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

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

3. Chap. 6: Witness Competency
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
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Chap. 6: Witness Competency

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

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

8. Chap. 6: Witness Competency
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
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9. Chap. 6: Witness Competency
“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
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10. Chap. 6: Witness Competency
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)]
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11. Chap. 6: Witness Competency
SAME RULE FOR GUARDIAN AS A PARTY
NO TESTIMONY BY OPPOSING PARTIES ABOUT CONVERSATIONS WITH THE WARD
(SAME EXCEPTIONS)
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12. Chap. 6: Witness Competency
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)
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13. Chap. 6: Witness Competency
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
>>
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14. Chap. 6: Witness Competency
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
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15. Chap. 6: Witness Competency
JURORS AS WITNESSES
CAN NEVER TESTIFY IN PRESENCE OF THE OTHER JURORS
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Chap. 6: Witness Competency

16. JUROR TESTIFYING TO THE JUDGE AND COUNSEL:
ABOUT IMPROPER JUROR CONDUCT OR IMPROPER INFLUENCES
HIGHLY LIMITED
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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
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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
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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
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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 ERRONEOUS METHOD OF ARRIVING AT THE VERDICT
ONLY DEALS WITH PUTTING THE VERDICT ONTO PAPER
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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
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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!
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23. Chap. 6: Witness Competency
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
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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
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25. Chap. 6: Witness Competency
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
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26. Chap. 6: Witness Competency
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”
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27. Chap. 6: Witness Competency
PROBLEMS/CASES 6A
Tanner 6B 6C 6D 6E
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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?”)
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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.
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30. Chap. 6: Witness Competency
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
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Chap. 6: Witness Competency