Every person is competent to be a witness except as otherwise provided in
these rules. However with respect to an element of a claim or defense as to
which State law supplies the rule of decision, the competency of a witness shall
be determined in accordance with State law.
A witness may not testify to a matter unless evidence is introduced
sufficient to support a finding that the witness has personal knowledge of the
matter. Evidence to prove personal knowledge may, but need not, consist of the
witness' own testimony. This rule is subject to the provisions of § 18.703,
relating to opinion testimony by expert witnesses.
Before testifying, every witness shall be required to declare that the
witness will testify truthfully, by oath or affirmation administered in a form
calculated to awaken the witness' conscience and impress the witness' mind with
the duty to do so.
An interpreter is subject to the provisions of these rules relating to
qualification as an expert and the administration of an oath or affirmation to
make a true translation.
(a) Opinion and reputation evidence of character. The credibility of
a witness may be attacked or supported by evidence in the form of opinion or
reputation, but subject to these limitations:
(1) The evidence may refer only to character for truthfulness or
untruthfulness, and
(2) Evidence of truthful character is admissible only after the character of
the witness for truthfulness has been attacked by opinion or reputation evidence
or otherwise.
(b) Specific instances of conduct. Specific instances of the conduct
of a witness, for the purpose of attacking or supporting the witness'
credibility, other than conviction of crime as provided in § 18.609, may
not be proved by extrinsic evidence. They may, however, in the discretion of the
judge, if probative of truthfulness or untruthfulness, be inquired into on
cross-examination of the witness, concerning the witness' character for
truthfulness or untruthfulness, or concerning the character for truthfulness or
untruthfulness of another witness as to which character the witness being
cross-examined has testified.
The giving of testimony by any witness does not operate as a waiver of the
witness' privilege against self-incrimination when examined with respect to
matters which relate only to credibility.
(a) General rule. For the purpose of attacking the credibility of a
witness, evidence that the witness has been convicted of a crime shall be
admitted if the crime was punishable by death or imprisonment in excess of one
year under the law under which the witness was convicted, or involved dishonesty
or false statement, regardless of the punishment.
(b) Time limit. Evidence of a conviction under this rule is not
admissible if a period of more than ten years has elapsed since the date of the
conviction or of the release of the witness from the confinement imposed for
that conviction, whichever is the later date.
(c) Effect of pardon, annulment, or certificate of rehabilitation. Evidence
of a conviction is not admissible under this rule if:
(1) The conviction has been the subject of a pardon, annulment, certificate
of rehabilitation, or other equivalent procedure based on a finding of the
rehabilitation of the person convicted, and that person has not been convicted
of a subsequent crime which was punishable by death or imprisonment in excess of
one year, or
(2) The conviction has been the subject of a pardon, annulment, or other
equivalent procedure based on a finding of innocence.
(d) Juvenile adjudications. Evidence of juvenile adjudications is
not admissible under this rule.
(e) Pendency of appeal. The pendency of an appeal therefrom does not
render evidence of a conviction inadmissible. Evidence of the pendency of an
appeal is admissible.
Evidence of the beliefs or opinions of a witness on matters of religion is
not admissible for the purpose of showing that by reason of their nature the
witness' credibility is impaired or enhanced.
(a) Control by judge. The judge shall exercise reasonable control
over the mode and order of interrogating witnesses and presenting evidence so as
to:
(1) Make the interrogation and presentation effective for the ascertainment
of the truth,
(2) Avoid needless consumption of time, and
(3) Protect witnesses from harassment or undue embarrassment.
(b) Scope of cross-examination. Cross-examination should be limited
to the subject matter of the direct examination and matters affecting the
credibility of the witness. The judge may, in the exercise of discretion, permit
inquiry into additional matters as if on direct examination.
(c) Leading questions. Leading questions should not be used on the
direct examination of a witness except as may be necessary to develop the
witness' testimony. Ordinarily leading questions should be permitted on
cross-examination. When a party calls a hostile witness, an adverse party, or a
witness identified with an adverse party, interrogation may be by leading
questions.
If a witness uses a writing to refresh memory for the purpose of testifying,
either while testifying, or before testifying if the judge in the judge's
discretion determines it is necessary in the interest of justice, an adverse
party is entitled to have the writing produced at the hearing, to inspect it, to
cross-examine the witness thereon, and to introduce in evidence those portions
which relate to the testimony of the witness. If it is claimed that the writing
contains matters not related to the subject matter of the testimony the judge
shall examine the writing in camera, excise any portion not so related, and
order delivery of the remainder to the party entitled thereto. Any portion
withheld over objections shall be preserved and made available in the event of
review. If a writing is not produced or delivered pursuant to order under this
rule, the judge shall make any order justice requires.
(a) Examining witness concerning prior statement. In examining a
witness concerning a prior statement made by the witness, whether written or
not, the statement need not be shown nor its contents disclosed to the witness
at that time, but on request the same shall be shown or disclosed to opposing
counsel.
(b) Extrinsic evidence of prior inconsistent statement of witness.
Extrinsic evidence of a prior inconsistent statement by a witness is not
admissible unless the witness is afforded an opportunity to explain or deny the
same and the opposite party is afforded an opportunity to interrogate the
witness thereon, or the interests of justice otherwise require. This provision
does not apply to admissions of a party-opponent as defined in §
18.801(d)(2).
(a) Calling by the judge. The judge may, on the judge's own motion
or at the suggestion of a party, call witnesses, and all parties are entitled to
cross-examine witnesses thus called.
(b) Interrogation by the judge. The judge may interrogate witnesses,
whether called by the judge or by a party.
(c) Objections. Objections to the calling of witnesses by the judge
or to interrogation by the judge must be timely.
At the request of a party the judge shall order witnesses excluded so that
they cannot hear the testimony of other witnesses, and the judge may make the
order of the judge's own motion. This rule does not authorize exclusion of a
party who is a natural person, or an officer or employee of a party which is not
a natural person designated as its representative by its attorney, or a person
whose presence is shown by a party to be essential to the presentation of the
party's cause.
If the witness is not testifying as an expert, the witness' testimony in the
form of opinions or inferences is limited to those opinions or inferences which
are rationally based on the perception of the witness and helpful to a clear
understanding of the witness' testimony or the determination of a fact in issue.
If scientific, technical, or other specialized knowledge will assist the
judge as trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion or
otherwise.
The facts or data in the particular case upon which an expert bases an
opinion or inference may be those perceived by or made known to the expert at or
before the hearing. If of a type reasonably relied upon by experts in the
particular field in forming opinions or inferences upon the subject, the facts
or data need not be admissible in evidence.
Testimony in the form of an opinion or inference otherwise admissible is not
objectionable because it embraces an ultimate issue to be decided by the judge
as trier of fact.
The expert may testify in terms of opinion or inference and give reasons
therefor without prior disclosure of the underlying facts or data, unless the
judge requires otherwise. The expert may in any event be required to disclose
the underlying facts or data on cross-examination.
(a) Appointment. The judge may on the judge's own motion or on the
motion of any party enter an order to show cause why expert witnesses should not
be appointed, and may request the parties to submit nominations. The judge may
appoint any expert witnesses agreed upon by the parties, and may appoint expert
witnesses of the judge's own selection. An expert witness shall not be appointed
by the judge unless the witness consents to act. A witness so appointed shall be
informed of the witness' duties by the judge in writing, a copy of which shall
be filed with the clerk, or at a conference in which the parties shall have an
opportunity to participate. A witness so appointed shall advise the parties of
the witness' findings, if any; the witness' deposition may be taken by any
party; and the witness may be called to testify by the judge or any party. The
witness shall be subject to cross-examination by each party, including a party
calling the witness.
(b) Compensation. Expert witnesses so appointed are entitled to
reasonable compensation in whatever sum the judge may allow. The compensation
thus fixed is payable from funds which may be provided by law in hearings
involving just compensation under the fifth amendment. In other hearings the
compensation shall be paid by the parties in such proportion and at such time as
the judge directs, and thereafter charged in like manner as other costs.
(c) Parties' experts of own selection. Nothing in this rule limits
the parties in calling expert witnesses of their own selection.
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