Witness Competency

Question 1

Threshold requirements for a witness to testify at trial

Answer 1

A witness must have personal knowledge of an issue in the case, be competent to testify, and be willing to take an oath or make an affirmation

These are merely threshold requirements; the witness testimony must also be relevant and otherwise admissible under the rules.

Question 2

Rule 601 - Competency to Testify in General

Answer 2

Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state laws governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.

Question 3

Rule 602 - Need for Personal Knowledge

Answer 3

A 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. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703.

Question 4

Two broad categories of witnesses

Answer 4

(1) percipient (or fact) witnesses – a witness who has seen, heard, touched, felt, otherwise perceived with her senses, or has personal experience with, a factual matter relevant to the case.
(2) opinion witnesses – one who shares her opinion with the jury. Further divided into two categories: lay opinion witnesses and expert witnesses.

Question 5

Personal knowledge requirement and conditional relevance

Answer 5

The requirement of personal knowledge under Rule 602 is an issue of conditional relevancy under Rule 104. The judge does not find that the witness has personal knowledge, but rather that a reasonable juror could find that the witness has personal knowledge

Generally satisfied with foundational question like “Did you see a car accident on July 5?”

Question 6

Rule 603 - Oath or Affirmation to Testify Truthfully

Answer 6

Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.

Question 7

Rule 605 - Judge’s Competency as a Witness

Answer 7

The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.

Question 8

Rule 606(a) - Juror’s Competency as a Witness - At the Trial

Answer 8

At the Trial. A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.

Question 9

Rule 606(b) - Juror’s Competency as a Witness - During an Inquiry into the Validity of a Verdict or Indictment

Answer 9

(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or indictment that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.

(2) Exceptions. A juror may testify about whether:
(A) extraneous prejudicial information was improperly brought to the jury’s attention;
(B) an outside influence was improperly brought to bear on any juror; or
(C) a mistake was made in entering the verdict on the verdict form

Question 10

Rule 612(a) - Writing Used to Refresh a Witness’s Memory - Scope

Answer 10

Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory:

(1) while testifying; or
(2) before testifying, if the court decides that justice requires the party to have those options.

Question 11

Rule 612(b) - Writing Used to Refresh a Witness’s Memory - Adverse Party’s Options: Deleting Unrelated Matter

Answer 11

(b) Adverse Party’s Options: Deleting Unrelated Matter. Unless 18 U.S.C. § 3500 provides otherwise in a criminal case, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness’s testimony. If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record.

Question 12

Rule 612(c) - Writing Used to Refresh a Witness’s Memory - Failure to Produce or Deliver the Writing

Answer 12

o (c) Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered as ordered, the court may issue an appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the witness’s testimony or—if justice so requires—declare a mistrial.

Question 13

Two methods for refreshing

Answer 13

Leading question to prod the witness’s memory, or

Using the formal foundation for refreshing recollection

Question 14

Steps for using the gently leading question in witness refreshing

Answer 14

1. The witness mistakes a non-material fact on direct examination
2. Noticing that the witness has done so, the attorney quickly corrects the witness with a leading question.
3. If the attorney draws an objection, the attorney rephrases the question as a non-leading question and gives the witness the opportunity to try again.

Question 15

The formal foundation for refreshing recollection

Answer 15

1. The witness forgets an important fact
2. The attorney rephrases the question in order to clarify that the witness has in fact forgotten.
3. The attorney asks if anything will refresh the witness’s recollection.
4. The witness says yes.
5. The attorney marks the document or item as an exhibit for identification, shows it to opposing counsel, and then gives it to the witness. [Note, in some cases, having established that the witness has forgotten something, the attorney might skip steps 3 and 4 and go directly to step 5.]
6. After the witness has finished examining the item or document, the attorney retrieves it from the witness and asks whether it has refreshed the witness’s recollection.
7. If the witness replies affirmatively, the attorney re-asks the question from before
8. The witness replies from memory

Question 16

Impeachment definition

Answer 16

The term “impeachment” describes the process used at trial to discredit witnesses or call into question the accuracy of their testimony.

Question 17

Five broad categories of reasons attorneys generally impeach witnesses

Answer 17

(1) the witness has an untruthful character
(2) the witness is biased or has a motive to falsify testimony
(3) the witness has a defective capacity to observe, recall, or communicate
(4) the witness has made prior statements that are inconsistent with his trial testimony
(5) the witness’s testimony can be contradicted by other witnesses or evidence

Question 18

Ways attorneys impeach witnesses

Answer 18

• on direct examination
• on cross-examination
• by the use of prior convictions
• through other witnesses

Question 19

Rule 607 - Who May Impeach a Witness

Answer 19

Any party, including the party that called the witness, may attack the witness’s credibility.

Question 20

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

Answer 20

Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.

Question 21

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

Answer 21

Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1) the witness; or
(2) another witness whose character the witness being cross-examined has testified about.

Question 22

Rule 609(a) - Impeachment by Evidence of a Criminal Conviction - In General

Answer 22

In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:

(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:
(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and
(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and

(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving—or the witness’s admitting—a dishonest act or false statement.

Question 23

Rule 609(b) - Impeachment by Evidence of Criminal Conviction - Limit on Using Evidence After 10 Years

Answer 23

Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

Question 24

Rule 613(a) - Witness’s Prior Statement - Showing or Disclosing the Statement During Examination

Answer 24

Showing or Disclosing the Statement During Examination. When examining a witness about the witness’s prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party’s attorney.

Question 25

Rule 613(b) - Witness’s Prior Statement - Extrinsic Evidence of a Prior Inconsistent Statement

Answer 25

Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness’s prior inconsistent statement is admissible only 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, or if justice so requires. This subdivision (b) does not apply to an opposing party’s statement under Rule 801(d)(2).

Question 26

Rationale for Rule 613 Prior Inconsistent Statements

Answer 26

A witness who makes inconsistent statements is unworthy of belief

Question 27

“Prior Statement” definition

Answer 27

A “prior statement” is one made by the witness before trial. There is no requirement that the prior statement be under oath or subject to any formal acknowledgements of accuracy or validity by its maker. No requirement that the statement be in writing or recorded.

Question 28

Non-exclusive list of types of prior statements

Answer 28

1. A casual remark made by a witness to another person prior to trial.
2. A verbal statement made to a police officer or investigator.
3. An audiovisual recording of a verbal statement made to a police officer or investigator.
4. A sworn statement, reduced to writing and signed under oath.
5. A deposition, either transcribed into writing or recorded using audiovisual equipment.
6. A blog entry or written statement made on a social networking site.
7. Statements made in e-mails, letters, and diary or journal entries.
8. Written entries on official forms or applications.

Question 29

When does actual inconsistency exist?

Answer 29

Actual inconsistency exists if taken as a whole, either by what it says or by what it omits to say affords some indication that the fact was different form the testimony of the witness whom it sought to contradict

You are looking for (a) true inconsistencies on (b) material matters.

Question 30

Three primary ways to impeach a witness with prior inconsistent statements

Answer 30

(1) an intrinsic impeachment (in other words an impeachment that occurs during an examination of that witness) using the witness’s prior inconsistent written and/or recorded statements;
(2) an intrinsic impeachment in which the witness is questioned about the omission of important information from prior written and/or recorded statements; and
(3) extrinsic proof of a prior inconsistent statement by introducing a document or calling another witness to testify as to the inconsistency.

Question 31

Three components to the in-court confrontation

Answer 31

(1) Commit. Get the witness to commit to her in-court testimony by asking the witness to commit to the precise words she just used. This prevents a claim of having misspoken or to have been misunderstood in the courtroom.
(2) Credit or Validate the Prior Statement. Ask the witness questions about the circumstances surrounding the making of the earlier statement, including that the witness made the prior statement and had an interest in telling the truth and/or accurately recalling the incident.
(3) Confront the Witness About the Inconsistency. These words can be read aloud by the attorney, published on a screen, or even heard from the witness’s own mouth if there is an audio or video recording of the prior statement.

Question 32

General rule of bolstering witnesses

Answer 32

General Rule—No Bolstering Until Witness Impeached

A party may not bolster or accredit the testimony of his witness until the witness has been impeached.

Example: A prior statement made by W at the time of the event that is consistent
with W’s in-court testimony would not be admissible to show that W’s memory of the event is excellent or that he told the same story twice and therefore is especially worthy of belief.

Question 33

Exceptions to the general rule prohibiting the bolstering of witnesses until impeachment

Answer 33

1) Timely Complaint - In certain cases a party may prove that the witness made a timely complaint, in order to bolster the party’s credibility.
Example: Evidence of a prompt complaint of a rape victim is admissible to bolster the complainant’s credibility in a subsequent criminal prosecution.

2) Prior Identification - Evidence of any prior statement of identification made by a witness is admissible not only to bolster the witness’s testimony, but also as substantive evidence that the identification was correct. [Fed. R. Evid. 801(d)(1)(C)]