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Cal Poly Mock Trial Textbook 1

Cal Poly Mock Trial


Textbook
Version 6

Matthew J. Moore
Dept. of Political Science
Cal Poly State University
Cal Poly Mock Trial Textbook 2

Table of Contents
Acknowledgements and Disclaimer ................................................................................................4

I. Introduction to Mock Trial ...........................................................................................................5

II. Civil Law Basics .......................................................................................................................14

III. Criminal Law Basics ................................................................................................................28

IV. Evidence Basics .......................................................................................................................42

V. Courtroom Communication ......................................................................................................71

VI. Opening Statements .................................................................................................................78

VII. Foundation and Exhibits.........................................................................................................85

VIII. Direct Examinations ..............................................................................................................94

IX. Expert Testimony...................................................................................................................100

X. Witnesses ................................................................................................................................107

XI. Cross Examination .................................................................................................................110

XII. Impeachment ........................................................................................................................114

XIII. Objections ...........................................................................................................................119

XIV. Closing Arguments .............................................................................................................126

XV. Competition ..........................................................................................................................131

XVI. Scripts: How To Do Things in a Courtroom.......................................................................135

1. Refreshing a Witness’ Memory By Showing Them Their Affidavit........................................ 136

2. Witness Identification of Defendant ......................................................................................... 137

3. Introducing a Stipulated Fact .................................................................................................... 137

4. Going Back to Fill in Details in Testimony .............................................................................. 138

5. Foundation for Eyewitness Testimony ..................................................................................... 138

6. Foundation for Testimony About In-Person Conversations ..................................................... 138


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7. Foundation for Telephone Conversations ................................................................................. 139

8. Foundation for Prior Identification ........................................................................................... 139

9. Foundation for Habit/Routine Testimony ................................................................................. 140

10. Foundation for Testimony About Past Misconduct ................................................................ 140

11. Foundation for Hearsay, Non-Hearsay, and Exceptions to Hearsay (sub-sections) ............... 141

12. Foundation for Testimony About a Reputation for Untruthfulness ........................................ 144

13. Introducing an Exhibit (sub-sections) ..................................................................................... 145

14. Foundation for Specific Kinds of Exhibits (sub-sections) ...................................................... 147

15. Refusing a Witness’s Offer to Explain Something on Cross Examination ............................ 150

16. Precise Questioning of a Witness on Cross ............................................................................ 150

17. Impeachment For Prior Inconsistent Statement ...................................................................... 150

18. Impeachment for Omission ..................................................................................................... 151

19. Impeachment for Prior Conviction ......................................................................................... 151

20. Impeachment for Bias/Interest ................................................................................................ 152

21. Direct Examination of an Expert Witness (includes 702 foundation) .................................... 152

22. Challenging / Impeaching an Expert ...................................................................................... 154

23. General Format for Raising an Objection ............................................................................... 156

24. Voir Dire of a Witness ............................................................................................................ 156

25. Motion to Strike Testimony .................................................................................................... 157

26. Five things you need to do at the beginning of every trial. .................................................... 157

27. Making an Offer of Proof ....................................................................................................... 158

28. Discussing Case Law in Opening/Closing.............................................................................. 158

29. Retrieving an Exhibit from a Witness..................................................................................... 158

30. Excusing a Witness ................................................................................................................. 159

31. Making a Non-Responsive Objection ..................................................................................... 159


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32. Repeating a Question on Cross ............................................................................................... 159

33. Asking Permission for a Witness to Step Down to Approach Demonstrative ....................... 159

34. Noting a Non-Verbal Action for the Record .......................................................................... 159

XVII. Advice From Previous Teams ...........................................................................................160

Appendixes

AMTA Timekeeper’s Sheet .............................................................................................162

Timekeeper’s Instructions ................................................................................................163

AMTA Character Evidence Sheet ...................................................................................164

Reminders for Going to Competitions Handout ..............................................................165

Glossary of Terms (bold-faced terms are in the Glossary) ..............................................166

Objections Cheat Sheet ....................................................................................................175

MRE Cheat Sheet.............................................................................................................176

Notes ............................................................................................................................................179

Acknowledgements and Disclaimer

This textbook would not have been possible without the hard work of many people. The
members of Cal Poly’s Mock Trial class and club teams between 2007 and 2012 made a lot of
suggestions about creating and improving the book.

This is very much a work in progress. Please suggest changes or improvements, and please point
out any errors or omissions. The whole point is to make this book as useful as possible to you.

Nothing in this book should be taken as legal advice. The purpose of this book is to give you
some general knowledge about legal procedure for the purposes of competing in college-level
mock trial. It will not equip you to handle even the simplest real legal problem. If you have a
legal problem, I urge you to consult an attorney.

BOLD-FACED TERMS ARE IN THE GLOSSARY ON PAGE 166.


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I. INTRODUCTION TO MOCK TRIAL

I. What Is Mock Trial?1

A. Every year the American Mock Trial Association publishes a fictitious legal case.
Teams from colleges across the U.S. gather at competitions to argue the case. Teams that
do well at regional competitions go on to national competitions, and the best teams from
nationals go on to the national championships.

B. A Mock Trial team is 6-10 people. In any one trial, 3 portray lawyers, 3 portray
witnesses, and 1 acts as a timekeeper. At competition, each team will argue both sides of
the case (not at the same time!) twice, for a total of 4 trials. (That means that people can
play different roles in different trials.)

C. Teams are judged by their knowledge of the case, of the law, and of courtroom
procedure and etiquette. They are also judged by how persuasive their performances and
arguments are. Each trial is assessed by two scoring judges, each of whom fills out a
ballot assessing the teams. (Thus, a really great team can win as many as 8 ballots at a
competition.)

D. So, the point of a trial is to argue your side of the case as well as you can, and thus to
win the judges’ ballots. But to do that…you need to learn a lot about the American legal
system and the specifics of Mock Trial. This textbook contain all the information you
need, but some of it will only make sense once you start working on your case and
scrimmaging against other teams.

E. This chapter explains how to get started, and gives you some general background
information about the legal system.

II. Basic Facts About the American Legal System

A. Every legal case involves the claim that someone has broken a law. Because the U.S.
is a common-law system, there are several sources of laws:

1. Statutes – These are laws passed by a legislature.

2. Administrative Regulations – Sometimes the legislature will empower an


administrative agency to make its own rules (the IRS is a good example). These
rules have the force of law.

3. Judicial Decisions – When a court interprets (or invalidates) a law, its decision
is said to be “binding” on itself and any courts below it in the judicial hierarchy.
These decisions have the force of law, at least for the affected courts.

4. Constitutions – Both the federal and the state constitutions have the force of
law.
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5. Executive Orders – Some orders issued by the president (or governors) have the
force of law.

6. Duly Ratified Treaties – Not likely to come up in Mock Trial.

7. Common Law – Some basic principles (like the presumption of innocence) are
not actually written in American law, but are derived from long traditions.

B. The point of a trial in court is to determine whether a law was broken, who broke it,
and what punishment and/or requirement to pay compensation the lawbreaker will face.

C. In the U.S., there are two basic kinds of legal cases:

1. Civil

a. Definition -- one person harms another, but not in a way that interests
the whole society

b. Types of civil cases:

(1) Contract Law — concerns voluntary agreements

(2) Tort Law — conduct that causes some injury, and/or fails to
live up to a set standard (personal injury, product liability, medical
malpractice)

(3) Property Law — concerns real property (land and buildings);


issues such as ownership, zoning, compensation for “takings”

(4) Law of Succession — wills and passing on of property

(5) Family Law — marriage, divorce, child custody, emancipation


of minors, children’s rights

c. Cause of Action – To bring a civil case, the plaintiff has to assert some
legal basis for finding the defendant responsible for some harm. Every
type of civil action has elements that the plaintiff must prove to establish
the defendant’s responsibility.

(1) For many civil cases, the elements are: that the defendant had
(a) a duty, that he or she (b) breached, and that the breach was the
(c) proximate cause of (d) damages suffered by the plaintiff.

(2) More generally, the elements are the essential connections


among the plaintiff, the defendant, the alleged harm, and the
ability of the court to remedy the harm.
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d. Burden of Proof – to prevail, the plaintiff must prove all the elements
of their complaint by a preponderance of the evidence (more likely than
not)

2. Criminal

a. Definition -- a person commits a social harm that the society has


prohibited

b. Elements -- As in civil cases, in criminal cases there are elements that


the prosecution must prove for the defendant to be found guilty. The
elements are usually laid out in a statute, though some are implicit.

(1) Example: Larceny is (a) trespassorily (without permission) (b)


taking away (c) someone else’s property with the (d) intention of
permanent depriving them of it.

c. Burden of Proof – the prosecution must prove all the elements of the
crime beyond a reasonable doubt

III. Trial Overview

A. During a trial, the plaintiff/prosecution tries to prove the elements of their case. The
defense tries to undermine the plaintiff/prosecution’s case, and may also assert an
affirmative defense (which says in essence that even if the defendant is found
guilty/responsible, s/he should not be punished for some reason).

B. Each side tries to persuade the finder of fact by introducing evidence. There are only
four possible sources of evidence:

1. witness testimony – Witness statements, otherwise known as “affidavits,” are


where the meat of the case is for mock trial. From the witness affidavits, you will
be creating your testimony.

2. exhibits – The mock trial case packet will include all the exhibits to be used
during trial. Exhibits can come in the form of documents, curricula vitae,
pictures, or possibly specifications of physical objects like cell phones, guns, etc.

3. judicial notice – This is asking the court to take notice of a general basic fact
that’s relevant and that would be tedious to prove (i.e. “At midnight in SLO, it is
dark”). See M.R.E. 201.

4. stipulations – Facts agreed to in writing by both parties. If there are


stipulations for your trial, they will be in the case pack.
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C. The Order of Trial

1. Opening Statements – The opening statement is the time for each side to
introduce their case to the jury. The opening statement should tell the jury what
they will hear and what evidence they should expect to see during trial. Stick to
facts during opening statements and avoid arguing your case. (Openings will be
covered in more depth in chapter five.)

2. Prosecution’s/Plaintiff’s Case-in-chief – This is the portion of the trial where


the prosecution/plaintiff makes his/her case through the calling of witnesses and
entering of evidence. AMTA allows the prosecution/plaintiff to call three
witnesses; the Defense may cross-examine the witnesses.

3. Defense’s Case-in-chief – The Defense now gets their opportunity to call


witnesses. As with the prosecution/plaintiff, AMTA allows for the defense to
call three witnesses. The point of defense witnesses is to either refute or
undermine the prosecution’s/plaintiff’s case-in-chief, and/or to provide evidence
for an affirmative defense. The prosecution’s/ plaintiff’s counsel will get an
opportunity to cross-examine the defense’s witnesses as well. (Direct and cross-
examinations will be discussed further in chapters six and eight respectively.)

4. Closing arguments – Closing arguments are when each side tries to persuade
the jury of the significance of the evidence presented, and argues that their side’s
theory of the case is correct. (Look at chapter eleven for a detailed look at
closing arguments.)

D. During a jury trial, the judge rules on questions of law, and the jury determines the
facts of what happened. In a bench trial, the judge decides questions of both law and
fact. Mock Trials are always jury trials, though there may not actually be a jury present.

E. Mock Trial Logistics

1. Captains' Meeting -- All trials start with a meeting between the two competing
teams' captains. In this meeting, the captains fill out the ballot for the trial (the
scoring sheet), tell each other which exhibits they plan to introduce (discovery),
choose which side they will argue in this trial (this is sometimes already decided
by the organizers), and, crucially, pick which witnesses they will call. (See more
about captains’ meetings in chapter fifteen.)

2. Trial Segments and Times

P Opening Statement (5 minutes)


D Opening Statement (5 minutes)
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Prosecution/Plaintiff Witnesses (total of 25 minutes for direct testimony;


total of 25 minutes for D's cross-examinations; 60 minutes max.—
objections aren’t timed, so they make up the possible extra 10 minutes)

P Direct Examination of 1st Witness


D Cross Examination of P's 1st Witness
(both sides may re-direct and re-cross; these are not scored,
but they do count against the 25-minute limit)

P Direct of 2nd Witness


D Cross of P's 2nd Witness

P Direct of 3rd Witness


D Cross of P's 3rd Witness

(break)

Defense Witnesses (total of 25 minutes for direct testimony; total of 25


minutes for P's crosses; 60 minutes max)

D Direct of 1st Witness


P Cross of D's 1st Witness

D Direct of 2nd Witness


P Cross of D's 2nd Witness

D Direct of 3rd Witness


P Cross of D's 3rd Witness

(break)

P Closing Argument (9 minutes)


D Closing Argument (9 minutes)

P's Rebuttal (only if time has been reserved from original Closing
Argument)

(optional judge's verbal comments)

3. Time Math -- If both sides use all of their allotted time, and there are no breaks,
each trial would take: 128 minutes (aka, just over 2 hours).

IV. Mock Trial Materials

A. Case Packet – this may include any or all of the following:


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1. Case Summary

2. Complaint / Indictment

3. Stipulations

4. Witness Statements/Affidavits

5. Exhibits

6. Statutes, Case Law, and Additional Rules of Evidence or Procedure

7. Jury Instructions / Verdict Forms

B. Midlands Rules of Evidence

1. All court systems have rules about what kinds of evidence can be introduced at
trial, and about how that must be done.

2. Mock Trial cases take place in the imaginary state of Midlands, USA. The
Midlands Rules of Evidence are very closely modeled on the Federal Rules of
Evidence.

3. Knowing the rules of evidence is essential to winning trials. Ideally, you should
memorize them.

C. AMTA Rules

1. By and large, the AMTA rules should not be referred to during a trial, unless
the other team has made a serious violation. But if referring to them is the ONLY
way to remedy a violation, go ahead.

V. The Basic Game Plan

A. The goal is for each side to convince the finder of fact of their version of events, by
calling three witnesses, introducing physical and documentary evidence, and cross-
examining the other side’s witnesses. Each side will get to introduce their theory of the
case in opening statements, and will also get to show how they believe the evidence fits
together to support their theory, during the closing arguments.

B. Organizing Your Trial Binder

1. You will need one complete print out of the case (and at trial your team will
need a second, clean copy to use as exhibits).
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2. You will want to use a three-ring binder to organize your case file. Use tabs to
separate statutes, case law, affidavits, and all exhibits. During trial it will be
important to be able to quickly reference many different parts of case.

C. Prepping the Case

1. Over the next couple of weeks, you will all be following this method. Quizzes
and in-class exercises will help keep you on schedule. If you are on a club team, I
urge you to use the syllabus for the class as a schedule—it’s a good indication of
how far along you should be in your preparation.

2. Read the complaint/indictment, statutes, and case law – You need to know
what the case is about—what law has allegedly been violated, by whom, under
what circumstances. You also need to know what the law is, what the elements of
the offense or civil wrong are, and how prior cases have modified the statutes.

3. Make a list of the elements that each side will try to prove (or challenge). You
may find these in jury instructions (if they’re included), in statutes, or in the
case law.

4. Read the witness statements and decide which witnesses will help each side and
which will hurt each side. In particular, for each witness, make a list of facts they
can testify to that are helpful/harmful to the plaintiff/prosecution and a separate
list of facts that are helpful/harmful to the defense. You should also make a list of
any facts that seem to be missing from each witness’s statement.

5. Now you have to figure out whether and how you can get those facts into
evidence. Each fact has to be both relevant and admissible under the MRE. Ask
yourself these five questions when examining each piece of evidence / fact /
statement you hope to introduce (if you don’t know what the questions mean, you
will after you read a few more chapters):2

a. Is this evidence relevant?

b. Is this evidence more prejudicial than probative?

c. Is this an opinion only an expert could reach?

d. Is this inadmissible hearsay?

e. Is this improper character evidence?

6. The flipside of figuring out how to get facts admitted is figuring out how to
keep them out through objections. For every fact, make a note about why it’s
admissible, about how you could try to prevent its admission, and about how you
could respond to likely objections.
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7. Do the same things with the exhibits—identify the facts they can introduce,
who will benefit from those facts, and whether/how the facts are admissible.

8. Now make a summary of all of the facts that you think are reasonably
admissible at trial, for both sides. Use these lists to come up with a theory of the
case—what you think most likely happened—from both sides. Your theory
should:

a. be logical (and rest on provable facts)

b. address all the legal elements of your case

c. be simple

d. be easy to believe

9. Develop a theme—a tag-line to sum up your theory of the case. The idea here
is get something as memorable as Johnnie Cochran’s famous “If the glove does
not fit, you must acquit.”

10. Then decide which witnesses you want to call, in order of preference.It is best
to devise several strategies for calling witnesses in case the one(s) you want get
chosen by the other team.

VI. Workload

A. As you can see, mock trial is a lot of work. In order to be competitive at the regional
level, it will be necessary to spend at least five (5) hours per week on the case in addition
to work for the Mock Trial class. The best teams at regionals put in close to twenty
additional hours per week. This includes prep work, writing direct examinations, working
on witness roles, and memorizing everything. There is a clear distinction at regionals
between the teams who have put in at least five hours and those who have not. It’s not
always about who is the smartest, but rather who is most prepared.

VII. The Pyramid of Preparedness

A. You need to have some idea of how well your work for this class will prepare you for
competitions. This pyramid summarizes the different levels of preparedness I’ve seen:

Level 1 – Teams at Level 1 tend to lose all of their ballots at regionals. They
simply aren’t well enough prepared.

Level 2 – Teams at Level 2 tend to win only 1 or 2 (out of 8) ballots at regionals.


They will not advance to the next level of competitions.
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Level 3 – Teams at Level 3 have a 50-50 chance of advancing to the next level of
competition.

Level 4 – Teams at Level 4 are likely to advance to the next level of competition.
But at that next level, all of the teams will be this good…

Level 4
Every statment is word-perfect; witnesses are
believable and memorable; case tells clear and
compelling story.

Level 3
Team has MRE memorized;
etiquette and basic scripts memorized.

Level 2
Team knows facts of case perfectly.

Level 1
Team has basic knowledge of case and MRE;
still using notes; minimal characterization of
witnesses; knows basic courtroom etiquette.

B. The Hard Truth

1. If you do just the work for POLS 295 but nothing else—no meetings with your
team, no effort to memorize the case or MRE—you will not make it to Level 1.

2. If you do all the work for the class plus meet with your team for at least 5 hours
a week outside of class, you will make it to Level 1.

3. If you want to get higher than Level 1, you will have to put in considerably
more time memorizing the facts of the case, memorizing the MRE (and how to
use it), memorizing the courtroom etiquette scripts, and polishing your
presentations. The best teams put in 30+ hours a week on mock trial.
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II. CIVIL LAW BASICS

I. Introduction

A. Civil law is a large and complicated area. To avoid giving you a lot of information you
don’t really need, this section focuses on aspects of civil law that Mock Trial cases past
and present have used or are currently using.

B. Remember that civil wrongs are acts that cause harm to another person, but not in a
way that is of general interest to the society—they generally concern some kind of
disagreement or conflict between individuals. One way to think about the criminal/civil
distinction is that someone who commits a crime poses a threat to society generally—
they may commit similar crimes in the future—while someone who harms someone else
civilly (for example by breaching a contract) is unlikely to pose a danger to anyone else.

C. Civil law is typically broken into the following sub-areas:

1. Contract Law — concerns voluntary agreements

2. Tort Law — concerns conduct that causes an injury, and/or fails to live up to a
set standard of conduct (personal injury, product liability, medical malpractice,
defamation)

3. Property Law — concerns real property (land and buildings); issues such as
ownership, zoning, compensation for “takings”

4. Law of Succession — wills and passing on of property

5. Family Law — marriage, divorce, child custody, emancipation of minors,


children’s rights

D. Every civil case has the same structure:

1. The plaintiff files a complaint with a court, alleging that the defendant has
harmed the plaintiff in some prohibited way. The heart of the complaint is the
elements—the things that need to be proven for the court to find the defendant
liable for the alleged harm. The complaint lays out the basic structure of the case
the plaintiff plans to argue at trial.

2. The defendant then files an answer/response either admitting the wrong or


denying it. If the defendant denies being responsible for the alleged harm, s/he
will directly address how/why s/he did not commit the elements specified in the
complaint. The answer/response lays out the basic structure of the defense that
the defendant plans to present at trial.
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3. Understanding the elements is key to understanding a civil trial. The elements


are what the plaintiff needs to prove and what the defendant needs to disprove
(or at least prevent the plaintiff from proving).

E. Standard of Proof

1. The usual standard of proof in civil cases is “preponderance of the


evidence.” That means that the finder of fact has to believe that it is more likely
than not that the defendant committed each one of the elements alleged in the
complaint.

II. Contract Law

A. Contract law has its own specialized history and rules, and so marks out a special area
of civil law.

III. Tort Law Generally

(This section draws on Diamond, Levine and Madden, Understanding Torts, Third
Edition.)

A. Very generally a tort is a wrongful act for which the law allows the plaintiff to
recover damages or seek an injunction to prevent further harm. (Note that breach of
contract is excluded, since it is covered by a different part of civil law.)

B. There are lots of kinds of torts. As with civil law generally, this textbook just focuses
on the torts that are relevant to past and present mock trial cases.

C. Intentional Torts vs. Negligent Torts

1. One useful way to categorize torts is to distinguish between intentional torts


and negligent torts.

a. An intentional tort is where the defendant intentionally did something


to the plaintiff that resulted in a harm. Examples include assault, battery,
and trespass.

b. A negligent tort is where the defendant causes harm to the plaintiff


unintentionally (and perhaps without knowing about the harm or the
plaintiff), either through an action that fails to live up to a set standard of
cautiousness, or through failing to act to prevent a foreseeable harm.

D. Intentional Torts
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1. Elements -- Each intentional tort has its own specific set of elements that need
to be proven by the plaintiff for the defendant to be found responsible for the
alleged harm. There are also a handful of possible defenses to intentional torts.

E. Negligent Torts

1. Elements -- All negligent torts have essentially the same elements (important
variations are noted below). To prevail, the plaintiff must establish each of these
elements by a preponderance of the evidence:

a. Duty – the defendant had some kind of legal duty towards the plaintiff

b. Standard of Care – this is the legal standard that the defendant had to
achieve to fulfill his/her duty to the plaintiff; for most negligence cases,
the standard of care is to behave as a reasonable person would behave
under the same circumstances

c. Breach – that the defendant did not fulfill his/her duty to the plaintiff
(by failing to act according to the standard of care)

d. Cause in Fact / Actual Cause – that the defendant’s breach of his/her


duty to the plaintiff actually caused the plaintiff’s injury

e. Proximate Cause – in essence, that there were no other factors that


caused the plaintiff’s injury, besides the defendant’s breach of his/her
duty to the plaintiff, and that there are no reasons of policy to shield the
defendant from liability (more on this below)

f. Damages – that the plaintiff suffered a real injury that can be


compensated by actions a court is capable of ordering

2. Duty and Standard of Care

a. The defendant’s legal responsibilities toward the plaintiff are the


defendant’s duty. If the defendant owes no duty to the plaintiff, then
there is no tort.

b. The typical standard of care to avoid negligence is the “reasonable


person” standard—that the defendant acted as a reasonable person would
under the same circumstances.

c. It’s important to note that this is an objective standard—the question is


not whether the defendant thought s/he was acting as a reasonable person
would, or even whether the defendant was acting to the best of his or her
ability, but whether the finder of fact believes that the defendant’s
actions were those a reasonable person would have taken.
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(1) It’s possible for the finder of fact to hold that the defendant
not only should have acted differently, but also should have known
things that the defendant did not know—for example, that the
defendant should have investigated whether the chemicals his/her
employees were using might be toxic or require special handling
procedures.

(2) In general, a defendant’s physical abilities/disabilities may be


taken into account, but not his/her mental or intellectual
abilities/disabilities.

d. Note that child defendants are held to a less rigorous standard—they


are expected to act as other children of their age, experience, and
intelligence would act in the same circumstances.

3. Breach of Duty

a. In most tort cases, the defendant has taken some actions intended to
avoid the harms suffered by the plaintiff, and the question for the finder
of fact is whether those actions were enough to fulfill the standard of
care.

b. One very common way of trying to assess how much action is enough is
to use the risk calculation proposed originally by Judge Learned Hand.
The basic logic is that the defendant has failed to live up to the standard
of care if the cost of preventing the plaintiff’s injury would have been
lower than the probability of the injury multiplied by the severity of the
injury.

(1) Obviously this isn’t really an algebraic formula, since in many


cases we can’t easily quantify the various inputs, but the logic of
the idea makes sense. If there is only a very small probability that
someone will suffer a very minor harm, then the defendant has a
very low obligation to spend time and/or money preventing that
from happening. In contrast, if there is either a high probability of
harm or if the harm is likely to be very serious, then the defendant
has a duty to spend more time and/or money to prevent it. Roughly
the job of the finder of fact is to determine whether the defendant
has made enough effort to prevent harm, given both the probability
of the harm and the likely seriousness of it.

c. One thing to note about the risk calculation is that if the cost of avoiding
the harm is very high, the defendant may not have a duty to do it (though
the defendant may still have a duty to take other, less costly steps that
only partially prevent the harm).
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d. One consideration in determining whether the defendant’s actions were


adequate to live up to the standard of care is whether there is a custom
among people who take similar actions, and whether the defendant
followed the custom.

(1) For example, if it is customary for all cars to have shatterproof


windows, and the defendant car company makes cars with
windows of non-shatterproof glass, that may be evidence both that
the defendant was on notice about the possible danger and its
severity, and that it would have been practically and economically
possible for the defendant to use shatterproof glass.

(2) However, compliance with custom alone may not be enough to


avoid liability, since the custom itself might be unreasonably
risky.

4. Negligence and Statutes

a. Statutes may be relevant to deciding whether actions were negligent,


in two ways:

(1) Statutory Definitions – Any state may pass laws that define
standards of care or reasonableness. If such laws are on the
books, they determine the standards for those elements of the case.

(2) Negligence Per Se – In other cases, criminal laws (which


impose penalties for certain behaviors) may be interpreted by
courts as establishing standards for reasonableness (and thus for
duty and standard of care). For example, a law that makes it a
crime to shoot a gun in a crowded area implicitly indicates that
such activity is unreasonable.

5. Cause in Fact / Actual Cause

a. The typical rule of thumb for determining cause in fact is that the
defendant’s actions are the “but for” cause of the plaintiff’s harm. Thus,
but for Mary pushing John, he would not have fallen down the stairs.
Therefore, Mary’s push is the actual cause of John’s fall.

b. Another common rule for determining cause in fact is whether the


defendant’s actions were a “substantial factor” in the plaintiff’s harm.
This is common when there are multiple causes that might have caused the
plaintiff’s harm, and it is difficult or impossible to prove that any one of
them is the “but for” cause.
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(1) Diamond, Levine, and Madden give the example of two


arsonists who light fires on either side of the plaintiff’s house at
the same time. The fires converge in the middle, destroying the
house. It would be difficult or impossible to prove that either fire
was the “but for” cause of the destruction of the house, and under
that test it might be impossible to hold either arsonist liable. That
seems manifestly unjust, so courts have developed the substantial
factor test.

6. Proximate Cause

a. Let’s be honest: the issue of proximate cause is confusing. But it’s


important, so it’s worth spending some time and effort to understand it.

b. There are two reasons to require the plaintiff to prove that the
defendant’s actions were both the actual and the proximate cause of the
plaintiff’s harm:

(1) Intervening Factors – It might be true that even though the


defendant’s actions clearly caused the plaintiff’s injury, other
factors made it substantially worse.

(a) Imagine that D shoots P in the foot, which would be


painful but not life-threatening. However, P receives
substandard medical care and dies of an easily avoidable
infection acquired in the hospital. Clearly, but for D
shooting P, P would not have acquired the infection and
died, but it’s not obvious that D should be responsible for
P’s death, since its most immediate cause was the infection
that D had nothing to do with.

(b) Similarly, imagine a freakish event that results in harm


to P – D drops a bowling ball on the ground outside P’s
house, which causes P’s house to collapse into a previously
unknown underground cavern, seriously injuring P. Again,
D’s action was clearly the cause in fact of P’s injury, but D
had no possible way to know that his otherwise innocent
action would have such an effect, and it seems unjust to
make him liable for P’s injuries.

(2) Policy Reasons To Shield D – All behavior poses some risk to


others. If we held people liable every time their behavior harmed
others, regardless of how difficult or even impossible it would
have been for them to foresee that harm, as a society we would
encourage people to be extremely cautious. That would possibly
have all kinds of bad outcomes, for example discouraging
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innovation or acts of good samaritans. To avoid those bad


outcomes, the law seeks to limit liability to situations in which the
D could plausibly have foreseen the danger his or her actions
posed to others. Thus, the idea of proximate cause helps to shield
some people from the harm caused by their actions, to achieve
other socially desirable outcomes.

7. Who Really Caused P’s Injury? (aka: Defenses Against Liability)

a. It may be true that P’s injury was caused by the actions of more than
one D, and even at least in part by P him/herself. There are really three
different issues here:

(1) Figuring out how to apportion liability among the various


parties responsible for P’s injury.

(2) Figuring out what to do if the P is at least partially responsible


for his/her own injury.

(3) Ways in which P might be responsible for P’s own injury.

b. Apportioning Liability Among the Responsible Parties

(1) If the P is injured by the negligent actions of more than one D,


and can prove it, then all of the negligent Ds can be found liable.
Typically the finder of fact would try to determine how
responsible each D was for P’s injury, and would award damages
against each D corresponding to their degree of fault.

(2) Note that the responsible Ds do not have to act together—


liability can arise as a result of concerted action or of completely
independent actions that nonetheless combine to cause P’s injury.

(3) Joint and Several Liability – Just in case you hear this
expression: it means that each D has an individual responsibility to
make sure that P is fully compensated for P’s injuries, regardless of
the degree of D’s individual liability. This is an evolving area of
law, and this traditional rule is being replaced in some areas by a
rule that each D is responsible only for their own share of the
damages.

c. What if the P is Partially Responsible?

(1) The law on this issue varies by jurisdiction. There are two basic
approaches, with lots of variations on the specifics:
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(a) Contributory Negligence – If the P’s own actions were


both the actual and proximate cause of P’s injuries, then P
may not recover damages from D even if D was also
negligent (provided that D’s negligence happened before
P’s).

(b) Comparative Negligence – Essentially this approach


tries to determine the degree of responsibility of the P and
the D or Ds, for example finding that the P was 10%
responsible, while D1 was 50% responsible and D2 was
40% responsible. Damages would be awarded
proportionately—P could only recover for the 90% of
damages not caused by P’s own actions; D1 would be
responsible for 56% of that 90% of the damages, while D2
would be responsible for 44% of that 90%.

d. Ways in Which P Might be Responsible (Either Partially or Wholly)

(1) Assumption of Risk – The P knows about a risk and voluntary


assumes it. This is evaluated by a subjective standard—whether the
P actually knew about the risk and actually voluntarily assumed it.

8. Damages

a. There are three main kinds of damages for torts:

(1) Nominal – A very small amount of money (like $1), usually


awarded when the P was right as a matter of law but suffered little
or no actual harm. For example, if the suit is to settle a property
boundary but no harm has been caused to the victorious P, the
court might award nominal damages.

(2) Compensatory – Money intended to compensate P for actual


harm, including medical expenses, lost wages, pain and suffering,
other economic harms, and so on.

(3) Punitive – Damages intended to punish D for especially


egregious behavior, and/or to send a message to other Ds about the
expected standard of care.

b. Collateral Source Rule – The P may collect damages from D for the
full value of P’s losses, regardless of whether P is also getting
compensation for those damages from other sources (such as an insurance
policy). Similarly, D is responsible for his/her full share of the damages to
P, regardless of whether D has insurance that will pay some or all of that
amount.
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c. Eggshell Plaintiff – D is responsible for P’s actual damages, even if


P’s damages are very unusual and much greater than D had reason to
expect. Thus if P has very brittle bones, and D slaps P lightly, D is
responsible for the resulting broken bones even if the same slap would not
have harmed an ordinary person.

9. Strict Liability

a. Strict liability means that in some circumstances P can prove a tort


against D without having to prove negligence (in practical terms, the P
doesn’t have to prove the Standard of Care or Breach elements). This is
a very rigorous standard—the D is liable even if s/he took all reasonable
or even all possible steps to prevent P’s injury.

b. Strict liability only applies in some cases, typically those that involve:

(1) intrinsically dangerous items – animals, explosives, extremely


hazardous chemicals, and so on

(2) circumstances that would make it difficult or impossible to


prove negligence – for example, in a product liability case, where
it would be difficult or impossible for P to prove exactly what
action on the part of D led to the sale of a dangerous product

IV. Product Liability / Negligence

A. Products Liability

a. There are four strategies a P can use to attempt to prove a tort against D for
injuries P received from/due to D’s product:

(1) Negligence

(2) Breach of Warranty

(3) Strict Product Liability

(4) Misrepresentation

b. Negligence

(1) Product negligence is the same as general negligence, as described


above.

c. Breach of Warranty
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(1) In an action for breach of warranty, the warranty replaces the Duty
and Standard of Care elements of a negligence action.

(2) There are two kinds of warranties:

(a) Express – when the manufacturer explicitly makes certain


claims or promises about their product; these must be claims of
fact, not of opinion or mere salesmanship (technically called
puffing); the claims must be relevant to P’s decision to purchase
the product, and must be related to P’s injury

(b) Implicit – There are two kinds of implicit warranties:

(i) Implied Warranty of Merchantability – merely by


selling the product, the merchant is asserting that it is of
roughly similar quality to other goods of the same type, and
that it may safely be used for its intended purpose

(ii) Implied Warranty of Fitness for a Particular


Purpose – when the merchant knows or should know that
the purchaser is relying on the merchant for skill or
judgment about the suitability of goods for a particular
purpose, completing a sale constitutes an implicit assertion
that the goods are suitable for that purpose and may be
safely used to achieve it

(3) It is possible to disclaim all warranties, including implicit warranties,


through specific processes laid out by statute. It is not possible to cancel
or diminish an existing express warranty. It is also possible to limit the
damages a P can seek under a warranty (for example, limiting the
damages to the replacement of the defective product but excluding other
damages).

d. Strict Product Liability

Note: See above for a general discussion of strict liability.

(1) The most common standard for strict product liability is that the
product was sold in a defective condition that was unreasonably dangerous
to the user/consumer/purchaser.

(a) Unreasonably dangerous means that an ordinary consumer,


with ordinary knowledge of this product and similar products,
would not have foreseen the danger posed by this particular
product.
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(2) P must show that the product was defective, and that the defect was a
substantial factor in causing P’s injury. D’s violation of a safety statute or
regulation may be proof that the product was defective.

(3) P does not need to prove any particular negligent act by D—the mere
sale of a defective product that caused P’s injury is enough to establish
liability.

(4) Efforts by D to prevent or avoid P’s injury are not relevant—again,


the mere sale of the defective product that caused P’s injury is proof of
liability.

(5) If the product was changed after it left D’s control, P must show that
the relevant defect was present when it left D’s control.

(6) The flaw may be merely the lack of adequate warnings or instructions
about how to use the product safely and avoid any potential dangers it
poses. The manufacturer has a duty to anticipate any foreseeable dangers
of the use or misuse of the product, and to warn against them.

(7) Sellers and others in the chain of transmission from manufacturer to


purchaser may also have legal responsibilities, but only to the extent that
they are or should have been aware of the hazard posed by the product.

(8) Assumption of risk is a defense against strict product liability, as is


misuse of the product in a non-foreseeable manner. In comparative
liability jurisdictions, the finder of fact may find that the P was partially
responsible for P’s own injury, and apportion damages accordingly.

e. Misrepresentation

(1) If the D misrepresents D’s product, and if P is injured because of


reliance upon the misrepresentation, then P can prove a tort against D
without showing any other negligence or defect in the product.

V. Libel and Defamation

A. Defamation

1. Defamation is publishing a false and injurious statement about another person.

2. Common Law Definition and Elements – At common law, a plaintiff could


recover for defamation if s/he could show that: (1) a defamatory statement (2)
about the plaintiff had been (3) published by the defendant, (4) causing harm to
the plaintiff’s reputation.
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a. defamatory statement – a statement is defamatory if it would expose the


subject to scorn or contempt

b. about the plaintiff – in real life this can be complicated, but for
purposes of mock trial it should be pretty straightforward—the plaintiff
just has to show that the statement was understood as referring to him/her

c. published – that the statement was communicated to at least one person


other than the plaintiff

d. harm to the plaintiff’s reputation – at common law, the harm is


presumed and does not have to be proven (except in the case of special
harms like loss of profits from a business)

3. Defamation comes in two sub-types, and in real life it can be important to


distinguish between them: libel and slander. The difference is easy: slander is
oral (i.e. spoken) and libel is written or in some other way more permanent
(written, painted, in the form of a photograph, in the form of a film, or in the form
of radio or television broadcasts).

B. Defenses

1. As you can see, it’s relatively easy to prove a prima facie case for defamation.
That’s one reason that there are several well-established defenses:

a. Substantial Truth – that the statement was substantially true (it doesn’t
have to be true in every specific); it is up to the defendant to PROVE that
the statement was substantially true

b. Absolute Privilege – there are some (limited) situations under which a


person may have an absolute right to publish even false and defamatory
statements about someone else. For example, statements made in court or
contained in official court papers are absolutely privileged, as are
statements made by a legislator on the floor of the legislature. Further,
communications from one spouse to another are absolutely privileged.

c. Qualified Privilege – there are also some circumstances under which


people have a limited right to publish defamatory information. For
example, if someone accused of a crime implicates someone else, even
falsely, s/he cannot successfully be sued for defamation. Similarly, if
someone has a perceived duty to convey information to a third party, they
usually have a qualified privilege to do so (provided that they limit the
communication to necessary information and give it only to the person
whom they believe has a right to receive it). For example, if someone calls
to ask for a reference for someone who used to work for you, you have a
Cal Poly Mock Trial Textbook 26

qualified privilege to communicate damaging information that you


honestly believe to be true, even if it turns out to be false. Finally, the
media have a qualified privilege to accurately report false but
newsworthy statements at public meetings or in public records (for
example, if one candidate at a debate accuses another of having committed
a crime).

C. Constitutional Issues

1. The US Supreme Court has significantly changed the law of defamation as it


applies to public figures and private individuals who are involved in public
events.

a. Public Officials – In NY Times v. Sullivan, the Court held that false and
defamatory statements about public officials are defamation ONLY if the
plaintiff can prove that they were false and were published with “actual
malice.”

(1) In this context, “actual malice” means that the person who
published the statements either:

(a) knew that they were false, or

(b) made no effort to determine whether they were true or


false before publishing them, or was otherwise reckless
regarding their truth/falsity (for example, taking the word
of someone known to be an unreliable informant)

(2) The standard of proof for actual malice is “convincing


clarity,” which seems to be the same as “clear and convincing
evidence.” That vague standard is higher than “preponderance of
the evidence” (50%) but lower than “beyond a reasonable
doubt” (99.9%).

b. Public Figures – the Sullivan standard also applies to public figures,


who fall into two-categories:

(1) Widely Known – someone who is widely famous, like


Madonna; someone who holds public office; someone who is
widely known within the limited community exposed to the
defamatory statement

(2) Not Widely Known – someone who is involved in a public


controversy and thereby becomes known to the public in
connection with that controversy, like someone who brings a
highly publicized lawsuit against the city
Cal Poly Mock Trial Textbook 27

c. Private Individuals – may still face a higher standard of proof of


defamation, depending on the subject-matter of the statements and the
context in which they were made

(1) About a Matter of Public Concern – plaintiffs may recover


actual damages under the common-law standard, but have to prove
actual malice to recover presumed or punitive damages

(2) Not About a Matter of Public Concern – plaintiffs may recover


under the common-law standard

VI. Property Law

VII. Law of Succession

VIII. Family Law


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III. CRIMINAL LAW BASICS

I. Introduction

A. Most of this information comes from Joshua Dressler, Understanding Criminal Law.
Fourth edition. Newark, NJ: LexisNexis, 2006.

II. Definition and Elements

A. Crime

1. A crime is an (1) intentional, (2) voluntary (3) action that (4) causes a (5) social
harm prohibited by law. (This is distinct from a civil wrong, which hurts an
individual, but not in a way that society as a whole has an interest in.)

2. Nothing can be a crime unless there is a law that makes it one.

3. No one can be punished by the government unless they have been convicted of
a crime.

B. Types of Crimes

1. Crimes are divided into types, depending on severity. The definitions vary by
jurisdiction, but the following are widely relevant:

a. Felonies – punishable by imprisonment for more than a year, or by


death

b. Misdemeanors – punishable by a fine or by imprisonment for less than a


year

c. Violation/Infraction – punishable by a relatively small fine or relatively


short term of imprisonment

C. Burden of Proof

1. This is the easy one: in every criminal case, the prosecution must prove
beyond a reasonable doubt to the finder of fact that the defendant committed
every element of the crime.

III. Actus Reus

A. The actus reus is the action or actions that constitute the crime. More abstractly, it is
(1) a voluntary action that (2) causes (3) social harm (4) in violation of a law.
Cal Poly Mock Trial Textbook 29

1. Example: The crime of larceny consists of taking away someone else’s


property with the intention of permanent depriving them of it. If you take
possession of someone else’s property without permission, and make any effort to
remove it from their control, you have committed the actus reus element of
larceny. (Whether you have committed the mens rea element of intending to
deprive them of it is a separate question.)

B. Pay attention to the elements of actus reus: (1) a voluntary action that (2) causes (3)
social harm (4) in violation of a law. To convict the defendant, the finder of fact will
have to find that s/he committed all four parts, beyond a reasonable doubt. There is a
substantial body of law and doctrine on almost every element.

IV. Mens Rea

A. The mens rea is the mental component of a crime—the state of mind that the
defendant must have been in to be guilty of the crime.

1. Example: Imagine that you have wired your doorbell so that when someone
rings it your dog will be electrocuted. Not knowing this, I come to visit you and
ring your doorbell. I have committed the actions that constitute animal cruelty—I
have committed a voluntary action that caused the suffering and/or death of an
animal. But I am not guilty of the crime of animal cruelty because I didn’t and
couldn’t know that the ordinary action of ringing your doorbell would have that
effect. In other words, I lacked the mental intention—the mens rea—to commit
the crime.

B. Mens rea does not necessarily require that the defendant acted with evil intent, or
that they knew that they were violating the law. It only requires that they intentionally
committed the actus reus outlined in the criminal statute (or common law).

1. Example: Imagine that I don’t know that it is illegal to keep a pet ferret in
California (it really is, btw). I visit friends in Oregon, buy a ferret, and bring it
back home to California. I have committed the crime of possessing a prohibited
pet because I both brought the ferret into the state (actus reus) and I did so
intentionally (mens rea). (In contrast, if my friends snuck a ferret into my car as a
joke, and it was discovered by a police officer, I would not be guilty of the crime
because I didn’t intend to do the prohibited action, and in fact didn’t know I was
doing it.)

2. Note that some crimes may include particular kinds of mental states as an
element of the crime. Thus, I can’t be guilty of a race-based hate crime unless my
criminal actions were motivated by racial hatred or a desire to cause fear based on
race.

C. Intent vs. Negligence


Cal Poly Mock Trial Textbook 30

1. In some cases, the statutory definition of a crime requires a particular


intention—in the case of larceny, the intention not just to take possession of
someone else’s property, but also the intention to permanently deprive them of it
(as opposed to just using it for a minute and then returning it). In those cases, the
prosecution must prove that the defendant had that particular intent. (These are
called “specific-intent” crimes.)

2. But in other cases, the definition of the crime requires only the defendant had
the intention to carry out some prohibited action. Thus, for example, when I drive
my car above the speed limit, I am guilty of speeding merely because of my
speed, regardless of my reason for driving that way. The relevant intent is the
intention to act as I in fact acted. (These are called “general-intent” crimes.)

3. In some cases, a defendant may be guilty of a general intent crime through


negligence—that is, they didn’t intend for the social harm to happen, but any
reasonable person should have foreseen that their behavior might cause it.

a. Example: Imagine that I am driving erratically and cause an accident. I


didn’t intend for the accident to occur, but any reasonable person could
have foreseen that my careless driving significantly increased the danger
of an accident. In that case, I am responsible for causing the accident
through negligence.

4. Negligence is basically about taking risks. As a society, we divide risks into


categories:

a. Acceptable or desirable risks (testing a new medicine on human


subjects, under appropriate conditions).

b. Civil Negligence – when your risky behavior results in harm to some


other individual, but doesn’t constitute a social harm (I thoughtlessly
dispose of my garbage so that it falls into your swimming pool, requiring
an expensive cleaning).

c. Criminal Negligence – when your risky behavior either causes or


threatens to cause a social harm (driving while intoxicated).

d. Recklessness – when your behavior is so risky and so potentially


dangerous that it constitutes a serious social harm (randomly firing your
gun out your bedroom window)

5. Determining Negligence – We use three factors to evaluate the degree of blame


that should attach to risky behavior. Remember that in all three cases, the standard
is what a reasonable person would have thought.

a. how serious was the reasonably foreseeable harm?


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b. how likely was the harm to occur?

c. how big a burden would it have been on the defendant to not engage in
the risky behavior?

D. Malice – In law, malice does not have its common meaning of “intentional moral
wickedness,” but rather refers to someone either intentionally or recklessly (see above)
committing a social harm forbidden by law.

V. Combining the Elements

A. The actus reus and mens rea elements have to exist in the right relationship for a
crime to occur.

B. Causation

1. For a person’s action to be legally culpable, the action must be both the actual
and proximate cause of a prohibited social harm.

2. Actual Cause (aka factual cause or cause-in-fact) – Legally, you determine the
actual cause by using the but-for test. Thus, if John would not have fallen from
the window but for Mary pushing him, then Mary’s push is the actual cause of
John’s falling.

a. Since every situation in the world is caused by many different factors, it


helps to think of the actual cause test as sifting out improbable causes,
rather than as identifying the legally culpable cause.

b. Thus, the laws of physics are relevant to car crashes, but they aren’t a
but-for cause of any particular accident. Rather, you need to look for the
unusual activity that, given the laws of physics as a constant, caused the
collision (like Fred talking on his cellphone while driving). This helps you
eliminate causes that are unlikely to be legally culpable, but does not yet
tell you whether the causes you identify are blameworthy.

3. Proximate Cause (aka legal cause) – Proximate cause is a vague concept. As


Dressler argues, the finder of fact doesn’t discover the proximate cause, but
rather assigns it (along with the attendant legal responsibility) based on the
circumstances. It represents a moral and policy judgment, rather than an objective
truth.

a. Direct Cause – the easiest kind of proximate cause is a direct cause—if


Mary shoots John, and John dies instantly from the gunshot wound,
Mary’s shooting him is the direct cause of his death, and Mary is guilty of
murder
Cal Poly Mock Trial Textbook 32

b. Other Causes – The more complicated cases come when the


defendant’s actions do not cause the harm immediately and directly,
though they obviously contribute to it. Imagine that you run over my foot,
causing extensive nerve damage. Eventually the constant pain is more than
I can bear, and I commit suicide. Are you responsible for my death? For
our purposes (unless the case file says otherwise…) we will stick with
direct cause, but if you want to know more about other issues in proximate
causation, see Dressler Ch. 14.

C. Concurrence

1. The actus reus and the mens rea have to occur together to constitute a crime.

a. For example, imagine that I accidentally shoot you, and then later hope
that you die from the wounds. The actus reus and mens rea of murder are
both present, but not in the right combination. Thus, I might be culpable
for negligently shooting you, but not for attempted murder.

2. However, the concurrence of the elements doesn’t need to be literally


simultaneous—the issue is their logical relationship, not their temporal
simultaneity.

a. For example, imagine that I mail a letter bomb to someone I don’t like.
When the bomb goes off and injures them, I have decided that I really like
them after all, and hope that they don’t get hurt. I am still guilty of
intentionally harming them, since the relevant concurrence happened
when I took the action (mailing the bomb) that I knew or should have
know would have the effect of causing a prohibited social wrong.

VI. Presumptions

A. A presumption is a logical inference that the finder of fact either must or may draw.

1. For example, if A fires a loaded gun at B, the jury may (or sometimes must)
presume that A intended to kill B.

B. The point of presumptions is to make it easier to prove elements of crimes that would
otherwise be difficult or impossible to establish. For example, if the definition of murder
is the intentional killing of another human being, it will be virtually impossible to prove
intent other than by producing evidence of behavior. There’s no way to get inside the
defendant’s mind at the time of the alleged crime, and presumably at trial he or she will
deny having had the requisite intent.

C. Presumptions come in two flavors:


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1. Mandatory – If fact A is established, the jury must infer fact B. These are rare
in criminal law.

2. Permissive – If fact A is established, the jury may infer fact B.

D. The Defendant’s Silence

1. Criminal -- In American law, the jury is generally NOT allowed to infer


anything from a criminal defendant’s failure/refusal to testify, and it is highly
unethical for lawyers to encourage the jury to draw any inferences one way or the
other. (If the jury were allowed to draw inferences, it would make the Fifth
Amendment right against self-incrimination worthless.)

2. Civil -- Since civil defendants are not in jeopardy of life or freedom, the Fifth
Amendment does not apply to them, and the jury is free to draw inferences about
their failure to testify on their own behalf.

VII. Defenses

A. Criminal Defense – There are only a handful of ways for a criminal defendant to win,
or at least reduce his or her punishment.

1. Failure of Proof -- Failure on the part of the prosecution to prove the required
elements (actus reus and/or mens rea). If the prosecution fails to prove all
required elements beyond a reasonable doubt, the defendant is entitled to a
directed verdict of not guilty (but there are no directed verdicts in Mock Trial).

2. Justification – the defendant admits that s/he committed the prohibited act,
but argues that their behavior did not constitute a crime under the circumstances
(for example, killing someone else in self-defense)

3. Excuse – the defendant admits that s/he committed the prohibited act and is
guilty of the crime, but argues that s/he should not be punished due to some
mediating or exculpating factor (for example, that the defendant was mentally ill
at the time of the crime)

B. Failure of Proof

1. Failure of proof can either result from the good luck of the defendant (the
prosecution is simply unable to make its case, and the judge directs the jury to
acquit), or from the defendant producing evidence that disproves or undermines
an element of the prosecution’s case.

a. For example: If the prosecution fails to prove that it was Mark who
fired the gun that killed Frank, Mark will be acquitted of murder.
Cal Poly Mock Trial Textbook 34

b. For example: If the prosecution proves that Mark fired the gun that
killed Frank, but Mark can prove that he did not know that Frank was
hiding behind the shooting-range target, then the jury may find that that
prosecution failed to prove its murder allegation against Mark.

2. Mistakes of Fact

a. A defendant may claim a mistake of fact to try to undermine the


prosecution’s ability to prove the required elements of the case. This is
virtually always an attempt to undermine the mens rea element(s).

(1) For example: Imagine that you are out hunting during hunting
season, and you shoot what from a distance appears to be a deer.
When you get up close, you discover that the deer is actually a
person in a very realistic deer costume, and that you have killed
them. You are not guilty of homicide, because you made an
excusable mistake of fact about the identify of what you shot.

b. Some offenses are called “strict liability” offenses—ignorance of a


material fact is not exculpatory. Examples include speeding and statutory
rape—the social harms are thought to be so severe that a mistake in fact
does not allow a defendant to avoid conviction.

c. Note: Mistakes of fact may be subject to reasonable-person analysis.


If the mistake was genuine but unreasonable (you honestly thought that
the person in your rifle scope was a deer dressed up as a hunter), the
mistake will not be exculpatory.

3. Mistakes of Law

a. In general, not knowing or making a mistake about the law is not


exculpatory. There are exceptions, but they are very unusual.

C. Justifications

1. It’s important to be clear about the difference between justifications and


excuses.

a. A justification defense says “I did the prohibited act, but under the
circumstances it was not blameworthy.” A justification claims that the act
should not be punished.

b. An excuse defense says “I did the prohibited act, but because of some
aspect of my personal situation, I should not be punished for it.” An
excuse claims that the person should not be punished.
Cal Poly Mock Trial Textbook 35

2. Mistake of Fact

a. One justification defense is that the defendant made a mistake of fact.


This comes up frequently in cases where the defendant killed someone
they mistakenly believed was a threat to their life.

b. The rule here is that if the defendant’s action would have been justified
if the mistaken fact were actually correct, and if the mistake was
reasonable—that is, if a reasonable person under the same circumstances
would have come to the same (mistaken) conclusion.

3. Self-Defense

a. The use of force in self-defense is justified if: (1) it was necessary to use
the force to repel an imminent and unlawful use of force; (2) the force
used was proportional to the force that threatened the user; (3) those
determinations were such as a reasonable person would make under the
same circumstances.

b. This includes the use of deadly force, which can only be used (under the
proportionality requirement) to resist deadly force.

4. Defense of Others

a. The use of force to defend others can also be justified, and the
requirements are the same as those for self-defense.

5. Defense of Property

a. This defense deals with the use of force to either prevent yourself from
being unlawfully dispossessed of either real or personal property, or to
regain possession of property immediately after it has been unlawfully
taken from you.

b. The use of nondeadly force is justified if you reasonably believe that


that is the only way to prevent unlawful dispossession of property. Deadly
force is never justified to protect property from dispossession.

c. The force used must be proportionate to the threat—it must be the least
force adequate to prevent dispossession, and no more.

d. Force can be used immediately after dispossession (i.e., by running after


the mugger), but not once that opportunity has passed.

6. Defense of Habitation
Cal Poly Mock Trial Textbook 36

a. In general, you may use deadly force to prevent imminent unlawful


entry into your habitation (house, apartment, etc.). Some jurisdictions
require that you reasonably believe that the would-be entrant also intends
to commit harm once inside the habitation. Some jurisdictions also limit
the right to use force once the intruder is already inside the habitation.

7. Law Enforcement – probably not relevant for mock trial

8. Necessity

a. The necessity defense argues that the defendant’s prohibited action


was necessary to avoid an even greater prohibited harm.

(1) For example: Your speeding may be justified if you were


taking a critically ill friend to the hospital. The harm of speeding is
less than the harm of letting someone die due to lack of medical
care.

b. To succeed, a necessity defense needs to meet several criteria:

(1) The defendant must have faced a clear and imminent danger

(2) The defendant must have expected that his/her action would
directly help to avert the greater danger

(3) There must have been no legal way to avoid the greater danger

(4) The harm that the defendant causes must be less than the harm
s/he thereby avoids/prevents

(5) There must not be a law that has already weighed the
competing harms and decided against the defendant’s actions.

(a). For example, the federal government has already


decided not to permit the medical use of marijuana, and
thus no necessity defense of such use is valid.

(6) The defendant must have had clean hands—s/he must not
have helped create or exacerbate the greater danger

D. Excuses

1. It’s important to be clear about the difference between justifications and


excuses. A justification defense says “I did the prohibited act, but under the
circumstances it was not blameworthy.” A justification claims that the act should
not be punished. An excuse defense says “I did the prohibited act, but because of
Cal Poly Mock Trial Textbook 37

some aspect of my personal situation, I should not be punished for it.” An excuse
claims that the person should not be punished.

2. Duress

a. The defense of duress claims that the defendant was placed in a moral
dilemma by some other person, such that s/he had no choice but to commit
a prohibited act. Duress is never a valid defense against homicide.

b. For a duress defense to succeed, several elements must be present:

(1) The threat or danger must come from another human being

(2) The threat or danger must be likely to cause death or serious


bodily harm

(3) The threat or danger must be imminent and reasonably certain


to happen immediately unless the defendant commits the
prohibited act

(4) The threat must (usually) be directed against the defendant or


a close family member

(5) The defendant must have clean hands—he/she must not have
contributed to creating the threat or danger, and must not have
entered into a situation in which the threat or danger was
reasonably foreseeable

3. Intoxication

a. Intoxication is “a disturbance of mental or physical capacities resulting


from the introduction of any substance into the body” (Model Penal Code
§2.08(5)(a)).

b. Voluntary Intoxication

(1) There are three general defenses that involve voluntary


intoxication:

(a) No Mens Rea -- In general, voluntary intoxication


cannot be the basis for a failure-of-proof claim regarding
mens rea for general-intent crimes. However, it may be a
basis for a failure-of-proof claim for specific-intent crimes,
on the grounds that the defendant was incapable of
forming the necessary intent.
Cal Poly Mock Trial Textbook 38

(b) Unconsciousness – (complicated and not likely to come


up in Mock Trial)

(c) Temporary Insanity – If the insanity is simply the result


of that particular episode of voluntary intoxication, then
there is no valid defense. However, if the insanity is
permanent, then this is just a regular insanity defense (see
below).

c. Involuntary Intoxication – Very rare. At the least, all the voluntary


intoxication defenses are valid. If the intoxication was truly blameless and
unforeseeable, this may also be a valid defense against general-intent
crimes.

4. Insanity

a. There are essentially two kinds of insanity defense:

(1) Incompetent to Stand Trial – The U.S. Constitution forbids


(indirectly) trying an incompetent defendant. This defense is not
valid in Mock Trial (since it would bring the trial to a halt
immediately if successful).

(2) Insane At Time of Crime – A defendant’s actions may be


excused if at the time of his/her crime s/he:

(a) Had a mental disorder or defect such that s/he did not
know what s/he was doing and/or could not control his/her
behavior;

And/or

(b) Had a mental disorder or defect such that s/he did not
know that his/her actions were wrong (i.e., s/he was
incapable of telling right from wrong)

5. Diminished Capacity

a. There are two kinds of diminished capacity defenses:

(1) No Mens Rea – Here a defendant would claim that at the time
of his/her criminal action, s/he suffered from a mental disorder or
defect that, while not amounting to insanity, made him/her
incapable of forming the mens rea required to convict him/her of
the crime.
Cal Poly Mock Trial Textbook 39

(2) Partial Responsibility – This is unusual, and is only allowed to


diminish responsibility from murder to manslaughter.

E. Extrinsic Defenses

1. OK, there’s one more category of defenses, though it’s not relevant for mock
trial—claims that the defendant cannot be tried, for example due to the expiration
of a statute of limitations, diplomatic immunity, double jeopardy, or a prior
pardon.

VIII. Specific Crimes

A. Homicide

1. Any killing of one human being by another human being is homicide. In the
U.S., we usually break homicide into three categories (the names may be different
in different places, but the distinctions are very common):

a. Murder – the intentional killing of one human being by another with


malice aforethought (i.e., with premeditation)

(1) Note that the killer’s premeditated intention does not have to be
to kill, but could also be to inflict grievous bodily harm, to act in
reckless disregard for human life, or to commit some other felony.

(2) Note that murder is a specific-intent crime—the prosecution


must prove that the defendant actually formed the malicious
intent, not just that a reasonable person would have seen the likely
consequences of the defendant’s actions.

b. Voluntary Manslaughter – the intentional killing of one human being by


another but without premeditation. This might include having been
provoked, and it also might include being under an extreme mental or
emotional disturbance for which there is a reasonable explanation.

c. Involuntary Manslaughter – the killing of one human being by another


through negligence, or accidentally while in the commission of another
non-felonious crime.

B. Theft

1. Theft always involves unlawfully dispossessing someone of their property.


There are a number of different kinds of theft:

2. Larceny – the trespassory taking and carrying away of the personal property of
another with the intent to permanently deprive the possessor of their property
Cal Poly Mock Trial Textbook 40

a. In this context, trespassory means “without permission or justification.”

b. The question of who has “possession” of property is important here, and


there are a lot of subtleties. In very general terms, possession is the control
over the property so that you can use it without significant restrictions.
The possessor may not be the owner of the property, and similarly the
possessor may not be the person who had custody of the property at the
time of the larceny.

(1) Example: Your parents buy you a car (with no loan), but keep it
registered in their names. You park it with a valet at a fancy
restaurant. Someone steals it from the restaurant parking lot. In this
case, your parents owned the property, you had possession of the
property, and the valet had custody of the property. The larceny is
against you, the possessor.

c. Someone may be guilty of larceny if they recklessly deprive someone


else of property, even without forming an intent to do so.

d. A major question in larceny cases is whether the defendant had a right


to the property in question.

(1) Example: You loan your friend your bike, which she fails to
return for a long time. One day you walk by her house and see a
bike identical to yours on her porch. You hop on and ride home. If
it’s your bike, you are not guilty of larceny, since you had a right
to regain possession of your property. If it’s someone else’s bike
that just looks like yours, you are probably still not guilty of
larceny because you made a mistake in fact about your right to
possess the property. (But you’ll have to give back the bike…)

3. Embezzlement – You are guilty of embezzlement if you (1) lawfully came into
possession of someone else’s personal property, (2) as the result of that other
person entrusting you with that property, (3) and you converted that property (that
is, took actions intended to deprive the other party of that property permanently).

4. Theft by False Pretenses – You are guilty of theft by false pretenses if you
fraudulently obtain title (ownership) to someone else’s personal property.

C. Attempt – An “attempt” crime is when a defendant tries but fails to carry through
what would otherwise be a criminal act. My guess is that we won’t need information
about attempts for Mock Trial, but if we do it’s in Dressler Ch. 27.
Cal Poly Mock Trial Textbook 41

D. Solicitation -- Solicitation is when one person tries to get another to commit a


criminal act. Here too, my guess is that we don’t need information about this, but if we do
it’s in Dressler Ch. 28.

E. Conspiracy – A conspiracy is an agreement between two or more people to commit a


criminal act. It’s in Dressler Ch. 29.

F. Complicity – Complicity is when one person is held responsible for the criminal
actions of another. See Dressler Ch. 30.

1. Accomplice – One person may be held responsible for the criminal acts of
another if the first helped the second commit those crimes.

2. Co-Conspirator – Similarly, one member of a conspiracy may be held


responsible of the actions of other members of the conspiracy, if those actions
were taken to further their criminal agreement or plan.
Cal Poly Mock Trial Textbook 42

IV. EVIDENCE BASICS

I. Introduction

A. This outline is partially drawn from Paul C. Giannelli, Understanding Evidence.


Newark, NJ: LexisNexis, 2006.

B. Although the rules of evidence are complicated and technical, the basic point is very
easy: we want our trials to convict the guilty/responsible and exonerate the innocent. To
achieve those goals, we insist that the evidence produced in court be both relevant and
reliable. At the same time, we need procedural rules (who goes first?) to make trials
efficient and predictable. The rules of evidence are all about making sure that we achieve
these goals.

C. Most of what you need to know about evidence is in the Midlands Rules of Evidence
(MRE). This chapter goes over the MRE item by item, and should help you understand
any confusing issues.

D. One general point that you should always keep in mind is that evidence can only do
two things:

1. make it more or less likely that the defendant committed one or more of the
elements alleged in the complaint/indictment.

2. support or undermine the credibility of a witness who is providing evidence


meant to show (1).

II. MRE Article I (The status of the MRE itself)

A. MRE 101: Scope

1. These rules are the only rules that govern legal cases in Midlands.

2. Unless a bureaucratic organization is mentioned in the case materials, it doesn’t


exist for purposes of the case. For example, unless the IRS is mentioned in the
case, it doesn’t exist and you can’t refer to it.

B. MRE 102: Purpose and Construction

1. Almost never relevant to mock trial. Could be used as a last-ditch attempt to


sway the judge’s interpretation of another part of the MRE.

C. MRE 103: Rulings on Evidence

1. 103(a) Effect of Erroneous Ruling


Cal Poly Mock Trial Textbook 43

a. The party that loses a trial can only appeal if they can show that a legal
or procedural error was made during the trial.

b. Even if there was a mistake made during the trial, two additional factors
must be fulfilled for an appeal to go forward:

(1) The mistake must have actually harmed the party that lost (for
example, by improperly excluding evidence that would have been
helpful to that party).

(2) The losing party must have either objected to the mistake at the
time it was made (103(a)(1)), or the losing party must have made
an offer of proof (103(a)(2)). An offer of proof is when a party
explains to the judge what some excluded evidence would have
shown and why it would have been helpful to their case. (This is
done with the jury “constructively sequestered”—103(c).)

c. MRE 103(d) preserves the Federal Rules of Evidence’s clause that if a


judge makes a plain, obvious mistake, that is grounds for appeal even
without an objection or offer of proof. This is NOT relevant to Mock
Trial—there are virtually no circumstances under which errors by the trial
judge can be used to change the outcome of the trial.

d. Even though there aren’t any appeals in Mock Trial, making timely
objections and offers of proof shows the judges that you understand how
evidence works, and that you would be prepared to go on to an appeal.

D. MRE 104: Preliminary Questions

1. MRE 104(a): This just says that the court may need to rule on the questions of
the competency of a witness to testify, of whether a privilege exists concerning
some possible testimony, and on the admissibility of evidence. The key point
here is that the court is not bound by the rules of evidence in making these
decisions. What that means is that the court may take into account information
that could not otherwise be presented to the jury as evidence.

2. MRE 104(b): Sometimes you will need to introduce evidence out of order. For
example, you might want witness A to testify about the contents of a letter, but
only witness B can testify that the letter was actually received. In principle, A
shouldn’t be able to testify until B has shown that A’s testimony is relevant. But
that would make for very complex trials, so MRE 104(b) allows you to get
witness A’s testimony first, as long as you make an iron-clad promise that later
witnesses will testify to the facts that make A’s testimony admissible.

a. If you plan to introduce evidence out of order like this, it is urgent that
you say so upfront and that you explain clearly to the judge and opposing
Cal Poly Mock Trial Textbook 44

counsel how you will get the relevant facts out later. DO NOT wait for
opposing counsel to object before you explain—this makes you look less
prepared than them.

E. MRE 106: Remainder of or Related Writings or Recorded


Statements (aka Rule of Completeness)

1. If one side introduces a portion of a document or recording (but not testimony


about an oral statement), the other side may immediately request introduction of
the rest of the document or recording if that is necessary to avoid unfairness.

a. Example: Imagine that I write you an email in which I write: “Yes I


killed her. That’s just what you want me to say, isn’t it? Well it isn’t true.”
If you introduce a copy of the email and just read out “Yes I killed her,”
then I can immediately ask the court for permission to introduce the rest of
the email under MRE 106.

III. MRE Article II (Judicial Notice)

A. MRE 201: Judicial Notice of Adjudicative Facts

1. Judicial notice is a way to get basic facts into evidence without having to go to
the trouble of proving them. For example, if it matters that the alleged crime took
place on a Monday, you could ask the judge to take judicial notice of the fact that
the date on which the crime took place was a Monday (you should provide an
almanac or calendar). Judicial notice is intended to be used for facts that are
common knowledge and not in contention.

2. You may request that the court take judicial notice at any time during the trial,
but I recommend doing it during pre-trial.

IV. MRE Article III (Presumptions)

A. MRE 301: Presumptions in General in Civil Actions and


Proceedings

1. You will probably never have to worry about this one for Mock Trial.

2. Just in case, here’s the basic point: sometimes the law allows the finder of fact
to make a presumption, which is essentially drawing a conclusion from
circumstantial evidence. For example, if I point a gun at you and pull the trigger,
the finder of fact may presume that I intended to shoot you.

3. Usually the presumption will weigh against the defendant. For example, if
you rear-end another car while driving, the law presumes that the accident was
your fault, since you could have left more room and thus stopped safely. But even
Cal Poly Mock Trial Textbook 45

though that presumption weighs against the defendant, the plaintiff still has to
prove the elements of their case—for example, that it was really you that was
driving, that there really was a collision, and so on.

4. Finally, it is usually possible to attempt to rebut presumptions, if you can


show that the circumstances were highly unusual. For example, if the car you hit
had just slid off the back of a car carrier truck because it wasn’t properly secured,
you may be able to rebut the presumption that hitting it was your fault. You bear
the burden of overcoming the presumption, but the plaintiff still bears the
overall burden of proof in the case.

V. MRE Article IV (Kinds of Evidence and Admissibility Rules)

A. MRE 401: Definition of "Relevant Evidence"

1. The only evidence that should be admitted is evidence that is relevant to a


material fact in the case. There is some leeway given for background evidence
that may help make material evidence understandable or put it into context. A fact
is relevant if and only if it makes it more or less likely that an element of the case
actually occurred.

B. MRE 402: Relevant Evidence Generally Admissible; Irrelevant


Evidence Inadmissible

1. All relevant evidence is admissible, except if it falls under MRE 403.

2. All irrelevant evidence is inadmissible.

3. Only evidence supplied in or reasonably inferable from the case pack is


relevant.

C. MRE 403: Exclusion of Relevant Evidence on Grounds of


Prejudice, Confusion, or Waste of Time

1. A relevant piece of evidence may be excluded under rule 403 if it is more


prejudicial than probative, if it is likely to waste time or confuse the jury, and
so on.

2. For example, gruesome crime-scene photos may be excluded if they are being
introduced to make a relatively minor or unimportant point. This rule is worded to
favor admissibility, and you should vigorously argue against any attempt to
exclude evidence under it.

D. MRE 404, 405 and 406: Character Evidence


Cal Poly Mock Trial Textbook 46

1. First, pay attention to 404(a)(1), which requires you to give the other team
written notice (using a special form, included at the end of this book) during the
captains’ meeting if you plan to introduce character evidence about either the
other party or the victim. (This follows the federal procedure; the rationale is that
since the other side will not be able to call rebuttal witnesses, they need to at least
be informed of your plans, so that they can prepare to respond, and even to raise
the issue first because they know you plan to do so later.)

2. Character evidence is generally prohibited to prove conduct—the idea that


someone’s character makes it a virtual certainty that they did some particular
action. However, there are exceptions…

3. The key question is whose character we’re talking about:

a. Accused

(1) The prosecution can not introduce character evidence against


the accused for the purpose of proving conduct-conforming-with-
character, except:

(a) When the accused has already introduced evidence


about his/her character, and the prosecution wants to
introduce rebuttal evidence. (404(a)(1))

(b) When the accused has already introduced evidence of


the character of the victim, and the prosecution wants to
introduce rebuttal evidence. (404(a)(2))

(c) When (in a homicide case) the accused has claimed that
the victim was the first aggressor, and the prosecution
wants to introduce evidence of the victim’s peaceable
character. (404(a)(2))

(d) When (in a self-defense case) the accused has claimed


that the victim was the first aggressor, and the prosecution
wants to introduce evidence of the accused’s violent
character. (404(a)(2))

(2) The prosecution can offer evidence of the character of the


accused-as-witness for truthfulness, under 608 and 609. See those
rules for specific requirements.

(3) The accused is always free to introduce action-in-conformity


evidence about their own character, but doing so opens the door
for the prosecution to introduce rebuttal evidence.
Cal Poly Mock Trial Textbook 47

b. Victim

(1) The victim’s character is only relevant when the accused is


claiming self-defense. Therefore, the prosecution can only
introduce evidence about the victim’s character once the accused
has done so and thereby opened the door.

c. Witness

(1) See the discussion of Witnesses in MRE Article 6 below.

4. What evidence can be introduced:

a. Reputation, Opinion, and Specific Instances of Conduct -- In general,


character must be proved by evidence of reputation or a witness’ opinion.
However, sometimes specific instances of conduct may be introduced.
Rule 405 says (in toto):

(1) Reputation or opinion. In all cases in which evidence of


character or a trait of character of a person is admissible, proof
may be made by testimony as to reputation or by testimony in the
form of an opinion. On cross-examination inquiry is allowable
into relevant specific instances of conduct.

(2) Specific instances of conduct. In cases in which character or a


trait of character of a person is an essential element of a charge,
claim, or defense, proof may also be made of specific instances of
that person's conduct.

b. Other Acts – In general, you may not introduce evidence of someone’s


prior actions to prove action-in-conformity-with-character. However, you
can introduce prior acts for other purposes.

(1) 404(b) Other Crimes, Wrongs, or Acts.--Evidence of other


crimes, wrongs, or acts is not admissible to prove the character of
a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident. The prosecution in a criminal
case shall provide written notice of such intent prior to witness
selection in the captains' meeting.

(2) Giannelli argues that prior-acts evidence is usually used to


establish three kinds of things:
Cal Poly Mock Trial Textbook 48

(a) to show that the accused was the actor in the crime at
issue

(i) that the accused had motive due to prior acts

(α) Example: the accused was having an


affair with the victim’s spouse

(ii) that the accused has committed prior acts that


have striking similarity to the circumstances of the
act at issue

(b) to show that the accused possessed the necessary mens


rea for the crime at issue

(i) Example: the accused was a lifelong hunter, and


therefore his claim that a shooting was accidental
due to his unfamiliarity with guns may be countered
with prior acts evidence.

(c) to show that the crime at issue was actually committed

c. Habit and Routine Practice Evidence (406)

(1) Note that the MRE do not require prior notice for the
introduction of habit evidence.

(2) Rule 406. Habit; Routine Practice Evidence of the habit of a


person or of the routine practice of an organization, whether
corroborated or not and regardless of the presence of
eyewitnesses, is relevant to prove that the conduct of the person or
organization on a particular occasion was in conformity with the
habit or routine practice.

(3) Giannelli argues that habit is defined by (and distinguished


from character by) four factors:

(a) specificity

(i) Example: Showing that someone is always neat


and orderly is character evidence. Showing that
someone puts their keys in the same place every
night is habit.

(b) repetition – the more frequent the habitual conduct, the


better (every day as opposed to once a month)
Cal Poly Mock Trial Textbook 49

(c) duration – the longer the habitual conduct has gone on,
the better (for a year as opposed to for a month)

(d) that the conduct is semi-automatic – This is


complicated. That you use your right hand to write
(assuming you’re right-handed) is habit. That you go to
church most Sundays is probably character (since going to
church isn’t semi-automatic in the way that, say, tying your
shoes is).

E. MRE 407-411 – Several Kinds of Inadmissible Evidence

1. This is easier than it looks. There are certain activities that, as a matter of
policy, our society wants to encourage—for example, buying liability insurance,
offering to settle conflicts out of court, fixing problems once they have been
discovered, and so on. But if those activities could be used to prove your
responsibility for someone’s else’s injury, no one would do them.

a. For example, imagine that someone slips on the floor of your restaurant
and gets hurt. Then they sue and point out that you have slip-and-fall
insurance, which is obviously evidence that you know that it’s likely that
someone might slip on your floors. If we allowed that kind of argument,
no one would buy such insurance, since doing so would open you up to
liability.

2. To encourage people to do these good activities, we prohibit introducing


evidence of them to prove either responsibility for harm or agreement as to the
degree of harm. However, evidence of those activities can be introduce for other
reasons. Specifics are below:

3. Compromises and Offers (408)

a. The fact that a party has made or offered a compromise on a claim is not
admissible to prove either the validity or invalidity of the claim, or to
establish the amount of the claim. But if the fact of an offer or
compromise is introduced for any other reason, 408 does not apply.

(1) Example: Imagine that you and I are in an auto accident. I offer
you $500 on the spot if you promise not to file any claims against
me for damages or injuries. You cannot introduce that offer at trial
to establish that I acknowledged the validity of your claims, or to
establish that I agreed that the claim was worth at least $500.
Cal Poly Mock Trial Textbook 50

(2) Example: But imagine that I told the police that you fled from
the scene of the accident immediately. You could introduce the
fact of my offer to establish that you did not flee.

4. Subsequent Remedial Measures (407)

a. Imagine that you fall in a hole in my back yard. If I later fill the hole,
you cannot use that subsequent remedial measure as evidence that I was
negligent because I hadn’t filled it before, or because I hadn’t put up a
sign warning people about it. However, you can use my actions as
evidence that filling the hole was possible, that it was easily within my
power to remove the hazard, and so on. In other words, subsequent
remedial measures can not be introduced to establish liability, but they
can be introduced to establish anything else (that’s relevant).

5. Medical Payments (409)

a. Similarly, offering or providing payment for medical expenses cannot


be introduced to establish liability for the injury, but it can be introduced
for other purposes (to prove that the other party had knowledge of the
severity of your injuries, or where to find you to serve papers, and so on).

6. Pleas and Offers (410)

a. Evidence concerning withdrawn guilty pleas, nolo contendere pleas,


statements related to such pleas, and statements made during plea
bargaining may not be admitted against the defendant who made the plea
or statement. Such evidence may be admitted against a third party (for
example, a witness at the earlier proceeding).

(1) There is a tiny exception for prosecutions on perjury or false


statements, or to achieve completeness in the interest of fairness.

7. Insurance (411)

a. Evidence that someone had (or did not have) liability insurance cannot
be admitted to prove negligence or responsibility for some harm.
However, it can be admitted for other reasons (to show who owned the
property in question, for example).

VI. MRE Article V (Privileges)

A. MRE 501: Privileges Recognized

1. A privilege is a legal right not to testify under certain conditions. The ones you
probably know about are attorney-client, spouse-spouse, and doctor-patient.
Cal Poly Mock Trial Textbook 51

2. You have to be very careful about this:

a. Only privileges granted by a statute of the state of Midlands or by


Midlands Case law shall be recognized.

b. What that means is that if a privilege is not spelled out in the case file,
it does not exist in Midlands.

c. Privileges can be waived, but only under certain circumstances. If this


is relevant, it will be spelled out in the case file.

VII. MRE Article VI (Witnesses and Testimony)

A. MRE 601: General Rule of Competency

1. In principle, everyone is competent to be a witness. If you think a witness is


biased or has some defect that makes them non-credible, bring those issues out
during objections and cross-exam.

2. But see 605, which says that the presiding judge cannot be a witness.

B. MRE 602: Lack of Personal Knowledge

1. In general, witnesses may only testify to things that they know through their
own experience, and not to things that others have told them, things that they have
assumed to be true, or conclusions that they have drawn from their experience.

2. This rule is modified somewhat by MRE Article VII, below.

C. MRE 603: Oath or Affirmation

1. The main point here is that witnesses have already sworn an oath to tell the
truth and do not need to be sworn in at trial.

D. MRE 605: Competency of Judge As Witness

1. The presiding judge may not testify as a witness.

E. MRE 607: Who May Impeach

1. Any party may attack the credibility of any witness. See below and Chapter 12
on Impeachment.

F. MRE 608-609; 613: Witnesses, Character Evidence, and Impeachment


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1. Impeachment is the process of attacking the credibility of a witness or


particular piece of evidence or testimony.

2. Impeachment is about credibility, not admissibility. Many students are


confused about the difference:

a. Admissibility is a legal issue—it’s about whether a particular piece of


evidence can be shown to the finder of fact at all. You argue
admissibility through objections and offers of proof.

b. Credibility is a factual issue—it’s about whether the finder of fact


should believe a particular piece of evidence or witness that they have
already heard or seen. You argue credibility through impeaching the
witness or piece of testimony.

3. If you successfully impeach a witness, they can still finish their testimony and
say whatever they were planning to say. The impeachment is just to demonstrate
to the finder of fact that they should not believe what the witness says (perhaps
only about one or two narrow issues)

4. There are five main methods of impeachment:

a. Bias – showing that the witness has a personal stake in the outcome of
the case, such that s/he might not tell the truth. This might be due to a
personal relationship with a party, to a financial or other interest in the
outcome of the case, or because of a plea bargain that the witness has
struck in order to testify.

b. Mental or Sensory Defect – showing that the witness is unable to


observe, recall or relate information accurately or reliably (for example,
the witness might be blind, suffer from memory loss, or be a young child);
showing that the witness is unable to recognize the responsibility to tell
the truth in court (because s/he is insane, or a young child). Evidence that
the witness was under the influence of drugs or alcohol at the time of the
crime, or is under the influence while giving testimony, is also admissible.

c. Character for Untruthfulness – This can be proved using four kinds of


evidence. Note that the MRE require prior notice in both civil and
criminal cases.

(1) Reputation Evidence – 608(a) allows reputation evidence, but


only as regards reputation for un/truthfulness.

(2) Opinion Evidence – 608(a) also allows opinion evidence, also


restricted to opinion about the witness’ character as to
un/truthfulness
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(3) Specific Acts Evidence – 608(b) allows introduction of


evidence about prior acts by the witness that bear on their
un/truthfulness under certain conditions:

(a) That the conduct reflects un/truthfulness

(b) That the evidence is more probative than prejudicial

(c) That there is a good faith basis for asking about the
conduct (i.e., that you’re not just fishing for some unknown
prior problem)

(d) That the evidence is introduced through cross-


examination, and not through the testimony of other
witnesses

(4) Prior Conviction (609) – Evidence that a witness other than the
accused has been convicted of a crime is admissible to show a
character for untruthfulness, but only under certain conditions:

(a) The crime must have been punishable by death or


imprisonment of more than one year, or the crime must
have involved dishonesty or false statements

(b) The conviction or the end of the term of imprisonment


must have taken place within the past 10 years, unless the
court decides that in the interest of justice an older
conviction should be admitted

(c) If the witness has been pardoned for reason of


innocence, the prior conviction is not admissible

(d) If the witness has been pardoned for reason of


rehabilitation, and has not subsequently been convicted of
a crime punishable by death or prison for more than one
year, then the prior conviction is not admissible

(e) If the witness was convicted of a crime as a juvenile,


evidence of the prior conviction is not admissible, unless
the court decides that it is necessary in the interests of
justice.

d. Specific Contradiction – a witness may be impeached by the


contradictory statements of other witnesses.
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(1) Example: Mary says that she saw John steal a car. Frank says
that he saw someone else steal the car. Mary may be impeached
by the pointing out of the fact that other witnesses testified
differently than she did.

e. Prior Inconsistent Statements – MRE 613 allows the witness to be


questioned about prior inconsistent statements. Note that the rule does not
require that the statements be sworn, written, or given in any particular
context..

G. MRE 610: Religious Beliefs or Opinions

1. You may not refer to a witness’ religious beliefs to suggest that they are either
more or less likely to tell the truth.

H. MRE 611: Mode and Order of Interrogation and Presentation

1. Direct

a. Direct examination may not be conducted by leading questions, unless


the witness has been declared hostile (i.e., is an adverse party or is
uncooperative). (611(c))

(1) A leading question suggests its own answer. People sometimes


say that you can tell that a question is leading because it can only
be answered yes or no, but that’s too simple. Plenty of non-leading
questions can be answered yes/no (Do you know the defendant,
Dr. Matthew Moore?).

2. Cross, etc.

a. You may use leading questions on cross-examination. (611(c))

b. Scope – Because you can’t recall a witness later, you can ask any
questions you want on the first cross. After that, redirects and recrosses
are limited in scope to the content of the previous round of questions.
(611(b))

I. MRE 612: Writing Used to Refresh Memory

1. Witnesses may refer to any AMTA materials to refresh their memories while
testifying.

2. But doing this makes the witness look unprepared, and is almost always very
damaging to your score.
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J. MRE 614: Calling and Interrogation of Witnesses by Court

1. The judge is not supposed to ask the witnesses any substantive questions.

2. In practice, judges do sometimes do this. Unless you think it is really changing


the dynamics of the case, don’t object, since that will just annoy the judge.

K. MRE 615: Exclusion of Witnesses

1. Either party may request that all witnesses be constructive excluded from the
courtroom, so that they cannot hear the testimony of other witnesses (and thus
perhaps be influenced by it). In real life, the witnesses would have to go sit in the
hall. In Mock Trial, they have to pretend not to have heard what the other
witnesses said.

2. Parties who are natural persons may not be excluded. If a party is an artificial
person (i.e., a corporation), they may be represented by non-excludable party
representative.

VIII. MRE Article VII (Opinion Testimony)

A. MRE 701: Opinion Testimony by Lay Witnesses

1. In general, lay witnesses must testify from their personal, firsthand knowledge
as of the time of the trial. (It’s OK if a witness learns something after the event in
question.)

2. In general, lay witnesses should testify to their sensory impressions, rather than
to their conclusions (opinions) based on those impressions.

3. Lay witnesses may offer opinions if (and only if) they (1) are rationally based
on the witness’ own perception, (2) are helpful to understanding the witness’
testimony or to determining a fact at issue, and (3) are not based on scientific or
other technical knowledge that the witness does not have.

B. MRE 702: Testimony by Experts

1. There are different rules for testimony by expert witnesses. Whether a witness
is testifying as an expert depends on two issues—(1) Does their likely testimony
require (or admit of) some kind of expertise? (2) Are they in fact an expert in the
relevant area?

a. Is the expert’s likely testimony on a subject that requires (or admits of)
an expert?
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(1) On the one hand, it could be that the testimony concerns things
that are common knowledge, and for which no expert is needed.
You don’t need a chemist to testify that oil and water don’t mix,
for example.

(2) On the other hand, it could be that the testimony concerns


things about which our knowledge is so uncertain that no one
could meaningfully be called an expert in them. For example, a
professional fortune-teller cannot be an expert witness. No matter
how much training s/he has had, there is no scientific consensus
that fortunes can be reliably foretold, and thus no one can be an
expert in that field.

(a) You should be prepared to make or respond to


challenges about both the general scientific validity of the
field of experts, and about the specific knowledge or tests
that they testify about. Especially if you do more research
than the other side, this can be a good way to get points and
fluster the witness.

b. Is the proffered witness actually an expert in the relevant area?

(1) As a matter of laying foundation and establishing credibility


with the jury, you will need to establish through testimony that
your witness really is an expert in the relevant area.

(2) However, under AMTA rules, you should not request that the
court formally recognize the witness as an expert. That would be a
motion, and AMTA Rules 8.7 says:

Rule 8.7. Motions. No motions, except a motion to strike


pursuant to Midlands Rule of Evidence 102 and a motion
to exclude witnesses pursuant to Midlands Rule of
Evidence 615, are permitted. The motion to strike is not
permitted for the purpose of raising alleged violations of
Rule 3.4 of the Rules of Professional Conduct and
Decorum.

2. Experts may offer opinion testimony ONLY if the testimony can fulfill the
three “prongs” of MRE 702:

a. Is the testimony based on sufficient facts or data? In other words, did


the expert have enough information to form an expert opinion?
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b. Is the testimony based on principles and methods that are known to be


reliable? For example, if the expert did a test, do we have some reason to
think that the test is reliable?

c. Did the expert reliably apply the principles and methods to the data in
this particular case? In other words, did the expert do the test right?

See Script 21 in Chapter XVI, which gives an example of how to


lay foundation for MRE 702.

3. You should lay foundation for each of the prongs when your own experts
testify, and you should object to expert testimony if the other side fails to lay
adequate 702 foundation.

4. Note that 702 is about particular pieces of testimony, not an expert’s overall
expertise or credibility. An expert might have done one test right and another one
wrong. You have to lay foundation for each opinion, not just for the expert
overall.

C. MRE 703: Bases of Opinion Testimony by Experts

1. Note that under 703, the expert can offer opinions based on facts that are not in
evidence and even on facts that would not be admissible, as long as the facts are
the kinds of information that experts in that field typically rely on.

D. MRE 704: Opinion on Ultimate Issue

1. Expert witnesses can offer opinions about the ultimate issue in the case (the
factual question that the finder of fact is trying to answer), with one exception:
they cannot offer an opinion about the mental state or condition of the accused
when that state or condition is an element of the crime. (704(b))

a. For example, a psychologist or neurologist cannot testify as to whether


the accused did not did not predmediate a murder, or whether they were
insane at the time of committing the alleged crime.

E. MRE 705: Disclosure of Facts or Data Underlying Expert


Opinion

1. Expert witnesses may give their opinion or conclusion first, without testifying
to the underlying facts or evidence that led to their opinion. However, they may
have to fill in those facts on cross.

IX. MRE Article VIII (Hearsay)

A. Nothing confuses students (and lawyers) more than hearsay. Here’s the basic story:
Cal Poly Mock Trial Textbook 58

1. The American legal system is based on the idea that the finder of fact must
make their decision based only on the facts presented at trial.

2. Part of what makes that system fair (we hope) is that each party has the chance
to introduce the facts it thinks are helpful to its side, and also to attack the
credibility of facts/witnesses introduced by the other side.

3. But there are some kinds of possibly relevant facts that would violate these
rules, by making it very difficult or impossible for one party to attack the
evidence introduced by the other party.

4. One example is statements made by someone who is not available as a witness


at trial. Imagine that Mary says to John: “I have conclusive proof that Frank has
embezzled millions of dollars from the company.” Imagine further that John (but
not Mary) is then called to testify against Frank at a corruption trial. Imagine that
John says “Mary told me that she had conclusive evidence that Frank was
embezzling money from the company.” That statement would be very damaging
to Frank’s defense, but it would also be unfair, because Frank would have no
effective way of disproving it. The jury doesn’t know whether Mary really said
that, whether she was telling the truth if she did say it, or whether Mary’s
evidence would be convincing to anyone other than Mary. The effect of allowing
John to make that statement would be to harm Frank’s interests without giving
him a fair chance to disprove the allegation.

5. Since most people agree that it would be unfair to introduce harmful evidence
that the party harmed could not rebut or challenge the credibility of, we have
adopted the rule of excluding such evidence from trials. The clearest example of
this is the rule banning hearsay evidence.

B. MRE 801(a-c): Definitions

1. 801(c) says it clearly: “‘Hearsay’ is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.”

2. In other words, hearsay is an out-of-court statement introduced to prove the


truth of the matter asserted. Memorize this definition.

a. Pay attention to both parts of the definition. Hearsay is (1) an out of


court statement, (2) that is introduced to prove the truth of the matter
asserted (that Frank embezzled money). If it’s introduced to prove
something else (that Mary is capable of speech, that John knows Mary,
and so on), then it may not be hearsay.

C. MRE 801(d): Statements Which Are Not Hearsay


Cal Poly Mock Trial Textbook 59

1. By definition, two kinds of statements are never hearsay:

a. 801(d)(1): Prior Statement by Witness – If the witness has previously


made a sworn statement on the same issue, that statement can be
introduced to show that it is either consistent or inconsistent with the
witness’s current testimony. If the witness had previously made a
statement identifying a person upon perceiving them, under any
circumstances, testimony about that statement may be admitted.

b. 801(d)(2): Admission by Party-Opponent – Oddly enough, statements


by the parties to a suit are not hearsay when introduced against the party
and:

(1) are the party’s own statement;

(2) are a statement that the party has shown itself to believe to be
true;

(3) a statement by a person authorized by the party to make


statements on the relevant issue;

(4) a statement made by the party’s agent or servant concerning a


matter within the scope of their employment and made while the
employment relationship existed;

(5) a statement made by a coconspirator during the course of and in


furtherance of the conspiracy.

c. Note that you have to prove the factual circumstances relevant to (3-5).

2. There are many other kinds of utterances that are not hearsay because they
aren’t legally statements (that is, there is no truth being asserted). Many of these
come up in competition:

a. Commands and Orders – not hearsay because there’s no TOMA

b. Questions and Requests – no TOMA

c. Exclamations (Oh no!) – no TOMA

d. Signs that are Commands or Orders (No Parking; Speed Limit 35; etc.)

e. Utterances that Create an Operative Legal Fact – basically, if the


utterance itself either creates a legal duty (do not drive faster than 35
MPH) or creates a legal status (you are now husband and wife)
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D. MRE 802: Hearsay Rule

1. Hearsay is not admissible.

2. That’s not the same thing as saying that out of court statements are not
admissible. As any competent attorney will tell you, virtually any statement can
be gotten into court, if you go about it the right way.

E. MRE 803: Hearsay Exceptions; Availability of Declarant Immaterial

1. The basic point here is that there are sometimes circumstances that make it so
likely that an out-of-court statement was truthful that we can admit it. Here’s the
list, with brief comments:

(1) Present sense impression – The declarant makes a statement about


their own present sense impression (“It smells like gas in here”).

(2) Excited utterance – The declarant blurts something out under stress
(“Frank just tried to kill me!”).

(3) Then existing mental, emotional, or physical condition – The key point
is that this is about the declarant’s own condition, and it does not include
knowledge or memories.

(4) Statements for purposes of medical diagnosis or treatment – Note that


these do not need to be made to or by a medical professional, and no
medical treatment needs to actually have been provided.

(5) Recorded recollection – If the witness wrote down something that they
now cannot remember in sufficient detail, the written version can be
introduced.

(6) Records of Regularly Conducted Activity – This is one of the most


frequently used exceptions. Basically, it allows most business records to
be introduced. To get something admitted under this exception, you have
to establish five prongs: (1) that the record was made at or near the time of
the event recorded, (2) by a person with knowledge of the event; (3) that
the record was kept in the course of a regularly conducted business
activity; (4) that it was the practice of the business to make and keep such
records; (5) that the custodian of the record or other qualified witness can
testify to (1-4).

See scripts 11 and 13 in Chapter XVI. They give an illustration of


how to lay foundation for this exception.
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(7) Absence of entry in records kept in accordance with the provisions of


paragraph (6) – Basically the converse of 803(6): a business does keep
records, and there is no record of the alleged event.

(8) Public records and reports – pretty much what it sounds like

(9) Records of vital statistics – only official records

(10) Absence of public record or entry – converse of 803(9)

The rest are self-explanatory, so I’ve just included the MRE text:

(11) Records of religious organizations. “Statements of births, marriages,


divorces, deaths, legitimacy, ancestry, relationship by blood or marriage,
or other similar facts of personal or family history, contained in a regularly
kept record of a religious organization.”

(12) Marriage, baptismal, and similar certificates. “Statements of fact


contained in a certificate that the maker performed a marriage or other
ceremony or administered a sacrament, made by a clergyman, public
official, or other person authorized by the rules or practices of a religious
organization or by law to perform the act certified, and purporting to have
been issued at the time of the act or within a reasonable time thereafter.”

(13) Family records. “Statements of fact concerning personal or family


history contained in family Bibles, genealogies, charts, engravings on
rings, inscriptions on family portraits, engravings on urns, crypts, or
tombstones, or the like.”

(14) Records of documents affecting an interest in property. “The record


of a document purporting to establish or affect an interest in property, as
proof of the content of the original recorded document and its execution
and delivery by each person by whom it purports to have been executed, if
the record is a record of a public office and an applicable statute
authorizes the recording of documents of that kind in that office.”

(15) Statements in documents affecting an interest in property. “A


statement contained in a document purporting to establish or affect an
interest in property if the matter stated was relevant to the purpose of the
document, unless dealings with the property since the document was made
have been inconsistent with the truth of the statement or the purport of the
document.”

(16) Statements in ancient documents. “Statements in a document in


existence twenty years or more the authenticity of which is established.”
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(17) Market reports, commercial publications. “Market quotations,


tabulations, lists, directories, or other published compilations, generally
used and relied upon by the public or by persons in particular
occupations.”

(18) Learned treatises. “To the extent called to the attention of an expert
witness upon cross-examination or relied upon by the expert witness in
direct examination, statements contained in published treatises,
periodicals, or pamphlets on a subject of history, medicine, or other
science or art, established as a reliable authority by the testimony or
admission of the witness or by other expert testimony or by judicial
notice. If admitted, the statements may be read into evidence but may not
be received as exhibits. Comment: This rule concerns published treatises,
periodicals, or pamphlets on a subject of history, medicine, or other
science or art, that have been provided in the case packet. Mere reference
to a title in the packet is insufficient, the entirety of the item must be
provided in the case packet for this rule to be applicable.”

(19) Reputation concerning personal or family history. “Reputation among


members of a person's family by blood, adoption, or marriage, or among a
person's associates, or in the community, concerning a person's birth,
adoption, marriage, divorce, death, legitimacy, relationship by blood,
adoption, or marriage, ancestry, or other similar fact of personal or family
history.”

(20) Reputation concerning boundaries or general history. “Reputation in a


community, arising before the controversy, as to boundaries of or customs
affecting lands in the community, and reputation as to events of general
history important to the community or State or nation in which located.”

(21) Reputation as to character. “Reputation of a person's character among


associates or in the community.”

(22) Judgment of previous conviction. “Evidence of a final judgment,


entered after a trial or upon a plea of guilty (but not upon a plea of nolo
contendere), adjudging a person guilty of a crime punishable by death or
imprisonment in excess of one year, to prove any fact essential to sustain
the judgment, but not including, when offered by the Government in a
criminal prosecution for purposes other than impeachment, judgments
against persons other than the accused. The pendency of an appeal may be
shown but does not affect .”

(23) Judgment as to personal, family, or general history, or boundaries.


“Judgments as proof of matters of personal, family or general history, or
Cal Poly Mock Trial Textbook 63

boundaries, essential to the judgment, if the same would be provable by


evidence of reputation.”

F. MRE 804: Hearsay Exceptions; Declarant Unavailable

1. There are some additional exceptions for situations where the declarant could
not be brought to court to testify.

2. MRE 804(a) defines unavailable:

a. declarant cannot testify because s/he has been found to have a


privilege against testifying on this matter (for example, if s/he is the
spouse of the defendant)

b. refuses to testify despite a court order to do so

c. testifies to a lack of memory regarding the previous statement

d. is dead or seriously ill

e. If the party seeking to introduce the statement has in some wrongful


way made the declarant unable to appear in court (for example, by killing
them or bribing them), then the declarant is not legally unavailable, and
these exceptions do not apply.

3. MRE 804(b) – exceptions for unavailable declarants

a. 804(b)(1): Former Testimony – the declarant formerly gave testimony


and the two parties had a chance to cross examine

b. 804(b)(2): Statement under belief of impending death – the declarant


believed that they were going to die very soon after they made their
statement (i.e., dying words)

c. 804(b)(3): Statement Against Interest – a statement that was so against


the declarant’s interest (for example, one that might expose them to
prosecution) that no one in their right mind would say it unless it were true

d. 804(b)(4): Statement of Personal or Family History – “(A) A statement


concerning the declarant's own birth, adoption, marriage, divorce,
legitimacy, relationship by blood, adoption, or marriage, ancestry, or other
similar fact of personal or family history, even though declarant had no
means of acquiring personal knowledge of the matter stated; or (B) a
statement concerning the foregoing matters, and death also, of another
person, if the declarant was related to the other by blood, adoption, or
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marriage or was so intimately associated with the other's family as to be


likely to have accurate information concerning the matter declared.”

e. 804(b)(6): Forfeiture by wrongdoing. “A statement offered against a


party that has engaged or acquiesced in wrongdoing that was intended to,
and did, procure the unavailability of the declarant as a witness.”

G. MRE 805: Hearsay Within Hearsay

1. Sometimes there’s a statement within a statement. For example, John might


testify as follows: “I heard Mary say ‘Call the police! Frank just told me that he
shot Mark!’.”

2. The rule is that such a compound statement is only admissible if both of the
component statements are individually admissible. For example, Mary’s
statement to John might be an excited utterance, and John’s retelling of Mary’s
statement might be for the purposes of explaining his own next action (why he
called the police), rather than to prove the truth of the matter asserted (that Frank
shot Mark).

H. MRE 806: Attacking and Supporting Credibility of Declarant

1. Either party can attack the credibility of the original declarant of an out of
court statement that is admitted under the above rules, using any of the methods
usually available for impeaching a witness’s credibility.

X. MRE Article IX (Authentication)

A. Before we get to the rules, we need to review the various kinds of evidence:

1. Real Evidence

a. Real evidence is stuff (a murder weapon, a bullet casing, clothing, a


document, etc.) that is historically related to the case. (Models, facsimiles,
diagrams and so on are demonstrative evidence.)

b. Real evidence is admissible if it is relevant, and if it can be identified


as being genuine (I can prove that this is the actual gun retrieved at the
crime scene). There are three ways to establish the identity of real
evidence:

(1) Readily Identifiable – if the evidence is distinctive enough that


the person testifying to its identity can readily recognize it (yes,
that’s my hat—it has my initials written on the brim).
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(2) Chain of Custody – if the person testifying about the identify


of the evidence can show that it has been held securely from the
time of its initial retrieval until its appearance in court

(3) If the evidence can be authenticated using the rules in MRE


Article IX.

c. The condition of the real evidence may be relevant (the gun that was
brand new when retrieved may now be rusty and obviously broken). Thus,
it also has to be established that real evidence is in substantially the same
condition in court as it was when first retrieved.

2. Demonstrative Evidence

a. Demonstrative evidence is stuff that has no historical relationship to


the case, and is merely used to illustrate a point. Thus, charts, diagrams,
photographs (generally), models and so on are demonstrative evidence.

b. Demonstrative evidence is admissible if it is a substantially accurate


representation of what the witness is trying to describe. Of course, the
witness has to be able to testify to that accuracy from firsthand knowledge
(a blind witness can’t testify to the accuracy of a diagram, for example).

B. MRE Article IX concerns various methods for proving that various kinds of evidence
are authentic—that is, that they are what you say they are.

C. MRE 901: Requirement of Authentication or Identification

1. The basic point here is that if you introduce a piece of evidence, you need to
give some proof that it is authentic. For example, if you introduce what you
claim is a lease agreement between the plaintiff and defendant, you need to give
some evidence that it really is that.

2. Note that AMTA Rule 8.2 forbids mock trial participants from denying the
authenticity of AMTA-supplied documents. That does NOT prevent a witness
from saying “I don’t know whether that’s authentic or not—I’ve never seen it
before” IF AND ONLY IF that statement is consistent with their affidavit.

3. MRE 901 lists a number of examples of methods by which you can


authenticate evidence. Most of them are self-explanatory—this is the exact text of
the MRE:

“(1) Testimony of witness with knowledge. Testimony that a matter is


what it is claimed to be.
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(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the


genuineness of handwriting, based upon familiarity not acquired for
purposes of the litigation.

(3) Comparison by trier or expert witness. Comparison by the trier of fact


or by expert witnesses with specimens which have been authenticated.

(4) Distinctive characteristics and the like. Appearance, contents,


substance, internal patterns, or other distinctive characteristics, taken in
conjunction with circumstances.

(5) Voice identification. Identification of a voice, whether heard firsthand


or through mechanical or electronic transmission or recording, by opinion
based upon hearing the voice at any time under circumstances connecting
it with the alleged speaker.

(6) Telephone conversations. Telephone conversations, by evidence that a


call was made to the number assigned at the time by the telephone
company to a particular person or business, if (A) in the case of a person,
circumstances, including self-identification, show the person answering to
be the one called, or (B) in the case of a business, the call was made to a
place of business and the conversation related to business reasonably
transacted over the telephone.

(7) Public records or reports. Evidence that a writing authorized by law to


be recorded or filed and in fact recorded or filed in a public office, or a
purported public record, report, statement, or data compilation, in any
form, is from the public office where items of this nature are kept.

(8) Ancient documents or data compilation. Evidence that a document or


data compilation, in any form, (A) is in such condition as to create no
suspicion concerning its authenticity, (B) was in a place where it, if
authentic, would likely be, and (C) has been in existence 20 years or more
at the time it is offered.

(9) Process or system. Evidence describing a process or system used to


produce a result and showing that the process or system produces an
accurate result.

(10) Methods provided by statute or rule. Any method of authentication


or identification provided by a Midlands statute by other rules prescribed
by the Supreme Court of Midlands pursuant to statutory authority.”

D. MRE 902: Self-Authentication


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1. Some kinds of evidence are so likely to be authentic that no further testimony


or comparison is needed. This is the exact text of the MRE, with a few comments.
Section 902(11) is the most important.

(1) Domestic public documents under seal. A document bearing a seal


purporting to be that of the United States, or of any State, district,
Commonwealth, territory, or insular possession thereof, or the Panama
Canal Zone, or the Trust Territory of the Pacific Islands, or of a political
subdivision, department, officer, or agency thereof, and a signature
purporting to be an attestation or execution.

(2) Domestic public documents not under seal. A document purporting to


bear the signature in the official capacity of an officer or employee of any
entity included in paragraph (1) hereof, having no seal, if a public officer
having a seal and having official duties in the district or political
subdivision of the officer or employee certifies under seal that the signer
has the official capacity and that the signature is genuine.

(3) Foreign public documents. A document purporting to be executed or


attested in an official capacity by a person authorized by the laws of a
foreign country to make the execution or attestation, and accompanied by
a final certification as to the genuineness of the signature and official
position (A) of the executing or attesting person, or (B) of any foreign
official whose certificate of genuineness of signature and official position
relates to the execution or attestation or is in a chain of certificates of
genuineness of signature and official position relating to the execution or
attestation. A final certification may be made by a secretary of an embassy
or legation, consul general, consul, vice consul, or consular agent of the
United States, or a diplomatic or consular official of the foreign country
assigned or accredited to the United States. If reasonable opportunity has
been given to all parties to investigate the authenticity and accuracy of
official documents, the court may, for good cause shown, order that they
be treated as presumptively authentic without final certification or permit
them to be evidenced by an attested summary with or without final
certification.

(4) Certified copies of public records. A copy of an official record or


report or entry therein, or of a document authorized by law to be recorded
or filed and actually recorded or filed in a public office, including data
compilations in any form, certified as correct by the custodian or other
person authorized to make the certification, by certificate complying with
paragraph (1), (2), or (3) of this rule or complying with any rule prescribed
by the Midlands Supreme Court pursuant to statutory authority.

(5) Official publications. Books, pamphlets, or other publications


purporting to be issued by public authority.
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(6) Newspapers and periodicals. Printed materials purporting to be


newspapers or periodicals.

(7) Trade inscriptions and the like. Inscriptions, signs, tags, or labels
purporting to have been affixed in the course of business and indicating
ownership, control, or origin.

(8) Acknowledged documents. Documents accompanied by a certificate of


acknowledgment executed in the manner provided by law by a notary
public or other officer authorized by law to take acknowledgments.

(9) Commercial paper and related documents. Commercial paper,


signatures thereon, and documents relating thereto to the extent provided
by general commercial law.

(11) Certified Domestic Records of Regularly Conducted Activity.--The


original or a duplicate of a domestic record of regularly conducted activity
that would be admissible under Rule 803(6) if accompanied by a written
declaration of its custodian or other qualified person, in a manner
complying with any rule prescribed by the Midlands Supreme Court
pursuant to statutory authority, certifying that the record--(A) was made at
or near the time of the occurrence of the matters set forth by, or from
information transmitted by, a person with knowledge of those matters; (B)
was kept in the course of the regularly conducted activity; and (C) was
made by the regularly conducted activity as a regular practice.

A party intending to offer a record into evidence under this paragraph


must provide written notice of that intention to all adverse parties, and
must make the record and declaration available for inspection sufficiently
in advance of their offer into evidence to provide an adverse party with a
fair opportunity to challenge them.

Comment: The sufficiency requirement of this rule is satisfied if the


aforementioned notice, record, and declaration are affirmatively made
available at the Captains’ Meeting.

NOTE: Basically, this section and MRE 803(6) are parallel to


each other. If you prove one, you automatically prove the other.
But you need to let the judge know that you know that, by
explaining that you will introduce foundation to establish both
authenticity and an exception to hearsay (and cite the two rules).

See scripts 11 and 13 in Chapter XVI. They show how to lay


foundation for both 803(6) and 902(11).
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(12) Certified Foreign Records of Regularly Conducted Activity.--In a


civil case, the original or a duplicate of a foreign record of regularly
conducted activity that would be admissible under Rule 803(6) if
accompanied by a written declaration by its custodian or other qualified
person certifying that the record-- (A) was made at or near the time of the
occurrence of the matters set forth by, from information transmitted by, a
person with knowledge of those matters; or

(B) was kept in the course of the regularly conducted activity; and

(C) was made by the regularly conducted activity as a regular practice.


The declaration must be signed in a manner that, if falsely made, would
subject the maker to criminal penalty under the laws of the country where
the declaration is signed. A party intending to offer a record into evidence
under this paragraph must provide written notice of that intention to all
adverse parties, and must make the record and declaration available for
inspection sufficiently in advance of their offer into evidence to provide
an adverse party with a fair opportunity to challenge them.

Comments: 1) If no foreign law is provided in the case materials, the


presumption will be that no legal infraction occurred with respect to the
“The declaration must be signed in a manner that, if falsely made, would
subject the maker to criminal penalty under the laws of the country where
the declaration is signed” requirement of subdivision 12. 2) The
sufficiency requirement of this rule is satisfied if the aforementioned
notice, record, and declaration are affirmatively made available at the
Captains’ Meeting.

E. MRE 903: Subscribing Witness' Testimony Unnecessary

1. Many official documents (like wills and contracts) are signed by witnesses.
This rule clarifies that you don’t have to bring the witnesses to court to testify as
to the authenticity of the documents.

XI. MRE Article X (Best Evidence Rule)

A. Best Evidence Rule (1001-1008)

1. When introducing writings, recordings, or photographs, with the purpose of


proving their contents (and not just, for example, their existence) you must
present the original or an exact duplicate (see below), unless an exception applies.

a. AMTA Rule 8.2 may modify this rule, since no witness may deny the
authenticity of an AMTA-supplied document. Presumably that means
that they cannot deny that a document is an original, since we don’t
otherwise have access to originals. But pay attention to the case file! If a
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document supplied by AMTA is itself marked as a copy, you may have a


best-evidence problem (or your opponent might…).

2. Here’s the MRE definitions of original and duplicate:

1001 (3) Original. An “original” of a writing or recording is the writing or


recording itself or any counterpart intended to have the same effect by a
person executing or issuing it. An “original” of a photograph includes the
negative or any print therefrom. If data are stored in a computer or similar
device, any printout or other output readable by sight, shown to reflect the
data accurately, is an “original”.

1001 (4) Duplicate. A “duplicate” is a counterpart produced by the same


impression as the original, or from the same matrix, or by means of
photography, including enlargements and miniatures, or by mechanical or
electronic re-recording, or by chemical reproduction, or by other
equivalent techniques that accurately reproduces the original.

4. The exceptions are self-explanatory. See MRE 1004-1007.

XII. MRE Article XI

A. This is just bureaucratic stuff you don’t need to worry about.


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V. COURTROOM COMMUNICATION

A. General Points – Everything you say and do should convey:

1. Confidence – Confidence is not only something judges can hear, but something that
they can also see. When addressing the judges, project your voice loudly and clearly.
Always remember to slow down while speaking. Speaking quickly conveys nervousness.
Judges can also see confidence in your body language. Stand up straight with shoulders
back. Do not rock back and forth or shift from one foot to the other. Furthermore, do not
play with your clothes or hands – the judges will notice.

2. Integrity – Be respectful not only to the presiding judge, but to your opposing counsel
and all witnesses as well. Do not willfully misinterpret a law or statute in order to favor
your argument or disprove the opposing counsel’s. Do not lie on the stand. Deceit rarely
works well, and will cost you and the team points. (Many of the judges are coaches and
know the case inside and out.)

B. Verbal and Nonverbal Communication

1. Nonverbal Techniques

a. Always Stay in Character – Even when introducing yourself (using your real
name) to the judges, it is important to remain in character. This includes
accents—if you plan to use one during trial, use it during introductions, too. If
you’re a witness, stay in character THE WHOLE TIME, even when you are not
on the stand. You can gain some points that way, and you can also easily lose
some by not doing it.

b. On direct, the witness is the star; on cross, the attorney is the star

(1) Direct Examinations: Stand at the far end of the “jury box.” Often
there will not be a jury box, so stand a step or two back from the last
scoring judge. As an attorney, you want your witness to make eye contact
with the “jury” at all times, so do not stand in front of the jury and block
the witness’s view of them.

(2) Cross Examinations: Stand in the middle of the courtroom or in an


area where the witness must look away from the “jury” and at you. Cross
examination is your time to shine as an attorney, so force the witness to
do what you want, which includes looking away from the jury.3

c. Make eye contact

(1) At all times during direct and cross examination witnesses need to
make eye contact and speak directly to the jury and presiding judge.
When you are on the witness stand, you are trying to be the center of
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attention. Plus, looking at the jury adds an authentic component and may
allow them to connect with you, scoring you and the team more points.

d. Use body movement to clarify and enhance certain points

(1) For example, use hand gestures to count out a numbered list, or use
animated gestures to replicate something that happened at the crime scene
or incident scene.

(2) If you are moving about the courtroom, don’t block opposing counsel’s
view of the witness (unless you can get away with it!). If another attorney
blocks your view, either ask for permission to move to another seat, or ask
that the attorney move. Feel free to wait to do this until your request
interrupts the flow of their examination (but do NOT do it during opening
or closing).

e. Do not use notes (ever). They make you look unprepared, and they are a mental
crutch that get in the way of really inhabiting your character. Don’t even use them
during practice rounds. Memorize issues and points, rather than specific questions
and answers.

f. You have to develop a poker-face: don’t let the other side see that you are
confused, or nervous, or angry. If they can get you to lose your cool, they will win
the trial.

2. Verbal Techniques

a. Show respect to the judge: There are many small things to say that show
respect:

(1) “May it please the court?” This is a question you ask the presiding
judge before starting an opening statement or a closing argument. Ask it
as a real question, then wait for a response before you proceed.

(2) “May I inquire?” You can ask this when you want permission to
question a witness. Ask it as a real question and wait for the answer.

(3) Ask for your witness to be excused from the stand when all direct and
cross examinations are done. “Your honor, may this witness be
excused?” Do not allow the other team to excuse your witness—if they
ask for the witness to be excused after cross, stand up and say “Your
honor, as we have no more questions for this witness, may the witness be
excused?” Do not excuse the other team’s witnesses.
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(4) Ask permission to move about the well of the court—the area between
the attorneys’ tables and the bench. “Your honor, permission to move
about the well during opening, closing, and examinations?”

(5) Ask before approaching a witness. “Your honor, may I approach the
witness?”

(6) If the witness needs to leave the witness box to use a demonstrative,
ask: “Your honor, may the witness step down to approach the
demonstrative?”

(7) If someone does something non-verbal in the courtroom that’s


relevant—for example, if a witness uses a marker to indicate something
on a demonstrative—you need to verbalize it. Say: “Your honor, may the
record reflect that the witness has [indicated that she was standing at the
point marked Office on the map of the building]?”

(8) Do not argue with the judge. The judge is always right.

b. Use commanding speech (no pauses, ums, qualifiers, intensifiers, or boring


adjectives).

(1) You must utterly ban the phrases “I think,” “I feel,” and “I believe”
from your vocabulary for the duration of the mock trial season. What you
think, feel, and believe is always irrelevant. The only thing that matters is
what the evidence shows and what the law permits/requires.

(a) This is especially true when it comes to arguing the relevancy


of a piece of evidence. Saying “I think it’s highly relevant” is the
same as saying “I don’t know the rules of evidence well enough to
prove that it’s relevant.”

c. Pay attention to who your audience is and what they will understand.

(1) This is especially important for opening and closing statements. Find
ways to put the legal jargon in layman’s terms so that the average juror
can understand it. However, avoid talking down to them. Judges do notice
this and will add or subtract points accordingly.

d. Primacy and recency (consistent with logical ordering)

(1) Primacy – people remember what they hear first; put your strongest
arguments first

(2) Recency – people remember what they hear last; put your second-
strongest argument last
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(3) Interment – put embarrassing or unfavorable information in the


middle, where people are most likely to forget it

(4) Primacy and Recency on re-direct – If on cross examination a


damaging point comes out that you need to remedy, make sure this is the
first thing you attempt to remedy on re-direct. This is because the
discrepancy is still fresh in the jury’s minds, so you need to address it
immediately. This is sometimes referred to as “un-ringing the bell.” In
other words, the crossing attorney “rang” the bell and now its your job to
“un-ring” it before it sticks in the jury’s minds.

e. Use repetition and duration to highlight crucial topics

(1) Duration – spend more time on important topics, less time on


unimportant topics

(2) Repetition—come back to important points more than once

f. Use reflective questioning to illustrate time, distance, and intensity4

(1) The speed and intensity of your questions (and the witness’ answers)
can simulate the time, distance, and intensity of the events you are talking
about; use short, fast questions to indicate speed or proximity, and longer,
slower questions to indicate languor

g. Use nouns and verbs instead of adjectives

(1) Describe things, don’t summarily evaluate them. Make it seem like the
event actually happened and you are describing things as if you personally
saw/experienced things.

(2) This is related to the point, probably drilled into your heads by English
teachers, that it is always better to show than to tell. Don’t tell us that a
witness is unreliable, prove it by getting them to admit facts that
undermine their credibility. Your opinion is always irrelevant. The only
opinion that matters is the jury’s opinion, and the only way you will get
them to adopt the opinion you want is to give them evidence that leaves
them no other choice.

h. Juxtapose related facts to highlight differences

(1) Put contrasting facts together (I was in a hurry, she was taking her
time) to emphasize contrast and logical relatedness.
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i. Use headlines – short, sharp statements that call the finder of fact’s attention to
an especially important point, conclusion, transition, or argument.

j. Used numbered lists – This is especially important if a witness took certain


steps to come to a conclusion. Draw the steps out using enumeration and
headlines.

ATTY: Dr. Moore, are there certain steps you take every morning to
ensure the alpaca enclosure is securely locked?

DR. MOORE: Yes, I have a three-part system. First (hand gesture of


holding up 1 finger) I check the fence line to make sure there are no
breaks or weak areas. Second (hand gesture of holding up two fingers) I
make sure the entrance gate is fully secured before locking it. And third
(hand gesture holding up three fingers) I put the lock on and double check
to make sure it locked properly.

ATTY: Do you always Check, Secure, and Lock before leaving the
enclosure?

k. Do not constantly say “Thank you”

(1) If the presiding judge rules against you, reply with a simple, “Yes
your honor,” and sit down. If the judge rules in your favor, reply with a
simple “Thank you your honor,” and move on.

l. Do not respond to the witnesses’ answers

(1) Don’t evaluate them, or say “Okay”; just move on to your next
question.

m. Use extended metaphors to structure complex testimony. For example,


imagine that you want an expert to explain how they arrived at their opinion. You
might work with them ahead of time to structure the testimony using the metaphor
of a house: “The first thing I need to determine is whether the evidence was
gathered correctly—that’s like the foundation of a house. Once I know that, I
move to analyzing the first type of evidence—that’s like the first floor of a house.
Finally, I analyze [type of evidence X], which shows how everything else fits
together—that’s like the roof that finishes a house and holds it together.”

n. Don’t use language that helps them and hurts you.

(1) If you are a defense attorney in a criminal case, don’t say that your
client has an “alibi”; say that he or she was nowhere near the crime scene
and can prove it.
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(2) Never refer to what the other side has introduced as “evidence.” It is
always “conjectures” or “suggestions” or “half-truths.”

(3) Never admit that the other side has made a good point or might be
right.

C. Use pictures, diagrams, and visual aids

1. You may want to use some merely for illustration—a blow-up of a document, even if
you plan to have the witness read from a copy.

a. One effective method of doing this is have the witness either mark on the
blown-up copy or point to it, in order to draw the jury’s attention to the main
points of the document. Keep in mind that this method does take up more time
than simply reading or reciting a document.

2. You may want to create novel visual aides (timelines, for example) to bolster your
theory of the case.

3. Have a witness reenact or recreate important events, sounds, sights, etc. This can be
very subtle—for example, having them knock on the witness stand to illustrate knocking
on a door, or clapping their hands together to illustrate a sudden loud noise.

D. Witnesses

1. Be memorable! Create a character for your witness, but don’t let your performance
overshadow the evidence. Using an accent/character does not necessarily make a good
witness, but a good witness will receive a better score when using an accent/character.
Keep in the mind that the character should enhance your case, not detract from it. And
finally, do not get carried away. While it is fun to get into a character, acting like a clown
will cost you and your team points.

E. A General Point About Narrative

1. Every legal case is at root a factual question: Did person X commit actions A, B and C
in violation of statute 123? Your case is always an answer to this question.

2. Human beings are lousy at remembering facts but great at remembering stories and
characters. Your case must be a clear story about memorable characters.

3. Although your case should ultimately be an answer to the one question spelled out
above, the trial is made up of a lot of subplots, which are the stories of the individual
witnesses who appear and offer testimony (and sometimes of characters who are
important to the trial but don’t actually testify). For the jury to make sense of this all, you
basically need to reduce each character to a one-sentence description—a successful
businessman, a desperate debtor, a convicted forger, and so on.
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4. In every case, both sides need to have a positive story to tell. This is usually obvious,
but sometimes a criminal defense will make the mistake of thinking that all they need to
do is deny the prosecution’s case. This is false. You have to tell some kind of positive
story. If the police rushed to judgment, WHY did they rush to judgment? If a key witness
is lying, WHY are they lying? You need to show us how your version of the facts fits into
a big picture that makes sense.
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VI. OPENING STATEMENTS

A. The Goal – The opening statement is your first chance to introduce the case to the judge and
the jury. It is important that your opening statement be carefully crafted.

1. The Jury’s Perspective – Even though there is no “official” jury in mock trial, the jury
will consist of two scoring judges who often do not know anything about the case. You
are to treat them as a real jury – individuals who know nothing about the case and will
now have to rule on questions of fact about it. A helpful way to look at your opening
statement is to think of it from the perspective of the jury. Keep in mind these three
points while crafting your opening statement:5

a. The jurors are curious about what the case is about.

b. The jurors want to know which attorneys they can trust and rely on to tell the
complete story.

c. The jurors, at this time, are the most open-minded and receptive to what they
will hear – more so than at any other time during the trial. Remember, they know
nothing about the case.

2. Introduce Your Case Theory – In other words, you want to introduce to the jury what
your side thinks “really happened.” Be sure to include all stipulated facts, but also give a
logical explanation of your version of the facts in dispute. You need to be able to
summarize your case theory in one sentence:

ATTY: Dr. Moore’s failure to lock his alpaca gate led to a young boy being
blinded.

3. Explain the anticipated evidence – Since it is your job to give the jury a “preview” of
what they will see, it is important that you explain the anticipated evidence. However,
you are only allowed to reveal “what the evidence will show.” Do not introduce evidence
yourself by either testifying for a witness or explaining what a certain exhibit will show.

a. For example, you could say, “Jim Wilson, a forensic scientist, will tell you that
the gate to the alpaca pen was not properly maintained” or “You will learn that
the alpaca pen gate was not properly maintained.” But you cannot say “The
defendant did not maintain his alpaca pen properly.”

4. Advocate for your client – Simply put, you are hired as an attorney to advocate in court
for why your client’s view of the case is correct. An opening statement is a prime
opportunity to do this. In order to do this effectively, keep in mind these five simple
points6:

a. Choice of Facts – As stated above, you will need to include all stipulated facts
in your opening statement and also to include some disputed facts. When
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choosing the disputed facts, make sure the ones you are choosing fit in with your
overall theme of the case.

b. Sequencing – Be sure the order of your facts is logical and follows a timeline.

c. Clarity of description – While simply stating the fact is important, it is equally


important to make the disputed fact clear. Show the jury why the fact is in dispute
and why the evidence will suggest your interpretation of the fact is correct.

d. Common Sense – Common sense appeals help your opening statement resonate
with the jury.

e. Moral Attraction – Do not use moral appeal as a main line of argument;


however it can be an effective concluding note. More generally, you will probably
want to link your case to larger themes (freedom of speech, safety) that will
resonate with the jury.

5. Introduce and repeat your theme – Themes or “catchphrases” help the jury remember
what your case is about. They are simple words or phrases that stick in the jurors’ minds
during the entirety of the trial. Themes help the jury take the loads of information they
are given and form a conclusion. It is important to introduce your theme immediately in
your opening statement and try to repeat it a few times so that it sticks in the jury’s mind.
Examples include:

a. “This case is about Love, not Malice.”

b. “This case rests on three simple facts.” (Complete with hand gestures!)

c. And the always famous: “If the alpaca didn’t spit, you must acquit.”

B. Rules

1. Do not argue – An easy way to remember this is that you are giving the opening
statement. Your only job at this point in time is to state your theory, your facts, and your
theme. Neutrality will score you credibility points with the jury at this stage in the trial.
A few things to keep in mind7:

a. Do not interpret the evidence

b. Do not urge the fact-finder to draw inferences

c. Do not suggest what weight should be given to particular evidence

d. Do not appeal to the fact-finder’s emotions

e. Do not ask rhetorical questions (which are inherently argumentative)


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2. Do not comment on the law (unless absolutely necessary) – Keep in mind that when
you make brief comments on law, you must not argue or advocate for the jury to follow
your interpretation. (See the scripts at the end of the book for how to do this when
necessary.)

3. Work in your theory and theme as you tell your story

a. Your first sentence should clearly and memorably tell the finder of fact your
theory of the case.

ATTY: This is a case about a careless man whose failure to lock a simple
gate blinded a young child and forever changed his life.

b. Tell a story that includes all the legal elements of your case.

c. Explain why the various things happened—people like stories. Keep in mind a
few things when telling your story8:

(1) Focus on people, not the problem – You want the jury to feel a
personal connection to your client – so personalize your client and the
witnesses you plan on calling. In essence, make the jury sympathize with
your client.

(2) Retell your story so that the jury feels as if they experienced it. Be sure
to dramatize the events surrounding your case theory so that jury finds
them memorable. Be careful to not over-do it and to remain credible.

(3) Use chronological order – This makes your story easy to follow, and
most importantly, logical.

(4) Preview what the jury will hear during the trial. Remember not to
testify, but to pique the jury’s interest and let them anticipate what you
will present.

4. Request a verdict – At the end of your opening statement, be sure to tell the jury what
you want the verdict to be.

a. Civil Cases – Your verdict request will have two parts:

(1) Liability – The plaintiff always wishes to find the defendant “liable”
for the alleged harm. Conversely, the defendant always wishes to be
found “not liable.”
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(2) Damages – The plaintiff almost always will ask the jury to find the
defendant liable for some type of damages. Be sure to ask for
compensation for the damages at the end of your opening statement.

b. Criminal Cases – Your verdict request will be “guilty” if you are the
prosecution, or “not guilty” if you are the defendant.

C. The Structure of Your Opening Statement9

1. Introduction – Where you state your theme and theory

ATTY: Ladies and gentlemen, this is a case about a careless man whose failure to
lock a simple gate blinded a young child and forever changed his life. The
evidence today will show that Dr. Matthew Moore was Too Busy To Be Careful.

2. Parties – briefly explain who you represent and what their interest in this case is

ATTY: My name is...and I represent Johnnie Doe. Johnnie and his parents live
next door to Dr. Matthew Moore in Atascadero, California. On the afternoon of
January 7, 2008, Johnnie Doe was visiting Dr. Moore’s alpacas when one escaped
from its cage and attacked Johnnie, blinding him in one eye. Johnnie’s life has
changed forever, and we are asking Dr. Moore to compensate Johnnie for the
injuries Dr. Moore’s negligence caused.

3. Scene – Describe the scene of where the alleged wrong happened.

4. Instrumentality – Describe any vehicles, buildings, etc. that are essential.

5. Date, Time, Weather, and Lighting (if relevant)

6. What happened – This is the body of the opening, and is where you’ll foreshadow the
evidence to come.

ATTY: This unfortunate incident took place in the back yard of Dr. Moore’s
house in Atascadero, California. It was about 4:00 pm, and Johnnie Doe had just
returned home from school. Johnnie will tell you that he often visited the alpacas
after school, and that Dr. Moore had told him on several occasions that he was
welcome to visit the animals any time. Johnnie will tell you that when he reached
the door to the alpaca cage, he noticed that it was open. He will tell you that at
that exact moment, the alpaca named Tuckerman burst out of the cage and spat
right into Johnnie’s left eye. He will tell you about the pain he suffered, and how
he ran back to his own house crying. He will tell you about his visit to the doctor.
Dr. Kirkland Brown will tell you that he examined Johnnie Doe later that same
day, and that Johnnie’s eye had been badly damaged. Dr. Brown will tell you that
Johnnie will never see out of that eye again. Dr. Brown will tell you that in his
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professional opinion, the damage to Johnnie Doe’s eye was caused by the alpaca’s
acidic saliva.

7. Assert the basis of liability/nonliablity or guilt/nonguilt:

ATTY: After you have heard all the evidence, the judge will instruct you in the
law. She will tell you that property owners have certain legal responsibilities
towards people they have invited to enter their property. She will tell you that
those responsibilities are even greater when the guest is a child. The evidence
today will show that Dr. Moore failed to properly lock his alpaca gate. It will
show that Johnnie Doe’s eye injury was caused by alpaca saliva. It will show that
this injury would never have happened if the gate had been properly locked. And,
ladies and gentlemen, it will show that this isn’t the first time Dr. Moore’s
carelessness has caused problems.

8. Anticipate what the other side will say and undermine it.

ATTY: Ladies and gentlemen, as you know there are two sides to every story.
After we have presented our evidence, Dr. Moore’s attorney will present his side
of the story. And of course Dr. Moore’s attorney will argue that this terrible
incident wasn’t Dr. Moore’s fault at all. His attorney will probably try to convince
you that Dr. Moore never told Johnnie Doe that he could visit the alpacas any
time. However, when Mr. Sam Smith testifies, he will tell you that he personally
witnessed Dr. Moore issue several such invitations. Dr. Moore’s attorney will
probably try to convince you that Dr. Moore is positive he locked the gate that
morning, because he habitually checks and locks the gate. However, when Ms.
Dinah Washington testifies, she will tell you that on several occasions Dr.
Moore’s alpacas have escaped from their cage and trampled her garden. Mr. Sam
Smith, the local animal control officer, will testify that he has personally had to
capture and return Dr. Moore’s alpacas on more than one occasion. Finally, Dr.
Moore’s attorney will likely try to convince you that Johnnie Doe did something
wrong on the day in question—that he climbed over the fence, that he jimmied the
lock, or perhaps that he teased Tuckerman and goaded him to attack. You will
hear directly from Johnnie Doe that none of these things are true, and you will
hear from Frank Doe, Johnnie’s older brother, that he witnessed the attack and
can corroborate Johnnie’s version of events.

9. Conclusion – restate your theme

ATTY: Members of the jury: After all the witnesses have testified and all the
evidence has been gathered, the truth of this matter will be clear to you. It is a
case of Dr. Moore being Too Busy To Be Careful. His obsession with getting
tenure at Cal Poly led him to be careless about his household responsibilities, with
awful consequences for little Johnnie Doe. If Dr. Moore’s had locked the gate
properly, none of us would be here today. But because he negligently failed to
lock the gate, a young boy has been blinded, and his life changed forever.
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10. Last Word -- Ask for damages (civil) or a sentence (criminal).

ATTY: Ladies and gentlemen, I ask you to hold Dr. Moore liable for Johnnie
Doe’s injuries, and to order him to pay the Does $1,000,000 in damages.

D. The Closing

1. The opening statement and the closing argument are like bookends. The opening tells
the jury what to expect, and the closing puts the pieces together into a persuasive story. It
is URGENT that you work closely with the person who will deliver your team’s closing
argument. The opening and closing must have the same theory, the same theme, and
must tell essentially the same stories about the witnesses, the facts, and the law.

E. Model Opening – Here’s a complete model opening, based on a famous incident:

Ladies and gentlemen, this is a case about a careless man whose failure to lock a simple
gate blinded a young child and forever changed his life. The evidence today will show that Dr.
Matthew Moore was Too Busy To Be Careful.
My name is...and I represent Johnnie Doe. Johnnie and his parents live next door to Dr.
Matthew Moore in Atascadero, California. On the afternoon of January 7, 2008, Johnnie Doe
was visiting Dr. Moore’s alpacas when one escaped from its cage and attacked Johnnie, blinding
him in one eye. Johnnie’s life has changed forever, and we are asking Dr. Moore to compensate
Johnnie for the injuries Dr. Moore’s own negligence caused.
This unfortunate incident took place in the back yard of Dr. Moore’s house in
Atascadero, California. It was about 4:00 pm, and Johnnie Doe had just returned home from
school. Johnnie will tell you that he often visited the alpacas after school, and that Dr. Moore had
told him on several occasions that he was welcome to visit the animals any time. Johnnie will tell
you that when he reached the door to the alpaca cage, he noticed that it was open. He will tell
you that at that exact moment, the alpaca named Tuckerman burst out of the cage and spat right
into Johnnie’s left eye. He will tell you about the pain he suffered, and how he ran back to his
own house crying.
To prove that Dr. Moore was negligent, we have to prove to you by a preponderance of
the evidence that Dr. Moore had a duty to Johnnie Doe, that he failed to uphold that duty, that
Johnnie Doe suffered harm, and finally that Dr. Moore’s failure to do his duty caused the harm
that Johnnie suffered.
Let’s talk first about duty. After you have heard all the evidence, the judge will instruct
you in the law. She will tell you that property owners have certain legal responsibilities towards
people they have invited to enter their property. She will tell you that those responsibilities are
even greater when the guest is a child. Dr. Moore had a legal and an ethical duty towards Johnnie
Doe, to make sure that there were no hazards on his property that might injure Johnnie or anyone
else. But Dr. Moore was Too Busy to Be Careful.
So did Dr. Moore breach that duty—did he fail to do what he had an obligation to do?
The evidence today will show that Dr. Moore failed to lock the gate to the alpaca enclosure on
the morning in question, and that this failure allowed an aggressive animal to escape from its
cage. Anyone visiting Dr. Moore’s home would have been in danger. Simply put: Dr. Moore did
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not make the effort to take the simple step of locking his gate, and he therefore failed to keep his
property free from dangers to possible visitors. He breached his duty to Johnnie Doe. Why did he
breach his duty? Because he was too busy with his work obligations at Cal Poly State University
to be careful at home.
That brings us to harm. Dr. Kirkland Brown will tell you that he examined Johnnie Doe
later that same day, and that Johnnie’s eye had been badly damaged. Dr. Brown will tell you that
Johnnie will never see out of that eye again. Dr. Brown will tell you that in his professional
opinion, the damage to Johnnie Doe’s eye was caused by the alpaca’s acidic saliva.
The final element of negligence is causality—did Dr. Moore’s breach of his duty to keep
his property free from hazards lead to Johnnie Doe’s injury? The evidence today will show that
Dr. Moore failed to properly lock his alpaca gate. It will show that as a consequence, one of Dr.
Moore’s alpacas escaped. It will show that Johnnie Doe’s eye injury was caused by the saliva of
that escaped alpaca. It will show that this injury would never have happened if the gate had been
properly locked. And, ladies and gentlemen, it will show that this isn’t the first time Dr. Moore’s
negligence has caused problems. Dr. Moore was Too Busy to Be Careful, and Johnnie Doe has
paid the price.
Ladies and gentlemen, as you know there are two sides to every story. After we have
presented our evidence, Dr. Moore’s attorney will present his side of the story. And of course Dr.
Moore’s attorney will argue that this terrible incident wasn’t Dr. Moore’s fault at all. His
attorney will probably try to convince you that Dr. Moore never told Johnnie Doe that he could
visit the alpacas any time. However, when Mr. Sam Smith testifies, he will tell you that he
personally witnessed Dr. Moore issue several such invitations. Dr. Moore’s attorney will
probably try to convince you that Dr. Moore is positive he locked the gate that morning, because
he habitually checks and locks the gate. However, when Ms. Dinah Washington testifies, she will
tell you that on several occasions Dr. Moore’s alpacas have escaped from their cage and
trampled her garden. Mr. Sam Smith, the local animal control officer, will testify that he has
personally had to capture and return Dr. Moore’s alpacas on more than one occasion. Finally, Dr.
Moore’s attorney will likely try to convince you that Johnnie Doe did something wrong on the
day in question—that he climbed over the fence, that he jimmied the lock, or perhaps that he
teased Tuckerman and goaded him to attack. You will hear directly from Johnnie Doe that none
of these things are true, and you will hear from Frank Doe, Johnnie’s older brother, that he
witnessed the attack and can corroborate Johnnie’s version of events.
Members of the jury: After all the witnesses have testified and all the evidence has been
gathered, the truth of this matter will be clear to you. It is a case of Dr. Moore being Too Busy
To Be Careful. His obsession with getting tenure at Cal Poly led him to be careless about his
household responsibilities, with awful consequences for little Johnnie Doe. If Dr. Moore had
locked the gate properly, none of us would be here today. But because he negligently failed to
lock the gate, a young boy has been blinded, and his life changed forever.
Ladies and gentlemen, I ask you to hold Dr. Moore liable for Johnnie Doe’s injuries, and
to order him to pay the Does $1,000,000 in damages.
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VII. FOUNDATION AND EXHIBITS

A. The Point

1. Every piece of evidence that is introduced must be:

a. Relevant to some material issue in the case.

b. Authentic (what it purports to be).

c. Admissible under the MRE.

2. Laying foundation is the process of showing that a particular piece of evidence meets
these criteria.

B. How to Do It

1. Foundation can be established by a single witness, by multiple witnesses, on cross-


examination, and even conditionally (when foundation will be completed later, but the
present witness has information to offer relevant to the exhibit).

C. Elements of Foundation for Various Kinds of Evidence

1. Eyewitness Testimony

a. That the witness was present where and when the alleged act took place:

ATTY: John Doe, do you remember what, if anything, happened on


January 7, 2008?

DOE: Yes. It was a day I’ll never forget.

ATTY: Where were you on that day?

DOE: I was in Atascadero, California playing with my neighbor’s pet


alpacas.

ATTY: Where are your neighbor’s pet alpacas located?

DOE: They are located in his yard, in a special pen, which is next to my
backyard.

ATTY: Approximately what time were you playing with the alpacas?

DOE: After school, around 3:30 PM.


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Now that you have established, where the person was, you can ask
questions about any event that happened at the location of that witness.

b. That the witness personally observed or experienced relevant and admissible


things about the alleged act.

ATTY: What, if anything, happened while you were playing with your
neighbor’s pet alpacas?

DOE: The black alpaca, named Tuckerman, made a weird gurgling sound
and then proceeded to spit in my eye.

ATTY: Had you ever heard this gurgling sound before?

DOE: Yes, many times. For years I helped keep a look out for my
neighbor’s alpacas. Dr. Moore trained me for a little while to handle them,
and during that time the Alpacas made these gurgling sounds when they
spit at each other.

ATTY: Did you do anything after Tuckerman spit in your eye?

DOE: Yes, I ran home because my eye was burning like crazy and I
wanted to tell my mom what had happened.

2. Conversations in Person

a. Date, time, place, identity of persons present (and how the witness knew their
identities, if relevant)

ATTY: Did you tell your mom what had happened?

DOE: Yes I did.

ATTY: When did you tell her?

DOE: As soon as I got home. Around 4:15 in the afternoon.

ATTY: Where did this conversation take place?

DOE: In the kitchen.

ATTY: Was your mom the only person to hear about what happened in
that conversation?

DOE: Yes, nobody else was present.


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Now that you have noted who John Doe spoke with, about what time the
conversation took place, and where it took place, you have laid sufficient
foundation that a conversation actually took place as you said it did.

3. Conversations by Phone

a. date, time, identity of other party/parties and how the witness knew who was
speaking (familiar voice, that the witness dialed the phone number in the
phonebook, etc.).

ATTY: Did you tell your mom what happened?

DOE: Yes, I called her on my cell phone immediately after Tuckerman


spit in my eye.

ATTY: How did you know it was your mom on the other line?

DOE: She is my mother and I recognize her voice. I call her all the time to
pick me up from friends’ houses or the movies.

This type of foundation is really simple, but you must lay it. Without it,
your opposing counsel can claim you never really were talking with the
person you claimed you spoke with on the phone because you never
identified him/her as such.

4. Witness’ Prior Identification of an Individual

a. That the witness saw the person identified clearly enough to be able to
recognize them again.

ATTY: Mr. Pink, were you able to see John Doe leave Matthew Moore’s
yard?

MR. PINK: Yes I was. I was walking up to Mr. Moore’s front door to drop
off a pie when I saw John Doe, in clear view, running across the yard.

ATTY: About how far away were you from John Doe?

MR. PINK: I would say about twenty feet away.

ATTY: Would you recognize John Doe if you saw him again?

MR. PINK: Yes I would.

ATTY: Is he currently in this courtroom?


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MR. PINK: Yes he is. He is sitting right over there [points to plaintiff’s
table], wearing a red t-shirt and jeans.

5. Habit and Routine Testimony

a. That the witness has firsthand knowledge of the habit/routine, and that the
habit/routine was in fact a consistent, regularly repeated behavior

ATTY: How long have you known the defendant?

MRS. MOORE: We have been married for two years and dated for three
years prior to that.

ATTY: Have you ever witnessed your husband tend to the alpaca pen?

MRS. MOORE: Yes, once a week at least. He does a weekly check for
any potential dangers in the pen.

ATTY: Does your husband usually lock the alpaca pen?

MRS. MOORE: Yes, all the time. Whenever he is not in the pen with the
alpacas, he uses a heavy-duty padlock to lock the gate. It’s routine.

ATTY: How long has this been a routine?

MRS. MOORE: Ever since we have owned alpacas, and that would be
four years so far.

6. Character and Reputation

a. Past Misconduct -- Specifics of past acts, the reason that it is admissible in the
current case, the basis of the witness’s knowledge of the past acts

ATTY: Mr. Yellow, what is your occupation?

MR. YELLOW: I am the owner of an anarchist bookstore.

ATTY: Have you employed the defendant, Matthew Moore, before?

MR. YELLOW: Yes, yes, many years ago.

ATTY: How did his employment go?

MR. YELLOW: Very well, until he left the door unlocked one night when
closing the store.
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ATTY: Did anything come of that?

MR. YELLOW: Yes, a bunch of Marxists came in and ambushed the


store.

ATTY: Did you personally witness the ambush?

MR. YELLOW: Not while it was going on. I came in the morning to open
and saw what had happened. Then I reviewed the surveillance footage and
saw the entire thing then.

ATTY: And you know for sure the defendant was the one who closed the
store that night?

MR. YELLOW: Yes. Not only was he scheduled to work that night, but
the surveillance footage showed him leaving the store and failing to lock
the door.

b. Reputation for Untruthfulness – You must establish why the witness feels the
individual is untruthful. A way to do this is to establish the relationship and then
give a reason why the said person is untruthful. For example:

ATTY: What is your relationship to John Doe?

MS. BETTY: I have been his teacher for four months.

ATTY: Have you known John Doe for longer than four months?

MS. BETTY: Yes I have. He has participated in many after-school events


that I have chaperoned.

ATTY: Are you aware of John Doe’s reputation for truthfulness among
his peers and superiors?

MS. BETTY: Yes. Other students have complained to me on numerous


occasions about Johnnie telling lies. On several occasions I have been able
to verify that he had in fact been untruthful. Overall, I would say that both
the students and the teachers view him as untruthful.

7. Party Admission (Hearsay) -- that the witness heard the statement, and that the
witness knew that it was made by the party-opponent (or its agent)

ATTY: Did you speak with Matthew Moore after the incident happened?

DOE: Yes I did.


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ATTY: And what, if anything, did he say to you?

DOE: He said that he was only “pretty sure” that he had locked the gate that
morning.

In this situation, the plaintiff, Matthew Moore, is a party opponent to John Doe,
therefore, what he says is admissible under M.R.E. 801(d)(2). See Chapter Three
for full explanation on M.R.E. 801(d)(2).

D. Exhibits – Procedure for Using Them

a. Mark the exhibit for identification BEFORE the trial (at the captains’ meeting).

(1) Prosecution 1, Prosecution 2… Defense A, Defense B...

(2) This allows the exhibit to be shown to witnesses, but not (yet) to the finder of
fact.

b. Identify the exhibit to opposing counsel

(1) Ask the judge for permission to approach opposing counsel.

ATTORNEY: Your honor, may I approach opposing counsel to show


them an exhibit?

(2) Approach counsel and state for the record that you are showing opposing
counsel the exhibit.

ATTORNEY: Your honor, may the record reflect that I am showing


opposing counsel what has been previously marked as Defense Exhibit C.

c. If the opposing counsel objects to the exhibit, succinctly give your reasons for
believing that it may be shown to the witness. Assuming that you’re successful:

d. Ask the judge for permission to approach the witness.

ATTORNEY: Your honor, may I approach the witness?

e. Hand the witness the exhibit and state for the record that you are showing them the
exhibit. Also give a brief description of the exhibit—a photograph, a one-page
document, etc.

ATTORNEY: Your honor, may the record reflect that I am showing the witness
what has been marked as Defense Exhibit C, a two-page document.

f. Have the witness identify the exhibit.


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ATTORNEY: Dr. Brown, do you recognize this document?

DR. BROWN: Yes, this is a copy of John Doe’s medical records from my office.

ATTORNEY: Is the copy complete and accurate?

DR. BROWN: Yes.

g. Complete the foundation for the exhibit (in this case, as a business record).

ATTORNEY: Did you personally write this document?

DR. BROWN: Yes.

ATTORNEY: Where did you obtain the information contained in it?

DR. BROWN: From my examination and interview of John Doe.

ATTORNEY: Did you make this record at or near the time of that examination
and interview?

DR. BROWN: Yes.

ATTORNEY: Is it the regular practice of your office to make and maintain such
records?

DR. BROWN: Yes, we make a record like this for every meeting with a patient.

ATTORNEY: Are you the custodian of this document?

DR. BROWN: Yes. All medical records in the office are maintained under my
supervision.

h. What you do next depends on what role you want the exhibit to play. (You may need
to do all or several of these things at different times during the same testimony.)

(1) Have the witness testify about the contents of the document.

(2) Publish the exhibit to the jury—that is, show it to them right now, for example
by showing them a photo or an enlargement of a document.

ATTORNEY: Your honor, permission to publish the exhibit to the jury at


this time?
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(3) Enter the exhibit into evidence, so that it will be available to the jury during
their deliberations.

ATTORNEY: Your honor, we offer Defense Exhibit C into evidence.

JUDGE: It is so received.

ATTORNEY: Your honor, permission to approach the bench to tender the


exhibit to the court?

JUDGE: Granted.

i. DO NOT LEAVE THE EXHIBIT IN THE WITNESS’S HANDS. When you are done
with the exhibit, either tender it to the bench or retrieve it and take it back to your table.

ATTORNEY: Your honor, may I approach the witness to retrieve the exhibit?

E. More on Foundation

1. Real Evidence – This refers to tangible objects such as a gun or a knife that were part
of the alleged incident.

a. Chain of Custody – If a witness cannot identify the exhibit (i.e. gun) merely
by seeing it again, a chain of custody must be established in order to ensure that
the gun is the actual gun used in the crime:

(1) Show that the exhibit has been continually handled by one or more
persons, was in his/her possession, and was secure.

(2) Show that the exhibit was in a distinctly marked container the entire
time after the crime, and that the exhibit was not tampered with.

(3) Current condition vs. original condition – Current condition is the


condition of the piece of evidence at the time of the trial; whereas,
original condition is the condition of the piece of evidence at the time of
the alleged harm (civil) or crime (criminal). If the conditions changed (i.e.
evidence was damaged), the witness must note the damages and how they
occurred. If not, your opposing counsel can discredit the piece of evidence
as tampered evidence.

2. Demonstrative Evidence – This type of evidence is used to demonstrate or illustrate


the witnesses’ testimony. It can be a map or a diagram of the scene of the crime or harm.
A few things to keep in mind when using demonstrative evidence:10

a. The “demonstrative” MUST BE relevant.


Cal Poly Mock Trial Textbook 93

b. The witness MUST BE familiar from personal experience with what the
demonstrative is depicting.

c. Furthermore, the witness MUST HAVE BEEN familiar with whatever is being
depicted at the time of the crime or alleged harm.

d. The map or diagram MUST BE reasonably accurate, or to scale.

e. The demonstrative MUST BE actually useful in enhancing the witness’s


testimony.

3. Documentary Evidence – As is apparent in the name, this type of evidence refers to


documents, statements, reports and basically any written piece of evidence. It is
important to keep in mind that 99% of this stuff is hearsay and will need to fall under a
hearsay exception before it is admissible. Most of the evidence in the case packet will
be documentary evidence.

a. Affidavits are hearsay, and can only be directly referenced when impeaching
or responding to impeachment. You can, however, refer to them indirectly during
trial.
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VIII. DIRECT EXAMINATIONS

A. Direct examinations are what trials are made of. Ninety-nine percent of the evidence you
introduce will come in through direct examinations.

B. Direct exams have several related purposes:

1. Introduce stipulated facts – Undisputed facts include any facts that both sides will
generally agree on.

2. Make disputed facts more likely – This is really one of the key points of direct
examinations. It is your opportunity to give your theory regarding the facts in question.
Using the exhibits provided to you in the case packet can help establish conclusively the
disputed facts.

3. Lay foundation for exhibits – As was discussed in the previous chapter, the direct
examination is one time to lay proper foundation for the exhibits you hope to get in.
Remember that witnesses can only lay foundation for exhibits about which they have
personal knowledge.

4. Demonstrate the credibility of the witness (and possibly other witnesses) – For a lay
witness, this is done by giving background information and “humanizing” the witness.
For expert or technical witnesses, a curriculum vitae is usually provided in the case
packet, and you will want to enter this into evidence as well as give the background
information.

5. Keep the finder of fact engaged – The last thing you want to do on direct examination
is to bore the presiding and/or scoring judges. Tell a story through your direct
examination and weave pertinent facts into the story. Also, give your witnesses some sort
of character instead of just having him/her sit on the stand and blandly repeat
information. It is important for a direct examination to be conversational. If it sounds like
a simple question and answer session, everyone will be bored and you will lose points.

C. The Rules:

1. Only ask non-leading questions (unless you are questioning a hostile witness) – It is
not permissible to “lead” a witness on direct examination. This means you may not ask a
question that “suggests” an answer. For example:

ATTY: John Doe, the doctor diagnosed you with 80% loss of sight in your right
eye, correct?

This is a leading question. Here the attorney is suggesting to the witness


(John Doe) that the doctor diagnosed him with vision loss. This leaves the
witness to only answer “yes” or “no” instead of testifying about the
diagnosis. Below is the correct way to approach this line of questioning.
Cal Poly Mock Trial Textbook 95

ATTY: John Doe, did the doctor diagnose you with anything?

JOHN DOE: Yes.

ATTY: What did he diagnose you with?

JOHN DOE: He diagnosed me with 80% loss of sight in my right eye.

In this second example, no assumption of fact was made. By first asking


an open question, the attorney establishes that John Doe was diagnosed
with something. After John Doe gave his answer, then another open-ended
question is asked about what the diagnosis was. It is best to use open-
ended questions and let the witness tell the courtroom what happened.
Remember, on direct examination, the witness is the star, not the attorney.

2. Avoid questions that call for narrative answers – While you want to ask open-ended
questions, you want to contain them to answers that can be explained in less than 90
seconds. For instance, you do not want to ask a question like this:

ATTY: John Doe, what happened on the afternoon of January 9, 2008?

This question is so broad and open-ended that the witness can talk for five
minutes about everything. This type of question is highly discouraged
because narrative answers get boring and important facts get lost in a
long-winded answer. To think of it another way: you want to direct the
witness to important facts by using a series of open-ended questions that
allow the witness to tell a story in short installments.

3. Ask for sensory observations, not opinions (except with experts) – A lay witness is not
allowed to give any “expert” or “professional” opinions because they are not qualified to
do so. For instance, Mrs. Doe is not allowed to give any medical opinions on her son’s
eye condition because she is not a doctor. To avoid this problem (it comes up more than
you think), stick to sensory observations: what did the witness see, hear, feel, or smell
that helps advance your case theory. This does not mean a lay witness may not give an
opinion. A lay witness may be able to say that somebody was “in pain” because the
witness “heard him scream and saw a distressed bodily or facial expression.” But that is
about as far as a lay witness can go in giving an opinion.

4. Help the witness out by refreshing their memory or cueing them – Sometimes during
your direct examination your witness may forget the information that you are trying to
elicit out of them. It is important in this situation not to panic, but to attempt to refresh
their memory. For example:

ATTY: Mr. Pink, did you see John Doe during the day in question?
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MR. PINK: Yes sir. I was delivering a pie to the Moore’s house when I saw John
Doe, in plain view, run across the yard.

ATTY: How was he running?

MR. PINK: You know sir, I honestly cannot recall at this time. I think he was
covering his eye with his right hand, but I cannot remember for sure at this
moment.

ATTY: Was there a time when did you remember whether he did?

MR. PINK: Yes. Directly after I saw John Doe run across the yard, I remember
going home and writing in my journal in order to chronicle this odd situation.

ATTY: And at this time, you cannot recall whether or not John Doe was covering
his right eye with his right hand?

MR. PINK: Not at this time, sorry.

ATTY: Would looking at your journal entry help refresh your recollection of the
events?

MR. PINK: Most definitely.

ATTY: Let the record reflect I am showing opposing counsel what has been
marked as defense exhibit B, Mr. Pink’s journal entry.

ATTY (TO JUDGE): Permission to approach the witness, your honor?

JUDGE: Permission granted.

ATTY: Mr. Pink, I am handing you what has been previously marked as defense
exhibit B. Do you recognize this document Mr. Pink?

MR. PINK: Yes, this is my journal entry for January 9, 2008.

ATTY: How do you know that this your personal journal entry?

MR. PINK: First, because this appears to be my exact journal, and secondly,
because I sign all the entries at the end of each entry, and this is my signature at
the end of this entry.

ATTY: Mr. Pink, would you please take a moment to look over the January 9,
2008 entry only and let me know when you are finished.

MR. PINK: I remember now sir.


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ATTY: (TO JUDGE) Permission to approach the witness to retrieve what has
been marked as Defense exhibit B?

JUDGE: Permission granted.

ATTY: Mr. Pink, was John Doe covering his eye in any way?

MR. PINK: Yes he was.

ATTY: And how so?

MR. PINK: He was using his right hand to cover his right eye, like this
[demonstrates to the jury how John Doe was covering eye].

5. Allow the appropriate witness to identify the defendant, if need be


(prosecution/plaintiff only) – This will only be relevant if the defendant is in the
courtroom and is sitting at the defense table

ATTY: Mr. White, do you know what the defendant in this case, Dr. Matthew
Moore, looks like?

MR. WHITE: Yes, I deliver mail to his house every day and see him frequently
while delivering the mail.

ATTY: Mr. White, do you see the defendant in the courtroom now?

MR. WHITE: Yes.

ATTY: Would you please identify him for the court, by identifying where he is
located and what is wearing?

MR. WHITE: He is sitting over there [pointing to defense table] and he is wearing
a blue collared shirt with khaki pants.

ATTY (TO JUDGE): Your honor, let the record reflect that the witness, Mr.
White, has identified the defendant, Dr. Moore.

JUDGE: The record will so reflect.

D. Strategy

1. Use direct examinations to establish essential facts (and supporting information, like
foundation, background, and credibility).
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a. Juries will remember and believe stories that explain why people did things.
Again, it is important that you tell a story in a conversational way instead of
simply repeating facts and observations to the jury.

2. Don’t ask for facts that are trivial, irrelevant, or that will be successfully challenged
(unless absolutely necessary).

3. Don’t ask for implausible facts—anything that the jury will wonder about or
disbelieve. You want your direct examination to be clear to the jury. Do not leave the jury
or presiding judge confused about anything. Furthermore, you want your case theory to
be clear in your examination. Make sure that each question can be related back to a
question in dispute or a factor in the case (i.e. the jury instructions). This helps guard
against any relevance objections.

4. Start strong and end strong, both overall and with each sub-portion of the examination.
Your direct examination should be one big story (your theory) explained by many
smaller stories about disputed facts (sub-portion). This will make sense when coupled
with point five below.

5. Arrange your questions so that they have the maximum logical force in support of your
theory and theme. (This may not be chronological, but rather thematic or topical.)

a. For example, if the theme of your case is “dangerous animals and unlocked
gates are an accident waiting to happen,” then make sure that each witness’s
testimony contributes to that theme in a logical way. A neighbor might testify that
the gate was often left open. A vet might testify to the aggressive personalities of
alpacas kept as pets, and also to the fact that the last time she visited the
residence, the gate to the alpaca enclosure was not locked.

6. Get to the point, and tell the jury what the witness will contribute. Do not focus on
irrelevant points. Get to the main points and hit them hard. Make sure the jury knows the
purpose of each witness and what they are contributing to your overall theory.

7. Don’t interrupt the main “action” of the testimony to fill in details. Fill those in once
the juicy part has been told. As stated above, the witness is the star. Let the witness
explain his/her answer to your question. Remain flexible in your questions and answers.
This is part of the conversational direct examination. If an answer a witness gave is not
complete, let him/her finish their answer and then fill in any left out details with a few
follow up questions.

8. Build your case before trying to tear down the other side’s.

9. Draw the sting—that is, admit potentially damaging information and put it into the
best light possible. (But don’t open the door for otherwise inadmissible evidence.) Do
this in the middle of testimony, not at the memorable beginning or ending.
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10. End with a clincher—an undisputable fact that reinforces your theory and theme.

E. Anticipating Objections

1. If you plan to introduce evidence that you think will probably elicit an objection,
anticipate the objection. Sometimes you can head it off entirely by laying the proper
foundation. Other times, you may be able to blunt the objection, or make it easier for
yourself to respond.

a. Example: You plan to introduce a business record. Rather than introducing it,
having your opponent object, and then responding to the objection, have the
witness lay all the foundation for a business-record exception to hearsay, so that
the objection is entirely avoided.

2. One way to anticipate objections is to go through each “theme” or “topic” and ask
yourself what you would object to in the information you are trying to get out. Be
creative in doing this because the best teams use creative objections and explanations to
prevent evidence from coming in.

F. Anticipate cross-examination questions

1. Every witness has some dirty laundry that will get aired during trial. This is part of
mock trial. A good way to limit the damage of a cross examination is to anticipate that
certain evidence is going to come out and prepare a handful of redirect questions and
scenarios and have them ready to go. A good, strong, redirect examination can not only
save your witness but limit the effectiveness of a cross examination. If you can make it
appear that what came out on cross is no big deal, you not only bolster your witness’s
credibility, but also score your team some points for preparedness.

G. Redirect

1. After the other side cross-examines your witness, you have a chance to ask them more
questions. This is called redirect.

a. Under MRE 611, on redirect you can only ask about issues that came up during
the cross-exam.

b. Don’t bother to redirect unless you have something important to get out and
you can do it neatly. Many redirects simply aren’t worth it.
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IX. EXPERT TESTIMONY

A. The Rules

1. Is expert testimony necessary/helpful to the finder of fact? – In other words, will the
expert testimony advance your theory of the case? It is important that the jury see the
relevance of the particular witness, because otherwise you will only confuse them.

2. Is your proffered witness actually an expert in the relevant field?

3. The expert may testify to pretty much anything in their area of expertise, except mental
state/condition where that is an element of the charged crime or an affirmative defense.
See MRE 704.

4. The expert opinion may be based on information that is not in evidence, and even on
information that would not be admissible, as long as it’s the kind of information that
experts in that field typically rely on.

B. How

1. The expert must have a theory that explains the relevant evidence. The expert’s theory
has three parts:

a. ultimate conclusion

b. explanation of the basis of that conclusion

c. justification of this conclusion being the best one, given the evidence.

2. The expert should use ordinary (non-technical) language as much as possible. If the
expert must use technical terms, be sure to ask a follow-up question about what the term
means in everyday language.

3. Avoid narrative answers – As explained in the direct examination chapter, your goal
during the examination of your expert witness is to let him/her shine. Ask questions that
elicit explanatory answers, but restrict each open-ended question to a specific point in
your case theory.

4. Use examples and analogies –Try and relate complicated concepts or procedures back
to examples that a layperson would understand. For instance, using sports examples may
help people understand the procedures used by the expert. However, make sure your
examples and analogies are not more complicated than the original explanation.

5. Use internal summaries to sum-up and show the significance of sub-parts of the
testimony – It is crucial, and helpful to you and jury, to ask your expert to summarize any
lengthy portion of his/her testimony. If he/she just explained at length the four major
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steps of a procedure, ask the expert to quickly summarize each of those steps (one
sentence each). That way the jury can remember everything that was said in the last three
minutes.

a. Considering using extended metaphors to structure complex testimony. For


example, you might use the metaphor of a house to explain a procedure that takes
place in several steps, with the first step being the foundation and the last step
being the roof.

6. Use visual aids – Since expert testimony can be complex and difficult to understand,
the use of graphs, charts, and drawings may help clarify things for the jury and presiding
judge. Make sure the demonstratives comply with AMTA rules.

C. Step-by-Step

1. Introduce the witness

ATTY: Please state your name for the record.

EXPERT: Dr. Kirkland Brown.

ATTY: Dr. Brown, what type of doctor are you?

DR. BROWN: I am an ophthalmologist.

ATTY: And what is an ophthalmologist?

DR. BROWN: An ophthalmologist is an eye doctor who specializes in eye


diseases and treating injuries to the eyes.

2. Bring out the expert’s education and experience (qualifications) – According to the
AMTA rules, you do not need to (and therefore must not) officially move for somebody
to be recognized as an expert witness. Having the witness testify to educational and
experience background is all you need to do. DO NOT SAY THAT THE WITNESS IS
AN EXPERT (unless the other side challenges his/her credentials). Instead, show us that
the witness is an expert by introducing his or her qualifications.

ATTY: Dr. Brown, what is your educational background?

DR. BROWN: I double majored at the University of Southern California in


biology and chemistry, receiving a B.S. in both fields. I then attended Johns
Hopkins University, where I obtained my M.D. with a specialty in
Ophthalmology. After obtaining my medical degree, I completed a one-year
internship at Maryland State Hospital. Finally, I completed my residency at
UCLA Medical Center.
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ATTY: Do you have any professional experience as an ophthalmologist?

DR. BROWN: Yes I do. I have owned and operated my own practice in
Atascadero, California for fifteen years now. I was just voted one of the top
doctors on the Central Coast.

3. Lay foundation for the expert’s connection to the case.

ATTY: Dr. Brown, is John Doe a patient of yours?

DR. BROWN: Yes, he is.

ATTY: And did you have occasion to examine his eyes in January of 2008?

DR. BROWN: Yes, I examined his eyes on January 9, 2008.

ATTY: Why did you examine his eyes on that date?

DR. BROWN: He came to the office complaining of a burning sensation in his


right eye.

4. Bring out the expert’s opinion and theory

a. Have the expert state their opinions / conclusion up front

b. Elicit the expert’s underlying theory

ATTY: Dr. Brown, did you reach any conclusions in your examination of
John Doe?

DR. BROWN: Yes I did. It is my expert opinion that John Doe suffered
significant vision loss because of damage caused by alpaca spit.

5. Elicit the methodology and basis for the expert’s opinion –this is how you lay the
foundation for MRE 702:

ATTY: And how did you reach your conclusion?

DR. BROWN: First I tested John Doe’s sight.

ATTY: What type of tests did you perform?

DR. BROWN: I performed a routine eye test which consisted of a couple parts.
First I tested his vision by having him read an eye chart. Second, I dilated his
pupils and looked into his eyes to see if I could detect any damage to the retina.
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ATTY: Are these tests standard procedure in the field of ophthalmology?

DR. BROWN: Yes.

ATTY: Are these tests known to be reliable?

DR. BROWN: Yes; they have been in use for decades and are standard procedure
in my field.

ATTY: Were you able to obtain enough information about John Doe’s eyes and
vision to form a reliable opinion?

DR. BROWN: Yes, he was a very cooperative patient and we had plenty of time.
I gathered all the information necessary to form a medical opinion.

ATTY: Finally, Dr. Brown, did you apply these reliable test and procedures to the
information you gathered about John Doe’s eyes and vision?

DR. BROWN: Yes. I gathered the information, compared it to standard lists of


criteria and symptoms, and was able to come to a reliable conclusion about the
state of John Doe’s eyes and vision.

ATTY: What was that conclusion?

DR. BROWN: Mr. Doe had almost no vision in his right eye, and there was
considerable damage to the right retina, consistent with a chemical burn to the
eye. The patient reported to me that an alpaca had recently spit in his right eye,
and that he had had no other unusual substances enter that eye. Subsequent
research revealed that alpaca spit is unusually acidic. Given that conjunction of
facts, my conclusion is that John Doe’s retina damage and vision loss are due to
the alpaca spit.

6. Elicit the reasons why this methodology is better than other methods introduced by
opposing experts or that may be raised on cross. This is where you must do some outside
research to find out what methods are used in your expert’s field.

7. Help the witness make a final statement of their conclusions – It is important to have
the expert’s testimony end with either a re-statement or summary of his/her conclusions.
You want to leave in the minds of the jury the conclusion your expert came to and why it
should matter.

D. Crossing and Impeaching Experts

1. Challenge their credentials – This can be done on cross-examination or as a limited


voir dire during opposing counsel’s direct.
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a. For example:

ATTY: Dr. Brown, did you reach any conclusions in your examination of John
Doe?

YOUR OBJECTION: Objection your honor. I would like perform a limited voir
dire of this witness before he/she continues with his/her testimony.

(1). Remember that a voir dire is only limited to questions regarding the
witness’s expertise. Do not start a full-scale cross-examination of the
witness. Your job here is to clarify and attempt to limit the area where the
supposed expert may give his/her opinion. You do this through
questioning on the expert’s credentials.11

b. A few rules and suggestions:

(1) Voir dire is limited to establishing the witness’ expertise. Basically that
means questions about their training and experience ONLY.

(2) Any questions about the witness’ particular actions or conclusions in


the present case are inappropriate for voir dire and belong in a cross
examination. Object to them immediately.

(3) You should be able to avoid voir dire completely by laying appropriate
foundation. If the other side requests a voir dire, ask the judge to have
them specify what exact information they feel is needed, and then do not
let them ask about anything else.

(4) On the flip side, you may want to voir dire opposing witnesses, either
to throw them off their stride or to limit the scope of their expertise.

2. Limit the scope of their expertise – This can be done through the voir dire mentioned
above or in a cross examination that calls into question credentials and specializations.

3. Contrast their credentials to your expert’s credentials.

4. Obtain information favorable to your side – In mock trial, each expert witness will
most likely have information that helps your theory of the case. Be sure to bring that out
during cross. But be prepared for a struggle. A keen witness will get creative in their
ways of holding on to that potentially helpful information.

5. Get the expert to affirm your other experts’ credentials, methods, or findings.

6. Challenge the expert’s “impartial” opinion– This can be done through bringing out that
the opposing counsel paid the expert for their testimony, that the expert has an existing
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relationship with your opposing counsel, or through some other bias you picked up from
the affidavit and/or direct examination testimony.

7. Point out omissions in the expert’s conclusions or methods – Sometimes, AMTA will
have an expert have some questionable holes in their methodology. It is your job to
research it and point out those holes to the jury to help discredit your opposing counsel’s
expert.

a. MRE 702 lays out a three-part test for the admissibility of an expert opinion:

(1) The opinion is based on sufficient facts or data;

(2) the opinion is the product of reliable principles and methods;

(3) the witness has applied the principles/methods to the facts in this case.

b. If you can cast substantial doubt on any one of the three parts of 702, you may
be able to exclude the opinion testimony.

8. Use counterfactuals—ask the witness to change their assumptions, or to vary the fact
pattern, and see if that changes their conclusions.

ATTORNEY: Dr. Brown, you have testified that you believe Mr. Doe’s alleged
eye injury was caused by Mr. Moore’s spitting in his eye, is that correct?

DR. BROWN: Yes.

ATTORNEY: Isn’t it the case that similar injuries can arise from other causes?

DR. BROWN: Yes.

ATTORNEY: If Mr. Doe had presented the same alleged injury, but had not told
you about the alleged alpaca incident, would you have suspected alpaca saliva as
the cause of the injury?

DR. BROWN: No.

9. Exploit uncertainties – Sometimes an expert will write in his/her affidavit that his/her
results would have been different, “if for [something].” Bring this out and call the jury’s
attention to it. You want to do anything to cast even the slightest doubt on your opposing
counsel’s expert.

10. Challenge the expert’s theory or technique (very hard to make work) – Very rarely
will you get an expert to admit a mistake, or to uncover something so egregious in an
expert’s methodology that it was clear a mistake was made. However, it is tempting to
use lines of questioning that attempt to achieve this. You must ask yourself whether it is
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worth it to try and challenge an expert’s methodology and theory. Most of the time if will
be futile and you will come out looking like the loser in the argument.
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X. WITNESSES

I. General

A. Most students assume that the attorneys are the stars of Mock Trial. This is false. Bad
attorneys can lose a case, but the only way to win a case is to have great witnesses
(supported by great attorneys).

B. If you are portraying a witness, you want the judges/jury to find you:

1. believable as a character—the jury must see you as a real person whose


motivations and actions they can understand and sympathize with

2. credible as a witness—that is, you want them to think you’re telling the truth
(unless untrustworthiness is part of your strategy)

3. prepared as a mock trial participant

4. memorable

C. Since the opposing team will be able to ask you anything they want on cross, you need
to know your character inside out and backwards. If you have to work to remember
details about your own life while on the stand, you will look unprepared.

D. Use What You’ve Got

1. You – If you stutter, then make your character stutter and make stuttering an
important part of his or her story. If you are short, make that part of the
character’s story. If you are strikingly beautiful, then so is your character.
Whoever you are, make that an asset for your character.

2. Your Character – It is urgent that you never be apologetic. Everything you did
was the right thing to do, and you’d be happy to explain why. Be proud of what
you did, not ashamed. (It takes a lot of preparation to be this comfortable with the
character. Be sure you know why your character did everything that might come
up at trial.)

a. You need to write up a complete backstory for your character. Where


were you born? Where did you go to school? Did you like school? What
are your goals/aspirations in life? Why did you do the things you did?
Where are you headed next in life?

D. You win ballots based on performance, not on winning the case. Be memorable!
Every witness needs some kind of gimmick—an accent, an unusual personality, a
memorable backstory, unusual clothes, or whatever. It is very hard for the jury to
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remember all the witnesses—you want to stand out! (But be careful not to undermine
your credibility.)

1. BUT…accent and/or character only help if they either enhance your credibility
or allow you to sneak in otherwise inadmissible information. Gimmicks for their
own sake never work.

E. Remember that your audience is the jury. When you are talking, you want to mostly
look at the jury. But don’t ignore the attorney (who is asking you the questions), or
robotically whip your head back and forth from attorney to jury. Just naturally shift your
attention from one to the other, as if you were having a conversation with a large group of
people.

II. Direct

A. Remember that you are supposed to stick to the contents of your affidavit on direct.

B. However, in practice most teams seem to be willing to make up helpful facts for their
witnesses, as long as the fact wouldn’t be worth impeaching over. To stay within the
spirit of the rules, don’t make up major / material facts; stick to relatively small things
that fill in logical gaps in the affidavits.

C. If you contradict your affidavit on direct, you will get hammered on cross.

III. Cross

A. There are two dangerous but attractive traps on cross:

1. Weaseling – trying to avoid admitting damaging or unflattering information

2. Arguing – trying to resist the other side’s attorney, or get the better of them

B. DON’T DO THESE THINGS. They destroy your score and your credibility as a
witness.

C. Answer honestly, clearly, and briefly (though of course you have your own angle on
the evidence, which may be different from that of the opposing attorney). Avoid the
temptation to argue or to explain yourself. Just answer the question asked.

D. Before you answer a question, wait a moment to give your attorney time to object.
(But don’t look at them, as if you’re expecting them to object. Just look at the crossing
attorney as if you’re gathering your thoughts.)

E. If you are getting hammered on cross, don’t panic. Just wait for your directing
attorney to save you on redirect. (But if they blow it, don’t try to coach them from the
stand. That will just highlight their failure for everyone in the courtroom.)
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F. If you lose your cool on cross, your team will lose the case.
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XI. CROSS EXAMINATION

A. The Point – You cross to:

1. Repair or minimize damage (to your case) done during direct examination.

2. Enhance your case by bringing out favorable information from this witness.

3. Detract from your opponent’s case by bringing out damaging information from this
witness.

4. Lay foundation for exhibits.

5. Discredit witnesses – You can discredit a witness by pointing out credibility or bias
issues. This should only be done when you have sufficient evidence to discredit, because
if you don’t, it makes it appear that you’re taking a cheap shot at a witness and you (the
attorney) will come out looking unprofessional.

B. The Rules

1. Stay Within Scope

a. On the first cross, you may raise any issues you want.

b. On subsequent re-crosses, you may only raise issues that were brought out on
the previous re-direct.

c. You may impeach a witness’s credibility at any time.

2. Only ask leading questions—questions that imply their own answer.

a. For example:

CROSSING ATTY: Doctor, you conclude in your medical evaluation that


Johnnie Doe’s vision loss is correctable through surgery, isn’t that right?

1) As you can see, the question begins with a statement and then asks the
doctor to confirm with a “yes” or “no” answer.

b. This is crucial. Mock Trial witnesses are free to invent facts on cross, as long
as they don’t contradict their affidavits. Asking an open-ended question is
inviting the other team to destroy your case.

c. If a witness does contradict their affidavit, your only recourse is to impeach


them. See Chapter XII.
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3. Get in, get what you need, and get out . Ideally, you should attempt to make three to
four crisp points and get out of there. Since witnesses can make up facts, and most judges
will let them explain themselves at times, a cross can end up severely damaging your
case theory. You must simply get the information you need and end the cross.

4. Only ask questions that you already know the answer to – Since witnesses can invent
facts, you should ask questions that will give you a specific answer that you already
know. Do not ask witnesses to explain themselves because you have no clue what they
will say. Remember, on cross, you are supposed to be in control the entire time; do not let
the witness take control, because he/she will damage your case.

5. Avoid objections or arguments on cross. They will tend to confuse or fluster you.

a. Ask short, direct questions. (Avoid compound or confusing questions.)

b. Be fair when questioning. (Don’t mischaracterize the witness’ direct testimony


or badger them.)

c. Get facts, not conclusions. You can draw the conclusions during the Closing
(when the witness can no longer sabotage you…). It will be tempting to try to
“corner” a witness and get them to concede your points (more on this below). But
nine out of ten times, you will lose this battle, and lose points for yourself and
your team.

No really: Do not ask a witness on cross to come to a conclusion, to


characterize anything, or to offer an opinion or judgment. That is fatal to
your cross. Ask only for facts, using only yes/no questions.

d. Phrase the questions so that the answers will make sense. If you ask “You
didn’t examine him, did you?”, what will it mean if the witness says “Yes”?

6. Insist on a responsive answer.

a. Point out (politely) that the witness has not answered your question, and ask it
again. It is important that you do not get flustered when a witness has not
answered your question. Remain professional and restate your question clearly.
Do not argue with the witness. Do not be snide or snotty with the witness.

ATTORNEY: Thank you for your answer. Now bringing you back to my
question...[ask your question again].

b. As a last resort only: ask the judge to direct the witness to give a responsive
answer.

(1) The judges want to see whether you know how to control the witness
yourself. Immediately objecting to the non-responsiveness of a witness
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will annoy the judge. It is not his or her job to perform your cross. If a
witness dodges two or three of your questions in a row, then it is OK to
ask the judge to direct the witness to answer your question, but do not
resort to this option too early.

ATTORNEY: Your honor, the witness is being non-responsive. Would the


court please direct the witness to answer the question.

C. How12

1. Establish a few basic facts.

2. Use your strongest arguments at the beginning and end of your cross.

a. The jury will likely remember only the beginning and end of your cross. So
begin and end with your two strongest arguments that advance your case theory
the most.

3. Scatter the order of your topics.

a. Part of a successful cross-examination is deceiving the witness. You do not


want to telegraph your intentions to them and have them anticipate and break
down your arguments. However, be sure to keep the topics in some sort of logical
order so the jury and judge do not get confused.

4. Avoid repeating the direct examination.

5. Make a good first impression and leave a lasting one.

a. Introduce yourself politely to the witness.

a. The jury is going to expect something interesting at the beginning of the cross-
examination. Your first few questions should be hard-hitting, strong questions
spoken clearly and with confidence. Avoid beginning your cross with
introductory comments such as “I am going to ask you a couple of questions” or
“I’d like to cover a few points from your earlier testimony.” This wastes time and
does not help your case. Also, end your cross with hard-hitting, strong questions.
Be sure to speak clearly and confidently.

6. Listen to the witness’s answer.

a. There will be times when the witness will say something that will surprise you
and that you need or want to address. Do not bulldoze your way through the cross
just asking prepared questions. Know what you want to get out, listen to their
answer, and ask again if you do not get the desired information. Crosses must
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remain flexible or else you will get flustered when the witness starts resisting you
or the judge rules against the relevance of a point you are trying to make.

7. Do NOT ask “the one-question-too-many.”13

a. It will be tempting to try to get the witness to lie or directly contradict him- or
herself on the stand by questioning them into a corner. However, avoid doing this
at all costs because it almost never works. Ask your questions in a way that lead
up to the killer question and stop there. Just suggest to the jury through your
questioning that the witness is lying. This way, you can address it in closing and
point out the inconsistencies for the jury without having to deal with the opposing
counsel objecting, or having the witness think of a clever answer that makes you
look bad and accusatory.

D. Recross

1. There is in principle no limit to the number of times you can recross a witness, though
each recross is limited in scope to whatever was raised on the previous redirect.

2. BUT…recross is almost never worth it. You rarely get anything of value, and
recrossing makes you look desperate.

3. If you are absolutely sure you can get one clear, very helpful answer, then do it. But
99% of the time recross will be a mistake.
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XII. IMPEACHMENT

A. Impeachment is discrediting a witness, so the finder of fact discounts their testimony.

1. Impeaching a witness does NOT mean that they have to stop testifying, or that they
can’t talk about certain issues. It just encourages the jury to distrust what they say.

2. Remember the difference between credibility and admissibility:

a. Admissibility is a legal issue—it’s about whether a particular piece of


evidence can be shown to the finder of fact at all. You argue admissibility
through objections and offers of proof.

b. Credibility is a factual issue—it’s about whether the finder of fact should


believe a particular piece of evidence or witness that they have already heard or
seen. You argue credibility through impeaching the witness or piece of
testimony.

3. Impeachment is about credibility, not admissibility.

B. The goal is NOT to get the witness to break down, or to have the jury rise up in indignation at
the witness’s dishonesty. Those things almost never happen (especially against good teams).
Rather, the goal is to sow seeds of doubt, which you will point out in your closing.

C. Rules

1. Only go after important points – The issue needs to move your case forward, either by
getting in excluded evidence or by seriously discrediting an otherwise harmful witness.
The vast majority of impeachments are not worth the time and effort.

2. Only go after real inconsistencies – Make sure the inconsistent statements cannot be
explained by a witness. If you impeach, the statements have to be actual contradictions,
not perceived contradictions or semantics problems.

3. Only impeach if you’re sure you can win – Botching or failing an impeachment will
dramatically hurt your credibility as an attorney.

4. Do not impeach information that will help your side – Simply put, if the inconsistent
statements help your case, do not impeach the witness.

5. Consider multiple impeachment, when a lot of little inconsistencies can add up to


making the witness look unreliable. If the witness has made many minor inconsistent
statements, you may take the approach of a multiple impeachment. This is when you ask
a series of unrelated questions that point out inconsistent statements. Be prepared for a
relevance objection if you ask more than two or three questions. Your goal here is to
simply make the witness look confused and not credible.
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6. Considering not impeaching at all, but simply pointing out the inconsistencies during
your closing.

D. Types of Impeachment

1. Prior Inconsistent Statement – A prior inconsistent statement is when the witness has
seemingly contradicted something he/she said earlier, either in direct examination or in
an affidavit. There are three steps to impeaching a witness under this type of
impeachment: recommit, validate, and confront.

a. Recommit – Get the witness to recommit to their previous testimony. The goal
is to emphasize the inconsistency of the witness’s two statements by getting them
agree to a prior contradictory statement.14

(1) Don’t paraphrase or reword: recite their testimony word for word. If
you paraphrase or reword, the witness will say that you misunderstood, or
have mischaracterized, their statements.

ATTY: Dr. Brown, you testified during direct examination that


you could not be 100% sure Johnnie Doe’s eye injury was from the
spit, correct?

b. Validate the witness’s prior statement – You want to establish that an


inconsistent statement was made by a witness.15 This will usually be in the form
of an affidavit or deposition.

ATTY: You submitted an affidavit in this case, correct?

ATTY: And in that affidavit, you discussed your conclusions, isn’t that
right?

ATTY: And those conclusions are a result of your medical evaluation of


Johnnie Doe’s eye, correct?

ATTY: At the time you submitted your affidavit, the conclusions from
your medical evaluation were fresh in your mind, correct?

ATTY: You read and signed your affidavit, isn’t that right?

ATTY: And you knew that you had up to 24 hours before your appearance
today in court to revise or correct your affidavit, correct?

You might also accredit the statement: point out why it is more credible
than the recent testimony. For example, perhaps the prior statement was
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part of an official report, or was made closer to the time of the original
incident.

c. Confront the witness with his or her previous statement – This is the last part of
an impeachment. You now want the witness to admit he/she has made an
inconsistent statement (but not necessarily “lied”).

ATTY: Dr. Brown, in your statement you said that you “could be 100%
sure” that Johnnie Doe’s eye injury was a result of the alpaca spit,” isn’t
that right?

(1) Do not ask the witness to read the statement aloud. Sometimes the
witness may not recall the statements, or would like to see the affidavit. If
this happens, you can read the portion of the affidavit out loud, but do not
let the witness read it. Ask them to follow along silently as you read out
loud. (This is all about maintaining control.)

(2) Then LEAVE IT ALONE. The inconsistency does the damage—don’t


try to the witness to admit they lied or were mistaken. It almost never
works.

(a) Do not ask the witness to explain the inconsistency.

(b) Do not ask the witness to acknowledge the inconsistency.

2. Impeachment for Omission – This type of impeachment deals with facts that were
omitted during previous testimony, but now come out during the present testimony. In
other words, the witness is adding facts to the story.16 Use the same basic framework:

a. Recommit:

ATTY: Mrs. Doe, you told us during direct examination that you had
signed a liability release for the Moores, isn’t that correct?

ATTY: You submitted an affidavit in this case, correct?

ATTY: And in that affidavit, you discussed your talks with the Moores
about safety and liability, isn’t that right?

ATTY: You read and signed your affidavit, isn’t that right?

ATTY: And you knew that you had up to 24 hours before your appearance
today in court to revise or correct your affidavit, correct?

b. Confront
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ATTY: Mrs. Doe, isn’t it true that in your affidavit you never mention
having completed a liability release?

3. Impeachment for Prior Conviction or other Prior Acts – You may impeach a witness
for previous convictions or bad acts, but be sure to take note of the time lapse provision
in the Midlands Rules of Evidence.

ATTY: Mr. White, you were once convicted of mail fraud, correct?

MR. WHITE: Yes.

ATTY: And that conviction was on May 25, 2001, isn’t that right?

MR. WHITE: Yes.

ATTY: Mail fraud is a felony, correct?

MR. WHITE: Yes.

ATTY: You were sentenced to two years imprisonment and four years probation,
correct?

MR. WHITE: Yes.

4. Impeachment for Impaired Perception or Recollection – You may impeach a witness


for anything that might have impaired their accuracy in recalling the events. Intoxication
is an example of something that may impair a witness’s ability to recall events. You may
also impeach on the grounds that the witness would not have been able to perceive what
they claim to perceive, for example due to poor eyesight or hearing loss.

5. Impeachment for Bias/Interest – This may include close relationships to the opposing
counsel or plaintiff/defendant that may cause the witness to give testimony that favors
his/her respective side. Be careful using this because sometimes it comes off as a cheap
shot at the witness and does not enhance your case theory.

ATTY: You and Mr. Doe have always been closed friends, correct?

ATTY: In fact, you have known each other for over twenty years, isn’t that right?

ATTY: You have also testified for him before in similar cases, correct?

ATTY: And now you are here today testifying for Mr. Doe once again, correct?

E. Semi-Impeachment
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1. There is a way to get most of the benefit of impeachment with little of the risk: the
semi-impeachment. Here’s what you do if you think a witness is contradicting their
previous statement:

a. Pick up their affidavit and turn to the relevant page but DO NOT say anything
about the affidavit.

b. Ask your question again, obviously reading and quoting from their affidavit,
but again DO NOT say that you are quoting or in any way refer to the affidavit.

ATTY: Dr. Moore, isn’t it true that you believe that alpacas “are unusually
aggressive animals”?

c. The point of this is that it telegraphs to the whole court and the witness that you
think the witness is contradicting some previous statement, and it tells the witness
that you are getting ready to impeach. It also lets you be doubly sure that their
affidavit really says that you think it says, and it tells the court what the witness
said previously. But it only works if you NEVER say a word about the affidavit.

d. If they still contradict their previous statement, and if the contradiction is so


obvious that there is no possible way they could explain it away, then go ahead
and impeach.
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XIII. OBJECTIONS

A. The Rules

1. Only object when something important to your case is at stake. Basically, there are two
reasons to object:

a. To prevent the admission of evidence damaging to your case.

b. To make a record of your request to the court to fix a perceived procedural


error, so that you can later use that error as the basis of an appeal. If you do not
object to a problem during trial, you cannot raise that problem during appeal.

2. Talk to the judge and ONLY to the judge. Do this even if the other attorney addresses
you directly.

3. Only the attorney directing or crossing the witness may object.

4. Your objection must be specific both as to the grounds for objecting and as to the
particular element of the evidence is objectionable. It may be, for example, that one part
of a document is objectionable, while the rest is admissible.

5. Remember the difference between admissibility and credibility:

a. Admissibility is a legal issue—it’s about whether a particular piece of


evidence can be shown to the finder of fact at all. You argue admissibility
through objections and offers of proof.

b. Credibility is a factual issue—it’s about whether the finder of fact should


believe a particular piece of evidence or witness that they have already heard or
seen. You argue credibility through impeaching the witness or piece of
testimony.

B. How to Object

1. Stand up and remain standing until the objection has been ruled on.

2. Object and briefly state your grounds: “Objection, your honor, hearsay.”

3. Wait for the judge to respond.

4. Ask to be heard (“Your honor, may I be heard?”) if you feel that further explanation
would be helpful. You will get one chance to explain in one sentence why your objection
should be sustained. If you can’t do it (even if you’re right about the point of law) you
will lose.
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5. If you win, and if the improper testimony has already been uttered, make a motion to
strike. This motion automatically includes a direction to disregard—do NOT make a
separate motion to have the jury instructed to disregard. When it’s over, say “Thank you,
your honor.” Then sit down.

6. If you lose, say “Yes, your honor” and sit down. Do NOT say “thank you.” Do NOT
argue any further. Do NOT sigh loudly. Just sit down and shut up.

C. How to Respond to Objections

1. Wait for the judge’s cue or invitation to respond. Sometimes the judge will rule on the
objection right away, if it is obvious.

2. If appropriate, ask to be heard. If the judge does rule against you immediately, ask to
be heard. If the judge allows you to speak, you have one chance in one sentence to
explain why you think the evidence is admissible. Respond specifically, citing the
grounds for admissibility.

3. If you lose, cure the objection (ask the question a different way, try to get the
information in on limited grounds, etc.).

4. Losing an objection is NOT the end of the story. Try to get the information in another
way.

D. After the Ruling

1. Proponent Loses – cure the objection

2. Proponent Wins – make sure you get the information you asked for

2. Opponent Wins – makes sure the information does not sneak in

3. Opponent Loses – try another tactic to keep the information out

E. Offers of Proof – Appeals courts will only look at evidence introduced during the original
trial. If you are prevented from introducing evidence that you think was admissible, and that
would have been helpful to your case, you need to make an offer of proof to preserve the issue
for appeal.

1. Ask the judge for permission to make an offer of proof.

ATTORNEY: Your honor, may I briefly make an offer of proof?

JUDGE: Yes, go ahead.


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2. Then say briefly what useful facts the excluded question, document, etc. would have
introduced.

ATTORNEY: Your honor, if this witness had been allowed to answer the
question he would have testified that… That piece of evidence would have helped
to establish the first element of my case, which is that…

3. Although this isn’t really necessary in mock trial, where there will be no appeal, an
intelligent use of an offer of proof will impress the judges.

F. These are the most common objections:

1. Argumentative – This can mean two different things. It can either be a synonym for
Harassing or it can mean that the question makes an argument—that is, that it proposes
how facts fit together, rather than asking for the witness to relate new facts.

2. Harassing – when the question abuses or insults the witness, or seems intended to
provoke the witness

3. Asked and Answered – question has been asked by this attorney and answered by this
witness

4. Vague or Confusing – wording of question makes it hard for witness to understand or


answer it, or would make the import of the witness’ answer unclear

5. Calls for Speculation – When the question calls for the witness to provide information
that they do not or could not reasonably have.

6. Prejudicial – When the evidence is relevant and admissible, but is so likely to be


prejudicial to one side or the other that its evidentiary value is outweighed.

a. Example: The jury may not need to see accurate photos of a grisly auto accident
to determine who was legally responsible.

7. Hearsay – See the main section on Hearsay elsewhere in this document.

8. Hearsay Within Hearsay – See the main section on Hearsay elsewhere in this
document.

9. Unqualified Opinion – This is also complicated. In general, lay (non-expert)


witnesses cannot offer their opinions in testimony, except when their opinion is rationally
based on their own experience or knowledge, and is helpful to understanding their
testimony or the ultimate question of the case. Duly qualified expert witnesses can offer
an expert opinion about a matter in the area of their expertise, but about which they do
not have first-hand knowledge.
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10. Leading (on direct) – When the question suggests an answer.

11. Narrative – When the question basically invites the witness to tell their story, rather
than to answer specific questions. You can also raise the same objection to a witness’
answer, even when the question was appropriate.

12. Beyond the Scope – On redirect and recross, the questions can only relate to
material raised during the previous round of testimony. If they go beyond that, you can
object that the question is beyond the scope of the examination. The only exception is if
you are trying to undermine the witness’s credibility.

13. Relevance – The information requested is irrelevant to the issue to be decided by the
trial.

14. Lack of Personal Knowledge – In essence, this is another version of Speculation.

15. Assumes Facts Not in Evidence – The question assumes that certain facts are true,
but those facts have not been introduced at trial.

16. Authenticity – the authenticity of an exhibit has not been established

17. Lack of Foundation – adequate foundation for the evidence has not yet been laid

18. Violates Best Evidence / Original Documents Rules

19. Misstates Evidence / Misquotes the Witness

20. Improper Characterization – when the opposing counsel introduces his or her own
characterization of something into a question

a. “He was like a frenzied dog, wasn’t he?”

21. Nonresponsive – When the witness, on cross, isn’t answering the question.

22. Compound – When the question contains more than one question or issue, so that it’s
hard for the witness to tell what is being asked.

23. Cumulative – The question asks for information that has already come out during this
examination, and the overall examination is going in circles.

24. Too General – The question is so general that it invites the witness to introduce
irrelevant information.

25. Incompetent Witness – The witness is not competent to testify as to the matter
asked about. For practical purposes, this is the same as unqualified opinion.
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26. Inadmissible Parol Evidence – The evidence being offered is extrinsic evidence
(something that happened outside of the courtroom) that allegedly modifies the terms of a
contract, but is not part of the contract itself. Parol evidence is generally not admissible.

27. Corpus Delicti Not Proved – The prosecution has not established that any crime was
committed. The D’s out-of-court confession is not enough. (You’ll never use this one in
MT.)

G. The Best Defense is Preparation

1. The best way to win objections to your questions or testimony is to avoid them in the
first place. Lay foundation in advance, not in response to objections.

2. The best prepared attorneys make a list of the information they want to elicit from each
witness, and then make a note for each piece of information explaining why it is relevant
and why it is admissible.

H. Common Confusions -- Speculation vs. Unqualified Opinion vs. Lay Opinion vs. Irrelevant
Testimony

1. Speculation -- Testimony is speculation if it asserts something that the witness does


not know from his or her own observations (or that no one could possibly know from
ordinary human observations). One very common version of speculation is when a
witness asserts that s/he knows what someone else was feeling or thinking. Since you
can't really know what's in someone else's head, you can't testify to these kinds of things.
What you can do is testify to your observations, possibly including what you have heard
someone say (assuming you can get past the hearsay problem).

2. Unqualified Opinion -- An unqualified opinion is when a witness testifies to


something that only an expert could know, and the witness is not an expert in the
relevant area of knowledge.

3. Lay Opinion -- A lay witness may offer opinion testimony when it is rationally based
on his or her actual observations and is likely to be helpful to the finder of fact. Note that
this does not solve problems of speculation, irrelevancy, or unqualified opinion. See
examples below.

4. Irrelevant Testimony -- When otherwise admissible testimony is not helpful to


deciding the factual questions in the case at hand.

5. Here are some examples to illustrate the differences:

a. A witness says "I just bought my first pack of Tarot cards. I don't really know
how to use them, but I cast John's fortune, and that's how I know he murdered
Sue." At first glance, it might look like this is unqualified opinion, since the
witness is not an expert in fortune telling. But of course no one is an expert in
Cal Poly Mock Trial Textbook 124

fortune telling, so this is really speculation: the witness has come to a conclusion
on the basis of something other than making rational connections among his or
her own observations. It is inadmissible--there is no cure for this problem.

b. A witness says: "I've spent so much time with John and Sue, I'm sure that they
were very much in love. John could never have killed her, especially not in that
gruesome manner!" This is also speculation--the witness is drawing conclusions
with no rational basis in his or her observations. Many people try to solve this by
having the witness state this as an opinion: "It's my opinion that John and Sue
were very much in love." But that cure won't work, because the witness' opinion
is irrelevant--knowing what this witness believes (based on nothing rational) does
not help the finder of fact determine what really happened. The only cure here is
to have the witness testify to his or her actual observations ("Every time I saw
them together, which was almost daily, they were holding hands and smiling at
each other.")

c. A doctor testifies "I'm sure that his broken leg led to his bankruptcy." This is
unqualified opinion because although some expert (a forensic accountant) could
determine what led to someone's bankruptcy, this witness is not an expert in the
relevant area of knowledge.

I. AMTA Rules

1. If the only way for you to object to something that is happening is to cite an AMTA
rule, you have a problem. There are two steps to follow:

a. WITHOUT MENTIONING AMTA, say something like “Your honor, the


jurisdiction of Midlands doesn’t permit [objectionable thing here.]”

b. If it’s important, and if the first step didn’t work, tell the judge and other team
that you believe a rules violation has occurred and that you wish to involve the
tournament officials. Then send someone to the Tab Room immediately to get an
official to resolve the issue. The person who goes to the Tab Room must be able
to succinctly explain the problem.

(1) Do not do this for anything less than a major violation of the rules that
seriously affects your ability to win the case. If you do it for something
minor, the official will be mad.

(2) If possible, keep the case moving along until the Tab Room official
arrives.

J. Limiting Instructions

1. If you cannot keep a damaging bit of testimony out, you can request a limiting
instruction (for example, that the jury be reminded that the testimony is non-expert
Cal Poly Mock Trial Textbook 125

opinion, or that Dr. Brown is an ophthalmologist but not an emergency room doctor, or
whatever).
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XIV. CLOSING ARGUMENTS

A. The closing is your chance to tie together the evidence, reiterate your theme, and argue for
your preferred interpretation of the evidence and law. Remember that this is your last chance to
present your case to the jury, so your argument needs to be clear, concise, and credible. You
need to be confident that the evidence your side presented is enough to meet your desired
outcome, and the jury needs to see that confidence. Remember that closings need to be flexible
because the facts and evidence of each trial are different; therefore, do not memorize every piece
of your closing. Have a general idea of what you want to say, and fill in the specifics as the trial
happens.

1. The opening statement and the closing argument are like bookends. The opening tells
the jury what to expect, and the closing puts the pieces together into a persuasive story. It
is URGENT that you work closely with the person who will deliver your team’s opening
statement. The opening and closing must have the same theory, the same theme, and
must tell essentially the same stories about the witnesses, the facts, and the law.

B. These are some practical suggestions about how to do that:

1. Use the theory and theme to structure the closing – One of the most important pieces
of your closing is presenting your theory of the case to the jury. You must show how
you proved your theory. Utilizing your theme and clearly stating your theory of the
case gives you a framework for how the rest of your closing should go. State your theory
up front, and repeat your theme several times (do not go overboard) so that jury knows
exactly the point(s) you think are important.

2. Argue – Don’t just summarize the evidence; explain its significance.

a. Draw inferences and conclusions – Since not every fact you want to prove was
explicitly stated during the trial, you must draw inferences from the testimony and
exhibits in order to prove your points. Remember that the jury will likely not
remember everything about the testimony and/or the exhibits, so it is especially
important that you be clear when you draw inferences and conclusions.

b. Bring together circumstantial evidence and disparate details – Providing details


enhances your argument. You will want to provide enough so that the jury is
convinced, but not so much that the jury is overwhelmed by the details of the
case. Speaking in generalities is weak and unconvincing. Therefore you must
refer to the details of the case.

3. Use analogies and allusions to clarify your arguments – Sometimes the details of the
case are so complicated that giving them point blank will simply confuse the jury. In this
case, use analogies, allusions, and stories to help prove your point. However, be sure your
analogy or story is not long and confusing. These are best when they are short and to the
point.
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4. Highlight the undisputed facts – Since these are facts that the opposing side has not
attempted to dispute, emphasize them as proven fact. Another benefit is that undisputed
facts may help legitimize evidence or testimony that was in dispute during the trial. If
this is the case, point it out!17

5. Invalidate the opposing witnesses’ testimony – Take time to tell the jury why the other
side is wrong and then use testimony and evidence to corroborate your claims. Make
sure when refuting the opposing counsel you have something to back it up. Making
logical leaps and using weak inferences only hurts your credibility in the eyes of the
jury.

6. Draw conclusions from your cross examinations – Remember during cross how you
refrained from asking that “one question too many?” This is the time to address that
question and draw the conclusion you wanted to. Except this time, there is no attorney to
object to your conclusion, or witness to weasel out of your question.

7. Argue the credibility of witnesses – You may use your closing argument to question
the credibility and motives of the opposing side’s witnesses. Point out inconsistencies in
testimony and why the opposing witness should not be believed. Also, if the opposing
witness was hired to give a specific opinion, make sure you point that out to the jury.

8. Argue for the weight that the jury should give to evidence – Use your closing to argue
to the jury why your version of the evidence is correct. Also, use it to argue why less
emphasis should be given to your opposing side’s interpretation.

9. Discuss opposing witnesses’ demeanor during examinations – If a witness was


constantly unresponsive to your question or clearly combative, use your closing to point
that out. Remind the jury that these are traits of untrustworthiness and unprofessional
character.18 Remember, though, that it had to clear and observable to the jury and judge.
If not, it will appear as if you are grasping at straws to smear the witness.

10. Discuss your weaknesses – Even though the closing is your time to argue why your
theory is better, be sure to point out weaknesses in your case. In mock trial, every case
theory will have holes and the jury will feel you are honest if you are upfront with
weaknesses. Also you are potentially mitigating the effect of your opponent calling out
your weakness in his/her closing.19

11. Comment on the promises made throughout the trial – If you made a promise during
opening statement and delivered on it show the jury how you delivered. Likewise, if your
opponent made a promise during their opening, and failed to deliver on it, exploit that.

12. Argue damages (where relevant and permitted) – During a civil case, argue for
liability and the amount of money you are seeking, but only if the case file permits it.
Usually, you will just be arguing liability. During a criminal mock trial, argue guilt.
However, if you are arguing the penalty phase of a criminal trial, you need to argue for
the penalty. Be sure you back these claims with evidence and testimony from the trial.
Cal Poly Mock Trial Textbook 128

13. Apply the law (elements, cases, burden of proof) – If there are certain elements that
need to be met in order to establish guilt or liability, be sure to cover each one clearly
and in detail. Furthermore, you will need to remind the jury of the burden of proof in
your trial (i.e. preponderance of evidence in civil and beyond a reasonable doubt in
criminal).

C. Start strong and end strong. Like opening statements, the jury will remember the first ninety
seconds and the last ninety seconds the most. So you will need to open big and end with a bang.
Be sure the beginning and ending of your closing are delivered confidently and strike a moral
and ethical chord with the jury.

D. Do Not:

1. Do not misstate the evidence.

2. Do not misstate the law.

3. Do not misuse evidence.

4. Do not appeal to the fact-finder’s personal interest (for example, don’t ask them to put
themselves in someone else’s shoes). It is important to explain to the fact-finder how
ruling on this case will affect them and their community. But remind the jury they must
decide in accordance with the law and not their own personal beliefs.

5. Do not appeal to emotion, sympathy, or passion – The jury needs to know why the case
is important, and why their decision matters to them and their community. But you
should not attempt to sway their decision based on emotional arguments or appeals (for
example, asking them to take pity on a defendant because of the defendant’s lousy
childhood).

6. Do not comment on privilege (especially a criminal defendant’s failure to testify).

E. Model Closing – Here’s a complete model closing, designed to bookend the model opening
presented earlier:

May it please the court?


Your honor, opposing counsel, ladies and gentlemen of the jury, Dr. Matthew Moore was
Too Busy To Be Careful.
On the morning of January 7, 2008, Dr. Matthew Moore failed to properly lock his alpaca
gate. His alpaca escaped from its cage, posing a threat to anyone in the vicinity. Unfortunately,
Johnnie Doe was the first person to encounter the alpaca, and the animal attacked, spitting into
Johnnie’s eye and blinding him permanently. This tragic incident could have been avoided
entirely if only Dr. Moore had locked his gate, but he was Too Busy to Be Careful. Today, ladies
and gentlemen, we ask that you hold him responsible for his negligence, and order him to pay for
the harm he caused to Johnnie Doe.
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You heard from my co-counsel, ___________, that the plaintiff bears the burden of
proof in this trial. And we have met that burden; we have proved to you by a preponderance of
the evidence, more likely than not, four elements.
First, we proved that Dr. Moore had a legal, and an ethical, duty to keep his property free
from hazards that might harm visitors. The law requires this of all of us, and common sense does,
too. You heard from both Johnnie Doe and Mr. Sam Smith that Dr. Moore had invited Johnnie
to visit the alpacas any time—Dr. Moore knew that Johnnie could be a visitor on his property at
any time, without notice. He had a legal duty to keep his property free from hazards.
Second, we have proved that Dr. Moore breached that duty—that he did not do what he
was supposed to do. It’s true that no one today testified to having seen Dr. Moore fail to lock the
alpaca gate. But as you have seen, that is the only reasonable explanation for what happened
later. Dr. Moore admits that he fed the alpacas that morning, and that he had to open the gate to
do so. He admits that if the gate were left unlocked, the alpacas could easily escape. He admits
that he does not have a clear and distinct memory of locking the gate, but believes that he did so
because he is habitually careful about such things.
Yet you have heard from Mrs. Moore that she was home all day and never saw any other
person near the alpaca gate until she noticed Johnnie Doe come over around 4:00 pm. We have
no reason to believe that anyone other than Dr. Moore operated the gate that day. Dr. Moore’s
attorneys have tried to convince you that it was Johnnie himself, the victim in today’s case, who
unlocked the gate and brought this harm upon himself. You have heard both Johnnie and his
older brother Frank deny those scurrilous accusations, and you have seen from photographic
evidence that the locking mechanism is unusually far off the ground, so high in fact that Johnnie
would have had to stand on something to reach it. Yet no one saw Johnnie standing on anything,
and there was nothing suitable to stand on—no ladder or box or large rock—within 25 feet of the
gate. Furthermore, you have heard from both Ms. Dinah Washington and Mr. Sam Smith that Dr.
Moore’s alpacas have escaped in the past on several occasions. You have also heard that Dr.
Moore has always attributed those escapes to the work of vandals opening the gate. He has never
been willing to take responsibility for his own negligence, even now, when it has finally harmed
someone.
We also proved to you today that Johnnie Doe suffered a severe injury on the day in
question. Dr. Brown has testified that he examined Johnnie’s eye only an hour after the incident,
and that the eye was already so damaged that Johnnie’s sight could not be saved. Dr. Brown
found no evidence of other trauma to the eye, and came to the professional , medical conclusion
that the injury was caused by some acidic chemical. He later learned that alpaca spit is unusually
acidic, and he concluded that the spit probably caused the injury.
Finally, we have proved to you that Dr. Moore’s breach of his duty to Johnnie Doe
caused Johnnie’s harm. Dr. Moore’s attorneys tried to convince you that Johnnie’s eye had been
damaged the day before when he was hit in the eye by a baseball. However, the testimony of Dr.
Franklin was riddled with holes and assumptions. Dr. Franklin did not examine Johnnie until
nearly a year after the incident, and Dr. Franklin is involved in this case only because she is
being paid by Dr. Moore to support his claims. The more credible evidence is that presented by
Dr. Brown, who found that that acidic alpaca spit was the only probable cause of Johnnie’s
injury. Further, even Dr. Moore admits that if the alpaca had been properly confined in its cage,
the plexiglass spit guards would have prevented the beast’s saliva from reaching anyone outside
the cage. If the alpaca had been in its cage, Johnnie would not have been injured. And the alpaca
would have been in its cage, if Dr. Moore had not been Too Busy to Be Careful.
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You heard Dr. Moore himself admit that on the morning in question he was rushed and
distracted because he was trying to finish writing a scholarly article. He desperately needed to
finish and publish that article, or he would lose his job. If he lost his job, he and his family would
be penniless, and he would have lost all his remaining self-respect. I’m sure we can all
sympathize with how difficult that situation must have been, but it does not relieve Dr. Moore of
his duty to Johnnie Doe. All of us are sometimes busy, but it’s inexcusable to be Too Busy to Be
Careful with someone else’s health and well-being.
Ladies and gentlemen, we have proved our case beyond a preponderance of the evidence.
Dr. Moore had a duty; he breached that duty; Johnnie Doe suffered harm, and that harm was
caused by Dr. Moore’s breach of his duty. Dr. Moore is legally liable for Johnnie’s injuries.
I’ve already mentioned some of the ways in which, even today, Dr. Moore is still trying
to avoid taking responsibility for his actions. His attorneys argued that he did not have a duty to
Johnnie Doe, because Johnnie was not an invited guest on his property. Dr. Moore claims that
although he had issued many open invitations to Johnnie in the past, he had more recently told
Johnnie that he was not welcome without adult supervision. Dr. Moore claims that he had
become concerned that Johnnie would tease the alpacas, and that he might try to open the gate.
Yet while you have heard ample evidence about the invitations, you have only heard from Dr.
Moore about this alleged change of heart. Did Dr. Moore contact Johnnie’s parents to express his
concerns? No, he did not. Did he put up a No Trespassing sign on his property? No, he did not.
Did he put this alleged ban on unsupervised visits in writing? No, he did not. And the reason
that there is no evidence of this alleged dis-invitation, ladies and gentlemen, is because it never
happened. Dr. Moore lied to you today to cover up his own negligence.
In addition to denying that he had a duty to Johnnie Doe, Dr. Moore also denies that there
was a breach of any such duty. We ‘ve already discussed his far-fetched explanation that some
vandal must have unlocked the gate, or that Johnnie himself did so. No one other than Dr. Moore
himself was seen unlocking the gate that day. Two people saw Johnnie enter the yard, and no one
saw him even touch the gate before the alpaca attacked. Dr. Moore himself admits that he cannot
clearly remember locking the gate, but “assumes” that he did so, because he “always” does. Yet
Mr. Smith and Ms. Washington have both told you that Dr. Moore’s alpacas have escaped on
many previous occasions.
Dr. Moore wisely did not deny that Johnnie Doe has suffered harm, since anyone can see
that his scarred and discolored eye will never be capable of sight again. But Dr. Moore did deny
that the harm was caused by Dr. Moore’s negligence. As we’ve already discussed, Dr. Moore
argued that Johnnie’s injury was caused by a baseball, but a comparison of the medical
testimonies from Drs. Brown and Franklin will reveal to you that this baseball theory is merely
grasping at straws. Dr. Brown, the only doctor who examined Johnnie on the day of the incident,
came to the professional, medical opinion that Johnnie’s injury was caused by the alpaca’s acidic
saliva.
Dr. Moore had a duty; he breached that duty, and Johnnie Doe suffered harm because of
Dr. Moore’s breach of that duty. Dr. Moore was Too Busy to Be Careful, and Johnnie Doe
suffered the tragic consequences. Please make Dr. Moore pay for his negligence, by finding him
liable for Johnnie’s injuries and ordering him to pay $1,000,000 in compensation. Thank you.
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XV. COMPETITION

A. Before the competition

1. Ultimately, mock trial is about winning judges’ ballots. You win based on
performance, not on substantively winning the case.

2. Do not make assumptions about other teams’ strategies. Teams will deliberately use
unusual or even perverse strategies to throw you off, since you may not be prepared for
them. You have to be prepared for them to call any possible combination of witnesses.

3. Changes to the Case – AMTA releases several rounds of case changes each year:

Mid-August – case released

October (usually) – corrections to the case to fix errors

December (usually) – corrections to balance the case between the P and D (based
on the results of fall invitationals)

March (usually) – pre-championship changes to freshen the case

4. Look the Part – Let’s be honest: how your team looks will affect your score. You want
to look as professional as possible. Attorneys should wear conservative suits and polish
their shoes. Witnesses should dress appropriately for their parts. You should have all
exhibits labeled (numbers for P, letters for D) and in report covers. You should have
professional-looking demonstratives. You should carry your files in professional-
looking file boxes (get these from Prof. Moore).

B. Captains’ Meeting

1. The first step of each trial is the captains’ meeting, where the two teams pick
witnesses, reveal the genders of witnesses, show each other demonstratives, complete
the judges’ ballots, exchange character evidence forms, and so on.

a. Only the captains should attend the captains’ meeting. It is URGENT that you
show up on time. It’s best to be early. If you are late, the AMTA rep can impose a
variety of penalties, including letting the other team pick your witnesses for you
(it happened to one of our teams).

b. The captains’ meeting is part of the competition, and you need to approach it
that way. The other team may try to psyche you out, or to get information about
your trial strategy. Keep the meeting businesslike and brief. Be sure to complete
the ballots fully, and to exchange character evidence forms (if relevant).
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c. Ask whether they plan to use any demonstratives during opening; if so, and if
they’re objectionable, tell them so at the captains’ meeting and explain that you
plan to raise your objections during pre-trial.

d. Assert and seek agreement that the moving party (plaintiff or prosecution)
should have the first chance to raise pre-trial matters with the judge, and that the
defense will go second. If they don’t agree, don’t sweat it—but see below for how
to deal with this.

2. The rest of the team should go to the courtroom and prepare. Once the captains’
meeting has begun, the competition has begun. Do not let the other team see you
practicing or being nervous—it will lead them to think that you are not well prepared. Do
not practice your parts, talk about how nervous you are, etc. Just go sit quietly in the
courtroom, arrange your notes or props, and otherwise get into character.

C. How to Set Up a Courtroom

1. Here’s a diagram of how a courtroom should be set up. If it doesn’t look like this when
you arrive, set it up right away. (If the presiding judge is already seated, ask for
permission to arrange the courtroom.)

witness
Bench box
(presiding judge)

the well of the courtroom


Jury Box
podium
(scoring
Defense Plaintiff/Prosecution judges)

D Witnesses P Witnesses

2. If there is a jury box, the P gets the table closest to it. If there is not a jury box the P
gets the table to the judge's left.

D. Pre-Trial

1. There is no formal pretrial aspect to college Mock Trial (unlike high school, which
does have formal pretrial activities). But in fact the things that happen before the trial
begins are crucial to your team’s score.
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2. Enter and leave the courtroom together, as a team. This impresses both the judges and
your opponents.

3. Stay in character from the start of the captains’ meeting until the judges’ ballots have
been taken to the tab room by the timers. This includes during breaks.

4. Attorneys

a. Move non-controversial items into evidence during pre-trial.

b. Raise any objections to demonstratives they plan to use during opening; you
cannot object during the opening itself.

c. If the defense seizes control of the pre-trial process, wait politely with a
bemused look on your face; then when it’s finally your turn, very sweetly say
something like “Although it’s traditional for the moving party to raise pre-trial
matters first, my eager colleague on the defense has already raised most of the
issues I would have brought up. However, there are a few additional matters…”

(1) This shows that you know the rules better than they do, and that they
did something rude, without you actually being snide about it.

E. During Trial

A. Attorneys

1. Co-counsel need to actively help the person doing a direct or cross, for
example by taking notes of issues that come up, or by getting exhibits or
affidavits ready to hand to them.

2. Judges have different styles and preferences. Literally one judge will tell you to
stop doing X, and the next judge will ask why you never did X. You have to pay
attention to the judges and try to figure out what they want. There is no single
right way to approach a judge.

B. Witnesses

1. You must stay in character for the whole trial, including breaks. Seriously: if
you’ve been reading a book in the back for 2 hours and then suddenly get into
character, the judges will give you a lower score than if you have been in
character and paying attention the whole time.

C. Time Keepers
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1. You must develop and use a set of signs and hand signals to let your team know
how much time they have left for the various segments of the trial. Work this out
and practice with it in advance.

2. Teams often leave timekeeping up to whoever is free during a trial, and often
that person has never done it before. This is a mistake. Good timekeeping takes
real work, and getting good at it takes practice. You should have people assigned
to be timekeepers (not all the time, but for one side or the other, when they’re not
playing an active role), and they should have gotten a lot of practice before you go
to regionals.

3. Finally, the judges notice the timekeepers. If you look bored, or are goofing off,
it will hurt your team. The timekeepers are integral parts of their teams, and will
affect their teams’ scores.

D. Everyone Else

1. During the entire trial, including breaks, you may not speak to anyone who is
not participating in the trial. That includes other members of your team, any
friends or family, or your coach.

2. Everyone at an AMTA competition who is not competing during any given


round is subject to being drafted for a bye-buster team.

F. Spirit of AMTA

1. At the end of AMTA competitions, the teams all vote for the team they thought were
the best sports—this is the “Spirit of AMTA” award. It’s a nice thing to win. Previous
teams say: be nice (but not too nice...).

2. There can sometimes be some trash talking in MT, especially off-site (like at Denny’s).
Don’t participate—just walk away. Even if they started it, you could still get your team
disqualified if things get out of hand (even just verbally).
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XVI. SCRIPTS: How To Do Things in a Courtroom


1. Refreshing a Witness’ Memory By Showing Them Their Affidavit

2. Witness Identification of Defendant

3. Introducing a Stipulated Fact

4. Going Back to Fill in Details in Testimony

5. Foundation for Eyewitness Testimony

6. Foundation for Testimony About In-Person Conversations

7. Foundation for Telephone Conversations

8. Foundation for Prior Identification

9. Foundation for Habit/Routine Testimony

10. Foundation for Testimony About Past Misconduct

11. Foundation for Hearsay, Non-Hearsay, and Exceptions to Hearsay (has many sub-sections)

12. Foundation for Testimony About a Reputation for Untruthfulness

13. Introducing an Exhibit (has many sub-sections)

14. Foundation for Specific Kinds of Exhibits (has many sub-sections)

15. Refusing a Witness’s Offer to Explain Something on Cross

16. Precise Questioning of a Witness on Cross

17. Impeachment For Prior Inconsistent Statement

18. Impeachment for Omission

19. Impeachment for Prior Conviction

20. Impeachment for Bias/Interest

21. Direct Examination of an Expert Witness

22. Challenging / Impeaching an Expert

23. General Format for Raising an Objection

24. Voir Dire of a Witness

25. Motion to Strike Testimony

26. Five things you need to do at the beginning of every trial.


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27. Making an Offer of Proof

28. Discussing Case Law in Opening/Closing

29. Retrieving an Exhibit From a Witness

30. Excusing a Witness

31. Making a Non-Responsive Objection

32. Repeating a Question on Cross

33. Asking Permission for a Witness to Step Down to Approach a Demonstrative

34. Noting a Non-Verbal Action for the Record

One general note: These scripts just tell you what to say. If they indicate that you are also doing
something, you should do it.

1. Refreshing a Witness’ Memory By Showing Them Their Affidavit

ATTY: Mrs. Doe, do you recall what time it was when little Johnnie came running into
the kitchen?

MRS. DOE: I remember that it was late afternoon, but I can’t off the top of my head
recall the exact time.

ATTY: Mrs. Doe, did you prepare an affidavit regarding your experiences on that day?

MRS. DOE: Yes, I did.

ATTY: Did you include in that affidavit the exact time of the incident?

MRS. DOE: Yes, I did.

ATTY: Would it help refresh your memory if you were to have an opportunity to review
that affidavit now?

MRS. DOE: Yes, it would.

ATTY: Your honor, permission to approach opposing counsel?

JUDGE: Granted.

ATTY: Let the record reflect that I am showing opposing counsel what has previously
been marked as Plaintiff Exhibit 4.

ATTY: Your honor, permission to approach the witness?


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JUDGE: Granted.

ATTY: Mrs. Doe, do you recognize this document?

MRS. DOE: Yes, this is the affidavit I prepared for this case.

ATTY: And is this a complete and accurate copy of your affidavit?

MRS. DOE: Yes.

ATTY: Please take your time reviewing the affidavit to refresh your memory about the
exact time of the incident.

2. Witness Identification of Defendant

ATTY: Mr. White, do you know what the defendant in this case, Dr. Matthew Moore,
looks like?

MR. WHITE: Yes, I deliver mail to his house every day and see him frequently while
delivering the mail.

ATTY: Mr. White, do you see the defendant in the courtroom now?

MR. WHITE: Yes.

ATTY: Would you please identify him for the court, by identifying where he is located
and what is wearing?

MR. WHITE: He is sitting over there [pointing to defense table] and he is wearing a blue
collared shirt with khaki pants.

ATTY (TO JUDGE): Your honor, let the record reflect that the witness, Mr. White, has
identified the defendant, Dr. Moore.

JUDGE: The record so reflects

3. Introducing a Stipulated Fact

ATTY: Mrs. Doe, how many visits to the doctor did your son make?

MRS. DOE: He made approximately five visits.

ATTY: Were these visits expensive?

MRS. DOE: Yes, especially since we do not have health insurance.


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ATTY TO JUDGE: At this time, your honor, I request permission to read a stipulation
out loud for the jury.

JUDGE: Request granted.

ATTY: I am reading stipulation number two: “Both parties agree that the medical bills
for the plaintiff amount to $10,000.” So stipulated, counselor?

OPP. COUNSEL: So stipulated.

4. Going Back to Fill in Details in Testimony

ATTY: Dr. Moore, let’s fill in some details about your morning gate checks on your
alpaca pen. What kind of fencing is the alpaca pen made of?

DR. MOORE: The pen is a chain-link fence with live electrical wires that keep
Tuckerman away from the fence.

ATTY: Was the gate check on the morning of the incident normal?

DR. MOORE: Yes, just like every other morning. Everything checked out fine. I found
no breaks in the fence, the latch worked fine, and the lock was secured when I left to go
back inside the house.

5. Foundation for Eyewitness Testimony (that the witness was present)

ATTY: John Doe, do you remember what, if anything, happened on January 7, 2008?

DOE: Yes. It was a day I’ll never forget.

ATTY: Where were you on that day?

DOE: I was in Atascadero, California playing with my neighbor’s pet alpacas.

ATTY: Where are your neighbor’s pet alpacas located?

DOE: They are located in his yard, in a special pen, which is next to my backyard.

ATTY: Approximately what time were you playing with the Alpacas?

DOE: After school, around 3:30 PM.

6. Foundation for Testimony About In-Person Conversations

ATTY: Did you tell your mom what had happened?


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DOE: Yes I did.

ATTY: When did you tell her?

DOE: As soon as I got home. Around 4:15 in the afternoon.

ATTY: Where did this conversation take place?

DOE: In the kitchen.

ATTY: Was your mom the only person to hear about what happened in that
conversation?

DOE: Yes, nobody else was present.

7. Foundation for Telephone Conversations

ATTY: Did you tell your mom what happened?

DOE: Yes, I called her on my cell phone immediately after Tuckerman spit in my eye.

ATTY: How did you know it was your mom on the other line?

DOE: She is my mother and I recognize her voice. I call her all the time to pick me up
from friends’ houses or the movies.

8. Foundation for Prior Identification

ATTY: Mr. Pink, were you able to see John Doe leave Matthew Moore’s yard?

MR. PINK: Yes I was. I was walking up to Mr. Moore’s front door to drop off a pie when
I saw John Doe, in clear view, running across the yard.

ATTY: About how far away were you from John Doe?

MR. PINK: I would say about twenty feet away.

ATTY: Would you recognize John Doe if you saw him again?

MR. PINK: Yes I would.

ATTY: Is he currently in this courtroom?

MR. PINK: Yes he is. He is sitting right over there [points to plaintiff’s table], wearing a
red t-shirt and jeans.
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9. Foundation for Habit/Routine Testimony

ATTY: How long have you known the defendant?

MRS. MOORE: We have been married for two years and dated for three years prior to
that.

ATTY: Have you ever witnessed your husband tend to the alpaca pen?

MRS. MOORE: Yes, once a week at least. He does a weekly check for any potential
dangers in the pen.

ATTY: Does your husband usually lock the alpaca pen?

MRS. MOORE: Yes, all the time. Whenever he is not in the pen with the alpacas, he uses
a heavy-duty padlock to lock the gate. It’s routine.

ATTY: How long has this been a routine?

MRS. MOORE: Ever since we have owned alpacas, and that would be four years so far.

10. Foundation for Testimony About Past Misconduct

ATTY: Mr. Yellow, what is your occupation?

MR. YELLOW: I am the owner of an anarchist bookstore.

ATTY: Have you employed the defendant, Matthew Moore, before?

MR. YELLOW: Yes, yes, many years ago.

ATTY: How did his employment go?

MR. YELLOW: Very well, until he left the door unlocked one night when closing the
store.

ATTY: Did anything come of that?

MR. YELLOW: Yes, a bunch of Marxists came in and ambushed the store.

ATTY: Did you personally witness the ambush?

MR. YELLOW: Not while it was going on. I came in the morning to open and saw what
had happened. Then I reviewed the surveillance footage and saw the entire thing then.
Cal Poly Mock Trial Textbook 141

ATTY: And you know for sure the defendant was the one who closed the store that
night?

MR. YELLOW: Yes. Not only was he scheduled to work that night, but the surveillance
footage showed him leaving the store and failing to lock the door.

11. Foundation for Hearsay, Non-Hearsay, and Exceptions to Hearsay

In general, any out of court statement (or document) that is introduced to establish the
truth of the matter asserted is hearsay and therefore not admissible. But...it’s usually
possible to introduce anything you want, if you do it right.

Some out of court statements aren’t hearsay at all (see MRE 801-804):

a. Introducing an Out of Court Statement NOT for the Truth of the Matter
Asserted (see 801(c))

ATTY: Your honor at this time we would like to introduce into evidence
what has been marked as Defenses exhibit B. It is the liability release for
Johnnie Doe.

OPP ATTY: Objection your honor. Hearsay.

JUDGE: Counselor, do you with to be heard?

ATTY: Yes, your honor. This documents is not hearsay because it is not
being offered for the truth of the matter asserted. We are offering as proof
that notice of possible dangers was given to Johnnie Doe, not to affirm the
truth of any of its contents.

JUDGE. Objection overruled.

b. Prior Statement By This Witness (801(d)(1))

This rule is complicated. See the MRE for the specifics.

c. Admission By Party Opponent

ATTY: Did you speak with Matthew Moore after the incident happened?

DOE: Yes I did.

ATTY: And what, if anything, did he say to you?

DOE: He said that he was only “pretty sure” that he had locked the gate
that morning.
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And some kinds of statements are exceptions to hearsay, basically because we think
there’s good reason to believe that they would have been truthful. For each of these, you
need to identify the elements that make up the exception (specified in MRE 803) and be
sure that you establish that those elements were/are present in this case. Here’s an
example to get you going—the other exceptions follow the same basic structure.

d. Present Sense Impression – here the elements are (1) that the declarant stated
his or her sensory impression, (2) at or near the time of the alleged incident

ATTY: Where were you the afternoon of the incident?

MRS. DOE: I was in the kitchen preparing dinner for the family.

ATTY: Was there anybody else in the kitchen?

MRS. DOE: My sister was there visiting for the afternoon.

ATTY: Did anything break your attention from preparing dinner and
visiting with your sister?

MRS. DOE: Yes, Johnnie came running into the house screaming about
his eye.

ATTY: Did you or your sister say anything when your son entered the
kitchen screaming?

MRS. DOE: Yes, my sister said: “Wow, his eyes looks awful! It’s all red
and swollen.”

e. Excited Utterance – elements: (1) declarant experienced something stressful,


and (2) while under that stress said something about it (“Look out, he has a gun!”)

f. Then Existing Mental, Physical, Or Emotional Condition – elements: (1)


declarant said something about (2) his or her own state (see exceptions in MRE)
(“I’m so exhausted I don’t think I can drive home safely.”)

g. Statement For Purposes Of Medical Diagnosis Or Treatment – elements: (1)


declarant said something about (2) his or her own medical condition, (3) for the
purposes of receiving a diagnosis and treatment; the statement does not
necessarily need to be made to a medical professional, and no diagnosis needs to
actually be received

h. Recorded Recollection – elements: (1) at or near the time of the original


incident, (2) the witness wrote down a record of his or her impressions, (3) and
now can’t remember them accurately without consulting that record
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i. Record Of Regularly Conducted Activity – elements: (1) that a record was


made, (2) at or near the time of the incident, (3) by a person with knowledge of
the incident, (4) that making such records is part of that person’s ordinary
business activity, and (5) that the witness is the custodian of the record (and can
therefore testify to its authenticity). See the example in 13 below.

j. Absence Of Entry In Records Of Regularly Conducted Activity – elements: (1)


that there should have been a record of the alleged activity, (2) but isn’t, (3) as
testified to by the custodian of those records. (“We record every arrest by one of
our officers. If there is no record of Dr. Moore having been arrested, it didn’t
happen.”)

k. Public Records And Reports – elements: (1) that there is a record of the
incident (2) in a public record or report (i.e., one kept by government); see 803 for
important exceptions

l. Records Of Vital Statistics – elements: (1) that there is a public record of a vital
statistic, (2) and that the information contained in the record was required to be
reported by law

m. Absence Of Public Record Or Entry – elements: (1) that diligent searching did
not turn up any record of the incident (2) in a public record that (3) would
ordinarily include records of such an incident

n. Records Of Religious Organizations – elements: (1) that there is a record of the


incident or fact, (2) in the records of a religious organization, (3) which regularly
keeps such records (births, marriages, deaths, etc.)

o. Marriage, Baptismal, And Similar Certificates – elements: (1) that there is a


record of a fact, (2) in a certificate of these types, (3) recorded by someone
authorized to do so, (4) and that the record was made at or near the time of the
incident

p. Family Records – elements: (1) that there is a record of a fact (2) contained in a
family record (see 803 for long list of examples of types of family records)

q. Records Of Documents Affecting An Interest In Property – elements: (1) that


there is a record (2) of a document (3) affecting an interest in property, (4) which
reflects the contents of the original document, (5) and is maintained by a public
office (6) authorized by law to maintain such records (for example, a register of
deeds that shows who bought a piece of property)

r. Statements In Documents Affecting An Interest In Property – elements: (1) that


there is a document (2) affecting an interest in property, (3) whose contents
contain a fact relevant to the case, (4) unless subsequent actions regarding the
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property suggest that the fact is false (For example: imagine you find a deed in
which Mr. Smith sells his business to his son. But then you find out that Mr.
Smith is still making all of the day-to-day decisions for the business.)

s. Statements In Ancient Documents – elements: (1) that there is a statement in a


document (2) that is more than 20 years old, and (3) that the authenticity of the
document is established

t. Market Reports, Commercial Publications – elements: (1) that there is a


statement (2) in a publication (3) generally made available to the public and (4)
relied upon by people in some occupation

u. Learned Treatises – elements: (1) an expert witness wants to testify to (2) a


fact, (3) contained in an unpublished learned treatise, whose (4) authenticity and
(5) authority on the subject have been (6) established by the expert witness, other
testimony, or judicial notice.

v. Reputation Concerning Personal Or Family History – elements: (1) that a fact


about a person’s personal or family history is (2) generally known or believed (3)
among a person’s family, associates, or the community in general.

w. Reputation Concerning Boundaries Or General History – elements: (1) that


there is a widespread knowledge or belief, (2) in a community in a position to
know, (3) dating to before the present controversy, (4) about property boundaries
or general history

x. Reputation As To Character – elements: (1) that there is knowledge or belief


(2) among someone’s associates about (3) his or her character

y. Judgment Of Previous Conviction – elements: (1) that there is evidence of (2)


a final judgment (3) following a guilty plea or verdict (4) for a crime with a
penalty of death or more than one year in prison, (5) when offered to prove any
fact necessary for decision of the present case, but (6) not when offered by the
government against (7) someone other the accused, (8) unless offered to impeach
that other person.

z. Judgment As To Personal, Family, Or General History, Or Boundaries –


elements: (1) that there is evidence of (2) a final judgment (3) regarding personal,
family or general history, (4) when such information is necessary to resolve the
present case and (5) when the information would be provable by reputation
evidence.

12. Foundation for Testimony About a Reputation for Untruthfulness

ATTY: What is your relationship to John Doe?


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MS. BETTY: I have been his teacher for four months.

ATTY: Have you known John Doe for longer than four months?

MS. BETTY: Yes I have. He has participated in many after-school events that I have
chaperoned.

ATTY: Are you aware of John Doe’s reputation for truthfulness among his peers and
superiors?

MS. BETTY: Yes. Other students have complained to me on numerous occasions about
Johnnie telling lies. On several occasions I have been able to verify that he had in fact
been untruthful. Overall, I would say that both the students and the teachers view him as
untruthful.

13. Introducing an Exhibit

a. Mark the exhibit for identification BEFORE the trial (at the captains’ meeting).

(1) Prosecution 1, Prosecution 2… Defense A, Defense B...

(2) This allows the exhibit to be shown to witnesses, but not (yet) to the finder of
fact.

b. Identify the exhibit to opposing counsel

(1) Ask the judge for permission to approach opposing counsel.

ATTORNEY: Your honor, may I approach opposing counsel to show


them an exhibit?

(2) Approach counsel and state for the record that you are showing opposing
counsel the exhibit.

ATTORNEY: Your honor, may the record reflect that I am showing


opposing counsel what has been previously marked as Defense Exhibit C.

c. If the opposing counsel objects to the exhibit, succinctly give your reasons for
believing that it is admissible. Assuming that you’re successful:

d. Ask the judge for permission to approach the witness.

ATTORNEY: Your honor, may I approach the witness?


Cal Poly Mock Trial Textbook 146

e. Hand the witness the exhibit and state for the record that you are showing them the
exhibit. Also give a brief description of the exhibit—a photograph, a one-page
document, etc.

ATTORNEY: Your honor, may the record reflect that I am showing the witness
what has been marked as Defense Exhibit C, a two-page document.

f. Have the witness identify the exhibit.

ATTORNEY: Dr. Brown, do you recognize this document?

DR. BROWN: Yes, this is a copy of John Doe’s medical records from my office.

ATTORNEY: Is the copy complete and accurate?

DR. BROWN: Yes.

g. Complete the foundation for the exhibit (in this case, as a business record).

ATTORNEY: Did you personally write this document?

DR. BROWN: Yes.

ATTORNEY: Where did you obtain the information contained in it?

DR. BROWN: From my examination and interview of John Doe.

ATTORNEY: Did you make this record at or near the time of that examination
and interview?

DR. BROWN: Yes.

ATTORNEY: Is it the regular practice of your office to make and maintain such
records?

DR. BROWN: Yes, we make a record like this for every meeting with a patient.

ATTORNEY: Are you the custodian of this document?

DR. BROWN: Yes. All medical records in the office are maintained under my
supervision.

h. What you do next depends on what role you want the exhibit to play. (You may need
to do all or several of these things at different times during the same testimony.)

(1) Have the witness testify about the contents of the document.
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(2) Publish the exhibit to the jury—that is, show it to them right now, for example
by showing them a photo or an enlargement of a document.

ATTORNEY: Your honor, permission to publish the exhibit to the jury at


this time?

(3) Enter the exhibit into evidence, so that it will be available to the jury during
their deliberations.

ATTORNEY: Your honor, we offer Defense Exhibit C into evidence.

JUDGE: It is so received.

ATTORNEY: Your honor, permission to approach the bench to tender the


exhibit to the court?

JUDGE: Granted.

i. DO NOT LEAVE THE EXHIBIT IN THE WITNESS’S HANDS. When you are done
with the exhibit, either tender it to the bench or retrieve it and take it back to your table.

ATTORNEY: Your honor, may I approach the witness to retrieve the exhibit?

14. Foundation for Specific Kinds of Exhibits

a. Photographs (Diagrams, Maps, and Charts use same format). If the diagram or chart is
drawn to scale, that must be noted as well. Furthermore, if the witness prepared the
exhibit, he or she must say how he/she did so.

ATTY: Dr. Moore, are you the owner and caretaker of a black alpaca named
“Tuckerman”?

DR. MOORE: Yes I am.

ATTY: How long have you been the owner and caretaker of Tuckerman?

DR. MOORE: About five years now.

ATTY: Would you recognize Tuckerman if you saw a photograph of him?

DR. MOORE: I believe so.

ATTY (To Court): Let the record reflect I am showing opposing counsel what has
been marked as defense exhibit C.
Cal Poly Mock Trial Textbook 148

ATTY (To Judge): Permission to approach the witness your honor?

JUDGE: Permission granted.

ATTY (To Court): Let the record reflect that I am handing Dr. Moore what has
been marked as defense exhibit C.

ATTY: Do you recognize this photograph Dr. Moore?

DR. MOORE: Yes I do.

ATTY: What is it?

DR. MOORE: It is a photograph of my alpaca Tuckerman.

ATTY: Is it a fair and accurate photograph of Tuckerman?

DR. MOORE: Yes it is.

b. Illustrative Aids

[skipping the steps up to asking the witness to identify the exhibit]

ATTY: Would you please the court what this exhibit is.

MR. BLUE: It is a drawing of the alpaca enclosure in Dr. Moore’s backyard.

ATTY: Do you know who produced the drawing?

MR. BLUE: Yes sir. I produced it.

ATTY: Does defendant’s exhibit A generally show what the Moore’s alpaca
enclosure looks like on the date on the incident?

MR. BLUE: Yes, it shows where all the doors, latches, and locks are located.

ATTY: Is your drawing drawn to scale?

MR. BLUE: Yes it is. I used 1/8 scale on the drawing. That means eight feet
equals one inch on my drawing.

ATTY: Would being able to refer to defendant’s exhibit A help your testimony
today?

MR. BLUE: Most certainly.


Cal Poly Mock Trial Textbook 149

c. Handwriting and Signature

ATTY: Please examine defendant’s exhibit B, and afterwards please tell me if


you recognize the signature in the middle of the page.

DR. MOORE: Yes, I recognize the signature.

ATTY: Would you please tell the jury whose signature that is?

DR. MOORE: It is Mrs. Doe’s. Johnnie’s mother.

ATTY: How do you recognize her signature?

DR. MOORE: I’ve seen her sign her name many times before when she signs
medical releases for her son, so he can play in our Alpaca enclosure.
OR

ATTY: How do you recognize her signature?

DR. MOORE: She writes notes to my wife all the time when she drops off
cookies or pie and I see her signature on those notes.

ATTY: How do you know she wrote and signed those notes?

DR. MOORE: First, they were on notes that had her name at the top, and the
notes would always reference things our families did together, or other
happenings around the neighborhood.

d. Circumstantial evidence of authorship or origin – When there is no signature, you must


look for other ways of authenticating a document.

ATTY: Do you recognize defendant’s exhibit D?

DR. MOORE: Yes I do, it is a liability release from the Does.

ATTY: How do you know the release is from the Does themselves?

DR. MOORE: The release is written on stationary with Mr. Doe’s name at the
top.

ATTY: Is there any other way you know this release is from the Does?

DR. MOORE: Yes, I asked them to draft a liability release for me because their
son would play with the alpacas a lot. I wanted to avoid situations like this. After I
asked them, they produced one, but without their signatures.
Cal Poly Mock Trial Textbook 150

15. Refusing a Witness’s Offer to Explain Something on Cross Examination

ATTY: Ms. Betty, during your previous testimony you characterized Johnnie Doe as
untruthful, isn’t that right?

MS. BETTY: No, not quite. I think you are taking my words out of context. I can explain
if you would like.

ATTY: Thank you, let’s move on: You are Johnnie Doe’s homeroom teacher, isn’t that
correct?

16. Precise Questioning of a Witness on Cross

(the point here is just that you should ask detailed, precise questions to elicit exactly the
information you want, and nothing else)

CROSSING ATTY: Doctor, you conclude in your medical evaluation that Johnnie Doe’s
eye loss is correctable through surgery, isn’t that right?

17. Impeachment For Prior Inconsistent Statement

(1) Validate the prior statement:

ATTY: You submitted an affidavit in this case, correct?

ATTY: And in that affidavit, you discussed your conclusions, isn’t that right?

ATTY: And those conclusions are a result of your medical evaluation of Johnnie
Doe’s eye, correct?

ATTY: At the time you submitted your affidavit, the conclusions from your
medical evaluation were fresh in your mind, correct?

ATTY: You read and signed your affidavit, isn’t that right?

ATTY: And you knew that you had up to 24 hours before your appearance today
in court to revise or correct your affidavit, correct?

(2) Confront witness with the prior statement:

ATTY: Dr. Brown, in your statement you said that you “could be 100% sure” that
Johnnie Doe’s eye injury was a result of the alpaca spit,” isn’t that right?

ATTY: And during direct examination just now you said that you could not be
certain that Johnnie’s injury resulted from the alpaca spit, isn’t that correct?
Cal Poly Mock Trial Textbook 151

AND NOW JUST LEAVE IT ALONE. Do NOT ask the witness to explain the
inconsistency. Do NOT gloat about the inconsistency. Just make the fact of the
inconsistency crystal clear to the jury and then wait until the closing to talk about
its significance.

18. Impeachment for Omission

a. Recommit:

ATTY: Mrs. Doe, you told us during direct examination that you had signed a
liability release for the Moores, isn’t that correct?

ATTY: You submitted an affidavit in this case, correct?

ATTY: And in that affidavit, you discussed your talks with the Moores about
safety and liability, isn’t that right?

ATTY: You read and signed your affidavit, isn’t that right?

ATTY: And you knew that you had up to 24 hours before your appearance today
in court to revise or correct your affidavit, correct?

b. Confront

ATTY: Mrs. Doe, isn’t it true that in your affidavit you never mention having
completed a liability release?

19. Impeachment for Prior Conviction

ATTY: Mr. White, you were once convicted of mail fraud, correct?

MR. WHITE: Yes.

ATTY: And that conviction was on May 25, 2001, isn’t that right?

MR. WHITE: Yes.

ATTY: Mail fraud is a felony, correct?

MR. WHITE: Yes.

ATTY: You were sentenced to two years imprisonment and four years probation,
correct?

MR. WHITE: Yes.


Cal Poly Mock Trial Textbook 152

20. Impeachment for Bias/Interest – This type of impeachment is to exploit bias due to a close
relationship or a rocky relationship between witness and plaintiff/defendant.

ATTY: You and Mr. Doe have always been closed friends, correct?

ATTY: In fact, you have known each other for over twenty years, isn’t that right?

ATTY: You have also testified for him before in similar cases, correct?

ATTY: And now you are here today testifying for Mr. Doe once again, correct?

21. Direct Examination of an Expert Witness (includes 702 foundation)

1. Introduce the witness

ATTY: Please state your name for the record.

EXPERT: Dr. Kirkland Brown.

ATTY: Dr. Brown, what type of doctor are you?

DR. BROWN: I am an ophthalmologist.

ATTY: And what is an ophthalmologist?

DR. BROWN: An ophthalmologist is an eye doctor who specializes in eye


diseases and treating injuries to the eyes.

2. Bring out the expert’s education and experience (qualifications) – According to the
AMTA rules, you do not need to (and therefore must not) officially move for somebody
to be recognized as an expert witness. Having the witness testify to educational and
experience background is all you need to do. DO NOT SAY THAT THE WITNESS IS
AN EXPERT (unless the other side challenges his/her credentials). Instead, show us that
the witness is an expert by introducing his or her qualifications.

ATTY: Dr. Brown, what is your educational background?

DR. BROWN: I double majored at the University of Southern California in


biology and chemistry, receiving a B.S. in both fields. I then attended Johns
Hopkins University, where I obtained my M.D. with a specialty in
Ophthalmology. After obtaining my medical degree, I completed a one-year
internship at Maryland State Hospital. Finally, I completed my residency at
UCLA Medical Center.

ATTY: Do you have any professional experience as an ophthalmologist?


Cal Poly Mock Trial Textbook 153

DR. BROWN: Yes I do. I have owned and operated my own practice in
Atascadero, California for fifteen years now. I was just voted one of the top
doctors on the Central Coast.

3. Lay foundation for the expert’s connection to the case.

ATTY: Dr. Brown, is John Doe a patient of yours?

DR. BROWN: Yes, he is.

ATTY: And did you have occasion to examine his eyes in January of 2008?

DR. BROWN: Yes, I examined his eyes on January 9, 2008.

ATTY: Why did you examine his eyes on that date?

DR. BROWN: He came to the office complaining of a burning sensation in his


right eye.

4. Bring out the expert’s opinion and theory

a. Have the expert state their opinions / conclusion up front

b. Elicit the expert’s underlying theory

ATTY: Dr. Brown, did you reach any conclusions in your examination of
John Doe?

DR. BROWN: Yes I did. It is my expert opinion that John Doe suffered
significant vision loss because of damage caused by alpaca spit.

5. Elicit the methodology and basis for the expert’s opinion –this is how you lay the
foundation for MRE 702:

ATTY: And how did you reach your conclusion?

DR. BROWN: First I tested John Doe’s sight.

ATTY: What type of tests did you perform?

DR. BROWN: I performed a routine eye test which consisted of a couple parts.
First I tested his vision by having him read an eye chart. Second, I dilated his
pupils and looked into his eyes to see if I could detect any damage to the retina.

ATTY: Are these tests standard procedure in the field of ophthalmology?


Cal Poly Mock Trial Textbook 154

DR. BROWN: Yes.

ATTY: Are these tests known to be reliable?

DR. BROWN: Yes; they have been in use for decades and are standard procedure
in my field.

ATTY: Were you able to obtain enough information about John Doe’s eyes and
vision to form a reliable opinion?

DR. BROWN: Yes, he was a very cooperative patient and we had plenty of time.
I gathered all the information necessary to form a medical opinion.

ATTY: Finally, Dr. Brown, did you apply these reliable test and procedures to the
information you gathered about John Doe’s eyes and vision?

DR. BROWN: Yes. I gathered the information, compared it to standard lists of


criteria and symptoms, and was able to come to a reliable conclusion about the
state of John Doe’s eyes and vision.

ATTY: What was that conclusion?

DR. BROWN: Mr. Doe had almost no vision in his right eye, and there was
considerable damage to the right retina, consistent with a chemical burn to the
eye. The patient reported to me that an alpaca had recently spit in his right eye,
and that he had had no other unusual substances enter that eye. Subsequent
research revealed that alpaca spit is unusually acidic. Given that conjunction of
facts, my conclusion is that John Doe’s retina damage and vision loss are due to
the alpaca spit.

22. Challenging / Impeaching an Expert

a. An example of using counterfactuals—ask the witness to change their assumptions, or


to vary the fact pattern, and see if that changes their conclusions.

ATTORNEY: Dr. Brown, you have testified that you believe Mr. Doe’s alleged
eye injury was caused by Mr. Moore’s alpaca spitting in his eye, is that correct?

DR. BROWN: Yes.

ATTORNEY: Isn’t it the case that similar injuries can arise from other causes?

DR. BROWN: Yes.


Cal Poly Mock Trial Textbook 155

ATTORNEY: If Mr. Doe had presented the same alleged injury, but had not told
you about the alleged alpaca incident, would you have suspected alpaca saliva as
the cause of the injury?

DR. BROWN: No.

b. Point Out Omissions

ATTY: Dr. Brown, you reached your medical conclusions by giving Johnnie Doe
a routine eye test, correct?

DR. BROWN: Yes.

ATTY: However, in the brochure provided by your practice, it says the best way
to test for vision loss is through an advanced procedure using the VisionTronic
58GX eye reader, isn’t that right?

DR. BROWN: Yes.

ATTY: You did not use the VisionTronic eye reader on Johnnie Doe, correct?

DR. BROWN: That’s right, I did not use the VisionTronic during that
examination.

c. There are other ways to challenge an expert’s credentials or testimony. They include:

1. Question the relationship between the expert and participants. There is no set
script for how to do this, but the main goal is to imply a peculiar relationship that
can be exploited during closing. For instance, you can imply that the doctor and
plaintiff were friends, and that is why the doctor is giving a favorable opinion.
For example:

ATTY: Dr. Brown, you and the Does have been close friends for
approximately seven years, correct?

ATTY: And today, you are testifying for the Does, isn’t that right?

2. Question any positional bias of the expert. For example, an ethnographer


almost always will testify for the defense in a criminal case (it is their job to
mitigate the charges). Simple questioning usually can get the job done:

ATTY: You are an ethnographer, correct?

ATTY: Another term for an ethnographer is a “mitigation specialist.”


Correct?
Cal Poly Mock Trial Textbook 156

ATTY: Your job is to try and mitigate the factors for the defendant
surrounding the alleged crime, isn’t that right?

23. General Format for Raising an Objection

a. Stand up and remain standing until the objection has been ruled on.

b. Object and BRIEFLY state your grounds: “Objection, your honor, hearsay.”

c. Wait for the judge to respond.

d. Ask to be heard (“Your honor, may I be heard?) if you feel that further explanation
would be helpful. You will get one chance to explain in one sentence why your objection
should be sustained. If you can’t do it (even if you’re right about the point of law) you
will lose.

e. If you win, and if the improper testimony has already been uttered, make a motion to
strike. This motion automatically includes a direction to disregard—do NOT make a
separate motion to have the jury instructed to disregard. Do NOT say “thank you.” Sit
down.

f. If you lose, say “Yes, your honor” and sit down. Do NOT say “thank you.” Do NOT
argue any further. Do NOT sigh loudly. Just sit down and shut up.

24. Voir Dire of a Witness – If you think an expert does not have adequate credentials to testify
on a specific piece of information, then you should voir dire him/her to limit the scope of their
expertise. You should request permission to conduct the voir dire during the other side’s direct
of the witness—once his/her credentials have been introduced, but before any substantive
questions have been asked.

OPP ATTY: Dr. Brown, do you have an opinion on how Johnnie Doe lost his eyesight?

ATTY (You): Objection. Your honor we would like to voir dire the witness on her
credentials before her testimony is allowed.

JUDGE: You may have time for a limited voir dire.

ATTY: Dr. Brown, you have only been an eye doctor for three years, correct?

ATTY: And you do not have any special certifications in animal-related eye-injury
issues, isn’t that right?

ATTY: In fact, you have never dealt with a patient who has had animal-related eye loss,
correct?
Cal Poly Mock Trial Textbook 157

ATTY: In your last review by the American Board of Ophthalmologist you scored in the
“unsatisfactory to satisfactory” category, isn’t that right?

25. Motion to Strike Testimony

ATTY: What did Johnnie Doe say to you before he went outside to play in the backyard?

MRS. DOE: That he loved Tuckerman, and that Dr. Moore had told him he could play
with Tuckerman any time.

OPP. ATTY: Objection your honor. Hearsay within Hearsay.

JUDGE: Sustained.

OPP ATTY: Move to strike Mrs. Doe’s testimony, starting with “Dr. Moore” and ending
with “any time.”

JUDGE: It is so stricken.

26. Five things you need to do at the beginning of every trial.

a. Ask for permission to introduce yourself and your co-counsel

ATTY: Your honor, at this time, may we state our appearances for the record?

b. Introduce and ask for permission to tender any documents that you (or both sides) plan
to offer to the court (stipulations, mainly)

ATTY: Your honor, at this time, we would like to move the stipulations into
evidence.

JUDGE [to opposing counsel]: Any objection, counselor?

OPP. ATTORNEY: None, your honor.

JUDGE: The stipulations are entered into evidence.

ATTY: Thank you your honor. May I approach the bench to tender a copy of the
stipulations to the court?

c. Ask the judge whether he/she wants you to ask for permission before approaching
opposing counsel or witnesses

ATTY: Your honor, what is your preference about approaching opposing counsel
and witnesses? Should we seek permission each time, or may we approach freely?
Cal Poly Mock Trial Textbook 158

d. Ask for permission to move freely about the well of the courtroom

ATTY: Your honor, may counsel move freely about the well during examinations
and argument?

e. ask the presiding judge whom you should address as the jury.

ATTY: Your honor, whom should we address as the jury today?

27. Making an Offer of Proof

a. Ask the judge for permission to make an offer of proof.

ATTORNEY: Your honor, may I briefly make an offer of proof?

JUDGE: Yes, go ahead.

b. Then say briefly what useful facts the excluded question, document, etc. would have
introduced.

ATTORNEY: Your honor, if this witness had been allowed to answer the
question he would have testified that… That piece of evidence would have helped
to establish the first element of my case, which is that…

28. Discussing Case Law in Opening/Closing

1. In real life, attorneys would almost never tell the jury about the law. Rather, the jury
instructions would contain that information (and the instructions would be the subject of
considerable negotiation between the parties). However, in mock trial sometimes you
have to talk to the jury about the law, especially about case law. Practically, you can only
do it during the opening or closing. Here’s how:

ATTORNEY: Ladies and gentlemen, after the evidence has been introduced and
closing arguments have been made, the judge will instruct you in the law. He will
tell you about a case called Smith v. Jones, in which the Supreme Court of
Midlands held that people who own wild animals as pets are liable for any injuries
those animals cause. He will also tell you about a case called Jones v. Smith, in
which the Supreme Court held that alpacas are wild animals.

29. Retrieving an Exhibit From a Witness

a. When your are finished questioning a witness about an exhibit, either tender the exhibit
to the bench (if it is going to be entered into evidence) or retrieve it take it back to your
table.
Cal Poly Mock Trial Textbook 159

ATTORNEY: Your honor, may I approach the witness to retrieve the exhibit?

30. Excusing a Witness

a. Ask for your witness to be excused from the stand when all direct and cross
examinations are done.

ATTORNEY: Your honor, may this witness be excused?

b. Do not allow the other team to excuse your witness—if they ask for the witness to be
excused after cross, stand up and say:

ATTORNEY: Your honor, as we have no more questions for this witness, may
the witness be excused?

31. Making a Non-Responsive Objection

ATTORNEY: Your honor, the witness is being non-responsive. Would the court please
direct the witness to answer the question.

32. Repeating a Question on Cross

ATTORNEY: Thank you for your answer. Now bringing you back to my question...[ask
your question again].

33. Asking Permission for a Witness to Step Down to Approach a Demonstrative

ATTORNEY: Your honor, may the witness step down to approach the demonstrative?

34. Noting a Non-Verbal Action for the Record

ATTORNEY: Your honor, may the record reflect that the witness has [indicated that she
was standing at the point marked Office on the map of the building]?
Cal Poly Mock Trial Textbook 160

XVII. ADVICE FROM PREVIOUS TEAMS

I. Some pieces of advice from previous teams didn’t fit elsewhere in the book, but we wanted to
pass them on:

A. Preparation

1. get to know your team socially; you will be more comfortable with each other
in the courtroom

2. the teams that win have the MRE memorized—contents, rule numbers, sub-
sections, everything

3. Don’t switch roles a lot. You get better the longer you work on one role—if
you change (especially late in the season) you just won’t be as good.

B. Focus on Big Points

1. juries can’t follow long lists of points and issues

2. your case should focus on 2 or 3 main arguments

C. Memorization

1. do not use notes, ever

2. don’t memorize notes, either; you want to memorize issues, not scripts

D. During Trial

1. Demonstratives make you look more professional and prepared. Considering


having a demonstrative for each witness.

2. It is very effective in criminal trials for the Prosecution to have each witness
identify the Defendant by pointing to them and verbally describing their clothing.
It makes the Defendant seem guilty for no good reason.

3. If you have trouble remembering the genders of the various characters, make
up a cheat sheet for every trial.
Cal Poly Mock Trial Textbook 161

APPENDIX
1. AMTA Timekeeper’s Sheet

2. Timekeeper’s Instructions

3. AMTA Character Evidence Sheet

4. Reminders for Going to Competitions Handout

5. Glossary of Terms

6. Objections Cheat Sheet

7. MRE Cheat Sheet


Cal Poly Mock Trial Textbook 162

AMERICAN MOCK TRIAL ASSOCIATION TIMEKEEPER'S SHEET


(Revised August 2006)

Complete ALL 36 items in numbered order.

(1) DATE: _____________ (2) P's TEAM #: _____ (3) D's TEAM #: _____

(4) TIMEKEEPER'S PRINTED NAME (S): ___________________________________________________________

(5) START TIME: ___________ (ENTIRE TRIAL: 3 HOURS MAX)


Stop Time & Total time will be recorded in 34 and 35 below.

OPENING STATEMENT: 5 MINUTES max per team. Starts after “May it please the Court.”

(6) PLAINTIFF: ______ (7) DEFENDANT: _______

PLAINTIFF'S CASE-IN-CHIEF: 60 MINUTES recommended. (Includes otherwise untimed objections & responses.)

(8) START TIME: _______ (Stop time & total min. recorded in # 17 & 18.)

TOTAL DIRECT & REDIRECT: 25 MINUTES MAX TOTAL CROSS & RECROSS: 25 MIN. MAX.

PLAINTIFF'S 1ST WITNESS: (9) _______ (10) _______

PLAINTIFF'S 2ND WITNESS: (11) _______ (12) _______

PLAINTIFF'S 3RD WITNESS: (13) _______ (14) _______

TOTALS (15) _______ (16) _______

(17) STOP TIME: _______ (18) TOTAL MINUTES: _______

TIME, IF ANY, TAKEN FOR BREAK AFTER P'S CASE-IN-CHIEF: (19) _______

DEFENDANT'S CASE-IN-CHIEF: 60 MINUTES recommended. (Includes otherwise untimed objections and responses.)
(20) START TIME _______ (Stop time & total minutes recorded in # 29 & 30.)
TOTAL DIRECT & REDIRECT: 25 MINUTES MAX TOTAL CROSS & RECROSS: 25 MIN.

DEFENDANT'S 1ST WITNESS: (21) _______ (22) _______

DEFENDANT'S 2ND WITNESS: (23) _______ (24) _______

DEFENDANT'S 3RD WITNESS: (25) _______ (26) _______

TOTALS (27) _______ (28) _______

(29) STOP TIME: _______ (30) TOTAL MINUTES: _______

TIME, IF ANY, TAKEN FOR BREAK AFTER D'S CASE-IN-CHIEF: (31) _______

CLOSING & REBUTTAL: 9 Min per team: (P. may reserve up to 5 min. for rebuttal.)

(32) PLAINTIFF: ______+______ =______ (33) DEFENDANT: _______

ENTIRE TRIAL: 3 HOURS MAX.

START TIME (FROM # 5 ABOVE) _______ (34) STOP TIME _______ (35) TOTAL: _______

JUDGES' COMBINED CRITIQUES (After submission of blue ballot sheets): 10 MINUTES MAX. (36) _________
***WHEN COMPLETED, GIVE THIS TIME SHEET TO BALLOT RUNNER TO RETURN TO TAB ROOM ***
Cal Poly Mock Trial Textbook 163

Timekeeper’s Instructions
The Basics

1) During every trial at an AMTA competition, each team must provide a timekeeper.

2) The timekeepers keep time for BOTH sides. That means that you have to keep track of
how much time both teams are using. If you are the only timekeeper (it happens), it is
polite to give the opposing team accurate warnings about how much time they have left,
just as you would do for your own team.

3) The timekeeper is part of the team, and your dress/demeanor will be noticed by the
judges. You want them to conclude that you are professional, careful, accurate, and
courteous to the other team.

4) To keep the time, you will need:

q two timers (count-down are easier)

q one copy of the AMTA Timekeeper’s Sheet

q something to write with

q flip cards or other signs to indicate how much time is left

5) The Timekeeper’s Sheet tells you how much team each team has for each segment of
the trial.

6) If there is a disagreement about how much time has been used, try to reach a fair
compromise quickly.
Cal Poly Mock Trial Textbook 164

NOTICE
This notice must be supplied by the parties to opponents at the beginning of the captains’
meeting prior to choosing witnesses.

________________________________________________________________

DISTRICT COURT OF THE STATE OF MIDLANDS


NOTICE OF INTENT TO OFFER CHARACTER EVIDENCE

COMES NOW the party offering notice and hereby does gives notice of its intention to
offer character evidence as follows:

1. ___ the defendant will offer evidence of his/her own character or trait of character
[404(a)(1)].

2. ___ the defendant will offer evidence of the victim's character or trait of character
[404(a)(2)].

3. ___ the prosecutor will offer evidence of prior crimes, wrongs, or acts [404(b)].

4. ___ the defense will offer opinion and/or reputation evidence of character [608(a)].

Submitted by

_________________________, Attorney for PROSECUTION / DEFENDANT


(circle one)

I acknowledge this notice

_________________________, Attorney for PROSECUTION / PLAINTIFF / DEFENDANT


(circle one)

------------------------------------------------------------------------
Copyright American Mock Trial Association. All Rights Reserved.
Cal Poly Mock Trial Textbook 165

Reminders for Going to Competitions


The Basics

1) AMTA competitions are 2-3 days long, always over a weekend. Please be sure you
understand the schedule of your competition well in advance, especially if you will have
to take time off from work or other obligations.

2) At competition, your team will compete 4 times—twice as the prosecution / plaintiff


and twice as the defense.

3) At the end of the competition, teams will be ranked. The first level of ranking is based
on your win/loss record. If teams are tied at that level, there is a second level of ranking
that looks at how good the teams they beat/lost to were (it’s complicated).

4) Typically the top 6-7 teams move on to the first round of championships.

5) In addition to your team’s overall placement, there are also individual awards for
excellent work, and the Spirit of AMTA award for the team that showed the best
sportsmanship (as evaluated by the other teams).

Team Captain’s Checklist

q materials you want to present to the judge

q stipulations q pretrial orders q jury instructions

q other: ________________________________

q separate copies of exhibits and affidavits that you will show to witnesses

q separate copies of exhibits and affidavits that you will show to opposing counsel

q plenty of blank copies of the character evidence form

q plenty of blank timekeeper’s forms q timekeeper’s instruction memo

q demonstrative exhibits

q easels q clipboards

q stopwatches q time-reminder notebooks/flip cards

q name wedges q rooming lists (for hotel)

q completed team rosters x2


Cal Poly Mock Trial Textbook 166

Glossary of Terms
Absolute Privilege- the person or group or
class of people has an absolute right to publish Affirmative Defense - A defendant’s
even false and defamatory statements about assertion of facts and arguments that, if true,
someone else regardless of intent or purpose; would defeat the plaintiff’s or prosecution’s
in addition, communications from one spouse claims, even if all the allegations in the
to another, by client to attorney, etc., are complaint are true. see excuse and
absolutely privileged justification

Actual Cause – when determining what Alpaca – a domestic animal related to the
legally caused something else (what caused llama; the prince of pets; spits a lot
someone’s death, for example), you need to
identify the actual cause and the proximate Answer / Response – A civil defendant’s
cause. The actual cause is the factor without formal reply to the plaintiff’s complaint.
which the event would not have happened (for
example, if you hadn’t pushed Mary, she Argumentative – a question is
wouldn’t have fallen). The proximate cause is argumentative when it either puts forward an
the factor that is legally responsible for the argument (rather than asking for information
outcome. For example, if you shoot Mark, from the witness), or when it harasses or
your pointing the gun and pulling the trigger badgers the witness
are responsible for his gunshot wound. But if
he receives substandard medical care and dies Asked and Answered – an objection that a
from what would otherwise be a survivable question has already been asked and
wound, the proximate cause of his death may answered, and therefore should not be
be medical malpractice and not the shooting. permitted again (on the grounds that it is a
see proximate cause waste of time and may be intended to harass
the witness)
Actual Malice – This only comes up in
defamation cases. Actual malice means that Assumption of risk- the plaintiff knows
someone who uttered a false and harmful about a risk or potential harm and assumes it
statement about someone else did so either anyway; knowingly or voluntarily
knowing that the statement was untrue, or after participating in a dangerous activity
having made no effort to determine whether it
was true or not. Authentic / Authenticity – any document or
piece of physical evidence needs to be shown
Actus Reus – the action that constitutes a to be authentic (to really be what you claim it
crime; see also mens rea is); some documents are self-authenticating,
while others need testimony to establish their
Admissible / Admission / Admissibility – authenticity (see MRE Title 9)
evidence is admissible if it can be presented
in court without violating any of the rules of Bench Trial – a trial in which the judge acts
evidence or procedure as the finder of fact

Affidavit – a written statement, often made Beyond a Reasonable Doubt – the standard
under an oath to tell the truth of proof in a criminal case in the U.S.; a
Cal Poly Mock Trial Textbook 167

criminal defendant should only be found because it was consistent with their character
guilty if the jury believes that s/he is guilty and overall (he’s a thief so he must have stolen this
that there can be no reasonable doubt that s/he particular car, too). However you can
may actually be innocent introduce evidence about someone’s character
for other reasons (to undermine their
Bolster / Bolstering – trying to support a credibility, to show that they have certain
witness’s credibility, usually by introducing knowledge, to show that they have a history of
favorable information about the witness untruthfulness, and so on).

Breach- that the defendant did not fulfill Clean Hands – some justifications and
his/her duty to the plaintiff (by failing to act excuses require that a person who seeks to be
according to the standard of care); for pardoned for doing something that it otherwise
example, a “breach of contract” is an illegal not have played any role in bringing
unexcused failure to fulfill the duties of a about the situation in the first place; for
contract example, if you claim self-defense after
shooting someone breaking into your house,
Case Law – the U.S. has a common-law legal you can’t have in some way invited them to
system; that means that when a court decides a break in earlier
case, its reasoning sets a precedent that that
court (and other courts subordinate to it) will Clear and Convincing Evidence – a
follow in the future; the practical effect of this standard of proof that falls in between
is that for most laws you don’t really know beyond a reasonable doubt and
what the law means/requires until you have preponderance of the evidence. This
carefully examined how the courts have standard is sometimes written as “convincing
applied it clarity.”

Cause of Action – the legal basis for either Collateral Source Rule- plaintiff may collect
bringing criminal charges or filing a civil suit; damages from defendant for the full value of
in brief, there must be a law that you allege the plaintiff’s losses, regardless of whether P is
defendant has violated; most causes of action also getting compensation for those damages
have several elements that you must be sure from other sources (such as insurance or
you address; see elements workman’s compensation)

Chain of Custody – to show the authenticity Comparative Negligence- the relative degrees
of a piece of real evidence, you must of responsibility of the plaintiff and the
demonstrate that there is good reason to defendant(s); damages would be awarded
believe that it is the same item that was proportionately
involved in the original incident; one way to
do that is to show that at all times since its Compensatory damages- Money intended to
initial collection the evidence has been in the compensate the plaintiff for actual harm (this
custody of identifiable people who can testify could include medical expenses, lost wages,
to it being the same item emotional distress, etc.)

Character (evidence) – in general, you cannot Competent / Competency – whether someone


introduce evidence about someone’s character possesses the mental and sensory capacities
to try to prove that they did some action necessary to be a witness
Cal Poly Mock Trial Textbook 168

Complaint – the document that begins a civil Demonstrative (evidence) – demonstrative


case; the plaintiff files a complaint, alleging evidence is something that is used for
that the defendant has caused the plaintiff illustration only, and was not historically
some harm in violation of some particular law connected to the original crime/harm; for
example, a photograph of a crime scene was
Contributory Negligence- the plaintiff’s own not part of the crime scene itself, but is an
negligence that was a relevant factor in illustration of it; see real evidence
plaintiff’s harm
Diminished Capacity – an affirmative
Convincing Clarity – see Clear and defense (excuse) claiming that a criminal
Convincing Evidence defendant, at the time of the alleged crime,
suffered from some temporary mental defect
Corroborate - to support with evidence or
authority: make more certain. Directed Verdict – when the evidence
overwhelmingly supports one party, the judge
Credible / Credibility – whether a witness is may direct the jury to enter a particular verdict
believable or apparently trustworthy (rather than allowing them to deliberate)

Cross / Cross-Examine / Cross-Examination Discovery – the process by which the parties


– every witness is called by one party, which to a case inform each other of the witnesses
conducts a direct examination of that witness; and evidence they plan to produce at trial; in
after the direct examination, the other party real life, this is intended to make trials more
may cross-examine the witness, often to try to fair and efficient; in mock trial, discovery
undermine the witness’s credibility takes place when the two team pick witnesses
and file character evidence forms during the
Curriculum Vitae – another word for résumé captains’ meeting
(a summary of someone’s education and work
experience) Draw(ing) the Sting – trying to minimize
unfavorable information by admitting it
Damages- the plaintiff’s loss measured in yourself and putting it in the best possible light
financial terms suffered because of a
defendant's actions. The purpose of awarding Duress – an excuse in which the defendant
damages is to restore an injured party to the claims that s/he was placed in a moral
position the party was in before being harmed. dilemma, being forced to choose between
some awful outcome (like allowing a family
Declarant – a person who has made a member to be killed) or committing an illegal
statement (either oral or written) act

Defamation – harming another person by Duty- a legal obligation, the breach of which
publishing false and damaging statements can result in liability
about them
Eggshell plaintiff- the defendant is
Defendant – a person sued in a civil responsible for the plaintiff’s actual
proceeding or accused in a criminal damages, even if that person was unusually
proceeding vulnerable to harm
Cal Poly Mock Trial Textbook 169

General-Intent – a category of crime in which


Elements – every cause of action can be the only mens rea that needs to be proven is
broken into elements that need to be proven; that the defendant intentionally committed the
for example, the elements of larceny are that unlawful act (for the crime of speeding, the
someone (a) trespassorily (without permission) only intent the prosecution needs to prove is
(b) took away (c) someone else’s property that you were actually driving the car); see
with the (d) intention of permanent depriving specific-intent
them of it.
Harassing – when a question is intended to
Evidence – something (including testimony, unnerve or abuse a witness
documents, and tangible objects) that tends to
prove or disprove the existence of an alleged Hearsay –people have more problems
fact relevant to a legal case understanding hearsay than anything else. The
basic definition is very simple, but you have to
Exculpatory (evidence) – tending to clear take it seriously: any out-of-court statement
someone suspected of wrongdoing introduced in court to prove the truth of the
matter asserted. The key to really grasping
Excuse – a category of affirmative defense in hearsay is to understand that the definition
which a criminal defendant claims that really means any out-of-court statement. It
although s/he committed an illegal act, s/he doesn’t matter who said it, or what it was that
should not be punished due to some mitigating got said. It also doesn’t matter whether it was
or exculpating factor spoken or written down. If it was done outside
of the courtroom, and if you are now
Exhibit – a document, record, or other introducing it to try to prove the truth of
tangible object formally introduced as whatever the statement claimed, it’s hearsay.
evidence in court There are many exceptions to hearsay, but it’s
crucial that you understand the basic idea first.
Express Warranty- the explicit claims or
promises made by the manufacturer Hearsay Within Hearsay – when a hearsay
statement contains another hearsay statement;
Failure of Proof – when the imagine that a witness says: “At the time of
prosecution/plaintiff has failed to provide the crime, I told Janet ‘Mike told me that he
sufficient evidence to show that there is reason was afraid of Sue.’” What the witness said is
to believe that the defendant has committed itself hearsay (the witness is claiming that
the alleged unlawful act s/he actually said this thing), and what Mike
said is hearsay-within-hearsay (if the witness
Finder of Fact (sometimes Trier of Fact) – is also claiming that what Mike said was true).
the person or group responsible for deciding
questions of fact in a legal case; in a jury Hostile (witness) – a hostile witness is one
trial, the jury is the finder of fact; in a bench who appears to be attempting to avoid telling
trial, the judge is the finder of fact the truth; if a witness is declared hostile,
attorneys may use leading questions even on
Foundation – the legal and factual basis for direct examination
admitting a piece of evidence
Impeach / Impeachment – undermining a
witness’s credibility, typically by introducing
Cal Poly Mock Trial Textbook 170

damaging or unflattering information about the requires a defendant to pay more than their
witness “share” of damages due to other defendants’
failure to pay
Implicit Warranty- there are two kinds; see
Implied Warranty of Merchantability and Jury Instructions – an explanation of the law
Implied Warranty of Fitness for a and the elements of a charge that the judge
Particular Purpose gives the jury before they deliberate; in mock
trial the case pack sometimes includes jury
Implied Warranty of Merchantability- the instructions, which are essentially a road-map
mere sale of a product implies that it is safe to of what each side needs to prove or disprove;
use and that it is of roughly comparable quality see verdict form
to similar products
Jury Trial – a trial in which a jury decides
Implied Warranty of Fitness for a issues of fact, particularly whether the
Particular Purpose- completing a sale defendant did or did not commit the alleged
constitutes an implicit assertion that the goods unlawful act
are suitable for that purpose and may be safely
used to achieve it Justification – an affirmative defense in
which the defendant claims that although s/he
Inadmissible – see admissible committed an unlawful act, doing so was
justified under the circumstances, and s/he
Incompetent / Incompetency – see should not be punished (self-defense is a
competent familiar example); see affirmative defense,
excuse
Indictment – a criminal complaint; the
document that alleges that a defendant has Lay Witness – A witness who does not testify
committed some crime as an expert; generally such witnesses can only
testify to their personal observations and
Injunction- a court order that a party is experiences; lay witnesses may only given
required to do, or must refrain from doing, opinions when they are (1) based on firsthand
certain acts knowledge, and (2) helpful in clarifying the
testimony or in determining facts.
Intent – the mental design or purpose to take
some action Leading (Question) – a question that conveys
information rather than asking for information;
Interment – a rhetorical technique by which Leading: “Isn’t it true that Dr. Brown
you “bury” unfavorable information by putting diagnosed you with significant vision loss?”
it in the middle of a presentation; your Not leading: “Did Dr. Brown diagnose you
audience is least likely to remember the with any medical condition?”
middle of the presentation
Liability – The quality or state of being
Joint and Several Liability- when multiple legally obligated or accountable; legal
defendants are collectively responsible for the responsibility to another or to society,
full amount of damages; each defendant has enforceable by civil remedy or criminal
an individual responsibility to see that the punishment.
plaintiff gets full compensation, even if that
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Libel – A form of defamation in which the Narrative (answers) – an answer that goes on
damaging statement is made in print, writing, for so long it is no longer directly responding
or other permanent form. see also Slander to a question; in U.S. legal practice, witnesses
are supposed to answer particular questions,
Malice – 1. The intent, without justification not just launch into stories
or excuse, to commit a wrongful act. 2.
Reckless disregard of the law or of a person’s Necessity – an affirmative defense
legal rights. Note that in law malice does NOT (justification) in which a criminal defendant
mean “intentional moral wickedness.” see also claims that they broke the law to avoid an even
Actual Malice greater harm

Mens Rea – the mental component of an Negligence / Negligent– failure to exercise


action; the mental state that the defendant was due care, such that someone else is harmed
in when committing the alleged unlawful act
Negligence per Se- an act is considered
Mistake of Fact – 1. A mistake about a fact negligent when it violates a statute that is
that is material to a transaction; any mistake meant to maintain public safety. For example,
other than a mistake of law. 2. The defense for someone involved in an automobile
asserting that a criminal defendant acted from accident, negligence per se could be
an innocent misunderstanding of fact rather established if that person were violating the
than from a criminal purpose. speed limit.

More Prejudicial Than Probative – when Nolo Contendere – Latin for “I do not wish to
authentic, relevant evidence appears likely to contend [the charges].” It means that a
prejudice the finder of fact more than it will criminal defendant will not deny the charges
help them determine the truth of the matter; for against him/her. It has the effect of a guilty
example, a jury doesn’t need to see grisly but plea, except that if a civil case arises out of the
accurate pictures of an auto accident to same incident, a nolo plea is not an admission
determine who was responsible for causing it, of civil liability (which a guilty plea would
and the photos may prejudice them against be).
the defendant
Nominal Damages- A very small amount of
Motion – A written or oral application money usually awarded when the plaintiff
requesting a court to make a specified ruling or suffered little or no actual harm
order.
Objection – a claim by a party that the
Motion to Strike – a motion requesting that opposing party is violating the rules of
testimony ruled inadmissible be removed evidence or procedure; an objection requires a
from the official transcript of the trial; in real ruling by the judge
life, you would always follow this with a
motion to instruct the jury to disregard the Offer of Proof – A presentation of evidence
stricken testimony; in mock trial, mostly to for the record (but outside the jury’s presence)
save time, the motion to strike includes a usually made after the judge has sustained on
motion to disregard objection to the admissibility of that
evidence, so that the evidence can be
Cal Poly Mock Trial Textbook 172

preserved on the record for an appeal of the


judge’s ruling. Private individual- someone not declared a
“public figure” in a defamation suit
Open(ing) the Door – introducing an issue (although other qualifications may still trigger
that the opposing party would be procedurally a higher standard of proof
prohibited from bringing up, thus giving them
the chance to ask more questions about it; for Privilege – a legal right not to testify
example, in general the prosecution cannot
present evidence about a criminal defendant’s Probate – The judicial procedure by which a
character, but if the defendant brings it up, testamentary document is established to be a
that allows the prosecution to present contrary valid will; the proving of a will to the
evidence satisfaction of the court.

Plaintiff – the party in a civil suit who claims Probative – tending to prove some fact
to have been harmed; the party that initiates a Prosecutor – A legal officer who represents
civil suit the government in criminal proceedings
(District Attorney).
Prejudicial – (1) tending to harm the interests
of a party; (2) tending to harm the interests of Proximate Cause – a cause that is legally
a party in a way that is unfair, thus reducing sufficient to result in liability; see actual
the likelihood that the trial will uncover the cause
truth
Public figure- somebody widely famous (or
Preponderance of the Evidence – the well-known within the relevant community),
standard of proof in a civil case, it means that or someone who involves him or herself in a
the finder of fact must conclude that it is more public controversy (does not include if the
likely than not that the defendant did the defamation suit itself becomes a controversy)
alleged unlawful act and therefore has less protection from
defamation
Presiding Judge – in mock trial, the judge
(one of three) who will make procedural Punitive damages- damages intended to
rulings during a trial punish the defendant for egregious behavior
and to deter such conduct in the future
Presumption – an inference that the finder of
fact may (or sometimes must) draw from Qualified privilege- permits people in
circumstantial evidence; for example, if X particular positions to make statements or
pointed a gun at Y and pulled the trigger, the relay information that would be considered
finder of fact may presume that X intended to slander and libel if made by anyone else
shoot Y (it would be virtually impossible to
prove intent without permitting Reasonable-Person Analysis – in many areas
presumptions) of law, finders of fact are required to compare
a defendant’s behavior against what a
Primacy – a rhetorical technique that puts reasonable person would do in the same
important information early in a presentation, circumstances
increasing the likelihood that the audience will
remember it
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Real Evidence – evidence that is historically particular mental intention; for example, you
connected to an incident (for example, the cannot be guilty of first-degree murder unless
actual gun used to shoot someone); see you killed with premeditation
demonstrative evidence
Speculation – when a witness guesses or
Recency – a rhetorical technique that puts hypothesizes about something regarding which
important information late in a presentation, they have no personal knowledge
because audiences tend to remember the last
thing they heard Standard of care- the legal standard that the
defendant had to achieve (level of
Re-Cross – an additional cross-examination watchfulness, attention, caution, etc.) in order
of a witness already cross-examined at least to fulfill his/her duty to the plaintiff. Failure
once to meet the standard (usually what a
reasonable person would do) is negligence,
Re-Direct – an additional direct examination and the injured party may claim the resulting
of a witness already directly examined at least damages.
once
Standard of Proof – how convinced a finder
Rehabilitation – attempting to undo damage of fact has to be to find someone guilty
to a witness’s credibility by introducing (criminal) or responsible (civil); see also
favorable information, especially about the Beyond a Reasonable Doubt, Clear and
witness’s truthfulness Convincing Evidence; Preponderance of the
Evidence
Relevant – evidence that helps to make a
disputed fact more or less probable, when that Statute – A law passed by a legislative body
fact is necessary to resolving the case
Statutory definitions- laws passed by a state
Response – see Answer/Response that define the standards of care or
reasonableness of conduct
Scope – on re-direct and re-cross, the
questions must only be about issues raised by Stipulations – facts agreed to by both sides;
the opposing party in the immediately previous these do not need to be proven at trial, but you
set of questions; however, you may always sometimes need to mention them to make
raise evidence about a witness’s credibility; another point (or to make sure the jury knows
btw, in real life the first cross-examination is about them)
also limited in scope to the contents of the
direct, but in mock trial that is not the case Strict Liability – Liability that does not
(because you can’t recall that witness later for depend on actual negligence or intent to harm,
your side, as you could in real life) but that is based on the breach of an absolute
duty to make something safe.
Slander – a form of defamation in which the
damaging statement is made orally. see also Strike, Motion to – see Motion to Strike
Libel
Substantial truth- an allegedly defamatory
Specific-Intent – the mens rea component of statement may be held to be true even if it
a crime that requires the criminal to have a contains small inaccuracies
Cal Poly Mock Trial Textbook 174

Unqualified Opinion – an opinion from a


Theme (of case) – a brief headline or slogan witness who is not qualified to comment on
intended to convey your theory of the case the issue; most opinions from lay witnesses
quickly to the jury; for example: “If the alpaca are unqualified opinions; if an expert witness
did not spit, you must acquit” or “This is a gives an opinion on an issue beyond his or her
case about being Too Busy to Be Careful.” expertise, that is also an unqualified opinion

Theory of the Case – one party’s explanation Verdict Form – a checklist that is sometimes
of what actually happened and what the legal part of jury instructions, summarizing the
consequences of those events should be elements the prosecution/plaintiff needs to
establish to prevail; see jury instructions
Tort – a civil wrong (other than breach of
contract) Voir Dire – for purposes of mock trial, an
examination of an expert witness’s credentials
Ultimate Issue – the question to be decided by to see whether s/he is really an expert as
the finder of fact (did X murder Y?) claimed; in the real world, this is also the term
for interviewing potential jurors
Unringing the Bell – reducing the impact of
unfavorable information elicited by the Well (of the courtroom) – the space between
opposing party by immediately addressing it the parties’ tables and the judge’s bench; it is
and casting it in a better light; see draw(ing) bad etiquette to enter the well without
the sting permission from the judge
Cal Poly Mock Trial Textbook 175

Most-Common Objections Cheat Sheet


OBJECTION EXPLANATION MRE
Argumentative Q provokes or harasses witness, or offers an argument
Asked & Answered Q has been asked by this atty. & answered by this wit.
Vague witness cannot understand or clearly answer question
question calls for information witness does not know 602
Calls for Speculation firsthand
More Prejudicial The evidence is so prejudicial that its probative value is 403
than Probative outweighed by its prejudicial effect.
lay witness: asks for expert opinion 701
Unqualified Opinion
expert wit.: asks for opinion outside witness’s expertise 703
Leading question is leading (suggests its own answer) 611(c)
response is narrative
Narrative
question calls for a narrative response
question goes beyond scope of previous re-direct/re- 611(b)
Beyond the Scope cross
Relevance question calls for information not relevant to case 402
Lack of Personal 602
same as Calls for Speculation
Knowledge
Assumes facts not in
question/answer assumes facts not (yet) proven
Evidence
Authenticity the authenticity of a document has not been established 901(a)
Proper foundation has not been laid for the witness’s
Lack of Foundation testimony / introduction of this exhibit.
Misstates 403
opposing counsel misstated previous testimony/evidence
Evidence/Testimony
Improper
opposing counsel offered an improper characterization
Characterization
Hearsay question/answer calls for/contains hearsay 802
Hearsay within question/answer calls for/contains hearsay within 805
Hearsay hearsay
Nonresponsive witness on cross does not respond to question asked
Compound Q asks more than one thing, making any answer unclear
Cumulative Q asks for info. that has already come out in this exam.
Too General Q encourages wit. to introduce irrelevant info.
Cal Poly Mock Trial Textbook 176

MRE Cheat Sheet

103(a)(1) Offer of Proof 408: compromise and offers of compromise

106 Rule of Completeness: immediate 409: payment of medical expenses


introduction of remainder of writing/ statement
410: pleas, statements in plea bargaining
201 Judicial Notice
411: possession of liability insurance
Relevance / Admissibility
Privileges
401. Relevant Evidence: defined
501: no privileges except per MRE or case
402: all relevant evidence admissible law

403: more prejudicial than probative Witnesses Generally

Character Evidence 601: Everyone is competent to be a witness

404(a): character evidence to prove conduct 602: lack of personal knowledge by witness
not admissible, except:
603: witnesses are presumed sworn
404(a)(1): Character of Accused – from
accused; in rebuttal by prosecution; 605: Judge may not be a witness
comparison to victim
607: Any party may impeach
404(a)(2): Character of Victim – from
accused; in rebuttal by prosecution Evidence of Character of Witness

404(a)(3): Character of Witnesses (607-609) 608(a): as shown by opinion or reputation

404(b): previous wrongs not admissible to 608(b): specific instances of conduct


prove action in conformity with character; admissible only regarding truthfulness
admissible for other reasons
Impeachment of Witness by Evidence of
405 Methods of Proving Character: Former Conviction
reputation, opinion, sometimes conduct
609(a)(1): if penalty >1yr or death
406: habit/routine admissible to prove conduct
609(a)(2): or: crime of dishonesty
Evidence Not Admissible to Show
Negligence or Value of Damage, but 609(b): conviction within last 10 years
Admissible for Other Reasons
609(c): not admissible if witness later found
407: subsequent remedial measures not guilty, pardoned, etc. AND has not been
convicted later of crime with penalty >1 yr.
Cal Poly Mock Trial Textbook 177

704(b): experts may not testify to the mental


609 (d): juvenile convictions gen. state, at the time of the incident, of the
inadmissible defendant, if relevant to charge or defense
705: experts may state opinion without giving
609(e): convictions under appeal admissible underlying facts or data

Witnesses/Examination Generally Hearsay

610: religious belief inadmissible to support / 801(a-c): definitions


undermine witness’s credibility
801(d): not hearsay if:
611(b): re-direct and re-cross limited in
scope to previous round of questioning 801(d)(1): prior inconsistent statement
by witness available for cross
611(c): no leading questions on direct
801(d)(2): Admission by party-
612: witness may refresh memory with any opponent
AMTA material
802: hearsay inadmissible
613(a): witness need not be shown prior
statement Hearsay Exceptions

613(b): Extrinsic evidence of prior 803(1): Present sense impression


inconsistent statement gen. inadmissible
unless opportunity for cross/re-direct 803(2): Excited utterance

614: court may not call/question witnesses 803(3): then existing condition

615: constructive exclusion of witnesses 803(4): statement towards medical diagnosis

Opinion Evidence / Expert Witnesses 803(5): Recorded recollection

701: lay opinion admissible if based on 803(6): regularly conducted activity


perception, helpful, not based on expert
knowledge 803(7): absence of entry in 803(6) records

702: Scientific or technical testimony must 803(8): Public records or reports.


come from qualified expert witness
803(9): Records of vital statistics.
703: Experts may base opinions on methods
used in their field, and on evidence not 803(10): Absence of public record or entry.
otherwise admitted or admissible.
803(11): Records of religious org.
704(a): expert opinion on ultimate issue OK
803(12): Marriage, baptism, etc. certificates
Cal Poly Mock Trial Textbook 178

803(13): Family records 805: Hearsay within hearsay

803(14): Records of documents affecting an Authentication


interest in property.
901: list of accepted methods for
803(15): Statements in documents affecting an authenticating/identifying persons, voices,
interest in property. documents, etc.

803(16): Statements in ancient docs. 902: Self-Authentication: the following self-


authenticate:
803(17): Market reports, commercial
publications. 902(1) domestic public docs under seal
902(2) same, not under seal
803(18): Learned treatises. 902(3) foreign public docs
902(4) certified copies of pub. records
803(19): Reputation concerning personal or 902(5) official publications
family history. 902(6) newspapers and periodicals
902(7) trade inscriptions, etc.
803(20): Reputation concerning boundaries or 902(8) acknowledged docs
general history. 902(9) commercial paper, etc.
902(11) certified domestic records of
803(21): Reputation as to character. regularly conducted activity
902(12) certified foreign same
803(22): Judgment of previous conviction.
903 subscribing witnesses need not testify to
803(23): Judgment as to personal, family, or authenticate
general history, or boundaries
Best Evidence / Original Docs Rule
Hearsay Exceptions; Declarant Unavailable
1001: definitions
804(a): Witness unavailable if:
804(a)(1): Exempted by court 1002/1003: original or exact duplicate
804(a)(2): Refuses to testify required
804(a)(3): Lack of memory
804(a)(4): Dead or mental illness 1004: non-duplicate copy OK if original is lost
or unobtainable
804(b): Exceptions:
804(b)(1): Former testimony 1005: original public docs not required if
804(b)(2): Statement under belief of competent witness can testify to faithful copy
impending death.
804(b)(3): Statement against interest. 1006: summaries of extensive originals
804(b)(4): Statement of personal or permissible
family history.
804(b)(6): Forfeiture by wrongdoing
(when opp. party is responsible for
witness’ unavailability)
Cal Poly Mock Trial Textbook 179

Notes

Chapter One
1
This chapter draws from Steven Lubet and Jill Trumbull-Harris. Mock Trials: Preparing, Presenting, and Winning
Your Case. Louisville, Colo.: National Institute for Trial Advocacy, 2001, and from Thomas A. Mauet. Trial
Techniques. Seventh edition. New York: Aspen Publishers, 2007.
2
Lubet and Trumbull-Harris.

Chapter Five
3
Lubet and Trumbull-Harris, 29.
4
Lubet and Trumbull-Harris, 38.

Chapter Six
5
Mauet, 61-62.
6
Lubet and Trumbull-Harris, 200.
7
Lubet and Trumbull-Harris, 202-203.
8
Mauet, 64-66.
9
Mauet, 74-84.
10
Mauet, 187.

Chapter Nine
11
Lubet and Trumbull-Harris, 155.
12
Mauet, 254-257.
13
Mauet, 257.

Chapter Twelve
14
Lubet and Trumbull-Harris, 123.
15
Lubet and Trumbull-Harris, 124.
16
Lubet and Trumbull-Harris, 128.
17
Lubet and Trumbull-Harris, 222.
18
Lubet and Trumbull-Harris, 225.
19
Mauet, 397.