§ 18.04 ABILITY TO COMMUNICATE

• Jurisdiction: United States

§ 18.04. ABILITY TO COMMUNICATE

On rare occasions, a witness's competency to testify has been challenged for lack of the ability to communicate. In Byndom v. State,¹⁹ the Arkansas Supreme Court rejected such a challenge concerning a 25-year-old rape victim who suffered from cerebral palsy and mental retardation. The court ruled that she was able to testify "by virtue of her gestures, facial expressions, ability to sign 'yes' and 'no,' and by the limited use of the yes/no function key on her Dynavox computer. To hold otherwise would render a segment of society incompetent merely because they cannot communicate as effectively and in the same manner as those who can speak through oral, written, or signed language."²⁰

Except where the witness's disability precludes cross-examination,²¹ the courts have permitted witnesses to testify through a variety of means.²²

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Notes:

^[19] 39 S.W.3d 781 (Ark. 2001).

^[20] Id. at 787. A Dynavox computer synthesizes speech for its users; it allows the user to "speak" the phrase or word indicated.

^[21] See People v. White, 238 N.E.2d 389, 390 (Ill. 1968) (a partially paralyzed and bed-ridden person could communicate only by raising the right knee to answer affirmatively and remaining still to answer negatively; reversed).

^[22] E.g., United States v. Bell, 367 F.3d 452, 463 (5th Cir. 2004) ("George Cotton is deaf and mute. He is able to effectively communicate through a form of sign language, a system of grunts and gestures, that is understood by family and friends familiar with him. The district court held a competency hearing before Bell's trial to determine whether George would be able to testify and who should serve as interpreter when George testified."); People v. Spencer, 457 N.E.2d 473, 479 (Ill. App. 1983) (31-year-old deaf and speech-impaired rape victim who was mildly to moderately retarded could communicate through gestures and references to anatomically-correct dolls, picture symbols, numbers...