Chapter 6 - Competency of Witnesses

Question 1

What is the default presumption of witnesses?

Answer 1

They already are competent enough to testify

Question 2

How can a competent witness be kept out? (Two ways)

Answer 2

1. Unfairly prejudicial

2. Confusing to the jury (R.403)

Question 3

Requirements for a witness to testify (or else they will be considered incompetent) (4 things)

Answer 3

1. TAKE AN OATH
2. CAN REMEMBER
3. CAN TESTIFY
4. CAN RELATE

Question 4

What happens if a witness indicates that they refuse to be cross-examined?

Answer 4

1. IF THE NON-CALLING PARTY MOVES FOR IT, THE WITNESS WILL BE RULED INCOMPETENT
2. IF THE SUMMONING PARTY MOVES FOR IT, THE WITNESS WILL BE HELD IN CONTEMPT

Question 5

What happens if a witness refuses to answer to cross after giving direct testimony/as cross gets uncomfortable?

Answer 5

1. Witness will be held in contempt
2. Witness will have his direct stricken
3. next step is a mistrial

Question 6

Can a currently hypnotized witness testify?

Answer 6

NO. Not considered competent

Question 7

Can a hypnotically refreshed witness testify?

Answer 7

Can’t be constitutionally kept out but witness is not considered default incompetent like a currently hypnotized witness

Question 8

“Dead Man’s” Statutes - Common Law

Answer 8

ALL WITNESSES WERE INCOMPETENT TO TESTIFY TO A CONVERSATION WITH A NOW-DECEASED PERSON, EVEN IF THE HEARSAY OBJECTION IS SOMEHOW OVERCOME

Question 9

Texas Dead Man’s Statutes (R. 601)

Answer 9

Dead Man’s testimony is ONLY excluded in actions where the estate of that dead person is a party to the case. (Ex: “In re Estate of Smith” and witness is like “SMITH said id get Blackacre :c” This is excluded)

HOWEVER, this exception can be over come if it is corroborated, or elicited by an opponent of that party (“Open the door” this is where the opponent party drags it out the party to the case).

SAME RULE FOR GUARDIAN AS A PARTY

NO TESTIMONY BY OPPOSING PARTIES ABOUT CONVERSATIONS WITH THE WARD

(SAME EXCEPTIONS)

Question 10

Lawyer as a witness - are they competent?

Answer 10

There’s no incompetency rule but ethics rules apply

If the lawyer is handling the case, they cannot testify to things other than formalities

Question 11

Can a handling lawyer who is also testifying still work on the same case?

Answer 11

YES but they just CANT be the speaking lawyer, but they can continue working on the case and the firm can continue representing said client

Question 12

Juror’s as witnesses - can never testify when?

Answer 12

In the presence of other jurors

Question 13

Juror testifying to the judge and counsel - what can they testify about pre-verdict?

Answer 13

PRE-VERDICT -

1. IMPROPER CONDUCT/MISCONDUCT (juror is being a snitch on other jurors) or
2. IMPROPER INFLUENCES (threats and bribes)

Question 14

R 606 - Juror Testifying - forms of testimony allowed

Answer 14

Live testimony

Affidavit testimony

Question 15

Juror testifying post verdict what is admissible?

Answer 15

1. OUTSIDE INFLUENCE (BY PERSONS, e.g., THREATS or BRIBES) or
2. EXTRANEOUS PREJUDICIAL INFO (BY THINGS, e.g., NEWSPAPER ACCOUNTS) or
3. MISTAKE IN ENTERING VERDICT ONTO THE FORM (this is NOT a mistake on the METHOD but rather an actual on paper mistake e.g. checked the wrong box or added an extra zero by accident)

Question 16

Can a juror testify about the deliberations post verdict?

Answer 16

NO - the impact on juror’s minds is OFF limits

Question 17

What can happen once the judge hears juror’s testimony?

Answer 17

Declare mistrial

Dismiss the juror

The standard is harmless error or reversible error

Question 18

Texas rule on jurors testifying R. 606

Answer 18

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

Question 19

Ex: A JUROR SLEPT THROUGH TRIAL; ANOTHER WAS SEEN DRUNK THROUGHOUT TRIAL - Can one testify to this as a juror post verdict?

Answer 19

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

Question 20

Ex: JUROR X TOLD THE OTHERS ABOUT HIS SPECIAL EXPERIENCE IN CRIME DETECTION;
SEVERAL THEN CHANGED THEIR VOTES - can the juror testify post verdict? pre verdict?

Answer 20

A JUROR CANNOT TESTIFY TO EITHER POINT POST-VERDICT

THIS IS AN INTERNAL MISCONDUCT MATTER; NOT “EXTRANEOUS” AND NOT “OUTSIDE” THE CIRCLE

Question 21

Ex: (a) A JUROR WENT TO SCENE AT NIGHT; and (b) TOLD OTHER JURORS WHAT HE SAW - can the juror testify pre verdict? Post verdict?

Answer 21

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

Question 22

R 602 - “personal knowledge”

Answer 22

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?”)