The Aphasic Witness

Action for damages for personal injuries arising out of a collision between P's car and D's bus. The accident took place in November 1990 at the intersection of Oak Park Avenue and Madison Street. This intersection is controlled by traffic lights. At trial the issue is who ran the traffic light. Prior to the accident, P had been a healthy, active 35-year-old policeman. He was taken unconscious from the scene of the accident, suffering from a head injury. When P regained consciousness, it was found that he had lost the power of reason and speech; restraints were needed to control him. Two weeks later his condition was slightly improved and he was sent home, but at the time of trial the injuries still affected his ability to speak coherently and intelligently. He could answer only simple questions. On direct examination, P gave his name, address, age, and the day and year of the accident but was unable to say the month in which the accident took place. He was able to testify that the accident took place at the Oak Park Avenue and Madison Street intersection and that there were traffic lights there. Further direct testimony was as follows:

Q: What street were you driving on when the accident happened?

A: Oak Park and Madison Street.

Q: Were there any traffic lights at Oak Park and Madison Street?

A: Yes.

Q: What direction were you going?

A: South.

Q: Now what was the color of the light as you approached and reached the intersection?

A: Green.

Q: What happened as you were going over? Tell the jury what happened.

A: Green and amber, amber and bus struck.

Q: What happened as you were going over the crossing?

A: I get hit.

Q: You got hit?

A: Yes.

Q: By what?

A: A bus.

Q: What do you next remember after that?

A: I don't remember.

There was no objection to P's competency at this point.

The cross-examination required 20 pages of transcript. In response to defense counsel's questions P could not say where he had been going. His answers often lacked consistency. He would testify differently to the same question. Sometimes his answers were incoherent and meaningless; however, some answers were corroborated by other credible evidence. At the conclusion of the cross-examination D objected and moved to strike P's direct and cross-examination. The judge conducted a voir dire on the issue. Medical experts testified that P understood the questions put to him but that his speech was impaired and that his mental condition made him unable to repeat simple phrases or frame his responses. The experts testified that P could answer single-word questions correctly for a while but that he would tire and become confused. This condition was diagnosed as "aphasia"--the inability to coordinate thoughts and use words to express them.

How should the judge rule? Should the direct and cross-examination be stricken on the grounds that the witness is incompetent to testify, or should the evidence go to the jury for whatever weight it decides to give it?