CHAP 6 COMPETENCY OF WITNESSES Prof JANICKE 2019

CHAP. 6: COMPETENCY OF WITNESSES Prof. JANICKE 2019

MODERN VIEW • NEARLY EVERYONE IS COMPETENT • WIT. MUST BE HELPFUL BY HAVING SOME LEVEL OF ABILITY : – TO OBSERVE – TO REMEMBER – TO RELATE 2019 Chap. 6: Witness Competency 2

COUNTERWEIGHTS AGAIN • MINIMALLY COMPETENT WITNESS 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 2019 Chap. 6: Witness Competency 3

OATH REQUIREMENT • HAS CHANGED OVER THE CENTURIES • “GOD” NO LONGER NEED BE MENTIONED • “SWEARING” NO LONGER NEED BE STATED • SOME EXPRESSION OF DUTY AND COMMITMENT TO TELL THE TRUTH ARE REQUIRED 2019 Chap. 6: Witness Competency 4

SUBMISSION TO CROSS-EXAM • WITNESS WHO AT BEGINNING OF TESTIMONY INDICATES A REFUSAL TO BE CROSS-EXAMINED : – WILL BE RULED INCOMPETENT IF THE NON-CALLING PARTY SO MOVES – WILL BE HELD IN CONTEMPT IF THE SUMMONING PARTY SO MOVES 2019 Chap. 6: Witness Competency 5

• WITNESS WHO REFUSES CROSS AFTER GIVING DIRECT TESTIMONY: – WILL BE HELD IN CONTEMPT, and – WILL HAVE HIS DIRECT STRICKEN 2019 Chap. 6: Witness Competency 6

PROBLEMS/CASES • Lightly • Fowler • Ricketts 2019 Chap. 6: Witness Competency 7

HYPNOTIZED WITNESSES • A CURRENTLY HYPNOTIZED WITNESS IS NOT COMPETENT – [WHY SHOULD THAT BE? ? ] • COURTS ARE WARY EVEN OF HYPNOTIC REFRESHMENT OF MEMORY, i. e. , WHERE WITNESS IS NOT NOW HYPNOTIZED – BUT HYPNOTICALLY REFRESHED WITNESS FOR D. CAN’T BE SUMMARILY KEPT OUT 2019 Chap. 6: Witness Competency 8

“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 TOO TEMPTING TOWARD PERJURY 2019 Chap. 6: Witness Competency 9

• MOST STATES HAVE SOME VESTIGE OF THE RULE LEFT • TEXAS (RULE 601): – IF AN ESTATE IS A PARTY, NO PARTY CAN TESTIFY TO A CONVERSATION WITH DECEASED – UNLESS “CORROBORATED” OR ELICITED BY AN OPPONENT OF THAT PARTY [R. 601(b)] 2019 Chap. 6: Witness Competency 10

• SAME RULE FOR GUARDIAN AS A PARTY – NO TESTIMONY BY OPPOSING PARTIES ABOUT CONVERSATIONS WITH THE WARD – (SAME EXCEPTIONS) 2019 Chap. 6: Witness Competency 11

• 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) 2019 Chap. 6: Witness Competency 12

LAWYER AS WITNESS • NO INCOMPETENCY RULE, BUT: • AN ETHICS RULE PROHIBITS AN ADVOCATING LAWYER FROM TESTIFYING ON ANYTHING OTHER THAN FORMALITIES • COURTS ENFORCE THIS ETHICS RULE, WITH EXCEPTION FOR CLIENT HARDSHIP >> 2019 Chap. 6: Witness Competency 13

• RATIONALE: – DUAL ROLES ARE THOUGHT TO GIVE LWYR. TOO MUCH ADVANTAGE [? ? ] – TO BE A WITNESS ON CONTESTED POINTS, SHE MUST WITHDRAW AS THE SPEAKING ADVOCATE; NOT DISQUALIFIED FROM STILL WORKING ON THE CASE • A PARTNER CAN TAKE OVER • PRECLUDED LWYR. CAN WORK ON THE CASE See Tex. Disc. R. Prof. Conduct 3. 08 2019 Chap. 6: Witness Competency 14

JURORS AS WITNESSES • CAN NEVER TESTIFY IN PRESENCE OF THE OTHER JURORS 2019 Chap. 6: Witness Competency 15

JUROR TESTIFYING TO THE JUDGE AND COUNSEL: • ABOUT IMPROPER JUROR CONDUCT OR IMPROPER INFLUENCES • HIGHLY LIMITED 2019 Chap. 6: Witness Competency 16

JUROR TESTIFYING: RULE 606 • CAN BE BY LIVE TESTIMONY • CAN BE BY AFFIDAVIT TESTIMONY • NEITHER IS RESTRICTED PREVERDICT • USUALLY HANDLED LIVE IN CAMERA; USUALLY IS ABOUT MISCONDUCT 2019 Chap. 6: Witness Competency 17

BOTH ARE HEAVILY RESTRICTED POST-VERDICT • IS ALLOWED ONLY WHERE TESTIMONY IS ABOUT: 1. OUTSIDE INFLUENCE (BY PERSONS, e. g. , THREATS or BRIBES) or 2. EXTRANEOUS PREJUDICIAL INFO (BY THINGS, e. g. , NEWSPAPER ACCOUNTS) or 3. MISTAKE IN ENTERING VERDICT ONTO THE FORM 2019 Chap. 6: Witness Competency 18

• EVEN IN THOSE 3 NARROW INSTANCES, THE POST-VERDICT JUROR TESTIMONY CANNOT RECITE IMPACT ON JURORS’ MINDS • THE JUDGE HAS TO SPECULATE ON POSSIBLE IMPACTS; and then DECIDE WHAT TO DO – DECLARE MISTRIAL – DISMISS THE JUROR – OTHER 2019 Chap. 6: Witness Competency 19

NOTE ABOUT ERROR IN “ENTERING VERDICT” ON FORM • THIS EXCEPTION FOR JUROR POSTVERDICT TESTIMONY DOES NOT PERMIT TESTIMONY ABOUT AN ERRONEOUS METHOD OF ARRIVING AT THE VERDICT • ONLY DEALS WITH PUTTING THE VERDICT ONTO PAPER 2019 Chap. 6: Witness Competency 20

JURORS TESTIFYING TO THE JUDGE: TEXAS RULE 606 • POST-VERDICT TESTIMONY OK FOR “OUTSIDE INFLUENCES” – PROBABLY SUBSUMES THE “EXTRANEOUS PREJUDICIAL INFO” OPTION OF THE FEDERAL RULE • BUT: NO EXCEPTION FOR ERRORS IN WRITING ON VERDICT FORMS 2019 Chap. 6: Witness Competency 21

AID FOR RECALLING THE RULE • PICTURE A CIRCLE AROUND THE JURORS IN THE JURY ROOM – ANY IMPROPRIETY TESTIMONY, TO THE JUDGE, GIVEN PRE-VERDICT IS O. K. – AFTER VERDICT, EVIDENCE ABOUT IMPROPER PEOPLE OR THINGS COMING FROM OUTSIDE INTO THE ROOM IS O. K. 2019 • BUT EVIDENCE OF WHAT TRANSPIRED WITHIN THE JURY CIRCLE IS NOT ALLOWED, Chap. NO 6: Witness MATTER HOW BAD! Competency 22

EXAMPLE 1: A JUROR SLEPT THROUGH TRIAL; ANOTHER WAS SEEN DRUNK THROUGHOUT TRIAL • POST-VERDICT TESTIMONY BY A 3 RD JUROR TO THE JUDGE IS NOT ALLOWED ON EITHER ONE – NOT AN “OUTSIDE INFLUENCES” • FED. AND TEXAS RULES ARE THE SAME ON THIS 2019 Chap. 6: Witness Competency 23

EXAMPLE 2: JUROR X TOLD THE OTHERS ABOUT HIS SPECIAL EXPERIENCE IN CRIME DETECTION; SEVERAL THEN CHANGED THEIR VOTES • A JUROR CANNOT TESTIFY TO EITHER POINT POST-VERDICT • THIS IS AN INTERNAL MISCONDUCT MATTER; NOT “EXTRANEOUS” AND NOT “OUTSIDE” THE CIRCLE 2019 Chap. 6: Witness Competency 24

EXAMPLE 3: • (a) A JUROR WENT TO SCENE AT NIGHT; and (b) TOLD OTHER JURORS WHAT HE SAW • IF THIS COMES UP POST- VERDICT: – A CLOSE QUESTION – FACT (a) MAY BE ADMISSIBLE AS “EXTRANEOUS” MATTER (THE SCENE) – FACT (b) IS INADMISSIBLE; INTRUSION INTO THE CIRCLE’S DISCUSSIONS 2019 Chap. 6: Witness Competency 25

NET RESULT • THE WORST JURY MISCONDUCT IS LEFT HIDDEN! – EVEN DISOBEYING THE JUDGE’S INSTRUCTIONS: STAYS SECRET • SOME CASE LAW IS SLOWLY BUILDING AGAINST THIS RULE – “FAIR TRIAL” 2019 Chap. 6: Witness Competency 26

PROBLEMS/CASES • • • 6 A Tanner 6 B 6 C 6 D 6 E 2019 Chap. 6: Witness Competency 27

“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” – TESTIMONY ON THE STATE OF MIND OR EMOTION OF ANOTHER PERSON (“HOW DID SHE FEEL ABOUT THAT? ” “WHY DID SHE TELL HIM TO GET LOST? ”) 2019 Chap. 6: Witness Competency 28

WHAT DO YOU REALLY KNOW FIRST-HAND? • NOT MUCH! • NOT HOW OLD YOU ARE! – YOU COULD SAY YOU REMEMBER BACK TO YEAR X • NOT WHO ARE THE SENATORS FROM TEXAS, OR WHO IS THE PRESIDENT OF THE U. S. 2019 Chap. 6: Witness Competency 29

• THIS DEFICIENCY IS OFTEN WAIVED BY NON-OBJECTION – FOR CONVENIENCE IN UNIMPORTANT NON-CONTROVERSIAL SITUATIONS • BUT IT IS ENFORCED IF THE ISSUE IS IMPORTANT TO THE CASE – e. g. , AGE, IN STATUTORY RAPE CASE 2019 Chap. 6: Witness Competency 30