Mock Trial Basics of Evidence and Delivery

Evidence and DeliveryEvidence and Delivery

Making Your CaseMaking Your Case

Author’s NoteAuthor’s Note These are tactics that have worked for the East These are tactics that have worked for the East

Islip Mock Trial Team in Region VI. I offer them as Islip Mock Trial Team in Region VI. I offer them as suggestions only. There are many other methods, suggestions only. There are many other methods, so find the ones that work for you and your team.so find the ones that work for you and your team.

The rules are based on the 2008 NYSBA Mock Trial The rules are based on the 2008 NYSBA Mock Trial case. Be aware that these rules change often, case. Be aware that these rules change often, and always follow the most current rules.and always follow the most current rules.

Feel free to use and alter this presentation as it Feel free to use and alter this presentation as it suits your needs.suits your needs.

In the spirit of cooperation, I’d appreciate In the spirit of cooperation, I’d appreciate feedback and suggestions. feedback and suggestions.

Contact me at Contact me at [email protected]@eischools.orgPatsy Lester, East Islip HSPatsy Lester, East Islip HS

East Islip High School (Region VI)East Islip High School (Region VI)2008 NYS Champions2008 NYS Champions

AdmissibilityAdmissibility

AdmissibilityAdmissibility

General RuleGeneral Rule All rAll relevantelevant

evidence is evidence is admissibleadmissible

Relevant evidence Relevant evidence has has probative valueprobative value

Unduly prejudicialUnduly prejudicial evidence may be evidence may be excludedexcluded

FoundationsFoundations

RequirementsRequirements RelevanceRelevance Authenticity (witness has Authenticity (witness has

personal knowledge)personal knowledge) Laying a FoundationLaying a Foundation

StipulationsStipulations One or more witnessesOne or more witnesses Direct and Cross Direct and Cross

examinationsexaminations Conditional admissibility Conditional admissibility

(further facts, subject to (further facts, subject to connection)connection)

Admissibility ExceptionsAdmissibility Exceptions

Rule 201Rule 201

Some evidence may Some evidence may be excludedbe excluded Prejudicial value vs. Prejudicial value vs.

the probative valuethe probative value Confusing the Confusing the

issuesissues Results in an undue Results in an undue

waste of timewaste of time

Character & ReputationCharacter & Reputation

Generally NOT admissible [202]Generally NOT admissible [202]

EXCEPTIONS:EXCEPTIONS: When character is the legal issue When character is the legal issue

(slander, defamation cases)(slander, defamation cases) Prosecution may not introduce character Prosecution may not introduce character

evidence to show propensity evidence to show propensity BUT if the defense offers evidence of BUT if the defense offers evidence of

good character to show innocence, the good character to show innocence, the Prosecution may rebutProsecution may rebut

Bias & Credibility are Bias & Credibility are AdmissibleAdmissible

Questions relating to the bias Questions relating to the bias or credibility are appropriate or credibility are appropriate for cross examinationfor cross examination

The bias must be relevant to The bias must be relevant to the case at handthe case at hand

Rule 308Rule 308: If the witness’ : If the witness’ credibility or reputation for credibility or reputation for truthfulness has been truthfulness has been attacked on cross, the re-attacked on cross, the re-direct may direct may exceedexceed the three the three question limitquestion limit

HearsayHearsay

HearsayHearsay

Rule 401Rule 401

The most misunderstood legal The most misunderstood legal concept!!!concept!!!

Hearsay has a 3 part definition:Hearsay has a 3 part definition: An out of court statementAn out of court statement Offered for the truth of the matter Offered for the truth of the matter

assertedasserted Made by someone other than the witnessMade by someone other than the witness

HearsayHearsay

You cannot argue that something is You cannot argue that something is not hearsay because it was said to not hearsay because it was said to the witness, or that the declarant is the witness, or that the declarant is in court. in court.

That’s the definition of hearsay- That’s the definition of hearsay- somebody ELSE said it, not the somebody ELSE said it, not the witness on the stand!!!!witness on the stand!!!!

**Can be **Can be spokenspoken or or writtenwritten: : documents are hearsay unless they documents are hearsay unless they fall under an exception…fall under an exception…

Why is Hearsay Inadmissible?Why is Hearsay Inadmissible?

ContextContext IntentIntent MisunderstandingMisunderstanding Whether it was actually Whether it was actually

saidsaid

Hearsay ExceptionsHearsay Exceptions

402: Admission of a Party Opponent- 402: Admission of a Party Opponent- [admissions against interest][admissions against interest] The declarant must be a partyThe declarant must be a party The statement must be related to the The statement must be related to the

issue issue 403: State of Mind 403: State of Mind

The emotion, sensation, physical The emotion, sensation, physical condition, intent, plan, health, feeling of condition, intent, plan, health, feeling of the declarantthe declarant

Hearsay Exceptions…Hearsay Exceptions…

404 Business Record- 404 Business Record- A record kept in the normal course of business A record kept in the normal course of business

concerning an event or actconcerning an event or act Made at the timeMade at the time By a person with knowledgeBy a person with knowledge Not in contemplation of litigationNot in contemplation of litigation

405 Present Sense Impression405 Present Sense Impression Statement describing or explaining a situation Statement describing or explaining a situation

or conditionor condition Made while the declarant was experiencing the Made while the declarant was experiencing the

situation or condition, or immediately situation or condition, or immediately thereafterthereafter

Business RecordsBusiness Records

A business record DOES NOT have to A business record DOES NOT have to have been made by the witness to have been made by the witness to authenticate itauthenticate it

A witness who can reasonably testify A witness who can reasonably testify that this is how the record is that this is how the record is normally kept [has personal normally kept [has personal knowledge] can authenticate a knowledge] can authenticate a business recordbusiness record

Admitting a Business RecordAdmitting a Business Record

Have the document marked and ask Have the document marked and ask the normal foundational questions, the normal foundational questions, thenthen Are documents such as this kept in the Are documents such as this kept in the

normal course of business?normal course of business? Have you regularly kept such records?Have you regularly kept such records? And was this record made at the time the And was this record made at the time the

issues/events/transactions it describes?issues/events/transactions it describes? Was this document made in contemplation Was this document made in contemplation

of litigation?of litigation?

Admitting a Business Record Admitting a Business Record [cont][cont]

Other questions may be necessary to Other questions may be necessary to establish this witness’s ability to establish this witness’s ability to testify to this record.testify to this record.

Submit it as “Submit it as “A business record A business record exception to the hearsay ruleexception to the hearsay rule””

Opinion TestimonyOpinion Testimony


501: Witnesses who are not experts 501: Witnesses who are not experts may give opinions may give opinions which are based on what they saw or which are based on what they saw or

heardheard are helpful in explaining their storyare helpful in explaining their story of which they have personal knowledgeof which they have personal knowledge May NOT offer opinions on anything May NOT offer opinions on anything

requiring special knowledge or trainingrequiring special knowledge or training


502502 Experts may render opinions based Experts may render opinions based

on professional experienceon professional experience Questioning attorney must bring Questioning attorney must bring

out the expert’s qualifications, out the expert’s qualifications, education and/or experienceeducation and/or experience

Physical EvidencePhysical Evidence

Physical EvidencePhysical Evidence

Rule 601Rule 601 Tangible evidenceTangible evidence Photograph, video: verify that it is Photograph, video: verify that it is

a a fair and accurate representationfair and accurate representation Demonstrative evidence (map)Demonstrative evidence (map) Signed documentsSigned documents Business recordsBusiness records

Offering ExhibitsOffering Exhibits

Have 4 copies ready Have 4 copies ready Have yours, marked Have yours, marked

where it’s relevantwhere it’s relevant

3 clean copies for the3 clean copies for the WitnessWitness JudgeJudge Opposing counselOpposing counsel

Exhibits Exhibits [continued][continued]

MarkMark for identification: for identification: Your honor, at this time Your honor, at this time I would like to have this document I would like to have this document marked for marked for identificationidentification as as P/D exhibit [P- num, D-letter] P/D exhibit [P- num, D-letter]

Mock Trial courtesy: cite the page in the case Mock Trial courtesy: cite the page in the case materials book for the fact finder’s materials book for the fact finder’s convenienceconvenience

ShowShow evidence to opposing counsel evidence to opposing counsel AskAsk permission to permission to approachapproach the witness, or the witness, or

that it that it be shownbe shown to the witness to the witness State State ““I now show you what has been marked I now show you what has been marked

as exhibit…” as exhibit…” oror “Let the record reflect that I “Let the record reflect that I am showing the witness what has been marked am showing the witness what has been marked as P/D exhibitas P/D exhibit…”…”


Ask foundation Ask foundation questions about questions about the exhibit:the exhibit: Do you recognize Do you recognize

this?this? What do you What do you

recognize it to recognize it to be?be?

How do you How do you recognize it?recognize it?


Depending on the type of evidence:Depending on the type of evidence: *Is it in the same or substantially *Is it in the same or substantially

the same condition as it was the the same condition as it was the last time you saw it?last time you saw it?

*Is that a fair and accurate *Is that a fair and accurate representation?representation?

*Would it help you to explain what *Would it help you to explain what happened to the court?happened to the court?


Offer the Exhibit into evidenceOffer the Exhibit into evidence

Your honor, at this time I ask that what Your honor, at this time I ask that what has been marked as P/D exhibit… be has been marked as P/D exhibit… be moved into evidence as P/D…moved into evidence as P/D…

Have the witness use the evidenceHave the witness use the evidence Return to the bench: Return to the bench: Thank you, your Thank you, your

honor, I am finished with P/D Exhibit honor, I am finished with P/D Exhibit ……

Objections to ExhibitsObjections to Exhibits

Objections may be Objections may be made at made at both both identification and identification and offeroffer FoundationFoundation RelevanceRelevance PrejudicePrejudice HearsayHearsay

DeliveryDelivery

Verbal CommunicationVerbal Communication

The Basics:The Basics: Show respect at all times: “Show respect at all times: “Mother Mother

may I?”may I?” Confidence will gain points, but hubris Confidence will gain points, but hubris

and arrogance will lose pointsand arrogance will lose points ““Make noises like a lawyer” (ie: no Make noises like a lawyer” (ie: no

“umm”’s)“umm”’s) Use common languageUse common language Use “legalese” precisely and sparinglyUse “legalese” precisely and sparingly

Verbal TacticsVerbal Tactics

Directs should Directs should “sound like a “sound like a conversation that conversation that the judge is the judge is eavesdropping eavesdropping on”on”

Crosses should be Crosses should be succinct, to the succinct, to the point, and all point, and all leading.leading.

Verbal Tactics Verbal Tactics ContinuedContinued

Witnesses: use nouns and verbs instead of Witnesses: use nouns and verbs instead of adjectivesadjectives BAD: “It was a terrible storm”BAD: “It was a terrible storm” GOOD: “GOOD: “It was raining really hard, there was It was raining really hard, there was

thunder and lightening and huge gusts of thunder and lightening and huge gusts of windwind””

SignpostsSignposts ““Now I’d like to direct your attention to the Now I’d like to direct your attention to the

morning of September 24, 1999”morning of September 24, 1999”

Verbal Tactics Verbal Tactics ContinuedContinued

Primacy and RecencyPrimacy and Recency People remember what they heard People remember what they heard 11stst

and and lastlast Bury Bury harmfulharmful things in the middle of things in the middle of

your directyour direct Put your weakest Put your weakest witnesswitness in the middle in the middle Put the most Put the most damaging questionsdamaging questions at the at the

end of your crossesend of your crosses

Nonverbal CommunicationNonverbal Communication

Competition starts Competition starts when you get off the when you get off the busbus

Stay in your role: the Stay in your role: the judge is watching!judge is watching!

Sit up straightSit up straight Watch your Watch your

lawyers/witnesses!lawyers/witnesses! If you don’t care, If you don’t care,

why should the why should the judge?judge?

Body Language and Eye ContactBody Language and Eye Contact

Do not walk and talk at the same timeDo not walk and talk at the same time Do not hold anything in your hands [like a Do not hold anything in your hands [like a

pen]pen] Don’t crowd the judge or the witnessDon’t crowd the judge or the witness

AS MUCH AS POSSIBLE

SummarySummary

Proper Preparation Proper Preparation Prevents Poor Prevents Poor PerformancePerformance

Confidence is the Confidence is the key to winning, and key to winning, and confidence comes confidence comes from being from being prepared!prepared!

Created by Patsy LesterCreated by Patsy Lesterfor the 2008 for the 2008

NYSBA Mock Trial NYSBA Mock Trial Summer InstituteSummer Institute

[email protected]@eischools.org

Education

Mock Trial Basics of Evidence and Delivery