evidence - competency of a witness

Rules: 601(a), 603, 610, 604, 504(b), 605, 606, 601(b)

Rule 601(a) - competency to testify in general

FED RULE 601. COMPETENCY TO TESTIFY IN GENERAL

Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.

TEX Rule 601.  Competency to Testify in General; “Dead Man’s Rule”

(a) In General. Every person is competent to be a witness unless these rules provide otherwise. The following witnesses are incompetent:

(1) Insane Persons. A person who is now insane or was insane at the time of the events about which the person is called to testify.

(2) Persons Lacking Sufficient Intellect. A child—or any other person—whom the court examines and finds lacks sufficient intellect to testify concerning the matters in issue. 

Rules 603 - Oath or Affirmation to Testify Truthfully

FED AND TEX

Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.

Rule 610 - Religious Beliefs or Opinions

FED AND TEX

Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.

Rule 604 - Interpreter

FED AND TEX

An interpreter must be qualified and must give an oath or affirmation to make a true translation.

Rule 601(b) - the dead man’s rule

(b) The “Dead Man’s Rule.” 

(1) Applicability. The “Dead Man’s Rule” applies only in a civil case:

(A) by or against a party in the party’s capacity as an executor, administrator, or guardian; or

(B) by or against a decedent’s heirs or legal representatives and based in whole or in part on the decedent’s oral statement.

(2) General Rule. In cases described in subparagraph (b)(1)(A), a party may not testify against another party about an oral statement by the testator, intestate, or ward. In cases described in subparagraph (b)(1)(B), a party may not testify against another party about an oral statement by the decedent.

(3)  Exceptions. A party may testify against another party about an oral statement by the testator, intestate, ward, or decedent if:

(A) the party’s testimony about the statement is corroborated; or

(B) the opposing party calls the party to testify at the trial about the statement.

(4) Instructions. If a court excludes evidence under paragraph (b)(2), the court must instruct the jury that the law prohibits a party from testifying about an oral statement by the testator, intestate, ward, or decedent unless the oral statement is corroborated or the opposing party calls the party to testify at the trial about the statement.

NO FED RULE EQUIVALENT

Rule 504(b) - Spousal Privileges

(b) Privilege Not to Testify in a Criminal Case.

(1) General Rule. In a criminal case, an accused’s spouse has a privilege not to be called to testify for the state. But this rule neither prohibits a spouse from testifying voluntarily for the state nor gives a spouse a privilege to refuse to be called to testify for the accused.

(2) Failure to Call Spouse. If other evidence indicates that the accused’s spouse could testify to relevant matters, an accused’s failure to call the spouse to testify is a proper subject of comment by counsel.

(3) Who May Claim. The privilege not to testify may be claimed by the accused’s spouse or the spouse’s guardian or representative, but not by the accused.

(4) Exceptions. This privilege does not apply:

(A) Certain Criminal Proceedings. In a criminal proceeding in which a spouse is charged with:

(i) a crime against the other spouse, any member of the household of either spouse, or any minor child; or

(ii) bigamy under Section 25.01 of the Penal Code.

(B) Matters That Occurred Before the Marriage. If the spouse is called to testify about matters that occurred before the marriage.

NO FED EQUIVALENT

Rule 605 - Judge’s Competency as a Witness

FED and TEX

The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.

Rule 606 - Juror’s Competency as a Witness

FED

(a) At the Trial. A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.

(b) During an Inquiry into the Validity of a Verdict or Indictment.

(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.

(2) Exceptions. A juror may testify about whether:

(A) extraneous prejudicial information was improperly brought to the jury’s attention;

(B) an outside influence was improperly brought to bear on any juror; or

(C) a mistake was made in entering the verdict on the verdict form.

TEX - Same except for the exceptions in (b)(2)

(2) Exceptions. A juror may testify:

(A) about whether an outside influence was improperly brought to bear on any juror; or

(B) to rebut a claim that the juror was not qualified to serve.