Witness Rules Flashcards
Which rules govern who can testify?
FRE 601-606 - simple rules about who may testify
FRE - Harder rules about impeachment and rehabilitation
FRE 611-615 - Simple rules about manner of questioning (and sequestering) witnesses
What are the 4 aspects of competence?
- Perception
- Memory
- Veracity
- Communication
What is the rule on personal knowledge under FRE 602?
FRE 602 - Personal Knowledge
“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.”
Provides that: All witnesses must have first-hand, personal knowledge garnered through any of the senses.
But, Experts don’t need first-hand, personal knowledge
What is extrinsic evidence?
Any evidence other than admissions on cross-exam.
Under FRE 601, who can testify?
“Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.”
*everyone can testify except as provided by other FRE.
*State law determines who’s competent if state law controls rule of decision (e.g., when state law supplies elements for tort claim in diversity suit).
What is the definition of impeachment?
Attacking the credibility of witness testimony, either concerning the subject of the testimony or the general believability of the witness
What is the definition of rehabilitation?
Repairing the credibility of the witness whose testimony has been impeached.
Who may impeach under FRE 607?
Any party, including the party that called the witness, may attack the witness’s credibility.
What is Intrinsic Evidence?
Admissions on Cross-Exam
What are the 5 common methods of Impeachment in Federal Court?
- Showing Bias, Sympathy, or some Ulterior Motive.
- Showing Defects in Perception or Memory.
- Showing Bad Character for Truthfulness.
3a. Prior Unconvicted Acts, including Dishonesty
3b. Prior Convictions
3c. Reputation/Opinion Evidence. - Demonstrating that the witness made prior inconsistent statements.
- Contradicting the testimony with Counterproof.
What are the 3 ways to Show Bias?
- on Cross-Exam (intrinsic)
- Extrinsic evidence of conduct (extrinsic)
- Extrinsic evidence of statements (extrinsic)
Note: FRE 608(b) prohibits use of extrinsic evidence to show bad character for truthfulness; but showing bias is an alternative avenue of admissibility for evidence that would be excluded under 608(b).
When is Bias relevant?
Bias is always relevant and never a collateral issue.
When impeaching a witness by showing defect in perception, what type of evidence may be used? Intrinsic? Extrinsic?
Both intrinsic and extrinsic evidence may be used to show a defect in perception.
What are the 3 ways to impeach a witness by showing bad character for truthfulness?
- Showing prior bad acts - unconvicted - bearing on truthfulness.
- Offering Prior Convictions
- Offering Reputation or opinion evidence showing that the witness has bad character for truthfulness
When are defects in perception or memory relevant?
They are always relevant provided that the validity of the testimony depends upon perception or memory.