Rule 602 Lack of Personal Knowledge

Rule 602 copies Federal Rule 602, stating the uncontroversial requirement that unless a witness is an expert, in which case he is subject to the provisions of Rule 703, discussed infra, a witness must have personal knowledge of the matters about which he testifies. The fact that new Rule 701 allows a lay witness to testify in opinion form does not undercut the requirement of personal knowledge. “[T]he rule requiring that a witness who testifies to a fact which can be perceived by the senses must have had an opportunity to observe, and must have actually observed the fact” is a “most pervasive manifestation” of the common law insistence upon “the most reliable sources of information.” McCormick (2d ed.) § 10, at 19. These foundation requirements may, of course, be furnished by the testimony of the witness himself; hence personal knowledge is not an absolute but may consist of what the witness thinks he knows from personal perception. 2 Wigmore § 650. As long as there is some evidence that the witness has personal knowledge, the court must let the jury decide whether or not the witness is really knowledgeable. If the jury believes that the witness has no personal knowledge, it will disregard his testimony. The court may reject testimony of a witness if it finds that no trier of fact could reasonably believe that the witness has personal knowledge of the matter. The court may receive the testimony conditionally, subject to evidence of personal knowledge being later supplied in the course of trial. Rule 602 is in fact a specialized application of Rule 104(b) on conditional relevan- cy. This rule does not govern the situation of a witness who testifies to a hearsay statement as such, if he has personal knowledge of the making of the statement. Rules 801 and 805 would be applicable. This would, however, prevent him from testifying to the subject matter of the hearsay statement, as he has no personal knowledge of it. If a police officer, for example, testifies that the defendant confessed to murdering a spouse, the evidence is admissible, assuming that the confession is voluntary of course, even though the officer is not personally knowledgeable about the murder. The officer is saying in effect: “Defendant claimed responsibility for the murder.” He has personal knowledge of what the defendant said. The officer cannot say “Defendant committed the murder,” since he does not know this to be true. He only has personal knowledge of what he heard. K. Redden & S. Saltzburg, Federal Rules of Evidence Manual 245 (2d ed. 1977). The reference to Rule 703 is designed to avoid any question of conflict between the present rule and the provisions of that rule allowing an expert to express opinions based on facts of which he does not have personal knowledge. Nebraska, New Mexico and Maine have adopted Federal Rule 602 verbatim also.