Competency Flashcards
FRE 601: General Rule of Competency
Every person is competent to be a witness except as otherwise provided in these rules. However, in civl
actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the
rule of decision, the competency of a witness shall be determined in accordance with State law.
FRE 602: Personal Knowledge
A witness may not testify as to a matter unless evidence is introduced sufficient to support a finding that the
witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not,
consist of the witness’ own testimony. This rule is subject to the provisions of rule 703, relating to opinion
testimony by expert witnesses.
FRE 603: Oath of Affirmation
Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath of
affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind
with the duty to do so.
FRE 610: Religious Beliefs of Opinions
Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of
showing that by reason of their nature the witness’ credibility is impaired or enhanced.
FRE 601: Competency
Common Law Approach
- Common Law Approach:
a. a. Four Testimonial Capacities—Competency to testify used to be based on the four testimonial capacities, if
you had these then you could testify.
i) Perception
ii) Memory
iii) Narration
iv) Sincerity
FRE 601: Background to FRE 601
a. Intent of drafters of FRE 601 was to wipe clean the exclusionary rules with respect to the competency of
witnesses (see casebook p. 1087)
b. This means that even drug or alcohol use by the witness, at the time of the events or even while testifying
does not mean he/she is not competent to testify
FRE 601: Applicaiton of FRE 601
Categories of Persons Who Are Incompetent to Testify:
i) Those who don’t swear or affirm to Testify Truthfully (FRE 603)
ii) Judge Attempts to be a Witness in a Case Over Which they are Presiding (FRE 605)
iii) Juror as a Witness (FRE 606)
b. Ways to Object to Incompetent Witnesses:
i) FRE 402—Relevance
1 Could be used for people with extreme mental handicaps, etc.
ii) FRE 403—Prejudicial
iii) FRE 602—Lack of Personal Knowledge
iv) Credibility—Leave it to the Jury
Who Decides Whether a Witness is Competent?
a. Judge Decide under FRE 104(a)
FRE 601 and Diversity (or Suppelmental) Jurisdiction Cases in Federal Court
Requirement of Personal KNowledge (FRE 602)
Meaning of FRE 602
a. Means first hand knowlege acquired through witness’ own senses, and included:
i)- Perception, and
ii)- Memory
Requirment of personal Knowledge FRE 602
Application of FRE 602
a. Rule 602 requires that for a person to tesify to a matter, you must introduce evidence that the witness has personal knowlege of that matter
i)- BUT, the witness’ own testimony can be used to show perosnl knowledge- this would be the case when the attoney asks the witness a series of question to establish a foundation of personal knowledge.
b. How much perosnal knowlege is Required?
i)- Only evidence suffcient to support a finding (rule expressly says that such testimony may consist of the witnesses testimony itself)
c. NOTE- in the hearsay context, the court declarant is considered a witnessss and is subject to the personal knowledge requirment of FRE 602.
Requirment of personal Knowledge FRE 602
Who Decides Whether witness has Sufficient Personal KNowledge to Testify
a. Jury Does…..Under FRE 104(b)
b. WHY?:
i)- advisory Commitee nOte to Rule 602
1. Indicates theat Rule 602 is a “specialized application of the provision of 104(b)”
2. The language of 602 also indicates that you need to introduce enough evidence “sufficient to support a finding” …. explixity mirrioring the language of 104(b).
c. Hypo Jury Instruction: “If you find that Ms. X testified on the basis of personal knowledge, then you may consider it…but If you find that she did not testify on the basis of personal knowledge, then you must disregard it.”
