Chapter 6 - Competency of Witnesses Flashcards
What is the default presumption of witnesses?
They already are competent enough to testify
How can a competent witness be kept out? (Two ways)
- Unfairly prejudicial
2. Confusing to the jury (R.403)
Requirements for a witness to testify (or else they will be considered incompetent) (4 things)
- TAKE AN OATH
- CAN REMEMBER
- CAN TESTIFY
- CAN RELATE
What happens if a witness indicates that they refuse to be cross-examined?
- IF THE NON-CALLING PARTY MOVES FOR IT, THE WITNESS WILL BE RULED INCOMPETENT
- IF THE SUMMONING PARTY MOVES FOR IT, THE WITNESS WILL BE HELD IN CONTEMPT
What happens if a witness refuses to answer to cross after giving direct testimony/as cross gets uncomfortable?
- Witness will be held in contempt
- Witness will have his direct stricken
- next step is a mistrial
Can a currently hypnotized witness testify?
NO. Not considered competent
Can a hypnotically refreshed witness testify?
Can’t be constitutionally kept out but witness is not considered default incompetent like a currently hypnotized witness
“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
Texas Dead Man’s Statutes (R. 601)
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)
Lawyer as a witness - are they competent?
There’s no incompetency rule but ethics rules apply
If the lawyer is handling the case, they cannot testify to things other than formalities
Can a handling lawyer who is also testifying still work on the same case?
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
Juror’s as witnesses - can never testify when?
In the presence of other jurors
Juror testifying to the judge and counsel - what can they testify about pre-verdict?
PRE-VERDICT -
- IMPROPER CONDUCT/MISCONDUCT (juror is being a snitch on other jurors) or
- IMPROPER INFLUENCES (threats and bribes)
R 606 - Juror Testifying - forms of testimony allowed
Live testimony
Affidavit testimony
Juror testifying post verdict what is admissible?
- 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 (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)
Can a juror testify about the deliberations post verdict?
NO - the impact on juror’s minds is OFF limits
What can happen once the judge hears juror’s testimony?
Declare mistrial
Dismiss the juror
The standard is harmless error or reversible error
Texas rule on jurors testifying R. 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
Ex: A JUROR SLEPT THROUGH TRIAL; ANOTHER WAS SEEN DRUNK THROUGHOUT TRIAL - Can one testify to this as a juror post verdict?
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
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?
A JUROR CANNOT TESTIFY TO EITHER POINT POST-VERDICT
THIS IS AN INTERNAL MISCONDUCT MATTER; NOT “EXTRANEOUS” AND NOT “OUTSIDE” THE CIRCLE
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?
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
R 602 - “personal knowledge”
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?”)
