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Evidence
University of Mississippi School of Law
Weems, Robert A.

EVIDENCE
I) Competency of Witnesses – witness must be competent
A) FRE 601: every person is competent to be a witness except those provided in the rules
1) 602: “special incompetence:” lack of personal knowledge
(a) a witness cannot testify to a matter unless evidence is introduces sufficient to support a finding that the witness has personal knowledge of the matter
(i) witness must have perceived the event w/ his/her senses
(ii) atty must lay foundation that witness has personal knowledge
(b) when it becomes apparent that a witness does not have personal knowledge of an event, the opposing counsel can have any testimony that the witness gave stricken, even if he failed to object before the testimony
2) 603: failure to take an the oath: if the witness will not swear or affirm to tell the truth, then he/she is not competent
B) 604: a person is not incompetent merely b/c he/she can’t speak English
C) Spouses
1) where one spouse is a party to the case, the other spouse is not competent w/o the consent of both spouses
2) exceptions:
(a) spouses may be introduced by each other in all cases
(b) controversies btwn the spouses
(c) criminal prosecutions of one spouse for
(i) criminal act against any child
(ii) contributing to delinquency of a child
(iii) desertion or non-support of children under 16
D) Children
1) at C/L children were permitted to testify IF the trial judge determines that the child has the mental ability to
(a) understand and remember events,
(b) answer questions intelligently, and
(c) understands the importance of telling the truth
2) Moore v. State (MS 1991): MS S. Ct. affirmed the C/L rule’ this is still the law in MS
3) 18 U.S.C. § 3509: Fed’l rule dealing w/ competency of a child
(a) child is presumed to be competent
(b) trial judge will question child to determine competency only if a party objects to competency
E) Attorneys
1) At C/L and under FRE, an atty for a party to the case is not as such incompetent
2) However, the ct has wide discretion to refuse to permit an atty to testify in favor of his client
3) Ivy v. State:
(a) MS S. Ct. held that rules of ethics for lawyers are not the equivalent of rules of evidence
(b) Thus, a violation of ethics does not necessarily disqualify an atty from testifying
F) Jurors as Witnesses
1) Rule 606(b): inquiry into the validity of a verdict
(a) gen’lly, a juror may not testify about what happened in the jury room during deliberations — you can’t call a juror to testify to impeach his own verdict
(b) Exceptions: juror may testify as to:
(i) whether extraneous prejudicial information was improperly brought to the jury’s attn
(ii) whether any outside influence was improperly brought to bear on any juror
2) Brake v. Speed: there is no rule making it unethical for a lawyer to talk to a juror, after the case is over with, about what went on in the jury room
II) Exclusion of Witnesses
A) MRE/FRE 615: Exclusion of witnesses from hearing the testimony of other witnesses
1) At the request of either party (“invoking the rule”) the ct will order witnesses excluded so that they cannot hear the testimony of other witnesses
2) Exceptions: 615 does not apply to
(a) A party who is a natural person
(b) An officer or employee of a party which is not a natural person designated as its representative by its atty
(c) A person whose prese

he question before the answer is given, as he could w/ a specific question
* therefore, the ct’s only remedy is to order the inadmissible portion stricken
3) The rules do not require or prefer either form
4) It is w/in judge’s discretion to allow either specific questions or free narrative on direct
(a) purpose of discretion: to control the form of the examination to allow facts to be clearly and expeditiously presented
(b) this discretion is not reviewable except for abuse
5) Rule 611(a): Control of the Court – the trial ct is to exercise control over the interrogation of witnesses to
(a) make the questioning effective for the ascertainment of the truth
(b) avoid needless consumption of time
(c) protect witnesses from harassment or undue embarrassment
B) Leading Questions
1) What is a leading question?
(a) A leading question is one that suggests to the witness the answer desired by the questioner
(b) Questions that begin “Isn’t it true that…” or end “…were you not?” are invariably leading
(c) Generally, questions that begin “what,” “where,” “when,” “why” or “how” are not leading questions
2) General rule: leading questions are not permitted on direct examination
(a) Rationale: presumed friendly relationship btwn witness for a party and that party’s atty, so that the witness will want to give the “right answers”