Mock Trial Rules Of Evidence: Question Format

Term: ARTICLE I. GENERAL PROVISIONS Definition: This article governs the scope of the Simplified Rules of Evidence and Procedure for the Mock Trial Program.

Term: Rule 101. Scope Definition: These Simplified Rules of Evidence and Procedure govern the trial proceedings of the Mock Trial Program. The only rules of evidence that may be cited are those included here.

Term: Rule 102. Objections Beyond the Scope of These Rules Definition: An objection which is not contained or referred to in these Simplified Rules of Evidence and Procedure shall not be considered by the court. Counsel responding to such an objection is responsible for pointing out to the judge that the objection raised is not contained in these rules. If counsel fails to do so, the court may exercise its discretion in considering such an objection.

Term: ARTICLE II. MODE AND ORDER OF INTERROGATION AND PRESENTATION Definition: This article sets forth the rules governing how witnesses are questioned and how testimony is presented during the trial.

Term: Rule 201. Form of Question During Direct Examination Definition: On direct examination, witnesses may not be asked leading questions except as may be necessary to elicit background information or basic foundation to develop the witness’ testimony. A leading question is one that suggests to the witness the answer desired by the examiner, and often suggests a “yes” or “no” answer.

Term: Leading Question Definition: A question that suggests to the witness the answer desired by the examiner, and often suggests a “yes” or “no” answer. Leading questions are generally prohibited during direct examination, except for background information or basic foundation.

Term: Rule 202. Scope of Direct Examination Definition: Direct examination may cover any relevant facts about which the witness has personal knowledge.

Term: Rule 203. Narration (a) Questions Calling for Narrative Testimony Definition: Questions on direction examination must ask for specific information, and may not be so broad that the witness is invited to wander or narrate a story. Questions calling for narrative testimony are objectionable.

Term: Rule 203. Narration (b) Narrative and Non-responsive Answers Definition: The witness’ answer to a question may not go beyond the facts about which the question was asked. Answers that go beyond the scope of the question are objectionable. If the judge sustains an objection on these grounds, the objecting attorney may make a motion to strike the improper testimony.

Term: Rule 204. Form of Question During Cross-Examination Definition: On cross-examination, an attorney may ask leading questions of the opponent’s witness.

Term: Rule 205. Scope of Cross-examination Definition: Cross-examination may cover any relevant facts about which the witness has personal knowledge (whether or not raised during the direct examination) or matters relating to the credibility of the witness.

Term: Rule 206. Redirect Examination Definition: After cross-examination, a maximum of three additional questions may be asked by the direct examining attorney. Questions must be limited to matters raised by the attorney on cross-examination. The judge has the discretion to limit the scope of redirect.

Term: Rule 207. Re-cross-examination Definition: After redirect examination, a maximum of three additional questions may be asked by the cross-examining attorney. Questions must be limited to matters raised by the attorney on redirect examination. The judge has the discretion to limit the scope of re-cross.

Term: Rule 208. Recalling Witnesses Prohibited Definition: After a witness has been excused from further testifying, the witness may not be recalled by either party.

Term: ARTICLE III. INVENTION OF FACTS (Special Rules for Mock Trial Program) Definition: This article specifically governs the creation of facts in the Mock Trial Program.

Term: Rule 301. “Invented Fact” Defined Definition: An “invented fact” is a material fact which is not contained anywhere in the stipulations, in the evidence, or in any witness’ affidavit, and which is not a “fair and reasonable extrapolation” of facts which are clearly found within such case materials. It is not permitted because it would promote the unfair creation of inferences which are not supported by the case materials.

Term: Fair and Reasonable Extrapolation Definition: An inference that does not materially affect the outcome of the case or the arguments in the case, and must be reasonably inferred to be within the personal knowledge of the witness.

Term: Unfair and/or Unreasonable Extrapolation Definition: An inference that, despite the witness's presence at an event, requires assuming knowledge not supported by the witness’s affidavit or sufficient foundation (e.g., assuming a coach heard a conversation between players simply because the coach was at the game).

Term: Rule 302. Invention of Facts on Direct Examination Definition: On direct examination, each witness is bound by the facts contained within their written affidavit. However, a witness is not required to be limited only to facts contained in their affidavit; they may testify to knowledge of other facts contained within the case materials, and to fair and reasonable extrapolations thereof, provided such testimony is reasonably based upon their personal knowledge.

Term: Rule 303(a). Traditional Impeachment (Redressing Contradiction to Affidavit) Definition: If a witness testifies in contradiction to a fact in the witness’ own affidavit, opposing counsel should impeach the witness during cross-examination.

Term: Rule 303(b). Objection Raised at Bench Conference (Redressing Invented Fact) Definition: If a witness testifies to an “invented fact,” opposing counsel may immediately request a bench conference to object to the invention of facts. If deemed an “invented fact” by the judge, the fact shall be stricken, and the witness instructed to answer without reference to the invented fact.

Term: Rule 304. Invention of Facts on Cross-examination Definition: If a witness is asked a question the answer to which is not contained in the case materials, the witness may respond with any answer, as long as it is responsive to the question, is not contrary to the witness’ affidavit, and does not contain unnecessary elaboration. Questions calling for the invention of facts on cross-examination are not objectionable on those grounds.

Term: Rule 304. Failure to Adopt Facts Definition: A witness may not be impeached for failing to adopt facts from another affidavit or exhibit if they elect not to adopt such facts. If a witness is unable to respond in accordance with Rule 304, they may claim to have no recollection on which to base an answer.

Term: ARTICLE IV. RELEVANCE Definition: This article provides the definition of "Relevant Evidence" and outlines when evidence must be excluded due to irrelevance or undue prejudice.

Term: Rule 401. Definition of “Relevant Evidence” Definition: “Relevant evidence” means evidence which tends to make the existence of any fact that is of consequence to the determination of the outcome of the case more or less probable than it would be without the evidence.

Term: Rule 402. Irrelevant Evidence Inadmissible Definition: Irrelevant evidence is not admissible. Relevant evidence is admissible, except as otherwise provided in these rules or other law provided in the case materials.

Term: Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion or Waste of Time Definition: Although relevant, evidence may be excluded if (a) its probative value is outweighed by the danger of unfair prejudice; (b) if it confuses the issues; (c) if it is misleading; or (d) if it causes undue delay, wastes time, or is a needless presentation of cumulative evidence.

Term: Rule 404. Character Evidence not Admissible to Prove Conduct Definition: Evidence of a person’s character or character trait is not admissible for the purpose of proving action in conformity therewith on a particular occasion, unless it falls under exceptions for the character of the accused, the victim, or a witness.

Term: Admissibility of Other Crimes/Wrongs Evidence Definition: Evidence of a person’s crimes or other wrongs is generally not admissible to prove action in conformity therewith on a particular occasion. It may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.

Term: Rule 405(a). Methods of Proving Character (Reputation or Opinion) Definition: In all cases where evidence of character or a character trait 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.

Term: Rule 405(b). Methods of Proving Character (Specific Instances of Conduct) Definition: In cases where character or a character trait is an essential element of a charge, claim or defense, proof may also be made of specific instances of that person’s conduct.

Term: Rule 406. Subsequent Remedial Measures Definition: When measures are taken after an event which, if taken before, would have made the event less likely to occur, evidence of these subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This evidence may be admissible for other purposes, such as proving ownership, control, or feasibility of precautionary measures (if controverted), or for impeachment.

Term: Rule 407. Compromise and Offers to Compromise Definition: Evidence of compromise or offers to compromise a claim which was disputed as to either validity or amount is not admissible to prove liability of the claim or its amount. Statements made in compromise negotiations are likewise not admissible, unless offered for another purpose.

Term: ARTICLE V. PHYSICAL EVIDENCE Definition: This article covers the introduction and use of physical evidence and documents at trial.

Term: Rule 501. Prerequisites for Admission of Physical Evidence Definition: Physical evidence may be introduced if it is relevant, but it will not be admitted into evidence until it has been identified and shown to be authentic, or its identification and authenticity have been stipulated.

Term: Authenticity of Physical Evidence Definition: The fact that a document is authentic means only that it is what it appears to be, not that the statements in the document are necessarily true.

Term: Rule 502. Procedure for Introducing Physical Evidence (Identification) Definition: The proper procedure involves showing the exhibit to opposing counsel, asking the judge to mark the exhibit for identification (which means it is not yet evidence), and handing the document to the witness to identify it.

Term: Rule 502. Procedure for Introducing Physical Evidence (Admission) Definition: After establishing relevance through witness questioning, the attorney offers the exhibit into evidence. The judge then asks opposing counsel for objections, rules on any argument, and either admits the exhibit into evidence or not.

Term: Rule 503. Use of a Writing to Refresh Recollection Definition: If a witness is unable to recall information, an attorney may show a document to the witness (after court permission and showing opposing counsel, and if no objection is sustained) to help the witness remember the information without introducing the document into evidence. The witness cannot read the document to the court and must return it to counsel before answering the question.

Term: Rule 504. Publishing Documents to the Court Definition: Once a document has been admitted in evidence, counsel for either party may publish specific portions of the document to the court by directing the judge’s attention to the relevant portion and reading it aloud. Opposing counsel may object only if counsel has misread the document.

Term: Rule 505. Use of a Witness’ Affidavit to Impeach Definition: Unless prohibited by Rule 802, a witness may be asked questions about their affidavit without introducing the document. If a witness refuses to admit a contradictory statement in their affidavit after questioning, the attorney may enter the affidavit into evidence (in conformance with Rule 502) only for the limited purpose of impeachment regarding the alleged inconsistent statement(s).

Term: ARTICLE VI. WITNESSES Definition: This article establishes the standards for witness competency, personal knowledge, and rules related to attacking and supporting witness credibility.

Term: Rule 601. General Rule of Competency Definition: Every person is presumed to be competent to be a witness.

Term: Rule 602. Lack of Personal Knowledge Definition: A witness may not testify to a matter unless the witness has personal knowledge of the matter; the witness may not speculate.

Term: Rule 603. Who May Impeach Definition: The credibility of a witness may be attacked by any party, including the party calling the witness.

Term: Rule 604(a). Evidence of Character and Conduct of a Witness (Opinion and Reputation) Definition: The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but this evidence may refer only to character for truthfulness or untruthfulness. Evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked.

Term: Rule 604(b). Specific Instances of Conduct Definition: Specific instances of a witness's conduct may not be offered to attack or support the witness’ credibility, except on cross-examination either (1) to rebut testimony regarding the witness’ character for truthfulness or untruthfulness, or (2) to impeach the witness’ testimony regarding the truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

Term: Rule 605. Impeachment by Evidence of Conviction of Crime Definition: Evidence of a crime conviction shall be admitted for the purpose of attacking the credibility of a witness, but only if the crime was a felony or involved moral turpitude, and the court determines that the probative value of this evidence outweighs its prejudicial effect to a party.

Term: Rule 606. Religious Beliefs or Opinions Definition: Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness’ credibility is impaired or enhanced.

Term: ARTICLE VII. OPINIONS AND EXPERT TESTIMONY Definition: This article governs the admissibility of opinions and inferences provided by lay witnesses and witnesses qualified as experts.

Term: Rule 701. Opinion Testimony by Lay Witnesses Definition: Testimony by a non-expert witness in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.

Term: Rule 702. Testimony by Experts Definition: If scientific, technical or other specialized knowledge will assist the trier of fact, a witness qualified as an expert (by knowledge, skill, experience, background, training and/or education) may testify in the form of an opinion, provided they are deemed qualified by the court prior to offering the opinion.

Term: Rule 703. Bases of Opinion Testimony by Experts Definition: The facts or data upon which an expert bases an opinion may be those perceived by or made known to the expert at or before the trial. The supporting facts or data need not be admissible in evidence provided that they are of a type reasonably relied upon by experts in the field in forming opinions or inferences.

Term: Rule 704(a). Opinion on the Ultimate Issue (General Rule) Definition: Opinion or inference testimony otherwise admissible is not objectionable solely because it embraces an issue to be decided by the trier of fact.

Term: Rule 704(b). Opinion on Guilt or Innocence in a Criminal Case Definition: In a criminal case, an expert witness shall not express an opinion as to the guilt or innocence of the accused.

Term: ARTICLE VIII. HEARSAY Definition: This article contains the definitions and rules governing the admissibility of hearsay statements and their exceptions.

Term: Rule 801(a). Statement Definition: A “statement” is an oral or written assertion or nonverbal conduct of a person, if it is intended by the person as an assertion.

Term: Rule 801(c). Hearsay Definition: “Hearsay” is an out-of-court statement offered to prove the truth of the matter asserted.

Term: Statements not Offered for the Truth of the Matter Asserted Definition: These are statements that are not hearsay because they are offered for a purpose other than proving the truth of the statement, such as proving that the listener had notice or knowledge of the contents, or proving the statement itself constitutes a verbal act (like defamation or fraud), or as circumstantial evidence of the declarant’s state of mind.

Term: Rule 801(d)(1). Prior statement by witness (Not Hearsay) Definition: A statement is not hearsay if the declarant testifies at the trial and is subject to cross-examination concerning the statement, and the statement is inconsistent with their testimony and was given under oath (or in an affidavit), or is consistent and offered to rebut a charge of fabrication/motive, or is one of identification.

Term: Rule 801(d)(2). Statement by a party-opponent (Not Hearsay) Definition: A statement is not hearsay if offered against a party and it is (A) the party's own statement, (B) a statement the party adopted, (C) a statement by a person authorized by the party, (D) a statement by the party’s agent/servant concerning employment scope, or (E) made by the party's co-conspirator during the cooperative effort and in furtherance of its goal.

Term: Rule 802. Hearsay Rule Definition: Hearsay is not admissible, except as provided by these rules.

Term: Rule 803(1). Hearsay Exception: Present Sense Impression Definition: A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

Term: Rule 803(2). Hearsay Exception: Spontaneous Exclamation (Excited Utterance) Definition: A statement made under the impulse of excitement or shock if its utterance was spontaneous to a degree that reasonably negated premeditation or possible fabrication and if it tended to qualify, characterize or explain the underlying event.

Term: Rule 803(3). Hearsay Exception: Then-existing mental, emotional or physical “conditions” Definition: A statement of the declarant’s then-existing state of mind, emotion, sensation or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health), but this does not include a statement of memory or belief offered to prove the fact remembered or believed.

Term: Rule 803(6). Hearsay Exception: Records of regularly conducted activity (Business Records) Definition: A memorandum, report, record, or data compilation of acts, events, conditions, opinions or diagnoses, made by a person with knowledge, admissible if kept in the course of a regularly conducted business activity, and if it was the usual course of business to make the record at the time of the event or soon thereafter, unless circumstances indicate lack of trustworthiness.

Term: Rule 803(7). Hearsay Exception: Learned Treatises Definition: Statements contained in published treatises, periodicals or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority, to the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination.

Term: Rule 804(a). Definition of Unavailability (as a witness) Definition: Situations in which the declarant is unavailable, including when they are exempted by privilege from testifying, testify to a lack of memory of the subject matter, or are unable to be present or testify due to death or then-existing physical or mental illness or infirmity. A declarant is not unavailable if the reason is due to the wrongdoing of the proponent of the statement.

Term: Rule 804(b)(1). Hearsay Exception: Former testimony Definition: Testimony given as a witness at another hearing or proceeding, or in a deposition, if the party against whom the testimony is now offered (or a predecessor in interest in a civil action) had an opportunity and similar motive to develop the testimony by direct, cross- or redirect examination.

Term: Rule 804(b)(2). Hearsay Exception: Statement under belief of impending death Definition: In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that their death was imminent, concerning the cause or circumstances of what they believed to be impending death.

Term: Rule 804(b)(3). Hearsay Exception: Statement against interest Definition: A statement which was so contrary to the declarant’s pecuniary or proprietary interest, or so tended to subject the declarant to civil or criminal liability, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.

Term: Rule 805. Hearsay within Hearsay Definition: Hearsay included within hearsay is admissible only if each part of the combined statement conforms with an exception to the hearsay rule provided in these rules.

Term: ARTICLE IX. PROCEDURAL RULES Definition: This article covers various procedural aspects of the mock trial, including authority to object, motions, and rules concerning opening statements and closing arguments.

Term: Rule 901. Authority to object (During Examinations) Definition: Objections during the direct examination or cross-examination of a witness must be made and argued only by the opposing attorney cross-examining or examining the same witness.

Term: Rule 901. Authority to object (During Arguments) Definition: Objections to an opening statement must be made and argued only by the attorney making the opposing opening statement. Objections regarding a closing argument must be made and argued only by the attorney making the opposing closing argument.

Term: Rule 903. Motion to Strike Definition: If an answer is unresponsive or otherwise objectionable, the opposing counsel may ask the judge to strike the objectionable testimony.

Term: Rule 904. Other Motions Definition: Motions for directed verdict or dismissal or any other motions not specified in the Simplified Rules of Evidence and Procedure are not permitted.

Term: Rule 905. Closing Arguments Definition: Closing arguments must be based on the evidence and testimony presented during the trial