0905

I would sustain the objection. Although all witnesses are presumed to be competent, that presumption can be overcome by a showing that the witness lacks the ability to perceive, remember, or communicate about the events. Here, the witness totally lacks the ability to remember -- that's why she was hypnotized in the first place.

Technically, the witness could testify to the limited amount he recalled prior to hypnosis -- that he saw two people leave the bank. But as a judge, I’m worried that after hypnosis even that testimony -- whether it was one or two people -- could have been influenced by the hypnosis and the witness unable to realize that it was an implanted memory.

Any questions? E-mail me at tanford@indiana.edu and include the reference 907

We now turn to Rule 602 -- the personal knowledge rule. This is the second fundamental rule of evidence (along with relevancy). Witnesses may only testify to matters about which they have personal knowledge. It is tremendously important.

Suppose the following: A witness testifies that she only caught a fleeting glimpse of a man fleeing from a bank. She saw only his back, and it was dusk. The prosecutor then asks, "Was the man you saw the defendant?"

What objection should the defense attorney make? When you think you know the answer, click here.