872).
14. Matter of Estate of Waters, 647 A.2d 1091, 1097-98 (Del. 1994); Del. R. Prof. Cond. 3.7(a). In other circumstances where the lawyer expects to testify, the lawyer must be disqualified from acting as trial counsel unless such disqualification would work a substantial hardship on the client. Id.
14.1. Matter of Estate of Waters, 647 A.2d 1091, 1097-98 (Del. 1994); LeRoy v. State, No. 074, 1993, slip op. at 2-3, Goldstein, J. (Del. Super. Jan. 21, 1994).
15. D.R.E. 606(a). See also Jones v State, No. 287, 1990, slip op. at 7 n. 1, Moore, J. (Del. June 19, 1991) (ORDER), disposition reported at 599 A.2d 413 (Del. 1991). If a juror is called to testify, the opposing party must be afforded an opportunity to object out of the presence of the jury. D.R.E. 606(a).
16. D.R.E. 606(b); Sheeran v. State, 526 A.2d 886, 897 (Del. 1987).
17. Sheeran v. State, 526 A.2d 886, 897 (Del. 1987).
18. D.R.E. 606(b); Massey v. State, 541 A.2d 1254, 1257 (Del. 1988); Sheeran v. State, 526 A.2d 886 (Del. 1987); Barnes v. Toppin, 482 A.2d 749, 753 (Del. 1984); McLain v. General Motors Corp., 586 A.2d 647 (Del. Super. 1988).
19. Sheeran v. State, 526 A.2d 886, 895 (Del. 1987).
20. Sheeran v. State, 526 A.2d 886, 895 (Del. 1987).
© 2010 David L. Finger