Kyle Kaiser
Rules of Evidence
Objections
Guidance document — on website?
15 minutes
25 compound, narration, asked and answered
50 min lack of personal knowledge, questions about the witness’s capacity to answer questions
creating material fact not
1:15 relevance
1:30 hearsay
1:40 most common hearsay objections
not judicial notice
not privilege
not expert testimony — Rule 701/705
not about tactics
disclaimers —
50% off — what it doesn’t include
Judges bring their own opinions
Best advice he can give, but can’t guarantee that every judge will agree.
Judges are volunteers — may not have the opportunity to read all of the materials or be entirely familiar with the mock trial format
Objections one of the hardest things to do in Mock Trial
Opening statement predictable
nothing unexpected
Direct Examination pretty predictable
Cross exam less predictable, but witnesses are bound by their witness statements, you can plan where you’re going.
Objections — witness, opposing council, (what will their objections be? How will they respond to your objections? You don’t know how the judge will respond or what questions he might ask.
Shows you can think and talk on your feet — maintain decorum
courtroom language
Hard to practice —
On a team you tend to get the same ideas over and over — opposing team my have a completely different theory.
Figure out the important objections, practice and practice.
Rules of Evidence
Utah Simplified Mock Trial Rules of Evidence p.28 https://www.lawrelatededucation.org/images/docs/2018_Mock_Trial_Handbook.pdf
https://www.lawrelatededucation.org/images/Guidance_on_2018_Utah_Simplified_MT_Rules_of_Evidence.pdf
modeled on federal and Utah Rules of Evidence, but simplified and a little different
Invention of fact rule doesn’t exist in Federal Rules
Understand, so could point out if needed for your case.
What the witness can testify to
testify about
Today’s presentation mostly follows guidance document
Is the form of the question proper?
(not content or answer, but is the attorney asking the question properly?)
Is the witness reliable or able to answer
Can he know the answer ex. speculation
Is the testimony relevant?
Is the testimony too relevant? — too prejudicial
rule 403 — How can the jury try my client a
Improper or excluded for policy
hearsay
If you’ve never done an objection, how does it work, and how does it go?
Can email for the factual scenario Gold E. Locks
What does a good objection look like
Be strong and confident or
Act like you’re strong and confident
Let the whole question get out.
Describe basis for your objection
May I be heard further?
Objection, Your Honor, Narration
Your bonor, this queStion does not call for narration
It is about a relatively short period of time.
if sustained
I will rephrase the question.
Sometimes the judge will not ask for a response.
Admission by a party opponent, Ms. Locks is the defendant in this case.
May I respond further?
When objectionable testimony comes out in the middle of a statement interrupt the witness right away.
We are not offering to go to the proof of the matter
but to show . . .
You don’t talk to the witness, attorney.
Direct your comments to the judge/the court.
If the court asks for a response, always give one. If you don’t have anything additional to say, you can just repeat your main idea in response.
If you lose, be graceful — DO NOT thank the judge for ruling one way or the other.
If over-ruled, make sure the question is answered.
You may answer the question, or state the question again.
If sustained, make sure opposing attorney does not ask their question again.
Objections to the form of a question — how it is being asked.
Narration — asking for narration
Leading — one that suggests the answer.
Asks for yes or no, but . . .
but not objectionable
Was the sun hot that day?
Was the weather particularly warm that day?
Do not ask leading on direct.
Your honor, this question does not suggest the answer.
this is preliminary
Most common time for leading questions objectionable — most often in redirect — questions not prepared ahead.
Leading questions are fine on cross
Compound Question — asks for more than one answer
Is it true that you went to the store, then came home with beans?
Asked and answered —
waste of time
can border on badgering
leeway if already asked by other side
If witness doesn’t answer could ask again
Your honor, the witness has not answered the question
or I have not asked this question before
Assuming a fact not in evidence
not the same as making up something not in witness statement
FORM question — when an attorney asks a question that assumes a fact that hasn’t been introduced as evidence.
See guidance —
Mrs. White tested the apple
Argumentative
Badgering the witness
not arguing
if witness belligerent, judge might allow more
council tries to make a legal argument through a question
see guidance
Your honor — the witness is not answering my question
I apologize too aggressive
I was just trying to establish facts
Beyond the Scope —
in redirect may only ask about what they asked about in cross
Directing
leading question
Your honor, it doesn’t really suggest the answer
I will rephrase the question.
this is a question about one topic and should be very brief
we will continue in a question and answer format
Asked and answered
Relevance?
Crossing
Redirecting
Beyond the scope of my cross examination
For practice --
Write bad questions and have others object to them.
Preliminary question —
_________________________
Can this witness testify to this?
Can’t speculate or guess
lack of personal knowledge
Test for begin able to use “speculation”
Will help the trier of fact?
701 and 704 provide an opinion if that opinion is based upon their perception and is helpful to the trier of fact
was the defendant drunk — improper opinion
people know what people look like when they are drunk
help he trier of fact
or better, ask what the witness observed
assesseing someones emotional state
How do you think he was feeling
intent, emotional state
improper expert opinion — takes specialize expert training or experience to create a conclusion about something they didn’t originally see
rule 6/660/614
Creating a material fact not in evidence
bound by affidavits
your honor this is an invention of fact
creating a fact not in the affidavit
be able to point out which line
answer and where that answer is line . . . page. . .
cross exam
as long as doesn’t affect the substance of the case
If cross asks for brand new fact,
That question asks my witness to invent a material fact
facts okay if just to round out witness’s character
height of criminal in three bears case —
prejudicial
improper opinion
That calls for a level of expertise that the witness does not have. . .
Who cares? If this evidence
evidence makes a fact more or less likely
Response to relevance objection
go back to
elements of the case.
Your honor, this is relevant to the issue of. . .
. . . the defendant’s intent
. . the defendant’s
relevant to causation. . .
practice objecting to relevance on every question
provide the court with context
laying foundation to show this witnesses ability to testify to. . .
providing court with
403 may exclude relevant
unfair prejutice
measure degree of relevance again
jury hears this ad will never give th e defendant a fair shake
unfarily prejudiial
404 406 608
impropercharacter evidence
used to show that because someone is bad or had done bad thing in the past, more likely to do a bad thing in the future.
exceptions 404B
can use prior wrongs or acts to show modus operandi
or showing possession of knowledge
Questions that sound like — You’re a bad person
We’re not trying to show that because this person did it before they did it now
We are trying to show . .. .
read 607, 608
if convicted
testimony less reliable
within last ten years
crimes of false statements, etc.
probative on establishing this witnesses
creating a material fact not found in the record
May I respond — the words . . . .are not found anywhere in the statement
______________
Evidence that we exclude for other reasons
Hearsay
could be relevant
could be helpful
We exclude it because not particularly reliable
You can’t cross examine the person who made that statement
Judges may have different view about hearsay
no long not hearsay if in courtroom
an out of court statement made . . . .
offered for the truth of the matter asserted
(trying to get the jury to believe that the facts in the statement are true.
the declarant — made the out of court statement
evidence not begin offered for the truth of the matter asserted
puddle of water in grocery store
a store clerk told store manager
water on aisle 5 want people to believe
instead offering it to show that a manager knew about a report of a dangerous condition —
to show why a witness
Did you ask Ms. Bear if she knew of any suspects
yes, ms bear told me that she thought it was Goldilocks
Object
not that GL was the assailant, but to explain why the Ranger did next — subsequent course of action. .
What do you want the court to believe based on that statement.
exempted
documents technically hearsay, but exception or exemption
What is in the document
rule 801
witnesses prior statement — different from reg. rules
admission by a party opponent
if opposing party’s statement, you can enter it against them.
party opponent in criminal is only the defendant
statements officers make, not parties for purpose of
in civil two parties
exceptions
see guidance
803 excited utterances stressful situation
but must prove that person
things that you say to doctor and doctors say to you
regularly conducted business activity
some not recognized in our rules
presence exempted
subsequent course and conduct
Hearsay, ask that it be stricken from the records.
Your honor, this is an excited utterance
