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Article VI
- Witnesses
Rule 601. General Rule of Competency
Every person is competent to be a witness.
Rule 602. Lack of Personal Knowledge
A witness may not testify to a matter unless the
witness has personal knowledge of the matter.
Evidence to prove personal knowledge may, but
need not, consist of the witness' own testimony.
This rule is subject to the provisions of Rule
703, related to opinion testimony by expert witnesses.
(See Rule 3.)
Example: "I know Harry well enough
to know that two beers usually make him drunk,
so I'm sure he was drunk that night, too."
Rule 607. Who May Impeach
The credibility of a witness may be attacked or
challenged by any party, including the party calling
the witness.
Explanation: On cross-examination, an
attorney wants to show that the witness should
not be believed. This is best accomplished through
a process called "impeachment," which
may use one of the following tactics: (1) asking
questions about prior conduct of the witness that
makes the witness' truthfulness doubtful (e.g.
"isn't it true that you once lost a job because
you falsified expense reports?"); (2) asking
about evidence of certain types of criminal convictions
(e.g. "you were convicted of shoplifting,
weren't you?); or (3) showing that the witness
has contradicted a prior statement, particularly
one made by the witness in an affidavit.
Witness statements in the Mock Trial materials
are considered to be affidavits.
In order to impeach the witness by comparing information
in the affidavit to the witness' testimony, attorneys
should use this procedure:
Step 1: Introduce the affidavit
for identification (see Rule 38).
Step 2: Repeat the statement
the witness made on direct or cross-examination
that contradicts the affidavit.
Example: "Now, Mrs. Bums, on direct
examination you testified that you were out of
town on the night in question, didn't you?"
Witness responds, "yes."
Step 3: Ask the witness to read
from his or her affidavit the part that contradicts
the statement made on direct examination.
Example: "All right, Mrs. Bums,
will you read paragraph three?" Witness reads,
"Harry and I decided to stay in town and
go to the theater."
Step 4: Dramatize the conflict
in the statements. Remember, the point of this
line of questioning is to demonstrate the contradiction
in the statements, not to determine whether Mrs.
Burns was in town or not.
Example: "So, Mrs. Burns, you testified
that you were out of town in the night in question
didn't you?"
“Yes.”
"Yet in your affidavit you said you were
in town, didn't you?"
"Yes."
Rule 608. Evidence of Character and Conduct
of Witness
(a) Opinion and reputation evidence
of character. - The credibility of a witness may
be attacked or supported by evidence in the form
of opinion or reputation, but subject to these
limitations: (1) the evidence may refer only to
character for truthfulness or untruthfulness,
and (2) evidence of truthful character is admissible
only after the character of the witness for truthfulness
has been attacked by opinion or reputation evidence,
or otherwise.
(b) Specific instances of conduct.
- Specific instances of the conduct of a witness,
for the purpose of attacking or supporting the
witness' credibility, other than conviction of
crime as provided in Rule 609, may not be proved
by extrinsic evidence. They may, however, in the
discretion of the Court, if probative of truthfulness
or untruthfulness, be asked on cross- examination
of the witness (1) concerning the witness' character
for truthfulness or untruthfulness, or (2) concerning
the character of truthfulness or untruthfulness
of another witness as to which character the witness
being cross-examined has testified.
Testimony, whether by an accused or by any other
witness, does not operate as a waiver of the accused's
or the witness' privilege against self-incrimination
with respect to matters related only to credibility.
Rule 609. Impeachment by Evidence of
Conviction of Crime. Not applicable.
Rule 610. Religious Beliefs or Opinions.
Not applicable.
Rule 611. Mode and Order of Interrogation
and Presentation
(a) Control by Court. -- The
Court shall exercise reasonable control over questioning
of witnesses and presenting evidence so as to:
(1) make the questioning and presentation effective
for ascertaining the truth,
(2) to avoid needless use of time, and
(3) protect witnesses from harassment or undue
embarrassment.
(b) Scope of cross examination.
-- The scope of cross examination shall
not be limited to the scope of the direct
examination, but may inquire into any
relevant facts or matters contained in the witness'
statement, including all reasonable inferences
that can be drawn from those facts and matters,
and may inquire into any omissions from the witness
statement that are otherwise material and admissible.
Explanation: Cross examination follows
the opposing attorney's direct examination of
his/her witness. Attorneys conduct cross examination
to explore weaknesses in the opponent's case,
test the witness's credibility, and establish
some of the facts of the cross- examiner's case
whenever possible. Cross examination should:
•call for answers based on information given
in witness statements or fact situation;
•use leading questions which are designed
to get "yes" or "no" answers;
•never give the witness a chance to unpleasantly
surprise the attorney;
•include questions that show the witness
is prejudiced or biased or has a personal interest
in the outcome of the case;
•include questions that show an expert witness
or even a lay witness who has testified to an
opinion is not competent or qualified due to lack
of training or experience;
Examples of proper questions include:
"Isn't it a fact that ... ?" "Wouldn't
you agree that ... ?" "Don't you think
that ... ?"
Cross examination should conclude with:
"Thank you Mr./s (last name). That will be
all, your Honor."
Tips: Be relaxed and ready to adapt
your prepared questions to the actual testimony
given during direct examination; always listen
to the witness's answer; avoid giving the witness
an opportunity to re-emphasize the points made
against your case during direct examination; don't
harass or attempt to intimidate the witness; and
don't quarrel with the witness. Be brief;
ask only questions to which you already know the
answer.
(c) Leading questions. -- Leading
questions are not permitted on direct examination
of a witness (except as may be necessary to develop
the witness' testimony). Leading questions are
permitted on cross examination.
Explanation: A "leading" question
is one that suggests the answer desired by the
questioner, usually by stating some facts not
previously discussed and then asking the witness
to give a yes or no answer.
Example: "So, Mr. Smith, you took
Ms. Jones to a movie that night, didn't you?"
This is an appropriate question for cross-examination
but not direct or re-direct.
(d) Redirect/Re-cross. -- After
cross examination, additional questions may be
asked by the direct examining attorney, but questions
must be limited to matters raised by the attorney
on cross examination. Likewise, additional questions
may be asked by the cross examining attorney on
re- cross, but such questions must be limited
to matters raised on redirect examination and
should avoid repetition. For both redirect
and re-cross, attorneys are limited to two questions
each.
Explanation: A short re-direct examination
will be allowed following cross-examination if
an attorney desires, and re-cross may follow re-direct.
But in both instances, questions must be on a
subjects raised in the immediately preceding testimony.
If an attorney asks questions on topics not raised
earlier, the objection should be "beyond
the scope of re-direct/cross." See Rule 44
for more discussion of redirect and re-cross.
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