Must persuade appellate court that trial court committed an error
in admission or exclusion of evidence1.Note: Diff btwn “may” (discretionary) & “must” (no discretion) rules for judges.iii.
The error affected a substantial right
– it was prejudicial
Rule 601: General Rule of Competency : Every person is competent to be a witness except asotherwise provided in these rules.
1.Children - Even a small child can be a witness, although other issues arise – reliability, etc.a.New York i.To be competent, the court must be satisfied that the witness possesses sufficientintelligence & capacity to justify reception of evidence.ii.A child may not testify unless under oath or affirmation. If child is incapable of understanding an oath, she is equally incapable of testifying. NY law says a witnessunderstands the nature of an oath if he appreciates diff btwn truth/falsehood, the necessityfor telling truth, & that you can be punished if you don’t tell truth.1.However, the NY Fam Ct Act makes an exception giving judge discretion on whether or not to place minor under oath2.But, in quasi-crim/Crim cases, no finding can be based on unsworn evidence of achild.2.In civil, if state law applies to substantive element of claim/defense, then competency alsodetermined by state law.3.
Rule 610: Religious Beliefs or Opinions
a.Evidence of religious beliefs/opinions of a witness is not admissible for the purposeimpairing or enhancing a witness’s credibility.ii.
Exceptions to Rule 601
Rule 605 – Competency of Judge as Witness
: The judge presiding at the trial may not testifyin that trial as a witness. No objection need be made to preserve the point – may offend judge byobjecting; also obvious error 2.
Rule 606 – Competency of Juror as Witness
a.At the Trial.
A member of the jury cannot be a witness in the same trial.
If called totestify, opposing side may object out of presence of jury.