Mock Trial Rules of Evidence

Rule 47

Argumentative/Ambiguous Questions and Non-Responsive Answers

47(a)

Argumentative—An attorney shall not ask a question which asks the witness to agree to a conclusion drawn by the questions without eliciting testimony as to new facts; provided, however, that the Court may in its discretion allow limited use of argumentative questions on cross examination

47(b)

Ambiguous Questions—An attorney shall not ask questions that are capable of being understood in two or more possible ways.

47(c)

Non-Responsive Answer—A witness' answer is objectionable if it fails to respond to the question asked.

Rule 48

Assuming Facts Not in Evidence. An attorney shall not ask a question that assumes unproved facts. However, an expert witness may be asked a question based upon stated assumptions, the truth of which is reasonably supported by the evidence.

Rule 49

Lack of Proper Predicate/Foundation. Attorneys shall lay a proper foundation prior to moving admission of evidence. After the motion has been made, the exhibits may still be objectionable on other grounds.

Rule 51

Use of Notes. Attorneys may use notes in presenting their cases. Witnesses are not permitted to use notes while testifying during the trial. Attorneys may consult with each other at counsel table verbally or through the use of notes.

Rule 52

Redirect/Recross. Redirect and Recross examinations are permitted, provided they conform to the restrictions in Rule 611(d) in the Rules of Evidence.

Rule 53

Special Mock Trial Objections

53(a)

"Objections" during Openings/Closings: No objections may be raised during opening statements or during closing arguments. If a team believes an objection would have been proper during the opposing team's opening statement or closing argument, one of its attorneys (per Rule 15(j)) may, following the opening statement or closing argument, stand to be recognized by the judge and may say, "If I had been permitted to object during [opening statement or closing argument], I would have objected to the opposing team's statement that ________________." The opposing team is allowed a response. The presiding judge will not rule on the "objection." Presiding and scoring judges will weigh the "objection" and response (if given) individually.

53(b)

Scope of Closing Arguments: Closing Arguments must be based on the actual evidence and testimony presented and admitted during the trial.

53(c)

Filibustering or Deliberate Time Wasting: Although a witness may be permitted to give a brief, responsive answer other than a simple "yes" or "no" to questions on cross-examination, consistent with common trial practice, no witness may provide non-responsive or narrative answers on cross-examination in order to consume the other team's cross-examination time. The presiding judge is encouraged to control any effort at marginally-responsive, narrative "filibustering" or "deliberate time wasting." If a team believes that an opposing team's witness has engaged in excessive or intentional evasiveness and/or excessive or intentional non-responsive answers on cross, solely to use up an opponent's allotted cross examination time, and the attorney handling the cross examination of that witness has exhausted all methods of attempting to control that witness, that attorney may, during or at the end of that cross examination make an "objection" to "filibustering or deliberate time wasting" on the part of that witness.

53(c)(1)

If an attorney makes this objection, s/he may ask to be recognized by the presiding judge saying, "Your honor, I object to the deliberate time wasting displayed by Witness X. I believe his/her sole purpose for using this tactic was to use up my allotted time during cross examination."

53(c)(2)

The presiding judge shall rule on this objection, and may indicate to scoring evaluators that they may consider the objection at their discretion when completing their scoresheet (see Rule 37 for point deductions for rules infractions). Upon determining that the opposing team violated this Rule, the judge has the discretion to add to the objecting team's cross examination time per Rule 19.

53(c)(3)

Evaluators may deduct points for filibustering or deliberate time wasting from any witness or witnesses and any team whose conduct properly draws such an objection or reasonably could have properly drawn such an objection even if no objection is made, and whether or not the presiding judge has directed the witness to answer more responsively. Evaluators should deduct points for filibustering or deliberate time wasting that persists after such a direction by the presiding judge. Evaluators may also award additional points to attorneys or teams that effectively control witnesses/teams that use such delaying tactics during the cross examination, regardless of an objection under this rule being made.

Rule 401

Test for Relevant Evidence. Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.

Rule 402

General Admissibility of Relevant Evidence. Relevant evidence is admissible unless these rules provide otherwise. Irrelevant evidence is not admissible

Rule 403

Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons. The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence

Rule 404

Character Evidence; Crimes or Other Acts

404(a)

Character Evidence.

404(a)(1)

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

404(a)(2)

Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:

404(a)(2)(a)

a defendant may offer evidence of the defendant's pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;

404(a)(2)(b)

a defendant may offer evidence of an alleged victim's pertinent trait, and if the evidence is admitted, the prosecutor may:
i. offer evidence to rebut it; and
ii. offer evidence of the defendant's same trait; and

404(a)(2)(c)

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

404(a)(3)

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

404(b)

Other Crimes, Wrongs, or Other Acts.

404(b)(1)

Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.

404(b)(2)

Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

Rule 405

Methods of Proving Character

405(a)

By Reputation or Opinion. When evidence of a person's character or character trait is admissible, it may be proved by testimony about the person's reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person's conduct.

405(b)

By Specific Instances of Conduct. When a person's character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person's conduct.

Rule 406

Habit, Routine Practice. Evidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

Rule 407

Subsequent Remedial Measures. When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:
− negligence;
− culpable conduct;
− a defect in a product or its design; or
− a need for a warning or instruction.
But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.

Rule 409

Offers to Pay Medical and Similar Expenses (civil case only) Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.

Rule 410

Pleas, Plea Discussions, and Related Statements

410(a)

Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:

410(a)(1)

a guilty plea that was later withdrawn;

410(a)(2)

a nolo contendere plea;

410(a)(3)

a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or

410(a)(4)

a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

410(b)

Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4):

410(b)(1)

in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or

410(b)(2)

in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.

Rule 510

Rule 501. General Rule There are certain admissions and communications excluded from evidence on grounds of public policy. Among these are:

1. communications between spouses;

2. communications between attorney and client;

3. communications among grand jurors;

4. secrets of state; and

5. communications between medical or mental health care providers and patient.

Rule 602

Need for Personal Knowledge A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own testimony. This rule does not apply to a witness's expert testimony under Rule 703. (See Rule 2.2)

Rule 608

A Witness's Character for Truthfulness or Untruthfulness
608(a)
608(b)
By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness's character for truthfulness.

608(a)

Reputation or Opinion Evidence. A witness's credibility may be attacked or supported by testimony about the witness's reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked.

608(b)

Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness. But the court may, on cross examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

1. the witness; or

2. another witness whose character the witness being cross-examined has testified about

Rule 609

Impeachment by Evidence of a Criminal Conviction

609(a)

In General. The following rules apply to attacking a witness's character for truthfulness by evidence of a criminal conviction:

609(a)(1)

for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:
a. must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and
b. must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and

609(a)(2)

for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness's admitting — a dishonest act or false statement.

609(b)

Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness's conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect

609(c)

Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:

609(c)(1)

the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year; or

609(c)(2)

the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

609(d)

Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:

1. it is offered in a criminal case;

2. the adjudication was of a witness other than the defendant;

3. an adult's conviction for that offense would be admissible to attack the adult's credibility; and

4. admitting the evidence is necessary to fairly determine guilt or innocence.

609(e)

Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.

Rule 611

Mode and Order of Interrogation and Presentation

611(a)

Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

1. make those procedures effective for determining the truth;

2. avoid wasting time; and

3. protect witnesses from harassment or undue embarrassment.

611(b)

Scope of cross-examination. The scope of the cross examination shall not be limited to the scope of the direct examination, but may inquire into any relevant facts or matters contained in the witness' statement and/or any exhibits, including all reasonable inferences that can be drawn from those facts and matters, and may inquire into any omissions from the witness statement that are otherwise material and admissible.

611(c)

Leading Questions. Leading questions should not be used on direct examination of a witness (except as may be necessary to develop the witness' testimony). Ordinarily, leading questions are permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, leading questions may be used. A hostile witness may only be called pursuant to Rule 15(k).

611(d)

Redirect/Re-cross. After cross-examination, additional questions may be asked by the direct examining attorney, but questions must be limited to matters raised by the attorney on cross-examination. Likewise, additional questions may be asked by the cross-examining attorney or re-cross, but such questions must be limited to matters raised on redirect examination and should avoid repetition.

611(e)

Permitted Motions. The only motion permissible is one requesting the judge to strike testimony following a successful objection to its admission.

Rule 612

Writing Used to Refresh a Witness's Memory

612(a)

Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory:

1. while testifying; or

2. before testifying, if the court decides that justice requires the party to have those options.

612(b)

Adverse Party's Options. An adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness's testimony.

Rule 613

Witness's Prior Statement

613(a)

Showing or Disclosing the Statement During Examination. When examining a witness about the witness's prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party's attorney

613(b)

Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness's prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party's statement under Rule 801(d)(2).

Rule 701

Opinion Testimony by Lay Witness. If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

701(a)

rationally based on the witness's perception;

701(b)

helpful to clearly understanding the witness's testimony or to determining a fact in issue; and

701(c)

not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Rule 702

Testimony by Experts A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

702(a)

the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; and

702(b)

the testimony is based on sufficient facts or data.

Rule 703

Bases of an Expert's Opinion Testimony. An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

Rule 704

Opinion on Ultimate Issue

704(a)

In General — Not Automatically Objectionable. An opinion is not objectionable just because it embraces an ultimate issue.

704(b)

Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.

Rule 705

Disclosing the Facts or Data Underlying An Expert's Opinion Unless the court orders otherwise, an expert may state an opinion — and give the reasons for it — without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination.

Rule 801

Definitions The following definitions apply under this article:

801(a)

Statement. "Statement" means a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

801(b)

Declarant. "Declarant" means the person who made the statement

801(c)

Hearsay. "Hearsay" means a statement that:
801(c)(1)
801(c)(2)

801(c)(1)

the declarant does not make while testifying at the current trial or hearing; and

801(c)(2)

a party offers in evidence to prove the truth of the matter asserted in the statement.

801(d)

Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:

801(d)(1)

A Declarant-Witness's Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

801(d)(1)(a)

is inconsistent with the declarant's testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;

801(d)(1)(b)

is consistent with the declarant's testimony and is offered

801(d)(1)(b)(i)

to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or

801(d)(1)(b)(ii)

to rehabilitate the declarant's credibility as a witness when attacked on another ground; or

801(d)(1)(c)

identifies a person as someone the declarant perceived earlier.

801(d)(2)

An Opposing Party's Statement. The statement is offered against an opposing party and:
801(d)(2)(a)
801(d)(2)(b)
801(d)(2)(c)
801(d)(2)(d)
801(d)(2)(e)
The statement must be considered but does not by itself establish the declarant's authority under (c); the existence or scope of the relationship under (d); or the existence of the conspiracy or participation in it under (e).

801(d)(2)(a)

was made by the party in an individual or representative capacity;

801(d)(2)(b)

is one the party manifested that it adopted or believed to be true;

801(d)(2)(c)

was made by a person whom the party authorized to make a statement on the subject;