1. CHAP. 6 COMPETENCY OF WITNESSES P. JANICKE 2012

2. Chap. 6: Witness Competency2 MODERN VIEW NEARLY EVERYONE IS COMPETENT NEED TO BE HELPFUL BY HAVING SOME LEVEL OF ABILITY : –TO OBSERVE –TO REMEMBER –TO RELATE

3. 2012Chap. 6: Witness Competency3 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

4. 2012Chap. 6: Witness Competency4 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

5. 2012Chap. 6: Witness Competency5 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

6. PROBLEMS/CASES Lightly Fowler Ricketts 2012Chap. 6: Witness Competency6

7. 2012Chap. 6: Witness Competency7 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

8. PROBLEMS/CASES Rock 2012Chap. 6: Witness Competency8

9. 2012Chap. 6: Witness Competency9 “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

10. 2012Chap. 6: Witness Competency10 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

11. 2012Chap. 6: Witness Competency11 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

12. 2012Chap. 6: Witness Competency12 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

13. 2012Chap. 6: Witness Competency13 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

14. 2012Chap. 6: Witness Competency14 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

15. 2012Chap. 6: Witness Competency15 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

16. 2012Chap. 6: Witness Competency16 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

17. 2012Chap. 6: Witness Competency17 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

18. 2012Chap. 6: Witness Competency18 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

19. 2012Chap. 6: Witness Competency19 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

20. 2012Chap. 6: Witness Competency20 EXAMPLE 1: JUROR SLEPT THROUGH TRIAL; ANOTHER WAS DRUNK THROUGHOUT TRIAL POST-VERDICT TESTIMONY BY A 3 RD JUROR NOT ALLOWED ON EITHER FED. AND TEXAS RULES THE SAME

21. 2012Chap. 6: Witness Competency21 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”

22. 2012Chap. 6: Witness Competency22 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

23. PROBLEMS/CASES 6A Tanner 6B 6C 6D 6E 2012Chap. 6: Witness Competency23

24. 2012Chap. 6: Witness Competency24 “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

25. 2012Chap. 6: Witness Competency25 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]

26. PROBLEMS/CASES 6F Exercise #6 2012Chap. 6: Witness Competency26