Presentation of evidence - Requirement of personal knowledge

Learning Outcomes

After reading this article, you will be able to explain the personal knowledge requirement for witnesses under the Federal Rules of Evidence (FRE), identify when a witness lacks personal knowledge, recognize how this rule is tested on the MBE, and apply the rule to practical scenarios, including exceptions and common pitfalls.

MBE Syllabus

For the MBE, you are required to understand the rules governing the presentation of evidence, particularly the competence of witnesses. This article focuses on the requirement that witnesses must have personal knowledge of the matters about which they testify. You should be able to:

  • Identify when a witness is competent to testify under FRE 602.
  • Distinguish between personal knowledge and other forms of information.
  • Recognize exceptions to the personal knowledge requirement.
  • Apply the rule to both lay and expert witnesses.
  • Spot and avoid common errors relating to personal knowledge in MBE questions.

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 witness may testify to a matter only if:
    1. The witness is a party to the case.
    2. The witness has personal knowledge of the matter.
    3. The witness has reviewed the police report.
    4. The witness is an expert.
  2. Which of the following is NOT sufficient to establish a witness’s personal knowledge?
    1. The witness saw the event occur.
    2. The witness heard the statement directly.
    3. The witness was told about the event by a friend.
    4. The witness was present at the scene.
  3. Which statement best describes the requirement of personal knowledge for expert witnesses?
    1. Experts must always have direct, first-hand knowledge.
    2. Experts may base opinions on facts they personally observed or facts made known to them.
    3. Experts may only testify to matters they witnessed themselves.
    4. Experts are exempt from any personal knowledge requirement.

Introduction

The Federal Rules of Evidence require that every witness who testifies to a fact must have personal knowledge of that fact. This rule ensures that testimony is based on what the witness actually perceived, not on speculation, rumor, or second-hand information. The personal knowledge requirement is a fundamental rule for both lay and expert witnesses and is frequently tested on the MBE.

The Rule: FRE 602

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. This rule applies to all witnesses except experts, who are governed by FRE 703.

Key Term: Personal Knowledge Direct awareness of a fact or event, gained through a witness’s own senses (seeing, hearing, etc.), required for admissible testimony.

Application to Lay Witnesses

A lay witness must have observed, heard, or otherwise directly experienced the facts about which they testify. Testimony based on what someone else told the witness, or on documents the witness did not create or see, does not satisfy the personal knowledge requirement.

Key Term: Lay Witness A non-expert witness who testifies about facts they personally perceived, not about specialized opinions.

Application to Expert Witnesses

Expert witnesses are permitted to base their opinions on facts they personally observed, or on facts made known to them at or before the hearing (such as through evidence admitted at trial or facts reasonably relied upon by experts in the field).

Key Term: Expert Witness A witness qualified by knowledge, skill, experience, training, or education, who may give opinions based on personal knowledge or other admissible sources.

Basis for Testimony

Before a witness may testify, the proponent must establish a basis showing the witness has personal knowledge. This can be established by the witness’s own testimony or by other evidence.

Exceptions and Special Cases

  • Expert Testimony: Experts may base opinions on facts not personally observed if those facts are of a type reasonably relied upon by experts in the field.
  • Admissions by Party-Opponent: A party’s own statements may be admitted even if the party lacks personal knowledge.
  • Certain Hearsay Exceptions: Some hearsay exceptions (e.g., excited utterance) do not require the declarant to have personal knowledge of all details, but the declarant must have perceived the event in some way.

Worked Example 1.1

A witness is called to testify that a car ran a red light. The witness testifies, “My friend told me the car ran the red light.” Is this testimony admissible?

Answer: No. The witness lacks personal knowledge. Testimony must be based on what the witness saw or heard directly, not on what someone else reported.

Worked Example 1.2

An expert witness testifies that, in her opinion, a chemical caused the plaintiff’s illness. She did not treat the plaintiff but reviewed the plaintiff’s medical records and test results. Is this testimony admissible?

Answer: Yes. Experts may base their opinions on facts made known to them at or before the hearing, even if not personally observed, as long as such reliance is reasonable in the field.

Exam Warning

On the MBE, watch for questions where a witness tries to testify about events they did not directly perceive. Testimony based on hearsay or speculation is inadmissible unless an exception applies.

Revision Tip

Always ask: Did the witness see, hear, or otherwise directly experience the fact? If not, the personal knowledge requirement is not met.

Summary

  • All witnesses (except experts) must have personal knowledge of the facts they testify about.
  • Personal knowledge is shown by the witness’s own perception.
  • Experts may base opinions on facts they learned before or during trial, if reasonably relied upon.
  • Testimony based on rumor, speculation, or what someone else said is inadmissible unless an exception applies.

Key Point Checklist

This article has covered the following key knowledge points:

  • FRE 602 requires personal knowledge for all non-expert witnesses.
  • Lay witnesses may only testify to facts they directly perceived.
  • Experts may base opinions on personal observation or facts made known to them.
  • The basis for personal knowledge must be established before testimony is admitted.
  • Testimony based on hearsay or speculation is inadmissible unless an exception applies.

Key Terms and Concepts

  • Personal Knowledge
  • Lay Witness
  • Expert Witness
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