EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, October 17, 2007

Mexican Standoff: Accused Border Patrol Agent Seeks to Have Witnesses Found Incompetent to Testify

U.S. Border Patrol Agent Nicholas Corbett is on trial in U.S. District Court in Tucson, Arizona.  He's charged with second-degree murder, mansluaghter, and negligent homicide in connection with the death of Francisco Dominguez, a 22 year-old illegal immigrant from Mexico.

Corbett's attorneys have made a baffling motion seeking to preclude the testimony of three of Dominguez's relatives, who witnessed Dominguez's death and would testify that Corbett shot Dominguez and was not acting in self-defense. 

According to Corbett's attorneys, Dominguez's relatives did not speak with U.S. authorities about the circumstances involved in the shooting until after they talked with a Mexican official, who told them that a civil lawsuit seeking monetary damages would be filed on their behalf against Corbett and the United States.  The prosecutor claims that Dominguez's relatives actually spoke with a U.S. detective before speaking with the Mexican official.

Of course, the timing of their statements is important if defense counsel will try to impeach their testimony at trial by showing bias, but this is not the purpose of the motion.  Instead, Corbett's attorneys are claiming that the contact with the Mexican official and his promises rendered Dominguez's relatives incompetent to testify because their testimony was irrevocably contaminated by statements made by the Mexican official.

Corbett's attorneys are either being disingenous in making their motion or misunderstanding the Federal Rules of Evidence.  Defendants can challenge their identification by eyewitnesses based upon authorities using an unduly suggestive procedure, but in this case Corbett does not dispute that Dominguez' relatives identified Corbett as the shooter before talking with the Mexican official (the only question is whether Corbett was acting in self-defense).

Thus, the only challenge to the witness' competency could come under Federal Rules of Evidence 601-603.  Federal Rule of Evidence 601 states that generally every person is competent to be a witness, Rule 602 states that lay witnesses must have personal knowledge to testify, and Rule 603 states that every witness must take the oath before testifying.

As the prosecutor has noted, very few witnesses are precluded from testifying based upon lack of competency.  Those excluded typically include young children and incompetent individuals who, for instance, do not understand the difference between right and wrong, could not be subjected to meaningful cross-examination, etc.  Because none of these factors is involved here, Corbett does not even have a colorable claim that the witnesses should be found incompetent to testify at trial.



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