Witnesses: Competency, Examination and Impeachment: every key term you need (+ practice quiz)
25 flashcard terms for Evidence Topic 3, written to match the course framework. Study them here, then drill them as interactive flashcards, or test yourself with the 15-question quiz — free, no account needed.
The baseline federal rule that every person is presumed competent to testify unless the rules provide otherwise; in civil claims governed by state substantive law, state competency law supplies the standard.
Dead Man's Act
A state statute barring an interested survivor from testifying about transactions with a decedent. It reaches federal court only through FRE 601 when state law supplies the rule of decision on the claim or defense.
Personal knowledge requirement
Under FRE 602 a lay witness may testify to a matter only if evidence supports a finding that the witness perceived it firsthand. Proof of knowledge may come from the witness's own testimony.
Oath or affirmation under FRE 603
Before testifying a witness must give an oath or affirmation designed to impress on that person the duty to be truthful and to expose the witness to a perjury prosecution. No particular religious form is required.
Child witness capacity
Age alone does not disqualify a testifying child under FRE 601. The trial judge may still exclude testimony if the child cannot perceive, remember, communicate, or appreciate the obligation to tell the truth.
Judge as witness under FRE 605
The presiding judge may not testify at the trial being presided over. The objection is automatically preserved, so counsel need not object and risk antagonizing the court.
Juror as witness under FRE 606(a)
A seated juror may not testify as a witness before the other jurors in the trial. If the juror is called, the party opposing must be given a chance to object outside the jury's presence.
Verdict impeachment ban
FRE 606(b) forbids juror testimony about statements during deliberations, the effect of anything on any juror's vote, or a juror's mental processes, when offered to attack the validity of a verdict or indictment.
Exceptions to FRE 606(b)
A juror may testify that extraneous prejudicial information reached the jury, that an outside improper influence was brought to bear, or that a mistake was made in entering the verdict on the verdict form.
Pena-Rodriguez v. Colorado
The Supreme Court held that when a juror makes a clear statement showing racial animus was a significant motivating factor in voting to convict, the Sixth Amendment requires an exception to the no impeachment rule.
Mode and order under FRE 611(a)
The court controls the mode and order of examining witnesses and presenting evidence so as to make the process effective for finding truth, avoid wasting time, and protect witnesses from harassment or undue embarrassment.
Scope of cross-examination rule
FRE 611(b) generally limits cross to the subject matter of direct plus credibility matters. The court has discretion to allow broader inquiry, which is then conducted as if on direct.
Leading question
A question suggesting the desired answer. FRE 611(c) bars leading on direct except as needed to develop testimony, and allows it on cross and when examining a hostile, adverse, or identified-with-adverse-party witness.
Present recollection refreshed
A forgetful witness is shown any item to jog memory; the item is not evidence, and the answer must come from restored memory rather than from reading the item aloud to the jury.
Adversary rights under FRE 612
When a writing is used to refresh memory while testifying, the opponent may inspect it, cross-examine on it, and introduce the relevant portions into evidence. Use before testifying triggers these rights in the court's discretion.
Court calling witnesses under FRE 614
The judge may call a witness on the court's own motion or at a party's request, and may examine any witness. Each party may cross-examine a court-called witness.
Sequestration under FRE 615
On request the court must order witnesses excluded so they cannot hear other testimony, and it may do so on its own. The order aims to deter and expose tailored or coordinated accounts.
Persons exempt from exclusion
FRE 615 does not authorize excluding a natural person who is a party, a designated officer or employee of an entity party, a person essential to presenting the claim or defense, or a person authorized by statute.
Impeachment by bias
Showing the witness has a motive to favor or disfavor a party, such as payment, family ties, a plea deal, or hostility. Bias is never collateral, so extrinsic proof is allowed after a chance to explain.
Impeachment by sensory defect
Attacking the witness's capacity to perceive, remember, or relate the events, using poor eyesight, distance, intoxication, or memory loss. Extrinsic evidence of the defect is permitted.
Impeachment by contradiction
Proof that a specific fact the witness asserted is wrong, offered to suggest the rest of the account is unreliable. Extrinsic contradiction is barred when the disputed fact is purely collateral.
Prior inconsistent statement as impeachment
Under FRE 613 a witness may be confronted with an earlier statement that conflicts with the trial testimony. Extrinsic proof requires a chance to explain or deny plus an opportunity for the opponent to examine, unless justice says otherwise.
Opinion and reputation for untruthfulness
FRE 608(a) permits attacking a witness's credibility with reputation or opinion testimony about that witness's character for untruthfulness. Supporting evidence of truthful character is allowed only after the trait is attacked.
Specific instances under FRE 608(b)
Non-conviction acts probative of truthfulness may be raised on cross-examination in the court's discretion, but the questioner is bound by the answer and may not prove the act with extrinsic evidence.
Ten-year rule of FRE 609(b)
If more than ten years have passed since conviction or release from confinement, whichever is later, the conviction is admissible only if probative value substantially outweighs prejudice and written notice is given.