Chapter 7 Competency and Credibility Competency A witness

Chapter 7 Competency and Credibility

Competency: • A witness is properly able to take the stand give testimony in court. • Competency is the second test for the admissibility of evidence. • Presumption: all witnesses, regardless of age, are presumed competent to testify. • Burden of proof falls to the side opposing the witness (prosecution or defense) to prove incompetency.

Tests for Competency: 1) ability to observe & perceive. 2) ability to recall and narrate. 3) ability to understand the duty to tell the truth. Note: when challenged, determined through voir dire examination (see text for examples).

Witnesses with Possible Competency Problems: 1) Young Children: in CA, a child of any age can testify. However, the younger the child, the more likely the child will be unable to meet the three prong test for competency. 2) Senility: of one’s mental faculties have deteriorated with age or disorder, i. e. , senile dementia or Alzheimer’s disease, a person could be proven incompetent to testify.

CHILD WITNESS • child was an eyewitness as he watched his mother being systematically tortured to death by his father. • for two days, (d) repeatedly beat her with a golf club, baseball bat, a chunk of wood, and stabbed her with scissors.

CHILD WITNESS • 4 year old witnessed his father stab an 18 year old photo booth employee to death during a robbery. • “I saw him stick a knife into her stomach and she yelled very loud!”.

3) Physically Handicapped: a blind or deaf person is limited in the type of testimony that he/she can give. 4) Mental Defect or Disorder: persons who are mentally incapacitated or insane persons are not competent witnesses. Note: a developmentally disabled person can be a competent witness if he/she can meet the 3 prong test.

5) Foreign Speaking Persons: may not be able to narrate in English. The law provides for the appointment of a qualified interpreter. 6) Hypnotized Persons: in CA, persons who have been hypnotized are incompetent to testify as to any information recalled during or after hypnosis. Note: investigators can use facts recalled under hypnosis to investigate.

Credibility: is the weight given to witness testimony by the trier of fact (the believability of the testimony). CA Jury Instructions direct the trier of fact to weigh the credibility of a witness’s testimony according to: Ø The length of time the witness had to observe the alleged criminal act and suspect Ø The stress, if any, to which the witness was subject at the time of the observation (see text for more).

Impeachment: to attack the credibility of a witness. Accomplished either by: Ø Cross or re-cross examination Ø Introduction of rebuttal evidence Common Grounds for Impeachment: 1. Physical / mental state of the witness: affects the ability of a witness to accurately recall, communicate, etc. 2. Bias, Interest, or Other Motive: normally the witness testimony must be corroborated with other evidence.

Ø Financial Interest: a witness may financially benefit from a guilty verdict. Ø Relationship to a Party in the Case: Family member, fellow gang member Ø Prior declarations of hostility by the witness 3. Character Evidence: Ø general reputation (pro or con) for truthfulness, honesty, etc. Ø prior felony conviction involving moral turpitude or willingness to do evil.

4. Manner of Testimony: Ø Prior inconsistent statements or testimony Ø Bias or demeanor of testimony towards the prosecution or defense Ø Admission of untruthfulness Ø Conduct of an investigation

Rehabilitation: to restore or bolster the credibility of a witness and it takes place either: Ø During redirect examination – by bringing in new facts or clarifying answers from previous testimony Ø By introducing corroborating evidence through another witness which reinforces prior testimony