#11684 - Witness Threshold Requirements - Evidence

Every person is presumed competent to be a W unless these rules provide otherwise (FRE 601)

1) let juries decide credibility, that’s their comparative advantage compared to how they assess other types of evidence; 2) general preference for viva voce - live witnesses in open court.

0) Civil case where “state law supplies the rules of decision” => state law governs (FRE 601).

1) Personal knowledge of the matter they are testifying about. (FRE 602).

“Directly perceived the matters about which they are supposed to testify” (Mitch).

-Burden is on offering party to support w/ sufficient evidence:. (conditional relevance test).

-Can include witness’ own testimony.

-Testimony should only be excluded for lack of personal knowledge if “no reasonable juror could believe that the witness had the ability to perceive the event that he testifies about.”

(Hickey-let in inconsistent poor-memory coke addict)

(some courts): mental capacity requirement: witnesses lack personal knowledge unless they can comprehend their observations.

EXCEPTIONS: no need for personal knowledge.

-Experts (FRE 703).

-Admissions by a party opponent

2) Oath or affirmation: to testify truthfully. (FRE 603).

-FLEXIBLE: “Must be in a form designed to impress that duty on the witness’s conscience.” (FRE 603). “No special verbal formula is required”

-understand that he has to testify truthfully

-can be prosecuted for perjury if he doesn’t.

NO LOOPHOLES to get around perjury. “I am a truthful man”

-designed to awaken his subjective conscience.

-have to use ‘least restrictive means’ if there’s a religious exercise issue.

(Ward- his oath must be allowed - the ‘fully integrated honesty’ nutjob.)

-CAN recall witness to reaffirm what they said under oath if old oath was insufficient.

3) (Most) Understanding (moral capacity): ability to give meaningful answers - witness must understand solemnity of oath, duty to tell the truth, and difference between truth and lie.

*counter: just has to perform the mechanical acts supposed to awaken their conscience and impress legal duty to tell truth. Doesn’t matter if it actually happens.

Lightly – competence for purposes of being charged for a crime competence as a witness.

Class hypo: dude took the opium that was supposed to be evidence. Not enough to be incompetent (though definitely should affect weight).

4) Indirect challenges under 403.

-won’t be able to effectively cross-examine (look like an asshole if you cross a kid).

-Jury will give too much weight on direct

-Witness will give confusing answers, not really know what they’re saying.

=>COMPETENT. (May be impeached for bias or deficits in thinking, memory or perception).

Allen: [kid w/ mental retardation, victim of sexual assault]

“depends on the capacity and intelligence of the child, [the child’s] appreciation of the difference between truth and falsehood, as well as [the child’s] duty to tell the former.”

APP: mild retardation doesn’t affect ability to answer simple questions or understand the importance of the oath. Established that she knew truth from lie, and that she’d be punished for lying.

*fact that she gave wrong answers for things like her age goes to CREDIBILITY.

-Attorneys (CL Advocate-witness rule)

generally aren’t allowed to testify in cases that they are litigating.

Exceptions

-minor uncontested issues

-if there is a dispute about the legal fees. (Ex: other side forced to pay atty fees, might want to cross the atty)

-no other means of obtaining the info, and the client consents.

-Judge: The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue. (FRE 605).

Rationale: obvious. Don’t need to preserve bc would lead to awkward situation of attacking credibility of judge who is deciding your case.

-Jurors

-At trial empaneled in: not allowed to be a witness. (FRE 606(a))

-may not testify as a witness before the other jurors at trial.

-and judge must give party ability to object outside jury’s presence.

-Post-trial (inquiry into validity of verdict or indictment): (FRE 606(b)).

JURORS testimony about….

-(1) NOT internal deliberations, in any form (won’t even take an affidavit on this).

Courts very protective of deliberations.

-Mental processes, factors considered, anything about how they deliberated among themselves – even evidence that they disregarded the law and the facts.

-Take jurors as you find them - with all of their personal characteristics + experiences.

-(2) Can testify about whether

*generally high showing for policy reasons.

General rule (CL) external...