Testimonial Evidence: Competency of Witnesses

Question 1

In general, what are the federal rules of competency for a witness?

What is the CA additional requirement?

Answer 1

1. Witness must have PERSONAL KNOWLEDGE of the matter; AND
2. must DECLARE that he will testify truthfully

CA –> witness must understand duty to tell truth

Question 2

What is the rule if the witness requires an interpreter?

Answer 2

If witness requires an interpreter:

1. interpreter must be QUALIFIED; and
2. take oath to make TRUE TRANSLATION

Question 3

What is the rule re: the competency of an INFANT to testify?

Answer 3

Depends on the CAPACITY and INTELLIGENCE of the particular child, as determined by the trial judge

Question 4

What is the rule re: competency of an INSANE person to testify?

Answer 4

Insane person MAY testify, IF:

1. he UNDERSTANDS obligation to speak truthfully; AND
2. has has CAPACITY to testify accurately

Question 5

What is the rule re: judge and/or jurors as witnesses?

What is CA distinction?

Answer 5

FRE –> judge and jurors are incompetent to testify. No need to object.

CA –> judge and jurors are incompetent to testify. HOWEVER, they may do so if there is no objection

Question 6

What is a “dead man act”?

do federal rules have one ?

does CA?

Answer 6

“dead man act” provides that a party/person interested in event is INCOMPETENT to testify to a personal transaction or communication w a deceased, when such testimony is offered against the representative or successors in interest of the deceased

Federal rules DON’T have one, but most states do.

CA –> no dead man statute

HOWEVER –> state dead man’s act will apply in federal cases where, under Erie doctrine, state law provides rules of decision (for example, diversity cases)