Article 6: Competency (601-606)

Question 1

The prosecution in a sexual assault of a child case wants to have the 2 year-old victim testify at trial. Defense objects on competency grounds. If the judge were to consider allowing the testimony of a two-year-old, what procedural steps should the judge take in considering the competency issue? what is the likely result?

Answer 1

• see in re MLS
• this is a 104(a) issue that the judge has to decide by a preponderance of the evidence
• judge will ask: “is this person qualified to give testimony?”
• procedure:
  1. judge sits down with the 2 year old before hand during an in camera hearing - the judge, the bailiff and the child (sometimes lawyers are presents) and they just talk
  2. judge will ask the child: do you understand what telling the truth is and do you understand how important it is? (the actual oath will still happen in the courtroom)
• age is not a ground for incompetency by status

Question 2

Assuming the 2 year old witness is called, if the child has some difficulty in understanding the oath given to her by the bailiff, may the mother testify that the child understands the importance of telling the truth and that they have talked about the importance of being honest prior to coming to court?

Answer 2

• see State v. Pdersen
• no, the mother may not testify - it has to come from the witness
• the child has to give the oath or affirmation
• pg. 460, note 11

Question 3

Regarding the 2 year old child, can the prosecution avoid the competency issue by instead offering as a witness the social worker who interview the child and who is capable of relating the child’s traumatized account of the incident? (sex abuse case involving child)

Answer 3

-are no longer allowed to have social workers come to testify b/c it would be hearsay

Question 4

What if the victim instead is a mentally retarded adult whose garbled speech is only understandable to her mother? Under what circumstances, if any, would the victim’s testimony be admissible?

Answer 4

• see US v. Bell
• rule 604
• general rule: the court makes a determination as to whether the expert W is (1) qualified to give a full and fair examination and (2) they promise to do so
• some courts will say no, it’s too far
• if reversed, reversed for abuse of discretion
• the judge will be the one making this decision

Question 5

What if the witness believes that oaths of any kind are an abomination to God and therefore will not take any oath in connection with giving testimony? Could the witness still be allowed to testify? How?

Answer 5

• yes the W can testify
• regardless of belief, swearing to God still functions as an affirmation
• religion is not usable for impeachment purposes unless for bias (under 610)
• under english CL, atheists used to not be able to testify
• religion is not really an issue any more in terms of competency

Question 6

What if the defense calls a witness who is found snuffing cocaine during the examination? What should opposing counsel do? how should the judge rule?

Answer 6

• see US v. Meerbeke
• is a competency issue under 601
• competency = are you competency as a person and are you competent while you’re testifying and competent when you made the observation
• is a 104(a) issue for the court
• court may determine if they’re snuffing cocaine that they don’t know the psychological effect and whether it affects their competency
• subject to abuse of discretion
• judges don’t like these people testifying - they have the capacity to hold in contempt, confine, and then bring them back when they are sober
• comes up a lot when people show up to court drunk

Question 7

What if the W has been previously adjudged incompetent to stand trial because of reason of insanity? Would he be allowed to testify?

Answer 7

• see US v. Peyro
• even if found to be incompetent to stand trial in one case, doesn’t’ mean they can’t testify (i.e. not incompetent by status b/c the only people that are incompetent by status are the judge and the jury)
• he would be allowed to testify

Question 8

What if the trial Judge turns his back on defense witnesses as they are testifying, laughs at their testimony, and winks at the jury as they testify; in comparison sits on the end of his chair with rapt attention as the prosecution witnesses testify, occasionally wiping a tear from his eyes as the victim recounts the trauma of the event? what objection would be appropriate, if any? What is the likely ruling on appeal?

Answer 8

• see State v. Rodrigues
• rule 605
• implicates a judge on the easy case (judge gives testimony) and harder (judge simplicity gives testimony through actions/body language)
• hard part: most of this stuff is not on the record
• you want to ask for recess, assume good faith, bring it to the attention of the judge (judge might be in a difficult spot), have court reporter record the body language if the judge doesn’t shape up
• risk problem, is a patterned behavior
• if the body language could suggest an answer to the jury: then objection –> sidebar, 605, preserve the issue for appeal

Question 9

Assuming the accused is convicted, would the jurors, if questioned about how they arrive at their verdict, be allowed to testify later that they had been following the case at night by watching the TV and reading the newspaper?

Answer 9

• See state v. Bjorkland
• rule 606: some judges allow jurors to ask questions; judges can ask questions under 614
• jurors don’t have to talk to lawyers
• need to get permission from the judge to get the jurors to talk to you
• yes, jurors can give testimony about their verdict
• they will do it to the judge
• can do this b/c they admitted they used outside sources
• jurors can only testify that they looked at sources outside the evidence (606B)
• judge has to decide
• all they can say is something like “I looked at a newspaper” and they cannot say anything about the basis for their decision
• testimony after the trial about the fact they looked at external sources (very limited exception to the rule that a juror can’t give testimony)
• jurors are not qualified to give testimony about their thought process (court looks at only objective facts, cannot consider substantive law)
• judge can only ask: what did you look at?
• jurors can only give testimony about objective facts

Question 10

T/F: If a party wishes to call to the stand one of the jurors sitting on that case, the jury may testify, but he or shell will be subject to the same degree of cross-examination to which any other witness could be subjected.

Answer 10

• false

- judge and jury are incompetent by status to give testimony

Question 11

T/F: A lay witness may not testify about facts unless it has first been shown that the witness has personal knowledge

Answer 11

• State v. Jacobs
• true
• every W that gives testimony has to have first hand knowledge under 602
• Jacobs case: asked dying woman to confirm it was her old bf by going through a checklist and she nodded yes; court reversed b/c no sufficient foundation for sufficient knowledge, said it was an issue for the court
• is an issue for the jury (that’s why Magnum criticize Jacobs)
• first hand knowledge is a condition of relevancy issue for the jury -104(b)
• so if you aren’t sure b/c it was dark, no moon, etc, how would you know what was going on –> send it to the jury
• on exam: if issues comes up on first hand knowledge, the level of proof is a reasonable juror could find that W did see what she is testifying about (conditional relevancy)

Question 12

Suit in federal court for violation of the federal civil rights of a patients at a home for mentally retarded children. The plaintiffs call a dozen inmates from the home to testify that they were required to perform sex acts with psychologist employed as consolers at the home under the guise of “therapy.” The defense objects and ask to void dire the witnesses on issues related to competency. On voice dire, the defense precedes evidence that the complaining witnesses each has the mental development of persons aged 3-6 years old. Based upon this foundation, the defense objects to any of the victims testifying. The court should rule the testimony:

A. Admissible under rule 601
B. Inadmissible as they are not competent to be witnesses
C. Inadmissible if the children would not be competent witnesses under the law of the state where the federal court sits.
D. Inadmissible b/c they would be susceptible to the influence of others and they would not be able to be effectively cross examined on how they had been influenced.

Answer 12

• A
• voire dire = tell the truth
• rule 601
• the people are not incompetent by status
• mental capacity, age, etc are not grounds by status
• 104(a) - court decides beyond preponderance of the evidence that they are sufficient to stand trial

Question 13

Motion for new trial. The losing party talked with the jurors and believes that they reached a verdict on impermissible grounds. Of the challenged grounds, the only basis upon which the jury may testify is that:

A. some of the jurors did not understand the instructions
B. the deadlocked jurors reach their verdict by flipping a coin
C. the bailiff told the jurors that the defendant was a member of the local mafia
D. the foreman threatened to physical attack the dissenting jurors if they did not come around to the majority view

Answer 13

• C
• the jury can’t testify that they did not understand the jury instructions
• jury can’t testify about flipping coin b/c that’s internal as to how they made their decision
• can’t give testimony about threat - that is also internal to the process
• C is correct b/c this is external and they can testify about it
• rule: any time you see anything external to the process, not a part of the thought process, the W can give testimony and the judge can look at it objectively

Question 14

Prosecution of D for murder. The jury rendered a verdict of guilty. Following the trial, D receives information that during deliberations, Juror X told other jurors that she knew that the defendant was guilty b/c she received a spiritual impression that if the defense attorney did not look her straight in the eyes during closing (which he did not do), the the D was guilty. D wishes to call Juror Y to testify to Juror X’s comments in order to build a case for new trial on grounds of improper basis for the jury verdict. The court should:

A. Grant D’s request
B. Reconvene the jury and ask all members whether this statement on the part of Juror X affected their decision.
C. Refuse D’s request.
D. Cite D’s lawyer for contempt for speaking with jurors

Answer 14

• State v. DeMille
• C
• communication with God is not really external
• this is internal b/c it deals with the thought process of the jurors and their process of trying to get thought process from the Lord

Question 15

In a death-penalty case, the jury renders a verdict against the defendant. Following the trial, D moves for a mistrial and as support for the motion seeks to call Juror Y to testify that Juror X (a) brought a copy of the Bible into deliberations, (b) read from the old testament provisions dealing with an eye for an eye and a tooth for a tooth, and (c) discussed the provisions with the other jurors during deliberations. The judge should:

A. Grant P’s request.
B. Deny Po’s request b/c Juror Y is incompetent to testify as to this matter.
C. Deny P’s request b/c Juror Y’s testimony would be inadmissible hearsay.
D. Deny P’s request b/c even if Juror X did read the reference to retributive justice to the other jurors during jury deliberations, such moral arguments would constitute harmless error b/c moral lessons from the bible are very common during closing arguments.

Answer 15

• A
• the Bible is external
• anything attributable to the person is internal to the person and their thought process
• the Bible is a separate document that is brought in
• external = a source other than the reasoning process of the jurors
• jurors can testify that they used a Bible
• admissible? yes b/c the Bible is external
• if the guy quotes the Bible from memory, then it would be internal

Question 16

Prosecution of D for burglary of a home at night. The prosecution calls W, who testifies that he saw the break-in, and that the perpetrator was D. On cross-examination, D asks W if it isn’t true that the break-in occurred on a dark street. W answers that this is true. D next asks W if it isn’t true that W was in fact standing about 20 feet from the house at the time of the break in. W confirms this. D moves to strike all of W’s testimony about the break-in. The court should:

A. Grant the motion b/c the factual circumstances are such that W could not make a positive identification of the burglar as a matter of law.
B. Deny the motion if it believes that the proseuction has introduced sufficient evidence under Rule104(a) to establish at a preponderance level that W had personal knowledge
C. Deny the motion if it believes that the prosecution has introduced sufficient evidence from which the jury could find that W had personal knowledge under Rule 104(b).
D. Deny the motion and exclude the testimony relevant to the difficultly of W testifying confidently about seeing the defendant.

Answer 16

• C

- personal knowledge is a 104(b) issue

Question 17

In a drug prosecution, the D complains on appeal that the court erred in holding that a government witness, an avowed atheist, satisfied the oath or affirmation requirement of Rule 603 by swearing an oath to God. The Defendant argues on appeal that an oath to God by an atheist is meaningless and that the government failed to substitute an affirmation by the atheist to tell the truth. On appeal of the competency issue, the court should:

A. Affirm b/c having an atheist swear an oath to God satisfies the oath of affirmation requirement of Rule 603.
B. Reverse b/c an ineffective oath does not satisfy the requirement of Rule 603.
C. Affirm b/c the oath or affirmation of a witness is not an issue for the court under Rule 104(a), but instead an issue of credibility for the jury under Rule 104(b).
D. Reverse b/c an oath or affirmation is a Rule 104(a) issue for the court, rather than a Rule 104(b) conditional relevancy issue for the jury.

Answer 17

• US v. Saget
• A
• you can’t even ask if someone is an atheist and it’s not relevant so long as they take the oath
• if the oath is a problem for someone b/c of their beliefs, let the court know at sidebar and let the W take an affirmation
• don’t embarrass the W

Question 18

In a jury trial for forcible sexual abuse of a child, the trial judge asks the defendant 48 questions on cross examination about the weaknesses of the defenses explanation, suggesting by tone and substance that the accused’s story lacked credibility. Defense counsel did not object during the trial. If on appeal the defendant seeks a reversal on the basis of the judge’s adversarial perspective, the court should:

A. Reverse b/c the court violated the impartiality required by both rules 605 and 614
B. Affirm b/c the defendant did not make timely and specific objection as required by Rule 103
C. Affirm b/c Rule 614 permits a judge to ask questions in any case, of any witness, civil or criminal
D. Affirm b/c the credibility of any W is always at issue

Answer 18

• State v. Beck
• A
• judges can ask questions but cannot become adversarial (advocate for another side)

Question 19

In a dental malpractice case, the unsuccessful P seeks to offer affidavits of two jurors who will testify that the jury Forman, contrary to the actual jury instructions given by the court which properly instructed the jury on the preponderance standard, improperly informed that jury that plaintiff’s burden of proof in the case was the criminal standard of beyond a reasonable doubt. If the D objects to the admissibility of these affidavits in a motion for mistrial on the basis of Rule 606 the court should:

A. Sustain the objection on the basis of Rule 606 b/c misunderstanding of jury instructions are not extrinsic evidence.
B. Overrules the objection b/c a juror’s incorrect understanding of the jury instructions is admissible if the information is communicated to the other jurors.
C. Overrules the objection on the basis of Rule 403 because the false instruction would have been unfairly prejudicial.
D. Overrule the objection on the basis of both B and C.

Answer 19

• A

- instructions are internal b/c they pertain to the process itself

Question 20

In an illegal immigration case where the location of a stop sign is a contested fact in the case, the judge interrupts the defense’s cross-examination of the investigating officer on this issue and states: “let me interrupt you for just a second. I’m familiar with that area. The stop sign you are talking about is further down the highway.” The defense attorney does not object , but on appeal argues that the judges interruption and statement is objectionable under Rule 605, the appellate court should:

A. Establish evidentiary error b/c the court cannot testify under Rule 605.
B. Establish evidentiary error b/c the judge cannot ask questions.
C. Affirm b/c a judge can ask questions under Rule 614.
D. Permit the court to take judicial notice of the location of the stop sign based upon his own person knowledge.

Answer 20

• A
• US v. Berber-Tinco
• can’t do this b/c the judge is testifying
• 605: judge cannot give facts
• “I was watching him, he wasn’t coaching the W” - this is testimony, can’t do this