Mock Trial Rules of Evidence

101

Scope: These rules govern the National HS Mock Trial Championship.

102

Purpose: Made to administer fair proceedings, secure just determination, ascertain truth.

201 (a)

Governs judicial notice of adjudicative fact, not legislative fact.

201 (b)

Court may notice facts out of dispute (2+2=4)

201 (c)

Court must take judicial notice if a party requests it and the court is supplied with proper information.

201 (d)

Court may take judicial notice at any stage of trial.

201 (e)

Party is entitled to be heard on propriety of taking judicial notice/nature of fact being noticed.

201 (f)

In a civil case, court must notify jury to accept an adjudicative fact. Criminal case, jury may or may not accept fact.

401 (a)

Evidence is relevant if it makes a fact more probable than without the evidence.

401 (b)

Evidence is relevant if the fact is of consequence in determining the action.

402

Relevant evidence is admissible unless said otherwise. Irrelevant evidence is not admissible.

403

Court may exclude relevant evidence if probative value is outweighed by danger of unfair prejudice, confusing issues, misleading jury, undue delay, wasting time, needlessly presenting cumulative evidence.

404

Character evidence

404 (a) (1)

Evidence of a person's character or character trait is not admissible to prove that the person acted in accordance with the character or trait.

404 (a) (2) (A)

Defendant MAY offer evidence of the defendant's pertinent trait, if admitted, prosecutor may rebut.

404 (a) (2) (B)

Defendant may offer evidence of victim's pertinent trait, if admitted, prosecutor may rebut.

404 (a) (2) (C)

In a homicide case prosecutor may offer evidence of victim's trait of peacefulness to rebut evidence that victim was first aggressor.

404 (a) (3)

Evidence of a witness's character may be admitted under 607, 608, and 609.

404 (b) (1)

Evidence of a crime, wrong, etc. is not admissible to prove a person's character to show that they acted in accordance with that character.

404 (b) (2)

Evidence or crime, wrong, etc. is admissible for another purpose such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

405 (a)

When character evidence is admissible it may be proved by testimony in the form of an opinion. On cross, court may allow inquiry into specific instances.

405 (b)

When a person's character is an essential element of a charge, claim, or defense, specific instances of conduct are admissible.

406

Evidence of a habit or routine practice is admissible prove that a person or organization acted in accordance with the same.

407

When measures are taken to make injury or harm less likely, evidence of subsequent measures is not admissible to prove negligence, culpable, defect in product or its design, need for a warning or instruction.

408 (a) (1)

Not admissible to prove validity or amount of claim, or to impeach: furnishing, promising, offering, accepting, promising, offering to accept a valuable consideration in compromising or attempting to compromise claim.

408 (a) (2)

Not admissible to prove validity or amount of claim, or to impeach: conduct or statement made during compromise negotiations, except when offered in a criminal case and when negotiations related to claim by public office in exercise of regulatory, investigative or enforcement authority.

408 (b)

Court may admit evidence in 408 (a) (1) and (2) for another purpose, such as proving a witness's bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct investigation or prosecution.

409

Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from injury is not admissible to prove liability.

410

Pleas, Plea Discussions, and Related Statements

410 (a) (1)

Evidence of the following is not admissible as evidence against the defendant: A guilty plea that was later withdrawn.

410 (a) (2)

Evidence of the following is not admissible as evidence against the defendant: A nolo contendere (no contest) plea.

410 (a) (3)

Evidence of the following is not admissible as evidence against the defendant: statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure.

410 (a) (4)

A statement made during plea discussions with a prosecuting attorney IF discussions did not result in a guilty plea.

410 (b) (1)

The court may accept a statement described in 401 (a) (3) or (4) in any proceeding in which another statement made during plea proceedings has been entered and the statements ought to be considered together.

410 (b) (2)

The court may accept a statement described in 401 (a) (3) or (4) in a criminal proceeding for perjury or false statement if the defendant made the statement under oath, on the record, with counsel present.

411

(Civil case only) Evidence that a person was/was not insured against liability is not admissible to prove that that person acted negligently or wrongfully. Court may accept this evidence for another purpose.

501

Excluded from evidence on grounds of public policy: communications between husband and wife; communications between attorney and client; communications among grand jurors; secrets of state; communications between psychiatrist and patient.

601

Every person is competent to be a witness.

602

A witness may testify to a matter only if evidence is introduced to support a finding that the witness has personal knowledge of the matter. May include witness's own testimony. Does not apply to expert testimony under 703.

607

Any party, including the party that called the witness, may attack the witness's credibility.

608 (a)

Reputation or opinion evidence: A witness's credibility may be attacked or supported by testimony about witness's character for (un)truthfulness or testimony in the form of opinion. Support is admissible only after witness's character for truthfulness has been attacked.

608 (b)

Except for a criminal conviction under 609, extrinsic evidence is not admissible to prove specific instances of conduct to attack or support witness's character for truthfulness. May be inquired into on cross to prove (un)truthfulness of witness or another witness whom the witness has testified about. Witness does not waive privilege against self-incrimination for testimony that only relates to witness's character for truthfulness.

609 (a) (1)

In order to attack a witness's character for truthfulness by evidence of criminal conviction, crimes punishable by death or imprisonment >1 year must be admitted in a case in which the witness is NOT a defendant, and a case in which the witness IS a defendant if the prejudicial effect < probative value .

609 (a) (2)

To attack witness's character for truthfulness by evidence of conviction, court must prove that establishing elements of crime required proving a dishonest act or false statement.

609 (b)

Evidence of conviction is only admissible after 10 years if its probative value substantially outweighs its prejudicial effect.

609 (c)

Evidence of a conviction is not admissible if pardoned, annulled, rehabilitated, etc.

609 (d)

Evidence of juvenile adjudication is admissible if: it is offered in a criminal case, adjudication was of witness other than defendant, an adult's conviction for same offense would be admissible, and, admitting evidence is necessary for fair trial.

609 (e)

A conviction that satisfies 609 (a), (b), (c), (d) is admissible even if appeal is pending.

610

Evidence of a witness's religious beliefs is not admissible to attack or support credibility.

611 (a)

Court should exercise reasonable control over presentation of witnesses and evidence to make procedures effective for determining the truth, avoid wasting time, and protect witnesses from harassment or embarrassment.

611 (b)

Scope of cross examination is not limited to scope of direct examination.

611 (c)

Leading questions should not be used on direct except to develop testimony. Leading questions are allowed on cross or on adverse witnesses.

611 (d)

Redirect/Re-cross is permitted, but must be limited to scope of cross and redirect, respectively.

612

If writing is used to refresh memory, adverse party may examine and question the witness on the writing.

613 (a)

When examining a witness about a prior statement, a party does not need to show it or disclose its contents to the witness. Must on request show or disclose contents to adverse party.

613 (b)

Extrinsic evidence of a witness's inconsistent statement is admissible only if witness is given opportunity to explain/deny statement and adverse party is given opportunity to ask questions, OR if justice so requires. Does not apply to statements under 801 (d) (2).

701

If a witness is not testifying as an expert, testimony in the form of an opinion must be rationally based on witness's perception and helpful to clearly understanding the witness's testimony or determining a fact in issue, and not based or specialized knowledge within the scope of 702.

702

If specialized knowledge will assist trier of fact to understand evidence or determine a fact in issues, experts may be called to testify on that matter.

703

If facts required for an expert to form an opinion would normally be inadmissible, the opinion is admissible if the facts are those normally required for an expert to form an opinion. Otherwise, the expert may disclose the facts only if their probative value is outweighed by prejudicial effect.

704 (a)

An opinion is not automatically objectionable just because it embraces an ultimate issues.

704 (b)

In a criminal case an expert may not state an opinion about whether the defendant did/did not have a mental state or condition that constitutes an element of the crime charged or of a defense.

705

An expert may state an opinion without testifying as to the underlying facts. They may be inquired upon in cross.

801

Hearsay is a statement that a party offers in evidence to prove the truth of the matter asserted in the statement, when the declarant does not testify.

801 (d) (1)

Not hearsay: a declarant witness's prior statement

801 (d) (2)

Not hearsay: an opposing party's statement

802

Hearsay is not permitted except as provided by below rules.

803 (1)

Hearsay exceptions: Present sense impression

803 (2)

Hearsay exceptions: Excited utterance

803 (3)

Hearsay exceptions: Then-existing mental, emotional, or physical condition

803 (4)

Hearsay exceptions: Statement made for medical diagnosis or treatment

803 (5)

Hearsay exceptions: Recorded recollection

803 (6)

Hearsay exceptions: Records of regularly conducted activity

803 (7)

Hearsay exceptions: Absence of record of regularly conducted activity

803 (8)

Hearsay exceptions: Public records

803 (10)

Hearsay exceptions: Absence of a public record

803 (16)

Hearsay exceptions: Statements in ancient documents

803 (18)

Hearsay exceptions: Statements in learned treatises, periodicals, or pamphlets

803 (21)

Hearsay exceptions: Reputation concerning character

803 (22)

Hearsay exceptions: Judgement of a previous conviction

804 (a)

Hearsay exceptions; declarant unavailable: Criteria for being unavailable

804 (b)

Hearsay exceptions; declarant unavailable: Exceptions

805

Hearsay within hearsay is not excluded by the rule against hearsay if both instances meet a hearsay exception.

1103

These rules shall be known and cited as the National High School Mock Trial Rules of Evidence.