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CHAP. 6 COMPETENCY OF WITNESSES

CHAP. 6 COMPETENCY OF WITNESSES. P. JANICKE 2009. MODERN VIEW. NEARLY EVERYONE IS COMPETENT NEED SUFFICIENT ABILITY TO BE HELPFUL: TO OBSERVE TO REMEMBER TO RELATE. COUNTERWEIGHTS AGAIN.

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CHAP. 6 COMPETENCY OF WITNESSES

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  1. CHAP. 6COMPETENCY OF WITNESSES P. JANICKE 2009

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

  3. 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 Chap. 6: Witness Competency

  4. 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

  5. SUBMISSION TO CROSS-EXAM • 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 Chap. 6: Witness Competency

  6. 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 Chap. 6: Witness Competency

  7. “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 TEMPTING TO PERJURY Chap. 6: Witness Competency

  8. 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 OTHER SIDE [R. 601(b)] • SAME RULE FOR GUARDIAN/WARD Chap. 6: Witness Competency

  9. 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

  10. 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 Chap. 6: Witness Competency

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

  12. JURORS AS WITNESSES:POST-VERDICT • HEAVY RESTRICTIONS IN FEDERAL RULE 606 • ONLY WHERE TESTIMONY IS TO: • 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

  13. EVEN WHERE ALLOWED, POST-VERDICT TESTIMONY CAN’T GET INTO IMPACT ON ANY JUROR’S MIND, OR INTO THE JURY’S DISCUSSIONS • THE JUDGE HAS TO SPECULATE Chap. 6: Witness Competency

  14. JURORS AS WITNESSES:TEXAS RULE 606 • NARROWER THAN FED. RULE • TESTIMONY CAN BE ONLY TO “OUTSIDE INFLUENCES” • PROBABLY SUBSUMES THE REDUNDANT “EXTRANEOUS PREJUDICIAL INFO” OPTION IN THE FEDERAL RULE • BUT: NO EXCEPTION FOR ERRORS IN VERDICT FORMS Chap. 6: Witness Competency

  15. OTHER POSSIBLE AVENUES UNDER TEXAS RULES: • IF # ON FORM IS TOO HIGH, MOVE FOR NEW TRIAL: EV. WON’T SUPPORT THE VERDICT AS IF APPEARS ON THE FORM • MOVE FOR JMOL – NO REASONABLE JURY COULD SAY THIS • MOST CASES: SEEM UNFIXABLE Chap. 6: Witness Competency

  16. 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 Chap. 6: Witness Competency

  17. 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

  18. 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

  19. 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 IS PROBABLY INADMISSIBLE INTRUSION INTO THE CIRCLE Chap. 6: Witness Competency

  20. “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

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