CHAP 6 COMPETENCY OF WITNESSES P JANICKE 2008

CHAP. 6 COMPETENCY OF WITNESSES P. JANICKE 2008 Chap. 6: Witness Competency

MODERN VIEW • NEARLY EVERYONE IS COMPETENT • NEED SUFFICIENT ABILITY TO BE HELPFUL: – TO OBSERVE – TO REMEMBER – TO RELATE 2008 Chap. 6: Witness Competency 2

COUNTERWEIGHTS AGAIN • NOMINALLY COMPETENT TESTIMONY CAN BE KEPT OUT IF UNFAIRLY PREJUDICIAL, OR CONFUSING TO THE JURY, per RULE 403 • THIS IS OFTEN DONE RATHER THAN HOLDING THAT WIT. IS PER SE INCOMPETENT 2008 Chap. 6: Witness Competency 3

OATH REQUIREMENT • HAS CHANGED OVER THE CENTURIES • “GOD” NO LONGER NEED BE MENTIONED • “SWEARING” NO LONGER NEED BE MENTIONED • SOME EXPRESSION OF DUTY AND COMMITMENT TO TELL THE TRUTH IS REQUIRED 2008 Chap. 6: Witness Competency 4

SUBMISSION TO CROSSEXAM • IS REQUIRED • WITNESS WHO REFUSES IN ADVANCE – WILL BE RULED INCOMPETENT IF THE ADVERSE PARTY SO MOVES – WILL BE HELD IN CONTEMPT IF THE SUMMONING PARTY SO MOVES • WITNESS WHO REFUSES AFTER DIRECT – WILL BE IN CONTEMPT – WILL HAVE HIS DIRECT STRICKEN 2008 Chap. 6: Witness Competency 5

HYPNOTIZED WITNESSES • A CURRENTLY HYPNOTIZED WITNESS IS NOT COMPETENT – WHY ? ? • COURTS ARE WARY EVEN OF HYPNOTIC REFRESHMENT OF MEMORY • HYPNOTICALLY REFRESHED WITNESS FOR D. CAN’T BE SUMMARILY KEPT OUT 2008 Chap. 6: Witness Competency 6

“DEAD MAN’S” STATUTES • COMMON LAW: ALL WITNESSES WERE INCOMPETENT TO TESTIFY TO A CONVERSATION WITH A NOWDECEASED PERSON, EVEN IF THE HEARSAY OBJECTION IS SOMEHOW OVERCOME • WAS THOUGHT UNFAIR, OR TEMPTING TO PERJURY 2008 Chap. 6: Witness Competency 7

• MOST STATES HAVE SOME VESTIGE OF THE RULE LEFT • TEXAS: – IF AN ESTATE IS A PARTY, NO ONE CAN TESTIFY TO A CONVERSATION WITH DECEASED – UNLESS “CORROBORATED” OR ELICITED BY OTHER SIDE [R. 601(b)] – SAME RULE FOR GUARDIAN/WARD 2008 Chap. 6: Witness Competency 8

• THE HEARSAY RULE STILL NEEDS TO BE DEALT WITH, OR THE CONVERSATION WILL BE KEPT OUT ON THAT GROUND • WE HAVE A FEW HEARSAY EXCEPTIONS THAT MIGHT APPLY HERE – – EXCITED UTTERANCES – STATEMENTS ABOUT WILLS • MORE LATER 2008 Chap. 6: Witness Competency 9

LAWYER AS WITNESS • NO INCOMPETENCY RULE, BUT: • AN ETHICS RULE (NOT EVIDENCE RULE) PROHIBITS AN ADVOCATING LAWYER FROM TESTIFYING GENERALLY – IS THOUGHT TO GIVE HER TOO MUCH ADVANTAGE – SHE CAN TESTIFY ON UNCONTESTED POINTS – TO BE A GENERAL WITNESS, MUST WITHDRAW AS SPEAKING ADVOCATE; NOT DISQUALIFIED FROM THE CASE THOUGH – EXEMPTION FOR HARDSHIP TO CLIENT 2008 Chap. 6: Witness Competency 10

JURORS AS WITNESSES: RULE 606 • RULE COVERS LIVE TESTIMONY • RULE COVERS AFFIDAVIT TESTIMONY • NEITHER IS RESTRICTED PREVERDICT • USUALLY HANDLED IN CAMERA 2008 Chap. 6: Witness Competency 11

JURORS AS WITNESSES: POST-VERDICT • HEAVY RESTRICTIONS IN FEDERAL RULE 606 • ONLY WHERE TESTIMONY IS TO: – OUTSIDE INFLUENCE (THREATS, BRIBES) – EXTRANEOUS PREJUDICIAL INFO (NEWSPAPER ACCOUNTS) 2008 Chap. 6: Witness Competency 12

JURORS AS WITNESSES: TEXAS RULE 606 • WORDING MORE CONCISE, BUT SAME MEANING • TESTIMONY CAN BE ONLY TO “OUTSIDE INFLUENCES” – PROBABLY SUBSUMES THE REDUNDANT “EXTRANEOUS PREJUDICIAL INFO” OPTION IN THE FEDERAL RULE 2008 Chap. 6: Witness Competency 13

AID FOR RECALLING THE RULE • PICTURE A CIRCLE AROUND THE JURORS DURING AND AFTER TRIAL • EVIDENCE OF THINGS COMING FROM OUTSIDE INTO THE CIRCLE IS O. K. • EVIDENCE OF WHAT TRANSPIRED INSIDE THE CIRCLE IS NOT ALLOWED AFTER VERDICT 2008 Chap. 6: Witness Competency 14

EXAMPLE 1: JUROR SLEPT THROUGH TRIAL; ANOTHER WAS DRUNK THROUGHOUT TRIAL • POST-VERDICT TESTIMONY BY A 3 RD JUROR NOT ALLOWED ON EITHER • FED. AND TEXAS RULES THE SAME 2008 Chap. 6: Witness Competency 15

EXAMPLE 2: JUROR X TOLD OTHERS ABOUT HIS SPECIAL EXPERIENCE IN CRIME DETECTION; SEVERAL THEN CHANGED THEIR VOTES • A JUROR CANNOT TESTIFY POST-VERDICT TO THIS • AN INTERNAL MISCONDUCT MATTER; NOT “EXTRANEOUS” OR “OUTSIDE”) 2008 Chap. 6: Witness Competency 16

EXAMPLE 3: • JUROR WENT TO SCENE AT NIGHT; TOLD OTHER JURORS WHAT HE SAW • IF THIS COMES UP POSTVERDICT: – A CLOSE QUESTION – 1 ST HALF IS ADMISSIBLE: “EXTRANEOUS” MATTER GETTING INTO THE CIRCLE – 2 ND HALF IS PROBABLY INADMISSIBLE INTRUSION INTO THE CIRCLE 2008 Chap. 6: Witness Competency 17

“PERSONAL KNOWLEDGE” REQUIREMENT OF RULE 602 • WHAT DOES IT MEAN? – OBSERVED BY THE SENSES – NOT “PROCESSED” TOO MUCH • WHAT DOES IT EXCLUDE? – RECITATIONS LABELED “OPINION” – TEST. TO STATE OF MIND OR EMOTION OF ANOTHER PERSON 2008 Chap. 6: Witness Competency 18

2008 Chap. 6: Witness Competency 19