Oregon Supreme Court November 1, 2012

by: Erick Tobias and Abassos • November 1, 2012 • no comments

Witness Competency Requires Sufficient Ability to Communicate Perceptions

For a witness to be competent, he must have sufficient ability to perceive, recollect and communicate such that his testimony will be worthwhile. Here, the state wanted to introduce the testimony of defendant's autistic son, Z. The accommodations necessary for Z to testify "would effectively exclude most questions involving intangible actions, past events, persons and objects not present at trial, distances, times, dates, and locations." Thus, his severely limited ability to communicate his perceptions renders him incompetent to testify.

A video in which Z allegedly leads investigators in a car to the scene of the crime was properly excluded:

• Its probative value depends upon the jury accepting a number of assumptions and inferences,
• It contains a number of suggestive and leading questions by the investigators, and
• It would mislead the jury because it would likely be given inordinate attention at trial.

State v. Sarich, __ Or __ (2012).