Chapter 6 Testimonial Evidence

Chapter 6 Testimonial Evidence

1. Competency of Witnesses

Witnesses are not" authenticated" in the same sense as real or documentary evidence. How­ever, they too must pass tests of basic reliability to establish their competence to give testimony. Unlike the authentication situation pertaining to real or documentary proof, witnesses are gener­ally presumed to be competent until the contrary is demonstrated.

1. Basic Testimonial Qualifications

There are four basic testimonial attributes that every witness must have to some degree. These are the capacity to observe,to recollect,to communicate,and to appreciate the obligation to speak truthfully. These,along with sincerity, are the qualities at which the cross - examiner directs his skill.

A diminution of any of these capacities usually goes only to the weight of the testimony and serves to make the witness less persuasive. However, a witness can be so deficient in one or more of these basic qualifications that she will be deemed incompetent to testify at all. The

problem of infancy is a good example for all aspects of the basic qualifications. A witness maybe too young at the time of the event to be able to accurately perceive what happened or to be able to remember at the time of the trial. The witness may also be too young at the time of the trial to effectively relate or communicate or appreciate the obligation to tell the truth.

2. Federal Rules of Competency

Federal Rule 601 provides that" Every person is competent to be a witness except as other, wise provided in these rules. " The rules do not specify any mental or moral qualifications for witness testimony beyond these two limitations.

1. The witness must have personal knowledge of the matter he is to testify about.
2. The    witness must declare he will testify truthfully,by oath or affirmation.

3. Modem Modifications of Common Law Disqualifications

At common law there were several grounds upon which a person could be disqualified from giving testimony. Persons were incompetent to testify if they had a financial interest in the suit, if they were the spouse of a party, if they lacked religious belief, if they had been convicted of a crime, or if they lacked mental capacity. These common law disqualifications have been almost entirely removed under the Federal Rules and in the vast majority of American jurisdictions.

4. Dead Man Acts

The last remaining vestige of true incompetency of a witness appears in Dead Acts. These statutes exist in most jurisdictions and their provisions vary from state to state. Although there is no Dead Man Acts in the Federal Rules of Evidence, state Dead Man Acts operate to disqualify witnesses in federal cases where state law provides the rule of decision (most diversity cases).

2. Form of Examination of Witness

The judge may exercise reasonable control over the examination of witness in order to aid the effective ascertainment of truth, to avoid wasting time, and to protect witnesses from harass­ment or undue embarrassment. Questions that frequently arise concerning the form of examina­tion of witness are; when may leading questions be used, what other types of questions are ob­jectionable, and when and how may a witness use memoranda.

1. Leading Questions

1. Generally Objectionable

A question is leading and generally objectionable on direct examination when it suggests to the witness the fact that the examiner expects and wants to have confirmed. Questions calling for "yes "or "no "answers and question framed to suggest the answer desired are usually leading.

2. When Permitted

Leading questions are permitted on cross - examination. Trial judges will usually allow leading questions on direct examination in noncrucial areas of no objection is made.