Rules of Evidence

PART VI MOCK TRIAL RULES OF EVIDENCE In American courts, complex rules are used to govern the admission of proof (both oral and physical evidence). These rules are to ensure all parties a fair hearing as well as to exclude evidence deemed irrelevant, incompetent, untrustworthy, unduly prejudicial, or otherwise improper. Attorneys must use the evidence rules, by making objections, to protect their client and fairly limit the actions of opposing counsel and their witnesses. For  purposes  of mock trial  competition, the Rules  of Evidence  have  been modified  and  simplified. They  are  based  on  the Federal Rules of Evidence and the New Jersey Rules of Evidence and their parallel numbering system. Where rule numbers or letters are skipped, those rules were not deemed applicable to mock trial procedure. The High School Mock Trial Rules of Evidence are fully set forth below. DO NOT refer to any other outside materials or source other than these rules when making or responding to objections. Rules 1201 and 1202 have been added as no parallel rules exist in either the Federal or State Rules of Evidence. Not all judges will interpret the Rules of Evidence (or procedure) in the same way, and mock trial attorneys should be prepared to point out specific rules for reference (quoting, if necessary) and to argue persuasively for the interpretation and  application of the rule they think appropriate. Judges are asked to adjust scoring to reflect how well attorneys pose and  respond to objections. Judges are encouraged to have attorneys explain their positions more than might be expected in a real courtroom, so you may demonstrate your knowledge of how the evidence rules apply in court. While the evidence rules are numbered, attorneys are expected to refer to the rules by description but may also refer to them by number. Memorizing the evidence rule numbers is not necessary. However, if a Judge asks for a rule number, the mock trial attorney should be prepared to give the rule number referenced. Note that multiple evidence objections may be under a single rule number. Additionally, where a witness makes a statement which is objected to and the Judge sustains the objection, the mock trial attorney may also request: “I ask that the jury be directed to disregard the witness’s last statement” or “I ask that the witness’s last statement be stricken from the record.” ARTICLE IV. RELEVANCY AND ITS LIMITS 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. Example of objection to irrelevant evidence: “I object, your Honor. This testimony is not relevant to the facts of the case.” 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, needlessly presenting cumulative evidence, or unfair extrapolation. The probative value of evidence is the tendency of the evidence to establish the proposition that it is offered to prove. In determining the probative value of evidence, the focus is upon the logical connection between the proffered evidence and the fact in issue. Example of objection to compound question: “Objection. Counsel is asking the witness a compound question.” Example of objection to mischaracterization of testimony: “Objection. Counsel is mischaracterizing the witness’s testimony.” 13581_REV.indd 26 9/22/16 2:18 PM 24 27 Example of objection to assuming facts not in evidence: “Objection. Counsel’s question (or closing argument) assumes facts which are not in evidence.” Example of objection to unfair extrapolation: “Objection, the witness’ unfair extrapolation is in violation of Rule 5:4-5 in that it goes beyond the witness’ statement/deposition/testimony or any reasonable inference to be drawn therefrom.” NOTE: While “needless presentation of cumulative evidence” may support the objection that a question was already “asked and answered,” this objection is not allowed in Mock Trial Rules. The prescribed time limits already discourage repetitive questioning. Rule 404. Character Evidence not Admissible to Prove Conduct; Exceptions (a) Character Evidence Generally. Evidence of a person’s character or character trait, including a trait of care or skill or lack thereof, is not admissible for the purpose of proving that on a particular occasion the person acted in accordance with the character or character trait. This rule does not apply to evidence admissible under Rule 406, however. Example of objection to improper character testimony: “Objection. Counsel’s question is inadmissible, as it goes to the witness’s character.” NOTE: That is, you cannot show that someone acted a certain way just because they did a similar act in the past. BUT see habit evidence, Rule 406, below. (b) Crimes, Wrongs, or Other Acts (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. (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 when such matters are relevant to a material issue in dispute. (c) Character and Character Trait in Issue. Evidence of a person’s character or trait of character is admissible when that character or trait is an element of a claim or defense. Rule 405. Methods of Proving Character (a) Reputation or opinion. When evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or in the form of an opinion. On cross-examination, questions may be asked regarding relevant, specific conduct. (b) Specific instances of conduct. When character or a trait of character of a person is an essential element of a charge, claim, or defense, evidence of specific instances of conduct may also be admitted. 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. The witness’ knowledge must be that the person or organization has engaged in the habit or routine practice on many occasions. The habit or routine practice must be specific, or else it is inadmissible under Rule 404(a) as character evidence.  13581_REV.indd 27 9/22/16 2:18 PM 25 28 NOTE: For example, if a witness knows X always uses their seatbelt when getting into a car, as the witness has often seen them get into a car many times and buckle the seatbelt, the witness may be permitted to testify to this habit. The key to admissibility is that X engages in the conduct of wearing their seatbelt on a regular basis. The habit must be specific or  routine must be specific in nature. The witness cannot make the broad statement, for example, that X is a careful driver. ARTICLE VI. WITNESSES Rule 601. Competency to be a Witness Each mock trial witness is competent to be a witness and may testify in accordance with their witness statement, deposition, prior testimony, the facts contained in the Statement of Facts and the documents provided. A witness may testify as to any reasonable inference to be drawn from these facts. Example of objection to unfair extrapolation: “Objection, the witness’ unfair extrapolation is in violation of Rule 5:4-5 in that it goes beyond the witness’ statement/deposition/testimony/Statement of Facts/documents or any reasonable inference to be drawn therefrom.” Rule 602. Need for Personal Knowledge A witness may testify to a matter only if evidence is introduced establishing 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, which is governed by Rule 703. Example of objection to lack of personal knowledge: “Objection. The witness has no personal knowledge that would enable the witness to answer this question.” Example of objection to speculation: “Objection. The question calls for speculation on the part of the witness.” Rule 607. Who May Impeach a Witness Any party, including the party that called the witness, may attack the witness’s credibility. Also see R.5:4-6. NOTE: That is, an attorney may ask questions to show that the witness is lying or lied on a prior occasion. Rule 608. Evidence of Character for Truthfulness or Untruthfulness and Conduct of Witnesses (a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, provided, however, that (1) the evidence relates only to the witness’ character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. (b) Specific Instances of Conduct.    Specific  instances  of  the  conduct  of  a  witness,  for  the  purpose  of  attacking  or supporting the witness’ character for truthfulness may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness, (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. Rule 611. Mode and Order of Interrogation and Presentation (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 and (2) protect witnesses from harassment or undue embarrassment. Example of objection to argumentative question: “Objection. Counsel’s question is argumentative.” (b) Leading and Narrative Questions. 13581_REV.indd 28 9/22/16 2:18 PM Rule 608. Evidence of Character for Truthfulness or Untruthfulness and Conduct of Witnesses (a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, provided, however, that (1) the evidence relates only to the witness’ character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. (b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ character for truthfulness may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness, (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified Rule 609. Impeachment by Evidence of a Criminal Conviction (a) In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction: (1) for a crime that, in the convicting jurisdiction, was punishable by imprisonment for more than one year, the evidence: (A) must be admitted, subject to Rule 403, in a criminal case in which the witness is not a defendant. Rule 611. Mode and Order of Interrogation and Presentation (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 and (2) protect witnesses from harassment or undue embarrassment. Example of objection to argumentative question: “Objection. Counsel’s question is argumentative.” 28 NOTE: For example, if a witness knows X always uses their seatbelt when getting into a car, as the witness has often seen them get into a car many times and buckle the seatbelt, the witness may be permitted to testify to this habit. The key to admissibility is that X engages in the conduct of wearing their seatbelt on a regular basis. The habit must be specific or  routine must be specific in nature. The witness cannot make the broad statement, for example, that X is a careful driver. ARTICLE VI. WITNESSES Rule 601. Competency to be a Witness Each mock trial witness is competent to be a witness and may testify in accordance with their witness statement, deposition, prior testimony, the facts contained in the Statement of Facts and the documents provided. A witness may testify as to any reasonable inference to be drawn from these facts. Example of objection to unfair extrapolation: “Objection, the witness’ unfair extrapolation is in violation of Rule 5:4-5 in that it goes beyond the witness’ statement/deposition/testimony/Statement of Facts/documents or any reasonable inference to be drawn therefrom.” Rule 602. Need for Personal Knowledge A witness may testify to a matter only if evidence is introduced establishing 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, which is governed by Rule 703. Example of objection to lack of personal knowledge: “Objection. The witness has no personal knowledge that would enable the witness to answer this question.” Example of objection to speculation: “Objection. The question calls for speculation on the part of the witness.” Rule 607. Who May Impeach a Witness Any party, including the party that called the witness, may attack the witness’s credibility. Also see R.5:4-6. NOTE: That is, an attorney may ask questions to show that the witness is lying or lied on a prior occasion. Rule 608. Evidence of Character for Truthfulness or Untruthfulness and Conduct of Witnesses (a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, provided, however, that (1) the evidence relates only to the witness’ character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. (b) Specific Instances of Conduct.    Specific  instances  of  the  conduct  of  a  witness,  for  the  purpose  of  attacking  or supporting the witness’ character for truthfulness may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness, (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. Rule 611. Mode and Order of Interrogation and Presentation (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 and (2) protect witnesses from harassment or undue embarrassment. Example of objection to argumentative question: “Objection. Counsel’s question is argumentative.” (b) Leading and Narrative Questions. 13581_REV.indd 28 9/22/16 2:18 PM 28 NOTE: For example, if a witness knows X always uses their seatbelt when getting into a car, as the witness has often seen them get into a car many times and buckle the seatbelt, the witness may be permitted to testify to this habit. The key to admissibility is that X engages in the conduct of wearing their seatbelt on a regular basis. The habit must be specific or  routine must be specific in nature. The witness cannot make the broad statement, for example, that X is a careful driver. ARTICLE VI. WITNESSES Rule 601. Competency to be a Witness Each mock trial witness is competent to be a witness and may testify in accordance with their witness statement, deposition, prior testimony, the facts contained in the Statement of Facts and the documents provided. A witness may testify as to any reasonable inference to be drawn from these facts. Example of objection to unfair extrapolation: “Objection, the witness’ unfair extrapolation is in violation of Rule 5:4-5 in that it goes beyond the witness’ statement/deposition/testimony/Statement of Facts/documents or any reasonable inference to be drawn therefrom.” Rule 602. Need for Personal Knowledge A witness may testify to a matter only if evidence is introduced establishing 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, which is governed by Rule 703. Example of objection to lack of personal knowledge: “Objection. The witness has no personal knowledge that would enable the witness to answer this question.” Example of objection to speculation: “Objection. The question calls for speculation on the part of the witness.” Rule 607. Who May Impeach a Witness Any party, including the party that called the witness, may attack the witness’s credibility. Also see R.5:4-6. NOTE: That is, an attorney may ask questions to show that the witness is lying or lied on a prior occasion. Rule 608. Evidence of Character for Truthfulness or Untruthfulness and Conduct of Witnesses (a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, provided, however, that (1) the evidence relates only to the witness’ character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. (b) Specific Instances of Conduct.    Specific  instances  of  the  conduct  of  a  witness,  for  the  purpose  of  attacking  or supporting the witness’ character for truthfulness may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness, (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. Rule 611. Mode and Order of Interrogation and Presentation (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 and (2) protect witnesses from harassment or undue embarrassment. Example of objection to argumentative question: “Objection. Counsel’s question is argumentative.” (b) Leading and Narrative Questions. 13581_REV.indd 28 9/22/16 2:18 PM 28 NOTE: For example, if a witness knows X always uses their seatbelt when getting into a car, as the witness has often seen them get into a car many times and buckle the seatbelt, the witness may be permitted to testify to this habit. The key to admissibility is that X engages in the conduct of wearing their seatbelt on a regular basis. The habit must be specific or  routine must be specific in nature. The witness cannot make the broad statement, for example, that X is a careful driver. ARTICLE VI. WITNESSES Rule 601. Competency to be a Witness Each mock trial witness is competent to be a witness and may testify in accordance with their witness statement, deposition, prior testimony, the facts contained in the Statement of Facts and the documents provided. A witness may testify as to any reasonable inference to be drawn from these facts. Example of objection to unfair extrapolation: “Objection, the witness’ unfair extrapolation is in violation of Rule 5:4-5 in that it goes beyond the witness’ statement/deposition/testimony/Statement of Facts/documents or any reasonable inference to be drawn therefrom.” Rule 602. Need for Personal Knowledge A witness may testify to a matter only if evidence is introduced establishing 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, which is governed by Rule 703. Example of objection to lack of personal knowledge: “Objection. The witness has no personal knowledge that would enable the witness to answer this question.” Example of objection to speculation: “Objection. The question calls for speculation on the part of the witness.” Rule 607. Who May Impeach a Witness Any party, including the party that called the witness, may attack the witness’s credibility. Also see R.5:4-6. NOTE: That is, an attorney may ask questions to show that the witness is lying or lied on a prior occasion. Rule 608. Evidence of Character for Truthfulness or Untruthfulness and Conduct of Witnesses (a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, provided, however, that (1) the evidence relates only to the witness’ character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. (b) Specific Instances of Conduct.    Specific  instances  of  the  conduct  of  a  witness,  for  the  purpose  of  attacking  or supporting the witness’ character for truthfulness may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness, (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. Rule 611. Mode and Order of Interrogation and Presentation (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 and (2) protect witnesses from harassment or undue embarrassment. Example of objection to argumentative question: “Objection. Counsel’s question is argumentative.” (b) Leading and Narrative Questions. 13581_REV.indd 28 9/22/16 2:18 PM 28 NOTE: For example, if a witness knows X always uses their seatbelt when getting into a car, as the witness has often seen them get into a car many times and buckle the seatbelt, the witness may be permitted to testify to this habit. The key to admissibility is that X engages in the conduct of wearing their seatbelt on a regular basis. The habit must be specific or  routine must be specific in nature. The witness cannot make the broad statement, for example, that X is a careful driver. ARTICLE VI. WITNESSES Rule 601. Competency to be a Witness Each mock trial witness is competent to be a witness and may testify in accordance with their witness statement, deposition, prior testimony, the facts contained in the Statement of Facts and the documents provided. A witness may testify as to any reasonable inference to be drawn from these facts. Example of objection to unfair extrapolation: “Objection, the witness’ unfair extrapolation is in violation of Rule 5:4-5 in that it goes beyond the witness’ statement/deposition/testimony/Statement of Facts/documents or any reasonable inference to be drawn therefrom.” Rule 602. Need for Personal Knowledge A witness may testify to a matter only if evidence is introduced establishing 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, which is governed by Rule 703. Example of objection to lack of personal knowledge: “Objection. The witness has no personal knowledge that would enable the witness to answer this question.” Example of objection to speculation: “Objection. The question calls for speculation on the part of the witness.” Rule 607. Who May Impeach a Witness Any party, including the party that called the witness, may attack the witness’s credibility. Also see R.5:4-6. NOTE: That is, an attorney may ask questions to show that the witness is lying or lied on a prior occasion. Rule 608. Evidence of Character for Truthfulness or Untruthfulness and Conduct of Witnesses (a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, provided, however, that (1) the evidence relates only to the witness’ character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. (b) Specific Instances of Conduct.    Specific  instances  of  the  conduct  of  a  witness,  for  the  purpose  of  attacking  or supporting the witness’ character for truthfulness may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness, (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. Rule 611. Mode and Order of Interrogation and Presentation (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 and (2) protect witnesses from harassment or undue embarrassment. Example of objection to argumentative question: “Objection. Counsel’s question is argumentative.” (b) Leading and Narrative Questions. 13581_REV.indd 28 9/22/16 2:18 PM 28 NOTE: For example, if a witness knows X always uses their seatbelt when getting into a car, as the witness has often seen them get into a car many times and buckle the seatbelt, the witness may be permitted to testify to this habit. The key to admissibility is that X engages in the conduct of wearing their seatbelt on a regular basis. The habit must be specific or  routine must be specific in nature. The witness cannot make the broad statement, for example, that X is a careful driver. ARTICLE VI. WITNESSES Rule 601. Competency to be a Witness Each mock trial witness is competent to be a witness and may testify in accordance with their witness statement, deposition, prior testimony, the facts contained in the Statement of Facts and the documents provided. A witness may testify as to any reasonable inference to be drawn from these facts. Example of objection to unfair extrapolation: “Objection, the witness’ unfair extrapolation is in violation of Rule 5:4-5 in that it goes beyond the witness’ statement/deposition/testimony/Statement of Facts/documents or any reasonable inference to be drawn therefrom.” Rule 602. Need for Personal Knowledge A witness may testify to a matter only if evidence is introduced establishing 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, which is governed by Rule 703. Example of objection to lack of personal knowledge: “Objection. The witness has no personal knowledge that would enable the witness to answer this question.” Example of objection to speculation: “Objection. The question calls for speculation on the part of the witness.” Rule 607. Who May Impeach a Witness Any party, including the party that called the witness, may attack the witness’s credibility. Also see R.5:4-6. NOTE: That is, an attorney may ask questions to show that the witness is lying or lied on a prior occasion. Rule 608. Evidence of Character for Truthfulness or Untruthfulness and Conduct of Witnesses (a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, provided, however, that (1) the evidence relates only to the witness’ character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. (b) Specific Instances of Conduct.    Specific  instances  of  the  conduct  of  a  witness,  for  the  purpose  of  attacking  or supporting the witness’ character for truthfulness may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness, (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. Rule 611. Mode and Order of Interrogation and Presentation (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 and (2) protect witnesses from harassment or undue embarrassment. Example of objection to argumentative question: “Objection. Counsel’s question is argumentative.” (b) Leading and Narrative Questions. 13581_REV.indd 28 9/22/16 2:18 PM 28 NOTE: For example, if a witness knows X always uses their seatbelt when getting into a car, as the witness has often seen them get into a car many times and buckle the seatbelt, the witness may be permitted to testify to this habit. The key to admissibility is that X engages in the conduct of wearing their seatbelt on a regular basis. The habit must be specific or  routine must be specific in nature. The witness cannot make the broad statement, for example, that X is a careful driver. ARTICLE VI. WITNESSES Rule 601. Competency to be a Witness Each mock trial witness is competent to be a witness and may testify in accordance with their witness statement, deposition, prior testimony, the facts contained in the Statement of Facts and the documents provided. A witness may testify as to any reasonable inference to be drawn from these facts. Example of objection to unfair extrapolation: “Objection, the witness’ unfair extrapolation is in violation of Rule 5:4-5 in that it goes beyond the witness’ statement/deposition/testimony/Statement of Facts/documents or any reasonable inference to be drawn therefrom.” Rule 602. Need for Personal Knowledge A witness may testify to a matter only if evidence is introduced establishing 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, which is governed by Rule 703. Example of objection to lack of personal knowledge: “Objection. The witness has no personal knowledge that would enable the witness to answer this question.” Example of objection to speculation: “Objection. The question calls for speculation on the part of the witness.” Rule 607. Who May Impeach a Witness Any party, including the party that called the witness, may attack the witness’s credibility. Also see R.5:4-6. NOTE: That is, an attorney may ask questions to show that the witness is lying or lied on a prior occasion. Rule 608. Evidence of Character for Truthfulness or Untruthfulness and Conduct of Witnesses (a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, provided, however, that (1) the evidence relates only to the witness’ character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. (b) Specific Instances of Conduct.    Specific  instances  of  the  conduct  of  a  witness,  for  the  purpose  of  attacking  or supporting the witness’ character for truthfulness may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness, (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. Rule 611. Mode and Order of Interrogation and Presentation (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 and (2) protect witnesses from harassment or undue embarrassment. Example of objection to argumentative question: “Objection. Counsel’s question is argumentative.” (b) Leading and Narrative Questions. 13581_REV.indd 28 9/22/16 2:18 PM 28 NOTE: For example, if a witness knows X always uses their seatbelt when getting into a car, as the witness has often seen them get into a car many times and buckle the seatbelt, the witness may be permitted to testify to this habit. The key to admissibility is that X engages in the conduct of wearing their seatbelt on a regular basis. The habit must be specific or  routine must be specific in nature. The witness cannot make the broad statement, for example, that X is a careful driver. ARTICLE VI. WITNESSES Rule 601. Competency to be a Witness Each mock trial witness is competent to be a witness and may testify in accordance with their witness statement, deposition, prior testimony, the facts contained in the Statement of Facts and the documents provided. A witness may testify as to any reasonable inference to be drawn from these facts. Example of objection to unfair extrapolation: “Objection, the witness’ unfair extrapolation is in violation of Rule 5:4-5 in that it goes beyond the witness’ statement/deposition/testimony/Statement of Facts/documents or any reasonable inference to be drawn therefrom.” Rule 602. Need for Personal Knowledge A witness may testify to a matter only if evidence is introduced establishing 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, which is governed by Rule 703. Example of objection to lack of personal knowledge: “Objection. The witness has no personal knowledge that would enable the witness to answer this question.” Example of objection to speculation: “Objection. The question calls for speculation on the part of the witness.” Rule 607. Who May Impeach a Witness Any party, including the party that called the witness, may attack the witness’s credibility. Also see R.5:4-6. NOTE: That is, an attorney may ask questions to show that the witness is lying or lied on a prior occasion. Rule 608. Evidence of Character for Truthfulness or Untruthfulness and Conduct of Witnesses (a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, provided, however, that (1) the evidence relates only to the witness’ character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. (b) Specific Instances of Conduct.    Specific  instances  of  the  conduct  of  a  witness,  for  the  purpose  of  attacking  or supporting the witness’ character for truthfulness may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness, (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. Rule 611. Mode and Order of Interrogation and Presentation (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 and (2) protect witnesses from harassment or undue embarrassment. Example of objection to argumentative question: “Objection. Counsel’s question is argumentative.” (b) Leading and Narrative Questions. 13581_REV.indd 28 9/22/16 2:18 PM 28 NOTE: For example, if a witness knows X always uses their seatbelt when getting into a car, as the witness has often seen them get into a car many times and buckle the seatbelt, the witness may be permitted to testify to this habit. The key to admissibility is that X engages in the conduct of wearing their seatbelt on a regular basis. The habit must be specific or  routine must be specific in nature. The witness cannot make the broad statement, for example, that X is a careful driver. ARTICLE VI. WITNESSES Rule 601. Competency to be a Witness Each mock trial witness is competent to be a witness and may testify in accordance with their witness statement, deposition, prior testimony, the facts contained in the Statement of Facts and the documents provided. A witness may testify as to any reasonable inference to be drawn from these facts. Example of objection to unfair extrapolation: “Objection, the witness’ unfair extrapolation is in violation of Rule 5:4-5 in that it goes beyond the witness’ statement/deposition/testimony/Statement of Facts/documents or any reasonable inference to be drawn therefrom.” Rule 602. Need for Personal Knowledge A witness may testify to a matter only if evidence is introduced establishing 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, which is governed by Rule 703. Example of objection to lack of personal knowledge: “Objection. The witness has no personal knowledge that would enable the witness to answer this question.” Example of objection to speculation: “Objection. The question calls for speculation on the part of the witness.” Rule 607. Who May Impeach a Witness Any party, including the party that called the witness, may attack the witness’s credibility. Also see R.5:4-6. NOTE: That is, an attorney may ask questions to show that the witness is lying or lied on a prior occasion. Rule 608. Evidence of Character for Truthfulness or Untruthfulness and Conduct of Witnesses (a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, provided, however, that (1) the evidence relates only to the witness’ character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. (b) Specific Instances of Conduct.    Specific  instances  of  the  conduct  of  a  witness,  for  the  purpose  of  attacking  or supporting the witness’ character for truthfulness may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness, (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. Rule 611. Mode and Order of Interrogation and Presentation (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 and (2) protect witnesses from harassment or undue embarrassment. Example of objection to argumentative question: “Objection. Counsel’s question is argumentative.” (b) Leading and Narrative Questions. 13581_REV.indd 28 9/22/16 2:18 PM 28 NOTE: For example, if a witness knows X always uses their seatbelt when getting into a car, as the witness has often seen them get into a car many times and buckle the seatbelt, the witness may be permitted to testify to this habit. The key to admissibility is that X engages in the conduct of wearing their seatbelt on a regular basis. The habit must be specific or  routine must be specific in nature. The witness cannot make the broad statement, for example, that X is a careful driver. ARTICLE VI. WITNESSES Rule 601. Competency to be a Witness Each mock trial witness is competent to be a witness and may testify in accordance with their witness statement, deposition, prior testimony, the facts contained in the Statement of Facts and the documents provided. A witness may testify as to any reasonable inference to be drawn from these facts. Example of objection to unfair extrapolation: “Objection, the witness’ unfair extrapolation is in violation of Rule 5:4-5 in that it goes beyond the witness’ statement/deposition/testimony/Statement of Facts/documents or any reasonable inference to be drawn therefrom.” Rule 602. Need for Personal Knowledge A witness may testify to a matter only if evidence is introduced establishing 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, which is governed by Rule 703. Example of objection to lack of personal knowledge: “Objection. The witness has no personal knowledge that would enable the witness to answer this question.” Example of objection to speculation: “Objection. The question calls for speculation on the part of the witness.” Rule 607. Who May Impeach a Witness Any party, including the party that called the witness, may attack the witness’s credibility. Also see R.5:4-6. NOTE: That is, an attorney may ask questions to show that the witness is lying or lied on a prior occasion. Rule 608. Evidence of Character for Truthfulness or Untruthfulness and Conduct of Witnesses (a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, provided, however, that (1) the evidence relates only to the witness’ character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. (b) Specific Instances of Conduct.    Specific  instances  of  the  conduct  of  a  witness,  for  the  purpose  of  attacking  or supporting the witness’ character for truthfulness may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness, (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. Rule 611. Mode and Order of Interrogation and Presentation (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 and (2) protect witnesses from harassment or undue embarrassment. Example of objection to argumentative question: “Objection. Counsel’s question is argumentative.” (b) Leading and Narrative Questions. 13581_REV.indd 28 9/22/16 2:18 PM 28 NOTE: For example, if a witness knows X always uses their seatbelt when getting into a car, as the witness has often seen them get into a car many times and buckle the seatbelt, the witness may be permitted to testify to this habit. The key to admissibility is that X engages in the conduct of wearing their seatbelt on a regular basis. The habit must be specific or  routine must be specific in nature. The witness cannot make the broad statement, for example, that X is a careful driver. ARTICLE VI. WITNESSES Rule 601. Competency to be a Witness Each mock trial witness is competent to be a witness and may testify in accordance with their witness statement, deposition, prior testimony, the facts contained in the Statement of Facts and the documents provided. A witness may testify as to any reasonable inference to be drawn from these facts. Example of objection to unfair extrapolation: “Objection, the witness’ unfair extrapolation is in violation of Rule 5:4-5 in that it goes beyond the witness’ statement/deposition/testimony/Statement of Facts/documents or any reasonable inference to be drawn therefrom.” Rule 602. Need for Personal Knowledge A witness may testify to a matter only if evidence is introduced establishing 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, which is governed by Rule 703. Example of objection to lack of personal knowledge: “Objection. The witness has no personal knowledge that would enable the witness to answer this question.” Example of objection to speculation: “Objection. The question calls for speculation on the part of the witness.” Rule 607. Who May Impeach a Witness Any party, including the party that called the witness, may attack the witness’s credibility. Also see R.5:4-6. NOTE: That is, an attorney may ask questions to show that the witness is lying or lied on a prior occasion. Rule 608. Evidence of Character for Truthfulness or Untruthfulness and Conduct of Witnesses (a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, provided, however, that (1) the evidence relates only to the witness’ character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. (b) Specific Instances of Conduct.    Specific  instances  of  the  conduct  of  a  witness,  for  the  purpose  of  attacking  or supporting the witness’ character for truthfulness may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness, (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. Rule 611. Mode and Order of Interrogation and Presentation (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 and (2) protect witnesses from harassment or undue embarrassment. Example of objection to argumentative question: “Objection. Counsel’s question is argumentative.” (b) Leading and Narrative Questions. 13581_REV.indd 28 9/22/16 2:18 PM 26 (b) Leading and Narrative Questions. Leading questions should not be used on direct examination or re-direct examination of one’s own witness. Ordinarily, the court should allow leading questions on cross-examination and re-cross-exam. Narrative questions (questions that call for a narrative answer) are generally not permitted on direct or re-direct exam or cross or re-cross exam. NOTE: Direct examination may cover all facts relevant to the case of which the witness has firsthand knowledge. It is limited by the scope of the witness statements and/or the exhibits in this workbook and the Statement of Facts or stipulated facts if the witness has knowledge of them. Any factual areas examined on direct examination may be subject to cross-examination. On direct examination, a witness is not permitted to quote from the witness statement of another witness. Fair extrapolation, as defined in Rule 5:4-5, is permitted. In direct examination, attorneys call and question witnesses. Witnesses may not be asked leading questions by the attorney who calls them. A leading question is one that suggests to the witness the answer desired by the examiner, and often suggests a “yes” or “no” answer. Direct questions generally are phrased to evoke a set of facts from the witness. Example of direct question: “Mr. Hudson, when did you meet June Harris?” Example of a leading question: “Mr. Hudson, isn’t it true that you first met June Harris on April 14, 1981?” Example of objection to leading question: “Objection. Counsel is leading the witness.” (Remember, this is only objectionable when done on direct examination or re-direct examination of one’s own witness). Example of objection to non-responsive answer: “Objection. The answer is not responsive.” Example of objection to question calling for a narrative answer: “Objection. Counsel’s question calls for a narrative answer.” Note: Narrative questions (questions that call for a narrative answer) and narrative answers are generally not permitted, especially in direct examination. While the purpose of direct examination is to get the witness to tell a story, the questions must ask for specific information. The questions should not be so broad that the witness is allowed to wander or narrate a whole story. The opposing team will likely want to object to a question on direct examination calling for a narrative response. At times, a direct question may be appropriate, but the witness’ answer may go beyond the facts for which the question was asked. This may also happen when a leading question is asked on cross-examination and the answer given is in a narrative form. (c) Cross-Examination. The scope of 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, including all reasonable inferences that can be drawn from those facts and matters. Opposing counsel may also inquire into any omissions from the witness’ statement that are otherwise material and admissible and/or into any issue potentially affecting the credibility of the witness. NOTE: An attorney may ask leading questions when cross-examining the opponent’s witnesses, but asking that opposing witness a narrative question is generally not wise, since it gives the witness an opportunity to stress facts that favor their own side. While the purpose of direct examination is to get the witness to tell a story, the questions in cross-examination and re-cross should ask for specific information. It is not in the cross-examining team’s interest to ask an opposing witness questions that are so broad that the witness is allowed to wander or narrate a whole story. Questions tending to evoke a narrative answer often begin with “how,” “why” or “explain.” An example of a narrative question is: “Mr. Hudson, what went wrong with your marriage?” On cross-examination, a witness is permitted to invent an answer which is not included in their witness statement only as permitted by Rule 5:4-5. If that answer is inconsistent with any other evidence, including statements of that witness, the Statement of Facts, or any other stipulations, the cross-examining attorney may impeach or object as may be appropriate. For example, that attorney may object to an answer as being non-responsive. 27 (d) Re-Direct and Re-Cross Examination. After cross-examination, additional non-leading questions may be asked by the direct-examining attorney on re-direct examination, but questions must be limited to matters raised by the opposing attorney on cross-examination. Likewise, additional questions may be asked by the cross-examining attorney on re-cross, but such questions must be limited to matters raised on re-direct. NOTE: Re-direct and re-cross are optional, to be used at the discretion of the team. One minute will be allowed for re-direct and re-cross respectively. Judges should not deduct points if a team decides not to re-direct or re-cross. Example of objection to questions beyond the scope: On re-direct or re-cross, the opposing party may object as follows: “Objection. This question is beyond the scope of cross-examination (or re-direct).” (e) Permitted Motions. The judge is presumed to strike testimony elicited by a question following a successful objection to its admission. NOTE: For the purpose of mock trial, it is assumed that when an objection is sustained, the response is stricken. If the witness has responded in a meaningful way, mock trial attorneys need not but may move to have the testimony stricken from the record. Counsel should not refer to stricken testimony in closing arguments. Rule 612. Writing Used to Refresh a Witness’s Memory A written statement is used to refresh the memory of a witness, but while on direct examination, a witness cannot read from the witness’ own statements to bolster testimony (that is, to show that the witness said something earlier). The adverse party may cross-examine the witness on the material and introduce into evidence those portions of the written statement that relate to the testimony of the witness. Rule 613. Witness’s Prior Statement The statements of witnesses, whether in affidavit or deposition format, are not admissible into evidence, but may be used during cross-examination for impeachment purposes. When examining a witness about the witness’ prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, indicate the relevant segment of the statement for opposing counsel. Counsel may show the document for impeachment, or on re-direct examination, may show the same document to rebut the impeachment. NOTE: It is best to briefly show the exhibit you are going to show a witness to opposing counsel just as you are about to approach the witness with it. When asking the witness about the document, it is best to refer to the page and line number. For example: “Ms. Jones, I am showing you what has been marked as S-1 for identification. Do you recognize S-1?” (The witness should say “yes” and identify the document. After the witness identifies S-1, ask, “I would like you to read line X of page Y. . . .” When referring to the witness’ own statement, mock trial attorneys may ask the witness if the statement was given under oath, but are not required to do so and may refer to it in summation. Otherwise, opposing counsel may ask the court: “Can I have the page and line number (counsel is referring to)?” If your witness is impeached by their statement, but the words used were taken out of context, not fairly showing what the witness meant, on re-direct you may want to show the statement to your witness and “rehabilitate” your witness. For example, if cross-examination brings out that the witness said “I did not shoot the victim,” in response to police asking if the witness did so, you may ask your witness to add what the witness said after that phrase: “Witness, you were asked if you said to police, “’I did not shoot the victim?’” “Yes.” “Do you remember your complete response to police?” “No.” “I am showing you S-1 again, the same line opposing counsel showed you. Do you now remember your complete answer to that question?” “Yes.” “What was that full response?” “’I did not shoot the victim until he pointed a gun in my face.’” After the exhibits have been agreed upon, the attorneys may ask witnesses about the documents. 28 For example, if an attorney decides to show a letter (already agreed upon as an exhibit by both sides) to a witness, an attorney may show the letter to the witness, asking: “Mr. Davis, do you recognize this document which is marked Plaintiff’s P-1 for identification?” (The witness should say yes and identify the document.) At this point the attorney may proceed to ask the witness questions about P-1. If the attorney wishes to place the document into evidence, say, “Your Honor, I offer this letter for admission into evidence as Plaintiff’s P-1 and ask the court to so admit it.” Moving a document into evidence must occur either at the time the document is identified or at the end of the parties’ case. Get a ruling from the court on admissibility and hand the document to the judge. Bringing physical evidence to the trial, e.g., a weapon in the case of a murder trial, is prohibited unless otherwise indicated. It is sufficient to rely upon the documents provided in this workbook for exhibits. Use of props, visual and illustrative aids, other than what is specified in the workbook, is prohibited, under Rule 5:1-1. ARTICLE VII. OPINION TESTIMONY 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: (a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. NOTE: Lay witnesses are any witnesses not admitted as experts in the trial. A lay witness may offer testimony in the form of an opinion based on the common experience of laypersons in the community and of which the witness has firsthand knowledge. Examples include: what things look like; how someone is acting (e.g., drunk, tired, happy); speed, distance, sound, size, weight, degree of darkness, and general weather conditions. A witness may not testify to any matter of which the witness has no personal knowledge (except for expert witnesses, in exceptions listed below). For example: If Ms. Davis was not present at the scene of an intersectional collision between a Ford Explorer and a bus, she could not say, “The bus went through the red light.” Example of objection to improper request for opinion: “Objection. The witness is not qualified as an expert on this topic and counsel is asking the witness to give an expert opinion.” Example for lay witnesses: “Objection. Counsel is asking the witness to give an opinion on a topic about which the witness has no personal knowledge.” 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: (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; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. NOTE: Certain witnesses who have special knowledge or qualifications may be qualified as “experts.” An expert must be qualified by the attorney for the party for which the expert is testifying; this means that before an expert can be asked an expert opinion, the questioning attorney must bring out the expert’s qualifications and experience. An expert witness may offer testimony in the form of an opinion only if the subject matter is within the expert’s area of expertise. 29 Rule 703. Bases of Opinion Testimony by Experts 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, this is sufficient grounds for the admissibility of the expert’s opinion in the case at hand. NOTE: An expert may testify to things that are otherwise not admissible under the rules of evidence, if the expert relied upon that information to come up with the expert’s opinion. For example, if an expert physician relied upon medical records of treatment, the expert physician can testify to them. 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. NOTE: In mock trial, however, we have limited the presentation of an expert’s facts and data to streamline the case. Parties should not use invention on direct examination of their own expert witnesses to enhance their testimony ARTICLE VIII. HEARSAY Rule 801. Definitions The following definitions apply under this article: (a) “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct if the person intended it as an assertion. (b) “Declarant” means the person who made the statement. (c) Hearsay is a statement attributed to a declarant who is not a witness in the case which is offered to prove the truth of the statement. A witness is not permitted on direct examination to quote from the witness statement of another witness. Example: Ms. Mills is testifying. Her witness statement contains the following statement: “Mr. Hudson told me he was at the scene of the crime.” This is inadmissible hearsay (if offered to prove that Mr. Hudson was at the scene of the crime) unless Mr. Hudson is also a witness in the case. If Mr. Hudson is a witness in the case, then the statement is not hearsay. Example: Ms. Mills is testifying. Mr. Hudson is a witness in the case. His witness statement contains the following statement: “I heard Ms. Harris threaten my son.” Ms. Mills may not testify that “Mr. Hudson said that Ms. Harris threatened his son.” The statement is not contained in the witness statement of Ms. Mills. Such testimony is inadmissible hearsay and also violates the mock trial rule that prohibits a witness on direct examination from quoting from the witness statement of another witness. (d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay: (1) Party Declarant’s Admission against Interest A statement may be admissible if it was said by a party in the case and contains evidence that goes against the party’s interest (e.g., in a murder case, the defendant told someone he committed the murder). (2) Opposing Party’s Statement A statement may be admissible if it is offered against an opposing party and was made by the party. (3) Relied upon by Expert A statement may be admissible if it was relied upon by an expert witness and forms the basis for the expert’s opinion. See Rule 703, above. Rule 802. Hearsay Rule Hearsay is not admissible except as provided by these Rules. Example of objection to hearsay: “Objection. Counsel’s question/the witness’ answer is based on hearsay.” (If the witness makes a hearsay statement, the attorney should also say, “and I ask that the jury be directed to disregard the witness’ last statement” or “and I ask that the witness’ last statement be stricken from the record.”) Rule 803. Exceptions to the Rule against Hearsay 30 The following exceptions to the hearsay rule are not dependent on whether the declarant is available as a witness or not: (1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it and without opportunity to deliberate or fabricate. (2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate. (3) State of Mind. A statement of the declarant’s then-existing state of mind (such as motive, intent or plan). NOTE: Understand that the statement may not be used to prove the truth of the matter asserted, however, if it comes in, it is only to establish the speaker’s “state of mind.” (5) Recorded Recollection. A statement concerning a matter about which the witness is unable to testify fully and accurately because of insufficient present recollection if the statement is contained in a writing or other record that; (A) was made at a time when the fact recorded actually occurred or was fresh in the memory of the witness; and (B) was made by the witness or under the witness’ direction or by some other person for the purpose of recording the statement when it was made; and (C) the statement concerns a matter of which the witness had knowledge when it was made. This exception does not apply if unless the circumstances indicate that the statement is not trustworthy. When the witness does not remember part or all of the contents of a writing, the portion the witness does not remember may be read into evidence but shall not be introduced as an exhibit over objection. (6) Records of a Regularly Conducted Activity. A statement contained in a writing or other record of acts, events, conditions, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make such writing or other record. This exception does not apply if the sources of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy. (25) Statement against Interest. A statement that a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary, pecuniary or social interest, or had so great a tendency to invalidate the declarant’s claim against another or to expose the declarant to civil or criminal liability. Rule 805. Hearsay within Hearsay Hearsay included within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule. ARTICLE XII. OTHER OBJECTIONS Rule 1201. Objections to Openings and Closings Attorneys may not interrupt or object during the opposition’s opening or closing, but must raise any objections to openings or closings immediately after the opposing attorney concludes. The presiding judge will then rule on the objections and instruct the jury as may be necessary. Rule 1202. Number of Objections While there is no limit on the number of objections attorneys may raise, teams should be aware that judges may assess scoring penalties for objections which are frivolous. Rule 1203. Other Standard Objections Other standard forms of evidentiary objections allowed in the Mock Trial Competition are as follows. These “other objections” may be altered from year to year depending on the nature of the case. Example of objection to lack of proper foundation: “Objection. Counsel has not laid a proper foundation for the question (or for admission of an exhibit).” Example of objection to conclusion of law improperly called for by question: “Objection. Counsel is calling for the