Sunday, August 2, 2020

Attorney Workshop

Kyle Kaiser 
Rules of Evidence 
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

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

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

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

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


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 — 

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


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

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.


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 

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 

Monday, December 16, 2019

Online Mock Trial Training

See below the invitation to log-in for the workshop twith Kyle Kaiser presenting, "Rules of Evidence".  

Below is the invitation to log-in for the workshop  afternoon.

Utah State Bar CLE Department is inviting you to a scheduled Zoom meeting.

Topic: Law Related Education Rules of Evidence Mock Trial Workshop
Time: Dec 19, 2019 05:00 PM Mountain Time (US and Canada)

Join Zoom Meeting

Meeting ID: 238 943 647

From the State Mock Trial Program -- 
This Thursday, December 19th at 5:00 p.m. will be our 1st mini-workshop "Rules of Evidence."  One of our board members and Asst. AG will be presenting with the help of some mock trial students from Integritas. This will be a live "online" presentation. I will be sending the link a link so please watch for that and share with your students.

Wednesday, November 27, 2019

Schedule for 2020

SCHEDULING: Monday, Tuesday, Wednesday, Thursday, Friday (Mornings/Afternoons/Evenings)

Middle School Competition Dates – Playoff Rounds:
February 12, February 14, February 18, February 19, February 21, February 24, 25, 26, 27 and 28
(9:30 a.m.-12:00 p.m.) (1:00-3:30 p.m.) (5:30 p.m.-8:30 p.m.)
[I have requested that we not complete on February 12 during the day, February 20 -- Day and Evening,  February 27 and 28 --Evening, March 3 -- Day.]
Elimination – Round of 16:March 5 (5:30 p.m.-8:30 p.m.)
Quarter Finals – 8 teams:March 10 (5:30 p.m.-8:30 p.m.)
Semi Finals – 4 teams:March 13 (1:00-3:30 p.m.)
Middle School Final 2 Teams:March 19 (5:30-8:30 p.m.)

Tuesday, October 15, 2019

Wednesday, October 9, 2019

We watched part of this video of a Mock Trial conducted in California.
Some of their procedures and terms are different from ours, but this will give you a good idea of how a Mock Trial competition works.

Students received applications and teacher recommendation forms.

Tuesday, February 26, 2019


Points of law:
What Officer Christensen did was 
   not excessive force
   not unprovoked
   not unjustified
   not unreasonable

The Plaintiff claims that the 3D gun (which was made to look like a real gun) was not a threat to anyone.   However,  people have threatened others with fake guns.  When a person sees something that looks like a gun and does not know that it is non-functional, that person could reasonably feel threatened, especially when the gun is somewhere it should not be. 

There were other causes that led Savea Tuvale to leave Emigration.  He had been bullied and the bullying had gotten much worse, much more threatening. 

Savea Tuvale is over the age of 16 and did pose a threat according to the information that Officer Christensen had.

must show "a continuing, persistent, and widespread practice of unconstitutional misconduct by the entity’s employees;"  pg. 80  --  2 of 2 in BestLaw

To prove actual causation, the plaintiff must show that “but for” the defendant’s actions, the alleged injury would not have occurred. 
Plaintiff claims that part of the injury to Savea is his loss of educational opportunities avaiable in Emigration --  He didn't acutally decide to leave until after the increased bullying incidents. 
 [It was not Officer Christensen's actions that caused the bullying to increase -- it was Savea's choice to bring a gun to school.-- added to a bias already present in parts of the community against so-called "outsiders."  Neither of those things were caused or contributed to by the Emigration Police Department.] 

To prove proximate causation, the plaintiff must show that its alleged injury was a reasonably foreseeable consequence of the defendant’s actions. The plaintiff need not prove that the defendant actually foresaw the alleged injury as a consequence of its actions; rather, the plaintiff need only show that a reasonable person in the same situation would have foreseen the alleged injury as a consequence of her actions.


Friday, February 15, 2019

Bailiff Workshop

This is the link to the bailiff workshop:
You could watch it anytime.  


You  (both bailiffs) will meet before the trial in a side room with the judges.

Ask the presiding judge how he or she wants the witnesses sworn in -- three at once or individually? 

The bailiff for the Plaintiff will call the court to order.
Introduce the judge  page. 36 example of what you can say to introduce the panel and presiding judge. Speak up so your voice carries throughout the courtroom.

Then the judge will ask the plaintiff bailiff to call the case.   Pages 36 and 37
Sometimes a break between plaintiff and defense –
 Defense bailiff takes over and calls the court into session  -- The defense bailiff will take over the second half of the trial