0907

I would argue that the foundation required by Rule 602 has been satisfied. The witness has minimal personal knowledge. She was there and she saw something -- if only a glimpse. Nothing in Rule 602 suggests that anything more than minimal perception is required. This is like the basic relevancy rule -- unless there is some danger on a miscarriage of justice, all that is needed is minimal personal knowledge. It may be established in any of four ways:

1) It is automatically presumed when witnesses describe themselves -- their own actions or perceptions, e.g.

"Then I ran over to the victim"
"Then I saw the victim"
"Then I heard the victim say ...."

2) However, a foundation is required anytime witnesses describe anything other than themselves, e.g.,

"There was a body lying on the ground."

Seeing the difference can be tricky: examples.

The foundation can be laid three ways:

A) By direct testimony from the witness that he or she was present and saw or heard what happened, e.g.,

"I entered the room and looked around. There was a body lying on the ground"

B) By circumstantial evidence, if based on the witness's overall testimony, it is fairly obvious the witness has personal knowledge; e.g.

"There was a body in the hallway of my apartment blocking the door to the garage where I keep my car."

C) By osmosis, experience and knowledge that sort of floats around in the air. Family members absorb knowledge about the family. People who work in offices have personal knowledge of office procedure. Law students have personal knowledge about how the law school operates. This knowledge is just kind of "absorbed,"e.g.,

"The body was Fred Smith's. He is a fellow law student and had been missing for two weeks."

Any questions? E-mail me at tanford@indiana.edu and include the reference 0907

Hypothetical (actually this is a true story). I once tried a case in which I called my first witness to the stand, and asked him his name. The defense attorney objected on the basis that he lacked personal knowledge of his name because he was named by his parents when he was 0 years old, and only knew his name from second-hand information. I just stood there dumbfounded. Let's see if you are smarter than I was. How should the 26-year-old deputy prosecutor have responded? When you think you know the answer, click here.