Chap 6 competency of witnesses
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CHAP. 6 COMPETENCY OF WITNESSES. P. JANICKE 2011. MODERN VIEW. NEARLY EVERYONE IS COMPETENT NEED TO BE HELPFUL BY HAVING SOME LEVEL OF ABILITY : TO OBSERVE TO REMEMBER TO RELATE. COUNTERWEIGHTS AGAIN.

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CHAP. 6 COMPETENCY OF WITNESSES

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Chap 6 competency of witnesses

CHAP. 6COMPETENCY OF WITNESSES

P. JANICKE

2011


Modern view

MODERN VIEW

  • NEARLY EVERYONE IS COMPETENT

  • NEED TO BE HELPFUL BY HAVING SOME LEVEL OF ABILITY :

    • TO OBSERVE

    • TO REMEMBER

    • TO RELATE

Chap. 6: Witness Competency


Counterweights again

COUNTERWEIGHTS AGAIN

  • MINIMALLY 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

Chap. 6: Witness Competency


Oath requirement

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

Chap. 6: Witness Competency


Submission to cross exam

SUBMISSION TO CROSS-EXAM

  • IS REQUIRED

  • WITNESS WHO AT BEGINNING OF TESTIMONY REFUSES 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

  • WITNESS WHO REFUSES AFTER DIRECT

    • WILL BE HELD IN CONTEMPT, and

    • WILL HAVE HIS DIRECT STRICKEN

Chap. 6: Witness Competency


Hypnotized witnesses

HYPNOTIZED WITNESSES

  • A CURRENTLY HYPNOTIZED WITNESS IS NOT COMPETENT

    • [WHY SHOULD THAT BE??]

  • COURTS ARE WARY EVEN OF PAST HYPNOTIC REFRESHMENT OF MEMORY, i.e., WHERE WITNESS IS NOT NOW HYPNOTIZED

    • BUT HYPNOTICALLY REFRESHED WITNESS FOR D. CAN’T BE SUMMARILY KEPT OUT

Chap. 6: Witness Competency


Dead man s statutes

“DEAD MAN’S” STATUTES

  • COMMON LAW: ALL WITNESSES WERE INCOMPETENT TO TESTIFY TO A CONVERSATION WITH A NOW-DECEASED PERSON, EVEN IF THE HEARSAY OBJECTION IS SOMEHOW OVERCOME

  • WAS THOUGHT UNFAIR, OR TOO TEMPTING TOWARD PERJURY

Chap. 6: Witness Competency


Chap 6 competency of witnesses

  • MOST STATES HAVE SOME VESTIGE OF THE RULE LEFT

  • TEXAS:

    • IF AN ESTATE IS A PARTY, NO PARTY CAN TESTIFY TO A CONVERSATION WITH DECEASED

    • UNLESS “CORROBORATED” OR ELICITED BY AN OPPONENT [R. 601(b)]

    • SAME RULE FOR GUARDIAN OR WARD AS A PARTY

Chap. 6: Witness Competency


Chap 6 competency of witnesses

  • 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

Chap. 6: Witness Competency


Lawyer as witness

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 THE SPEAKING ADVOCATE; NOT DISQUALIFIED FROM THE CASE

    • EXEMPTION FOR HARDSHIP TO CLIENT

Chap. 6: Witness Competency


Jurors as witnesses rule 606

JURORS AS WITNESSES:RULE 606

  • RULE COVERS LIVE TESTIMONY

  • RULE ALSO COVERS AFFIDAVIT TESTIMONY

  • NEITHER IS RESTRICTED PRE-VERDICT

  • USUALLY HANDLED IN CAMERA; USUALLY IS ABOUT MISCONDUCT

Chap. 6: Witness Competency


Both forms are heavily restricted post verdict

BOTH FORMS ARE HEAVILY RESTRICTED POST-VERDICT

  • JUROR TESTIMONY (LIVE OR AFFIDAVIT) ABOUT MISCONDUCT -- GENERALLY NOT ALLOWED

  • ALLOWED ONLY WHERE TESTIMONY IS ABOUT:

    • OUTSIDE INFLUENCE (BY PERSONS; e.g., THREATS, BRIBES)

    • EXTRANEOUS PREJUDICIAL INFO (e.g., NEWSPAPER ACCOUNTS)

    • MISTAKE IN ENTERING VERDICT ONTO FORM

Chap. 6: Witness Competency


Chap 6 competency of witnesses

  • IN THOSE NARROW INSTANCES, UNCLEAR WHETHER THE POST-VERDICT JUROR TESTIMONY CAN EXTEND TO IMPACT ON ANY JURORS’ MINDS

  • THE JUDGE HAS TO SPECULATE ON POSSIBLE EFFECTS; DECIDES WHAT TO DO

Chap. 6: Witness Competency


Note about error in entering verdict on form

NOTE ABOUT ERROR IN ENTERING VERDICT ON FORM

  • THIS EXCEPTION FOR JUROR POST-VERDICT TESTIMONY DOES NOT PERMIT TESTIMONY ABOUT AN ERRONEOUS METHOD OF ARRIVING AT THE VERDICT

  • ONLY DEALS WITH PUTTING THE VERDICT ONTO PAPER

Chap. 6: Witness Competency


Jurors as witnesses texas rule 606

JURORS AS WITNESSES:TEXAS RULE 606

  • TESTIMONY CAN BE ONLY TO “OUTSIDE INFLUENCES”

    • PROBABLY SUBSUMES THE “EXTRANEOUS PREJUDICIAL INFO” OPTION IN THE FEDERAL RULE

  • BUT: NO EXCEPTION FOR ERRORS IN VERDICT FORMS

Chap. 6: Witness Competency


Chap 6 competency of witnesses

  • OTHER POSSIBLE CORRECTION AVENUE UNDER TEXAS RULES:

    • IF # ON FORM IS TOO HIGH, MOVE TO SET ASIDE AND ORDER NEW TRIAL: EV. WON’T SUPPORT THE VERDICT AS IF APPEARS ON THE FORM; REMITTITUR OPTION

    • IF TOO LOW, NO OPTION

  • MOST CASES: SEEM UNFIXABLE

Chap. 6: Witness Competency


Aid for recalling the rule

AID FOR RECALLING THE RULE

  • PICTURE A CIRCLE AROUND THE JURORS DURING AND AFTER TRIAL

    • ANY IMPROPRIETY TESTIMONY GIVEN PRE-VERDICT IS OK, IN CAMERA

    • AFTER VERDICT, EVIDENCE OF THINGS COMING FROM OUTSIDE INTO THE CIRCLE IS O.K.

    • AFTER VERDICT, EVIDENCE OF WHAT TRANSPIRED INSIDE THE CIRCLE IS NOT ALLOWED

Chap. 6: Witness Competency


Example 1

EXAMPLE 1:

JUROR SLEPT THROUGH TRIAL; ANOTHER WAS DRUNK THROUGHOUT TRIAL

  • POST-VERDICT TESTIMONY BY A 3RD JUROR NOT ALLOWED ON EITHER

  • FED. AND TEXAS RULES THE SAME

Chap. 6: Witness Competency


Example 2

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”

Chap. 6: Witness Competency


Example 3

EXAMPLE 3:

  • JUROR WENT TO SCENE AT NIGHT; TOLD OTHER JURORS WHAT HE SAW

  • IF THIS COMES UP POST- VERDICT:

    • A CLOSE QUESTION

    • 1ST HALF IS ADMISSIBLE: “EXTRANEOUS” MATTER GETTING INTO THE CIRCLE

    • 2ND HALF MAY BE INADMISSIBLE INTRUSION INTO THE CIRCLE

Chap. 6: Witness Competency


Personal knowledge requirement of rule 602

“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

Chap. 6: Witness Competency


What do you know first hand

WHAT DO YOU 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. [UNLESS YOU WERE AT SWEARING IN]

Chap. 6: Witness Competency


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