People v. District Court of the Fifth Judicial District ex rel. County of Clear Creek

ERICKSON, Justice,

dissenting:

I respectfully dissent to part IIB of the majority opinion and join Justice Rovira in his dissent. I write separately in order to set forth in greater detail the view that the evidence adduced at the competency hearing on January 6, 1982, was insufficient, as a matter of law, to rebut the presumption that Willmore was competent to testify as a witness in this case.

I agree with the conclusion of the majority that the psychiatrist’s inability to specify either the primary cause of Willmore’s mental condition or the relative importance of fatigue, traumatic neurosis, or the hypnotic interview in creating her condition does not indicate that the expert opinion was unfounded. In my view, however, the psychiatrist’s conclusion as to Willmore’s mental condition was itself insufficient to support a determination that she was incompetent to testify as a witness due to unsound mind. It is undisputed in the record that neither *1213the examining psychiatrist nor the trial judge had an opportunity to personally observe Willmore at any time prior to the competency hearing. The psychiatrist’s conclusion that Willmore was of unsound mind was rendered after a mere four-hour review of segments of the videotape and a transcript of Willmore’s deposition; the audio recording and transcript of a prior hypnotic interview of Willmore; a transcript of the defendant’s preliminary hearing at which Willmore appeared as a witness; and various other materials such as police interviews and reports, and articles appearing in medical journals. The psychiatric expert testified that, ideally, he would have desired a personal interview with Willmore in which he could systematically test her memory. His testimony also disclosed that, in reaching his conclusion that Willmore was not of sound mind, he primarily relied upon the written transcript of the videotaped deposition and upon audio tapes which he listened to in his car. The psychiatrist only viewed portions of the videotape because he “wasn’t about to spend five hours watching it.” The trial judge apparently did not examine, in whole or in part, the videotaped deposition of Willmore in order to personally observe her demeanor, but ruled that the presumption of competency was overcome solely on the basis of the psychiatrist’s conclusion that Willmore was of unsound mind.

A fine line exists between competency of a prospective witness to testify and the credibility of that witness’ testimony. Both fatigue and traumatic neurosis are not, in my view, psychological conditions which necessarily preclude a witness from being competent to testify. So long as the witness can satisfy the traditional competency requirements of accurate observation, recollection, and reporting of events at trial, the credibility of the witness and the weight to be given to his or her testimony is a matter for determination by the trier of fact. In view of the minimal factual basis in the record to show Willmore’s competency as a witness, and without an independent review of the videotape by the trial judge, I believe that the trial court abused its discretion in determining that the evidence was sufficient to rebut the presumption of compen-tency in this case.

Justice ROVIRA joins me in this dissent.