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University of Mississippi School of Law
Weems, Robert A.


Weems, Fall 2015

I. Introduction

History of the Rules of Evidence

Evidence rules were formerly governed by common law
Federal Rules of Evidence (FRE)

Adopted in 1975
USSC allowed Congress to modify and approve prior to adoption

Mississippi Rules of Evidence (MRE)

Adopted in 1986
Miss. Sup. Ct. took position that Miss. Constitution grants Miss. Sup. Ct. authority to promulgate rules of evidence on its own without approval of legislature
Miss. Sup. Ct. repealed all prior evidence statutes and does not defer to any evidence statutes legislature may pass
MRE is very similar to FRE, though less so now than at time of MRE’s adoption

Order of Trial

Voire Dire – jury selection
Opening statements – overview for the jury
“What says the plaintiff?” – ready to start
“Is the rule invoked?” – sequestration of witnesses (Rule 615)

If so, witnesses who will later testify NOT permitted to stay during other side’s testimony
Logic: prevent witnesses from conforming/changing their testimony

P’s case-in-chief

Direct à cross à re-direct à re-cross

D moves for directed verdict
D’s case-in-chief
P moves for directed verdict
P’s rebuttal – only if new issues are brought up by D’s case-in-chief
Court’s instructions

Federal: unanimous

Criminal: unanimous
Civil: majority

II. Sequestration of Witnesses

FRE/MRE 615: Exclusion of Witnesses (“The Rule”)

Either side may invoke “The Rule” or judge may invoke “The Rule”
“The Rule” applies to exclude witnesses from the courtroom while other witnesses are testifying (witnesses are sequestered in witness room by bailiff)
Policy: to reduce the chance that witnesses will deviate from what they actually witnessed merely to make their testimony conform to testimony of other witnesses

Exceptions to Rule 615 — The Rule does not authorize the exclusion of:

(1) A party who is a natural person

Parties have an absolute right to hear the testimony against them

(2) Officer or employee of a party which is not a natural person designated as its representative by its attorney

Includes a government’s investigative agent

(3) Person whose presence is shown to be essential to the presentation of the party’s cause

This usually applies to expert witnesses

(4) Person authorized by statute to be present

Remedies for violation of “The Rule”:

If intentional: court will prevent witness from testifying IF opposing party suffered actual prejudice
If inadvertent (usually the case): opponent allowed to conduct a “full-bore” cross-examination, i.e., permitted to question witness in such a way as to point out to jury that witness was not supposed to be in the courtroom and that witness has (potentially) testified the same way as previous witnesses

Lawyer cannot tell witness how other witness testified; this is clearly a violation of Rule 615; instead, lawyer must question witness about subject-matter of other witnesses’ testimony

III. Competency of Witnesses

Two types of competency:

General competency: whether witness is competent to testify at all
Special/specific competency: whether witness is competent to testify to a particular matter; whether that person has personal knowledge of the subject

FRE 601: General Rule of Competency (governs general competency)

Every person is presumed competent to be a witness, unless otherwise provided in FRE (i.e., in FRE 602-606)
In diversity cases, when a state law rule of decision addresses a question of competency, state law will govern

FRE 602: Lack of Personal Knowledge (governs special competency)

A witness may not testify unless evidence is introduced to support a finding that the witness has personal knowledge of the matter
Witness’s own testimony can be used to prove personal knowledge
Personal knowledge = witness must have seen, heard, or observed through other senses the facts to which they will testify
Attorney must ask witness some questions when witness first takes stand to establish that witness has personal knowledge
Point is not waived by failing to object

FRE 603: Oath or Affirmation

Witness must take oath or affirmation to be competent to testify
Purpose: to awaken conscience and to subject witness to penalty of perjury
If witness refuses to take oath/affirmation, then they are incompetent to testify

FRE 604: Interpreters

Witness is not rendered incompetent because they do not speak English
Interpreters are subject to FRE and must take oath/affirmation
May use court appointed interpreter or a qualified expert

FRE 605: Competency of Presiding Judge as Witness

Presiding judge in trial may not testify as a witness
No objection must be made to preserve this point because judges have obligation to remain impartial in front of jury
If judge must testify, judge must recuse himself as judge in the trial

FRE 606(a): Competency of Juror as a Witness

Member of jury may not testify as witness before jury in the trial of the case in which the juror is sitting
If juror in trial is called as witness, opposing party shall be afforded opportunity to object out of presence of jury

Thus, under FRE, everyone is competent to testify EXCEPT:

Persons who lack personal knowledge (i.e., specific competency) AND
Persons who refuse to take oath/affirmation AND
Presiding judge AND
Juror in trial

Competency of witnesses under MRE:

MRE 602-606(a) are all the same as FRE
MRE 601 differs as it has two exceptions:

MRE 601(a): Husbands and wives — H or W of a party-sp

used on direct examination / leading questions may be used on cross-examination
Underlying rule to remember: leading questions may not be used when the witness has a friendly relationship/rapport with the examining party

Danger that witness will want to please attorney by giving the answer which the question suggests the attorney desires)
BUT leading questions may be used anytime witness is not friendly to examining party (since danger does not exist here)

When is a question leading:

Questions such as, “Mr. Jones did so-and-so, did he not?” are clearly leading
Just because a question seeks a yes or no answer does not ipso facto render the question leading
Best rule as to how to ask a non-leading question: begin question with “who, what, when, where, why,” or “how”

Exceptions to general rule that leading is not permitted on direct examination:

Preliminary matters (name, address, occupation, etc.)
Matters not in dispute
Witnesses with communication difficulties (anxiety, etc.)
Child witnesses
Hostile witnesses, adverse parties, witnesses identified with adverse parties

When can you use leading questions?

Adverse party = witness for opposing party
Adverse witness = witness identified with an adverse party; introduce witness as an adverse witness at the outset; signals to court and opposing counsel that you intend to lead the witness and that any objection should be raised now
Hostile witness = hostility of witness becomes apparent while witness is testifying; procedure – ask court to allow attorney to continue examination of witness as a hostile witness, thus allowing attorney to lead witness

NOTE: Non-leading questions are more persuasive to jury than leading questions since they allow the witness to testify and do not seem to involve the attorney testifying

Other objectionable forms of questions: argumentative, misleading, and indefinite questions

Argumentative questions: comes up more on cross; badgering the witness (challenging inferences drawn from earlier testimony rather than seeking to elicit new testimony)
Misleading questions: ask witness to assume the truth of facts not yet in evidence, i.e., that witness has not already testified to; it does not matter that an earlier witness has testified to the truth of such facts