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. 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.įor 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.īut there are more than just the Rule and a litigator’s argument. Perhaps the answer comes, first, from acknowledging that for some reason the drafters of the Federal Rules felt the need to include it in addition to the foundational requirement that only relevant evidence be admitted. 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. Rare is the case where a witness is not describing what s/he claims to have seen, heard, smelled, touched or tasted.
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