Chapter 8 Witnesses— Competency and Perjury

Witnesses and Oral Testimony Most of the evidence in any trial is presented through the oral testimony of witnesses. A witness is a person who has some knowledge about the facts of a case.

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

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

The Rules of Witness Competency Generally, the only requirements for a person to be able to testify are that the individual: has personal knowledge of facts pertinent to the case; has the ability to understand the obligation to tell the truth; and be willing to take an oath (or affirm) that he or she will tell the truth.

Witness Competency Ability to perceive: (5 senses) “Personal Knowledge” Ability to Recall Ability to Communicate Understand to tell the truth Take an Oath or Affirmation (Perjury)

Confrontation Clause of the Sixth Amendment of the United States Constitution "In all criminal prosecutions, the accused shall . . . be confronted with the witnesses against him."

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

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

“. . . swear to tell the truth, so help me God.” The absence of a religious belief, a lack of mental capacity, being a party to a suit, or having been convicted of a crime does not make a person incompetent as a witness. The presence of any of these conditions may affect the weight of the testimony in the eyes of the jury, (bias) but they will not prevent the person from becoming a witness.

The Three Characteristics of Witness Capacity Although everyone is competent to testify, a person must possess three basic characteristics in order to be a witness: The ability to perceive, remember, and to narrate in an understandable manner. These three characteristics make up witness capacity.

Some States: Additional Requirements In addition to the basic capacity stated above, in most states a witness must meet three requirements in order to be a witness: (1) A person must have personal knowledge of facts relevant to the case (5 senses). (2) A person must understand the obligation to tell the truth. (3) A person must take an oath (or affirm) that he or she will testify truthfully.

Issues and Concerns There are some problems that recur in qualifying a person to testify as a lay, or ordinary, witness. Is a child too young to understand or communicate? Is a person too mentally feeble to understand or communicate? Are drug addicts or alcoholics competent witnesses?

Children as Witnesses Since all persons are competent to testify under the law of most American jurisdictions, even a young child can be a witness. The common law rule was that a child under the age of seven was to too young to be competent. That is not the law in most jurisdictions today. However, when a child is very young, even the basic questions of capacity and ability to understand the obligation to tell the truth can arise.

The Ultimate Test: Children as a Witness The judge will have to determine if the child– is able to understand what is going on about him or her, can remember events, intelligently relates the knowledge to others, and appreciates what it means to tell the truth. If a child meets this test, the child can testify.

The Burden, The Decision, and The Test The burden of proving to the satisfaction of the judge that a child is qualified to testify rests upon the side producing the child as a witness. It is not necessary that the child understand the oath as such, but the child must know that he or she must tell the truth when testifying.

A Contemporary Concern With Children as Witnesses Finally, the argument is often made, usually by the accused, that caution should be exercised in permitting a very young child to become a witness because of possible injustice to the defendant as a result of some imaginary act of misconduct the child may conceive or have had planted in his or her mind.

Constitutional vs. Actual Confrontation The U.S. Supreme Court has held that as long as the defendant, the trial court, and the jury can observe the witness while testifying, the defendant's right to confrontation is satisfied. Thirty-seven states permit the use of closed-circuit television testimony of child-victims, enabling such witnesses to avoid facing their accused abusers.

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

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

The Test for Basic Capacity In most jurisdictions, the only requirement for persons of questionable mental capacity is that they— demonstrate basic capacity (the ability to perceive, remember, and narrate) and qualify to testify (possess personal knowledge of relevant facts), understand the obligation to tell the truth, and take an oath (or affirm) that they will testify truthfully.

Basic Capacity Hypnosis: Suggestion vs. Recollection

Judges and Jurors as Witnesses: The Federal Rule of Evidence Rule FRE 605 declares that a judge presiding at trial may not testify as a witness. A judge not presiding at trial is held to the same competency standards as anyone else. FRE 606 provides that, like the presiding judge, a member of the jury is incompetent to testify to about the juror's verdict in the trial in which the juror is sitting.

Perjury Perjury (PC 118): Knowingly (specific intent) Make a false statement Under oath Materiality Subornation of Perjury (PC 127): Procuring some else to commit perjury.