feinberg_s00_b.doc - EVIDENCE Feinberg – Spring 2000 I II...

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EVIDENCE Feinberg – Spring 2000 I. Preliminary Questions A. FRE 104 Preliminary Questions (a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules except those with respect to privileges. (b) Relevancy conditioned on fact . When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit upon it, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. (c) Hearing of jury . Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests. (d) Testimony by accused . The accused does not, by testifying upon a preliminary matter, become subject to cross- examination as to other issues in the case. (e) Weight and credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility. II. Competency of Witnesses A. Heavy presumption that witnesses are competent enough to testify – you can always question them about their problem on the stand (ex. drug use intoxicated informer ) B. FRE 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. - if person can understand the oath (3 year old kid) or if they have an inability to perceive or communicate (3 year old kid) – when the kid is testifying now and is competent – can they testify to things that happened when they were a little kid – probably let them because presumption is that they can testify little Archie - someone who can only signal yes or no – argument that they can’t be properly cross-examined but probably let it in - hypnosis: if you remember under but don’t remember after – no b/c you can’t be crossed; if you remember under and then also after – maybe; if you
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remember under and all you remember after is the hypnosis not the actual event – no - SC says no absolute hypnosis-banning rule is allowed b/c it could violate D’s right to testify on their own behalf Rock v. AK C. FRE 602 Lack of Personal Knowledge A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.
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  • Spring '17
  • Rosen
  • The Land, Evidence law, McCormick

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