24.3 Witnesses: Competency, Mode of Examination, Refreshing Recollection & Exclusion

24.3 Witnesses: Competency, Mode of Examination, Refreshing Recollection & Exclusion

Before a witness's credibility can be attacked, the witness must be competent and the examination must be conducted properly. NCBE's outline tests competency, the mode and order of interrogation, refreshing recollection, and the exclusion of witnesses. Impeachment and rehabilitation are covered in Sections 25.1 and 25.2.

---

Witness Competency & Examination Mechanics

1. The Presumption of Competency (FRE 601)

Under FRE 601, every person is presumed competent to be a witness unless the rules provide otherwise. There is no minimum age, religious belief, or mental capacity requirement. A child or a person with mental disabilities is competent if they satisfy two requirements:

1. Personal Knowledge (FRE 602): The witness perceived the event through their own senses (sight, hearing, smell, touch) and possesses sufficient memory to recount it; and
2. Oath or Affirmation (FRE 603): The witness declares to testify truthfully by oath or affirmation in a form calculated to awaken their conscience.

State Law Exception: In civil diversity actions where state law supplies the substantive rule of decision, state competency law (such as Dead Man's Statutes) applies.

2. Juror Competency as a Witness (FRE 606)

• During Trial (FRE 606(a)): A juror may not testify as a witness before other jurors at trial.
• Post-Verdict Inquiry into Verdict Validity (FRE 606(b)): After a verdict is returned, jurors are strictly incompetent to testify regarding:
  • Any statement made or incident occurring during internal jury deliberations;
  • The mental processes or impressions of any juror;
  • The effect of anything upon a juror's vote; or
  • A juror's misunderstanding of instructions or evidence.

The Three Exceptions to Rule 606(b)

A juror may testify post-verdict only regarding:

1. Extraneous Prejudicial Information: Extraneous information improperly brought to the jury's attention (e.g., a juror conducted independent internet research on the defendant's criminal history, brought a dictionary or law book into the jury room, or read an unadmitted newspaper article);
2. Improper Outside Influence: An outside influence improperly brought to bear on any juror (e.g., threats, attempted bribes, or improper communications from a bailiff or third party); or
3. Clerical Mistake: A clerical mistake made in entering the verdict onto the verdict form.

Constitutional Exception — Racial Animus (Peña-Rodriguez v. Colorado, 2017): Where a juror makes a clear statement demonstrating that they relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment guarantee of an impartial jury overrides Rule 606(b), permitting the court to consider juror affidavits and testimony to determine if the defendant was denied a fair trial.

3. Form of Questioning: Leading Questions (FRE 611(c))

• Direct Examination: Leading questions (questions that suggest the desired answer) are generally prohibited on direct examination.
  • Exceptions on Direct: Preliminary or undisputed background matters; refreshing memory; hostile witnesses; adverse parties; witnesses who have difficulty communicating due to age, illness, or infirmity.
• Cross-Examination: Leading questions are permissible and standard on cross-examination. Cross-examination is generally limited to the subject matter of direct examination and matters affecting the witness's credibility.

---

Refreshing Recollection vs. Recorded Recollection

When a witness experiences a memory lapse on the stand, evidence law provides two sequential remedies:

                    ┌──────────────────────────────────────────────┐
                    │ Witness experiences memory lapse on stand    │
                    └──────────────────────┬───────────────────────┘
                                           │
                                           ▼
                    ┌──────────────────────────────────────────────┐
                    │ Step 1: Attempt to Refresh Recollection      │
                    │ (FRE 612)                                    │
                    └──────────────────────┬───────────────────────┘
                                           │
                   ┌───────────────────────┴───────────────────────┐
                   │ Memory Refreshed                              │ Memory Fails to Refresh
                   ▼                                               ▼
       ┌───────────────────────┐                       ┌───────────────────────┐
       │ Witness testifies     │                       │ Step 2: Past          │
       │ from refreshed memory.│                       │ Recollection Recorded │
       │ Writing NOT admitted  │                       │ (FRE 803(5) Exception)│
       │ by proponent.         │                       └───────────┬───────────┘
       └───────────────────────┘                                   │
                                                                   ▼
                                                       ┌───────────────────────┐
                                                       │ Document read into    │
                                                       │ evidence as exhibit;  │
                                                       │ not received unless   │
                                                       │ offered by adverse    │
                                                       │ party.                │
                                                       └───────────────────────┘

1. Present Recollection Refreshed (FRE 612)

• Mechanics: Proponent hands any document, writing, or physical object to the witness. The witness inspects the writing silently, sets it aside, and testifies from refreshed present memory.
• Not Evidence: The writing itself is NOT evidence and is not introduced by the proponent. It is simply a jog to the memory.
• Adverse Party Rights: If the witness uses the writing to refresh memory while testifying, the adverse party is entitled to have it produced. If the witness used it before testifying, the court decides whether justice requires production. When production is ordered, the adverse party may:
  1. Inspect the writing;
  2. Cross-examine the witness about the writing; and
  3. Introduce into evidence any relevant portions of the writing (for impeachment or substantive truth if independently admissible).

2. Past Recollection Recorded (FRE 803(5))

If the writing fails to refresh the witness's memory, the writing itself may be read into evidence as a hearsay exception under FRE 803(5) if four foundational requirements are satisfied:

1. The witness once had personal knowledge of the matter;
2. The witness now has insufficient recollection to testify fully and accurately;
3. The record was made or adopted by the witness when the matter was fresh in memory; and
4. The record accurately reflected the witness's knowledge when made.

• Form of Admission: The record may be read into evidence, but it may NOT be received as an exhibit unless offered by an adverse party.

---

More on Witnesses & Examination

Competency Details

• Judges and interpreters: The presiding judge may not testify as a witness, and no objection is needed to preserve the issue (FRE 605). Interpreters must be qualified and must give an oath or affirmation to make a true translation (FRE 604).
• Children and impaired witnesses: The judge decides under Rule 104(a) whether a child or impaired witness can perceive, remember, communicate, and understand the duty to tell the truth; there is no fixed minimum age.
• Dead Man's statutes: In diversity and other cases where state law governs, some state statutes bar an interested party from testifying about transactions with a deceased person in a suit against the estate.
• Hypnotically refreshed testimony: A per se rule excluding a criminal defendant's own hypnotically refreshed testimony violates the constitutional right to testify (Rock v. Arkansas, 1987).
• Juror testimony limits: Jurors' alcohol and drug use during trial is not an "outside influence," so juror testimony about it is barred (Tanner v. United States, 1987), and Rule 606(b) bars juror testimony that another juror lied during voir dire when the lie was revealed during deliberations (Warger v. Shauers, 2014).

Mode and Order of Examination (FRE 611)

• Court's control (611(a)): The court exercises reasonable control to make procedures effective for determining the truth, avoid wasting time, and protect witnesses from harassment or undue embarrassment.
• Sequence: Direct examination, cross-examination, redirect (limited to matters raised on cross), and recross (limited to matters raised on redirect).
• Scope of cross (611(b)): Cross-examination is limited to the subject matter of the direct examination and matters affecting credibility, but the court may allow inquiry into additional matters as if on direct examination, in which case leading questions ordinarily are not permitted.
• Leading questions (611(c)): Allowed on direct for preliminary or undisputed matters, for young or confused witnesses who have difficulty communicating, and when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party (such as the adverse party's employee).
• Other objections to form: A question may be objectionable as compound, argumentative, assuming facts not in evidence, calling for speculation, calling for a narrative, asked and answered, or misstating the evidence. An answer that goes beyond the question may be struck on motion of the examining party as nonresponsive.

Refreshing Recollection Details (FRE 612)

• Any writing: The writing used to refresh memory need not have been written by the witness, made at the time of the events, or admissible.
• Criminal cases: If the prosecution does not comply with an order to produce a writing, the court must strike the witness's testimony or, if justice requires, declare a mistrial (612(b)).
• Privileged material: Using a privileged document to refresh a witness's memory before testifying may lead the court to order its production.
• Distinguish recorded recollection: If the writing does not refresh memory, it may be read into evidence only if it satisfies the hearsay exception for recorded recollection (FRE 803(5)), which requires that the witness made or adopted it when the matter was fresh (see Section 27.3).

Excluding Witnesses (FRE 615, amended December 1, 2023)

1. Mandatory on request (615(a)): At a party's request, the court must order witnesses excluded from the courtroom so they cannot hear other witnesses' testimony; the court may also do so on its own.
2. Who may not be excluded:
   • A party who is a natural person;
   • One officer or employee of a party that is not a natural person, if designated as the party's representative by its attorney (such as a corporation's vice president or the government's case agent);
   • A person whose presence a party shows to be essential to presenting its claim or defense (such as an expert who needs to hear other testimony); and
   • A person authorized by statute to be present (such as a crime victim under federal victims' rights law).
3. Orders reaching outside the courtroom (615(b)): An exclusion order may also prohibit disclosing trial testimony to excluded witnesses and prohibit excluded witnesses from accessing trial testimony, for example by reading transcripts. Without such additional terms, an order excludes witnesses only from the courtroom.
4. Violations: Remedies include contempt, a jury instruction about the violation, cross-examination about it, or, in serious cases, exclusion of the witness's testimony.