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During a trial, the lawyers for each side present evidence to prove their version of what happened. There is some confusion in the public mind about what constitutes “evidence,” so I thought I would hit on some of the bigger categories of evidence and tell you a few rules about how that evidence may be admitted into a trial and limitiations on it’s use.

This post, and Part II to come, are BY NO MEANS EXHAUSTIVE OR CONCLUSIVE on the topic (that would take a 6 credit, two semester course), but is meant to be rough guide to some things that might come up during Fitzmas and might otherwise be confusing.

First and Foremost: Testimony is Evidence

One of my favorite things, and I heard this come out of opposing counsel’s mouth in a deposition the other day when a witness testified that a certain event had occurred and this lawyer, who was either being disingenuous or has never read the Federal Rules of Evidence, said “Yes, but what evidence do you have that [the event] occurred?” and I thought to myself, “You wanker, his testimony is evidence.”

Naturally, I noted my objection for the record.

It is a cheap stunt meant to intimidate the witness and make them doubt their own testimony.  Bullshit tactics like that really frost me and lower the tone of the entire process. They are basically unfair questions.

So, today we are going to start with SOME of the Federal Rules of Evidence as they pertain to witnesses. (Except for Hearsay and its exceptions which will be its own separate post — I think Hearsay is going to be a big issue in this case.)

Generally, under Rule 601, “every person is competent to be a witness, except as otherwise provided in these rules.” You don’t have to be a citizen, don’t have to be in this country legally, don’t have to be eligible to vote, can be a convicted felon, etc. etc.

However, under Rule 602, you are only competent to testify as matters upon which you have personal knowledge.  As a practical matter, that’s not always how courts rule.  Many times they allow a witness to testify as to the witness’s belief.

When I prep a witness to testify, I explain the difference between knowledge and belief thusly: You KNOW what you have learned from your five senses, everything else you think you “know” is merely a dearly held belief. For example, if I walk outside and raindrops fall on me and I feel them, if I see the raindrops, if I hear them land on surfaces, if I smell the rain smell, if I open my mouth and taste the drop on my tongue, by each or any of these ways, I “know” it is raining. However, if I am in a windowless room and I see people entering this room wearing wet raincoats and shaking off umbrellas and talking about how it is pouring outside, I may verily believe it to be raining, but I don’t actually “know” that it is raining.

It may seem like hairsplitting to you, but it is actually hugely important in determining whether a witness’s testimony as to a given “fact” is actually competent.

Under Rule 701, a lay witness, that is a regular fact witness, may not give testimony in the form of opinion except in those circumstances where the testimony is “(a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’s testimony or the determination of the fact at issue, and (c) not based on scientific, technical, or other specialized knowledge…”.

Courts have held that a lay witness can testify that a person appeared drunk, if they testified to the things they saw or heard, etc., that lead the witness to that belief.  Such as, “I saw the defendant consume 5 glasses of scotch within a two hour period during the Christmas party, I saw him try to grope his boss’s secretary while his boss was scowling, I heard his speech slurred, I saw him weave when he walked, and he appeared drunk to me.”

Here are some other examples:  Lay persons who are not handwriting experts are nonetheless permitted to ID handwriting if they have first testified to sufficient familiarity with the handwriting in question to make it likely that the testimony is probative.  Lay witnesses have also been permitted to give opinion testimony that, based on laying out a foundation of things seen, heard, etc., the person they are testifying about was angry, sad, or similar things which obviously they cannot “know” because who among us can read another’s mind? (I meant that to a legal certainty.  Littleprop regularly freaks me, and others, out with her ability to tell what others are thinking.  Courts do not yet recognize my offspring’s psychic powers as competent testimony.  So, any readers with similar psychic abilities, please understand, I’m not dissing you .)

Expert testimony is a special category of testimony. We know that Irving wanted to introduce expert testimony for his “memory defense” and was turned down by Judge Walton. This is interesting in that Judge Walton essentially found that memory issues of the sort Irving is complaining of are common enough to qualify for the kind of lay opinion testimony described above.

Anyway, Rule 702 governs testimony by experts and says that if “scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue,” then you can use an expert to educate the jury (almost like testimony = a tutorial on a narrow subject) or to render an opinion. Originally, long, long ago, experts were limited to the tutorial role, but later the law and practice evolved to allow them to render opinions. My belief based on the lines of case law I have read, is that this evolved to speed up trials, otherwise known as judicial economy. That’s one humble lawyer’s opinion, others may differ. 

Under Rule 702, the witness may offer an opinion IF the following criteria are met: “(1) the testimony is based upon sufficient facts and data {in other words you can’t make shit up just because you have a Ph.D.}, (2) the testimony is the product of reliable principles and methods, {no junk science} and (3) the witness has applied the principles and methods reliably to the case.  This last is where the memory expert Irving wanted to use seemed to go astray if I interpret the public reports correctly.

An expert may not give an opinion that determines the ultimate issue in the case, consequently, Team Irving would not be permitted to offer an expert to testify that Scooter is incapable of lying and therefore could not legally have committed the crime charged.

Usually, you also cannot offer expert opinion on a question of law, the idea being that the judge is the law expert in the room, but there are exceptions to that especially with arcane minutiae of law. A friend of mine testified as an Election Law expert in a federal civil rights case that caused the judge to rule that the way NYS selects its candidates for state Supreme Court judge is unconstitutional. Experts are allowed to offer opinions based upon a hypothetical set of facts posed by the questioner.

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  3. Cheney’s Betrayal Made an IIPA Charge for Libby Possible
  4. Yoo’s Nightmare: A Trial Showing Torture was Unnecessary
  5. The Bush Fairy Tale on the Libby Pardon