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WITNESSES

GENERAL RULE OF COMPETENCY [FED. R. EVID. RULE 601]

Every person is competent to be a witness except as otherwise provided in these rules.

U.S. v. Ramirez, 871 F.2d 582 (6th Cir. 1989) [severe cocaine addiction making co- conspirator’s memory unreliable did not affect competency to testify as competency is matter of status not ability, but would affect witnesses’ credibility]; U.S. v. Cervantes- Pacheco, 826 F.2d 310 (5th Cir. 1987) [an informant who is compensated on return for testimony is nonetheless competent to testify. However, the defendant may cross-examine the witness on the issue of the credibility of a “purchased” witness].

However, a contingent fee paid to produce evidence against “a particular named defendant as to crimes not yet committed” may render his testimony inadmissible;

See      U.S. v. Cervantes-Pacheco, 826 F.2d at 312; or, where the fee is contingent upon conviction,

See      U.S. v. Garcia, 528 F.2d 580, 587 (5th Cir. 1976).

However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law.

HYPNOTICALLY ENHANCED TESTIMONY CANNOT BE AUTOMATICALLY EXCLUDED

Because criminal defendants have a right to testify in their own behalf under the Due Process Clause of the Fourteenth Amendment, the compulsory process clause of the Sixth Amendment, and the Fifth Amendment’s privilege against self-incrimination, an accused’s hypnotically enhanced testimony cannot be automatically excluded. Instead, the trial court must assess each request for admission of such testimony on a case-by-case basis.

See                  Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987).

Furthermore, where a victim’s testimony is hypnotically enhanced procedural safeguards must be used, profiling a state funded expert on hypnosis to an indigent defendant, to ensure a fair trial. At least one chart has held that not providing an expert for the defendant resulted in a fundamentally unfair trial and required reversal. Little v. Armontraut, 835 F.2d 1240 (8th Cir. 1987).

COMPETENCY OF JUDGE AS WITNESS [FED. R. EVID. RULE 605]

 The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.

WHO MAY IMPEACH [FED. R. EVID. RULE 607]

The credibility of a witness may be attacked by any party, including the party calling him, however, counsel may not lead his own witness. FED. R. EVID. Rule 611(c).

See                  U.S. v. Hasenstab, 575 F.2d 1035 (2d Cir.), cert. denied, 439 U.S. 827 (1978);

U.S. v. Craig, 573 F.2d 513 (7th Cir.), cert. denied, 439 U.S. 820 (1978);

U.S. v. Frappier, 807 F.2d 257 (1st Cir. 1986);

The government may not bring on the testimony of a co-defendant for the sole purpose of impeaching him or her so that substantive evidence that would not otherwise be admissible will be heard by the jury under the guise of impeachment. U.S. v. Peterman, 841 F.2d 1474 (10th Cir. 1988).

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