holding that a witness’s testimony was admissible even though the witness admitted that it was only “possible” that he or his attorney had made certain statements
How later courts described this case
- holding that a witness’s testimony was admissible even though the witness admitted that it was only “possible” that he or his attorney had made certain statements
- evidence is inadmissible under Fed. R. Evid. 602 if a trial court finds that the witness could not have actually perceived or observed the subject matter of the witness’ testimony
Written by the judges who cited it.
The opinion
CHAPMAN, Circuit Judge,
dissenting:
I dissent based on what I consider to be the erroneous and prejudicial failure of the trial judge to strike certain portions of Stowe’s deposition before its publication to the jury.
Federal Rule of Evidence 602 provides as follows:
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses.
The most important part of Stowe’s testimony is not based on personal knowledge. Stowe testified on direct examination that Montgomery had knowledge of the purchase price of Stowe’s lots. 1 However, on cross examination, Stowe stated that the basis for his statement that Montgomery had prior knowledge was his assumption that his attorney, McCrackin, had told Montgomery of the purchase price. 2 During the trial it was developed through Stowe’s attorney McCrackin’s testimony that he had not communicated the purchase price to Montgomery or anyone at the Credit Union. 3 Thus, Stowe testified to a fact *934 about which he had no personal knowledge but instead was based on an erroneous assumption.
In the case of United States v. Borelli, 336 F.2d 376, 392 (2d Cir. 1964), cert. denied sub. nom. Mogavero v. United States, 379 U.S. 960 , 85 S.Ct. 647 , 13 L.Ed.2d 555 (1965), it was held that testimony should have been excluded in the absence of a showing that the witness was giving an impression derived from the service of his own senses, not from the reports of others or from speculation. In the present case, Stowe was not giving testimony about which he had personal knowledge. His conclusive statement that Montgomery knew the purchase price was speculative and based upon an erroneous assumption. It was highly prejudicial testimony because it described a specific act of negligence on the part of Montgomery. Without the inclusion of this specific act, the evidence of negligence on the part of Montgomery was rather nebulous. This prejudicial testimony went to admissibility and not to credibility. It was the most damaging evidence presented against the defendant because it indicated that Montgomery was approving a $200,-000.00 loan secured by real estate purchased on the date of said loan for only $72,000.00. There is no other testimony in the record to establish Montgomery’s knowledge of this most important and damaging fact. This speculation on such a critical issue should have been excluded.
For the above reasons, I would reverse.
. Pertinent portions of the direct examination of Stowe:
Q. Did you discuss the purchase price of the properties with Mr. Montgomery?
A. The purchase price of the properties? Q. Yes, sir.
A. I know he was aware of the purchase price of the properties or approximately through Mr. McCrackin who was the attorney.
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Q. Did you ever discuss that with Mr. Montgomery?
A. I don’t recall. It’s very possible I did but I just don’t recall.
Q. How do you know then if you didn’t discuss it with him — how do you know Mr. Montgomery was aware of the purchase price?
A. Again, we will have to check with Mr. McCrackin and the check was delivered to Mr. McCrackin and he made the actual disposition of the cash to whoever it was involved.
I don’t know how many checks were made out but we should find out how many checks were made out to begin with.
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Q. Was Mr. Montgomery aware of the purchase price of your paying for these lots? A. I thought he was, yes.
Q. Did you discuss it with him?
A. I don’t recall. I think it was all brought out by Mr. McCrackin but I don’t recall.
. Relevant excerpts from the cross examination of Stowe:
Q. Mr. Stowe, you said you assumed that Mr. or at least I understood you to say that you assumed that Mr. Montgomery knew what you were paying for the property?
A. Yes.
Q. You are assuming that Mr. McCrackin told him?
A. Yes.
Q. But that’s the only basis on which you made that statement?
A. Again, to the best of my knowledge, yes. Q. Let’s assume that Mr. McCrackin did not tell him that information—
A. Yes.
Q. —do you have any other reason for thinking that Mr. Montgomery knew what you were paying for the properties?
A. At this time, I don’t have any reason, no. Q. So the only way that Mr. Montgomery would have known what you were paying for the properties, for a mere seventy-two-thousand dollars, it would have been from Mr. McCrackin having told him? Maybe I have expressed that awkwardly but let’s go back—
A. I don’t know. I know what you are getting at but I don’t know.
Q. You didn’t tell Mr. Montgomery that you were buying this property for a mere seventy-two thousand dollars?
A. I don’t recall but it’s possible.
. McCrackin testified as follows:
Q. You knew that the purchase price was a mere seventy-two thousand dollars?
A. Yes, I knew that was what it was. I can’t think of the man’s name, one of the partners, who confirmed to me this was the price.
Q. And you did not communicate this information to anyone at the Credit Union, as far as you can recall?
A. No.