Chapter 8Chapter 8

Witnesses— Witnesses— Competency and Competency and PerjuryPerjury

Witnesses and Oral TestimonyWitnesses and Oral Testimony

Most of the evidence in any trial is Most of the evidence in any trial is presented through the oral testimony of presented through the oral testimony of witnesses. witnesses.

A witness is a person who has some A witness is a person who has some knowledge about the facts of a case.knowledge about the facts of a case.

The Old Rule on CompetencyThe Old Rule on Competency

The common law rule required that a witness be The common law rule required that a witness be competent. competent.

The trial judge had to determine the competency The trial judge had to determine the competency of any witness, and there were many grounds for of any witness, and there were many grounds for incompetency, including tender (young) age, old incompetency, including tender (young) age, old age, infirmity of mind, lack of religious belief, age, infirmity of mind, lack of religious belief, having been convicted of a crime, or having an having been convicted of a crime, or having an interest in the outcome of the case.interest in the outcome of the case. These historical standards no longer hold true.These historical standards no longer hold true.

The FRE andWitness Competency

The FRE andWitness Competency

FRE 601 states: FRE 601 states: "Every person is "Every person is competent to be a competent to be a witness except as witness except as otherwise provided otherwise provided in these rules."in these rules."

The Rules of Witness Competency

The Rules of Witness Competency

Generally, the only requirements for a person to be Generally, the only requirements for a person to be able to testify are that the individual:able to testify are that the individual:

has personal knowledge of facts pertinent to the has personal knowledge of facts pertinent to the case;case;

has the ability to understand the obligation to tell has the ability to understand the obligation to tell the truth; and the truth; and

be willing to take an oath (or affirm) that he or she be willing to take an oath (or affirm) that he or she will tell the truth. will tell the truth.

Witness CompetencyWitness Competency

Ability to perceive: (5 senses) “Personal Ability to perceive: (5 senses) “Personal Knowledge” Knowledge”

Ability to Recall Ability to Recall Ability to CommunicateAbility to Communicate Understand to tell the truth Understand to tell the truth Take an Oath or Affirmation (Perjury) Take an Oath or Affirmation (Perjury)

Confrontation Clause of theSixth Amendment of the

United States Constitution

Confrontation Clause of theSixth Amendment of the

United States Constitution "In all criminal "In all criminal

prosecutions, the prosecutions, the accused shall . . . be accused shall . . . be confronted with the confronted with the witnesses against witnesses against him."him."

As usual, there is an exception!As usual, there is an exception!

In certain circumstances, the following may be In certain circumstances, the following may be introduced in a criminal trial under the hearsay rule introduced in a criminal trial under the hearsay rule or one of its exceptions:or one of its exceptions: a witness's written statement—either an affidavit (a a witness's written statement—either an affidavit (a sworn written statement);sworn written statement); declaration (another name for an affidavit); declaration (another name for an affidavit); or deposition (sworn testimony under questioning or deposition (sworn testimony under questioning before trial and usually in a private office, not in a before trial and usually in a private office, not in a courtroom).courtroom).

Who is a competent witness?Who is a competent witness?

Today, in federal Today, in federal courts and all states, courts and all states, except Arkansas and except Arkansas and New Hampshire New Hampshire (where atheists are not (where atheists are not competent), all competent), all persons are competent persons are competent to be a witness. to be a witness.

“. . . swear to tell thetruth, so help me God.”“. . . swear to tell the

truth, so help me God.”

The absence of a religious belief, a lack of mental The absence of a religious belief, a lack of mental capacity, being a party to a suit, or having been capacity, being a party to a suit, or having been convicted of a crime does convicted of a crime does notnot make a person make a person incompetent as a witness. incompetent as a witness.

The presence of any of these conditions may affect The presence of any of these conditions may affect the weight of the testimony in the eyes of the jury, the weight of the testimony in the eyes of the jury, (bias) but they will not prevent the person from (bias) but they will not prevent the person from becoming a witness.becoming a witness.

The Three CharacteristicsThe Three Characteristicsof Witness Capacityof Witness Capacity

The Three CharacteristicsThe Three Characteristicsof Witness Capacityof Witness Capacity

Although everyone is competent to testify, a Although everyone is competent to testify, a person must possess three basic person must possess three basic characteristics in order to be a witness:characteristics in order to be a witness: The ability to perceive,The ability to perceive, remember, and remember, and to narrate in an understandable manner.to narrate in an understandable manner.

These three characteristics make up witness These three characteristics make up witness capacity.capacity.

Some States:Additional Requirements

Some States:Additional Requirements

In addition to the basic capacity stated above, In addition to the basic capacity stated above, in most states a witness must meet three in most states a witness must meet three requirements in order to be a witness: requirements in order to be a witness: (1) A person must have personal knowledge of (1) A person must have personal knowledge of

facts relevant to the case (5 senses).facts relevant to the case (5 senses). (2) A person must understand the obligation to (2) A person must understand the obligation to

tell the truth. tell the truth. (3) A person must take an oath (or affirm) that he (3) A person must take an oath (or affirm) that he

or she will testify truthfully.or she will testify truthfully.

Issues and ConcernsIssues and Concerns

There are some problems that recur in There are some problems that recur in qualifying a person to testify as a lay, or qualifying a person to testify as a lay, or ordinary, witness.ordinary, witness. Is a child too young to understand or Is a child too young to understand or

communicate? communicate? Is a person too mentally feeble to understand or Is a person too mentally feeble to understand or

communicate? communicate? Are drug addicts or alcoholics competent Are drug addicts or alcoholics competent

witnesses?witnesses?

Children as WitnessesChildren as Witnesses

Since all persons are competent to testify under the Since all persons are competent to testify under the law of most American jurisdictions, even a young law of most American jurisdictions, even a young child can be a witness. child can be a witness.

The common law rule was that a child under the The common law rule was that a child under the age of seven was to too young to be competent. age of seven was to too young to be competent.

That is not the law in most jurisdictions today. That is not the law in most jurisdictions today. However, when a child is very young, even the However, when a child is very young, even the

basic questions of capacity and ability to basic questions of capacity and ability to understand the obligation to tell the truth can arise.understand the obligation to tell the truth can arise.

The Ultimate Test:Children as a Witness

The Ultimate Test:Children as a Witness

The judge will have to determine if the child–The judge will have to determine if the child– is able to understand what is going on about him is able to understand what is going on about him

or her, or her, can remember events, can remember events, intelligently relates the knowledge to others, andintelligently relates the knowledge to others, and appreciates what it means to tell the truth. appreciates what it means to tell the truth.

If a child meets this test, the child can testify.If a child meets this test, the child can testify.

The Burden, The Decision,and The Test

The Burden, The Decision,and The Test

The burden of proving to the satisfaction of The burden of proving to the satisfaction of the judge that a child is qualified to testify the judge that a child is qualified to testify rests upon the side producing the child as a rests upon the side producing the child as a witness. witness.

It is not necessary that the child understand It is not necessary that the child understand the oath as such, but the child must know the oath as such, but the child must know that he or she must tell the truth when that he or she must tell the truth when testifying.testifying.

A Contemporary Concern With Children

as Witnesses

A Contemporary Concern With Children

as Witnesses Finally, the argument is often made, usually Finally, the argument is often made, usually

by the accused, that caution should be by the accused, that caution should be exercised in permitting a very young child exercised in permitting a very young child to become a witness because of possible to become a witness because of possible injustice to the defendant as a result of some injustice to the defendant as a result of some imaginary imaginary act of misconduct the child may act of misconduct the child may conceive or have had planted in his or her conceive or have had planted in his or her mind.mind.

Constitutional vs. Actual Confrontation

Constitutional vs. Actual Confrontation

The U.S. Supreme Court has held that as long as The U.S. Supreme Court has held that as long as the defendant, the trial court, and the jury can the defendant, the trial court, and the jury can observe the witness while testifyingobserve the witness while testifying, the , the defendant's right to confrontation is satisfied.defendant's right to confrontation is satisfied.

Thirty-seven states permit the use of closed-circuit Thirty-seven states permit the use of closed-circuit television testimony of child-victims, enabling television testimony of child-victims, enabling such witnesses to avoid facing their accused such witnesses to avoid facing their accused abusers.abusers.

Confrontation Confrontation

To “Confront” To “Confront” To Cross-ExamineTo Cross-Examine Process Power of the Court Process Power of the Court (Subpoena) (Subpoena)

Persons of Questionable Mental Stability as Witnesses

Persons of Questionable Mental Stability as Witnesses

Persons who are mentally Persons who are mentally retarded, senile, those retarded, senile, those who have been declared who have been declared mentally unbalanced, mentally unbalanced, drug addicts, or drug addicts, or alcoholics may also alcoholics may also become witnesses become witnesses because they may still because they may still have lucid moments.have lucid moments.

The Test for Basic CapacityThe Test for Basic Capacity

In most jurisdictions, the only requirement for In most jurisdictions, the only requirement for persons of questionable mental capacity is that persons of questionable mental capacity is that they—they—

demonstrate basic capacity (the ability to demonstrate basic capacity (the ability to perceive, remember, and narrate) and qualify to perceive, remember, and narrate) and qualify to testify (possess personal knowledge of relevant testify (possess personal knowledge of relevant facts), facts), understand the obligation to tell the truth, and understand the obligation to tell the truth, and take an oath (or affirm) that they will testify take an oath (or affirm) that they will testify truthfully.truthfully.

Basic CapacityBasic Capacity

Hypnosis: Hypnosis: Suggestion vs. Suggestion vs.

Recollection Recollection

Judges and Jurors as Witnesses: The Federal Rule of Evidence RuleJudges and Jurors as Witnesses: The Federal Rule of Evidence Rule

FRE 605 declares that a judge presiding at FRE 605 declares that a judge presiding at trial may not testify as a witness. A judge trial may not testify as a witness. A judge not presiding at trial is held to the same not presiding at trial is held to the same competency standards as anyone else.competency standards as anyone else.

FRE 606 provides that, like the presiding FRE 606 provides that, like the presiding judge, a member of the jury is incompetent judge, a member of the jury is incompetent to testify to about the juror's verdict in the to testify to about the juror's verdict in the trial in which the juror is sitting.trial in which the juror is sitting.

PerjuryPerjury

Perjury (PC 118):Perjury (PC 118): Knowingly (specific intent)Knowingly (specific intent) Make a false statementMake a false statement Under oathUnder oath MaterialityMateriality

Subornation of Perjury (PC 127): Subornation of Perjury (PC 127): Procuring some else to commit perjury. Procuring some else to commit perjury.