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November 19, 2008
Competent Opinion: Court Properly Finds That Mental Incompetence Ruling Didn't Render Witness Incompetent To Testify At Trial
The recent opinion of the United States District Court for the Western District of North Carolina in Witherspoon v. United States, 2008 WL 4891117 (W.D.N.C. 2008), is further evidence that courts deem almost any witness competent to testify under Federal Rule of Evidence 601. In Witherspoon, Marvin Harold Witherspoon pled guilty to aiding and abetting the inducement of a person under the age of 18 to engage in sexually explicit conduct for the purpose of producing visual depictions of such conduct, which visual depictions were produced using materials that had been transported in interstate commerce, in violation of 18 U.S.C. Sections 2251(a) and 2
Witherspoon thereafter moved to vacate, alleging, inter alia, that the government committed prosecutorial misconduct and created a Brady error by not disclosing that the alleged victim was found to be mentally incompetent prior to Witherspoon's guilty plea. Specifically, the alleged victim was deemed incompetent as a result of his parents seeking a guardian for him because of his substance abuse, an unspecified learning disability, and moderately severe bipolar disorder, requiring long-term residential care.
Witherspoon claimed that evidence of the alleged victim being declared mentally incompetent was exculpatory, thus triggering Brady, because it would have meant that he was incompetent to testify against Witherspoon. The court, however, disagreed, finding that the alleged victim was competent to testify under Federal Rule of Evidence 601, which states that:
"Every person is competent to be a witness except as otherwise provided in these rules. 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."
As I have noted before, very few witnesses are deemed incompetent to testify under Rule 601, and according to the court, the alleged victim would not have been one of them. Instead, the court noted that the Fourth Circuit has found that "all witnesses are presumed competent to testify and may only be disqualified if the witness does not have knowledge of the matters about which he is to testify, lacks the capacity to recall the events about which he is to testify, or does not understand the duty to testify truthfully." The court then concluded that "while the Clerk of Superior Court in Caldwell County found the minor to be unable to manage his own affairs, none of the assertions made by the victim's parents in seeking the guardianship and none of the Clerk's findings suggest that the victim was unable to recall the events about which he was to testify or appreciate his duty to testify truthfully."
(In addition, the court found that "contrary to [Witherspoon]'s assertions that the fact of the victim's incompetency would have helped his case, former Assistant United States Attorney...Brian Cromwell makes clear in his affidavit that [Witherspoon] may have been exposed to a higher range of imprisonment had Mr. Cromwell been aware of the victim's incompetency, because the Government would have considered an offense level enhancement based on the victim's incompetency.").
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Nevertheless, why isn't this a Brady violation? I think the defense had a right to know this, and the government a duty to disclose it. Whether the witness was in fact competent to testify was another question, but a declaration of incompetence bears on one's competence to testify. Furthermore, the facts on which the finding of incompetence were made--drug usage, etc., certainly furnish a fertile field for cross examination.
Posted by: Greg Jones | Nov 19, 2008 1:24:13 PM
I would guess it was because Witherspoon solely argued that the evidence was material because it rendered the alleged victim incompetent to testify at trial, not that it could have been used as impeachment evidence. If he argued the latter point, I think that the court would have found a Brady violation because courts have found that the failure to disclose evidence which would impeach a key prosecution witness can form the basis for a Brady violation.
Posted by: Colin Miller | Nov 20, 2008 8:17:35 AM