Transcript Chapter Four - Northern Virginia Community College

Chapter 4
Witnesses—Competency and
Privileged Communications
Criminal Evidence
6th Edition
Norman M. Garland
The Old Rule on Competency
o The common law rule required that a witness
be competent.
o 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.
o These historical standards no longer hold true.
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The FRE and
Witness Competency
o FRE 601 states: "Every
person is competent
to be a witness
except as otherwise
provided in these
rules."
McGraw-Hill
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The Rules of Witness Competency
Generally, the only requirements for a
person to be able to testify are that the
individual:
o has personal knowledge of facts pertinent to
the case
o has the ability to understand the obligation to
tell the truth
o 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.
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“. . . swear to tell the
truth, so help me God.”
o 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.
o 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.
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The Three Characteristics
of Witness Capacity
oAlthough everyone is competent to
testify, a person must possess three basic
characteristics in order to be a witness:
o The ability to perceive
o remember
o to narrate in an understandable manner
oThese three characteristics make up
witness capacity.
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A Fourth Characteristic?
o A fourth element of capacity—
sincerity—is sometimes added but it is
generally considered to be an aspect
of the other three characteristics.
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Issues and Concerns
There are some problems that recur in
qualifying a person to testify as a lay, or
ordinary, witness:
oIs a child too young to understand or
communicate?
oIs a person too mentally feeble to
understand or communicate?
oAre drug addicts or alcoholics
competent witnesses?
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Children as Witnesses
o Since all persons are competent to
testify under the law of most American
jurisdictions, even a young child can
be a witness.
o The common law rule was that a child
under the age of seven was to too
young to be competent.
o That is not the law in most jurisdictions
today.
o 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.
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McGraw-Hill
The Ultimate Test:
Children as a Witness
The judge will have to determine if the
child:
o is able to understand what is going on about
him or her
o can remember events
o intelligently relates the knowledge to others
o appreciates what it means to tell the truth
If a child meets this test, the child can
testify.
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Constitutional vs. Actual
Confrontation
o 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.
o 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.
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Persons of Questionable
Mental Stability as Witnesses
o 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.
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The Test for Basic Capacity
In most jurisdictions, the only requirement for
persons of questionable mental capacity is
that they:
odemonstrate basic capacity (the ability to
perceive, remember, and narrate) and
qualify to testify (possess personal
knowledge of relevant facts)
ounderstand the obligation to tell the truth
otake an oath (or affirm) that they will testify
truthfully
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Judges and Jurors as Witnesses:
The Federal Rule of Evidence Rule
o 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.
o 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.
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Privileged Communications:
An Introduction
o There are special circumstances that
may arise under which a person may
refrain, or be prohibited, from testifying
concerning certain matters or
information.
o This condition occurs when a person is
in possession of information gained as a
result of certain confidential
relationships.
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Some Common Types
and Forms of Privileges
o Husband-Wife
o Parent-Child
o Attorney-Client
o Physician-Patient
o Patient-Psychotherapist
o Clergy-Communicant
o Law Enforcement Officer-Informant
o Accountant-Client
o News Reporter-News Source
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Interesting Development
Among Privileges
o Some jurisdictions now
recognize a parent-child
privilege, including New
York, Idaho,
Massachusetts, Minnesota,
and Washington.
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Public Policy and Privileges
o Public policy in the United States seeks to
encourage and protect select relationships.
o These relationships are of such importance that
society is willing to protect them by
maintaining the secrecy of confidences
exchanged during the relationship.
o By removing the fear that the confidences
might be revealed in court, the law promotes
the relationship.
o Legally, such exchanges of confidential
information are known as privileged
communications.
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The Effect of Privileged
Relationships & Communications
If a privilege exists, evidence of any
communication made within the privilege
is barred from any legal proceeding.
oHowever, that does not apply if the
privilege is waived, or an exception to
the privilege exists.
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General Principles Applicable
to All Privileges
o A privilege is held by one or more of the persons
involved in the privileged relationship.
o Most privileges contemplate only two persons, but
there can be more, for example, when two or more
people consult with an attorney together.
o 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.
o 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.
o A holder of a privilege has the power to waive it.
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The Holder of the Privilege
o 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.
o The waiver must be made without coercion.
o Failure to claim a privilege when a holder is able to
do so may waive it.
o If a holder of a privilege waives it for any purpose, it is
waived for every other purpose.
o 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.
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Marital Privileges: The Spousal
Incapacity Privilege
Spousal Incapacity Privilege
oThe marital privilege that gives a spouse
called to testify against his or her spouse
the privilege to refuse to testify.
oThe rule that one spouse is disqualified
from testifying against another is
ancient.
oThe spousal incapacity privilege is held
only by the witness-spouse.
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Marital Privileges: The Marital
Communication Privilege
Marital Communications Privilege
oThe rule that any communication
between spouses, during the marriage,
is privileged.
oIt is an accepted fact that for a
successful and wholesome marriage
relationship to exist there must be a free
exchange of communications between
spouses.
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The Marital Communication
Privilege: The Court Test
o The communication was intended to be a confidential
one.
o It was communicated between spouses.
o It did not involve a crime upon one of the spouses by the
other.
o It was not overheard by a third person.
o 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.
o 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.
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Crime or Fraud Exception
to the Marital Privileges
o An exception to the spousal incapacity
and marital communications privileges
exists when one spouse commits a
crime or fraud against the other.
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Communication Between Husband
and Wife Heard by Third Persons
o The first requirement for any confidential
communication to be within a privilege is that
the communication be made in confidence.
o 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.
o Nothing prevents the third person who overhears
a communication between spouses from telling
the world about those communications.
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The Attorney-Client Privilege
Attorney-Client
Privilege
o 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.
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Communications Made in the
Presence of a Third Person
o 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.
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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.
o This includes oral and written statements and acts on the
part of the client.
o 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.
o These acts must have some connection with the case
about which the attorney was being consulted in order to
be covered under this privilege.
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Crimes Exception to
Attorney-Client Privilege
o 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.
o The policy of the privilege is to promote the
administration of justice.
o 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.
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Physician-Patient Privilege
o A relationship that results when any
person consults a psychotherapist or
physician for the diagnosis or the
treatment of a mental or emotional
condition.
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Physician-Patient Privilege
o The common law did not recognize a
privilege for communications between
patients and their doctors.
o New York was the first state to adopt a
statutory physician-patient privilege in
1828.
o Most states today have a physicianpatient privilege, but a few still do not.
o There is no federal physician-patient
privilege.
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Patient-Psychotherapist
Privilege
o 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.
o Some jurisdictions even recognize social
workers within the term.
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Patient-Psychotherapist
Privilege: An Exception
Dangerous patient exception
o 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.
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Clergy-Communicant Privilege
o 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.
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Clergy-Communicant Privilege
o The common law did not recognize a privilege for
the exchange of information between a member of
the clergy and a parishioner.
o 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.
o 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.
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Accountant-Client Privilege
o Communications to accountants are
privileged in 28 states; no such privilege
exists in federal law in criminal cases.
o However, since 1998, there is a federal
confidentiality privilege relating to
taxpayer communication in noncriminal tax matters.
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News Reporter-Confidential
Source Privilege
o 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
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The Codification of the
Privilege
o 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.
o 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.
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Identity of Informer Privilege
o The identity of informer privilege is an
offshoot of the well-established
governmental privilege protecting military
and state secrets established by the
common law.
o 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.
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