Moc Trial Rules of Evidence and Procedure In American courtrooms, elaborate rules regulate the admission of evidence.

Thes e rules are designed to ensure the truth is found and that both parties receive a fair hearing. Accordingly, the rules of evidence for which the witness has fir sthand nowledge and exclude evidence which is irrelevant, untrustworthy, or unf airly prejudicial. To participate in the moc trial, you will need to now the r ole that evidence plays in trial procedure. Studying the rules will prepare you to mae timely objections avoid pitfalls in your own presentations, and understa nd some of the difficulties that arise in actual cases. The purpose of using rul es of evidence in a moc trial is to structure the presentations so that they re semble those of an actual trial. Almost every fact stated in the materials must be considered, some may not be admissible under the rules of evidence. Because r ules of evidence are so complex, you are not expected to now the fine points. T o do that requires a legal education which often starts after graduation from la w school. To promote the educational objectives of this moc trial students are restricted to the use of a select number of evidentiary rules in conducting the trial. If it appears that rule of evidence is being violated, an attorney may ra ise an objection to the residing judge. The judge then decides whether the rule has been violated whether the evidence must be excluded from the record of the t rial. In absence of a properly made objection, however, the evidence will probab ly be allowed by the judge. The burden is on the team to now the rules and to b e able to use them to protect their client and to limit the actions of opposing counsel and their witnesses (for example, to exclude hearsay and prevent unreaso nable inference). Not all judges will interpret the rules of evidence (or procedure) the same way, and you must be prepared to point out the specific rule (quoting if necessary) and to argue persuasively for the interpretation and application of the rule you thin proper. No matter which way the judge rules, accept the ruling with grace and courtesy. A judge's decision is final. I. Procedure for Witness Examination Court controls the questioning of witnesses so as to mae the presentation evide nce effective, to avoid wasting time, and to protect witnesses from harassment o r undue embarrassment. The questioning of witnesses during trial must tae place as follows: I-A. Direct Examination Attorneys call and question their own witnesses. I-A(l). Form of Questions. As a general rule, witnesses may not be ased leading questions by the direct examiner (the attorney who calls them testify). A leadi ng question is one that suggests the answer you want, and often requires a "yes" or "no." Direct questions generally should be phrased o evoe a set of facts fr om the witness. I-A(2). Personal Knowledge [See Rule 11-D]. Direct examination cover all facts r elevant to the case of which the witness has personal nowledge. A witness can o nly testify about an event if they were there and it occurred and directly obser ved it. [Remember.- The moc trial materials must supply evidence sufficient to support a finding that the witness had personal nowledge of the subject matter of the testimony.] When a witness maes inferences from what they actually did o bserve that substantively alters the facts of the case or affects the outcome of the trial, attorney may properly object to this type of testimony because the w itness has no personal nowledge of the inferred fact. I-A(3). Refreshing Recollection. If a witness is unable to recall a statement ma de in the affidavit, the attorney may use that portion of the affidavit [or witn ess statement] to help the witness remember. The examiner have the witness revie w his/her affidavit to "refresh" his/her memory. It is not necessary to enter th e affidavit into evidence for this purpose. I-A(4). Redirect Examination. Redirect is allowed if there is time remaining. Th e direct examiner should plan to leave time for redirect in case the credibility or reputation for truthfulness of the witness is attaced on cross examination. If the witness is damaged by statements made to opposing counsel during cross e

xamination, then the direct examiner may as questions that "save" the witness's truth-telling image in the eyes of the court. Note: Redirect examination is lim ited to issues raised by the opponent attorney on cross examination and must be conducted by the same attorney who handled the initial direct examination. It is the duty of opposing counsel to object of questions are raised by the direct ex aminer that are outside the scope of cross examination. I-B. Cross Examination Cross examination follows the opposing attorney's direct examination of his/her witness. Attorneys conduct cross examination to explore t he weanesses in the opponent's case, test the witnesses credibility, and establ ish some of the facts of their team's case when possible. Time allotted is three minutes for each witness. Time stops for objections. I-B(l). Form of Questions. An attorney should as leading questions when cross e xamining the opponents witnesses. A leading question allows the attorney to cont rol the witnesses' answers to some degree. Questions tending to evoe a narrativ e answer that usually begin with "how," "why," or "explain," should be avoided. I-B(2). Scope of Examination. The "scope" of cross examination (i.e., the subjec t of questions ased) is not limited to subjects brought out under direct examin ation. It may cover matters affecting the credibility of the witness, and additi onal matters, otherwise admissible, that were not covered on direct examination. I-B(3). Impeachment. On cross examination, the attorney may want to attac the c redibility of a witness to show the Court that the witness should not be believe d. A witness's credibility may be impeached by showing evidence provided in the case materials of the witness's character and conduct, past convictions, and pri or inconsistent statements. I-B(3a). Prior Conduct: "Isn't it true that you misrepresented your academic cre dentials when you applied for your present job?" I-B(3b). Past Conviction: "Isn't it true that you've been convicted of stealing jewelry from a department store?" For the purpose of attacing the credibility o f a witness, evidence that the witness had been convicted of a crime shall be ad mitted if elicited from the witness or established by public record if the crime was punishable by death or imprisonment for more than 60 days. I-B(3c). Prior Inconsistent Statement: "Did you state on direct that the light was yellow?" "Is this your affidavit?" "Did you swear to the affidavit?" "Does it say in paragraph 2, line 3 of the affidavit, given under oath, that the light was red." If the witness does not admit to a prior inconsistent statement, the witness may be impeached. When the prior statement was signed and sworn by the witness, the student attorney should introduce the statement and as the witness: 1) "Is this your statement?" 2) "Did you mae it under oath, at a time much closer to the events in controver sy?., And 3) "Did it contain all you could then remember?" I-B(4). Recross Examination. Recross is allowed if there is time. The team attor ney does not need to specifically reserve time for Recross examination follows r edirect examination, but is strictly limited to the issues raised on redirect an d should avoid repetition. The presiding judge has considerable discretion in de ciding how to limit the scope recross. It is the duty of opposing counsel to obj ect if questions are raised by the examiner that are outside the scope of redire ct examination. II. Evidentiary Objections Students are restricted to the use of specific evidentiary objections during the moc trial that are outlined below. These simplified rules were developed by th e Constitutional Rights Foundation and modified by the North Carolina academy of Trial Lawyers and Professor Vanderhoof. II-E Character Evidence Witnesses generally cannot testify about a person's character unless character a n issue. Character evidence is generally inadmissible because jurors may decide

the case based on the ind of person a party is rather than the facts the case. (The honesty of a witness, however, is one aspect of character always at issue.) In criminal trials, the defense may introduce evidence of a pertinent trait of the defendant's good character. Once the defense introduces evidence of characte r, the prosecution can try to prove the opposite. "Objection, your honor. Character is not an issue here," Or "Objection, your honor. The question calls for inadmissible character evidence." II-F. Opinion/Speculation Witnesses may not normally give their opinions on the stand. Judges and juries m ust draw their own conclusions from the evidence. A lay witness may an opinion t hat is rationally based on his/her experiences and helps the to understand the e vidence and decide the issues. Estimates of the end of a moving object or the so urce of an odor are allowable opinions. Example: A taxi driver testifies that the defendant looed lie the ind of guy who would shoot old people. Counsel could object to this testimony and the judge would require the witness to state the basis for his/her "opinion." "Objection, your honor. The question calls for inadmissible opinion testimony (o r inadmissible speculation) on the part of the witness. I move that the testimon y be stricen from the record." II-G. Hearsay If a witness offers an out-of-court statement to prove the truth of the matter a sserted in that statement, the statement is hearsay. Because they are very unrel iable, these statements ordinarily may not be used to prove the truth the matter asserted. For reasons of necessity, a set of exceptions allows certain types of hearsay to be introduced. Hearsay is a very tricy subject. A few objections wh ich may arise in the case. Example l. Joe is being tried for murdering Henry. The witness testifies, "Ellen told me that Joe illed Henry." If offered to prove that Joe lolled Henry, this statement is hearsay and probably would not be admitted over an objection. Example 2. However, if the witness testifies, "I heard Henry yell to Joe to get out of the way," this could be admissible. This is an out-of-court statement, bu t is not offered to prove the truth of its contents. Instead, it is being introd uced to show that Henry had warned Joe by shouting. "Objection, your honor. Counsel's question calls for hearsay." Or "Objection, your honor. This testimony is-hearsay. I move that it be stricen fr om the record." Courts have recognized certain general categories of hearsay which may be admiss ible because of the practical necessity of including the information circumstanc es that offer greater reliability to certain types of out-of-court statements. N ote: The hearsay exceptions allowed during competition listed in "Prof David's T rial Tips." Testimony not offered to prove the truth of the matter asserted is, by definitio n, not hearsay. For example, testimony to show that a statement as said and hear d, to show that a declarant could spea in a certain language, or to show the st atement's effect on a listener is admissible. III. Inappropriately Phrased Questions During the moc trial, students are restricted to the following objections when counsel is inappropriately questioning a witness. I-A. Leading Questions As a general rule, the direct examiner is prohibited from asing leading questio ns: he/she cannot as questions that suggest the desired answer. Leading questio ns are permitted on cross examination. Example.- Counsel for the plaintiff ass the witness. "During the conversation, didn't the defendant declare that he would not deliver the merchandise?" "Objection, your honor. Counsel is leading the witness." Counsel could rephrase the question, "Will you state what, if anything, the defe ndant said during this conversation, relating to the delivery of the merchandise ?" III-B. Argumentative Questions

An argumentative question challenges the witness about an inference from facts i n the case. Example: Assume that the witness testifies on direct examination that the defend ant's car was going 80 m.p.h. just before the collision. You want to impeach the witness with a prior inconsistent statement. On cross-examination, it would be permissible to as, "Isn't it true that you told your neighbor, Mrs. Ashton, at a party last Sunday that the defendant's car was going only 50 m.p.h.?" The cross examiner may legitimately attempt to force the witness to concede the historical fact of the prior inconsistent statement. Now assume that the witness admits the statement. It would be impermissibly argu mentative to as, "How can you reconcile that statement with your testimony on d irect examination?" The cross-examiner is not seeing any additional facts; rath er, the cross-examiner is challenging the witness about an inference from the fa cts. Questions such "How can you expect the judge to believe that?" Are similarly arg umentative and objectionable. The attorney may argue the during the closing argu ment, but the attorney must ordinarily restrict questions to those calculated to elicit facts. "Objection, your honor. Counsel is being argumentative." Or, "Objection, your honor. Counsel is badgering the witness." III-C. Ased and Answered Ased and answered is just as it states, that a question which had previously be en ased and answered is being ased again. Example 1: On Direct Examination - Counsel A ass B, "Did X stop for the stop si gn?" B answers, "No, he did not." A then ass, "Let me be sure we understand. Di d X stop for the stop sign? "Objection, your honor. This question has been ased and answered." Counsel for X correctly objects and should be sustained, BUT... Example 2. On Cross Examination - Counsel for X ass B, "Didn't you tell a polic e officer after the accident that you weren't sure whether X failed to stop for the stop sign?" B answers, "I don't remember." Counsel for X then ass, "Do you deny telling him that?" Counsel A maes an ased and answered objection. The objection should be overrul ed. Why.? Counsel is not asing the same question. It is a sound policy to permi t cross-examining attorneys to conduct a searching probe of the direct examinati on testimony. III-D. Compound Question A compound question joins two alternatives with "or" or "and," preventing e inte rrogation of a witness from being as rapid, distinct, or effective for finding t he truth as is reasonably possible. Example 1: (Using "Or") "Did you determine the point of impact (of a collision) from conversations with witnesses, or from physical mars, such as debris in the road?" Example 2: (Using "And") "Did you determine the point of impact from conversatio ns with witnesses and from physical mars, such as debris in the road?" "Objection, your honor, counsel is asing a compound question." The best response if the objection is sustained on these grounds would be, honor , I will rephrase the question," and then brea down the question. Remember, the re may be another way to mae your point. III-E. Narrative A narrative question is one that is too general and calls for the witness in ess ence to "tell a story" or mae a broad-based and unspecific response. The object ion is based on the belief that the question, seriously inhibits the successful operation of a truth and the ultimate search for the truth. Example: The attorney ass A, "Please tell us all of the conversations you had w ith X-before X started the-job." The question is objectionable and the objections should be sustained. "Objection, your honor. Counsel's question calls for a narrative response." III-F. Nonresponsive Witness Sometimes a witness's reply is too vague and does not give the details the attor

ney is asing for, or he/she "forgets" the event in question. A Witness may use this tactic to prevent some particular evidence from being admitted. The questio ning attorney may use this objection to "force" the Witness to answer. "Objection, your honor. The witness is being nonresponsive." III-G. Outside the Scope of Cross Examination Redirect examination is limited to issues raised by the opposing attorney on cro ss examination. If the questions go beyond the issues raised on cross, they may be objected to as "outside the scope of cross examination." "Objection, your honor. Counsel is asing the witness about matters that did not come up in cross examination." IV. Outside the Scope of the Moc Trial Materials Student attorneys may object to testimony that cannot be reasonably inferred fro m the given facts by arguing whether the inference is reasonable or "outside the scope of the moc trial materials." Objecting counsel will need to explain exac tly what information is in the record and will need to argue that the inference substantially alters the information provided. Judges sustain or overrule the ob jection based on three criteria: 1) if the fact situation supports a finding tha t the witness offering the testimony would have personal nowledge of the fact i n question, 2) how far removed the inference is from the facts in the problem, a nd 3) whether impeachment from the trial materials is possible. If the objection is sustained, objecting counsel can and should move-to strie the testimony. A good rule of thumb for teams to follow on the use of reasonable inferences is th at the trial strategy should never depend on an inference or it is objectionable at competition. V. Motion for Dismissal For moc trial purposes, motions for dismissal will not be granted, they may be made however.