1. Explain what competence to testify means. Describe the competency requirements a witness must meet in order to testify.
    
2. Answer the question of whether or not a witness who has been hypnotized can testify, and why.
    
3. Discuss the special procedures used in courts to determine whether or not children are competent to testify.
    
4. Answer the question of whether or not judges and jurors may be called as witnesses at a trial.
    
5. Answer the question of whether or not the law of evidence allows a spouse to prevent his or her partner from testifying against him or her at a criminal trial.
    
6. Explain if and how an individual’s religious beliefs may disqualify them to testify at a trial.
    
7. Answer the question of whether or not a judge will allow individuals with felony convictions, as well as individuals with severe mental challenges, to testify at a trial.
    
8. Explain the purpose of witness impeachment, and specifically when a witness may be impeached by the opposing attorney.
    
9. Describe what is involved in impeaching a witness based on bias. Consider a prior inconsistent statement, and other grounds on which to impeach a witness.
    
10. Explain the difference between present recollection refreshed and past recollection recalled.

SUMMARY: Under the common law, there were strict qualifications on who was entitled to be a witness based on age, race, religion, conviction of a crime, mental capacity, marriage, and whether an individual was a party to the case. The federal rule is that virtually any witness whose testimony is relevant to the case should be allowed to testify unless the testimony is prohibited by another federal rule. Federal Rule 601 states that “[e]very person is competent to be a witness unless these rules provide otherwise.”

A witness is considered competent to testify who is able to understand the meaning and consequences of an oath or affirmation, possesses personal knowledge, and has the capacity for memory and narration. States are divided over the competence of a witness whose testimony is based on hypnosis. The competency of child-witnesses has posed a continuing challenge for courts, particularly in childhood abuse cases in which the credibility of the child-victim is central to the case. Most states stipulate that children over 10 are competent to testify. Children under 10 may testify who are found by the judge after examination to be able to accurately and truthfully testify. The Federal Rules of Evidence disqualify two categories of individuals from testifying as a witness, judges and jurors.

Most states and the federal government recognize spousal competence although a spouse may refuse to consent to testify based on the spousal testimony privilege and the marital communications privilege. These privileges against testifying are subject to exceptions involving crimes against the person or property of the spouse or children. Recognition of the spousal privilege in domestic abuse cases would be contrary to public policy and would allow a spouse to pressure the other spouse into refusing to testify. In some states, a spouse may be compelled to testify in criminal prosecutions for bigamy and child abandonment or murder or rape outside of the marriage. A witness is not incompetent to testify based on religion, criminal conviction, or mental incapacity.

The credibility of a witness may be impeached based on various grounds including bias, prior felony conviction, crimes involving a dishonest act or false statement, character for truthfulness, uncharged crimes and immoral acts, prior inconsistent statements, and physical and psychological incapacity. A witness who is impeached may be rehabilitated by the party who called the witness.

Rehabilitation testimony is required to directly respond to the attack directed against the witness. The two methods of assisting a witness’s memory on direct examination are present recollection refreshed and past recollection recorded. A witness may not be available to testify for various reasons, such as illness, death, flight, or a desire to avoid the trial. The hearsay rule provides that statements under oath at a prior court hearing on the same matter may be introduced at trial if the witness is unavailable. The party against whom the evidence is introduced must have had the opportunity to cross-examine the witness. States have various mechanisms to preserve the testimony of a material witness who it is believed may be unavailable at trial. This includes videotaping sworn testimony and sworn testimony on the record subject to cross-examination by the opposing party.