Unit Three A.

Rules 601-606: Competency

Rule 601: Competency to Testify in General
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.
Rule 602: Need for 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.
Rule 603: Oath or Affirmation to Testify Truthfully
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.
Rule 604: Interpreter
An interpreter must be qualified and must give an oath or affirmation
to make a true translation.
Rule 605: Judges Competency as a Witness
The presiding judge may not testify as a witness at the trial. A party
need not object to preserve the issue.
Rule 606: Jurors Competency as a Witness
(a) 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.
(b) During an Inquiry Into the Validity of a Verdict or
Indictment.
(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 incident 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.

Jordan v Smith, (OH SC, 1846) Facts: Objection made, black witness
not competent on account of her color Reasoning: Per the law,
incompetent white cannot alter just because would like to, law is
clear
Boyd v US, (US 1892) Facts: s found guilty of murder, and
companions tried to rob ferryman, gun fight broke out - principal
witness for the prosecution was Byrd, s contend incompetent bc had
been convicted of larceny Prosecution produced a pardon from the
President Reasoning: Pardon was full and unconditional, competency
restored doesnt matter that DA requested so could testify
Washington v TX, (US 1920) Facts: Petitioner sought to introduce
testimony of Fuller, which was excluded Fullers testimony was
relevant and material and vital to , but had previously been convicted
of the same murder and sentenced to 50 years in prison TX statute
says co-participants could not testify for one another Reasoning: CJ
Warren Reverse 6th amendment guarantees right to compulsory
process, applies to states via 14th state statute made his testimony
inadmissible whether he was present or not Framers gave criminal
s the right to bring witnesses, but there were exceptions co-s have
traditionally been excluded b/c of interest concerns, idea that right to
present witnesses was subordinate to the courts interest in preventing
perjury but, absurd, more likely to lie to help prosecution petitioner
denied right to have compulsory process for obtaining witnesses in his
favor b/c state arbitrarily denied him the right to put a witness on the
stand whose testimony would have been relevant and material
reverse
Falwell v Flynt, (CoA 4th, 1986) Facts: Lawsuit over ad parody
published by s primary issue is DCs decision to admit s
videotaped conversation, argue that was mentally incapable of
telling the truth at the time he was deposed Reasoning: At CL a
charge of mental incapacity could be used to challenge a witness
competency to testify, but under FRE this objection only excludes
testimony in the rare case where the judge finds that because of
witness infirmities the testimony fails to meet relevancy requirements
of 104(b), 401, 403 discretion normally given towards admitting,
better to let jury decide believability and weight affirm

Class Notes 601 tells us weve moved from rules of competency to

cross-examination SC case, witness ingests some opium while on the
stand, not incompetent 2nd sentence applies to situations like
example in class, w/ diversity suit, PA state statute bars any witnesses
who have been convicted of perjury
Dead Mans Statutes if the lips to the party of a transaction have
been sealed by death, the lips of the other surviving party should also
be sealed Unit 3 B. Rules 611, 614, 615: Form and Order of Examination
Rule 611: Mode and Order of Examining Witnesses and
Presenting Evidence
(a) Control by the Court; Purposes. The court should exercise
reasonable control over the mode and order of examining witnesses
and presenting evidence so as to:
(1) make those procedures effective for determining the truth;
(2) avoid wasting time; and
(3) protect witnesses from harassment or undue embarrassment.
(b) Scope of Cross-Examination. Cross-examination should not go
beyond the subject matter of the direct examination and matters
affecting the witness's credibility. The court may allow inquiry into
additional matters as if on direct examination.
(c) Leading Questions. Leading questions should not be used on
direct examination except as necessary to develop the witness's
testimony. Ordinarily, the court should allow leading questions:
(1) on cross-examination; and
(2) when a party calls a hostile witness, an adverse party, or a witness
identified with an adverse party.
Rule 614: Courts Calling or Examining a Witness
(a) Calling. The court may call a witness on its own or at a party's
request. Each party is entitled to cross-examine the witness.
(b) Examining. The court may examine a witness regardless of who
calls the witness.
(c) Objections. A party may object to the court's calling or examining
a witness either at that time or at the next opportunity when the jury is
not present.
Rule 615: Excluding Witnesses

At a party's request, the court must order witnesses excluded so that

they cannot hear other witnesses' testimony. Or the court may do so
on its own. But this rule does not authorize excluding:
(a) a party who is a natural person;
(b) an officer or employee of a party that is not a natural person, after
being designated as the party's representative by its attorney;
(c) a person whose presence a party shows to be essential to
presenting the party's claim or defense; or
(d) a person authorized by statute to be present.
-

Each party presents testimony by live witnesses via direct

examination, each tries to 1. Bring out background information,
get witness at ease, get jury used to witness; 2. Lay foundation,
show witness has personal knowledge; 3. Asks substantive
questions, knowledge of pertinent facts Direct examination
must proceed by nonleading questions, cant suggest a response
sometime it is said that any question seeking a yes or no is
leading, but not always so; sometimes a matter of phrasing
(Meet at 10, or what? v Did you call or did he call?); idea is
that the witness should be testifying, not the attorney leading
is bad b/c can invoke false memory, distract from important
details, lessen efforts to relate what witness actually remembers
Next, cross-examination Greatest engine ever invented for the
discovery of the truth, counsel and their questions are the star,
control is the goal do so through leading questions, which are
good on cross, can expose inaccuracies, focus his attentions
but, scope is limited to matters explored in direct, originates
from idea that each party is the master of their case;
administration of this rule is challenging, but most jurisdictions
prefer enables parties to control order of proof
Voucher Rule FRE 607 has done away with, any party may
impeach; also FRE struck compromise on scope of direct, usually
applies but judge may allow broader cross

US v Sebaggala, (CoA 1st, 2001) Facts: convicted of bank fraud,

carrying altered securities, and making false statements to US
Customs alleges he did not knowingly make false statements b/c
misunderstood the questions and lacked knowledge that travelers
checks were included within the definition of money instruments,
also complains that DC erroneously permitted government to call
rebuttal witnesses regarding his proficiency of the English language

Reasoning: No errors, w/r/t to last, appellate courts afford TCs wide

berth to scope of rebuttal testimony, review for abuse of discretion,
none here - presented several witnesses that said he had difficulty
speaking English, presented several that said proficient rebuttal
evidence may be introduced to explain, repel, contradict, or disprove
an adversarys proof
US v Nabors, Nabors Jr., (CoA 8th, 1985) Facts: brothers appeal
from bank robbery conviction, nephew testified against, on direct
government asked boy whether either of the s said anything
immediately after they saw him, followed with Exactly what did he
say TC said not leading Reasoning: No error FRE generally does
not permit leading questions on direct except as may be necessary to
develop testimony 611(c) long-recognized exception where child
or adult with communication problems prosecutor did suggest, but
understandable here, child hesitated bc involved a naughty word
Ty v Dirty Harry v Moore, Sr., (CoA 4th, 2005) Facts: s convicted of
conspiracy to possess with intent to distribute cocaine, asserts TC
abused its discretion in excluding a witness on the basis she violated
an order sequestering witnesses and that sanction of the exclusion was
so disproportional as to be an abuse of discretion Reasoning: Agree,
but doesnt matter witness has been present on two different days of
testimony when addressing a violation of a sequestration order court
can sanction witness for contempt, tell jury either through cross or
instruction, or exclude all or part of testimony exclusion is an extreme
remedy, remedy must be proportional TC abused here
Nicely v State, (GA SC, 2012) Facts: convicted of murder of oneyear old girl, alleges EP violation b/c hi father excluded from portions of
the trial while girls mother was not Reasoning: No case in which
sequestration of a witness was held to violate the right to a public trial,
in fact have found it doesnt even implicate therefore, passes EP if
rationally related, it is next.
NY v Arnold, (CoA NY, 2002) Facts: Whether a TC can call its own
witness after both state and have rested Reasoning: Here, clearly
abuse, but not ruling out categorically judges have wide discretion,
but cannot exercise that discretion such that it prejudices the parties
overarching principle is that the judge is supposed to protect the
record at trial, not make it line is crossed when the judge takes on

either the function or appearance of an advocate at trial have held

previously that court can question a witness, recall a witness to the
stand, even allowing a case to be re-opened but cannot assume the
advocacy role reserved for counsel if it is going to call a witness it
should explain why and invite comment from the parties, here no
reasons given, did not articulate the consequences of calling witness,
abuse
Class Notes It was probably abundantly obvious why judge was
calling witness, so paragraph that might be allowed if explained is
probably not nearly as strong as it seems

Unit 3 C. Rule 612: Refreshing Recollection

(a) 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.
(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.
(c) Failure to Produce or Deliver the Writing. If a writing is not
produced or is not delivered as ordered, the court may issue any
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.

Baker v State, (MD CoA, 1977) Facts: What latitude should a judge
permit counsel when a witness takes the stand and says I dont
remember contends not allowed to refresh memory of a police

witness by showing a report written by a fellow police officer

Reasoning: Critical issue in case, appellant was entitled to try and
refresh the memory of the key police witness abuse when an
appellant refreshes his memory from a writing, his testimony is what
he says, not the writing the writings are not evidence, but aids
opposing party has a right to inspect the aid, even show it to the jury
this is not to test the competence of the memory aid, but only to test
whether the witnesss memory has in truth been refreshed, cannot be
allowed to read the writing in the guise of refreshment or use as a
cloak for getting in an inadmissible document aid need not be his, not
adopted by him, nor contemporaneous with the incident, not
necessarily accurate the competence of the writing doesnt matter,
all that is required is that it ignite the flash of accurate recall could be
a smell, a song, or a soda - reversed
Unit 3 D. Rule 701: Lay Opinions
If a witness is not testifying as an expert, testimony in the form of an
opinion is limited to one that is:
(a) rationally based on the witness's perception;
(b) helpful to clearly understanding the witness's testimony or to
determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge
within the scope of Rule 702.