Lack of Personal Knowledge — Rule 602

• Jurisdiction: Colorado

Lack of Personal Knowledge — Rule 602

SUMMARY OF RULE 602

• The witness must have firsthand or personal knowledge of the facts that are referenced in the testimony.
• The witness may provide evidence of his or her personal knowledge.
• Rule 602 is subject to CRE 703 for opinion testimony of expert witnesses.

LEGAL AUTHORITIES

• Every person with personal knowledge is competent to be a witness unless provided otherwise by statute or rule. Wise v. Hillman, 625 P.2d 364 (Colo. 1981).

• A lay witness may testify to opinion only if the opinion is rationally based on the perception of the witness. Pomeranz v. McDonald's Corp., 843 P.2d 1378 (Colo. 1993) (property manager did not have sufficient basis to testify to future taxes and maintenance expenses).

• The threshold for personal knowledge is not very high and may be inferred from the totality of the circumstances. Burlington Northern R.R. Co. v. Hood, 802 P.2d 458 (Colo. 1990).

• The testimony of a witness who reviewed and summarized documents is admissible if the evidence is sufficiently complex, voluminous, and would assist the trier of fact. Murray v. Just in Case Business Lighthouse, LLC, 374 P.3d 443 (Colo. 2016).

• A party may not circumvent the rules of evidence by adopting an appraisal of personal property without an opportunity for cross-examination of the appraiser. In re Marriage of Plummer, 709 P.2d 1388 (Colo. App. 1985).

PRACTICE TIPS

• Extrinsic foundation evidence is not required to show personal knowledge of the witness. Develop the foundation through the witness by showing firsthand knowledge acquired through one or more of the senses, such as being in a physical position to see, hear, or otherwise perceive the matter.

• You may move to strike direct testimony if it is proven in cross-examination that the witness did not have adequate firsthand knowledge.

• The appropriate objection is lack of foundation to show that the witness does not have...