Mock Trial Rules of Evidence and Procedure
 
In American courtrooms, elaborate rules regulate the admission of evidence. These rules are designed to ensure the truth is found and that both parties receive a fair hearing. Accordingly, the rules of evidence for which the witness has firsthand knowledge and exclude evidence which is irrelevant, untrustworthy, or unfairly prejudicial. To participate in the mock trial, you will need to know the role that evidence plays in trial procedure. Studying the rules will prepare you to make timely objections avoid pitfalls in your own presentations, and understand some of the difficulties that arise in actual cases. The purpose of using rules of evidence in a mock trial is to structure the presentations so that they resemble those of an actual trial. Almost every fact stated in the materials must be considered, some may not be admissible under the rules of evidence. Because rules of evidence are so complex, you are not expected to know the fine points. To do that requires a legal education which often starts after graduation from law school. To promote the educational objectives of this mock trial students are restricted to the use of a select number of evidentiary rules in conducting the trial. If it appears that rule of evidence is being violated, an attorney may raise an objection to the residing judge. The judge then decides whether the rule has been violated whether the evidence must be excluded from the record of the trial. In absence of a properly made objection, however, the evidence will probably be allowed by the judge. The burden is on the team to know the rules and to be able to use them to protect their client and to limit the actions of opposing counsel and their witnesses (for example, to exclude hearsay and prevent unreasonable inference).

Not all judges will interpret the rules of evidence (or procedure) the same way, and you must be prepared to point out the specific rule (quoting if necessary) and to argue persuasively for the interpretation and application of the rule you think proper. No matter which way the judge rules, accept the ruling with grace and courtesy. A judge's decision is final.

I. Procedure for Witness Examination

Court controls the questioning of witnesses so as to make the presentation evidence effective, to avoid wasting time, and to protect witnesses from harassment or undue embarrassment. The questioning of witnesses during trial must take place as follows:

I-A. Direct Examination

Attorneys call and question their own witnesses.

I-A(l). Form of Questions. As a general rule, witnesses may not be asked leading questions by the direct examiner (the attorney who calls them testify). A leading question is one that suggests the answer you want, and often requires a "yes" or "no." Direct questions generally should be phrased o evoke a set of facts from the witness.

I-A(2). Personal Knowledge [See Rule 11-D]. Direct examination cover all facts relevant to the case of which the witness has personal knowledge. A witness can only testify about an event if they were there and it occurred and directly observed it. [Remember.- The mock trial materials must supply evidence sufficient to support a finding that the witness had personal knowledge of the subject matter of the testimony.] When a witness makes inferences from what they actually did observe that substantively alters the facts of the case or affects the outcome of the trial, attorney may properly object to this type of testimony because the witness has no personal knowledge of the inferred fact.

I-A(3). Refreshing Recollection. If a witness is unable to recall a statement made in the affidavit, the attorney may use that portion of the affidavit [or witness statement] to help the witness remember. The examiner have the witness review his/her affidavit to "refresh" his/her memory. It is not necessary to enter the affidavit into evidence for this purpose.

I-A(4). Redirect Examination. Redirect is allowed if there is time remaining. The direct examiner should plan to leave time for redirect in case the credibility or reputation for truthfulness of the witness is attacked on cross examination. If the witness is damaged by statements made to opposing counsel during cross examination, then the direct examiner may ask questions that "save" the witness's truth-telling image in the eyes of the court. Note: Redirect examination is limited to issues raised by the opponent attorney on cross examination and must be conducted by the same attorney who handled the initial direct examination. It is the duty of opposing counsel to object of questions are raised by the direct examiner that are outside the scope of cross examination.

I-B. Cross Examination Cross examination follows the opposing attorney's direct examination of his/her witness. Attorneys conduct cross examination to explore the weaknesses in the opponent's case, test the witnesses credibility, and establish some of the facts of their team's case when possible. Time allotted is three minutes for each witness. Time stops for objections.

I-B(l). Form of Questions. An attorney should ask leading questions when cross examining the opponents witnesses. A leading question allows the attorney to control the witnesses' answers to some degree. Questions tending to evoke a narrative answer that usually begin with "how," "why," or "explain," should be avoided.

I-B(2). Scope of Examination. The "scope" of cross examination (i.e., the subject of questions asked) is not limited to subjects brought out under direct examination. It may cover matters affecting the credibility of the witness, and additional matters, otherwise admissible, that were not covered on direct examination.

I-B(3). Impeachment. On cross examination, the attorney may want to attack the credibility of a witness to show the Court that the witness should not be believed. A witness's credibility may be impeached by showing evidence provided in the case materials of the witness's character and conduct, past convictions, and prior inconsistent statements.

I-B(3a). Prior Conduct: "Isn't it true that you misrepresented your academic credentials when you applied for your present job?"

I-B(3b). Past Conviction: "Isn't it true that you've been convicted of stealing jewelry from a department store?" For the purpose of attacking the credibility of a witness, evidence that the witness had been convicted of a crime shall be admitted if elicited from the witness or established by public record if the crime was punishable by death or imprisonment for more than 60 days.

I-B(3c). Prior Inconsistent Statement:
"Did you state on direct that the light was yellow?"
"Is this your affidavit?"
"Did you swear to the affidavit?"
"Does it say in paragraph 2, line 3 of the affidavit, given under oath, that the light was red."
If the witness does not admit to a prior inconsistent statement, the witness may be impeached. When the prior statement was signed and sworn by the witness, the student attorney should introduce the statement and ask the witness:

1) "Is this your statement?"
2) "Did you make it under oath, at a time much closer to the events in controversy?., And
3) "Did it contain all you could then remember?"

I-B(4). Recross Examination. Recross is allowed if there is time. The team attorney does not need to specifically reserve time for Recross examination follows redirect examination, but is strictly limited to the issues raised on redirect and should avoid repetition. The presiding judge has considerable discretion in deciding how to limit the scope recross. It is the duty of opposing counsel to object if questions are raised by the examiner that are outside the scope of redirect examination.

II. Evidentiary Objections

Students are restricted to the use of specific evidentiary objections during the mock trial that are outlined below. These simplified rules were developed by the Constitutional Rights Foundation and modified by the North Carolina academy of Trial Lawyers and Professor Vanderhoof.

II-E Character Evidence
Witnesses generally cannot testify about a person's character unless character an issue. Character evidence is generally inadmissible because jurors may decide the case based on the kind of person a party is rather than the facts the case. (The honesty of a witness, however, is one aspect of character always at issue.) In criminal trials, the defense may introduce evidence of a pertinent trait of the defendant's good character. Once the defense introduces evidence of character, the prosecution can try to prove the opposite.

"Objection, your honor. Character is not an issue here," Or
"Objection, your honor. The question calls for inadmissible character evidence."

II-F. Opinion/Speculation
Witnesses may not normally give their opinions on the stand. Judges and juries must draw their own conclusions from the evidence. A lay witness may an opinion that is rationally based on his/her experiences and helps the to understand the evidence and decide the issues. Estimates of the end of a moving object or the source of an odor are allowable opinions.

Example: A taxi driver testifies that the defendant looked like the kind of guy who would shoot old people. Counsel could object to this testimony and the judge would require the witness to state the basis for his/her "opinion."

"Objection, your honor. The question calls for inadmissible opinion testimony (or inadmissible speculation) on the part of the witness. I move that the testimony be stricken from the record."

II-G. Hearsay
If a witness offers an out-of-court statement to prove the truth of the matter asserted in that statement, the statement is hearsay. Because they are very unreliable, these statements ordinarily may not be used to prove the truth the matter asserted. For reasons of necessity, a set of exceptions allows certain types of hearsay to be introduced. Hearsay is a very tricky subject. A few objections which may arise in the case.

Example l. Joe is being tried for murdering Henry. The witness testifies, "Ellen told me that Joe killed Henry." If offered to prove that Joe lolled Henry, this statement is hearsay and probably would not be admitted over an objection.

Example 2. However, if the witness testifies, "I heard Henry yell to Joe to get out of the way," this could be admissible. This is an out-of-court statement, but is not offered to prove the truth of its contents. Instead, it is being introduced to show that Henry had warned Joe by shouting.

"Objection, your honor. Counsel's question calls for hearsay." Or
"Objection, your honor. This testimony is-hearsay. I move that it be stricken from the record."

Courts have recognized certain general categories of hearsay which may be admissible because of the practical necessity of including the information circumstances that offer greater reliability to certain types of out-of-court statements. Note: The hearsay exceptions allowed during competition listed in "Prof David's Trial Tips."

Testimony not offered to prove the truth of the matter asserted is, by definition, not hearsay. For example, testimony to show that a statement as said and heard, to show that a declarant could speak in a certain language, or to show the statement's effect on a listener is admissible.

III. Inappropriately Phrased Questions

During the mock trial, students are restricted to the following objections when counsel is inappropriately questioning a witness.

I-A. Leading Questions

As a general rule, the direct examiner is prohibited from asking leading questions: he/she cannot ask questions that suggest the desired answer. Leading questions are permitted on cross examination.

Example.- Counsel for the plaintiff asks the witness. "During the conversation, didn't the defendant declare that he would not deliver the merchandise?"

"Objection, your honor. Counsel is leading the witness."

Counsel could rephrase the question, "Will you state what, if anything, the defendant said during this conversation, relating to the delivery of the merchandise?"

III-B. Argumentative Questions
An argumentative question challenges the witness about an inference from facts in the case.

Example: Assume that the witness testifies on direct examination that the defendant's car was going 80 m.p.h. just before the collision. You want to impeach the witness with a prior inconsistent statement. On cross-examination, it would be permissible to ask, "Isn't it true that you told your neighbor, Mrs. Ashton, at a party last Sunday that the defendant's car was going only 50 m.p.h.?"

The cross examiner may legitimately attempt to force the witness to concede the historical fact of the prior inconsistent statement.

Now assume that the witness admits the statement. It would be impermissibly argumentative to ask, "How can you reconcile that statement with your testimony on direct examination?" The cross-examiner is not seeking any additional facts; rather, the cross-examiner is challenging the witness about an inference from the facts.

Questions such "How can you expect the judge to believe that?" Are similarly argumentative and objectionable. The attorney may argue the during the closing argument, but the attorney must ordinarily restrict questions to those calculated to elicit facts.

"Objection, your honor. Counsel is being argumentative." Or,
"Objection, your honor. Counsel is badgering the witness."

III-C. Asked and Answered
Asked and answered is just as it states, that a question which had previously been asked and answered is being asked again.

Example 1: On Direct Examination - Counsel A asks B, "Did X stop for the stop sign?" B answers, "No, he did not." A then asks, "Let me be sure we understand. Did X stop for the stop sign?

"Objection, your honor. This question has been asked and answered."

Counsel for X correctly objects and should be sustained, BUT...

Example 2. On Cross Examination - Counsel for X asks B, "Didn't you tell a police officer after the accident that you weren't sure whether X failed to stop for the stop sign?" B answers, "I don't remember." Counsel for X then asks, "Do you deny telling him that?"

Counsel A makes an asked and answered objection. The objection should be overruled. Why.? Counsel is not asking the same question. It is a sound policy to permit cross-examining attorneys to conduct a searching probe of the direct examination testimony.

III-D. Compound Question
A compound question joins two alternatives with "or" or "and," preventing e interrogation of a witness from being as rapid, distinct, or effective for finding the truth as is reasonably possible.

Example 1: (Using "Or") "Did you determine the point of impact (of a collision) from conversations with witnesses, or from physical marks, such as debris in the road?"

Example 2: (Using "And") "Did you determine the point of impact from conversations with witnesses and from physical marks, such as debris in the road?"

"Objection, your honor, counsel is asking a compound question."

The best response if the objection is sustained on these grounds would be, honor, I will rephrase the question," and then break down the question. Remember, there may be another way to make your point.

III-E. Narrative
A narrative question is one that is too general and calls for the witness in essence to "tell a story" or make a broad-based and unspecific response. The objection is based on the belief that the question, seriously inhibits the successful operation of a truth and the ultimate search for the truth.

Example: The attorney asks A, "Please tell us all of the conversations you had with X-before X started the-job."

The question is objectionable and the objections should be sustained.

"Objection, your honor. Counsel's question calls for a narrative response."

III-F. Nonresponsive Witness
Sometimes a witness's reply is too vague and does not give the details the attorney is asking for, or he/she "forgets" the event in question. A Witness may use this tactic to prevent some particular evidence from being admitted. The questioning attorney may use this objection to "force" the Witness to answer.

"Objection, your honor. The witness is being nonresponsive."

III-G. Outside the Scope of Cross Examination
Redirect examination is limited to issues raised by the opposing attorney on cross examination. If the questions go beyond the issues raised on cross, they may be objected to as "outside the scope of cross examination."

"Objection, your honor. Counsel is asking the witness about matters that did not come up in cross examination."
IV. Outside the Scope of the Mock Trial Materials
Student attorneys may object to testimony that cannot be reasonably inferred from the given facts by arguing whether the inference is reasonable or "outside the scope of the mock trial materials." Objecting counsel will need to explain exactly what information is in the record and will need to argue that the inference substantially alters the information provided. Judges sustain or overrule the objection based on three criteria: 1) if the fact situation supports a finding that the witness offering the testimony would have personal knowledge of the fact in question, 2) how far removed the inference is from the facts in the problem, and 3) whether impeachment from the trial materials is possible. If the objection is sustained, objecting counsel can and should move-to strike the testimony. A good rule of thumb for teams to follow on the use of reasonable inferences is that the trial strategy should never depend on an inference or it is objectionable at competition.

V. Motion for Dismissal
For mock trial purposes, motions for dismissal will not be granted, they may be made however.

 

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