Mock Trial: Evidence Crash Course

Mock Trial:

Evidence Crash Course Prof. Robert T. SherwinSeptember 2, 2014

1L Mock Trial

• For 1L Mock, the rules provided that all evidentiary exhibits were pre-admitted.

• The rules also limited the types of objections you could make.

• For Advanced Mock (fall and spring), there are no limitations to objections, and you need to establish the admissibility of exhibits you want to use. 2

Exhibits: The basics

• To be admitted into evidence, all exhibits must be:– Relevant (Rule 401)– Authentic (Rule 901)– Not otherwise inadmissible

(substantially more prejudicial than probative (Rule 403), privileged, hearsay (Rule 802), character evidence (Rules 404-07, 608-09, etc.))

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Laying the foundation/authentication• Rule 901:

– To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

• In other words, your witnesses need to testify that the exhibits they’re discussing are authentic and not fake. 4

Rule 901(b) and 902

• Rule 901(b) gives broad examples of how to authenticate things like handwriting, voices/telephone conversations, etc.

• Rule 902 provides a list of 12 types of exhibits that are “self authenticating.”– Public documents,

newspapers/periodicals, trade inscriptions, checks/commercial paper, etc. 5

Foundational checklists

• Laying the foundation is easy, albeit formulistic.

• Consult Chapter 7 of Mauet’s “Trial Techniques and Trials” book or the Checklists and Foundations portion of the “Courtroom Evidence Handbook” by Goode and Wellborn.

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Seven steps for admitting exhibits

① Mark the exhibit with a number (i.e., “Plaintiff’s Exhibit 3.”)

② Show opposing counsel exhibit.③ Show the witness the exhibit.④ Lay the foundation for admission.⑤ Move the exhibit into evidence.⑥ Discuss the exhibit with the

witness.⑦ Publish the exhibit to the jury.

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Example: tangible object

• Q: I’ve handed you what’s been marked as State’s Exh. 1. Do you recognize it?

• A: Yes.• Q: What is it?• A: It’s my wallet that was stolen.• Q: How do you recognize it?• A: I remember what my wallet

looked like and it has my driver’s license and credit cards inside just like I remember.

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Example: tangible object (cont.)

• Q: Is Exhibit 1 in the same or substantially the same condition today as when you saw it last?

• A: Yes.• “Your Honor, I offer State’s Exhibit

1 into evidence.”

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Example: tangible object (cont.)

• Witness should testify that he/she:– Recognizes the exhibit, and how

he/she recognizes it;– Knew what it looked like on the day in

question, and how he/she knows; and– Is certain the exhibit is in the same or

substantially the same condition as it was when the witness last saw it.

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Example: document

• Q: I’ve handed you what’s been marked as Plaintiff’s Ex. 1. Do you recognize it?

• A: Yes.• Q: What is it?• A: It’s the contract I signed with Mr.

Jones in 2010.• Q: How do you recognize it?• A: I looked at it before I signed it,

and my signature is at the bottom. 11

Example: document (cont.)

• Q: Do you recall signing this document?

• A: I do.• Q: Is this the original document or

a copy?• A: A copy.• Q: Is Exhibit 1 a true and correct

copy of the original contract?• A: It is.

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• Q: Did the Defendant sign this contract?

• A: Yes -- his signature is at the bottom.

• Q: How do you know it’s his signature?

• A: I saw him sign it.• Q: Is this contract in the same

condition as it was when you and he signed it?

• A: Yes.• “Your Honor, I offer Plaintiff’s

Exhibit 1 into evidence.”

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• Witness should testify that he/she:– Recognizes the exhibit, and how

he/she recognizes it;– Knows whether it is an original or

copy, and if it’s a copy if it’s true and correct;

– Is certain the exhibit is in the same condition as it was when the witness last saw it; and

– [if the document contains a signature] can verify whose signatures the document contains.

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Example: photograph

• Q: I’ve handed you what’s been marked as Plaintiff’s Ex. 1. Do you recognize it?

• A: Yes.• Q: What is it?• A: It’s a picture of the accident

scene.• Q: How do you recognize it?• A: I was there the day of the

accident.• Q: Did you take this picture?• A: No.

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Example: photograph (cont.)

• Q: Does this picture fairly and accurately represent the accident scene as you remember it?

• A: Yes.• “Your Honor, I offer Plaintiff’s

Exhibit 1 into evidence.”

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Example: photograph (cont.)

• Witness should testify that he/she:– Is familiar with the scene portrayed in

the picture;– Is familiar with the scene at the

relevant date and time; and– Is certain that the picture “fairly and

accurately” represents the scene as it appeared on the relevant date.

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Seven steps for admitting exhibits

① Mark the exhibit with a number (i.e., “Plaintiff’s Exhibit 3.”)

② Show opposing counsel exhibit.③ Show the witness the exhibit.④ Lay the foundation for admission.⑤ Move the exhibit into evidence.⑥ Discuss the exhibit with the

witness.⑦ Publish the exhibit to the jury.

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Exhibits for demonstrative purposes• Sometimes, you can’t authenticate

something because it’s not the real thing or isn’t a direct product of the event in question.

• Examples: Models, diagrams, drawings, mockups, computer simulations.

• If you’re only using the exhibit to illustrate something to the jury, the judge may allow it as a demonstrative.

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Demonstrative foundation

• To use a demonstrative exhibit, you only need to show:– The exhibit relates to some piece of

admissible substantive proof and fairly and accurately represents that proof; and

– The exhibit would aid the trier of fact in understanding or evaluating the related substantive evidence.

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Example -- model

• Q: Mr. Smith, do you recognize Exhibit 6?

• A: I do.• Q: How do you recognize it?• A: It’s a model I created of the

house.• Q: Does this model accurately

portray and reflect the house?• A: Yes.

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Example – model (cont.)

• Q: Will this model assist you in helping us understand your testimony about the house?

• A: I think it will.• “Your Honor, I offer Exhibit 6 for

demonstrative purposes.”

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Final thoughts on authentication

• Think ahead of time what kinds of things the witness needs to say to authenticate an exhibit. Consult a textbook or the Courtroom Evidence Handbook for each type of exhibit.

• Script out your foundation questions.

• Don’t confuse authentication with admissibility! Just because an exhibit is authentic doesn’t mean it’s admissible!

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Hearsay (insert scary music here)

• Merriam-Webster=“Rumor”• Rule 801

– Hearsay means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers to prove the truth of the matter asserted in the statement.

• Huh? What’s a statement? And who’s this “declarant”? And what the $%&* is “truth of the matter asserted”???

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Statement and declarant

• Rule 801(a):– “Statement” means a person’s oral

assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

• Rule 801(b):– “Declarant” means the person who

made the statement.– The declarant is often (but not

necessarily) someone other than the witness. 25

Why we exclude hearsay

• When a witness on the stand is being asked to testify about something someone said or wrote out of court, we should be concerned.

• Why? Because PEOPLE LIE when they’re not under oath.

• We have to be concerned about out-of-court statements because they may have been total BS when they were made.

• But we don’t exclude everything! 26

Some stuff gets in…

① Statements that aren’t offered “for the truth of the matter asserted”

② Statements made by the opposing party

③ Some (but not all) of the testifying witness’s out-of-court statements

④ Docs w/ independent legal significance

⑤ Statements that fall within a “hearsay exception” (everybody sing along!!!)

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The starting point…

• Is the witness being asked to testify about an out-of-court statement (EITHER his own statement OR someone else’s)?

• If so, RED FLAGS! LOUD NOISES! POSSIBLE HEARSAY!!!

• So, let’s calmly go through the analysis.

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The analysis – Part 1

• First and foremost: Ask yourself why you want the witness to testify about what someone said out of court.

• For what purpose are you offering this statement as evidence?

• Are you trying to prove the very fact asserted in the statement? If so, you’ve got problems (TOMA).

• But if not, IT’S NOT HEARSAY!!! 29

Truth of the matter asserted (TOMA)• Example:

– P has sued D for running a red light and causing a wreck. P calls Wally as a witness, who will testify that he heard D’s wife say “my husband ran the red light.”

– TOMA?– YES!!! We care if this statement is

true!– P is trying to prove that D ran a red

light. The statement of declarant (D’s wife) is being offered to prove that fact!

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TOMA (cont.)

• Example:– P has sued D for running a red light

and causing a wreck that killed P’s wife. D admits he ran the red light, but says that P’s wife died instantly and did not suffer. P says his wife suffered in extreme pain for two hours before dying. P calls Wally as a witness, who will testify that he heard P’s wife say “D ran the red light” one hour after the accident.

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TOMA (cont.)

• Example (cont.):– TOMA?– NO!!! We don’t care if the statement

is true; we’re not trying to prove whether D ran the red light.

– P is only trying to prove that his wife was alive by showing that she said something. Whether what she said (“D ran the red light”) is true is irrelevant – it could have been a lie and we wouldn’t care.

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TOMA (cont.)

• Example:– In a murder case, the State calls Wally

as a witness, who says he heard Donna at a bar say she saw D shoot the victim.

– TOMA?– Yes!!! The State is trying to prove that

D shot the victim. Donna’s statement “I saw D shoot the victim” tends to prove that fact. Donna is free to take the stand and testify herself, but Wally’s testimony about what he heard Donna say is not OK!

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TOMA (cont.)

• Example:– In a murder case, the State calls

Officer as a witness, who says Wally called to say he saw D burying a gun in the yard. The call led Officer to find the murder weapon.

– TOMA?– No!!! The State is trying to show the

effect of the statement on the listener (why and how Officer found the gun). Wally’s statement is only being offered to show what led Officer to find the gun.

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Some reasons other than TOMA

• To prove the declarant was capable of speaking or his state of mind.

• To prove someone was warned or on notice.

• To prove or explain the effect the statement had on those who heard it (i.e., why someone reacted the way he did).

• Impeachment.35

TOMA in sum

• Does the probative value of the statement depend on its truthfulness?

• Otherwise put: Do we care if the statement is true?– If yes, then it’s being offered for

TOMA.– If no, then it’s not (and is not

hearsay).

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• If you determine that the statement is being offered for the truth of the matter asserted, ask, “is this the declarant my opponent?”

• A declarant’s statement offered against the declarant (who is now a party) is non-hearsay (Rule (801(d)(2)).

• Whether true or false, the things you say “can be held against you.”

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Statements by party opponent

• Need not be an “admission.”• Anything a party says out of court

can be used against that party and it’s not hearsay.

• Example:– State calls Wally to testify that D told

Wally “I bet it’d be fun to beat up Vicki.”

– D is the State’s party opponent, so the State can use D’s statement (as testified to by Wally) against him. 38


• Is the declarant also the witness? If so, the statement is not hearsay if:– It was made under oath in a different

case and is inconsistent with the witness’s current testimony;

– It is consistent with the witness’s current testimony and is being offered to rebut a charge that the witness recently fabricated his story; or

– It identifies a person as someone the witness perceived earlier. 39


• Documents with independent legal significance:– Wills– Contracts– Checks– Deeds

• They assert/establish legal rights, responsibilities, and obligations. They are NOT hearsay!

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• If the statement:– IS being offered for TOMA;– Is NOT an statement by party

opponent (801(d)(2);– Is NOT a prior non-hearsay statement

by the witness (801(d)(1); and– Is not a document with independent

legal significance,• Then: HEARSAY EXCEPTIONS!!!

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Why have exceptions?

• The theory: Even though we’re not under oath, sometimes we say things under circumstances in which we probably wouldn’t lie.

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Rules 803 and 804

• Present sense impression (“we’re going really fast!”)

• Excited utterance (“he’s got a gun!”)• Then-existing mental, emotional, or

physical condition (“I’m scared!”)• Statement made for medical diagnosis or

treatment (“This is the worst pain ever!”)• Business records (timesheets, balance

sheets)• Dying declarations• Statements against interest (“he sold me

drugs”) 43

Final thoughts on hearsay

• Don’t forget the five-step analysis!• Read and re-read 803 and 804 –

create (or find) a list of the exceptions that you can quickly reference.

• Beware (but not afraid) of “hearsay within hearsay” (Rule 805).

• Don’t fool around with the “residual exception” (Rule 807).

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Character evidence

• Rule 404(a):– Evidence of a person’s character or

character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

– In other words, you can’t offer evidence of past crimes, wrongs, bad acts, or one’s reputation in order to show that someone acted in a particular way in your case.

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Examples

• You can’t use evidence of one’s past speeding tickets to prove he negligently caused an accident.

• You can’t use evidence that someone was convicted of robbery five years ago to prove that he broke into your house last week.

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Exceptions

• In a criminal case:– D can put on character evidence of

himself. That opens the door to the prosecution to put on evidence to rebut the D’s character evidence.

– D can put on character evidence of the victim. Again, that opens the door.

– In a homicide case, the prosecutor may offer evidence of victim’s peacefulness to rebut evidence that the victim was the first aggressor.

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Exceptions

• In a civil case:– Where character is an element of the

claim (defamation, negligent entrustment, etc.)

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Permitted in all cases

• While you can’t use evidence of crimes, wrongs, or other acts to prove that the person acted in accordance with those bad things, you CAN use them to show:– Motive, knowledge, opportunity.– Intent– Absence of Mistake– Identity– Common plan or scheme

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Methods of proving character

• If it is admissible (because D opens door or under MIMIC), then you can show one’s character by:– Reputation or opinion– Specific instances of conduct

• To show reputation, witness needs to “lay foundation” by proving he/she is familiar with the person, the relevant community, and the person’s reputation in that community.

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Don’t forget about the rest of the 400s• Habit: Rule 406

– Evidence of a person’s habit or 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.

– It’s not really character evidence so much as it is evidence of what someone always or routinely does.

• Other rules 51

Character evidence and impeachment• You can always impeach a witness

with evidence about his/her character for truthfulness or bias.

• Methods:– Opinion/reputation– Specific acts that bear on honesty or

bias.– Convictions

• Crimes involving dishonesty• Any felony• But beware of “10 year” limit of 609(b) 52

Final thoughts on character evidence• General rule: You can’t offer

evidence of prior bad things, a person’s bad/good reputation, or another person’s opinion.

• Exceptions in criminal cases (D’s own good reputation, which opens door) and MIMIC.

• Find a way to make a MIMIC argument!

• You CAN use character evidence against a witness for impeachment purposes.

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Mock Trial:

Evidence Crash Course Prof. Robert T. SherwinSeptember 2, 2014