Pg 8

Question 1

What is required for capacity for a witness?

Answer 1

The witness must have the minimal ability to accurately perceive, record, and recollect impressions of facts, both physical and mental, at the time of the event. Must be able to comprehend questions and express himself understandably

Question 2

What is the test if a witness’ mental capacity is seriously challenged?

Answer 2

If the witness’ age, retardation, injury, medication, or illness makes him so severely mentally deficient that a reasonable juror couldn’t put any credence in his testimony, then the court finds him incompetent to testify

Question 3

What law governs a claim or defense?

Answer 3

State law governs for claims and defences that state law provides the rules of decision for

Question 4

Does Federal Law have Dead Man statutes?

Answer 4

No

Question 5

If the federal law gives the rules of decision, what does it say about witness competency?

Answer 5

All witnesses are competent

Question 6

If there is a diversity action in federal court, can the defendant in a negligence suit be found incompetent to testify?

Answer 6

Yes because even though it is in federal court, it is a negligence action under state law, so dead man statutes might apply

Question 7

What are some examples of things that do not cause incompetence?

Answer 7

Age, religious beliefs, mental incapacity, race, moral incapacity, conviction of a crime, marital relationship, connection with litigation as a party/attorney/interested person. These are avenues for impeachment, but do not cause incompetence

Question 8

If a witness wasn’t wearing glasses when she saw an accident, or was laying in a strange position when she saw it, or had a previous perjury conviction, or had serious doubts about what she saw, does that affect her competency?

Answer 8

No, those things just go to weight

Question 9

What are some examples of situations where a witness would lack competence?

Answer 9

– if the witness has hallucinations and doesn’t honestly know if he is awake or dreaming
– person refuses to take an oath or affirmation
– chronic alcoholism that affects the witness’ ability to perceive or recollect events

Question 10

It is good practice when interviewing a witness to never do what?

Answer 10

Never interview them alone. This preserves their testimony with another person so if they testify inconsistently with what they told you, you have another person that can impeach them

Question 11

What are the common-law grounds that used to make a person incompetent to testify but do not apply anymore?

Answer 11

Witness was a minor, convicted of a felony, a party or relative of a party. Now these just go to the weight that the jury should give the testimony

Question 12

Can a judge testify as a witness in the case that he is presiding over?

Answer 12

No

Question 13

What is the reason that a judge cannot testify as a witness in a case that he is presiding over?

Answer 13

It destroys impartiality, the jury will overvalue his testimony, and he has to rule on objections to his own testimony

Question 14

If a witness is biased against or for a party, does that affect his competence to testify?

Answer 14

No, it just goes to weight, so the opposing counsel should cross examine about the bias

Question 15

Is it permissible for a juror to testify as a witness in a case that he is on the jury for?

Answer 15

No, he can’t testify as a witness before other jurors at trial in a case that he is sitting in. If he is called to testify, the court gives the parties an opportunity to object outside of the juror’s presence. A juror cannot testify over a party’s objection. He technically could testify if the other party didn’t object, but that is rare

Question 16

If a juror is called to testify because of an inquiry into the verdict or indictment, what can’t the juror testify about?

Answer 16

Any statement that was made or thing that happened during the jury deliberations that affected the jurors’ vote or mental processes, unless it involves four exceptions

Question 17

What are the only four things that a juror can testify about in regard to his time on the jury?

Answer 17

– extraneous prejudicial information that was improperly brought to the jurors’ attention
– outside influence improperly brought to bear on any juror
– mistake made entering the verdict on the verdict form
– dishonest answers given by the juror on voir dire

Question 18

What is the reason for the four exceptions that allow a juror to testify about what happened during his time as a juror?

Answer 18

Those things if they exist, are presumed to have tainted the verdict

Question 19

What does it mean that extraneous prejudicial information was improperly brought to the jury’s attention?

Answer 19

Something like watching a TV news cast, reading a newspaper, an experiment done by a fellow juror, or looking up a social media account

Question 20

What are some examples of outside influences that would improperly be brought to bear on a juror?

Answer 20

A threat to his family or a bribe

Question 21

What is the reason that jurors are only allowed to testify about those four exceptions and nothing else regarding their time as a juror?

Answer 21

• jurors should not get harassed by the defeated party that wants the verdict to be set aside
• this encourages free and open discussion among the jurors
  – reduces the incentive for jury tampering
  – promotes finality on the verdict

Question 22

If a juror got drunk, fell asleep, misinterpreted the jury instruction, or drew adverse inferences when the defendant didn’t testify, can those things be testified to in court?

Answer 22

No because it doesn’t fall within one of the four exceptions

Question 23

What are things that a juror cannot testify about after his time on the jury?

Answer 23

Internal discussions, arguments, emotional reactions, votes, statements, drawing straws to decide who should lose, flipping a coin, anything regarding jury deliberation, the impact of outside influences, etc.

Question 24

If a juror is allowed to testify to something that would warrant reversal, what happens?

Answer 24

The jury verdict is set aside if there’s a reasonable possibility that influence or information affected the verdict. If no prejudice resulted, no new trial. The burden is on the winning party to show harmlessness

Question 25

If a witness has a mental deficiency, is feeble minded, or has spent time in a mental institution, does that make him incompetent to testify?

Answer 25

No, that just goes to the weight that is to be given his testimony

Question 26

Can a witness be incompetent to stand trial but competent to testify as a witness?

Answer 26

Yes

Question 27

What is the rule regarding child witnesses and competency?

Answer 27

Kids are presumed to be competent

Question 28

What is necessary in order to question a child’s competency?

Answer 28

There must be a written motion and offer of proof of the child’s incompetency that includes a compelling reason

Question 29

Is a child’s age a compelling reason for them not to be competent to testify?

Answer 29

No

Question 30

Who are the people that can attend a competency exam for a child witness?

Answer 30

The attorney for both parties, court reporter, anyone the court thinks needs to be present for the child’s welfare such as a parent or guardian

Question 31

A mental competency exam for a child is based on what?

Answer 31

Questions submitted by the attorney that are appropriate to the age and development of the child and not related to an issue at trial. The focus is on whether the child is able to answer simple questions and to distinguish truth from lies/fantasy. I.e. is Superman real or pretend?

Question 32

Does habitual use of intoxicants or drugs make a witness incompetent to testify?

Answer 32

No, competency is determined by an assessment of minimum credibility. So the witness could be under the influence at the time of the event or while testifying and still be able to testify