Witness competency and refreshing recollection

The Competency Gate: Thresholds That Exclude Testimony

Witness competency and refreshing recollection concern whether testimony may be received from this witness and how a witness may recover a memory without turning a writing into a substitute witness. The analysis starts with the general federal presumption that every person is competent, then asks whether a specific rule prevents this person from testifying, whether the witness has the required oath capacity and personal knowledge, and whether a memory aid has been used in a way that gives the opposing party inspection and cross-examination rights.

Under the Federal Rules of Evidence, a witness is not disqualified merely because the witness is young, elderly, mentally ill, biased, forgetful, or previously inconsistent. Those facts ordinarily affect credibility-the weight the factfinder gives the testimony-not competency-the legal ability to testify at all. A witness who saw only part of an event is not globally incompetent; the witness may testify about what was personally perceived and not about matters outside that perception.

The general rule of competency is subject to three threshold checks. First, the witness must be able to take an oath or affirmation that is calculated to impress the duty to testify truthfully. Second, there must be evidence sufficient to support a finding that the witness has personal knowledge of the matter, subject to the rule’s treatment of expert testimony. Third, special bars apply when the proposed witness is the presiding judge or a juror in the same trial.

The court decides preliminary questions about a witness’s qualification. Thus, the judge initially determines whether the evidence supports the witness’s competency and personal knowledge; the jury may still reject the testimony as unreliable. A witness’s statement, “I was there and saw the collision,” may supply the necessary foundation, while “I heard later that the defendant was speeding” does not establish personal knowledge of the defendant’s speed.

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The Floor: Fast Recognition Without Cold Recall

This topic is not starred: legal resources may be supplied when it is tested, and where they are not, you need only demonstrate recognition that the topic is at issue. You are not required to hold this topic cold because resources may be supplied; the floor you must still hold in memory is the vocabulary, trigger, sequence, and consequence of each rule, because you will not know at item time whether resources are coming.

Your floor is:

Competency: every person begins competent; ask about oath capacity, personal knowledge, and any special rule barring the witness.
Credibility versus competency: age, bias, contradiction, poor memory, and mental limitations usually affect weight unless they show the witness cannot satisfy a threshold requirement.
Special witnesses: the presiding judge cannot testify at that trial; a juror cannot testify as a witness at that trial.
Juror-inquiry limits: after a verdict or indictment, juror testimony is permitted only for extraneous prejudicial information, improper outside influence, or a mistake on the verdict form-not for deliberative statements, voting effects, or mental processes.
Refreshing: when a witness uses a writing to revive memory, ask whether the use occurred while testifying or before testimony, then apply the corresponding adverse-party rights and judicial-discretion limit.

You do not need to hold the exact wording of every subsection, the numbering of provisions, or every procedural sanction. A supplied rule can provide those details. You must recognize the governing doctrine quickly and know which facts activate it.

Doctrine	Triggering fact	Court’s threshold question	Immediate consequence
Ordinary witness competency	Age, illness, bias, memory, or qualification is challenged	Can the witness take an oath and support personal knowledge?	Admit testimony if the threshold is met; leave ordinary reliability to the factfinder
Presiding judge	The trial judge is called as a witness in that trial	Does the special judicial bar apply?	The judge may not testify
Juror at trial	A sitting juror is called to testify in the same trial	Does the juror-witness bar apply?	The juror may not testify at trial
Refreshing recollection	A witness uses a writing to revive memory	When was it used, and does the writing relate to testimony?	Apply production, inspection, cross-examination, and introduction rights

A fact pattern activates competency when it emphasizes that a child “does not understand the obligation to tell the truth,” that an eyewitness “was not present,” or that the proposed witness is the judge or a juror. It activates refreshing when counsel hands over notes after “I do not remember,” when the witness reviewed a report before taking the stand, or when the opposing party asks to inspect the document used to restore memory.

The Memory Aid and the Juror Boundary: Timing Controls the Remedy

The judge’s special bar is categorical: the presiding judge may not testify as a witness at the trial. A juror likewise may not testify as a witness at that trial. Do not confuse either rule with an ordinary credibility objection. The issue is not whether the judge or juror would be believable; the person is barred from serving as a trial witness in that proceeding.

The juror rule has a narrow post-verdict boundary. In an inquiry into the validity of a verdict or indictment, a juror may testify about whether extraneous prejudicial information was improperly brought to the jury’s attention, whether an outside influence was improperly brought to bear, or whether a mistake was made on the verdict form. Examples include a bailiff’s improper statement, a juror’s receipt of a newspaper article, or a clerical mistake in recording the verdict.

The juror may not testify about statements made during deliberations, the effect of information on a juror’s vote, or the jurors’ mental processes. A juror therefore may testify, “The bailiff told us the defendant had a prior conviction,” but not, “That information caused me to vote guilty.” The first concerns an outside influence; the second concerns its subjective effect. The court also cannot evade the limitation by receiving a juror affidavit or declaration about a barred deliberative matter.

Refreshing recollection is different from proving the content of a record. A witness may be shown a writing to stimulate present memory. Once memory is refreshed, the witness should testify from that present memory. The writing does not automatically become substantive evidence merely because the witness looked at it.

Timing matters. When the witness uses the writing while testifying, the adverse party is entitled to have the writing produced at the hearing, inspect it, cross-examine the witness about it, and introduce any portion that relates to the witness’s testimony. When the witness used the writing before testifying, those options arise only if the court, in its discretion, determines that justice requires them. The opponent does not get the same automatic entitlement merely by showing that the witness looked at a document earlier.

The opponent is entitled to the relevant portion, not necessarily every unrelated page. If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered. If the writing is not produced or delivered as ordered, the court may issue an appropriate order; in a criminal case, failure by the prosecution requires striking the testimony or, if justice requires, declaring a mistrial.

The near miss is recorded recollection. If the witness still cannot remember after reviewing the writing, the ordinary refreshing route has not succeeded. The lawyer cannot simply read the document to the jury and call that refreshing. A separate hearsay doctrine may govern a record made when memory was fresh, but refreshing itself requires the witness’s testimony to be based on revived present recollection.

When a supplied rule appears, read it in four passes: locate the operative trigger, identify the timing distinction, find any discretion or exception, and map the facts to the consequence. The following excerpt supplies the governing text:

Federal Rule of Evidence 612

(a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory:

(1) while testifying; or

(2) before testifying, if the court in its discretion, determines that justice requires the party to have those options.

(b) Adverse Party’s Options. An adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness’s testimony.

Read the operative language as follows: “uses a writing to refresh memory” supplies the trigger; “while testifying” creates the ordinary entitlement; “before testifying” introduces the timing distinction; “if the court in its discretion” supplies the qualifier; and the final sentence lists the opponent’s four options. The item then turns on whether the judge applied that sequence rather than treating all pre-testimony review as automatically covered or automatically excluded.

A plaintiff’s witness testifies that she cannot remember the measurements recorded during a warehouse inspection. Before taking the stand, she reviewed her inspection notes and then testified that the review restored her memory. The defendant asks to inspect the notes, cross-examine her about them, and introduce any portion relating to her testimony. The judge refuses, reasoning that Rule 612 applies only when a witness uses a writing while testifying.

Practice

What is the best ruling?

Common errors are concrete category mistakes:

Treating a twelve-year-old eyewitness as incompetent solely because of age, even though the child understands the oath and personally saw the event.
Treating “the witness is biased” as a competency bar when bias ordinarily concerns credibility.
Allowing a juror to describe how an improper newspaper article affected the vote, rather than limiting the testimony to the extraneous information reaching the jury.
Assuming every document reviewed before testimony automatically gives the opponent Rule 612 rights without asking whether justice requires them.
Calling a writing “refreshing recollection” after the witness still cannot remember and the lawyer wants the document read as proof.

Three Short Applications: One Question Per Objective

Practice

A ten-year-old saw a store employee fall and can explain the duty to tell the truth, but the employee argues that the child is legally incompetent because of age. The child personally observed the fall. What is the best ruling?

After a guilty verdict, a juror reports that a bailiff told the jury during deliberations that the defendant had confessed. The juror also says the statement persuaded her to vote guilty. What may the juror testify about?

While testifying, a witness says she cannot remember a date. Counsel shows her a calendar, she remembers, and she then testifies from memory. The opposing party asks to inspect the calendar and cross-examine her about it. What is the best ruling?

High-Yield Points - ⚡ Biggest Takeaways

Screen a challenged witness for judge or juror bars before ordinary competency. A general witness needs oath capacity and sufficient personal knowledge; age or bias usually goes to credibility. Refreshing gives the opponent access to a writing, but timing determines whether judicial discretion is required.

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Practice Questions: Witness competency and refreshing recollection

1. A driver sued a contractor after their vehicles collided at an intersection. At trial, the contractor’s employee testifies for the contractor that the traffic signal was green when the employee entered the intersection. During a deposition in the same action, while under oath and represented by counsel, the employee testified that she could not remember the signal’s color. The driver has the certified deposition transcript and asks to introduce that testimony both to impeach the employee and as substantive evidence that the employee did not observe a green light. The contractor objects on hearsay grounds. How should the court rule?

A. Exclude the deposition testimony because a witness’s claimed lack of memory cannot be inconsistent with later affirmative testimony.
B. Admit the deposition testimony only for impeachment because prior inconsistent statements are hearsay when offered substantively.
C. Admit the deposition testimony substantively only if the employee is unavailable, because deposition testimony requires unavailability.
D. Admit the deposition testimony for impeachment and substantively because it is an inconsistent statement made under oath in a deposition.

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Answer: D. Admit the deposition testimony for impeachment and substantively because it is an inconsistent statement made under oath in a deposition.

Admit the deposition testimony for impeachment and substantively because it is an inconsistent statement made under oath in a deposition. - The employee’s deposition statement that she could not remember the signal’s color is inconsistent with her affirmative trial testimony that it was green, so the driver may use it to impeach her. - Because she made the earlier statement under oath in a deposition and is now subject to cross-examination, it is also admissible substantively as a prior inconsistent statement. Exclude the deposition testimony because a witness’s claimed lack of memory cannot be inconsistent with later affirmative testimony. - An earlier inability to remember can conflict with a later definite recollection; inconsistency does not require the witness to have named a different color. - Here, the employee’s deposition answer bears directly on the reliability of her trial claim that the signal was green. Admit the deposition testimony only for impeachment because prior inconsistent statements are hearsay when offered substantively. - Many prior inconsistent statements are limited to impeachment, but an inconsistent statement made under oath in a deposition qualifies for substantive use when the witness is subject to cross-examination. - The employee meets those conditions, so the contractor’s hearsay objection does not restrict the transcript to impeachment. Admit the deposition testimony substantively only if the employee is unavailable, because deposition testimony requires unavailability. - Unavailability can be required for the former-testimony hearsay exception, but that is not the rule the driver relies on here. - The employee is testifying at trial and subject to cross-examination, satisfying the separate rule for her sworn prior inconsistent statement.

2. In a civil action arising from a collision, a mechanic testified for the defendant that the defendant's brakes were in good working order two days before the accident. During cross-examination, the plaintiff's lawyer asked whether the mechanic was being paid a monthly retainer by the defendant's insurance company to serve as an expert witness in litigation matters. The mechanic admitted receiving such payments. The plaintiff then proposes to call the insurance company's claims manager to testify about the amount and frequency of these payments, to show the mechanic's bias. The defendant objects on the ground that the mechanic already admitted the payments. Which ruling is most appropriate?

A. Admit the testimony because extrinsic evidence of bias is admissible even after a witness admits the underlying facts showing bias.
B. Admit the testimony only if the plaintiff first asks the mechanic about the specific amounts on cross-examination.
C. Exclude the testimony because the mechanic's admission renders further extrinsic evidence cumulative and impermissible.
D. Exclude the testimony because bias may only be shown through cross-examination, not extrinsic evidence.

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Answer: A. Admit the testimony because extrinsic evidence of bias is admissible even after a witness admits the underlying facts showing bias.

Admit the testimony because extrinsic evidence of bias is admissible even after a witness admits the underlying facts showing bias. - The claims manager’s testimony about the amount and frequency of the retainer could help the jury assess how strongly the mechanic was motivated to favor the defendant. - A witness’s admission of payments does not bar extrinsic evidence of bias that shows their extent. Admit the testimony only if the plaintiff first asks the mechanic about the specific amounts on cross-examination. - The plaintiff already asked the mechanic about the retainer, but there is no strict requirement to ask about each amount before offering extrinsic evidence of bias. - The claims manager can supply details relevant to the mechanic’s financial incentive even though the mechanic admitted receiving payments. Exclude the testimony because the mechanic's admission renders further extrinsic evidence cumulative and impermissible. - Admitting receipt of a retainer does not establish its size or frequency, which may affect the strength of the mechanic’s bias. - The admission therefore does not make the claims manager’s testimony categorically impermissible, though the court retains ordinary discretion over needlessly cumulative evidence. Exclude the testimony because bias may only be shown through cross-examination, not extrinsic evidence. - Bias may be proved through extrinsic evidence, including testimony from the insurance company’s claims manager. - Cross-examination established that the mechanic received payments; the manager’s testimony can further show their extent.

3. A pedestrian sued a delivery company after being struck by one of its vans. At a pretrial deposition, the van's employee-driver testified under oath that he had been reading a dispatch message immediately before the collision. At trial, the employee testified for the company and stated that he had not looked away from the road. The pedestrian's lawyer asks the employee about the deposition testimony and offers the relevant certified transcript both to impeach him and to prove that he was reading the message. The employee remains on the stand and is available for cross-examination. How should the court treat the deposition statement?

A. Exclude the statement because a witness's prior statement is admissible only to impeach the witness.
B. Exclude the statement because the employee did not adopt it while testifying at the current trial.
C. Admit the statement only if the employee is unavailable and the defendant previously cross-examined the employee.
D. Admit the statement substantively because it was inconsistent, given under oath at a proceeding, and the employee is subject to cross-examination.

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Answer: D. Admit the statement substantively because it was inconsistent, given under oath at a proceeding, and the employee is subject to cross-examination.

Admit the statement substantively because it was inconsistent, given under oath at a proceeding, and the employee is subject to cross-examination. - The employee’s sworn deposition statement that he was reading a message conflicts with his trial testimony that he did not look away from the road. - Because he is testifying and subject to cross-examination, the prior inconsistent statement is not hearsay and may be used both to impeach him and to prove he was reading the message. Exclude the statement because a witness's prior statement is admissible only to impeach the witness. - A prior inconsistent statement can be used substantively when it was given under oath at a deposition and the witness is subject to cross-examination at trial. - The pedestrian may therefore offer the certified transcript to prove the employee was reading the dispatch message, not merely to challenge his credibility. Exclude the statement because the employee did not adopt it while testifying at the current trial. - The rule does not require adoption of the earlier statement at trial. - The employee’s denial creates the inconsistency, and his presence on the stand allows questioning about what he said at the deposition. Admit the statement only if the employee is unavailable and the defendant previously cross-examined the employee. - Unavailability and a prior opportunity to cross-examine are requirements associated with the former-testimony hearsay exception, not this rule for prior inconsistent statements. - Here, the employee is on the stand and subject to cross-examination about his sworn deposition testimony.

4. A corporation’s general counsel asked an outside accounting consultant to help counsel understand technical billing records so that counsel could provide legal advice concerning a threatened fraud suit. Employees sent the consultant records and explanations at counsel’s direction, and the consultant sent counsel a confidential analysis. After suit was filed, the corporation voluntarily produced the consultant’s analysis to the opposing party to support a settlement position but withheld the employees’ underlying communications. The opposing party moves to compel those communications, arguing that production of the analysis waived attorney-client privilege for all communications concerning the billing dispute. The governing waiver rule provides that an intentional disclosure in a federal proceeding extends to undisclosed communications only when they concern the same subject matter and fairness requires consideration together. Which of the following is the corporation’s strongest response?

A. The underlying communications remain protected because communications involving nonlawyer consultants cannot fall within attorney-client privilege.
B. The underlying communications remain protected because voluntary disclosure can waive privilege only if made during testimony at trial.
C. The underlying communications must be produced because disclosure of any privileged communication automatically waives privilege over the entire dispute.
D. The underlying communications remain protected unless they concern the same subject matter and fairness requires their consideration with the disclosed analysis.

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Answer: D. The underlying communications remain protected unless they concern the same subject matter and fairness requires their consideration with the disclosed analysis.

The underlying communications remain protected unless they concern the same subject matter and fairness requires their consideration with the disclosed analysis. - Counsel engaged the consultant to help provide legal advice, so the consultant’s involvement does not necessarily defeat privilege for the employees’ communications. - Producing the analysis does not automatically waive privilege for those communications: the governing rule requires both the same subject matter and fairness requiring consideration together. The underlying communications remain protected because communications involving nonlawyer consultants cannot fall within attorney-client privilege. - A nonlawyer consultant working at counsel’s direction to help counsel understand technical records may participate in privileged communications. - The corporation’s stronger argument concerns the limited scope of waiver after it produced the analysis, not a categorical exclusion of consultants from privilege. The underlying communications remain protected because voluntary disclosure can waive privilege only if made during testimony at trial. - The corporation voluntarily produced the analysis to the opposing party, so waiver is not limited to trial testimony. - The issue is whether that disclosure also reaches the withheld employee communications under the governing subject-matter-and-fairness rule. The underlying communications must be produced because disclosure of any privileged communication automatically waives privilege over the entire dispute. - Disclosure of the analysis does not automatically waive privilege over every communication about the billing dispute. - The opposing party must show that the withheld communications concern the same subject matter and that fairness requires considering them with the disclosed analysis.

5. A business owner privately consulted an attorney about a threatened fraud suit and described potentially damaging negotiations with the claimant. The attorney gave legal advice and warned the owner to keep their communications confidential. The next day, the owner voluntarily sent a detailed email to a trade-association mailing list containing 40 unrelated business owners. The email quoted the attorney's advice and summarized the facts the owner had disclosed during the consultation. After litigation began, the claimant sought testimony from the attorney concerning the same disclosed communications. The owner asserted attorney-client privilege. Which of the following is the claimant's strongest argument for compelling the testimony?

A. The privilege never attached because communications concerning business negotiations cannot request legal advice.
B. The privilege was lost because the claimant placed the negotiations at issue by filing the fraud action.
C. The privilege was lost because the attorney warned the owner that the communications might later become discoverable.
D. The owner waived the privilege by voluntarily disclosing the substance of the communications to unrelated third parties.

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Answer: D. The owner waived the privilege by voluntarily disclosing the substance of the communications to unrelated third parties.

The owner waived the privilege by voluntarily disclosing the substance of the communications to unrelated third parties. - The private consultation for legal advice was initially privileged, but the owner’s voluntary email to 40 unrelated business owners disclosed the attorney’s advice and what the owner had told the attorney. - That disclosure waived confidentiality as to the disclosed communications, supporting the claimant’s request for testimony about them. The privilege never attached because communications concerning business negotiations cannot request legal advice. - The owner described the negotiations while consulting the attorney about a threatened fraud suit, so their business subject matter did not prevent the consultation from seeking legal advice. - The issue is the owner’s later disclosure, not whether the negotiations themselves were privileged facts. The privilege was lost because the claimant placed the negotiations at issue by filing the fraud action. - The claimant’s complaint put the negotiations in dispute, but an opposing party cannot waive the owner’s attorney-client privilege by filing suit. - The relevant waiver came from the owner’s email to unrelated third parties, not from the claimant’s allegations. The privilege was lost because the attorney warned the owner that the communications might later become discoverable. - The attorney’s warning to keep the communications confidential did not disclose them or waive the owner’s privilege. - The owner’s subsequent email, rather than the attorney’s warning, revealed the substance of the consultation to unrelated third parties.

6. In a criminal prosecution arising from a nighttime collision, the government calls a pedestrian who testifies that the defendant drove through a green light. The prosecutor asks whether the pedestrian told an investigating officer immediately after the collision that the light was red. The pedestrian denies making that statement. The government proposes to call the officer, who would testify that the pedestrian said, "The defendant entered against the red light." The pedestrian was not under oath when speaking to the officer, and the government offers the statement both to impeach the pedestrian and to prove that the light was red. The pedestrian remains available for further examination. Which of the following is the court's most appropriate ruling?

A. Admit the officer's testimony for both purposes because every prior inconsistent statement of a testifying witness is nonhearsay.
B. Admit the officer's testimony for impeachment only because the statement was inconsistent but was not made under oath at a qualifying proceeding.
C. Exclude the officer's testimony because extrinsic evidence of a prior inconsistent statement is permitted only when the witness admits making the statement.
D. Exclude the officer's testimony because a witness may be impeached only with evidence concerning the witness's character for truthfulness.

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Answer: B. Admit the officer's testimony for impeachment only because the statement was inconsistent but was not made under oath at a qualifying proceeding.

Admit the officer's testimony for impeachment only because the statement was inconsistent but was not made under oath at a qualifying proceeding. - The officer may testify to the pedestrian’s contrary statement for impeachment because the pedestrian remains available to explain or deny it and for further examination. - The statement cannot prove that the light was red: it was not under oath at a trial, hearing, other proceeding, or deposition. Admit the officer's testimony for both purposes because every prior inconsistent statement of a testifying witness is nonhearsay. - A prior inconsistent statement is admissible for its truth under this rule only if it was made under oath at a qualifying proceeding or deposition. - The pedestrian’s statement to the investigating officer was unsworn, so its permissible use here is impeachment, not proof of the light’s color. Exclude the officer's testimony because extrinsic evidence of a prior inconsistent statement is permitted only when the witness admits making the statement. - The pedestrian’s denial does not bar the officer’s testimony; extrinsic evidence can establish that the inconsistent statement was made. - The pedestrian remains available for further examination, satisfying the opportunity to address the statement. Exclude the officer's testimony because a witness may be impeached only with evidence concerning the witness's character for truthfulness. - A witness may be impeached through a prior inconsistent statement, not just evidence about general character for truthfulness. - The claimed red-light statement directly contradicts the pedestrian’s green-light testimony, making it relevant to impeachment.

7. In a civil negligence action arising from a highway collision, the plaintiff calls an eyewitness who testifies that the defendant entered the intersection against a red light. On cross-examination, the defendant seeks to impeach the eyewitness with a three-year-old conviction for felony aggravated assault. The offense was punishable by five years of imprisonment but did not require proof of a dishonest act or false statement. The eyewitness completed the sentence two years ago. The defendant has a certified copy of the conviction and does not seek to use the underlying conduct as substantive evidence about the collision. The plaintiff objects that assault is unrelated to truthfulness. Which of the following best states the applicable rule?

A. The conviction is inadmissible because only crimes involving dishonesty may be used to impeach a witness.
B. The conviction is admissible subject to balancing because it was punishable by more than one year of imprisonment.
C. The conviction is automatically admissible because every felony conclusively demonstrates a witness's untruthfulness.
D. The conviction is inadmissible because the witness was convicted before observing the disputed collision.

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Answer: B. The conviction is admissible subject to balancing because it was punishable by more than one year of imprisonment.

The conviction is admissible subject to balancing because it was punishable by more than one year of imprisonment. - Under Federal Rule of Evidence 609(a)(1)(A), a felony conviction may be used to impeach a witness in a civil case, subject to Rule 403 balancing. - Aggravated assault was punishable by five years, and the conviction and sentence completion are both within the usual ten-year limit. The conviction is inadmissible because only crimes involving dishonesty may be used to impeach a witness. - Crimes requiring proof of a dishonest act or false statement are a separate category under Rule 609(a)(2). - This assault conviction may qualify under the felony provision even though dishonesty is not an element. The conviction is automatically admissible because every felony conclusively demonstrates a witness's untruthfulness. - A qualifying felony conviction is not automatically admissible against this eyewitness; Rule 403 balancing applies. - The conviction is offered to assess the eyewitness’s credibility, not as substantive evidence about the collision. The conviction is inadmissible because the witness was convicted before observing the disputed collision. - Rule 609 does not require the conviction to postdate the event the witness observed. - The relevant timing limit concerns the conviction or release from confinement, and both occurred within ten years.

8. Immediately after a driver struck a cyclist in a crosswalk, the driver approached the cyclist and said, “I was reading a text and did not see you. I will pay all your hospital bills.” No one had yet discussed litigation, the amount of any claim, or whether the driver was legally responsible. The cyclist later sued the driver for negligence and seeks to introduce the entire statement. The driver objects based on the rules governing offers to pay medical expenses and compromise negotiations. Which of the following best states how the court should treat the statement?

A. Admit the driver's statement about texting, but exclude the accompanying offer to pay the cyclist's medical expenses.
B. Exclude both parts because the statement and payment offer together constitute compromise negotiations.
C. Admit both parts because the driver made them before the cyclist asserted a disputed legal claim.
D. Exclude the texting statement as hearsay, but admit the payment offer as evidence of the driver's responsibility.

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Answer: A. Admit the driver's statement about texting, but exclude the accompanying offer to pay the cyclist's medical expenses.

Admit the driver's statement about texting, but exclude the accompanying offer to pay the cyclist's medical expenses. - The driver's statement that he was reading a text is an opposing party’s statement, so it is not hearsay when the cyclist offers it against him. - The accompanying offer to pay hospital bills is inadmissible to prove liability under the rule governing offers to pay medical expenses, but that rule does not exclude the separate factual admission. Exclude both parts because the statement and payment offer together constitute compromise negotiations. - No one had discussed a disputed claim or litigation, so the driver’s immediate remarks were not compromise negotiations. - The medical-expense rule excludes the payment offer as proof of liability, not the accompanying admission that the driver was texting. Admit both parts because the driver made them before the cyclist asserted a disputed legal claim. - The absence of a disputed claim means the compromise-negotiation rule does not bar the driver’s remarks. - It does not override the separate rule excluding an offer to pay the cyclist’s hospital bills when offered to prove liability. Exclude the texting statement as hearsay, but admit the payment offer as evidence of the driver's responsibility. - The texting statement is not hearsay when offered against the driver because it is his own opposing-party statement. - The offer to pay hospital bills cannot be admitted as evidence of responsibility under the medical-expense rule.

Flashcards: Witness competency and refreshing recollection

1. Under the Federal Rules of Evidence, what three competency/eligibility checks commonly determine whether a person may testify in a trial?

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The person must not be the presiding judge in that trial (FRE 605) or a juror in that trial (FRE 606), and must be able to make an oath or affirmation (FRE 603) and have personal knowledge of the matter (FRE 602). The third check contains two requirements; it is not a separate categorical class of witness.

2. Under federal rules, what are the primary requirements for a witness to be deemed competent to testify, regardless of age?

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A witness must be able to take an oath or affirmation to testify truthfully and possess personal knowledge of the matter.

3. When a witness uses a writing to refresh memory while testifying, what rights does the adverse party have?

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The adverse party is entitled to have the writing produced, to inspect it, to cross-examine the witness about it, and to introduce into evidence any portion that relates to the witness's testimony.

4. List the three high-yield points for controlling proof, as summarized in the lesson.

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1) Object timely and specifically; after exclusion, place the proposed evidence on the record unless its substance is apparent. 2) Notice only indisputable adjudicative facts, and separate the fact noticed from any inference drawn from it. 3) When evidence has one lawful use and one forbidden use, timely request restriction and a limiting instruction.

5. Name the three primary ways a court controls the presentation of proof, as discussed in the lesson.

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The three primary ways are: 1) Objections and offers of proof, 2) Judicial notice, and 3) Limited admissibility.

6. Name and briefly describe any two commonly tested methods for authenticating evidence under Federal Rule of Evidence 901(b).

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Any two of the following are valid examples: 1. Testimony of a witness with knowledge (FRE 901(b)(1)): A witness testifies that an item is what it is claimed to be, based on personal knowledge. 2. Nonexpert opinion about handwriting (FRE 901(b)(2)): A nonexpert identifies handwriting based on familiarity acquired outside the current litigation. 3. Comparison with an authenticated specimen (FRE 901(b)(3)): The trier of fact or an expert compares the questioned item with a specimen that has been authenticated. 4. Distinctive characteristics and surrounding circumstances (FRE 901(b)(4)): The item’s appearance, contents, substance, internal patterns, or other distinctive characteristics, considered with the circumstances, support its authenticity. Rule 901(b) also illustrates additional methods, so these are not an exhaustive list.

7. What is the key difference between refreshing recollection and recorded recollection?

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Refreshing recollection: an item is used to jog the witness’s memory; once memory is refreshed, the witness testifies from present recollection, and the refreshing item is not itself admitted merely for that purpose. Recorded recollection (FRE 803(5)): when the witness cannot recall sufficiently, a record the witness made or adopted when the matter was fresh and that accurately reflected their knowledge may be read into evidence; it may be received as an exhibit only if offered by an adverse party.