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Witness Competency

  1. Competency
    1. Common Law
      1. Competency of a witness required:
        1. the witness must take an oath to testify truthfully
        2. the witness must show mental capacity sufficient to understand the obligation to the truth
        3. the witness must have personal knowledge
      2. Incompetent to Testifyat Common Law
        1. Felons
        2. Atheists
        3. Children
        4. Spouses (each could prevent the other from testifying)
        5. Mental incompents
        6. Financially interested parties
    2. Federal Rules
      1. Every person is competent to be a witness except where state law supplies the rule of decision [FRE 601]
        1. Example: In a diversity case, a child witness would have to satisfy the three common law requirements to be competent.
      2. Test Minimum Competency Test
        1. Requires:
          1. Personal knowledge [FRE 602]
          2. Declaration to testify truthfully [FRE 603]
        2. Policy is to dispense with strict competency requirements and to have the jury determine the weight of the testimony
      3. Use of Interpreters
        1. Is permitted provided:
          1. The interpreter takes an oath to testify truthfully
          2. The interpreter qualifies as an expert witness
        2. The court may appoint interpreter in both civil and criminal cases
        3. The court may also fix reasonable compensation for such interpreters
      4. Competency of the Judge and Jury
        1. Neither the presiding judge nor any jury member may testify in the trial in which she is sitting [FRE 605-606]
          1. Note: an attorney may be called as a witness
  2. Impeachment
    1. The credibility of a witness may be attacked by any party, including the party calling the witness [FRE 607]
      1. Note: this is contra to the common law rule
        1. Common Law: a party could not impeach her own witness
    2. Party may want to impeach own witness when:
      1. Surprising hostile testimony
      2. Where witness’ testimony is positively harmful to the calling party’s case
      3. Where one party calls the opposing party as a witness (adverse witness)
        1. The normal rules of impeachment are reversed here: the witness may be immediately impeached by the calling party and then the witness may be subject to a direct examination by her own counsel
    3. Forms of Impeachment
      1. Intrinsic Impeachment
        1. Evidence brought out from the mouth of the witness herself
      2. ExtrinsicEvidence
        1. Refers to all other evidence not from the mouth of the witness
        2. Deals with contradictory evidence from other witnesses discrediting the testifying witness
    4. Collateral Matter Rule
      1. Deals with contradictory evidence on collateral matters
        1. Collateral issue is an issue which is not material to the issue being litigated
      2. Collateral evidence offered to attack the credibility of a witness may be inquired into on cross-examination intrinsically subject to the court’s objection, but extrinsic evidence on the same question with regard to collateral matters may not be introduced
        1. Most common- prior inconsistent statements
      3. Examples:
        1. W testifies that Δ is an honest man on direct examination. On cross the W may be asked “did you know the Δ committed three burglaries?”
          1. Question is being asked intrinsically to discredit W- admissible
        2. Π’s W testifies that Δ drove through red light and was wearing a green sweater at the time. The Δ may not then call another W to testify that his sweater was blue
          1. This is extrinsic evidence on a collateral matter- inadmissible

*Note: A person’s religious beliefs are inadmissible to attack credibility [FRE 610]

  1. Methods of Impeachment
    1. Sensory Defects
      1. Go to the credibility of a W
      2. The manner of impeachment may be either:
        1. questioning (intrinsically) or
        2. extrinsic evidence regarding the inability of the W to see, observe, or remember (eyesight, etc.)
      3. Foundation Requirement:
        1. Prior questioning as to the sensory deficiency before introducing any extrinsic evidence
          1. Example: “Do you normally wear glasses?”
    2. Bias
      1. Many form in which bias may be shown:
        1. Interest in the outcome
        2. Economic or marital relationship
        3. Hostility or favoritism
        4. Fee paid to an expert’s witness
      2. Manner of Impeachment
        1. Intrinsic questioning
        2. Extrinsic testimony
      3. Foundation Requirements:
        1. Court is very lenient
        2. Ask the witness about the facts which form the basis of the bias
      4. Bias is always material
        1. Never collateral
    3. Character Evidence
      1. Ways to impeach using character evidence:
        1. Reputation and opinion evidence [FRE 608(a)]
          1. Distinction at common law: only reputation was allowed
            1. Under Federal Rules opinion testimony allowed as well
          2. Proof of reputation or opinion is limited to the character trait of untruthfulness
        2. Bad act impeachment [FRE 608(b)]
          1. Questions on cross-examinations may inquire into prior unconvicted acts relating to truthfulness
          2. Example: on cross-examination W is asked if he embezzled money from employer?
            1. question, unconvicted act, related to truthfulness- proper form
            2. what happens if the W is asked she has not embezzled?
              1. At this point, no other Ws may be called to contradict her answer b/c this would be extrinsic evidence on a collateral matter and would be excluded by Collateral Rule
          3. Limited to good faith questioning
        3. Felony convictions [FRE 609(a)]
          1. Felonies: Crimes punishable by death or imprisonment in excess of one year
          2. Such crimes may be admissible to impeach provided the court determines that the probative valueof such evidence outweighs the prejudicial effect
            1. similar to Balancing Test of FRE 403
        4. Crimes bearing on untruthfulness [FRE 609(a)]
          1. Convictionson crimes involving dishonesty of false statements
            1. felonies or misdemeanors
          2. Note: the judge has no discretion to exclude such proof
            1. the discretion deals with felonies, but where it involves truthfulness there is no discretion
      2. Limitation [FRE 609(b)] “10 Year Rule”
        1. Discretionary rule
        2. Conviction of a crime under this rule (felony convictions and crimes involving dishonesty) is inadmissible to impeach if more than ten years has elapsed after the conviction, unless the court determines that the probative value outweighs the prejudicial effect
        3. Note: Impeachment using a conviction that is more than ten years old requires that advanced written notice be given to the opposing party
        4. Example: Which will most likely be allowed for impeachment?
          1. A 12 year old conviction for forgery
            1. more than 1 so probably will not, and there is a bearing on truthfulness
          2. A 3 year old conviction for assault and battery
            1. worst answer: assault and battery (misdemeanors at common law) do not bear on truthfulness
          3. A 1 year old conviction for betty theft
            1. BEST answer: not more than ten years old, and petty theft is a crime involving untruthfulness
          4. An 8 year old conviction for murder
            1. does not bear on truthfulness, but murder is a felony- will probative value outweigh prejudice?
      3. How do you impeach using conviction?
        1. Asking the W intrinsically
        2. Offering a certified copy of the conviction (extrinsically)
      4. Other areas of Impeachment by Conviction of Crimes under FRE 609
        1. Pardons [FRE 609(c)]
          1. A conviction subject to a pardon is inadmissible to impeach
            1. Note: a common law was contra
        2. Juvenile Adjudications [FRE 609(d)]
          1. Two ways split:
            1. Such a juvenile adjudication is inadmissible if offered against the Δ
            2. When offered against a W, use of juvenile adjudication is subject to the discretion of the court
        3. Conviction under Appeal [FRE 609(e)]
          1. Conviction under appeal is admissible to impeach
          2. But the Δ gets a break because the pending nature of the appeal is noted
    4. Prior Inconsistent Statements [FRE 613]

 most common form of impeachment

  1. Foundation Requirements:
    1. A witness need only be given an opportunity to explain or deny the statement
      1. This does not need to be done on cross-examination, may be done after cross-examination
        1. Note: at common law, extrinsic evidence of a prior inconsistent statement of a witness was inadmissible unless the witness was first asked on cross-examination whether she made the statement
  2. Scope
    1. Any inquiry is admitted, regardless of its relevancy
    2. The witness’s response is limited by Collateral Matter Rule
      1. Example: discrepancy between witness’s answer on the color of the Δ’s sweater
    3. Note: Even the credibility of a hearsay declarant (OCD) can be impeached under FRE 806
  • Presentation of Evidence
    1. Scope of Cross-Examination [FRE 611]
      1. Limited to subject matter of the direct examination and matters affecting the credibility of the witness
      2. Areas for Cross-Examination:
        1. Questions of issues addressing the scope of direct examination
        2. Leading questions
        3. Impeachment (credibility of W)
      3. Example: Π testifies that he was bitten by a large German shepherd with white paw. At trial, Π calls Δ as an adverse witness and asks if she own a German shepherd with a white paw, answers yes. Defense attorney asks Δ if her dog is gentle and does not bite without provocation?
        1. Inadmissible subject to the court’s discretion b/c Δ’s answer goes beyond the scope of direct examination
          1. Question here dealt with ownership
          2. **For an adverse witness, a leading question is allowed on direct examination**
            1. But when defense used a leading question, it is treated as direct, which is improper and it does not deal with ownership, but deals with temperament
    2. Leading Questions 
      1. Generally not allowed on direct examination
      2. Exceptions:
        1. Preliminary background information
        2. Examination of expert witness
        3. For child witnesses
        4. Hostile or adverse witnesses
        5. Refresh recollection
    3. Refreshing Recollection[FRE 612]
      1. A witness’s memory may be refreshed by means of either a leading question or a writing either, while testifying or before testifying (subject to discretion of the court)
      2. Limitations
        1. The witness must testify without looking at the writing
        2. Opposing counsel has certain rights:
          1. Inspect the document
          2. to cross-examine using the document
          3. may also introduce relevant portions of the writing
        3. witness need not prepared the writing herself
          1. nor must it have been prepared at, or near, the time of the event
        4. writing itself need not be admissible in evidence
          1. ex. something that would be inadmissible as hearsay, attorney’s notes, etc.
      3. Even if the witness had not been shown the writing while testifying, but had reviewed the statement prior to coming into court, the trial court could order production of the writing for the opposing counsel if found to be necessary to the interests of justice
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