By Kemarah Thermidor '27
Judges have a high standard in how they approach the law, with the position requiring impartiality, expertise, and integrity. (1) While they operate as major characters in the legal process, judges are realistically still limited in their ability to make consistent rulings across all cases. Still, as it currently stands, the criteria for assessing the quality of a witness is broad, often relying on the discernment of a judge. The high benchmark required of judges yields them the ability to wield substantial influence in the legal process. While this is sensible for several aspects of court procedures, the broadness of evidence permitted in court—specifically what dictates a “credible witness”—lends room to error and inconsistency in the application of the law.
The current standard for judicial qualification and disqualification of a witness’s testimony was conveyed in 1875 in Nudd v. Burrows. (2) In a business arrangement gone awry, the testimony of witnesses in this case was imperative in the court’s final decision. The quality of witness testimony was brought into question by the defense, arguing that claims “not being made in the presence of either of the defendants nor brought to the knowledge of either, could not be used to prejudice them.” (3) The Circuit Court of the United States for the Northern District of Illinois overruled this objection, but the Supreme Court found that certain trial testimony should have been disregarded due to irrelevance and potential to bias the jury. (4)
Acknowledging an error during the appeal process is a good sign of the effectiveness of the appellate court system but demonstrates an inconsistency in applying witness qualifications. While this was before the establishment of a clear legal framework for approaching the qualification of witness testimony as evidence in court, it also emphasizes the standard of allowing judges to fill this role.
The sentiment of judicial discretion concerning the acceptance or rejection of witness testimony in a trial is seen in Nudd v. Burrows but legally instated in 1972 with the Federal Rules of Evidence. (5) It’s reasonable to think that the official criteria for trial evidence would lead to clearer regulations and restrictions, but it has served to restrict the full execution of the law by enforcing a disproportionate power of determination to judges. This holds in specific reference to Rule 601 of the FRE, which upholds that “every person is competent to be a witness unless these rules [in reference to the rest of Article VI] provide otherwise.” (6) The wording of this rule may be misleading, as an initial read leads to the assumption that the competency of a witness is established with similar logic of “innocent until proven guilty”; however, the room for error is in what is left unsaid. A complete explanation of the implications of Rule 601 includes the trial judge’s position of determining the competency of said witness with the reasoning that “standards of mental capacity have proved elusive in actual application.” (7) An additional element of Rule 601 which lends room to disuniformity in application is its reliance on state standards for witness competency in federal trials. There is much to be said about the flexibility of approaching each court case on a unique basis, but in the context of witness competency, inconsistent court procedures and rulings can undermine the judicial system’s constancy. Despite the FRE standard’s broad oversight of the heavy requirement of subjective judgment, the potential for contradiction, and extreme variability in case results across federal courts, the standard of leaving a witness’s competency to testify up to a judge has endured.
In certain circumstances, witness testimony can significantly impact the outcome of a case, which places vital importance on assessing the competency and credibility of a qualified witness. The list of witnesses that can testify “after being ruled competent to do so” hosts a series of individuals (who some might not consider such) including felons, addicts, and paid informants. (8) This list hosts an understandable introduction of conflict in opinion, even amongst the judges who are tasked with determining the competency of individuals to serve as witnesses. The cases that demonstrate this best are unfortunately the ones with much at stake in regard to ensuring justice.
While not directly addressing the judicial qualification of witnesses, Coy v. Iowa (1988) explores the additional judicial discretion of supervising witness testimony (if deemed competent). In a previous trial, the Iowa court ruled John Coy guilty of two counts of sexual assault against a minor, a significant piece of evidence being the testimony of the victims involved. A unique factor of the nature of these witnesses’ testimonies was the placement of a screen between them and Coy, in accordance with state statutes protecting child victims of abuse. (9) Coy’s objections that his “right to be confronted with the witnesses against him” (in reference to the Confrontation Clause of the Sixth Amendment) was violated, an objection that the court did not sustain. (10) This did not stop Coy, whose persistence led to the Coy v. Iowa SCOTUS decision that Coy’s rights were violated, “since the screen…enabled the complaining witnesses to avoid viewing [John Coy].” (11)
There are multiple components of both the approach of the court and the decision of the appellate court that heighten the serious nature of this case’s final verdict and those like it. The Iowa court’s failure to standardize the mechanisms of witness testimony beyond state regulations—to ensure the witnesses’ testimonies would retain their permissibility across multiple courts—led to the reversal of a conviction that presumably held great importance to the victims involved. Emphatically, this reversal was not based on evidence showcasing Coy’s innocence, but rather on the dismissal of evidence that proved his guilt. Furthermore, the Supreme Court’s decision to uphold Coy’s appeal was based on an effort to maximize objectivity in interpreting the law.
With all this in consideration, can blame be placed on deciding judges for their differing opinions if the criteria (FRE Rule 601.) itself encourages these disparities due to its heavy focus on subjective analysis? Namely, the ruling of Coy v. Iowa was significantly contradicted just 2 years later in Maryland v. Craig (1990). In a similar case involving the sexual abuse of a minor, the U.S. Supreme Court upheld the Maryland court’s rejection of Sandra Craig’s duplicate Coy appeal, reasoning that “the Confrontation Clause does not guarantee criminal defendants an absolute right to a face-to-face meeting with the witnesses against.” (12) These quick changes in what is esteemed as credible witness testimony, all else being equal, would be trivial if not for the fact that these inconsistencies impact real individuals. While a stricter adjustment of the FRE may not capture every case’s isolated details, it would provide better clarity for judges when determining if something is permissible by the court. Coy v. Iowa focused on the defendant and those individual rights, while Maryland v. Craig prioritized the victim. While these cases involved children, a population that most would agree should be prioritized regarding their safety and psychological well-being, there are instances where the credibility of a witness may supersede the mechanisms of testifying.
As mentioned, a judge does not have to consider the competency of a witness concerning matters such as criminal history or drug abuse, but they can under their discretion if potential witnesses are deemed not credible. Research on the sentencing of judges shows that they “are heavily influenced by schemas on their past experiences…[and]...susceptible to critical thinking errors and a reliance on false stereotypes.” (13) It’s reasonable to assume that these personal attitudes, when mixed with the broadness of guidelines laid out by the FRE, can encourage subjective interpretation to the degree where judges inaccurately qualify or disqualify a witness. Consider Manson v. Brathwaite (1977), where Officer James Glover acted as the sole eyewitness testimony to the identification of an illegal drug purchase connected to Glover Brathwaite; the Court deemed Glover a competent witness “under the totality of the circumstances,” meaning that circumstances such as accuracy and certainty proved ideal. (14) Besides the fallibility of eyewitness testimony as proven by research, a case conclusion based on the testimony of one individual raises many judicial uncertainties. (15)
In contrast, just 5 years earlier in Cool v. United States (1972), the SCOTUS emphasized the risks of relying on a single witness (an accomplice to the crime) to determine the outcome of a case along with the potential effect of a judge’s instructions to a jury on how to examine certain witness testimony. The Court’s assertion that the trial judge’s use of judicial discretion in allowing a single and potentially compromised witness to operate as primary evidence for the jury—all while not clarifying the burden of proof—led to “[inconsistency] with the constitutionally rooted presumption of innocence.” (16) From initial analysis, it would appear that Cool v. United States pays greater attention to detail concerning the outcomes of the case and the implications for the defendant’s rights to a fair trial. Notably, there was comparably harsher scrutiny when the sole witness was an accomplice to the crime versus an officer.
In an adversarial criminal justice system where legal representatives often rely on a precedential prescription to defend or prosecute individuals, a reliable interpretation of the law is necessary to ensure justice. Cases such as Coy v. Iowa and Maryland v. Craig illustrate what happens when state legislation is considered differently concerning witness testimony. This lack of uniformity can generate distrust in the legal system; if highly similar cases can have opposite results, where is the line drawn for assessing the objectivity of leaving witness qualification to judges?
In the words of Associate Justice Felix Frankfurter, “judicial judgment must take deep account...of the day before yesterday in order that yesterday may not paralyze today.” (17) With witnesses playing pivotal roles in many trials, a more specific outline for witness competency would remove undue pressure from judges and reinforce consistent trial outcomes.
Endnotes
United States Courts, Code of Conduct for United States Judges, United States Courts (2019), https://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges.
Nudd v. Burrows, 91 U.S. 426 (1875), Justia Law (2024), https://supreme.justia.com/cases/federal/us/91/426/.
Ibid.
NUDD ET AL. v. BURROWS, ASSIGNEE., LII / Legal Information Institute (2024), https://www.law.cornell.edu/supremecourt/text/91/426.
Rules: Federal Rules of Evidence, Fjc.gov (2023), https://www.fjc.gov/history/work-courts/rules-federal-rules-evidence.
TITLE 28, APPENDIX-RULES OF EVIDENCE Rule 601, (2012), https://statecodesfiles.justia.com/us/2012/title-28/appendix-title-28/1279/1311/rule-601/rule-601.pdf.
Ibid.
Federal Rules of Evidence - Witnesses | Office of Justice Programs, Ojp.gov (2024), https://www.ojp.gov/ncjrs/virtual-library/abstracts/federal-rules-evidence-witnesses.
Coy v. Iowa, 487 U.S. 1012 (1988), Justia Law, https://supreme.justia.com/cases/federal/us/487/1012/.
confrontation clause, LII / Legal Information Institute, https://www.law.cornell.edu/wex/confrontation_clause.
Ibid.
Maryland v. Craig, 497 U.S. 836 (1990), Justia Law, https://supreme.justia.com/cases/federal/us/497/836/.
Stephen Porter & Leanne Brinke, Dangerous decisions: A theoretical framework for understanding how judges assess credibility in the courtroom, 14 Legal and Criminological Psychology 119 (2009).
Manson v. Brathwaite, 432 U.S. 98 (1977), Justia Law, https://supreme.justia.com/cases/federal/us/432/98/.
Stephen Chew, Myth: Eyewitness Testimony is the Best Kind of Evidence, Association for Psychological Science (2018), https://www.psychologicalscience.org/uncategorized/myth-eyewitness-testimony-is-the-best-kind-of-evidence.html.
Cool v. United States, 409 U.S. 100 (1972), Justia Law (2024), https://supreme.justia.com/cases/federal/us/409/100/.
Contributors to, former Associate Justice of the United States Supreme Court (1882-1965), Wikiquote.org (2007), https://en.wikiquote.org/wiki/Felix_Frankfurter.
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