Foundation Flashcards
Witness’ Competency (FRE)
FRE 601 – Every person is competent to be a witness unless these rule provide otherwise. In a civil case, state law governs a witness’ competency re: claim or defense
Witness’ Competency (CEC)
CEC 700 – Except as otherwise provided by statute, every person, regardless of age, is qualified and no person is disqualified to testify in any matter.
CEC 701– A person is disqualified to be a witness if they are incapable of expressing themselves or of understanding the duty to tell the truth
Judge’s Competency
FRE 605 – The presiding judge may not testify as a witness at trial. A party need not to object to preserve this right.
ALSO applies to a judge’s clerks or employees
Juror’s Competency
FRE 606(a): A juror may not testify as a witness before the other jurors at trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence
EXCEPTIONS: A juror may testify about:
- Extraneous prejudicial information improperly brought to the juror’s attention
- Outside influence was improperly made on a juror, or
- A mistake was made entering the verdict on the verdict form
Personal Knowledge (PK)
FRE 602 – A witness may testify only if evidence is introduced sufficient to support a finding that the witness has PK of the matter. Evidence to prove PK may consist of the witness’ own testimony
Oath and Affirmation
FRE 603 – Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in the form designed to impress that duty on the witness’ conscience
Interpreters
FRE 604 – An interpreter must be qualified and must give an oath or affirmation to make a true translation
Lay Opinion
FRE 701: Requires (1) opinion rationally based on perception, (2) helpful to the fact finder, and (3) not based on specific or technical knowledge
Expert Opinion
FRE 702: A witness who is qualified as an expert by knowledge, skill, expertise, training, or education may testify if the judge, as a gatekeeper, finds:
(a) Testimony is reliable:
**Using reliable scientific methods/principles (Daubert factors = prior testing, peer review, error rate, controlling standards, general acceptance in the community)
**Expert applied the scientific methods and principles reliably
(c) Testimony will assist the fact finder by fitting the facts
(d) Testimony passes FRE 403
CA: KELLY
If an expert is testifying used a new scientific
technique:
(1) Reliability of method—-Sufficiently established to gain general acceptance in field
(2) Witness must be qualified as expert to give opinion
(3) Proponent must demonstrate correct scientific procedures used
Bases of Expert Opinion
FRE 703: An expert may base an opinion on facts/data that the expert has made aware or personally observed. If the evidence is inadmissible, experts in the field must reasonably rely on that type of evidence.
On direct THEN must survive reverse 403; inadmissible evidence has no independent evidentiary value
On cross THEN automatically admitted via questioning to assess opinion
Expert Disclosing Facts
FRE 705: Unless the court provides otherwise, an expert may give an opinion without first testifying to the underlying facts. On cross, they may be required to disclose it
Opinion on Ultimate Issues
FRE 704:
(a) An opinion is not objectionable because it embraces an ultimate issue
(b) In a criminal case, an expert must not state an opinion on whether D did not have a mental state or condition that is an element of the crime
Authentication
FRE 901(a): To satisfy the requirement to authenticate, the proponent must provide evidence sufficient to support a finding that the item is what the proponent claims to be
FRE 901(b): Examples to satisfy this include: testimony of a witness with PK, non-expert testimony of handwriting (must have known prior to it), opinion about a voice (did not have to know prior to it), distinctive characteristics
Self-Authenticating Documents
FRE 902: Does not require extrinsic evidence:
(1) Domestic/foreign documents that are sealed
(2) Certified and signed business records
(3) Certified and signed public records
(4) Official publications by a public officer
(5) Newspapers and periodicals
(6) Websites (only government, newspaper, and business records)
Attorney Client Privilege
Client holds, attorney asserts
Protects confidential communication made between these parties for the purpose of seeking legal advice, but not the underlying information
Exceptions: Crime, fraud, joint representation
Inadvertent Disclosures: Not waived if took reasonable steps to prevent and rectify
Intentional Disclosures: Protected unless it is of the same subject matter and ought to be considered together
