Intro to the Federal Rules of Evidence - 34

V. TESTIMONIAL EVIDENCE (ART. VI & ART. VII)

Oral evidence given under oath.

A. COMPETENCY (FRE 601)
FRE 601 provides that all witnesses are competent.

Even those adjudged insane are not necessarily disqualified because a test for insanity differs a standard for witness competency.

1. Federal question cases
The FREs require personal (firsthand) knowledge (FRE 602) and an oath (FRE 603).

a. Personal Knowledge (FRE 602)
i) Foundation - own Testimony
Evidence of personal knowledge may consist of the W’s own testimony such as “I saw the light and it was green.” However, simply stating “The light was green,” requires the foundation that the witness saw the light.

ii) Equivocating W
a witness’s expression of uncertainty is not ground for exclusion so long as the witness had an opportunity to observe.
“I think,” “As I recall,” or “Probably,” etc. equivocation goes to the weight, not admissibility of testimony. Weight is for the jury to consider.

iii) Standard of Proof: Prima facie
The trial judge does not decide whether or not a witness has firsthand knowledge by a preponderance of evidence (the usual standard), but only whether sufficient evidence to support a finding that firsthand knowledge has been introduced, i.e., a prima facie standard. In effect FRE 602 is a specialized application of the conditional relevancy principle of FRE 104(b).

EXAMPLE
Q (LAWYER): What color was the light at Main and Elm when the two cars collied?
A: It was red for the Main Street traffic.
Q: How do you know?
A: Because Mary Smith saw the crash and she told me.
OPPOSING LAWYER: Objection, your honor. No personal knowledge.
JUDGE: Sustained.

b. Oath Requirement (FRE 603)
FRE 603 requires witnesses to swear or affirm to the truthfulness of their testimony. The purpose of the oath is merely to add a stimulus to truth-telling. And a perjury prosecution requires the taking of an oath.

c. Judge as a witness (FRE 605)
The judge presiding at the trial may not testify in that trial as a witness.

d. Juror as a witness (FRE 606)
A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting.
e. Expert witnesses (FRE 702 – 706)

2. Diversity cases
Federal courts honor a state rule of competency in diversity cases.