§ 23.02 FIRSTHAND KNOWLEDGE RULE: FRE 602

• Jurisdiction: United States

§ 23.02. FIRSTHAND KNOWLEDGE RULE: FRE 602

Federal Rule 602 requires that a witness have personal knowledge of the events about which the witness testifies.² Firsthand knowledge is not limited to a witness's visual perception; it extends to all senses (e.g., what the witness heard or smelled).³

Uncertainty. A witness's expression of uncertainty, such as "I think," "I believe," or "I'm not positive," is not grounds for exclusion so long as the witness "had an opportunity of personal observation and did get some impressions from this observation."⁴ Accordingly, expressions of uncertainty affect the weight, not the admissibility, of the evidence.

Establishing firsthand knowledge. Typically, the witness supplies proof of firsthand knowledge. Rule 602 provides that such knowledge "may, consist of the witness's own testimony."⁵ It also may be inferred from the testimony.⁶

[A] Standard of Proof: Prima Facie

Frequently, it is difficult to distinguish between what a witness knows and what a witness thinks she knows. Suppose, for instance, that a witness testifies about observing an event one hundred yards away (i.e., length of a football field). The jury should assess that testimony rather than the judge, because the assessment comes close to credibility, a classic jury issue. Consequently, Rule 602 alters the judge's traditional function in applying the firsthand knowledge rule. The trial judge does not decide whether or not a witness has firsthand knowledge by a preponderance of evidence (the usual standard), but only whether sufficient evidence to support a finding of firsthand knowledge has been introduced, i.e., a prima facie standard. If sufficient evidence has been adduced, the witness may testify, and the jury decides whether or not the witness had firsthand knowledge.⁷

[B] Relationship to Hearsay Rule

In many cases, the firsthand knowledge rule and the hearsay rule overlap. For example, if a witness's testimony that the defendant committed a bank robbery is based only on the statement of another person, both rules are violated. The witness has no personal knowledge of the robbery and is merely repeating the out-of-court declarant's statement.⁸ The form of the testimony typically determines the proper objection. If the witness indicates that the basis of the testimony is the declarant's statement, the hearsay objection is proper. If, on the other hand, it appears that the witness was not present at the robbery, the objection for lack of personal knowledge...