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University of Baltimore School of Law
Murphy, Joseph F.

Evidence Outline
“Competency” to Testify
Child and/or Mentality Imparied Person
C.J. 9-103 – In a criminal trial, the age of a child may not be the reason for precluding a child from testifying.
Bruce v. State
Trial judge is looking for:
Does the child have the ability to understand the importance of telling the truth?
Does the child possess sufficient understanding of what he or she was observing and have the ability to communicate his observations?
Does the child have the ability to recall events accurately?
The judge males the finding and decides credibility.

Md. Rule 5-606
At the Trial. A member of a jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.

(b) Inquiry Into Validity of Verdict.

(1) In any inquiry into the validity of a verdict, a juror may not testify as to (A) any matter or statement occurring during the course of the jury’s deliberations, (B) the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent or dissent from the verdict, or (C) the juror’s mental processes in connection with the verdict.

(2) A juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying may not be received for these purposes.

(3) A juror’s notes made in accordance with Rule 2-521 (a) or HYPERLINK “” \t “_top” Rule 4-326 (a) may not be used to impeach a verdict.

Wernsing v. General Motors Corp.
Facts: supposedly defective cruise control causes a guy to hit a lady. When jury is deliberating, they consulted a dictionary. Jurors could not testify, but the baliff could.
GM seeks a new trial. Trial judge did not grant. Overturned on appeal.
Fed Rule of Evid. 606: Generally, a juror is not competent to impeach his or her verdict.
Md Rule differs slightly – a juror is not competent to impeach his or her verdict, anybody other than the juror is competent to testify to the fact that something was in the jury room that should not have gotten to the jury.
Party to whom the Dean-man’s statute applies
C.J. 9-116 – A party to a proceeding by or against a personal representative, heir, devisee, distributee, or legatee as such, in which a judgment or decree may be rendered for or against them, or by or against an incompetent person, may not testify concerning any transaction with or statement made by the dead or incompetent person, personally or through an agent since dead, unless called to testify by the opposite party, or unless the testimony of the dead or incompetent person has been given already in evidence in the same proceeding concerning the same transaction or statement.
applies to all dead persons and persons who are alive but are deemed incompetent by a court of law [§9-116] Purpose to prevent individuals from defrauding the decedents estate by sealing the lips of the decedent forever.
Court does not want to be in a position in where only the dead or incompetent is aware of the truth. So seal the lips of the survivor with conversations between survivor and decedent to those things the deceased was in a position to contradict or corroborate. All other transactions are permissible.
When is the statute applicable?
If the decision of the litigation will change the estate (either larger or smaller)
Situations when the individual portions will change based on the outcomes of the litigation.
Who does it apply to?
Seals the lips of the surviving party
Does not apply to a witness
Can be situations when the deceased did not die until after his/her version of the truth has been given previously (deposition).
The protection of the statute can be waived. (does not happen often) Kaouris v. Kaouris,
Arguments for and against this:
Prevent honest people who should be entitled to a legitimate claim against the estate from doing so.
Does not prohibit the witness from testifying about alleged transactions between the scoundrel and the decedent.
Consistent with MD law. MD has similar statute
The idea is that the deadman’s statute seals the lips of the surviving party, but it does not apply to non-party witnesses – like the Farrah case. Husband assigns his claim to his wife, then tries to tesify.

Heil v. Zahn
shows you how the deadman’s statute operates
Heil was the housekeeper for Dr. Hammond and believed she was owed money that he promised her at his death.
She cannot testify to that. On cross examine, she was asked about it and answered that she expected money for payment on her services. This was objected to and sustained.
Art. 35 was where the deadman’s statute was at that time.
Court of appeals said that she was permitted to answer the question because the protection can be waived. Door was opened to evidence that would never have been admitted otherwise. There is nothing wrong with the cross exanimation, but it triggered the exception.
P became the witness for the esta

Safeway v. Combs
Lady slipped on ketchup

Store managers wife’s testimony was excluded. She heard him say to watch out.
Not hearsay b/c it was an utterance to prove an operative fact

Operative fact- not in the catch-all res justa
P – proves that there was ketchup on the floor
Defense needs to prove that she was warned about it. Ketchup on the floor already proven. Warning to show what she knew and when she knew it

Sparks v. State
Sparks- charged with possession of drugs with the intent to sell
His defense is entrapment
Response to this defense. Then the P has to prove he had a predispotion.

Hearsay – what the undercover officers said to him. Court does not accept that because how else can you prove entrapment.
Not being offered to prove the truthfulness because the officers were not actually in a criminal conspriracy with him. Times when the statement being made is the releavant point. Then it is admissible.

Words of deed, gift, contract, carry legally operative consequences that create rights, responsibility, and remedies – none of these are excluded in the rule against hearsay
Implied Assertions
Bernadyn v. State
Statements that are indicative the state of mind of the declarent.
Implied assertions not allowed in MD, but it is allowed in Federal court.
In England – Wright v. Tatum –
Relatives who would have gotten the will, challenged the will.
Question of whether guy was competent to make a will
Evidence was presented in the form of letters.
The argument was that how is this different from writing letters to the judge.
Those people would still have to come in and testify.

Example – seaworthiness of ship being proved or disproved. Captain allowed his family on a ship and it sunk. That would not be allowed to prove that he believed the ship to be seaworthy because it would be like him “saying” it, under this Wright v. Tatum rule.

Used to be admitted- no good reason not to- gambling cases

Bernadyn – who had control over the location where the drugs were found?
Bills, correspondence addressed to the D were admitted in the