602
Situation: Maria testifies, “I know Jake stole the phone because my friend told me he watched Jake take it.”
ANSWER: “Objection. Lack of personal knowledge.”
WHY: Rule 602 generally requires the witness to have personal knowledge. Maria did not personally see Jake take the phone.
Situation: The defense calls a 16-year-old student who witnessed a fight. The prosecution argues that the student cannot testify simply because she is under 18.
ANSWER: “The witness is competent to testify.”
WHY: Rule 601 generally provides that every person is competent to be a witness unless the rules provide otherwise. Being a minor does not automatically make someone incompetent.
Situation: A witness says, “I can't remember what time we arrived.” The attorney hands her a note and asks her to look at it to see if it refreshes her memory."
ANSWER: No objection.
WHY: Rule 612 allows a writing to be used to refresh a witness's memory.
Situation: A witness testifies, “The car was blue.” The attorney knows the witness previously said, “The car was red,” and asks about that earlier statement.
ANSWER: No objection.
WHY: Rule 613 allows a witness to be questioned about a prior statement.
Situation: A 12-year-old witness says she remembers seeing the defendant leave the building. During questioning, she becomes confused about the exact date and asks the attorney to repeat several questions. The defense argues that because of her age and confusion, she should not be permitted to testify at all.
ANSWER: “The witness is not automatically incompetent.”
WHY: Under Rule 601, witnesses are generally presumed competent. Age and occasional confusion may affect how believable or reliable the jury finds her testimony, but they do not automatically make her incompetent.
Situation: A student testifies, “I know Tyler started the fight because everyone at lunch said he did.”
ANSWER: “Objection. Lack of personal knowledge.”
WHY: Rule 602 requires personal knowledge. The witness is repeating what other students said rather than what the witness personally observed.
Situation: The prosecution calls an 80-year-old witness. The defense argues that the witness cannot testify simply because of his age.
ANSWER: “The witness is competent to testify.”
WHY: Rule 601 does not automatically disqualify a witness because of age.
Situation: After looking at a document, the witness says, “Yes, now I remember.” The attorney takes the document away and asks the witness to answer from memory.
ANSWER: No objection.
WHY: This is the proper purpose of refreshing recollection—the witness uses the writing to refresh memory and then testifies from that refreshed memory.
Situation: A witness testifies, “I never saw Kevin at the party.” On cross-examination, the attorney asks, “Didn't you tell the principal the next morning that you saw Kevin there?”
ANSWER: No objection.
WHY: The attorney may question the witness about a prior inconsistent statement under Rule 613.
Situation: A witness testifies, “I was in the next room. I couldn't see them, but I've known both people for ten years. I recognized Jason's voice, and I heard him say, ‘I'm going to hit you.’”
ANSWER: No objection for lack of personal knowledge.
WHY: Rule 602 does not require a witness to see something. Personal knowledge can come through other senses. Because the witness personally heard the statement and has a basis for recognizing Jason's voice, the witness may testify about what was heard.
Situation: A teacher was inside her classroom when she heard yelling in the hallway. She testifies, “I know Jordan threw the first punch.”
ANSWER: “Objection. Lack of personal knowledge.”
WHY: Nothing establishes that the teacher actually saw who threw the first punch. She needs a sufficient basis from her own perception before testifying to that fact.
Situation: A witness has difficulty communicating and needs extra time to answer questions. The opposing attorney argues that this automatically makes the witness incompetent.
ANSWER: “The witness is competent to testify.”
WHY: Difficulty communicating does not automatically make a person incompetent under Rule 601.
Situation: The witness cannot remember what happened. The attorney hands her a statement and says, “Just read the entire thing to the jury.”
ANSWER: “Objection. Improper use of refreshing recollection.”
WHY: Rule 612 permits a writing to refresh memory. It does not automatically allow the writing itself to substitute for testimony.
Situation: The witness denies ever saying that Kevin was at the party. The attorney has a written statement containing the witness's earlier inconsistent statement.
ANSWER: The prior statement may potentially be used under Rule 613, subject to its requirements.
WHY: Rule 613 addresses questioning witnesses about prior statements and the use of extrinsic evidence of prior inconsistent statements.
Situation: A witness says, “I don't remember what color the vehicle was.” The attorney shows her a photograph. She looks at it, hands it back, and says, “Now I remember. It was dark blue.” The attorney then asks her to tell the jury the color without introducing the photograph into evidence.
ANSWER: No objection under Rule 612.
WHY: The photograph can be used to refresh the witness's memory. If her memory is actually refreshed, she then testifies from her refreshed memory. The item used to refresh her memory does not automatically have to be admitted into evidence.
Situation: Alex testifies, “I wasn't at the party, but knowing Marcus, I'm sure he was the one who broke the window."
ANSWER: “Objection. Lack of personal knowledge.”
WHY: Alex is making an assumption based on what he thinks about Marcus, not something he personally perceived.
Situation: The prosecution argues, “This witness has been convicted of a crime before, so she is not legally competent to testify.”
ANSWER: “The witness is competent to testify.”
WHY: A criminal conviction does not automatically make someone incompetent to testify. A conviction may raise other evidentiary issues, but Rule 601 generally presumes competency.
Situation: An attorney shows a witness a document to refresh her memory while she is testifying. Opposing counsel asks to inspect the document, but the attorney refuses.
ANSWER: “Objection. Rule 612.”
WHY: Rule 612 gives the adverse party certain rights to inspect a writing used to refresh a witness's memory while testifying.
Situation: The attorney asks a witness about a previous statement but refuses to show the statement to opposing counsel when opposing counsel requests it.
ANSWER: “Objection. Rule 613.”
WHY: Although the examining attorney does not have to show or disclose the statement to the witness first, Rule 613 requires it to be shown or disclosed to opposing counsel upon request.
Situation: On direct examination, a witness testifies, “I clearly saw Daniel holding the knife.” On cross-examination, the attorney asks, “Didn't you tell Officer Lopez that night, ‘I never actually saw who had the knife’?” The witness responds, “No, I never said that.”
The attorney then asks to show the witness her prior written statement.
ANSWER: No objection simply because the attorney is using the prior statement.
WHY: Rule 613 allows a witness to be questioned about a prior inconsistent statement. The attorney does not have to show the statement to the witness before asking about it, although it must be shown or disclosed to opposing counsel upon request.
Situation: A witness testifies, “I couldn't see the driver because the windows were tinted, but I know Samantha was driving because that's her car.”
ANSWER: “Objection. Lack of personal knowledge.”
WHY: Knowing who owns a car does not necessarily establish who was driving it. The witness needs a sufficient firsthand basis to identify the driver.
Situation: A witness admits she strongly dislikes the defendant. The defense argues that her bias means she is legally incompetent and cannot take the stand.
ANSWER: “The witness is competent to testify.”
WHY: Bias may be used to challenge credibility, but it does not ordinarily make a witness incompetent under Rule 601.
Situation: The witness says, “I remember exactly what happened.” The attorney hands him a prepared statement before every answer and tells him to read it silently before responding.
ANSWER: “Objection. Improper refreshing of recollection.”
WHY: Rule 612 is intended to refresh a witness's memory when needed, not to provide scripted testimony.
Situation: A witness testifies, “I saw Daniel throw the first punch.” The attorney immediately introduces another person's testimony that the witness previously said Daniel did not throw the first punch, without ever giving the original witness an opportunity to explain or deny the inconsistent statement.
ANSWER: “Objection. Improper extrinsic evidence of a prior inconsistent statement.”
WHY: Rule 613 generally requires that the witness have an opportunity to explain or deny a prior inconsistent statement and that the opposing party have an opportunity to examine the witness about it.
Situation: A witness testifies, “The defendant was wearing a red jacket.” On cross-examination, the attorney never asks the witness about any previous statement. After the witness leaves the stand, the attorney calls Officer Garcia, who testifies, “The witness told me that night that she couldn't remember what the defendant was wearing.”
ANSWER: “Objection. Improper extrinsic evidence of a prior inconsistent statement.”
WHY: Under Rule 613, extrinsic evidence of a prior inconsistent statement generally may be admitted only if the witness is given an opportunity to explain or deny the statement and the opposing party is given an opportunity to examine the witness about it, subject to the Rule's exceptions.