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CHAP. 6: COMPETENCY OF WITNESSES

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. COUNTERWEIGHTS AGAIN.

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CHAP. 6: COMPETENCY OF WITNESSES

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  1. CHAP. 6:COMPETENCY OF WITNESSES Prof. JANICKE 2019

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

  3. 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 Chap. 6: Witness Competency

  4. 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 Chap. 6: Witness Competency

  5. 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 Chap. 6: Witness Competency

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

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

  8. 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 Chap. 6: Witness Competency

  9. “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

  10. 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)] Chap. 6: Witness Competency

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

  12. 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

  13. 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 >> Chap. 6: Witness Competency

  14. 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 Chap. 6: Witness Competency

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

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

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

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

  19. 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 Chap. 6: Witness Competency

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

  21. 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 Chap. 6: Witness Competency

  22. 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. • BUT EVIDENCE OF WHAT TRANSPIRED WITHIN THE JURY CIRCLE IS NOT ALLOWED, NO MATTER HOW BAD! Chap. 6: Witness Competency

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

  24. 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 Chap. 6: Witness Competency

  25. 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 Chap. 6: Witness Competency

  26. 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” Chap. 6: Witness Competency

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

  28. “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?”) Chap. 6: Witness Competency

  29. 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. Chap. 6: Witness Competency

  30. 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 Chap. 6: Witness Competency

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