Presentation of evidence - Ability to observe, remember, or relate accurately

Learning Outcomes

This article examines the foundational requirements for witness testimony under the Federal Rules of Evidence, specifically addressing a witness's ability to perceive, recall, and communicate events accurately. After reviewing this material, you will be able to identify the core components of witness competency, understand the presumption of competency, recognize the requirement of personal knowledge (observation), and appreciate the role of the oath or affirmation in ensuring accurate relation, enabling you to analyze these issues in MBE questions.

MBE Syllabus

The MBE requires you to understand the basic prerequisites for witness testimony, including the witness's capacity. Specifically related to this topic, you should be prepared to:

  • Apply the general rule of witness competency (FRE 601).
  • Analyze the requirement that a lay witness must have personal knowledge of the matter testified to (FRE 602).
  • Understand the function and requirement of an oath or affirmation (FRE 603).
  • Distinguish between issues affecting competency (observation, memory, communication) and issues related solely to credibility.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. Under the Federal Rules of Evidence, a lay witness may testify to a matter only if:
    1. The witness has specialized knowledge about the matter.
    2. Evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.
    3. The witness is an adult of sound mind.
    4. The witness's testimony is undisputed.
  2. A witness testifies at trial about a car accident she saw last year. On cross-examination, the opposing counsel asks, "Isn't it true you were treated for significant memory loss shortly after the accident?" This question primarily challenges the witness's ability to:
    1. Observe accurately.
    2. Remember accurately.
    3. Relate accurately.
    4. Understand the oath.
  3. Which element ensures a witness appreciates the duty to testify truthfully?
    1. Personal knowledge.
    2. Competency hearing.
    3. Oath or affirmation.
    4. Relevance of testimony.

Introduction

For evidence to be presented through a witness at trial, the witness must be deemed competent to testify. Competency involves several foundational requirements related to the witness's capacity to provide reliable information. Central to this is the witness's ability to have observed an event, remember it, and then accurately relate it to the trier of fact, all under the solemnity of an oath or affirmation. The Federal Rules of Evidence (FRE) adopt a generally liberal approach to competency, presuming witnesses are competent unless specific rules provide otherwise.

Key Term: Competency The legal qualification of a person to give testimony in court, based on their ability to observe, remember, relate events, and understand the duty to tell the truth.

General Rule of Competency (FRE 601)

FRE 601 establishes a broad presumption: "Every person is competent to be a witness unless these rules provide otherwise." This rule sweeps away many traditional common law grounds for disqualification (e.g., religious belief, conviction of a crime, interest in the lawsuit). For the MBE, assume a witness is competent unless a specific federal rule disqualifies them or state law governs competency in a civil diversity case.

The core assessment under the FRE focuses not on predefined disqualifications but on the fundamental abilities necessary for testimony: observation, memory, and communication, coupled with an understanding of the obligation to be truthful. Challenges related to these abilities usually go to the weight of the testimony (credibility) rather than its admissibility (competency).

Personal Knowledge Requirement (FRE 602)

A key component of witness testimony is the requirement of personal knowledge. FRE 602 states that a witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.

Key Term: Personal Knowledge Knowledge derived from a witness's own direct sensory perceptions (seeing, hearing, smelling, touching, tasting).

Ability to Observe

The personal knowledge rule directly relates to the witness's ability to observe the events or conditions about which they are testifying. The witness must have perceived the matter through their own senses.

  • Prerequisite: The party offering the witness must provide a basis showing the witness had an opportunity to observe the event. This can often be established through the witness's own testimony (e.g., "I was standing on the corner and saw the collision").
  • Challenges: If a witness clearly lacked the opportunity to observe (e.g., was miles away, blind, or unconscious), their testimony on that matter would be inadmissible for lack of personal knowledge. More commonly, limitations on observation (e.g., poor lighting, brief glance, impaired vision) are explored during cross-examination to attack the credibility and weight of the testimony, rather than rendering the witness incompetent.

Ability to Remember

While memory is essential for testimony, imperfections in memory generally affect credibility, not competency. A witness is competent even if they cannot recall every detail or if their memory has faded over time.

  • Refreshing Recollection (FRE 612): If a witness has trouble remembering, their memory can be refreshed using almost any item (often a document). The item itself is not evidence; the witness must then testify from their revived memory.
  • Past Recollection Recorded (FRE 803(5)): If refreshing fails and the witness still cannot remember, a record they previously made or adopted when the matter was fresh may be read into evidence under this hearsay exception (though the record itself is usually not received as an exhibit). This rule implicitly acknowledges memory issues but provides a mechanism for admitting reliable past records.
  • Challenges: Significant memory impairment (e.g., amnesia related to the event, severe dementia) could theoretically impact competency if it renders the witness unable to testify meaningfully, but typically, memory weaknesses are addressed through cross-examination.

Oath or Affirmation Requirement (FRE 603)

Before testifying, a witness must give an oath or affirmation to testify truthfully. This requirement emphasizes the witness's duty to relate events accurately and truthfully.

Key Term: Oath or Affirmation A solemn promise to testify truthfully, administered in a form calculated to awaken the witness's conscience and impress the duty upon them.

Ability to Relate Accurately

The oath or affirmation requirement directly addresses the witness's ability and duty to relate their knowledge truthfully and accurately.

  • Form: No specific religious wording is required; an affirmation is sufficient. The key is that the witness understands the duty to be truthful.
  • Capacity: Issues like infancy or mental infirmity might impact a witness's ability to understand and appreciate the oath. The judge makes a preliminary determination (under FRE 104(a)) regarding the witness's capacity to understand this duty. If the witness cannot understand the obligation, they may be found incompetent.
  • Communication: Difficulty communicating (e.g., language barriers requiring an interpreter, speech impediments) does not automatically render a witness incompetent, provided means exist (like a qualified interpreter under FRE 604) to accurately relate their testimony.

Worked Example 1.1

At trial for robbery, the prosecution calls a witness who was inside the bank during the event. The witness states, "I was terrified and mostly hid under a desk, but I peeked out and saw a person with a red jacket run out." On cross-examination, the defense establishes the witness only peeked for a split second and admits his view was partially obscured. The defense moves to strike the testimony for lack of competency. How should the court rule?

Answer: Deny the motion. The witness has personal knowledge based on direct observation, even if limited. The limitations (brief view, partial obstruction, fear) go to the weight and credibility of the identification testimony, which the jury should assess, not to the witness's basic competency to testify under FRE 601 and 602.

Worked Example 1.2

Plaintiff calls an 8-year-old child to testify about a car accident he witnessed. Before the child testifies, the judge asks the child simple questions about the difference between telling the truth and telling a lie, and asks the child to promise to tell the truth. The child demonstrates understanding. The defendant objects, claiming the child is too young to be competent. Should the objection be sustained?

Answer: No. Under the FRE, age alone is not a disqualifier. The judge properly inquired into the child's ability to understand the duty to testify truthfully (FRE 603). As long as the child also demonstrates personal knowledge (FRE 602) of the events, he is competent. His youthfulness may affect the weight the jury gives his testimony.

Exam Warning

Do not confuse issues of credibility with issues of competency under the FRE. While factors like poor eyesight, hearing impairment, memory lapses, or bias might significantly impact how believable a witness is (credibility), they generally do not make the witness legally incompetent to testify, provided the basic requirements of personal knowledge and understanding the oath are met. Incompetency is rare under the FRE.

Key Point Checklist

This article has covered the following key knowledge points:

  • FRE 601 presumes every person is competent to be a witness unless another rule provides otherwise.
  • FRE 602 requires that a lay witness have personal knowledge of the matter they testify about, meaning they must have perceived it with their senses (ability to observe).
  • Imperfect memory generally affects credibility, not competency (ability to remember).
  • FRE 603 requires every witness to give an oath or affirmation to testify truthfully, demonstrating their understanding of the duty to relate events accurately.
  • Challenges to a witness's ability to observe, remember, or relate usually go to the weight of the testimony, not its admissibility based on competency.

Key Terms and Concepts

  • Competency
  • Personal Knowledge
  • Oath or Affirmation
The answers, solutions, explanations, and written content provided on this page represent PastPaperHero's interpretation of academic material and potential responses to given questions. These are not guaranteed to be the only correct or definitive answers or explanations. Alternative valid responses, interpretations, or approaches may exist. If you believe any content is incorrect, outdated, or could be improved, please get in touch with us and we will review and make necessary amendments if we deem it appropriate. As per our terms and conditions, PastPaperHero shall not be held liable or responsible for any consequences arising. This includes, but is not limited to, incorrect answers in assignments, exams, or any form of testing administered by educational institutions or examination boards, as well as any misunderstandings or misapplications of concepts explained in our written content. Users are responsible for verifying that the methods, procedures, and explanations presented align with those taught in their respective educational settings and with current academic standards. While we strive to provide high-quality, accurate, and up-to-date content, PastPaperHero does not guarantee the completeness or accuracy of our written explanations, nor any specific outcomes in academic understanding or testing, whether formal or informal.
No resources available.

Job & Test Prep on a Budget

Compare PastPaperHero's subscription offering to the wider market

PastPaperHero
Monthly Plan
$10
AdaptiBar
One-time Fee
$395
Assessment Day
One-time Fee
$20-39
BarPrepHero
One-time Fee
$299
Job Test Prep
One-time Fee
$90-350
Quimbee
One-time Fee
$1,199

Note the above prices are approximate and based on prices listed on the respective websites as of May 2025. Prices may vary based on location, currency exchange rates, and other factors.

Get unlimited access to thousands of practice questions, flashcards, and detailed explanations. Save over 90% compared to one-time courses while maintaining the flexibility to learn at your own pace.

All-in-one Learning Platform

Everything you need to master your assessments and job tests in one place

  • Comprehensive Content

    Access thousands of fully explained questions and cases across multiple subjects

  • Visual Learning

    Understand complex concepts with intuitive diagrams and flowcharts

  • Focused Practice

    Prepare for assessments with targeted practice materials and expert guidance

  • Personalized Learning

    Track your progress and focus on areas where you need improvement

  • Affordable Access

    Get quality educational resources at a fraction of traditional costs

Tell Us What You Think

Help us improve our resources by sharing your experience

Pleased to share that I have successfully passed the SQE1 exam on 1st attempt. With SQE2 exempted, I’m now one step closer to getting enrolled as a Solicitor of England and Wales! Would like to thank my seniors, colleagues, mentors and friends for all the support during this grueling journey. This is one of the most difficult bar exams in the world to undertake, especially alongside a full time job! So happy to help out any aspirant who may be reading this message! I had prepared from the University of Law SQE Manuals and the AI powered MCQ bank from PastPaperHero.

Saptarshi Chatterjee

Saptarshi Chatterjee

Senior Associate at Trilegal