Religious Beliefs or Opinions
Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature his credibility is impaired or enhanced.
In considering the problems in this section, keep in mind that competency of witnesses under the Federal Rules boils down to a question of the capacity of the witness to testify--especially the capacity of the witness to be cross-examined. Analysis of all of the problems raising issues of competency of the witness should start with the question "Can this witness be cross-examined sufficiently so that the factfinder can appraise the witness's testimony fairly and accurately?" Answering this question requires consideration of whether the witness can understand, communicate, and appreciate the obligation to testify truthfully to a sufficient level such that the factfinder can make some rational use of the testimony. Thus, any impairment of memory, narrative ability, or appreciation of the difference between reality and fantasy must be weighed by the trial judge, who makes the determination of competency of witnesses under Rule 104(a), against the cost of loss of the evidence entirely if the witness is deemed so impaired she is not allowed to testify. One of the factors the court should take into account is the ability of jurors to recognize any impairment of the witness's testimonial capacities and make their own assessment and, if necessary, discount the reliability of the evidence. Courts also generally recognize that the ability of a witness to be vigorously cross-examined is a subjective ideal that may never be attained in the eyes of the cross-examining lawyer, and that this ideal standard must sometimes yield to pragmatic considerations.
When thinking about cross-examination, it is important to keep in mind that its primary purpose is destructive--to destroy the credibility of the witness by suggesting that the witness did not perceive correctly, does not remember accurately what she saw, is not communicating accurately what she thinks she remembers she saw, or is lying. Thus, most cross-examination, when it is not eliciting new facts that the witness has not testified to on direct examination in order to help build the cross-examiner's case-in-chief or defense, attacks perception, memory, clarity, or sincerity. Sincerity is the most complex of these testimonial capacities and is itself often broken down into bias, prejudice, interest, and corruption.
Cross-examination is often spoken of by trial lawyers as the ultimate trial art--the most difficult skill for a lawyer to master, requiring years of practice, an intuitive grasp of human psychology, and understanding of the legal subject matter, the judge and jury's subjective needs and biases, and all of the information contained in the World Almanac (just in case the witness testifies on direct that he saw the crime committed in the moonlight on a night in which there was no moon). Young lawyers, however, often find that asking a nonobjectionable question on direct examination is a bigger problem. But direct examination is mostly a matter of knowing what the foundational requirements are for the evidence you want to elicit, asking the questions in the proper order (starting with who the witness is and what her connection to the case happens to be) to establish the necessary foundation, and allowing the witness to tell her story.
Allowing the witness to tell her story makes not only good sense from an advocacy perspective, it is what the rules require. As the Advisory Committee's Note states, Rule 611(c) provides that leading questions should not be used on direct examination or with friendly witnesses on cross-examination. The rule is suggestive, and comes down to letting the witness testify rather than ratify the lawyer's testimony in the form of questions to the witness. It is often useful to remember to ask "W" questions to avoid leading the witness: "Who?", "What?", "When?", "Where?" "How?"--the "W" is at the end--and, at times, even--despite the maxim--"Why?"
The cross-examination rule is also suggestive rather than mandatory. Rule 611(b) adopts a loose form of the rule of restrictive cross-examination, allowing great latitude to the trial judge and little scope for appellate scrutiny. This final rule is the product of legislative amendment--the original rule proposed by the Supreme Court was the wide-open rule of cross-examination. When reviewing the problems in this section, consider the advantages and disadvantages of the restrictive approach and the wide-open approach, as well as the practical problems in applying the final rule.