Cal. Codes » Evidence Code / DIVISION 6. WITNESSES / CHAPTER 1. Competency
California Codes

Cal. Evidence Code § 701 (2026)

✓ current as of May 2026
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(a)A person is disqualified to be a witness if he or she is:

(1)Incapable of expressing himself or herself concerning the matter so as to be understood, either directly or through interpretation by one who can understand him; or

(2)Incapable of understanding the duty of a witness to tell the truth.

(b)In any proceeding held outside the presence of a jury, the court may reserve challenges to the competency of a witness until the conclusion of the direct examination of that witness.

Notes of Decisions
Cited in 70 cases (9 in the last 5 years), 1979–2026 · leading case: People v. Lewis, 28 P.3d 34 (Cal. 2001).
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People v. Lewis, 28 P.3d 34 (Cal. 2001). · cites it 4× “A person is incompetent and disqualified to be a witness if he or she is “[ijncapable of expressing himself or herself concerning the matter so as to be understood, either directly or through interpretation by one who can understand him” (Evid. Code, § 701, subd. (a)(1)), or is…”
People v. Avila, 133 P.3d 1076 (Cal. 2006). · cites it 2× “A person is disqualified to be a witness if he or she is “[ijncapable of expressing himself or herself concerning the matter so as to be understood, either directly or through interpretation by one who can understand him” (Evid. Code, § 701, subd. (a)(1)) or “[ijncapable of…”
People v. Flinner, 476 P.3d 240 (Cal. 2020). · cites it 2× “) A person is completely disqualified from testifying under Evidence Code section 701, subdivision (a) if he or she is “(1) [i]ncapable of expressing himself or herself concerning the matter so as to be understood .”
Kentucky v. Stincer, 482 U.S. 730 (1987). · cites it 2× “" Cal. Evid. Code Ann. § 701(b) (West Supp.”
People v. Mincey, 827 P.2d 388 (Cal. 1992). · cites it 2× “) A person may be disqualified as a witness for one of two reasons: (1) the witness is incapable of expressing himself or herself so as to be understood, or (2) the witness is incapable of understanding the duty to tell the truth.”
People v. Marshall, 919 P.2d 1280 (Cal. 1996). · cites it 2× “) [5] Defendant may be understood to suggest his trial counsel rendered ineffective assistance in failing to request the jury be instructed pursuant to Evidence Code section 412, which provides: "If weaker and less satisfactory evidence is offered when it was within the power of…”
People v. Shirley, 723 P.2d 1354 (Cal. 1982). · cites it 2× “First, a previously hypnotized witness is not incompetent in the strict sense of being unable to express himself comprehensibly or understand his duty to tell the truth (Evid. Code, § 701), or of lacking the general capacity both to perceive and remember (Jefferson, Cal.”
People v. Sisavath, 2004 Cal. Daily Op. Serv. 4650 (Cal. Ct. App. 2004). · cites it 2× “After Victim 2 failed to respond to most of the questions that she was asked, the court concluded that she was disqualified because she could not express herself so as to be understood (Evid. Code, § 701, subd. (a)) and because she was incapable of understanding her duty to tell…”
People v. Montoya, 57 Cal. Rptr. 3d 770 (Cal. Ct. App. 2007). · cites it 2× “) A person is incompetent and disqualified to be a witness if he or she is “[i]ncapable of expressing himself or herself concerning the matter so as to be understood, either directly or through interpretation by one who can understand him” (Evid. Code, § 701, subd. (a)(1)), or…”
In Re Sc, 41 Cal. Rptr. 3d 453 (Cal. Ct. App. 2006). “Some of the most egregious aspects of the brief filed by appellant's counsel are under heading 13, entitled: "[The minor] was not competent to testify at trial, was not competent at the time she allegedly made out of court statements, therefore, the court erred in admitting such…”
People v. Sanchez, 439 P.3d 772 (Cal. 2019). “) "A person *311 is disqualified to be a witness if he or she is: [¶] (1) Incapable of expressing himself or herself concerning the matter so as to be understood, either directly or through interpretation by one who can understand him; or [¶] (2) Incapable of understanding the…”
People v. Giron-Chamul, 245 Cal. App. 4th 932 (Cal. Ct. App. 2016). “” (Evid. Code, § 701, subd. (a)(2).) The issue of competency is distinct from the issue of credibility, and “contradictory [or inconsistent] testimony does not suffice to show incapacity to understand the duty of truth .”
Show all 70 citing cases →
— Cal. Evidence Code § 701(a) — 1 case
Milton Rosales Rivera v. Loretta E. Lynch, 816 F.3d 1064 (9th Cir. 2016).
— Cal. Evidence Code § 701(a)(1) — 1 case
People v. Wight CA4/1 (Cal. Ct. App. 2024).
— Cal. Evidence Code § 701(b) — 1 case
Kentucky v. Stincer, 482 U.S. 730 (1987). “" Cal. Evid. Code Ann. § 701(b) (West Supp.”
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