Federal Rules of Evidence – Witnesses

Federal Rules of Evidence Law School Supplements

Federal Rules of Evidence Law School Supplements


  • Leading Questions:
    • Don’t really want to use leading questions even if permitted because the jury will think you’re trying to control the situation
    • 1st person to call:
      • person who can tell story from beginning to end
    • Generally not allowed on direct examination
    • Cross Examination:
      • Limited by scope restriction and credibility of that witness
    • Leading Question: Any question that suggests the desired answer
      • Ex: Isn’t it true that before you left, you close and locked the gate to the pool?
    • Rule 611: Mode and Order of Interrogation and Presentation:
      • © Leading Questions:
        • Leading questions should not be used on direct exam. of a witness except as may be necessary to develop the witness’ testimony. Ordinarily leading questions should be permitted on cross examination.
        • “The Rule 611© continues the traditional view that the suggestive powers of the leading questions are as general proposition undesirable. Within this tradition, however, numerous exceptions.”
  • Exceptions to Rule Preventing Leading Questions on Direct Examination:
    • Preliminary matters
    • Hostile witness
    • Adverse party
    • Witness identified with an adverse party
    • Forgetful witnesses or frightened witness
    • Child Witness
  • Cross Examination:
    • If you know something bad is going to come out in cross, you should bring it out yourself in direct examination to position it the way you want and make yourself look more honest/truthful
    • Effective cross-examination:
      • Take full advantage of pre-trial discovery (know that discovery tools can be used to give advantage on cross examination)
      • Be prepared (be able to give your closing argument even before the trial starts)
      • Utilize cross-examination only to support your arguments
      • Listen carefully to the witnesses’ answers
      • Do not quarrel with the witness
      • Do not give the witness the opportunity to once again tell his or her story
      • Never permit the witness to explain
      • Avoid the one too many question (leave it for summation)
      • Respect the intelligence of the jury
      • Be succinct, be simple (use plain words)
      • Always use leading questions
      • NEVER ask questions to which you do not already know the answer
  • Separate Witnesses:
    • Witnesses should be separated while the others are on stand with exceptions (victim)
    • “The efficacy of excluding or sequestering witnesses has long been recognized as a means of discouraging and exposing lies.”
    • Rule 615: Exclusion of Witness:
      • At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion.
      • New law says victims are allowed to be present except in situation where their testimony would be materially affected by their presence
      • “This tule does not authorize exclusion of
        • 1) party who is natural person
        • 2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or
        • 3) a person whose presence I shown by a party to be essential to the presentation of the party’s cause, or
        • 4) a person authorized by statute to be present
      • “Many DC permit a government counsel to have an investigative agent at counsel table throughout the trial although the agent is or may be a witness…It is our understanding that this was the intention of the House committee. It is certainly this committee’s construction of the rule.”
    • Techniques for Refreshing Recollection:
      • Ask for recess
      • Ask leading question
      • Refresh present recollection
      • Seek to have memory refreshing evidence put into the record
      • You can refresh recollection with anything (even an inadmissible document)
        • ‘Can’t read from inadmissible diary, but she can reference it
      • “A lawyer may legitimately attempt to refresh a witness’ memory, to assist the witness to testify in a straightforward and effective way, and to help the witness be prepared to meet improper or suggestive lines of hostile examination.”
        • “On the other hand, a lawyer may not assist or school a witness n twisting or distorting the witness’ subjective memory and, thus, the truth as far as the witness knows it.”
    • Rule 612: Writing Used to Refresh Memory:
      • Except as othweise provided in criminal proceedings by section 2500 of title 18, US Code, if a witness uses a writing to refresh memory for the purpose of testifying, either—
        • 1) While testifying, or
        • 2) Before testifying, if the court in its discretion determines it is necessary in the interests of justice,
      • an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross examnation the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness
    • Jenks Act:
      • Bars discovery
      • Limitation on what defense lawyers can get before witnesses testify
      • Even grand jury testimony defense lawyers gets
      • Defense cannot get such statements until said witness has testified on direct examination
      • Conclusions:
        • 1) D is entitled to statements from govt. witness before testifying
        • 2) probably statements by govt. witness not covered by Act are not discoverable


Chapter 6: Competency of Witnesses

A. Historical Note:

  1. Class Notes:
    • Our witnesses need to have personal knowledge
    • All witnesses do not have to have personal knowledge (certain limited exceptions expert witnesses)
    • Competency: eligibility of witness to take the stand
    • Most grounds that came from common law that made witnesses not competent to testify have been moved into impeachment area
    • Rule 601:
      • Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State Law.
  2. General Notes:
    • One of the striking contrasts btwn common law and modern rules of evidence = in area of competency of witnesses
      • Common law = imposed disabilities that made potential witnesses incompetent to testify in court
    • Imposed Disabilities:
      • 1) Mental Incapacity:
        • Insane or mentally impaired were incompetent to be witnesses at common law
      • 2) Religious Belief:
        • At common law belief n a deity who would punish false swearing, either in this life or hereafter, was an essential component of oath
        • Atheists, agnostics, others weren’t deemed competent to take oath
      • 3) Criminal Conviction:
        • Person convicted of certain “infamous” crimes were rendered “civilly dead” they couldn’t vote, hold office, serve on jury, or testify as witnesses
        • This disqualification has since been abolished
      • 4) Infancy:
        • Common law was MUCH more strict than modern evidence law in disqualifying children as witnesses
        • Courts tended to focus more on their ability to understand the oath now the focus is on their capacities of perception and recollection
      • 5) Parties:
        • The general rule of the common law was that a party could not be a witness for himself or a coparty in the case
        • This has been abandoned in all jurisdictions
      • 6) Spouses of Parties:
        • At one time spouse was incompetent to testify either for or against the other
        • Today: spouse is no longer incompetent to give favorable testimony and the rules on adverse spousal testimony have been narrowed
        • In criminal cases, D can’t block testimony of spouse wiling to give it
      • 7) Accomplices:
        • Common law barred testimony of accomplices either for or against D if they were parties to the same charge no longer so
      • 8) Other Interested Persons:
        • Common law also disqualified witnesses having a direct interest in the litigation virtually obsolete now


B. Competency: The Modern Rule

  1. United States v. Lightly (US Court of Appeals for the 4th Circuit, 677 F.2d 1027, 1982):
    • Facts:
      • Inmate stabbed in cell and Lightly and McDuffie were suspected but only Lightly charged
      • McDuffie not indicted b/c court appointed psychiatrist found him incompetent to stand trial and criminally insane at time of offense
      • Lightly argued that he saw McDuffie assaulting inmate and he tried to pull him off and was cut (not that he tried to kill the other inmate) this was corroborated by 3 other ppl
        • McDuffie also would have testified that Lightly wasn’t involved in the attempted murder/stabbing
    • Legal Issue:
      • Was the lower court’s finding that McDuffie could not testify because he was found criminally insane and subject to hallucinations correct? NO
    • Holding/Rationale:
      • New Rule:
        • Every witness is presumed competent to testify UNLESS it can be shown that the witness does not have personal knowledge of the matters about which he is to testify, that he does not have the capacity to recall, or that he does not understand the duty to testify truthfully
      • Application:
        • McDuffie had sufficient memory to have personal knowledge of the matters at hand Therefore IMPROPER for the court to disqualify him from testifying
        • This was not harmless error (would have made Lightly innocent)
    • Class Notes:
      • McDuffe would have testified there was offer of proof made
      • The court found that someone even criminally insane can be considered a competent witness

C. The Oath Requirement

  1. United States v. Fowler (US Court of Appeals for the 5th Circuit, 605 F.2d 181, 1979):
    • Facts:
      • D (Fowler) stopped filing taxes and he was indicted in 1971
      • At trial (during which gov. employed the “bank deposits” mode of proof) D was convicted on all counts D appeals
      • D puts forth 7 points of error (1 of importance):
        • D complained that court erred in refusing to allow him to testify after he refused either to swear or affirm that he would tell the truth or submit to cross-examination
    • Legal Issue:
      • Is statement that someone is truthful sufficient to constitute oath for the purposes of testifying? NO
    • Holding/Rationale:
      • FRE 603: “Before testifying, every witness shall be required to declare that he will testify truthfully, by oath or affirmation”
      • Fowler must pay
    • Other Notes:
      • One purpose of the oath is to impress on the mind of the witness a duty to speak only the truth
      • Less obvious purpose = to make him amenable to criminal prosecution if perjured testimony is given
    • Class Notes:
      • Even criminal accused can be prevented from testifying if he refuses to tell the truth
  2. Interpreters:
    • Rule 604: An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation
  3. Personal Knowledge:
    • Rule 602: Lack of Personal Knowledge:
      • A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the wintess has personal knowledge of the matter

D. The Child Witness:

  1. Rickets v. Delaware (Delaware Supreme Court, 488 A.2d 856, 1985)
    • Facts:
      • D was indicted, tried and convicted on one count of 1st degree rape of a 5 year old girl
      • At bench trial, the girl (6 years old now) testified with the use of anatomically correct dolls and drawings that D raped her
      • Before testimony:
        • Child said she went to church, that a lie was a thing that was not true and that it was bad to tell a lie
        • She promised to tell the truth about everything asked in court but she said she wasn’t sure what heaven was
    • Issue:
      • Did the TC commit reversible error in allowing the minor victim, then 6 years old, to testify without an adequate foundation to determine her competency as a witness? NO.
    • Holding/Rationale:
      • Under Rules 601 and 603 of the Delaware Rules of Evidence, the TC court did not err in permitting the child to testify
      • DRE 601:
        • “Every person is competent to be a witness except as otherwise provided in these rules”
        • “no mental or moral qualifications for testifying as a witness are specified…discretion is regularly exercised in favor of allowing the testimony. A witness wholly without capacity if difficult to imagine. The question is one particularly suited to the jury as one of weight and credibility, subject to judicial authority to review the sufficiency of the evidence”
      • Application:
        • Under DRE, girl is presumed competent
      • DRE 603:
        • “Before testifying, every witness shall be required to declare that he will testify truthfully, by oath or affirmation administered in a form calculated to awaken his conscience and impress his mind with his duty to do so”
        • rule designed to afford flexibility with children therefore child was properly found to be competent
    • Class Notes:
      • To be competent you must have 4 things:
        • 1) you must take an oath (don’t have to believe in god however)
        • 2) witness must have perceived something
        • 3) there must be bridge of temporal gap between when you perceived it and when you are going to testify it (must have some minimal recollection)
        • 4) witness must be able to relay information to trier of fact
      • Are there circumstances where statutorily or case law makes person incompetent to testify
        • Ladies and gentlemen of the jury
        • Judge as witness
        • Dead man statutes
        • Spouse testimony
      • Oath and Affirmation—Rule 603:
        • Before testifying, every witness shall take oath saying they’ll testify truthfully
    • Other Notes:
      • Sometimes courts overlook competency issues or deliberately overrise objections on that ground when out-of-court statements by children are offered pursuant to hearsay exception.
    • Exceptions to Juror Testimony:
      • Extraneous prejudicial information
      • Outside influence
      • Pre- and post-deliberative conduct

E. Previously Hypnotized Witnesses

  1. Rock v. Arkansas (US Supreme Court, 483 U.S. 44, 1987)
    • Facts:
      • D (Rock) was charged with manslaughter of husband
      • D was in fight with husband that night and told officers that “she stood up to leave room and her husband grabbed her by the throat and choaked her and threw her against the wall and at that time she walked over and picked up the weapon and pointed it toward the floor and he hit her again and she shot him.”
      • Since D couldn’t remember precise details of shooting, attorney suggested hypnosis in order to refresh memory
        • Hypnosis revealed that she never remembered pulling the trigger the gun was investigated and found defective and prone to fire when dropped
      • Prosecution fought to get hypnosis testimony out judge agreed
      • D was convicted and appealed
    • Legal Issue:
      • Did Arkansas’ evidentiary rule prohibiting the admission of hypnotically refreshed testimony violate D’s constitutional right to testify on her own behalf as a D in criminal case? YES
    • Holding/Rationale:
      • D’s claim that her testimony was impermissibly excluded is bottomed on her constitutional right to testify in her own defense
      • Just as a state may not apply an arbitrary rule of competence to exclude a material defense witness from taking the stand, it also may not apply a rule of evidence that permits a witness to take the stand, but arbitrarily excludes material portions of his testimony
      • General Rule:
        • When a state rule of evidence conflicts with the right to present witnesses, the rule may not be applied mechanistically to defeat the ends of justice, but must meet the fundamental standards of due process
        • There are HOWEVER limitations
      • Application:
        • Arkansas rule assumes that hypnosis-induced testimony is always unreliable therefore this rule operates as a detriment to any D who undergoes hypnosis
        • Rule prevented D from recounting events
        • Despite inaccuracies of hypnosis they can be limited by using trained professionals in neutral setting, corroborating evidence,
      • FINAL WORD: Court can’t arbitrarily exclude all testimony without assessing accuracy b/c it may be reliable in case at hand
    • Class Notes:
      • Supreme court said lower court could not adopts per se rule against hypnotic-induced testimony
      • Court does not say that you have to permit hypnotically induced testimony State can limit this with certain criteria but cannot just prohibit it entirely

F. Dead Man’s Statutes

  1. General Notes:
    • States are concerned with people testifying when the only people that would corroborate their testimony are dead and when they are testifying about the conduct of the dead person States created Dead Man’s Statutes as a result
      • Apply to torts involving the deceased as well as contractual transactions
      • Sometimes they bar testimony by the survivor on any fact occurring prior to the other’s death criticized for looking on all survivors with suspicion

G. Lawyers as Witnesses

  1. General Notes:
    • At common law, attorneys were incompetent as witnesses in cases they were trying only if they had a direct pecuniary interest in the subject of the litigation
    • Now, they can testify but judge has discretion to exclude such testimony or to condition it on withdrawal by the attorney from the case
    • Testimony by attorney violates Code of Professional Responsibility UNLESS:
      • “A lawyer shall not accept employment in contemplates or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify:
        • 1) if the testimony will relate solely to an uncontested matter
        • 2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony
        • 3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client
        • 4) As to any matter, if refusal would work a substantial hardship on the client b/c of the distinctive value of the lawyer or his firm as counsel on a particular case

H. Jurors as Witnesses:

    • Class Notes:
      • Common law requirements for competency have for the most part been thrown out
      • There are certain situations where we say that even though a witness is otherwise competent we’ll declare them incompetent
      • What happens when jury ignored law and one juror talks?
        • We don’t let this in under Rule 606 because it would remove the finality of judgments
      • Rule 606(b) Inquiry into validity of verdict or indictment,
        • “Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the jruro to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. But a juror may testify about
          • whether extraneous prejudicial information was improperly brought to the jury’s attention
          • whether any outside influence was improperly brought to bear upon any juror or
          • whether there was a mistake in entering the verdict onto the verdict form.”
        • “A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.”


  1. Preverdict Testimony by Jurors:
    • Common law = did not disqualify a juror from testifying before a jury of which he was a member (b/c of concern that juror would relate information w/out cross-examination)
    • Rarely arises now but
      • Even where the potential of a juror to be called as a witness has been overlooked, FRE 606(a) prohibits testimony by that juror before the jury panel on which he serves
  2. Problem 6-A: Outside Influence:
    • In a highly publicized criminal prosecution of Volstad, a leading political figure, the jury is given strict instruction not to read the newspaper accounts of the trial or discuss the case with anyone. During the trial, the judge receives info that one juror read newspaper accounts of the trial and discussed those accounts with others at lunch. The judge also hears that an associate of D talked with the same juror outside of court and offered what may have been a bribe. During a recess in trial, after other jurors had been excused, the judge questions the juror about both matters. Does FRE 606(a) bar such inquiry?
  3. Postverdict Testimony by Jurors:
    • Tanner v. United States (US Supreme Court, 483 US 107, 1987)
      • Facts:
        • Conover and Tanner were convicted of conspiring to defraud the US in violation of 18 USC §371 they appealed arguing that DC erred in refusing to admit juror testimony as a post-verdict hearing on juror intoxication during the trial
        • One juror called attorney and informed them that jurors were consuming booze during breaks
        • DC concluded that juror testimony on intoxication was inadmissible under FRE 606(b)
      • Legal Issue:
        • Does alcohol and drugs constitute an “extraneous influence” that would permit juror testimony to impeach a jury verdict? NO.
      • Holding/Rationale:
        • Public Policy:
          • Disfavors post-verdict investigation into juror misconduct because it disrupts the finality of the process
        • Court doesn’t think that drug use constitutes an outside influence
        • D failed to prove “substantial if not wholly conclusive evidence of juror incompetency”
        • DC did not err in deciding, based on the inadmissibility of juror testimony and the clear insufficiency of the nonjuror evidence offered by petitioners, that an additional post-verdict evidentiary hearing was unnecessary
      • Class Notes:
        • Justice Marshall’s Dissenting Opinion:
          • “It is undisputed that Rule 606(b) does not exclude juror testimony as to matters occurring before or after deliberations…Because petitioners’ claim of juror misconduct and incompetency involves objectively verifiable conduct occurring prior to deliberations, juror testimony in support of the claims is admissible under Rule 606(b)…
          • “Even if I agreed with the Court’s expansive construction of Rule 606(b), I would nonetheless find the testimony of juror intoxification admissible under the Rule’s “outside influence” exception. As a common sense matter, drugs and alcohol are outside influences on jury members.”
        • Maybe court should have argued that this would be slippery slope to get into
        • Nothing prevents the judge from waking jurors or removing drunk ones
      • Polling the Jury:
        • If you win DO NOT poll the jury (asking each individual juror if that was their verdict)
      • Clerical Errors:
        • Clerical errors (like we checked the wrong box RE our decision) can be corrected
  4. Problem 6-B: Refusal to Take the Stand
    • Letter can’t be considered and juror can’t testify
  5. Problem 6-C: The $800,000 Jury Error:
    • 606 doesn’t allow affidavits but judge can set aside verdict with JNOV
  6. Problem 6-D: The Jury View:
    • Yes, because this would constitute extraneous influence jury is not to do their own investigating
    • They couldn’t go to the scene unless taken by the court
  7. Problem 6-E: The Bomber:
    • This is a close call and could go either way
    • Knowledge was specialized argument for outside influence
    • Personal knowledge can’t be excluded entirely from jury deliberations
  8. Rule 601: General Rule of Competency
    • Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law.

I. Judges as Witnesses:

  1. General Notes:
    • Common law didn’t consider a judge incompetent to testify in a trial over which the judge is presiding
    • FRE 605 explicitly makes this one of the few federal grounds for incompetency
    • Sometimes they get around this by asking questions to witness in a way that gives their opinion
  2. Rule 605. Competency of Judge as Witness:
    • The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.
    • “The authority of the judge to question witnesses is also well established…The authority is, of course abused when the judge abandons his proper roll and assumes that of advocate, but the manner in which interrogation should be conducted and the proper extend of its exercise are not susceptible of formulation in a Rule.

J. The Personal Knowledge Requirement

  1. General Notes:
    • FRE 602 provides that “a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter”
    • This is different from competency in FRE 104:
      • Competency pertains to the qualification of a person to be a witness
  2. Problem 6-F: The Peacock’s Tale:
    • She doesn’t have personal knowledge Hearsay
    • Argument that if person isn’t qualified as expert, you can challenge this as lack of personal knowledge
  3. Class Notes:
    • Witnesses credibility may be impeached with certain prior convictions
    • Competency does not mean that the witness is credible the cross examination can attack her credibility
  4. Rule 614 CAllign and Interrogation of Witnesses by Court
    • a) Calling by Court:
      • The court may, on its own motion or at the suggestion of a party, call witnesses, and all aprties are entitled to cross-examine witnesses thus called.
    • B) Interrogation by Court:
      • The court may interrogate witnesses

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