Teachers' Manual to Green, Nesson & Murray, Problems, Cases and Materials on Evidence, 3rd Edition.


CHAPTER IV: Competency, Examination, and Credibility of Witnesses
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A. Competency of Witnesses (330)

Problem - The Intoxicated Informer (332)

The point:

Competency of witnesses under the federal rules boils down to a question of the capacity of the witness to testify -- especially the capacity of the witness to be cross-examined.

Answer and Analysis:

Under Rule 601, every person is competent to be a witness, except where the rules provide otherwise or where state law governs and provides otherwise. There are few exceptions in the federal rules. By and large, the common law disqualification rules have been replaced by reliance on cross-examination to bring out defects in a witness's testimony. Other disqualification rules have been transformed, for example, into rules of privilege (spousal), or a special rule of impeachment (prior crimes).

D's objection should be overruled. This witness has not been shown to be incompetent by the evidence offered by the defendant. The defendant has shown through P a theoretical possibility that someone who uses LSD excessively might have impaired capacities to perceive and remember. But the defendant has not shown this to be true of I. The judge, in chambers, apparently examined I about his drug usage, and could judge for herself whether the witness was so spaced out that no reliance should be given to his testimony.

See People v. Eastmon. 61 Cal. App. 3d 646, 132 Cal. Rptr. 510 (1976), the case on which this problem is based.

Problem - Little Archie - The Child Witness (332)

The point:

What counts under Rule 601 is the witness's ability to testify at the time of the trial, not when the observations were made.

Answer and Analysis:

Archie was three years old at the first trial. Could we learn from him how he was injured? That might depend on how mature a three-year old Archie was. The fact of his injury is a given -- there is no danger that he made the whole thing up. The question is whether he fell in the sandbox, or was bitten by the dog. Whatever the cause, it might have been sufficiently traumatic to make a big impression. Moreover the possible causes are sufficiently distinct so that Archie may be unlikely to confuse one with the other. Arguably, he should have been treated as a competent witness in the first place. However, it is possible that the judge at the first trial felt that Archie was too young to appreciate the obligation to tell the truth (sincerity), or to be able to accurately relate what had happened to him (narration).

At the second trial Archie is nine years old. He has become more competent in the sense that he can now use language better and may appreciate the significance of the oath more fully. On the other hand, Archie's memory of what occurred is six years older and the passage of time cannot have improved his perception of what took place in the playground six years earlier. Is he more competent at nine than he was at the age of three to testify about what happened to him when he was three? Two of Archie's four capacities as a witness may have improved, one probably deteriorated, and one could not change with time. If the trial judge's ruling in the first trial were based on concerns of narration or sincerity, the rulings are compatible. As a matter of sound child psychology, however, it is likely that if Archie is competent at the second trial, he should have been considered competent at the first.

In the case on which this problem is based, Hollaris v. Jankowski, 315 Ill. App. 154, 42 N.E.2d 859 (1942), the court held that it was error for an eight year old child to be allowed to testify to an accident that occurred when he was four years old. The court found it unnecessary to apply the rule of incompetency that barred witnesses solely because of their age. Rather, the witness should not have been allowed to testify because he had talked with so many lawyers and family members about the accident in the intervening years that he had no independent recollection of the accident. This fact, combined with his tender years and the fact that he "was not a very smart, precocious child," and led the court to conclude that the child should not have been permitted to testify.

In our problem, which is based on a Chadbourn hypothetical, Archie was probably a better witness at three than at nine, at least on the issue of whether the nails or the dog got him.

Problem - The Aphasic Witness (332)

Answer and Analysis:

The cross-examination has demonstrated that as the witness tires, he loses coherence. He was not incoherent on direct and it appears that, by framing questions in simple terms and limiting the duration of examination sessions, his credibility could easily be tested by cross-examination. The witness should be considered competent to testify.

The judge may face the problem in another format at the conclusion of the plaintiffs case. If the plaintiff's evidence consists only of the evidence of a marginally competent witness, is the evidence sufficient as a basis for judgment? The judge's decision to allow the witness to testify does not foreclose the judge from deciding that a judgment should not be based solely on the testimony of that witness.

In the case on which this problem is based, Schneide v. Interest Transit Lines Inc., 394 Ill. 569, 69 N.E.2d 293 (1946), the court held that the witness was competent to testify even though his speech was "involved", his mental condition disturbed, and his judgment was poor. The court emphasized that the competency of a witness to testify and the weight that should be accorded the witness's testimony are two distinct issues that should not be confused. The jury should be given the opportunity to evaluate even the evident nonsense.

Problem - Communication by Motion (334)

Answer and Analysis:

Objection overruled. The witness should be allowed to testify, but it is a close question, especially because this is a criminal case. The witness is not incompetent merely because her answers are. The witness has apparently suffered substantial paralysis, but insofar as is indicated, has unimpaired hearing, sight, and cognitive faculties. The problem is more one of difficulty in conducting the vigorous, destructive type of cross-examination to which a defendant in a criminal case is entitled.

In the case on which this problem is based, People v. White, 40 Ill. 137, 238 N.E.2d 389 (1968), the court reversed on constitutional grounds, holding that the defendant could not get a fair trial with cross-examination so limited. A complicating factor in the actual case was that the witness had originally identified the defendant--in the same knee-jerk manner-- in a showup conducted by the head nurse, and it was difficult to gauge the influence that the head nurse had on the witness.



Problem - The Medium is the Message (334)

Answer and Analysis:

The witness should not be allowed to testify through a medium. Whether or not the witness is able to communicate through a medium by some supernatural process, any verdict based on such testimony would lack credibility. Courts will not overtly allow judgments to be based on witchcraft. It is interesting, however, to contemplate the situation in which the medium's ability to apprehend the witness's thoughts and communicate them accurately is verified by some test, such as where the medium is asked to leave the courtroom, the witness is asked to communicate silently "To be or not to be, that is the question . . . " and the medium reenters the courtroom and accurately recites the passage.

In the Walker case, 69 Cal. App. 475, the witness's wife purported to "interpret" her mute husband's responses to questions put to him on direct examination by the prosecution. Neither the court nor defense counsel could hear the witness make any sound, but the wife was sworn as an interpreter and the testimony of the husband was thus introduced. The appeals court held that this was error. The general rule allowing witnesses to testify through interpreters was distinguished on the grounds that in the ordinary case, errors and deceptions of the interpreter are subject to detection and correction. In this case, no one could check on the wife's "interpretation" or even verify that the witness had said anything.

Problem - "You Feel Very Sleepy..." (335)

Answer and Analysis:

Hypnotically enhanced testimony puts the process of judicial factfinding at serious risk because the process of hypnosis makes the credibility of the testimony suspect, and the normal processes by which jurors evaluate the credibility of testimony is inadequate to assess the credibility of hypnotically enhanced testimony. The fact that the testimony is hypnotically enhanced makes it more difficult to expose its defects and thus to undercut its credibility at the trial. But since we know that this resistance to attack is often the result of the hypnotism and not the evidence itself, the credibility of the ultimate result is suspect. Even though a jury may be convinced by the evidence, their assessment of its credibility is not easily deferred to by knowledgeable observers.

Hypnosis is a tool being actively explored and used by prosecutors. It is also widely used by investigators; most large police forces have at least one trained hypnotist in their ranks. In addition, psychologists and others in the healing professions use hypnosis for therapeutic purposes. Sometimes these uses conflict, as when a psychologist desires to use hypnosis therapeutically with the victim of an assault, the prosecutor wants to use hypnosis to aid in the conviction of the perpetrator, and the court is concerned that any hypnotically enhanced testimony may prejudice the defendant.

The response of the courts to this new problem has varied greatly. There are four general approaches. The majority of jurisdictions have taken the position that hypnotically inducing or enhancing testimony poses no per barrier to admissibility, but that the hypnotism can be taken into account in assessing the weight to be given the evidence. See United States v. Awkard, 597 F.2d 667 (9th Cir. 1979); Pearson v. State, 441 N.E.2d 468 (Ind. 1982). Courts that have taken this view reason that emphasis should be placed on the witness's credibility, rather than on the witness's competency. These courts tend .to view witness's who have had their memory enhanced by hypnotism like other witnesses whose memory has been refreshed in more traditional ways by documents. In this view, hypnotism is just one of many factors that can affect a witness, and cross-examination is relied upon as the corrective and evaluative device. See State v. McOueen, 295 N.C. 96, 244 S.E.2d 414 (1978) (the source of this problem) finding no error in the use of the hypnotically enhanced testimony even in the absence of any procedural safeguards.

The trend is away from this view, which dominated the early approach to this issue. See, for example, Collins v. State, 52 Md. App. 186, 205 (1982), abandoning the position of open admissibility taken 15 years earlier in the leading case of Harding v. State, 5 Md. App. 230 (1967), cert. denied, 395 U.S. 949 (1969).

The second approach has been to allow hypnotically enhanced testimony only if certain specific procedures designed to safeguard reliability have been followed. See, for example, State v. Hurd, 86 N.J. 525 (1981). The procedures that are required generally involve making an accurate record of what the witness knows before hypnosis and what occurs during hypnosis (sometimes a videotape is required), hypnosis by a trained and disinterested professional, the presence of counsel for interested parties, the use of experts to explain to the jury the effects of hypnosis, and careful instruction of the jury of the process and its dangers.

The third approach is to bar any witness who has been hypnotized from testifying as to any matter discussed during hypnosis. See, for example, State v. Mack, 292 N.W.2d 764 (Minn. 1980); People v. Shirley, 31 Cal. 3d 18,51-56 (1982). Mack.

The fourth approach, recently adopted by Massachusetts, is to admit testimony with regard to those matters that the witness was able to recall prior to hypnosis, but to bar any testimony recalled by the witness only through hypnosis. See Commonwealth v. Kater, 388 Mass. 519 (1983). See also State v. Blanchard, 315 N.W.2d 424 (Minn. 1982).

In the Kater case, the Massachusetts court was confronted with what it called "hypnotically aided testimony, that is, testimony that was not available from the witness before he was hypnotized but was available afterwards. Such evidence is barred in criminal cases, the court held, because hypnosis lacks general acceptability by experts in the field as a reliable method of enhancing the memory of a witness. (See Chapter VIII, particularly Frye v. United States) Indeed, the court noted that many experts consider hypnosis to be an unreliable method of enhancing recall. According to these experts, the subject's desire to please the hypnotist often causes the subject to confabulate -- fill in gaps in his memory by free fabrication. And there is no way for the hypnotist or any other observer to distinguish between actual memory and pseudo-memory. In addition, hypnosis increases the witness's confidence in his memory, regardless of its accuracy, rendering the subject less immune to meaningful cross-examination.

The Kater court adopted the following guidelines from Commonwealth v. A Juvenile. Mass. Adv. Sh. (1980) 2319, 2324- 2325 n.8, for any hypnosis of a person whose prehypnotic memory may be offered in evidence.

1. The hypnotic session should be conducted by a licensed psychologist or psychiatrist trained in the use of hypnosis.

2. The person conducting the session should be independent of and not responsible to the prosecutor, investigator or the defense.

3. Any information given to the hypnotist prior to the session must be in written form.

4. Before hypnosis, the hypnotist should obtain from the subject a detailed description of the facts as the subject remembers them, carefully avoiding adding any new elements to the witness's description.

5. All contacts between the hypnotist and the subject should be recorded; videotape should be employed if possible but is not mandatory.

6. Only the hypnotist and the subject should be present during any phase of the session, including the pre-hypnotic testing and post-hypnotic interview.

These procedures were recommended by one of the leading experts in hypnosis, Dr. Martin Ome. In addition, the Kater court emphasized that the prosecution will have the burden of proving what the witness remembered prior to hypnosis, that the opponent must be given the opportunity to demonstrate at trial the possible effects of hypnosis on the witness's testimony and sense of certainty, and that the court, where appropriate, must instruct the jury to consider the hypnosis in assessing the witness's credibility.

In Commonwealth v. Watson, 388 Mass. 536 (1983), the court distinguished hypnotically aided testimony from hypnotically enhanced testimony, which is testimony that was available prior to hypnosis, but which the witness became more confident in after hypnosis. Even in this situation, the opponent of the evidence must have an opportunity to air all possible weaknesses in the procedure before the jury and the jury must be cautioned to consider the effect of hypnosis on the witness's testimony.

People v. Hughes, 59 N.Y. 2d 523, 453 N.E.2d 484, 466 N.Y.S.2d 255 (1983) (335)

This is a leading case dealing with hypnotically refreshed testimony in the typical context of a hypnotically refreshed prosecution witness (a rape victim). The New York Court of Appeals discusses the various potential approaches to the use of hypnotically refreshed testimony and chooses a middle road.

Rock v. Arkansas, 483 U.S. 44 (1987)(350)

This case represents a more unusual situation in which the accused has been hypnotized. The admissibility or non-admissibility of the accused's testimony thus raises acute constitutional issues.

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