dissenting:
I respectfully dissent. The majority holds that the trial court did not abuse its discretion in suppressing the video tape deposition of Kennette Ann Willmore. I disagree.
Prior to being allowed to testify in a court of law, a witness must meet minimal competency requirements. In Colorado, the legislature has provided that “[pjersons who are of unsound mind at the time of their production for examination” shall not be witnesses. Section 13-90-106(l)(a), C.R.S. 1973. The test for competency applied in this jurisdiction under the “unsound mind” standard provides that one who is capable of observing, recollecting, and communicating facts and who appreciates the obligation to tell the truth may testify. People v. Estorga, Colo., 612 P.2d 520 (1980); Marn v. People, 175 Colo. 242, 486 P.2d 424 (1971); Howard v. Hester, 139 Colo. 255, 338 P.2d 106 (1959). See C. McCormick, Handbook of the Law of Evidence § 62 (E. Cleary 2d ed. 1972).
It is well established that the determination of the competency of a witness is a threshold question of law which is placed within the sound discretion of the trial court. People v. Estorga, supra; Johnson v. People, 171 Colo. 505, 468 P.2d 745 (1970); Howard v. Hester, supra. The ruling of the trial court will not be disturbed absent an abuse of discretion.
In determining whether a person is competent to testify, however, it must be remembered that every person is presumed competent, and the burden is on the challenging party to show that the witness comes within the purview of the statutory exceptions to the competency rule. See Williams v. People, 157 Colo. 443, 403 P.2d 436 (1965). Further, this court has stated that a witness should not be found incompetent to testify because of mental incapacity unless the evidence is clear and conclusive. Howard v. Hester, supra. See also Terry v. *1214O’Neal, 194 Md. 680, 72 A.2d 26 (1950); Tumminello v. State, 10 Md.App. 612, 272 A.2d 77, cert. denied, 404 U.S. 948, 92 S.Ct. 276, 30 L.Ed.2d 264 (1971) (proof of insanity must be clear and conclusive in order to overcome presumption that witness was sane at time of testimony).
Several factors dictate that a court should suppress testimony of a witness on the basis of unsound mind only in extreme situations. First, while the threshold determination of competency is for the court, questions of credibility of a witness and the weight to be given testimony are for the jury. Johnson v. People, supra. Considerations before the court in a hearing to determine competency are often not easily distinguished from those which properly should be left to the jury when assessing credibility and weighing evidence. See Howard v. Hester, supra. Accordingly, the court must be cognizant of the real possibility of infringing upon the province of the jury.
Further, the truth-finding process is better served by allowing testimony to be presented to a jury along with evidence of any infirmities which may affect the credibility of the witness or the weight to be given the testimony. See Rosen v. United States, 245 U.S. 467, 38 S.Ct. 148, 62 L.Ed. 406 (1918); 2 J. Wigmore, Evidence § 501 (J. Chadbourn rev. 1979) (discussing the modern trend refusing to distinguish between incapacity as it affects credibility and incapacity which excludes the witness and, instead, allowing the jury to assess the impeached testimony and glean whatever traces of truth contained therein).
The Federal Rules of Evidence have adopted a rule which does not specify a standard for determining mental competency. Fed.R.Evid. 601. See United States v. Roach, 590 F.2d 181 (5th Cir. 1979) (suggesting that under Rule 601 mental capacity is no longer a ground of incompetence). Rule 601 provides, in part, “Every person is competent to be a witness except as otherwise provided in these rules.” The Advisory Committee’s Note to Rule 601 adopts the rationale of the commentators supporting the modern trend. “A witness wholly without capacity is difficult to imagine. The question is one particularly suited to the jury as one of weight and credibility, subject to judicial authority to review the sufficiency of the evidence.”1
In Colorado, however, C.R.E. 601 provides that “Every person is competent to be a witness except as otherwise provided in these rules, or in any statute of the State of Colorado.” (emphasis added). Thus, the “unsound mind” competency standard of section 13-90-106(l)(a), C.R.S. (1973) continues to provide the rule of law in Colorado.
Nonetheless, a court should not exclude the testimony of a witness because of unsound mind unless it appears that the witness’ capacity is such that it would not be worthwhile to hear him and “his capacity to observe, remember, and recount, [is] such that he can .. . bring [no] added knowledge of the facts.” C. McCormick, Handbook of the Law of Evidence § 62 at p. 140 (E. Cleary 2d ed. 1972). In all other cases, if the witness can add any light on the facts in question and if he can appreciate the obligation to be truthful, the court should allow the witness to relate his observations to the best of his ability. Any infirmities can be made apparent through cross-examination, and the jury can assess weight and credibility accordingly.
With the foregoing in mind, I now turn to the challenge presently before the court. The People contend that the court abused its discretion by adopting the opinion of the expert witness and ruling on the issue of competency without having reviewed all the evidence available, particularly the video deposition; and that the evidence was insufficient to overcome the presumption of competence.
The People allege, and it is not denied, that the trial court never viewed the video *1215tape deposition which it ordered suppressed. Accordingly, I accept the allegation as being true.
Generally, a determination of competency of a witness should be made only after a voir dire of the witness has been conducted by the court or by counsel in the presence of the court. See Shuler v. Wainwright, 491 F.2d 1213 (5th Cir. 1974); Henderson v. United States, 218 F.2d 14 (6th Cir. 1955). See also People v. Coca, .39 Colo.App. 264, 564 P.2d 431 (1977). In the present case, the witness was unavailable for a competency hearing. However, the video tape deposition displaying the witness taking an oath, acknowledging her presence at the scene of the alleged crime, and testifying concerning her memory of the events in question was available to the trial court.
In the absence of an opportunity to voir dire the witness as to her competency, the video tape offered the only indicia of the witness’ demeanor on the. witness stand. Certainly, this evidence, in itself, is relevant in showing the witness’ ability to appreciate the obligation to tell the truth, her ability to recollect the event in question, and her ability to communicate.2
I believe that the failure to consider relevant evidence constitutes an abuse of discretion. See Spann v. People, 193 Colo. 53, 561 P.2d 1268 (1977). These are determinations which must be made by the trial court; I do not believe that the court can simply ignore evidence and rely, instead, upon an expert.
Accordingly, I would remand the case to the trial court along with an order to view the video deposition. The court should then reconsider its prior ruling in light of all of the evidence available to it.
I am authorized to say that Justice ERICKSON joins in this dissent.
. Commentators have suggested that a witness totally lacking in capacity is difficult to imagine and “that each witness’ testimony [should] be taken for what it seems to be worth.” 3 J. Weinstein, Weinstein’s Evidence ¶ 601 [03] (1981), quoting 2 J. Wigmore, Evidence § 493 (3d ed. 1940). See C. McCormick, Handbook of the Law of Evidence § 62 (E. Cleary 2d ed. 1972).
. The video tape deposition was offered into evidence by the defendant. The exhibit was entered into evidence and was before the court in the competency hearing.