Black-letter propositions
- 01
Nearly every person is competent unless a specific rule applies.
- 02
Almost anything can refresh present recollection; the adverse party can inspect, cross-examine, and introduce relevant portions.
- 03
Recorded recollection requires prior knowledge, insufficient current memory, a record made or adopted when fresh, and accuracy; it is read into evidence and received as an exhibit only by the adverse party.
- 04
Lay opinion must be rationally based on perception, helpful, and not based on specialized knowledge.
- 05
Interpreters and child witnesses require reliability and capacity, not categorical exclusion.
Use this attack sequence under time
Frame the issue
Identify what the witness perceived.
Resolve the next checkpoint
Separate refreshing from recorded recollection.
Resolve the next checkpoint
Lay timing and accuracy foundations.
Finish the conclusion
For opinion, test perception, helpfulness, and expertise.
Common wrong turns
- A refreshing item does not automatically become evidence.
- Recorded recollection differs from a writing that successfully restores memory.
- Lay opinion cannot disguise expert methodology.
Worked example
A witness reads a note made seconds after a crash but still cannot remember; she confirms the note was accurate when made.
The note may be read as recorded recollection after foundation. The proponent cannot automatically admit the exhibit itself; the adverse party controls that option.
Practice this topic
Competency and personal knowledge
Rule 601 says every person is competent to be a witness unless the rules provide otherwise, and in a civil case state law governs competency for a claim or defense where state law supplies the rule of decision. Rule 602 allows a witness to testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of it, and the witness's own testimony may prove it. Rule 603 requires an oath or affirmation to testify truthfully.
Rule 605 bars the presiding judge from testifying at trial, and a party need not object to preserve the issue. Rule 606 bars a juror from testifying at the trial and limits juror testimony about deliberations, with exceptions for extraneous prejudicial information, outside influence and clerical mistakes.
Refreshing memory and lay opinions
Rule 612 gives an adverse party options when a witness uses a writing to refresh memory: production, inspection, cross-examination about it and introduction of related portions. Rule 701 limits lay opinion to one rationally based on the witness's perception, helpful to understanding the testimony or a fact in issue, and not based on scientific, technical or specialized knowledge within Rule 702.
Rule 615 lets a party ask the court to exclude witnesses from the courtroom so they cannot hear other witnesses' testimony. It does not exclude a party who is a natural person, one designated representative of an entity, a person essential to the claim or defense, or a person authorized by statute. Rule 611 gives the court control over the mode and order of examination and allows leading questions on cross-examination.
Frequently asked questions
What is the controlling rule for competency, personal knowledge, memory, and lay opinion?+
Witness proof requires personal knowledge, and memory aids must be classified as refreshing present recollection or recorded recollection.
How should I analyze competency, personal knowledge, memory, and lay opinion on the bar exam?+
Identify what the witness perceived. Separate refreshing from recorded recollection. Lay timing and accuracy foundations. For opinion, test perception, helpfulness, and expertise.
Who is competent to testify?+
Every person, unless the rules provide otherwise, according to Rule 601, and in civil cases state law governs competency for claims or defenses governed by state law.
What does Rule 602 require?+
Evidence sufficient to support a finding that the witness has personal knowledge of the matter, which the witness's own testimony may supply.
Can a judge testify at a trial they preside over?+
No. Rule 605 bars the presiding judge from testifying as a witness, and a party need not object to preserve the issue.
What is the limit on lay opinion?+
Rule 701 limits it to opinions rationally based on the witness's perception, helpful to understanding testimony or a fact in issue, and not based on specialized knowledge within Rule 702.
What can the adverse party do when a writing refreshes memory?+
Under Rule 612, have it produced at the hearing, inspect it, cross-examine the witness about it and introduce any portion that relates to the witness's testimony.