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Evidentiary Foundations for Witnesses This 84-page chapter from Gordon Cleary’s Trial Evidence Foundations provides elements, tactics, and case citations for:
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Evidentiary Foundations for Witnesses Competence, credibility, rehabilitation,
and practice pointers by Gordon P. Cleary Excerpted from Trial Evidence Foundations
§300 In General §310 Competency: General §311 Competency to Stand Trial §312 Criminal Responsibility §320 Competency: Specific Areas §321 Personal Knowledge §322 Child Witness §322.1 Self Representation Right and Child Witness §322.2 Guidelines for Child Witness Testimony §322.3 Statutory Presumption of Child Witness’
Competency to Testify §323 Witness Spouse §324 Miscellaneous Attacks on Competency §324.1 Dead Man’s Statutes (Survivorship Statutes) §324.2 Felons §324.3 Language Barriers §324.4 Inability or Unwillingness to Take Oath §324.5 Testimonial Privileges §324.6 Insanity §324.7 Mental Deficiency §324.8 Judges §324.9 Jurors §324.10 Hypnosis §324.11 Attorneys §324.12 Narcotics Users §324.13 Facilitated Communication §325 Witnesses Called by the Court §330 Credibility: Establishment §331 Prior Identification §332 Fresh Complaint §333 Expert Testimony Relating to Credibility §340 Credibility: Attack §341 Impeachment §341.1 Prior Bad Acts §341.2 Character Trait of Untruthfulness §341.3 Convictions §341.4 Bias §341.4.1 Evidence of Pending Charges Against State Witnesses §341.5 Prior Inconsistent Statements §341.6 Deficiencies in Mental or Physical Capacity §341.6.1 Psychiatric Testimony to Attack a Witness’
Competency §341.7 Exclusion of Witnesses §341.8 Impeachment of a Party’s Own Witness §341.9 The Empty Chair Doctrine §341.10 Impeachment Through Other Witness
Contradiction §341.11 Impeachment of Hearsay Declarants §350 Rehabilitation §351 Prior Consistent Statements §352 Character Trait of Truthfulness §353 Underlying Acts Resulting in Conviction §354 Rehabilitation of Hearsay Declarants §355 Rehabilitation Through Evidence Attacking Party’s Prior
Bad Act §356 Rehabilitation: Daubert Challenges §360 Practice Pointers §300 In General There are both substantive and procedural
rules which must be satisfied before a witness has the competency to
testify. What the witness says must be competent evidence also. §310 Competency: General Rule 601 of the Federal Rules of Evidence provides a general
rule of competency. The rule states: 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 law of decision, the competency of a witness shall be
determined in accordance with the state law. Rule 601 eliminates all grounds of witness
incompetency relating to either a claim or defense to which federal law
provides the rule of decision, unless a rule of competency is specifically
recognized in the Federal Rules of Evidence. Therefore, a witness is not
incompetent to testify because of age, mental incapacity, race, national
origin, moral depravity, conviction of crime, religious belief, marital
relationship, or connection with any litigation as a party, attorney or
other interested person. Although these specific classifications were once
regarded as a grounds of incompetency, they are now merely methods to
impeach a witness, rather than preclude a witness from testifying. The only general competency requirements now
recognized in the Federal Rules are those contained in Rules 602 and 603.
Rule 603 requires every witness declare that he will testify truthfully by
either oath or affirmation. Rule 602 requires that a witness possess
personal knowledge before he testify. These rules, when taken together,
require that: (1) The witness possess the capacity accurately to
perceive, record and recollect impressions of fact (i.e., the witness has
physical and mental capacity); (2) The witness perceived, recorded and recollected
impressions that have a tendency to establish a fact of some consequence in
the litigation (i.e., the witness has personal knowledge); (3) The witness is capable of understanding the
obligation to tell the truth (i.e., the oath or affirmation requirement);
and (4) The witness possesses the capacity to express
himself understandably (i.e., narration) (Note: Rule 604 allows, where
necessary, that the witness express himself understandably with the aid of
an interpreter). See M. Graham, Handbook of Federal Evidence §601.1 at
379 (3rd ed. 1991). The following section details the elements necessary
to support a finding of witness competency. Elements Before a witness will be permitted to testify, evidence must
be introduced to show the following:
These are the only requirements necessary under the
Federal Rules. There is no requirement of mental qualification. In fact, the
Advisory Committee’s notes to Rule 602 and 603 state that any standards of
mental capacity have proved to be too elusive to be workable. In fact, there
are few cases where any witness was actually disqualified on the grounds of
mental capacity. Although mental capacity per se is no longer
sufficient grounds to establish witness incompetency, a witness whose mental
capacity has been severely questioned or attacked may be excluded by the
trial court on the grounds that “no reasonable juror could possibly believe
that the witness in fact possesses personal knowledge, [under] Rule 602, or
understands the difference between the truth and a lie or fantasy and a duty
to tell the truth, Rule 603.” M. Graham, Handbook of Federal Evidence §601.1
at 380 (3rd ed. 1991). Note:
Trustworthiness or reliability is not an issue to consider in the court’s
determination whether to admit a witness’ testimony; rather, the competency
of the witness is the proper focus of inquiry. Accordingly:
— can appreciate the duty to tell the
truth — have the ability, at least minimally, of
observing, recalling and communicating the nature of events perceived. Incompetency to stand trial as a result of a mental
condition does not preclude the person from being a witness. The party
calling the witness must have the opportunity to make a proffer and record
to determine the witness’ ability to testify. See Parrot v. Tactics Federal Rule of Evidence 601 abolishes most of the
traditional attacks on competency. Even if a witness is competent, i.e., he
can observe, remember, narrate and recognize the duty to tell the truth, the
law may under certain circumstances render him incompetent as a witness. For
example, a witness spouse may meet all of the criteria of competency, yet be
barred from testifying against the other spouse. The law may recognize some
social policy, such as protecting the stability and integrity of marriages
and, therefore, prohibit the spouse from testifying. Similarly, an attorney
can meet all of the competency requirements, but be rendered an incompetent
witness against his client because of the attorney-client privilege. If you wish to challenge a witness’ competency:
— appreciation of duty to tell truth, — capable of observing, — capable of recalling, — capable of communicating and narrating.
— witnesses with histories of mental
illness, — child witnesses where they are
insufficiently aware of need to tell the truth. Ask that the court rule that the witness is
incompetent to testify. In most jurisdictions the witness will have to be
sworn in to answer the voir dire questions, but the oath usually requires
him to swear only to answer truthfully the questions about his competency.
In some jurisdictions, however, the court does not require that the voir
dire examination be sworn. Because competency issues fall within evidentiary
doctrines designed to insure reliability of relevant evidence, the trial
court (as opposed to the jury) must decide whether the witness is competent
to testify. Because of this fact, many courts allow an attorney bringing a
competency challenge against a witness to present extrinsic evidence on the
issue of competency. For example, extrinsic evidence can consist of
psychiatrist’s testimony that:
The trial court can also allow lay witnesses to
testify concerning issues relevant to another witness’ competency. While the
lay witness may not render an opinion as to competency, the lay
witness can:
If the court decides that the witness is competent to
testify:
If, however, the court is satisfied that the witness
is incompetent, the court then directs the witness to leave the stand. Additionally, even if a witness cannot be challenged
on competency grounds, there may be substantive or ethical grounds to bar a
witness from testifying. For example, an attorney, though a competent
witness, may be barred ethically from testifying on behalf of a client in a
case where he is also serving as that client’s advocate. If the attorney is
called to testify on behalf of a client, or alternatively, is called by the
opponent as a factual witness to certain relevant events, the attorney may
have to withdraw as advocate. The ethical rules generally will not allow an
attorney to play a dual role as witness and advocate. Finally, even if a witness is otherwise competent to
testify, the court can preclude the witness from doing so on “fairness”
grounds. For example, if a party declines to make a witness available to the
opponent at trial, that party may not be entitled to call the witness in
support of its case either. Allowing a party to reserve for itself the live
testimony of its own witnesses can constitute unfair prejudice against the
other party and is probably excludable under Rule 403, even though the
witness is competent to testify under Rule 601. See R. B. Matthews, Inc.
v. Transamerica Transportation Serv. Inc., 945 F.2d 269 (9th Cir. 1991). Note: Remember that Rule
601 states that all witnesses are competent unless they are specifically
rendered incompetent by another rule of evidence, except where state law
provides the substantive rule. Accordingly, the court must focus on the
relevancy of the witness’ testimony as opposed to the competency of the
witness’ testimony under most circumstances. See Fed.R.Evid. 402.
This means that absent incompetence, the testimony should be excluded only
where:
See Fed.R.Evid. 403. Finally, where state law in civil cases provides the
rule of decision, then Rule 601 codifies the doctrine of Erie v. Tompkins,
304 U.S. 64 (1938), by providing that state competency rules must be applied
in the federal courts whenever state law applies to the substantive rule of
law. Examples of state law application under Rule 601 are the so-called
“Dead Man statutes,” which generally preclude an interested person or party
from testifying regarding transactions that involve a decedent or
incompetent whenever the decedent’s or incompetent’s estate is the adverse
party. Cases United States v. DeLucia, 256 F.2d 487 (7th Cir.
1958), cert. denied, 358 U.S. 836 (1958), reh’g denied 358
U.S. 896 (1958). In the law of evidence, the term “competency” refers to the
presence of those characteristics, or the absence of those disabilities,
which render a witness legally fit and qualified to testify in
court, or to documents or other written evidence. United States v. McRary, 616 F.2d 181 (5th Cir.
1980), appeal after remand, 665 F.2d 674, cert. denied, 456 United States v. Gutman, 725 F.2d 417 (7th Cir.
1984), cert. denied, 105 S.Ct. 244. Insanity is no longer a ground
for disqualifying a witness under Rule 601; but a court has the power to
hold a hearing to determine whether the witness should not be allowed to
testify because insanity has made him incapable of testifying in a
competent fashion. Peters v. Whitley, 942 F.2d 937 (5th Cir. 1991).
Court may allow mental patient to testify so long as it is satisfied
of the person’s ability to give an accurate statement of what he or
she perceived. Accordingly, it was proper for the trial court to allow a
retarded woman with a mental age of between 2 and 7 to testify where the
witness knew the difference between the truth and a lie, and also knew that
it was wrong to tell a lie. Trial court’s finding in this regard will be
reversed on appeal only for a clear abuse of discretion. Compare: Seabra v.
Trafford-Seabra, 655 A.2d 250 (R.I. 1995). Trial court did not abuse
discretion in determining that mildly retarded individual, who became
frightened by proceedings, who was easily capable of being
manipulated and who would have extreme difficulty in giving
accurate account of alleged abuse, was incompetent to testify. Note: The
reasoning of these cases leads to a conclusion that even someone who is an
admitted perjurer is not “incompetent” to testify; rather, the trier of fact
is entitled to weigh the prior perjury in determining that witness’
credibility. Note: When
offering testimony of a witness who is a drug addict against a competency
challenge, stress that matters of credibility are determined by the trier of
fact. Accordingly, the trier of fact should focus on:
Prime v. State, 767 P.2d 149 ( Rock v. Note: Attacks on
witness testimony that has been refreshed or enhanced through the use of
hypnosis are generally brought under Rule 601 (competency) or 602 (personal
knowledge). Further discussion of controversial area of hypnosis is found in
§§321 and 329 infra. §311 Competency to Stand Trial Competency to stand trial is different than the competency
to serve as a witness in a case. The standards which govern whether a
defendant is incompetent to stand trial are [See State v. Peabody,
611 A.2d 826 (R.I. 1992)]:
The standard for review on issues of competency to
stand trial will be “abuse of discretion.” §312 Criminal Responsibility The standards to determine whether a person is not
responsible for criminal conduct are different from competency to serve as a
witness or competency to stand trial. The standards by which courts
determine whether an individual is not responsible for criminal conduct are
[State v. Johnson, 121 R.I. 254, 399, A.2d 469 (1979)]:
Cases State v. State v. Cabral, 122 R.I. 623, 410 A.2d 438
(1990). A witness is not competent to testify at trial if he or she is
unable (1) to observe, (2) to recollect, (3) to communicate (in a capacity
to understand questions and to furnish intelligent answers), and (4) to
appreciate the necessity of telling the truth. State v. Johnson, 121 R.I. 254, 399 A.2d 469
(1979). A person is not responsible for criminal conduct if at the time of
such conduct, as a result of mental disease or defect, that person’s
capacity either to appreciate the wrongfulness of his conduct or to conform
his conduct to the requirements of law is so substantially impaired that the
person cannot justly be held responsible. §320 Competency: Specific Areas The Federal Rules of Evidence create a presumption that
every witness is competent to testify unless it can be shown that:
Despite this presumption, there are specific attacks
that can be made on a witness’ competency. The following sections examine
those specific areas of attack. §321 Personal Knowledge Federal Rule of Evidence 602 provides: 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. Evidence to prove personal knowledge may, but need not, consist
of the testimony of the witness himself. This rule is subject to the
provisions of Rule 703, relating to opinion testimony by expert witness. Rule 602 excludes testimony concerning matters the
witness either did not observe or had no opportunity to observe. If a lay
witness has no personal knowledge of a matter, he is not permitted to
testify on that matter. A witness can acquire personal knowledge through any
of his senses. The personal knowledge requirement is linked to the
inadmissibility of hearsay under Rule 802. The two are related, but not the
same. For example, if a witness begins testifying to a transaction that
occurred between him and another witness in State A but admits that he was
in State B at the time of the transaction, an objection on the grounds of
lack of personal knowledge would lie. The witness could not be present at
the transaction in State A while he was out of state. If, however, the
witness attempts to correct himself and explains that he was told of what
happened during that transaction, then you would object on the grounds of
hearsay. Rules 801, 803 and 804 provide for certain
circumstances where a witness can testify to a statement that:
See §§600-680 infra for discussions of hearsay and
hearsay exceptions. Under these circumstances, the witness may testify
even if he has no personal knowledge of the matter related in the extra
judicial statement. However, the witness must still:
If the declarant did not have personal knowledge, then
even though the statement may come in as non-hearsay or as a hearsay
exception, it will be barred pursuant to Rule 602. This is true because in a hearsay situation the
declarant is still a witness. The Federal Rules of Evidence relating to
hearsay do not dispense with the requirement of firsthand knowledge, merely
because they provide for certain hearsay exceptions. Therefore, if you are
objecting to a witness who relates what seems to be a hearsay statement:
The prohibitions against trial testimony without
personal knowledge apply equally when the “testimony” is proffered by way of
affidavit or declaration, e.g., to support or oppose a motion for summary
judgment. Visser v. Parker Engineering Assoc., Inc., 924 F.2d 655
(7th Cir. 1991). Note: There is an
exception to the personal knowledge requirement of Rule 602, but it does not
apply to statements of a co-conspirator that are admissible as non-hearsay
under Rule 801(d)(2)(E). See Elements To establish a foundation to meet the requirements of Rule
602, the following elements must be demonstrated:
Tactics If you are challenging a witness on personal knowledge
grounds:
If, for example, the witness testifies that he saw a
particular event, but you can show that the witness was unable to see the
event either because of an obstructed view, distance problems, or problems
with eyesight, you may have an appropriate foundation objection. If you are attempting to resist a foundational attack
based on lack of personal knowledge:
If it would be difficult, but not impossible, for the
witness to perceive an event, that should go to the weight of his testimony
rather than to his competency to testify. The modern trend is to allow a witness to testify
subject to cross-examination. This allows the witness to present evidence to
the jurors and allows the ultimate credibility issue to be determined by
them. If the judge rules that the witness is incompetent because of lack of
personal knowledge or some other competency problem, the witness will never
get to the jury. If you are seeking to preclude the witness from
testifying:
— the witness’ ability to observe, — the witness’ capacity to recall or
recollect, — the witness’ capacity to narrate, — the witness’ personal knowledge of
matters about which he or she is to testify, and — whether the witness understands the duty
to tell the truth. If the witness is ruled competent to testify because
he has personal knowledge:
Part of the foundation on personal knowledge is (a)
that the witness has the capacity and the opportunity to observe through his
senses some relevant matter; and (b) that he did in fact observe the matter,
record the matter in his memory, and can now recollect and narrate what he
perceived. In some cases where a witness’ memory is lacking, the proponent
of the testimony may:
The rules allow for a witness’ memory to be refreshed.
A witness can be shown a document, a photograph, a piece of clothing, etc.,
which may refresh his recollection. Once his memory has been refreshed, he
will be allowed to testify about what he previously perceived. Hypnosis. One recurrent and controversial
problem in evidence law is whether a witness’ testimony can be refreshed by
the use of hypnosis. There is a split in authority on whether a witness may
have his memory refreshed by pre-trial hypnosis. Some courts hold that the
testimony of a witness whose memory has been refreshed by hypnosis is
inadmissible because:
— the hypnotic session should be conducted
only by a psychologist/psychiatrist qualified as an expert in hypnosis; — the hypnotist should be unbiased,
independent of and not regularly employed by either the prosecution or the
defense (or in civil cases by one of the parties); — any information that the hypnotist is
given by either side prior to the hypnosis session should be recorded and
preserved; — prior to induction, the hypnotist should
have the subject describe in narrative form his entire memory of the
incident; — all contacts between the subject and the
hypnotist should be recorded on audiotape, or preferably videotape; — only the subject and the hypnotist
should be present at any stage of the hypnotic session. Finally, there may be certain constitutional limits on
the admissibility of hypnotically refreshed testimony. For example, in
Rock v. Arkansas, 483 U.S. 44 (1987) the United States Supreme Court
struck down Arkansas’ per se rule of exclusion of all hypnotically
refreshed testimony holding that such a rule impermissibly infringed on a
criminal defendant’s right to testify in his own behalf. The Court reasoned
that despite possible unreliability of hypnotically refreshed testimony:
Note: The Supreme Court
did not endorse a general rule in favor of hypnosis; rather, the Court
indicated that every criminal defendant has a right to testify in his own
behalf under the Due Process Clause of the Fourteenth Amendment, the
Compulsory Process Clause of the Sixth Amendment, and the Fifth Amendment
privilege against self-incrimination. While the right to present relevant
testimony is not without limitation, restrictions placed on a defendant’s
constitutional right to testify by a state’s evidentiary rules may not be
arbitrary or disproportionate to the purposes they are designed to serve. For further information, analysis and discussion of
the various jurisdictions’ approaches to the possible use and admission of
hypnotically refreshed or enhanced testimony, see J. Tarantino, Strategic
Use of Scientific Evidence, ch. 5 (1988 & curr. rev.). If you are the proponent of testimony that has been
refreshed by pre-trial hypnosis, whether in a civil or criminal proceeding:
If you are opposing the admission of hypnotically
refreshed testimony:
If the evidence is initially allowed into evidence by
the court in a Rule 104 determination, but after cross-examination, you are
able to demonstrate that the witness did not have personal knowledge
concerning the events testified to on direct examination through
hypnotically refreshed testimony, then:
Recovered Memories One of the most controversial areas in evidence is whether
courts will allow lawsuits to proceed, and evidence to be admitted at trial,
based on recovered or repressed memories. In both the criminal and civil
context, parties are alleging, for example, that they were sexually
assaulted years earlier and they repressed those memories; accordingly, they
were not aware and, therefore, were unable to bring charges or to file a
lawsuit against the perpetrator for many years. The recovered or repressed
memories, once they have resurfaced, run squarely into the jurisdiction’s
statutes of limitation which otherwise would bar an apparently stale claim.
Courts have been forced to wrestle with the issue of whether the statutes of
limitation should be tolled during the period of time that the memories were
repressed. See generally J. Tarantino, Strategic Use of Scientific
Evidence §5.37[A] (1988 & curr. rev.) (discussing the legal and scientific
controversy surrounding lawsuits predicated upon repressed or recovered
memories). Elements Following are the foundational elements to admit evidence of
recovered or repressed memories:
(continued in pamphlet)
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