EVIDENCE
1) Witness Competency (Rule 601)
Under Rule 601 of the Federal Rules of Evidence, a witness is presumed competent in testifying.
This requires that the witness has personal knowledge of the matter he is testifying to, the witness
has the ability to perceive and observe the matter at the time (not incapacitated), the witness
declares that he will testify truthfully on the stand, and he is giving testimony as to facts (not
opinions). Even though the witness cannot meet these attributes, it does not necessarily rule out the
admissibility of his testimony. Rather, the jury will decide whether or not to admit the testimony by
balancing its weight.
Witnesses will be disqualified if either the judge or a juror acts as witness in a case. Jurors may
testify to certain matters after trial if there was extraneous prejudice improperly made towards the
judge or juror, they received outside influence to act as a witness, they made a mistake in entering
their verdict, or they acted with racial animus towards their conviction of defendant.
Under the Dead Man’s Act, a decedent’s estate may be protected from perjured claims. This applies
only in civil cases, not criminal cases. The Act ensures that if the executor or personal
representative of the estate faces perjured claims made by anyone who has interest in the estate,
such that they may gain or lose from the claim, the Act will prevent the estate from being attacked.
Such perjured claims may be made through testimonies as to a transaction or relationship with the
decedent at the time he was alive.
2) Witness Memoranda
Before or during trial, a witness may be offered a memorandum recorded by himself at the time of a
specific event to refresh his recollection while on the stand. There are two types of witness
memoranda and it is important to distinguish the two in terms of their admissibility in court.
A refreshed recollection is a memorandum produced by the witness used to revive his recollection
on the stand. The witness must testify that it has revived his present recollection, rather than his
future recollection, in that the witness must clearly state he remembers a particular event based on
the recollection while on the stand and can give full testimony immediately. Such memorandum
cannot be given to him to read directly from it, but rather to show him the contents briefly so it can
revive his recollection and he can testify without reading from it. Otherwise, it would count as
hearsay (reading out loud a statement made outside of court). The adverse party must then either
introduce the document into evidence as an exhibit, request production or inspection of the
document (even if privileged), or cross-examine the witness. Note that if the memorandum was
used before trial, the adverse party ‘may’ examine it. If the memorandum was used during trial, the
adverse party ‘must’ examine it.
Whereas a recorded recollection cannot revive the witness’ recollection even though he accurately
recorded it at the time of an event, the event was fresh in his memory, he made or directed the
recording at the time, but he cannot fully testify as to its contents. But the key distinction is that if
the witness’ memory cannot be revived, then the witness’ own party can read the recorded
recollection into evidence (to the jury) as substantive evidence because he is unable to testify to its
contents under the hearsay exception. Ultimately, only the adverse party may introduce the
document into evidence as an exhibit, which does not fall under the hearsay exception because it
counts as an opponent admission.
1) Witness Competency (Rule 601)
Under Rule 601 of the Federal Rules of Evidence, a witness is presumed competent in testifying.
This requires that the witness has personal knowledge of the matter he is testifying to, the witness
has the ability to perceive and observe the matter at the time (not incapacitated), the witness
declares that he will testify truthfully on the stand, and he is giving testimony as to facts (not
opinions). Even though the witness cannot meet these attributes, it does not necessarily rule out the
admissibility of his testimony. Rather, the jury will decide whether or not to admit the testimony by
balancing its weight.
Witnesses will be disqualified if either the judge or a juror acts as witness in a case. Jurors may
testify to certain matters after trial if there was extraneous prejudice improperly made towards the
judge or juror, they received outside influence to act as a witness, they made a mistake in entering
their verdict, or they acted with racial animus towards their conviction of defendant.
Under the Dead Man’s Act, a decedent’s estate may be protected from perjured claims. This applies
only in civil cases, not criminal cases. The Act ensures that if the executor or personal
representative of the estate faces perjured claims made by anyone who has interest in the estate,
such that they may gain or lose from the claim, the Act will prevent the estate from being attacked.
Such perjured claims may be made through testimonies as to a transaction or relationship with the
decedent at the time he was alive.
2) Witness Memoranda
Before or during trial, a witness may be offered a memorandum recorded by himself at the time of a
specific event to refresh his recollection while on the stand. There are two types of witness
memoranda and it is important to distinguish the two in terms of their admissibility in court.
A refreshed recollection is a memorandum produced by the witness used to revive his recollection
on the stand. The witness must testify that it has revived his present recollection, rather than his
future recollection, in that the witness must clearly state he remembers a particular event based on
the recollection while on the stand and can give full testimony immediately. Such memorandum
cannot be given to him to read directly from it, but rather to show him the contents briefly so it can
revive his recollection and he can testify without reading from it. Otherwise, it would count as
hearsay (reading out loud a statement made outside of court). The adverse party must then either
introduce the document into evidence as an exhibit, request production or inspection of the
document (even if privileged), or cross-examine the witness. Note that if the memorandum was
used before trial, the adverse party ‘may’ examine it. If the memorandum was used during trial, the
adverse party ‘must’ examine it.
Whereas a recorded recollection cannot revive the witness’ recollection even though he accurately
recorded it at the time of an event, the event was fresh in his memory, he made or directed the
recording at the time, but he cannot fully testify as to its contents. But the key distinction is that if
the witness’ memory cannot be revived, then the witness’ own party can read the recorded
recollection into evidence (to the jury) as substantive evidence because he is unable to testify to its
contents under the hearsay exception. Ultimately, only the adverse party may introduce the
document into evidence as an exhibit, which does not fall under the hearsay exception because it
counts as an opponent admission.
