Wednesday, December 12, 2018
How to be a witness
Develop a character and always stay in character.
General guidelines in court procedures
Specific rules for witnesses
|Develop Your Character "Think in Character"
When you receive your case booklet
Read your witness statement
Before you can portray a character
Write a short biography & include. . .
Where were you born?
How old are you?
When is your birthday?
Where do you live/address?
Do you have a job?
Who are your friends?
What are your sports/hobbies?
What's your favorite thing to do?
As you write your biography. . .
You begin to think in 3 dimensions
You start thinking as a real person
Make a list of your likes (5)
Leonard Nimoy -- as he stayed in character more and more, he became the Spock character. He used his own background and emotions to build the character on.
Categorize your character
"If I were a movie, what would I be?
"If I were a book, what would I be?"
"If I were a car, what would I be?"
"If I were a pet, what would I be?'
"If I were a song, what would I be?"
Do you see how this can help?
Courtroom Basics Witness #1 Example
confident, quick to respond , competent -- a police officer will tend to keep his answers short and two the point. (Look at the judge on the bench when giving a narrative. We watched to 56:41.
During Direct. ..
know the questions your attorney will be asking
practice with your attorney
appear confident and trustworthy
Be sure your testimony is consistent with your witness statement
If a map or something else that requires you to stand
map (evidence poster) make sure you do not block it from the judge(s)
No markers --
No pointers -- finger only
If the attorney asks permission for you to approach the map/evidence poster. . . .
Don't block the vision
If asked "do you recognize?"
Follow the attorney's instruction
Courtroom Basics example
clarified answers in cross
calm, collected, professional
at poster, looked at it first, did not block it, pointing to exactly where you need to post
Courtroom Basics example how use voice and hands
Witness is the expert on his or her statement
Know it backwards, forwards, sideways
Practice! Practice! Practice!
A witness can only testify to his or her own witness statement.
or the fact situation if it would be reasonable for him or her to have knowledge of that
Be sure that your testimony
you don't want to be impeached
You made a witness statement
and you were truthful as you made that. . .
attention to page, line
show how it affects the case. . . relevance . . .
Courtroom Basics example
Rules for Witnesses
Courtroom Basics example
monotone -- blonde wife About 1:30
attorney defended objection -- Your Honor, may I be heard
Rules for Witnesses
Do not leave the courtroom until trial is over -- recess only
No talking with anyone outside the well until the trial is over
Most important strategy -- Practice, practice, practice
Most important Rule -- have fun!
Tuesday, December 11, 2018
Rules of Evidence
Our rules are being adjusted to more closely match what goes on in real courts.
In a trial, do not ask a judge to look at the Guidance.
Try to stop evidence from coming in by making an objection.
This is a process you can go through when deciding whether an objection is needed.
Quick Objection Thought-Checklist
➽ Is the form of the question proper?
example direct, non-leading questions; cross, leading questions
not ask for narration
repeating same question
compound question -- asking two questions
on page 4 mostly same as previous years
page 5 Beyond the Scope -- limited to the scope of the examination of the direct
only applicable in redirect and recross in Mock Trial
do NOT use it to cover outside of the witnesses affidavit -- inventing a fact
Real lawyers make these objections all the time.
Judges will be listening for badly worded questions, too.
➽ Is the witness reliable?
Lack of personal knowledge
Can the witness testify about the what the witness is being asked to testify about?
Witness must have personal knowledge.
"When did the intruder come into your house?" Already there
"What time do you thing the intruder came into your house?" speculation
This witness does not have personal knowledge of when the intruder came in.
speculation We're asking this witness to guess about when the intruder came into the house.
Lack of foundation page 11
sufficient basis for the evidence -- we know that the witness had knowledge of it.
defense puts the police report in front of Mama Bear -- Objection -- lack of foundation
Improper Opinions --
Lay person can give opinions if relevant, helpful, based on rational perception
"When the mysterious person got up, did you think she was drunk?"
Your Honor, the witness can testify to what she saw. Swerve, fall down, hick up -- some of the signs that most people would recognize.
Was the figure showing any signs of drunkenness?
It would take an expert to determine if a person were drunk.
Did the perpetrator vomit? smell of alcohol?
Was there anything about the behavior of this person that was unusual
"In a hit and run -- they tore through the intersection at an outrageous rate of speed. I thought they were going much too fast for the conditions." Is it relevant?
Asking a witnesses opinion is almost always objectionable for a lay witness.
for damages -- "How do you think this affected Baby Bear?" civil case -- relevant to damages
More, what did you see than what did you think.
Improper expert opinion (page 22) Change in rules.
Experts get to give their opinions even if they were not there.
Those not expert witnesses called fact witnesses.
reliable applied methods, expertise can be based solely on experience
must be helpful,
IS THE EXPERT QUALIFIED TO GIVE THE OPINION
IS THE OPINION HELPFUL
IS IT BASED ON RELIABLE METHODS
(not usually done in real courts)
Instead now, set up expert's qualification, set up methods used, ask expert opinion (at this point an objections could be lodged)
How many times have you. . .
have you had occasion to examine (this type of evidence)
what methods have you used in these . . .
have you had occasion to examine the . . . in this case. . .
What methods did you use in examining?
How did you investigate to determine the source of this hair?
education, training, helpfulness
ultimate issue -- different from real life
An expert cannot give No-one cannot give an answer
Cannot ask anyone if the defendant is guilty or innocent
but can ask the defendant -- did you?
cannot ask whether Goldilocks was guilty of burglary
but can ask whether opinion is that Goldilocks was in that house.
Does not have to testify about all of the facts --in direct -- for questions to be asked in cross.
Reliability -- Objecting to invention of material fact
Invention of Fact -- Use to be unfair extrapolation
How stuck are you to your witness statement?
If not likely to affect the outcome of the trial
color of house, had stopped at grocery store
NOT -- night vision glasses
if objections -- cite the rule number
an improper invention of fact as identified in rule 614A
answer -- will not affect the outcome of the trial
bound by witness statement
"went to sleep" went?
any time deviate from witness statement, run the risk of getting objection
most convincing witness, most effective attorney -- win by points
adding characterization to make witness believable
not ask a question -- about not in statement
if a cross-examining attorney asks question not in statement
-- material -- I don't know, I didn't see that ("It's not in my statement" not affective
The opp. attorney is asking a question that is not in the statement, but judges do not like having to go through the statement.
"It seemed important when I was telling my story today, but didn't seem important at the time when I gave my statement."
expert -- do not make up facts to elevate the witness
refreshing the witnesses memory
cross -- not object during direct, but can impeach later
➽ Is the testimony relevant?
Does it matter? Why does it matter? Are there bad facts that might influence the case.
"Ms. Bear, isn't it true that you cheat at your neighborhood pinochle games every week?"
Some facts could be prejudicial -- the Bear's car a Mazerati?
➽ Is the testimony "too" relevant?
Use number by its number -- NEW -- 403
When someone hears this evidence they will be so biased against the person that they won't give the person a fair trial
may be relevant to character evidence
can admit prior crime, but so bad that prejudicial
embezzled from Grandmother's business
➽ Is the testimony excluded for policy reasons?
Rules of evidence where we have said, this might be relevant, but we think it's a bad idea to allow a jury to hear it.
Privileged testimony -- in national rules 501
Certain types of Character Evidence 404
Rules and Exceptions Hard, hard, hard
1. cannot use a character trait to prove that the character acted in compliance with that trait
Goldilocks a loser, a jerk --
Cannot use a prior crime, prior act -- to prove that she did it again
burgled before, burgle again
If a criminal defendant puts that character trait at question -- Never put your character at issue!
"I'm a very honest person." Go to town
Impeachment of a witness for bias, motive -- less likely to be telling the truth
crime of dishonesty, or felony (imprisonment for a year or more)
motive, intent, modus operandi,
example -- the bears' door was locked. Goldilocks a witness will testify that GL had in her possession two weeks ago and was using lock picks to enter someone else's house
to show that she possessed lock picks and had the knowledge to use lock picks to break into a house that wasn't her own
modus operandi -- Goldilocks found in someone else's house wearing a black suit and arrested for trespassing
to show identity -- that she had a black suit
Gets bad stuff in
I am not offering it to show that the witness is acting in conformity with prior acts, but rather
has the skill to use lock picks, had lock picks, and
offering to show opportunity and knowledge under 404B
Impeachment 608 and 609 undermining the credibility of the witness
Bias, motive, and witness are always relevant for witnesses
NEW -- If the declarant is in court, it is still hearsay.
Not if the person is a party.
Any statement offered for the truth of the matter asserted .. .
for the truth of what it is saying believe that the statement is true
or offer to prove that the manager had been told that there was water on the floor
does not show that the water was on the floor, just that the manager was told that
to explain a witnesses subsequent course of conduct
someone told Mama Bear that Goldilocks did it -- she races to Goldilocks house and yells at her --
Witness statements are excluded from hearsay,
Excluded from hearsay; admission by opposing party If Mama Bear goes on the stand "I heard Goldilocks say she did it."
Judicial notice: facts not subject to reasonable dispute
"Your honor, I ask that the court take judicial notice that. . . "
example -- that 6 x 3 is . . .
Use very, very rarely -- usually establish through your witness.
➽ Should I object now? Because maybe the objection will be overruled, or is the judge made at me because I have objected too much, or because I will cover that with a question later.
example: Mama Bear on stand, "Your name is Mama Bear, isn't it" leading, but don't object -- too early --
Assuming a fact not in evidence -- not introduced in the record -- Mama bear on stand, I ask "because you were tired, why didn't you go to the bedroom first." Mama never said she was tired.
Assuming a fact not in evidence "When did the police come after you called them?" -- and never introduced as evidence that they called the police.
Evidence received only by attorney asking question and witness giving evidence
Attorney's questions not evidence
If an attorney believes evidence --
object and state basis of your evidence 4-5 words
may ask to be heard further "May I be heard further?"
Ex. if in State Vs. GLocks -- investigator on stand
Attorney asks"What GLocks as a person? improper character evidence, relevance,
Stand up, be assertive, have a loud voice.
If objection -- wait until question is fully asked -- before it is answered.
If witnesses testimony has become objectionable --
interrupt the witness -- for instance, hearsay -- "somebody told me that she was a despicable person"
Address your responses to the court/the judge. Do not look at the opposing counsel.
After ruling on objection, do not thank the judge.
If objection is overruled, make sure the witness answers the question.
If evidence has already come in and objection has been sustained, ask court to strike the testimony (from the record).
Case - Criminal
Dec. 1 3:30 pm
state prosecuting Gold E. Locks for burglary and destruction of personal property
baby 8 years old female
spoons on right side of bowl -- porridge eaten from smallest bowl empty
smallest chair destroyed
bedroom separate room --
Baby bear "Someone's been sleeping in my bed -- and there she is."
between 5 and 5 !/2 feet dressed in black
bolts through rooms and out the door
1 golden hair -- identified as human
DNA links to Ms. Locks
excluded from testimony -- analyst convicted of falsifying evidence
Ms. Locks is blonde and
4ft 9 inches tall
Examination of Mama Bear
MB cheats at cards every week --
talk LRR "Goldilocks told me she was in your house the other night."
1995 convicted of poss honey with narc probation -- too old, just probation
3 days after event -- saw GL trying to buy can opener
I'm left handed, and . . .
If allowed to testify this witness will
admission by a .. . party
Practice with bad questions
over or under objecting --
your job to protect your witness -- if crossing att. hammering your witness