Witnesses

Rule 601 – Competency

Under Rule 601, every person is competent to be a witness unless rules provide otherwise. In civil cases, state law governs the witness’s competency regarding elements for which state law provides the rule.

Rule 602 – Judge’s Competency as a Witness

Under Rule 605, the presiding judge may not testify as a witness at trial. A party does not need to object to preserve the issue.

Rule 606 – Juror’s Competency as a Witness

Under Rule 606(a), a juror may not testify as a witness before other jurors at the trial they are serving. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.

Rule 602 – Personal Knowledge Requirement

Under Rule 602, witnesses may testify only about matters that they have personal knowledge of. Evidence to prove personal knowledge may consist of the witness’s own testimony.

Rule 603 – Oath or Affirmation

Under Rule 603, a witness must give an oath or affirmation to testify truthfully, A judge may exclude testimony under this rule if: (1) the witness lacks the ability to understand the truth or appreciate the seriousness or testifying in court or (2) the witness refuses to take the oath.

Rule 611 – Mode & Order of Examining Witnesses and Presenting Evidence

Rule 611(a) dictates that court should exercise reasonable control over the mode and order of examining witnesses to (1) make procedures effective for determining truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment.

 

Under Rule 611(b), the scope of cross examination is limited to the subject matter of direct examination and matters affecting witness creditability.

 

Rule 616(c) generally prohibits leading questions on direct examination except as necessary to develop witness’s testimony. Court ordinarily allows leading questions on (1) cross-examination and (2) when a party calls a hostile witness or adverse party.

Rule 614 – Court’s Calling or Examining a Witness

Under Rule 614, a court may (a) call a witness on its own or at a party’s request, each party is entitled to cross examine the witness and (b) examine a witness regardless of who calls the witness. A party may object to court’s calling or examining a witness at that time or next time jury is not present.

Rule 615 – Excluding Witnesses

Under Rule 615, at a party’s request or on its own, the court must exclude witnesses to they cannot hear other witnesses’ testimony. This rule does not authorize excluding (1) a party; (2) a party’s representative; (3) a person whose presence a party shows to be essential; or (4) a person authorized by statute to be present.

Rule 612 – Refreshing Recollection

Under Rule 612, a party may use a writing to refresh a witness’s recollection. Writing includes any content that revives a memory. To refresh recollection, the attorney must (1) establish that the witness does not recall the answer to a question; (2) describe the writing they wish to use to refresh the witness’s recollection & ask if that writing would refresh the witness’s recollection; (3) show the writing to the witness; (4) ask whether the writing refreshed the witness’s recollection; and (5) provide opposing counsel with a copy.

 

Rule 612 gives adverse parties the right to (1) inspect any writing the witness uses to refresh recollection; (2) cross-examine the witness of the writing; and (3) introduce the relevant portions of the writing into evidence. Unless writing is admissible on other grounds, writing is admissible only to assess the witness’s credibility.