#22 - Witness and competency discussion

Applications Question - Chapter 5 Witness & Competency - page 80

Consider the following hypothetical situation.

Maria is a six year-old Native American child. She live on a reservation in the Southwest. She was sexually molested by Enrique, another Native American who lived on the reservation. Enrique was charged in Federal Court for child molestation (Federal law governs this matter.)

1. Is Maria competent to testify?
Answer: Maria is presumed competent to testify in this hypothetical, pursuant to the Federal Rules of Evidence. Children, even young ones, are not incompetent under the Federal Rules as a matter of law.

2. Assume that Maria is unable to accurately describe what occurred at the time she was molested. Does this make her incompetent to testify. If not, what is the consequence of her inability to accurately describe the incident?
Answer: Maria’s inability to accurately describe what occurred at the same time she was molested does not necessarily render her incompetent to testify, although given her young age, the judge might make a determination that she lacks minimum credibility. More likely, the court would allow Maria to testify to the best of her ability. In such circumstances, the jury would be permitted to weigh her testimony and its accuracy, and reach its own conclusions. The likelihood of this outcome depends upon how “inaccurate” Maria’s recall is. If she has general recall of the events, but not details, she will likely be allowed to give testimony. If she remembers only what she has been told by others, or is incapable of remembering anything specific about what occurred, then her testimony will be inadmissible because she cannot testify from personal knowledge. If she radically changes the story each time she tells it, she most likely lacks the minimum credibility to offer testimony at all

Consider the following hypothetical situation.

Jordan is standing on a street corner when he hears shots ring out. He hears someone yell, "Oh no! Carmen just shot Abel!"

2.__ Can Jordan testify that Carmen shot Abel? Why or why not?__
Answer: Jordan cannot not testify that Carmen shot Abel because he has no personal knowledge of that occurrence. He can only testify that he heard the declarant yell that Carmen shot Abel. (This will be discussed at greater length in the chapters on hearsay