judges and jurors
this rule gives an exception to the general competency rule of witnesses, prohibiting judges and jurors from acting as a witness in what type of cases (name rules)
FRE 605 prohibits judges from testifying as witness in cases they preside over.
ABA: This is because the rules of testifying and presiding are incompatible. Jugde rules on objections, compel witnesses to answer. a judge cannot rule impartially on the weight and admissibility of his own testimony
FRE 606: jurors cannot testify as witness before other jurors at trial where they have decision making role
this rule details personal knowledge requirement.
602 - witness may testify only abt matters they know about personally
this type of witness uses specialized knowledg to interpret evidence or explain evidence to the jury
what is an expert witness?
FRE general rule on competency
FRE 601 - Every person is competent to testify unless an other FRE rules specifically excludes. State law governs in a civil case where state law supplies the rules of decision for a claim or defense.
this type of witness perceived facts related to the lawsuit and will testify about those facts
what is a fact witness? "eyewitness"
i.e. lay witness
this rule lists 3 exceptions where jurors can testify about what happened during juror deliberations
Rule
606(b)(2)
1. Extraneous Prejudicial Information
2. Outside Influence
3. Mistake on verdict form
an interpreter must have personal knowledge of the facts they are translating
FALSE
but under FRE604 must be qualified and must give an oath or affirmation to make a true translation.
___ has the discretion of determining if someone is a witness or note
Who is the court?
it is up to the opposing counsel to expose any weaknesses in their credibility or testimony.
- some states prohibit children under certain age BUT FRE does not state explicit age.
these 2 types of witnesses do not need personal knowledge of the fact related to the controversy. ie these types of witnesses do not need to have directly seen or perceived the events that underlie the litigation
what are CHARACTER WITNESSES and EXPERT WITNESSES?
When a lawyer objects to a juror being called to testify, the court must let them make this objection where?
What is outside the presence of the jury?
who is the judge? 104(b)
the process by which the opposing attorney asks the supposed expert a series of qualifying questions to determine their expertise
what is voi dire?
But in a _[type of case]__ case, __[what type of law]__ law governs the witness’s competency regarding a claim or defense if state law supplies the rule of decision.
civil, state
To testify in court, a witness must (1) be ____ (Rules 601, 605, and 606); (2) have ____ ______ (Rule 602); and (3) take ________ (Rule 603)}
1. competent
2. personal knowledge ** (FRE 602: need for personal knowledge does not apply to expert witness testimony)
3. an oath or affirmation
While Rule 606(a) bars juror testimony “at the trial,” it does not bar testimony in this circumstance.
What is when the juror testifies in a different trial about something they observed?
This type of evidence is required to support that a witness has personal knowledge
What is foundation evidenve / proof of personal knowledge?
ie LAYING A FOUNDATION
must also give oath or affirmation to testify truthfully
these things can demonstrate that an expert witness has the required specialized qualifications/ knowledge to testify on an issue
education, experience, knowledge, or skill
The FRE does not touch directly on this but state rules often prohibit what type of testimony from an interested party abt communications or transactions with a deceased person when
What are the 4 capacities a person needs to testify?
What is
Narration - ability to communicate to the jury
Understanding - of the importance of telling the truth
Memory - recalling events
Perception - observing events (could you hear/say what they did)
Judge Stafford is ruling on a slip and fall case where an Cecelia slipped on spilled soap in an isle of a grocery store. Nick, Judge Stafford's law clerk, visited the grocery store and went to the same isle where Cecelia fell and saw that there was once again a puddle of soap from a leaking bottle on the shelf. Can Cecelia's attorney call Nick as a witness to testify about what he saw? Why? What rule governs this issue?
NO nick cannot testify.
Rule 605 prohibits judges from reporting evidence related to experiments they have conducted or visits they have made to a site related to the case. The prohibition also applies to the judge’s law clerks and other employees out of concern the jurors will give too much weight to their testimony.
This rule interacts with Rule 104(b), because the judge must decide if there’s enough of this before the jury hears the witness’s statement.
What is evidence sufficient to support a finding that the witness perceived the event?
in a criminal case, an expert witness must not state an opinion abt whether the Defendent did or did not have a _____. ___ or condition that constitutes an element of the crime charged, or of a defense
what is "mental state"
SHOULD THE COURT ALLOW JERRY TO TESTIFY? The government charged Diane Whited and others with conspiracy to possess cocaine with intent to distribute. Jerry Parks, an alleged participant in the scheme, had been found incompetent to stand trial for his own role in the conspiracy; he suffered from a history of auditory delusions and had spent time in mental health facilities. The prosecutor, however, called Parks to testify against Whited. Whited challenged Parks’s competence to testify.
yes, FRE 601 gives a generous presumption of competence. it is up to the opposing counsel to show weaknesses in testimony or credibility.
this rule allows non-experts to testify opinions under what 3 conditions.
i.e. a non-expert witness can give testimony in the form of an opinion if the opinion is limited to one that is ..
Rule 701: opinion testimony by lay witness
(a) rationally based on the witness’s perception;
lay opinion must be based on personal observation
(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
must be helpful to jury
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702 .