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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 presence is shown by a party to be essential to the presentation of the party’s cause (usually an expert witness)
(d) S person authorized by statute to be present
B) Moffit v. State (MS 1989):
1) it is a violation of 615 for an atty or anyone else to tell a prospective witness what another witness has testified to
2) however, it is permissible to prep a witness to find out what the witness has personal knowledge of
C) What happens when 615 is violated?
1) Opposing counsel will move to have witness disqualified, but this is an extreme measure
2) Cts are reluctant to disqualify a witness from testifying unless 615 has been deliberately violated in bad faith
3) Usually, the ct will allow
(a) the other side to tell the jury that 615 has been violated, AND
(b) the other side to suggest that the testimony of the witness has been tailored based upon overheard testimony
4) Basically, the ct will allow the other side to use a violation of 615 to attack the credibility of the witness
III) Direct Examination — Form of Questions
A) Specific Questions v. Free Narrative
1) The direct examiner, in eliciting testimony from the witness, has two choices re: how to question the witness
(a) to ask specific question about the facts, or
(b) to ask general questions eliciting a narrative from the witness
2) Dangers and Advantages of Each Type
(a) Specific Questions
(i) Advantage: give the questioner tight control over how the witness testifies, so that the facts can be presented in the desired, most comprehensible order, and with the greatest clarity
(ii) Disadvantage: very specific questions may, by their nature, suggest to the witness what answer is desired by the questioner, and thus may be held to be leading (and thus disallowed)
(b) Free Narrative
(i) Advantage: witness is testifying completely in his own words, so that there is no danger that he is being “led”
(ii) Disadvantage: the witness may blurt out inadmissible evidence
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 witne

e 103(a): The Effect of an Erroneous Ruling — error (on appeal) cannot be predicated on a ruling that admits or excludes evidence unless a substantial right of the party has been affected AND
(a) 103(a)(1) Objection: the party made a timely and specific objection to the admission of certain evidence
(b) 103(a)(2) Offer of Proof: the party made an offer of proof in response to a ruling of the ct excluding certain evidence
2) Offer of proof
(a) Usual method is to state to the judge:
(i) what the witness would say if he were permitted to testify as to the excluded matter
(ii) what you hope to prove by the answer to the question
(b) Primary reason for offer of proof is to include what the witness would have testified to in the trial record for purposes of appeal
3) Rule 103(b):
(a) allows a judge to explain his ruling on admissibility of the evidence
(b) allows the ct to requires that the proponent make the offer in question-and-answer form
4) Rule 103(c): an offer of proof on possibly inadmissible evidence should be conducted outside the presence of the jury
D) Plain error doctrine: MRE 103(d) & McCollum v. Franking
1) An un-objected-to error may lead to reversal, at the option of the appellate ct, if it is a “plain” error
2) Error, either plain or harmless, may not be predicated upon a ruling that admits or excludes evidence unless a substantial right of a party is affected
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in this case, the opposing counsel will not be able to object to the question before the answer is given, as he could w/ a specific question
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therefore, the ct’s only remedy is to order the inadmissible portion stricken
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opposing party (Rule 611(c))
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witness identified w/ opposing party
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hostile witness (witness being deliberately uncooperative)
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witness has been fully directed by non-leading questions w/o securing from him a complete account of what he is believed to know
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in this case, the witness’s memory is said to be exhausted
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the ct may allow leading questions to jog the memory, so long as the judge is convinced the effect is not to put words into the witness’s mouth
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witness has a communication difficulty
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witness is deficient in English language proficiency
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witness is a child
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witness is unusually unintelligent or timid