Witnesses "witness evidence"

Rule 601. Competency to Testify in General

Every person is competent to be a witness unless these rules provide otherwise.

a.     Presumes all witnesses are competent to testify

b.     A federal judge can find that an individual witness’s ability to testify is so impaired that he can’t give meaningful testimony

c.     Child witnesses are competent if they have sufficient knowledge of the nature and consequences of an oath to tell the truth (Wheeler v. United States)

                                               i.     Difficult to show kids 3 and under are competent; more discretion for kids aged 4-6

d.     Some courts have held that hypnotically refreshed testimony when offered by a criminal defendant can’t be excluded; infringes on the right of a defendant to testify on his own behalf

Rule 605 -the judge

The presiding judge can not testify as a witness at the trial. A party need not object to preserve the issue.

Rule 606(a). The Juror at the Trial

A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.

Rule 606(b). The Juror in an Inquiry into the Validity of a Verdict or Indictment

After a verdict, a juror may not testify about:

1. what was said or happened in deliberations,

2. the effect of anything on a juror’s vote, or

3. any juror’s mental processes.

(No affidavits, either.)

Exceptions (a juror may testify about):

1. extraneous prejudicial information,

2. outside influence, or

3. a mistake on the verdict form.

Rule 602. Need for Personal Knowledge

A witness may testify only if there’s evidence sufficient to support a finding of personal knowledge.

a.     A witness can only testify to a matter if evidence is introduced that is sufficient to produce a finding that the witness has personal knowledge of the matter (McCray-El v. Shaw)

                                               i.     Evidence to prove personal knowledge can be the witness’s own testimony

                                             ii.     Doesn’t apply to expert witness testimony

b.     Personal knowledge = knowledge to be perceived by the physical senses or is a reasonable inference thereof

                                               i.     A broad recollection of the subject matter is sufficient; absolute certainty not required

c.     Low threshold; reasonable inferences are allowed, not speculation

Rule 603. Oath or Affirmation to Testify Truthfully

Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.

Rule 611 (a) Control by the Court

(a) The court should reasonably control the mode and order of examining witnesses and presenting evidence to:

1. determine the truth,

2. avoid wasting time, and

3. protect witnesses from harassment or undue embarrassment.

Rule 611 (b) Scope of Cross-Examination

(b) Cross-examination should be limited to the subject matter of direct and matters affecting credibility. The court may allow more, as if on direct.

Rule 611 (c) Leading Questions

(c) Leading questions should not be used on direct except as necessary. They are ordinarily allowed:

1. on cross, and

2. when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

Rule 612. Writing Used to Refresh a Witness’s Memor

When a witness uses a writing to refresh memory, the adverse party can (1) have it produced, (2) inspect it, (3) cross-examine the witness about it, and (4) introduce the parts that relate to the testimony. This is automatic if used while testifying, and discretionary if used before testifying. Unrelated parts are removed in camera. In a criminal case, if the prosecution doesn’t comply, the court must strike the testimony or declare a mistrial

Matches the lecture and the rule

• a, b: Refresh memory with a writing, and the writing doesn’t have to be admissible. The memory is the evidence. This is Doty v. Elias.

• c: Before testifying, access is discretionary with the court.

• d: While testifying, access is automatic, and you show the writing to opposing counsel first and wait for an objection. If none is sustained, the witness reads it silently and returns it. The “face down” detail is a practical add-on, and the lecture’s point is that the witness must not read it aloud.

• g: The opponent can cross-examine on the writing and introduce the parts that relate to the testimony.

Beyond the lecture material I have

• e: “If the document doesn’t jog the witness’s memory, the proponent can try to get the writing into evidence under a hearsay exception.” That is a different rule from 612. The exception it most likely means is recorded recollection (803(5)), which is separate from refreshing. The lecture didn’t make this point under 612. The key contrast is that under 612 the writing is not offered for its truth, so no exception is needed. If you go the 803 route, the writing is offered for its truth and needs one. Don’t blur the two on the exam.

• f: The limits on how many times a witness can refresh are not in the lecture I have. It’s probably from the casebook reading, so treat it as background, not as something the professor flagged.

What your notes leave out that the lecture stressed

1. “Exam trap”: The refreshed-recollection scenario is outside hearsay, not a hearsay exception. This is the main point of the Doty pairing.

2. In camera redaction of unrelated parts, with the deleted portion preserved for the record.

3. Criminal case: if the prosecution doesn’t produce the writing, the court must strike the testimony or declare a mistrial.

4. Reading aloud is the thing to avoid.