VI - Witnesses

Rule 601: Competency to Testify in General

·         Every person is competent to be a witness unless the rules provide otherwise

o   But in a civil case, state law governs the witness’s competency regarding a claim or defense in which state law supplies the rule of decision

·         Child → allowed if they understand the duty to tell the truth and can perceive, remember, and communicate what they perceived

·         Mentally impaired → allowed unless the illness renders them incapable of perceiving or recounting the facts truthfully

Rule 602: Personal Knowledge Requirement

·         Witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has PERSONAL KNOWLEDGE of the matter

o   Evidence to prove PK may consist of the witness’s own testimony

o   One cannot testify about what’s on another’s mind, only to what they personally know and have experienced

Rule 603: Witness Oath/Affirmation to Testify Truthfully

·         Witnesses must take an oath or affirmation to testify truthfully, impressing that duty on their conscience

Rule 604: Interpreter Oath

·         Interpreters must be qualified and take an oath to make a true translation

Rule 605: Judge as Witness

·         The presiding judge may not testify in the trial they oversee

Rule 606: Juror as Witness

·         Jurors may not testify as a witness before the other jurors at the trial

o   If a juror is called to testify, the court must give a party an opportunity to object to outside the jury’s presence

o   May not testify about deliberations or their mental processes during deliberations

·         Exception: can testify at a LATER trial

Rule 607: Who May Impeach a Witness

·         Any party, including the one who called the witness, may attack that witness’s credibility

o   But, can’t call a party just to impeach them

Rule 608: A Witness’s Character for Truthfulness or Untruthfulness
Rule 608(a): Reputation or Opinion Evidence

·         A witness’s character for truthfulness may be attacked or supported by reputation or opinion evidence after being attacked

Rule 608: A Witness’s Character for Truthfulness or Untruthfulness
Rule 608(b): Specific Instances of Conduct

·         Besides criminal conviction exception in 609, extrinsic evidence is inadmissible to prove specific instances of a witness’s conduct in order to attack or support the character for truthfulness

o   Court may allow this on cross if it’s probative of the character for T or U of:

§  The witness, or

§  Another witness whose character the witness being cross-examined has testified about

·         Limits questions about specific conduct to cross only

o   Extrinsic evidence is NOT allowed

Rule 609: Impeachment by Evidence of a Criminal Conviction

·         (a) Attacking a witness’s character for truthfulness by evidence of a criminal conviction

o   (1) For a crime that was punishable by death or by imprisonment for more than one year (felony)

§  (A) Must be admitted, subject to 403, in a civil case or in a criminal case in which the witness is not a Δ AND

§  (B) Must be admitted in a criminal case in which the witness is a Δ and if the probative value of the evidence outweighs its prejudicial effect to the Δ

o   (a)(2) Crimes regarding dishonesty as admissible, regardless of punishment, because they bear directly on truthfulness

§  (a)(2) defines dishonesty as crimes like fraud, perjury, or embezzlement offenses requiring deceit or falsehood

·         (b) Limits on using evidence after 10 years (conviction or release, whichever is later)

o   (1) probative value substantially outweighs its prejudicial effect and

o   (2) The proponent gives an AP reasonable notice of the intent to use it so that the party has a fair opportunity to contest its use

·         (c) Evidence of conviction cannot be used to impeach if the conviction has been pardoned, annulled, or for which the witness has received a certificate of rehabilitation

o   So long as the person has no subsequent felony convictions (unless relief based on innocence)

·         (d) Juvenile adjudications admissible for impeachment only in criminal cases and with respect to witnesses other than the criminal Δ

o   Even then, only admissible if an adult’s conviction for the same offense would be admissible for impeachment

o   And only where such evidence is necessary to fairly determine guilt or innocence

Rule 610: Religious Beliefs or Opinions

·         Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility

Rule 611: Judge Controls Mode of Questioning

·         (a) courts should control the mode and order of examining witnesses and presenting evidence to determine the truth, avoid time waste, and protect witnesses from harassment

·         (b) cross is limited to the subject matter of the direct examination and matters relating to credibility

·         (c) leading questions are generally not allowed on direct

o   Allowed on cross

o   Allowed on direct when witness is → hostile, adverse, or needs help developing testimony

·         Judges’ control over questioning must not impede a party’s right to present their case or cross

Rule 612: Writing Used to Refresh a Witness’ Memory

·         Allows a witness to refresh their memory using a document; the adverse party can inspect and introduce parts of it

·         An opposing can introduce a document used under 612 any time it relates to the witness’s testimony; they have inspection and introduction rights

o   Only adverse party can admit document into evidence

o   Can redact any portion that’s irrelevant

·         The witness must say they do not remember and confirm that reviewing the item would help them recall!

Rule 613: Witness’s Prior Statements

·         When examining a witness about their prior statement

o   Don’t need to show the statement or disclose its contents to the witness

o   But you must show it to opposing counsel, if they request

·         Extrinsic evidence is admissible ONLY

o   If the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it

§  Get to question their witness to “clear it up” for the jury

o   If justice so requires

·         You can bring extrinsic evidence to prove inconsistency if the question is critical to the case

Rule 614: Court Calling/Examining Witness

·         Court can call and examine witnesses, with parties allowed to object

Rule 615: Witness Sequestration (“THE RULE”)

·         Excludes witnesses during other witness’ testimony

o   Party’s request → court must order witnesses excluded so they can’t hear others’ testimony

·         Does not authorize excluding:

o   Party to the case

o   An officer or employee of a party that’s not a natural person, after being designated as the party’s representative by its attorney

o   a person whose presence a party shows to be essential to presenting the party’s claim or defense

o   a person authorized by statute to be present