Rule 602 Lack of personal knowledge. A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses. [L 1980, c 164, pt of §1; am L 1992, c 191, §2(5)]
RULE 602 COMMENTARY
This rule, which is identical with Fed. R. Evid. 602, restates the traditional common-law rule barring a witness from testifying to facts of which he has no direct personal knowledge. See McCormick §§10, 11. "Personal knowledge," for purposes of this rule, means that the witness perceived the event about which he testifies and that he has a present recollection of that perception. The personal knowledge requirement should not be confused with the hearsay ban, see Rule 802 infra. In fact, the requirements of Rule 602 apply to a hearsay statement admitted under any of the hearsay exception rules, 802.1, 803, and 804 infra, in that admissibility of a hearsay statement is predicated on the foundation requirement of the witness' personal knowledge of the making of the statement itself.
Evidence of personal knowledge is a general foundation requirement for admissibility of all evidence, subject to Rule 703 relating to expert witnesses. The Advisory Committee's Note to Fed. R. Evid. 602 points out: "It will be observed that the rule is in fact a specialized application of the provisions of Rule 104(b) on conditional relevancy." However, preliminary determination of personal knowledge need not be explicit but may be implied from the witness' testimony. "If under the circumstances proved, reasonable men could differ as to whether the witness did or did not have adequate opportunity to observe, then the testimony of the witness should come in, and the jury will appraise his opportunity to know in evaluating the testimony." McCormick §10. Compare Apo v. Dillingham, 50 H. 369, 371, 440 P.2d 965, 967 (1968), where the court said: "A party may testify as to the boundaries of the land he claims. But before such testimony is admissible, the witness must indicate his knowledge of the contents of documents to which he refers."
There was no violation of this rule and circuit court did not err in admitting witness' testimony, where all of the relevant portions of witness' testimony were based on witness' own perception. 78 H. 383, 894 P.2d 80 (1995).
Prior court erred in concluding that four tests were recommended by laser gun manufacturer to establish that the laser gun was working properly where police officer who testified regarding the laser gun lacked personal knowledge that the operator's manual was "provided by" gun manufacturer, and thus there was no evidence establishing that the four tests performed by the officer were recommended by the manufacturer. 130 H. 353, 311 P.3d 676 (2013).
Where evidence insufficient to find officer had present recollection of field sobriety test, officer's testimony regarding test should have been stricken and jury instructed to disregard testimony. 80 H. 138 (App.), 906 P.2d 624 (1995).
Officer had sufficient personal knowledge, under this rule, of intoxilyzer test officer administered to defendant and was thus competent to testify as to test results; when officer could not remember exact reading of test result, it was proper under rule 612 for State to allow officer to review defendant's test result report and refresh officer's present recollection of defendant's exact score. 95 H. 409 (App.), 23 P.3d 744 (2001).
Last modified: October 27, 2016