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.
,3) Witness Opinion Testimony
A witness’ opinion testimony is generally not admissible under public policy. However, under certain
circumstances, the witness’ opinion may be admissible. Firstly, the witness’ opinion must have been
rationally based on his perception of a particular event. Secondly, the opinion must actually be helpful
to clear an understanding of either a material fact in issue, or to clarify the witness’ testimony. Lastly,
his testimony cannot involve any scientific or technical expertise, as this would constitute an expert
witness testimony. Witnesses can generally give opinions on most issues, except for issues such as
agency authority or the legal validity of a contract.
4) Witness Objection
A party has the right to object to certain matters made by a witness’ testimony either during trial or
deposition. During trial, the party can only object to inadmissible matters either after the witness is
questioned or before the witness gives an answer. Also, the party can object by making a motion to
strike if during the witness’ testimony, the witness’ answer appears to be inadmissible. If the party
fails to object, the witness’ testimony will be admissible as the party has waived his right to object.
Whereas in depositions, a party can object to the question during deposition if based on the form of
the questioning, but he can object after the deposition if based on the substance of the question.
Parties are required to respond to testimonies that concern relevant matters. In contrast, they are
permitted (not required) to respond to testimonies that concern non-relevant matters, whether or not
he objected to the testimony in the first place.
The ‘Open the Door’ rule provides that if a party has introduced evidence on a particular subject
matter, the opponent party has the right to introduce evidence on the same matter. The introducing
party has no right to complain against his opponent because he ‘opened the door’ as to the subject
matter.
The ‘Rule of Completeness’ requires that if a party has provided evidence, the opponent party can
request that the providing party provides the remainder of the evidence without objection.
5) Judicial Notice
Although some factual issues must be proven by offering sufficient evidence, judicial notice may be
taken of facts without any evidence required. Judicial notice can be taken by the judge of facts or law.
Facts will be presumed if they are of either common knowledge to the judge within his own
jurisdiction, or they can be easily proven with ease of access to sources readily available to the judge
and such facts have no questionable accuracy. For instance, court documents or scientific evidence
can be easily accessed. However, personal information of an individual such as his birth certificates
will require hindered access. On the other hand, a judge may take judicial notice of law. Judicial
notice must be taken mandatorily of federal or state laws. However, judicial notice does not have to
be taken of laws arising out of municipal ordinances, private acts of Congress or foreign legislature.
In terms of procedure, the judge may decide to take judicial notice at his own will. Alternatively, the
parties can request that the judge takes judicial notice, particularly on the first time when making an
appeal only.
, In civil cases, it is conclusively presumed and the jury can have no say on whether such facts or laws
should be presumed. But in criminal cases, the jury can still decide whether to rebut such judicial
notice.
6) Judge & Jury
A judge and a jury possess different roles with regards to the admissibility of evidence.
In a jury trial, a judge determines questions of law and the jury determines questions of fact. However,
a bench trial requires that the judge determines both questions of fact and law separately as there is
no jury present. With regards to admissibility of evidence, the judge looks at whether the evidence is
competent or not. This may be determined by whether the evidence is hearsay, privileged, competent
as expert witness testimony, it has probative value (Rule 604 Test), or the contents of the evidence
are true (Best Evidence Rule). However, where secondary evidence is used to prove the competency
of the primary evidence, secondary evidence will not be subject to federal rules (except privilege
which is not recognised under federal rules). For instance, if the secondary evidence is hearsay, it can
still be used to determine the competency of the primary evidence, unless it is privileged.
On the other hand, the jury decides the relevancy of primary evidence rather than its competency.
The jury looks at whether evidence provided by a lay witness rather than an expert is admissible or
the witness has good credibility, whether an agency existed at the time, or whether the evidence is
properly authenticated (the document is what the proponent claims it to be).
7) Burden of Proof (DPC 14A)
Under the Due Process Clause of the Fourteenth Amendment, a party must prove a prima facie case
to persuade the trier of fact, the jury in a jury trial or judge in a bench trial, to overcome any disputes
over the existence of any facts.
In civil cases, the burden of production of evidence will be allocated to one party, who must then
produce evidence to demonstrate a prima facie case with allegations supported by factual evidence.
The burden of production will then be shifted to the other party to rebut any presumptions of facts
made by the first party. Whether or not he cannot rebut such presumptions, the burden of persuasion
will remain with the original party with the burden of production to persuade the jury as to the
existence of facts in a case. Most states only require preponderance of evidence.
In criminal cases, the prosecution must prove facts beyond reasonable doubt, showing that the
existence of facts is more likely than not.
8) Presumptions
A jury can draw certain inferences from the existence of facts. However, there are two types of
inferences.
Conclusive presumptions cannot be rebutted in any way, nor can permissive inferences. These
includes inferences of res ipsa loquitor, where a defendant should be found liable for injuries caused
towards someone without any direct evidence although the existence of such injury would not have
occurred but for a party’s negligence and the defendant had the exclusive control of an instrument
that could cause such injury. It may also include undue influence by a beneficiary over a testator in
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