by David M. Reutter

The Supreme Court of Oregon held that the competency requirement of OEC 601 asks only whether a person possesses sufficient general capacity to perceive, recollect, and communicate so as to serve as a witness at all, and it does not authorize a trial court to declare an otherwise competent witness incompetent to testify about one particular fact. Concerns about the quality of a witness’s memory of specific facts are governed by other rules of evidence, primarily OEC 602’s personal knowledge requirement, the Court explained. Because the trial court ruled that a witness was generally competent yet incompetent to testify on the single disputed fact in a murder prosecution, the Court held that the trial court applied the wrong legal standard and reversed.

Background

The State charged Lynn Edward Benton with murdering his wife, DB, who was killed on May 28, 2011, and alleged that Benton solicited Campbell and her son, Jaynes, to carry out the killing. Jaynes told police he had been working at a Chevron station that day and identified his coworker, Smith, as an alibi witness. Smith initially confirmed that Jaynes never left work. After pressure from detectives and multiple polygraph examinations, Smith changed his account several times, at one point stating that Jaynes had left work twice that afternoon. By September 2015, Smith told a defense investigator that he could not remember whether Jaynes had left, attributing his memory problems to life stressors and head injuries, and he testified to the same lack of memory at a May 2016 hearing. Benton was convicted in 2016 without Smith’s testimony, but the state Supreme Court reversed those convictions based on the erroneous denial of a suppression motion. 

Before retrial, Smith told a state investigator in March 2025 that he now remembered Jaynes leaving work during his shift on the day of the murder, though he recalled no surrounding details. Benton moved to preclude that testimony, citing OEC 601 and OEC 602 among other rules and arguing that suggestive, coercive police procedures had contaminated Smith’s memory of that fact. After a hearing featuring two defense experts on memory contamination and suggestive police questioning tactics, the trial court ruled, under OEC 601 alone, that Smith remained “competent to testify to relevant matters” generally but lacked “the present ability to perceive, recollect, and communicate” whether Jaynes had left the station, concluding that his memory of that issue “was destroyed.” The State took a direct interlocutory appeal under ORS 138.045, which directs pretrial suppression rulings in murder cases to the Supreme Court. While the appeal was pending, Benton pleaded guilty to first-degree manslaughter. The parties agreed the appeal would not become moot until sentencing.

Analysis

The Court began its analysis by observing that review of an OEC 601 competency ruling proceeds in two steps under State v. Sarich, 291 P.3d 647 (Or. 2012). The appellate court first asks whether the trial court applied the correct legal standard, a question of law, and only then reviews the competency determination for an abuse of discretion. The dispute in the present case ended at step one. The parties disagreed about whether a court assessing competency may weigh a person’s ability to recall a specific fact, which required the Court to interpret OEC 601 by examining text, context, and legislative history under State v. Gaines, 206 P.3d 1042 (Or. 2009).

The text provides that “any person who, having organs of sense can perceive, and perceiving can make known the perception to others, may be a witness.” Although recall is not expressly mentioned, the Court explained that the ability to recollect is implicit because a person must remember perceptions to make them known. OEC 601 prescribes what a “person” needs “to be a witness,” language the Court interpreted as addressing whether someone may testify at all and as focusing on general capacities. In contrast, OEC 602 addresses whether a “witness” may testify “to a matter,” and it limits the trial court’s role to deciding whether the evidence is sufficient to support a finding that the witness has personal knowledge of that matter. If that threshold is met, the personal-knowledge question is one of conditional relevance under OEC 104(2) and is for the jury. State v. Hickman, 330 P.3d 551 (Or. 2014). The Court concluded that the two rules serve distinct functions, and a memory deficit confined to a particular matter is addressed, if at all, through OEC 602 or other rules governing admissibility, not through OEC 601’s general competency inquiry.

The Court based its conclusion on a review of the relevant precedent. Equitable Life Assurance v. McKay, 760 P.2d 871 (Or. 1988), described Oregon’s competency standard as liberal, leaving credibility disputes to the jury. In State v. Milbradt, 756 P.2d 620 (Or. 1988), the Supreme Court upheld the competency of two developmentally disabled witnesses despite their great difficulty recalling when the alleged assaults occurred. Sarich affirmed an incompetency ruling only because the proposed witness’s severely limited capacity to communicate would have foreclosed answers to most questions a trial would demand. Additionally, the Court stated that the 1981 Conference Committee Commentary (“CCC”) similarly supports its conclusion. The CCC traces OEC 601 to common-law disqualifications that excluded a person from testifying entirely based on personal characteristics, and every case it cites involved a witness’s general capacity, according to the Court. Thus, the Court held that because the trial court found Smith generally competent yet barred him from testifying to one specific fact, it applied the wrong legal standard.

Conclusion

Accordingly, the Court reversed the circuit court’s order precluding Smith’s testimony and remanded for further proceedings consistent with its opinion. See: State v. Benton, 2026 Ore. LEXIS 447 (2026).  

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