Term
| Common Law Rule of Competency |
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Definition
Restrictive:
Mental/Moral Exclusions (mental incapacity, religious belief, criminal conviction, infancy)
Parties and related persons excluded
(Parties, spouses, accomplices or other interested persons) |
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Term
Competency of Witness:
There is a limitation based on state law. When does it apply? |
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Definition
| In Civil Actions; with respect to an element of a claim or defense as to which state law supplies to rule of decision (erie), the competency of a witness shall be determined in accordance with state law. |
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Term
| In state court, can a witness who is an interested party under a will or trust testify about communications or transactions with a decedent? |
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Definition
No; prohibited (Not competent to testify)
Unless there is a waiver.
Automatice waiver for decedent's deposition; or court waiver if "clear and convincing proof the testimony is reliable" |
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Term
| What are the 2 types of waivers for dead man statutes in state courts? (i.e. where testimony of a witness who is an interested party under a will or trust is allowed) |
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Definition
1) Waiver automatic for decedents deposition
2) Court waiver if "clear and convincing" proof that testimony is reliable |
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Term
| What are the exceptions for lawyer as witness? |
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Definition
1) Uncontested matters
2) Matter of formality
3) Nature and value of legal services
4) Substantial hardship to client |
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Term
| Can a paralegal or secretary testify? |
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Definition
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Term
| What's the FRE rule of competency? |
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Definition
| Every person is competent to be a witness except as otherwise provided. |
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Term
| What are the requirements to be considered a competent witness? |
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Definition
Personal Knowledge (exception for expert witness)
Oath or affirmation of truth
Must have perceived the event
Memory of event
Ability to communicate -
Subject to cross |
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Term
| Who determines the adequacy of memory of testifying witness? |
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Definition
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Term
| Who determines if the testifying witness has the ability to communicate in order to be a competent witness? |
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Definition
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Term
| Does insanity go to competency or credibility? |
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Definition
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Term
| When can the court prevent an drug/alcohol addict witness from testifying |
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Definition
| Where the witness is currently on drugs and unable to testify |
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Term
| What are the requirements for a child witness to be found competent to testify? |
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Definition
1) Understand the obligation to tell the truth 2) Tak an oath
Only need to understand the obligation to tell the truth |
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Term
| Child Witness: Erie Cases |
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Definition
| Minority of states presume that children below a certain age are incompetent |
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Term
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Definition
| Judges are never competent to testify at trial in which they are presiding |
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Term
| Can judges testify a post-trial proceedings in the same case? |
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Definition
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Term
| May a judge testify about the mental proces he used in deciding the case? |
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Definition
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Term
| May a law clerk testify in a case in which the judge she is clerking for is presiding? |
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Definition
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Term
| What are the exceptions under 606(b) (The matters to which a juror may testify) |
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Definition
1) Extraneous prejudicial information brought to the jury's attention.
2) Whether any outside influence was improperly brought to bear on any jurur.
3) A mistake in entering the jury verdict. |
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Term
| Does a juror need to show that the external information or outside influence made a difference in the jury verdict in order to testify? |
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Definition
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Term
| 604 (a) and (b) (Competency of jurors as witness) do not apply to: |
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Definition
1) inquiry before verdict rendered
2) pre-and post deliberative conduct
3) Testimony of non-jurors or other evidence |
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