Criminal Evidence 7th Edition Chapter 4 Witnesses—Competency and Privileged Communications Criminal Evidence 7th Edition Norman M. Garland Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

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. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

The FRE and Witness Competency FRE 601 states: "Every person is competent to be a witness unless these rules provide otherwise.” McGraw-Hill © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

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 be willing to take an oath (or affirm) that he or she will tell the truth No mental or moral qualifications for testifying as a witness are specified in the federal rules. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

“. . . 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, but they will not prevent the person from becoming a witness. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

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 to narrate in an understandable manner These three characteristics make up witness capacity. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

A Fourth Characteristic? A fourth element of capacity—sincerity—is sometimes added but it is generally considered to be an aspect of the other three characteristics. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

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? © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

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. McGraw-Hill © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

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 appreciates what it means to tell the truth If a child meets this test, the child can testify. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

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. All but one state (Maine) permit the use of closed-circuit television testimony or videotaped deposition testimony of child-victims, enabling such witnesses to avoid facing their accused abusers. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Persons of Questionable Mental Stability as Witnesses In addition to children, persons who are mentally retarded, senile persons, those who have been declared mentally unbalanced, drug addicts, or alcoholics may also become witnesses because they may still have lucid moments. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

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 take an oath (or affirm) that they will testify truthfully © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

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 as a witness at the trial in which the juror is sitting; Nor may a juror testify about the juror's verdict in the trial in which the juror is sitting unless extraneous prejudicial information or an outside influence was improperly brought to bear on any juror, or a mistake was made in entering the verdict on the verdict form. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Privileged Communications: An Introduction There are special circumstances that may arise under which a person may refrain, or be prohibited, from testifying concerning certain matters or information. This condition occurs when a person is in possession of information gained as a result of certain confidential relationships. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Some Common Types and Forms of Privileges Husband-Wife Parent-Child Attorney-Client Physician-Patient Patient-Psychotherapist Clergy-Communicant Law Enforcement Officer-Informant Accountant-Client News Reporter-News Source © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Interesting Development Among Privileges Some jurisdictions now recognize a parent-child privilege, including New York, Idaho, Massachusetts, Minnesota, and Washington. McGraw-Hill © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Public Policy and Privileges Public policy in the United States seeks to encourage and protect select relationships. These relationships are of such importance that society is willing to protect them by maintaining the secrecy of confidences exchanged during the relationship. By removing the fear that the confidences might be revealed in court, the law promotes the relationship. Legally, such exchanges of confidential information are known as privileged communications. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

The Effect of Privileged Relationships & Communications If a privilege exists, evidence of any communication made within the privilege is barred from any legal proceeding. However, that does not apply if the privilege is waived, or an exception to the privilege exists. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

General Principles Applicable to All Privileges A privilege is held by one or more of the persons involved in the privileged relationship. Most privileges contemplate only two persons, but there can be more, for example, when two or more people consult with an attorney together. Usually all of the persons in the relationship hold the privilege, meaning they are capable of asserting the privilege and, therefore, need not answer questions before a judge and jury. However, if no one is present to assert the privilege, in some circumstances, the court may be obligated to assert it on behalf of the holder. A holder of a privilege has the power to waive it. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

The Holder of the Privilege The holder of a privilege can waive the privilege by either disclosing a significant part of the communication, or consenting to disclosure of the communication by someone else. The waiver must be made without coercion. Failure to claim a privilege when a holder is able to do so may waive it. If a holder of a privilege waives it for any purpose, it is waived for every other purpose. If two or more persons hold a privilege, such as when several people consult with an attorney, waiver by one holder does not usually affect the right of the other(s) to claim the privilege. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Marital Privileges: The Spousal Incapacity Privilege The marital privilege that gives a spouse called to testify against his or her spouse the privilege to refuse to testify. The rule that one spouse is disqualified from testifying against another is ancient. The spousal incapacity privilege is held only by the witness-spouse. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Marital Privileges: The Marital Communication Privilege Marital Communications Privilege The rule that any communication between spouses, during the marriage, is privileged. It is an accepted fact that for a successful and wholesome marriage relationship to exist there must be a free exchange of communications between spouses. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

The Marital Communication Privilege: The Court Test The communication was intended to be a confidential one. It was communicated between spouses. It did not involve a crime upon one of the spouses by the other. It was not overheard by a third person. The communication is privileged and cannot be the subject of testimony by a spouse, even after the marriage is dissolved by divorce, annulment, or death. In other words, situations may arise in which a spouse may not be able to testify concerning confidential matters communicated between spouses during the marriage, even though the couple is no longer married. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Crime or Fraud Exception to the Marital Privileges An exception to the spousal incapacity and marital communications privileges exists when one spouse commits a crime or fraud against the other. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Communication Between Husband and Wife Heard by Third Persons The first requirement for any confidential communication to be within a privilege is that the communication be made in confidence. If the communication is made directly in the presence of third persons, who themselves are not in a confidential relationship with the spouses, then there is a violation of this first requirement. Nothing prevents the third person who overhears a communication between spouses from telling the world about those communications. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

The Attorney-Client Privilege Created when one who is authorized to practice law in a given state or nation enters a relationship with one who goes to an attorney seeking professional services or advice. McGraw-Hill © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Communications Made in the Presence of a Third Person If a client and attorney communicate with each other in the presence of third persons, on the face of the situation, it cannot be said that the communication was intended to be confidential. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

The Communication Between Attorney and Client The general view is that any information that is furnished to the attorney by the client as a result of the professional status is considered to be a privileged communication. This includes oral and written statements and acts on the part of the client. If, during the consultation with the attorney, a client should display to the attorney a gun, a sack of money, or scars and marks, these,too, would fall within the privilege rule. These acts must have some connection with the case about which the attorney was being consulted in order to be covered under this privilege. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Crimes Exception to Attorney-Client Privilege The attorney-client privilege does not apply when a person consults an attorney concerning the commission of a future crime or for the purpose of concealing the defendant after a crime has been committed. The policy of the privilege is to promote the administration of justice. It would then be a perversion of the privilege to allow the client to seek advice from the attorney to aid in carrying out an illegal scheme, or assist in the furtherance of a crime or fraud. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Physician-Patient Privilege A relationship that results when any person consults a physician for the diagnosis or the treatment of a physical, mental, or emotional condition. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Physician-Patient Privilege The common law did not recognize a privilege for communications between patients and their doctors. New York was the first state to adopt a statutory physician-patient privilege in 1828. Most states today have a physician-patient privilege, but a few still do not. There is no federal physician-patient privilege. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Patient-Psychotherapist Privilege A relationship between a patient who seeks diagnosis or treatment from a person who has been authorized to practice medicine and devotes a substantial portion of his or her time to the practice of psychiatry, or a person who is recognized by the laws of the particular jurisdiction as a certified psychologist. Some jurisdictions even recognize social workers within the term. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Patient-Psychotherapist Privilege: An Exception Dangerous patient exception An exception to psychotherapist-patient privilege, existing in most states, which provides that, if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or herself, or to the person or property of another, the disclosure of the communications is necessary to prevent the threatened danger. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Clergy-Communicant Privilege The relationship between a member of the clergy which includes a priest, minister, religious practitioner, or similar functionary of a religious denomination or organization and one who seeks out the clergy in a religious capacity for the purpose of securing spiritual advice. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Clergy-Communicant Privilege The common law did not recognize a privilege for the exchange of information between a member of the clergy and a parishioner. Nonetheless, as a practical matter, the law had to adjust to accept the privilege because Catholic priests were forbidden to break the secrecy of the confessional and would rather go to prison than reveal communicants' confessions. A privilege protecting confidential communications between clergy and communicants has now been adopted in all of the 50 states and is recognized as part of the federal common law. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Accountant-Client Privilege Communications to accountants are privileged in 29 states; no such privilege exists in federal law in criminal cases. However, since 1998, there is a federal confidentiality privilege relating to taxpayer communication in non-criminal tax matters. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

News Reporter-Confidential Source Privilege The privilege between a publisher, editor, reporter, or other person connected with or employed by a newspaper, magazine, or other periodical publication, or by a radio or television station and a source. Joshua Ets-Hokin/Getty Images © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

The Codification of the Privilege The statutes that have been enacted granting a news reporter protection against revealing the news source have specified that those covered by the privilege include a publisher, editor, reporter, or other person connected with or employed by a newspaper, magazine, or other periodical publication, or by a radio or television station. The privilege usually covers the information discovered by the reporter, including the sources, and background data. Also included are the reporter's notes, photographs, tapes, and edited materials. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Identity of Informer Privilege The identity of informer privilege is an offshoot of the well-established governmental privilege protecting military and state secrets established by the common law. The common law governmental privilege protects the government against compulsory disclosure of military, diplomatic, or other state secrets when it is in the best interest of the people to do so. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.