Rare is the case [excepting expert testimony] where a witness is not describing what s/he claims to have seen, heard, smelled, touched or tasted. Without that sensory connection to the item at issue, there would be no relevance; and most lawyers abstain from calling a witness to testify to what was behind a closed door or occurring in a far-away location. So what’s the “personal knowledge” fuss?
Perhaps the answer comes, first, from acknowledging that for some reason the drafters of the Federal Rules [and corresponding state codes of evidence] felt the need to include it in addition to the foundational requirement that only relevant evidence be admitted. Indeed, the comment to the personal knowledge rule – Rule 602 – makes clear that it is merely “a specialized application of the provisions of Rule 104(b) on conditional relevancy.” Yet the Rule is there – so it must have some meaning.
For the advocate, the reason for the ‘fuss’ derives directly from the existence of the rule – it is now a tool available to a litigator to seek exclusion of evidence – and if that fails, as a credibility argument going to the weight of witness testimony.
But there are more than just the Rule and a litigator’s argument. Some decisional law has resurrected this rule as an important consideration for evidentiary admissibility; and a too-often ignored issue is the application of this principle to hearsay declarations. So if courts are receptive to this issue then lawyers should ‘tune in’ to whether a witness has personal knowledge, first by learning the rule and its rationale and then by screening all evidence – and especially hearsay – to see whether the threshold has been met.
The rule itself is simple in wording:
A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703.
The threshold for admissibility is low. “A judge should admit witness testimony “if the jury could reasonably find that the witness perceived the event.” United States v. Finley, 2014 U.S. Dist. LEXIS 123808, *5 (W.D. Pa. Sept. 5, 2014). As another court explained, “[t]estimony should not be excluded for lack of personal knowledge unless no reasonable juror could believe that the witness had the ability and opportunity to perceive the event that he testifies about.” United States v. Hickey, 917 F.2d 901, 904(6th Cir. 1990).
So why argue the Rule? Because even with that low threshold courts are applying it. In State v. Lawson, 291 P.3d 673, 692 (Or. 2012), in the context of eyewitness testimony and the risk of a mistaken identification, it was held that Oregon’s personal knowledge rule of evidence was to be applied in determining admissibility and that it must be shown “both that the witness had an adequate opportunity to observe or otherwise personally perceive the facts to which the witness will testify, and did, in fact, observe or perceive them…” Although narrowed in a subsequent holding, the Oregon rule still requires evidence that “would permit a reasonable juror to find that the eyewitness observed the facts necessary to make the identification.” State v. Hickman, 330 P.3d 551, 561 (Or. 2014). A rule largely dormant is now an admissibility prerequisite for eyewitnesses. See also State v. Chen, 27 A.3d 930, 937 (N.J. 2011)(“eyewitnesses cannot testify unless they have personal knowledge…and their opinions and inferences must be rationally based on the[ir] perception…”).
The Rule has also been applied to scrutinize civil pleadings. Where a plaintiff averred that no one reviewed a document, but his assertion did not “indicate that he would have had the opportunity to observe any type of review of the form…” the Court concluded that “therefore the statement is not within his personal knowledge.”
Ripple v. Marble Falls Indep. Sch. Dist., 2015 U.S. Dist. LEXIS 39078, *21 (W.D. Tex. Mar. 27, 2015). See also, Adams v. CDM Media, USA, Inc., 346 P.3d 70, 97 (Haw. 2015)(“ Affidavits in support of a summary judgment motion are scrutinized to determine whether…[they] are made on the personal knowledge of the affiant…”).
The same is true with other categories of opinion testimony. A Texas appellate court applied the personal knowledge test to preclude testimony as to whether an individual was a good prospect for probation because the opining witness lacked “personal knowledge.” Patterson v. State, 2015 Tex. App. LEXIS 4930, *5 (Tex. App. Fort Worth May 14, 2015). See also PAS Communs. Inc. v. Sprint Corp., 139 F. Supp. 2d 1149, 1182 (D. Kan. 2001)(excluding conclusory opinion testimony based on a lack of personal knowledge).
These cases involve the in-court witness’ knowledge and perception. An even more powerful, but more often overlooked, application of the Rule comes into play when the evidence is in the form of hearsay. Consider the following:
Q: Mr. Jones, did you see the murder?
A: No, but two minutes after the gunshot my friend Samantha ran in, crying, and yelled “Tony shot Jack.”
In this circumstance, too many lawyers [and judges] focus on whether the elements of the Present Sense Impression of Excited Utterance rules have been met without asking the foundational question – did Samantha see the shooting?
The law is clear: except for admissions of a party opponent, no hearsay is admissible without some proof sufficient to show by a preponderance that the original declarant had personal knowledge. Gainer v. Wal-Mart Stores East, L.P., 933 F. Supp. 2d 920, 928-929 ( E.D. Mich. 2013)(collecting cases); In re Estate of Maggio, 2012 VT 99, P26, 193 Vt. 1, 12, 71 A.3d 1130, 1137-1138, 2012 Vt. LEXIS 96, *16-18, 2012 WL 5992162 (Vt. 2012)(“ the personal knowledge foundation requirement of Rule 602 should apply to hearsay statements admissible as exceptions under Rules 803 and 804 but not to admissions…”).
In the hypothetical examination reprinted above, had Samantha’s words been “I just saw Tony shoot Jack” or had she been covered in blood the preponderance standard would have been met. Without such proof, however, the hearsay must be excluded.
Two lessons become apparent. In any case, scrutinize testimony to ensure personal knowledge; and in assessing hearsay admissibility, avoid the tunnel vision of whether the type of hearsay satisfies the elements of an exception and expand the view to whether the declarant has personal knowledge.