Basic Witness Rules Flashcards
Under FRE 601 Who may testify?
Any human being may testify so long as they are deemed competent
Can animals ever testify?
No.
What body of law dictates rules for competency?
If state law rules the case (i.e. common law for torts case) then THE STATE LAW determines competency rules, even if in federal court
What are the two most common circumstances which lead to a witness being deemed incompetent?
1.) Age (too young or too old)
2.) Adjudicated incompetent (generally opponent claims incompetency and shows deficits)
What are some key areas that the court will evaluate when making a determination on competency?
1.) Perception
2.) Memory
3.) Veracity
4.) Communication
Under FRE 602 must a witness only testify about what they have personal knowledge about?
Yes. A witness can only testify to personal knowledge garnered through any of the senses.
Are experts held to the FRE 602 personal knowledge requirement?
No.
May a witness testify about something that someone else said/did without having ever perceived it themselves?
No.
May a witness’s own testimony prove personal knowledge under FRE 602?
Yes.
Must all witnesses take an oath for truthfulness under FRE 603?
Yes.
What happens if a witness does not take an oath under FRE 603?
The testimony from that witness doesn’t count, everything can be stricken from the record.
Must all interpreters take an oath for EVERY different hearing/trial under FRE 604?
Yes.
Under FRE 605 may a judge ever act as a witness in a trial they are presiding over?
No.
If a Judge acts as a witness in a trial over which they are presiding, does a party have to object to preserve the issue on appeal?
No. It is a plain error.
Under FRE 606 may a juror testify as a witness before other jurors?
No. and the opponent must be given a chance to object outside of the presence of the jury
What is a juror barred from testifying about during a post-trial inquiry into the validity of the verdict/indictment under FRE 606(b)?
1.) Any of the juror’s mental processes
2.) Any incident/statement during deliberation? (with exceptions –> See Pena-Rodriguez case)
3.) Effect of anything on the Juror’s vote (with exceptions)
4.) affidavit or evidence of a juror’s statements about ANY OF THE ABOVE
What is a juror permitted to testify about during a post-trial inquiry into the validity of the verdict/indictment under FRE 606(b)?
1.) Extraneous prejudicial information that was brought to the Juror’s attention
2.) Outside influence brought to bear on any Juror (i.e. bribe, threats)
3.) If a MISTAKE was made entering the verdict form
4.) Racist comments made by the jury during deliberation
May the credibility of a witness be attacked OR supported with their religious beliefs?
No.
What are the guidelines when allowing party to conduct interrogation of a witness (direct/cross)
1.) Procedure should be effective for determining the truth
2.) No undue wasting time
3.) No undue embarrassment of the witness
When CAN you use leading questions on direct?
Usually only for cross, UNLESS if a child witness, hostile witness, or if establishing certification of a expert witness
What is present recollection refreshed?
Generally utilizing a written copy of a witnesses previous statement.
1.) establish the witness is having difficulty recalling
2.) ask if they need help
3.) present document to opposing counsel
4.) give to witness to refresh memory
5.) establish it has refreshed memory and continue questioning
REMEMBER YOU ARE OFFERING THE SUBSEQUENT STATEMENT NOT THE WRITTEN DOCUMENT AS EVIDENCE
May the PROPONENT of a witness admit the refreshing document as evidence?
No. BUT opponent can.
May the court call a wtness?
Yes. and may interrogate that witness
Who cross examines if the court calls a witness?
Every party must be given an opportunity to cross-examine
