Bevilacqua testified before a grand jury eight years ago on the same topic. But his lawyers say the prelate, who retired in 2003 after 15 years leading the archdiocese, has dementia and cancer and is now too sick to endure what could be days of interrogation.
Sarmina called the hearing to see for herself. If she deems him fit to testify, the videotaped deposition could start Oct. 19.
When the question of competency crops up in criminal cases, it usually focuses on defendants' ability to understand charges and make lucid decisions about their defense. Experts say battles over the competence of witnesses are far less common, in part because the standard is typically low.
"It would be highly, highly unusual for a judge to disqualify a witness from testifying," said James A. Cohen of Yardley, a professor at Fordham University Law School. "You can take a 5-year-old and once the 5-year-old says, 'I know it's bad to lie,' that witness will be qualified to testify."
The scenario in this case is also unusual because Bevilacqua's mental fitness isn't being challenged by either side in the criminal case. His lawyer, Brian J. McMonagle, is the one who has argued to the judge that the cardinal shouldn't testify, at least not in public.
At a hearing last month, McMonagle accused prosecutors of pressing for the public testimony to make the cardinal "walk the gauntlet" under a media spotlight. (The judge has issued a gag order barring the lawyers and defendants from commenting outside the courtroom.)
Pennsylvania's criminal code cites four conditions for declaring a witness incompetent: if he cannot express himself, doesn't understand his duty to tell the truth, has an impaired memory, or has been, at any relevant time, "incapable of perceiving accurately."
