Evidence:

1.  The key prosecution witness in a criminal trial admits on cross-examination that he has been surreptitiously consuming opium throughout his testimony.  The defense attorney asks the judge to strike the witness's testimony on grounds of competence.  Should the request be granted?

2.  The defendant in a civil case wishes to testify.  He swears to tell "the truth and nothing but the truth," but will not swear or promise to tell "the whole truth."  He explains that "no one ever knows the whole truth about anything."  Defense counsel objects to the plaintiff's testimony on grounds of competence.  How should the judge rule?

3.  The defendant in an automobile accident case calls the plaintiff's five-year-old son, who was four at the time of the accident.  The plaintiff claims her son is incompetent to testify, because his memory of the accident is too vague, because testifying about it would traumatize him, and because he does not understand what it means to swear or to promise to tell the truth.  How should the judge respond?

      Section 795(a) of the California Evidence Code provides as follows:

The testimony of a witness is not inadmissible in a criminal proceeding by reason of the fact that the witness has previously undergone hypnosis for the purpose of recalling events which are the subject of the witness' testimony, if all of the following conditions are met:

(1) The testimony is limited to those matters which the witness recalled and related prior to the hypnosis.

(2) The substance of the prehypnotic memory was preserved in written, audiotape, or videotape form prior to the hypnosis.

(3) The hypnosis was conducted in accordance with all of the following procedures:

          (A) A written record was made prior to hypnosis documenting the subject's

      description of the event, and information which was provided to the hypnotist

      concerning the subject matter of the hypnosis.

(B) The subject gave informed consent to the hypnosis.

(C) The hypnosis session, including the pre- and post-hypnosis interviews, 

      was videotape recorded for subsequent review.

(D) The hypnosis was performed by a licensed medical doctor, psychologist,

      licensed clinical social worker, or a licensed marriage, family and child counselor

      experienced in the use of hypnosis and independent of and not in the presence of

      law enforcement, the prosecution, or the defense.

(4) Prior to admission of the testimony, the court holds a hearing . . . at which the proponent of the evidence proves by clear and convincing evidence that the hypnosis did not so affect the witness as to render the witness' prehypnosis recollection unreliable or to substantially impair the ability to cross-examine the witness concerning the witness' prehypnosis recollection. . . .

      The California courts have not applied §795(a) to the testimony of criminal defendants.  See People v. Aguilar, 2667 Cal. Rptr. 879 (Cal. App. 1990).  If so applied, would the statute be constitutional?  Is the statute constitutional as applied to other witnesses called by criminal defendants?

1.  Following her client's conviction, an attorney receives a letter from one of the jurors, admitting that the jury treated the deliberations "as a joke" and spent the entire time "singing camp songs."  A courtroom deputy who sat outside the jury room tells the lawyer that throughout the deliberations he heard laughter and boisterous singing.  In support of his motion for a new trial, the defendant seeks to introduce the letter and to have both the juror and the deputy testify.  The prosecutor argues none of the evidence is admissible.  How should the judge rule?

2.  Because the prosecutor's office is on the same hallway as the jury room, the defense attorney suspects that the prosecutor may have heard the laughter and singing.  She wishes to call him to the stand and examine him under oath.  The prosecutor objects, citing the advocate-witness rule. How should the judge respond?

3.  At the beginning of a civil trial, the judge instructs the jurors not to talk to anyone about the case while it is proceeding, including the lawyers.  During the trial one of the jurors passes the plaintiff's attorney in the hallway and says, "You've got 'em running!"  The attorney reports the remark to the judge and opposing counsel.  May the judge question the juror under oath about the incident?  May the judge question the juror under oath about the juror's continued ability to be fair and open-minded?

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