Evidence Outline - Professor Tilly - Campbell Law - Part 1

(e) Taking Notice of Plain Error. A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.

• Don’t rely on this, must be “serious, egregious, manifest, highly prejudicial” “not correcting would result in manifest of injustice”

Standards of Review

• Generally, abuse of discretion standard
  • Unless constitutional violation → then it’s de novo

FRE 601. Competency to Testify in General: Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.

• Only two witness requirements: (1) personal knowledge; and (2) promise to testify truthfully
  • Competence is presumed
  • Competency is determined when the witness testifies, not when the event occurred
• When to apply state law of evidence for competency:
  • Civil action or proceeding;
  • Concerns an element of a claim or defense; and
  • The claim or defense is one as to which state law supplies the applicable substantive rule (diversity jurisdiction)
• Rock v. Arkansas, court excluded hypnotic memory of criminal defendant, per se rule violates 6th amendment right to defend self and right to call witnesses in your defense
  • States may have laws excluding hypnotic memory for civil cases, if
  • defendant is not a witness in criminal case, or if rule is non-arbitrary like this one (was per se rule)
  • States may still limit admission of hypnotic therapy if the witness is not the defendant, or other non-arbitrary measures
    • Jury’s duty to determine credibility , this removed that ability from them
• Ohio v. Clark (mainly about confrontation clause- come back and add later)

NC 601(b): A person is disqualified to testify as a witness when the court determines that he is

1. incapable of expressing himself concerning the matter as to be understood,
2. either directly or through interpretation by one who can understand him, or
3. incapable of understanding the duty of a witness to tell the truth
   • Basically, same standard as federal rule, just stated differently
   • NO MINIMUM AGE IN NC
     • Thus, would be an error if a court excluded a witness solely because of their age

NC 601(c): Dead Man’s Statute: Upon the trial of an action...1) a party or a person interested in the event ... shall not be examined as a witness 2) in his own behalf or interest ...3) against the executor , administrator or survivor of a deceased person, or the guardian of an incompetent person...4) concerning any oral communication between the witness and the deceased person.

This rule does not apply when:

1. The executor, administrator, guardian is examined in his own behalf regarding the subject matter of the communication;
2. The testimony of the deceased or incompetent person is given in evidence concerning the same transaction or communication;
   1. (I.E. – nurse (neutral party) overhears decedent and presents testimony)
3. Evidence of the subject matter of the oral communication is offered by the executor, administrator, survivor, guardian or person so deriving title or interest
   • Specific to NC!!! Federal rules do not recognize this rule
   • ONLY prohibits oral communications
   • ONLY applies to interested parties
     • But – remember that propounder may be the interested party
     • Propounder doesn’t necessarily mean the Estate
   • Estate of Redden: Wife suing Estate, wife offers dead husbands oral communications in deposition (not requested by Estate, she’s trying to say the Estate waived) and estate objects → testimony is incompetent under Dead Man’s Statute
     • If nurse had overheard the oral communications? → could testify because not interested party (aside from hearsay concerns)
   • In re Will of Baitschora: trial court should not have excluded Propounder’s testimony of oral communications w/ decedent after Caveator discussed subject matter of oral communications (opened door)
     • Discussing subject matter does not have to involve oral communications to open door

FRE 602. Need for Personal Knowledge: Witness may testify to a matter only if evidence is introduced sufficient to support a finding (104(b) that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony.

• PORN:
  • Perception
  • Comprehension
  • Recollection
  • Narration
• Standard- “if rational juror could find the witness had personal knowledge”
  • Low standard, speculation is proper objection when not met
• Witness doesn’t have to be absolutely certain about the accuracy of her
• observations
  • “I think...” does not necessarily violate this rule
• But- limited to first-hand knowledge based on perception
  • Ie- if bystander just hears the car crash happen/someone yells “that car just ran the red light!” the bystander can’t just straight up say “that car ran the red light and caused the crash”
  • “Why did Billy take a swing at Bobby?”
    • “Well it seemed like Billy just got flat mad that Bobby had beaten him” → speculative, can’t testify to mindset of other person
    • But- “Bobby had just beaten Billy. Billy looked mean and angry; real made like” → rationally based on perception, fine
      • Would probs have to be
      • Expert testimony doesn’t need personal knowledge (different rule)