Back to School Haze…

I had forgotten how busy school gets. Like, absolutely. I would have thought that working full-time would have prepared for me for classes and other jobs, but apparently not…Anyways, the point is, I have some time right now, so I will provide a few updates. To all new members of the team who are taking a look at this blog, welcome! If you’ve never done mock trial before, looking at previous posts is probably a good idea. If you have, they still might be useful, or just good reminders. We currently have 9 of our 12 case books handed out, with four more people having expressed interest. I would love to have the issue of too many team members, but it seems like right now, we have a really solid team. And I’m thrilled with all of the new members who have done high school mock trial: while there are noticeable differences from high school mock trial, college mock trial is, of course, building on the same skills. We have a meeting this Sunday, tentatively scheduled for 7-10 in Wilder Hall, and I can’t wait to get things started for real. On that note, let’s move on to…

Kaitlyn’s Mock Trial Tip of the Day/Vague Time Period

Since we have several members of the team moving from high school to college mock trial, I’m going to outline my experiences, shifting to a more competitive level of mock trial. I grew up in Pittsburgh, Pennsylvania, and got involved with mock trial in 7th grade. We had three tiers of competitive levels of mock trial: seventh and eighth grade competed in house, ninth and tenth grade went to a well-respected law college called Duquesne University to compete with local schools, and in eleventh and twelfth grade, you competed in statewide competitions, so I had been through several shifts in format. Every state has a different set up for statewide competition, but I think rules have to be at least somewhat uniform, for the national round to be compatible. Anyways, here are the things that I found the most surprising in the shift up to the college level.

1. Case Law:

In high school, objections were scripted entirely off of rules of evidence. Rules were memorized and recited to be able to respond effectively. College mock trial threw in a new twist: pseudo-historic cases that can be used to establish the evidentiary precedent that should allow or disallow pieces of evidence. These cases are short paragraphs detailing fake cases that deal with some of the issues that might come up in trial. They usually have counterparts where one side of an issue is supported, then refuted. They make the Battle of Objections that come up during trial slightly more debatable, and add a new level of knowledge. They are used much, much more than Rules of Evidence, and should be memorized extremely well, word for word.

2. Witness Interchangeability

In high school, we had two witnesses per side, and both of them had to be called. No exceptions, and you knew exactly what witness you’d get. College, you get three witnesses, which isn’t that big of a switch. However, there are 10 witnesses that could potentially be called, and several of them can be called by either side. It’s decided at trial who gets to call what witness, which means every witness needs to have a cross prepared for them, unless it is explicitly stated that only one side can call that witness. And, because we can’t always guarantee that we will get to direct examine our witnesses of choice, we need to prepare back up direct examinations. This results in a lot more work, and a lot more adaptation of closings and questioning strategies, but makes the trial more dynamic and a little more exciting.

3. Polish

In high school, the key to winning mock trial was to seem like you knew what you were doing by contrasting your professionalism with your opponent’s unpolish. The core concept of the “style contest” isn’t different so much as kicked up several notches. You don’t face “bad” teams in college mock trial like you do in high school; there are no teams with scripts written by their coaches, or anyone who doesn’t understand the rules of evidence. It’s much more competitive, and the key is to be as slick and smooth as humanly possible, especially in objections. When it comes down to it, the skill with which you make or respond to objections shows the judges exactly the stuff our team is made of.

4. Judges

In high school mock trial, we had a presiding judge and a jury full of lawyers and law students. This meant you could address the jury  and the judge respectively when appropriate. In college mock trial, the people rating your team, presiding over the trial, and serving as the jury are the same people. I didn’t at first think that this would change much, but it completely changes the direction of the courtroom: you are always facing forward, towards the judge and the witness, and, by default, the jury. You have to learn a new set of direction to look and walk in order to be taken seriously.

There are many more small changes, like shorter affadavits and new courtroom rules, but the differences above were the ones I found most surprising, from my former experiences. However, they’re easy enough to adapt to, and can be used to our advantage in many cases.

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Whose Trial Is It Anyway?

Sorry for the delay.

Kaitlyn’s Mock Trial Tip of the Day

It’s time to discuss the less obvious aspects of Mock Trial. Everything I’ve covered so far has been pretty easily exemplified, and you can practice objections, questioning, et cetera over and over and over again in practice. But mock trial isn’t just practice, memorization, and coolness. There’s a huge potential for things to go wrong in trial, and a good mock trial team can handle those occurences as well as they can the parts they’ve practiced for what feels like eternity.

Because a mock trial team must prepare both a prosecution/plaintiff and a defense side, you practice together. It just happens; it’s convenient, you both benefit, and there’s no pressure. You win either way. However, the problem with practicing against your opposite side is it becomes predictable. You hear every set of questions before trial, you know exactly what witnesses they will call, you even have your objections scripted. Which is all fine and dandy, until you get to competition and suddenly, they’re asking your witness about his “experiments” in college with artificial intelligence and snails, and he suddenly seems like a crazed snail enthusiast, instead of the slick, biomechanical engineer you wanted him to appear to be.

There’s a couple ways to deal with what I will now call the “comfortable factor”. The first happens in competition: listen to everything said in the courtroom. Even if it isn’t your witness, even if you know what the answer is going to be, even if you are the one talking. This is especially helpful in cross examination: don’t be afraid to break from the script to pursue something in the witness’s answer, or in the direct examination. For example…

You: You didn’t see the red light, did you?

Witness: No, I was too far away.

You: *Pause* You were too far away?

Witness: Yes

You: But you claim you could see the crime scene perfectly?

Witness: Well, it was closer than the red light.

You: You were traveling on Wood Street at the time, right?

Witness: Yes

You: Heading towards the intersection of 5th and Wood?

Witness: Yes

You: And past the intersection of 4th and Wood?

Witness: Yes…

You: So the red light was at 5th and Wood?

Witness: Yes…

You: And the crime scene was at 6th and Wood?

Witness: Yes…

You: So you were actually a block further away from the crime scene than you were the traffic light?

Witness: I guess so

Compare that set of questions to the blind script follower set of questions…

You: You didn’t see the red light, did you?

Witness: No, I was too far away.

You: *Pause* But you claim to have seen the crime scene, right?

Witness: Well, it was closer than the light.

You: *Pause* Moving on…

As should be apparent, listening to the witness’s answer formed an opportunity for you to mildly impeach the witness. Also, cross portions of the trial almost always have extra time, just because the answers are so short, so time isn’t really a problem. Unless you get a rambling witness, but we’ll talk about that later. Listening is often difficult when you are asking questions, because you know what answers you will probably receive, and if you don’t receive them, that you should impeach the witness. But witnesses justify things, and you can take those justifications and turn them on their tail, as long as you’re paying attention.

As a witness, you also have to be prepared to improvise at times, but mostly in cross examination, and if you know your testimony, you already know what parts are cross worthy. Lawyers will make bad word choices or imporoper sentence structures, so if you don’t completely agree or disagree with the question, you should explain why you think the question is inappropriate for your witness.

Lawyer: You were arrested for driving under the influence in 2001, correct?

You: As I already explained in direct, yes , I was arrested, but my record was wiped for good behavior.

Lawyer: Yet as a recovering alcoholic, you still thought it was appropriate to share a glass of wine with your boss?

You: I’m not an alcoholic. I had too much to drink at a party, once. That doesn’t mean I have a problem with alcohol. And I thought it was appropriate to celebrate my bonus check with my boss with a glass of wine, yes.

Lawyer: Uh…okay, but you did have a glass of wine with your boss?

You: Yes, she offered me a celebratory toast and drink after she gave me a bonus.

Interestingly enough, even the best lawyers can make really bad questions like the one seen above. So if you call them on it, it startles them, and you look good as a witness. Strong, confident, polite, and likeable: that’s your goal as a witness.

Okay, so beyond listening in the courtroom, what can you do to help prepare for the little surprises in competition? Well, you’ve asked the right person. The problem with practicing with the same team all the time is repetition, right? So mix things up. Lawyers, ask new questions of your witnesses on the spot, direct or cross examination. It doesn’t even matter if they are relevant questions, or well formed, or anything. Just ask them, and see how your witnesses do. Likewise, if your witness is on the stand, but your opposing counsel is questioning, object to everything. Put all the pressure on your teammates, don’t be afraid to fight hard. Then when you go up against the toughest teams, with the most confrontational lawyers you have ever met, your team members know exactly how they should react. Witnesses, give your lawyers opportunities to impeach you. Lie outright, avoid questions, be sly and weaselly in practice (of course, make sure you can be professional for the trial). If you keep your team members on their toes, there will be no surprises when you get to trial that your team can’t handle.

Now, obviously, you should practice your actual strategies, not only the improvisation practice, so make sure you cover both. Personally, my team is going to have at least a monthly “lying bastard” practice, where the goal is to push all of your team members to their limits. (Surprise, guys! They’re so much fun, by the way). Make sure that you end the meeting or practice with a frank discussion of everyone’s strengths and weaknesses, so that people can improve upon their techniques. Otherwise, the meeting is no help whatsoever, because you can’t recognize where you need more work. Also, make sure you have a judge who is either unbiased or on both teams, so with an equal bias. Although, judges can also be partial to one team, so it might be beneficial to have a judge try to ruffle the feathers of your attorneys. It’s a tough thing to work with annoyance and anger, but trust me, it’s well worth it in the end. Because that’s what happens in trial, and people aren’t going to apologize later and tell you what you did well. Well, probably not.

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Basic Motor Skills, Courtroom Edition

Time again for …

Kaitlyn’s Mock Trial Tip of the Day

Let’s talk about posture and courtroom presence today, okay? Okay. As a lawyer or witness, you want the judges to be impressed with your poise and grace the minute you enter the room. Or at least with your personality. You want them to find you realistic yet elegant without ever having to open your mouth. There are several ways to accomplish this task, and thus, you should do all of them.

1. Stand straight

You should never slouch, hunch, lean, or do anything else that might compress your spine. A straight back indicates to the judges that you are conscious of the seriousness of the case, and you wish to be taken seriously. Don’t ask me why straight spine = courtroom maturity, but it apparently does. This also applies to witnesses and sitting attorneys; sit straight up, but not quite to the point where you look like you are about to leap up at any moment and dash off. Just enough to look poised. Unless your character is a hunchback. Then slouching is acceptable. Some other exceptions apply, like if you are trying to seem sleazy, lazy, or immature. Really, you don’t want to seem like any of those. So these exceptions are next to worthless.

2. Be aware of your hands

Your hands are in the way in mock trial, except when you are gesturing. As a opening or closing attorney, you should gesture a lot. Get across the big picture with big arm circles, indicate the victim with a sympathetic backhanded point, slam your fist on your palm when talking about “you cannot let this injustice stand!!!”. Gestures are integral to a good opening or closing. And, ideally, they will be scripted, so you won’t have to think about what looks good on the spot. If you aren’t gesturing though, your arms should be clasped in front of you, about belly button level. Too high, you like you’re praying. Too low, and you’re protecting yourself for a penalty kick at the World Cup. At your sides, and you are a robot. Really, only slightly above the waist is acceptable. When you are sitting, you should keep your hands either occupied with taking notes, or with clasping your fingers together. Don’t fidget though. As a witness on the stand, you should make moderate gestures when appropriate (also scripted), and otherwise keep your hands on your lap. “Don’t fidget” also applies to you.

3. Eye Contact

Eye contact is extremely important in making your team seem realistic and confident. We won’t use notes (no exceptions!) so there won’t be an issue with having to look at notes, up to people’s faces, then burying yourself in notes again. However, you have to be confident enough to make eye contact with every judge, at least, and with every witness that you cross or direct examine. This makes you seem human, at least, and at most, like you know for certain that your version of events is unequivocally accurate. The latter is much more preferable. As a witness, eye contact can sometimes be counter intuitive. You always want to be making eye contact with the judge when you answer a question, but you must look at the current examining lawyer when they are asking the question. The judges will emphasize with your character more, and the lawyers will feel like they are paid attention to. Which is good, because it’s never a good idea to anger your cross examining attorney.

4. Volume and Voice

So, obviously, mock trial is mostly about *what* you say, but the way you say it can also be very influential. If you aren’t loud enough, for example, that beautiful “gotcha” question will be lost in the room. Both lawyers and witnesses need to talk as if they were communicating across a small gymnasium with a friend. Not yelling, certainly not screaming, but talking louder than you would in an intimate setting, just because the sound can get swallowed up, by air conditioning, chairs shuffling, or even just a heavy breather in the audience. Always make sure that you can be heard. Lawyers and witnesses can help each other out as well. If you notice your counterpart talking a little too softly for comfort, just ask politely if they could be a bit louder. It’s like a secret code, except you are saying EXACTLY what you mean to say. How exciting, yeah? The way you talk can also indicate your personality (a confident business woman talks swiftly without hesitation, a teenager throws in “like” or “you know…” a lot, etc.). Make sure you witnesses choose a speaking style that is true to your character. Drug addicts don’t form consistently coherent erudite sentences, just as professor’s don’t talk about wild parties (well…at least not in mock trial). With an accent, you can make your character have more depth (not to mention win the hearts of all foreign loving members of the gender of your preference), but only if you can pull it off consistently. Don’t switch accents in the middle of a character.Just…don’t.

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I Impeach Thee!

It’s been a busy week, but I did have the time to update…

Kaitlyn’s Mock Trial Tip of the Day

Let’s talk impeachment. This is going to be relevant to both witnesses and lawyers (the excitement!), so read carefully and memorize every word that I’m going to write down. Or at least pay attention. Or..I guess, just read it?

Anyways, a witness can be impeached when the answers they give while on the witness stand disagrees with the statements they made in their affadavits. This is a real problem, for either side, because, (1), the real facts are not being told and (2), the witness is dictating the course of events. Sorry witnesses, but you should never be inventing your own version of events. Let’s talk lawyer side first. As a lawyer, you are more likely to come across a lying opposing witness, but sometimes your own team’s witness can get confused. The former is much easier to handle than the latter…

Lying opposing witness: After the witness answers with an answer that is either not in their affadavit, or contradictory to their affadavit, repeat the question, with a little increduality thrown in. If they continue to insist that their answer is correct, ask politely if they remember signing an affadavit (extra points if you can say the exact date they signed their affadavit!). At that point, it is obvious to everyone that you think the witness is lying, including the witness. If the witness is not confident/is smart, they will immediately change from a definite answer to something along the lines, “well, maybe I’m wrong…”. At this point, you whip out your copy of their affadavit, ask to approach the witness, and direct their attention to the line that contradicts their answer. Then, you read that line to the jury, emphasizing exactly the parts you want emphasized, then move on with your questioning. That last step is actually the most important step, because there’s always the slim chance that if you ask again for a definite answer, that the witness will still lie. Always resist the urge to do “Aha!” questions: that’s for closing.

You: You hit Mr. Cowell, right?

Witness: No, I did not.

You: I’m sorry, did you say you *didn’t* hit Mr. Simon Cowell?

Witness: Yes, I never touched him.

You: You gave a sworn statement in this case, right?

Witness: Yes, I did.

You: And you swore to tell the truth in that statement, right?

Witmess: Yes, I did.

You: The whole truth and nothing but the truth?

Witness: Yes.

You: And you signed that statement on February 14th, 2010, right?

Witness: Yes, I did.

You:  Your honor, I would like to approach the witness.

[Granted]

You: This is a copy of your sworn statement, isn’t it?

Witness: Yes, it is.

You: And it’s a fair and accurate copy.

Witness: Yes.

You: I’d like to direct your attention to page 3, line 27. Please follow along as I read that line. “I punched Simon Cowell in the face. He deserved it.” Did I read that correctly?

Witness: Yes.

You: After you punched Mr. Cowell, you also started yelling?…

Mistaken friendly witness: (Note that your witness never lies: they are always “mistaken”) Ask your witness if they are sure about the answer they just gave. At that point, your witness should realize that they made a mistake, and either correct themself if they know what the mistake was, or else indicate that they aren’t actually sure. Then, you can step in and graciously offer them their own affadavit to “refresh their memory”. This looks really bad for the witness, in terms of points, but it is a lot better than having the cross examining lawyer point out the mistake, which then becomes a “lie”.

You: Did you hit Mr. Cowell?

Witness: No, I did not.

You: I’m sorry, did you say you *didn’t* hit Mr. Simon Cowell?

Witness: Well…I might be mistaken….

You: Would seeing a copy of your affadavit help you to remember?

Witness: Yes, it would.

You:  Your honor, I would like to approach the witness.

[Granted]

You: Could you tell me what this is?

Witness: It’s a copy of my affadavit.

You: Is it a fair and accurate copy?

Witness: Yes.

You: I’d like to direct your attention to page 3, line 27. Could you read that line for me?

Witness: I punched Simon Cowell in the face.

You: Why did you punch Mr. Cowell?…

Okay, now for the witnesses. You know your affadavit, probably better than anyone else in the courtroom. But people make mistakes, sometimes. If your lawyer has to ask you a question again, chances are, you are mistaken. Just accept it gracefully, and ask to see your affadavit to refresh your memory (see above dialogue). If the cross examining lawyer, however, attempts to impeach you, be very careful. If you think you might be remembering information incorrectly, or you honestly are not sure about your answer, let them have the answer they expected. It is better to back out gracefully than to have it proven to the courtroom that you were lying.

However, there will be points that you know for a fact that you are correct. The most common occurrence is when quotes or events are taken out of context and used in an appropriate way. For example, last year in mock trial, I was a toy company owner who said at one point that our new product needed to be completed “cheaply and quickly, and nothing else mattered.” This quote was being used to imply that I had no regard for safety in my product. Which was a perfectly solid implication. However, the question was not “You said  that [the toy] had to be done “quickly and cheaply, and nothing else mattered“. It was “You wanted [the toy] done “quickly and cheaply and nothing else mattered.” Which seems stronger and very inconsequential in terms of how much I could disagree with the statement. But I did disagree with the statement, because safety did matter to the toy as well, as evidenced by the large number of precautions I took to insure the toy’s safety *after* I made the incriminating statement. I explained that I had said that, but I also cared about safety, just look at the steps I took to prevent injury!, approximately five times. After the sixth time they asked the question, I told them that I could not agree with the statement as it was phrased. They breathed a sigh of relief, pulled out their affadavit, pointed out the line where I had made that statement (which I had admitted to saying, mind you), then moved on. But when it came to judging, both judges remarked that they had been impressed with my commitment to the real story, even under heavy attack, and scored me very highly.

Generally, being impeached looks terrible as a witness, but there are situations where it was appropriate to hold your ground, as mentioned above. Make sure you only do so for things that are legitimately wrong, though, not mostly wrong. Those situations don’t happen very frequently. But, as mentioned before, you will know your affadavit. You will know when things are entirely incorrect. And you’ll know when you should stand your ground. You won’t know if you are actually guilty of the crime in question, but that matters less in the long run.

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Case Materials!

The case has now been released! I have contacted our advisor, Professor Ronald Kahn, and have written a check for AMTA. Soon, we will have ALL the information. And it will be oh so thrilling… Current members of the team, I am going to have the case materials printed in book form for you all. I think, at this time, they will cost about $5 each, so if you feel inclined to chip in, please do. Also, email me your home address if you’d rather have a book form now, and I’ll ship it to you. Oh, and the books will be 6″ x 9″, but I can also print 8.5″ x 11″ if anyone would prefer. Just give me a heads up. We’ve never done book format before (as far as I know), so we’ll be the guinea pigs to see whether this book format works better for people reading and annotating. Definitely easier to read a book than a pdf though… Looking forward to seeing the actual case! I’ll set up a forum for current team members as soon as I get the case, for questions, comments, discussions, et cetera, on my website (http://eccentricrobot.com). We get to do real mock trial things soon, guys!

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Objection!

Sorry about the delay. I just spent a few days in California (!) and was very busy. And also not in the mood to think mock trial, to be honest. But I’m back now, so here’s your update…

Kaitlyn’s Mock Trial Tip of the Day

So, the key to mock trial success, like in most everything, is to know the rules. In our case, the rules are tabulated into a lovely book called the Federal Rules of Evidence. Also, there are various competition-specific rule sets, but they aren’t quite as integral to the mock trial experience. The Federal Rules of Evidence are so expansive that the whole country uses them, from high school mock trial to Supreme Court…I guess that would explain “Federal”…In mock trial, our Rules of Evidence differ slightly from the federal handbook, but mostly in omission, rather than alteration or addition. So if you know the Federal Rules of Evidence, you know the Mock Trial Rules of Evidence, plus a few extra rules.

So what are these rules like? Basically, they detail exactly what is and isn’t allowed in the courtroom as evidence. “Evidence” is not only physical exhibits (“I’d like to direct your attention to Exhibit Q, the huge pool of blood, complete with a dead man”), but also any documents, depositions, or testimonies made by witnesses. Basically, anything that goes on in the courtroom, except when the judge talks. Even sometimes then. The rules themselves are often worded complicatedly, in order to make them seem more erudite. Once you understand them, though, they are extremely helpful to winning your case.

The great thing about these rules is that they set a framework for excluding evidence you don’ want the jury to hear. For example, let’s say you are defending a man accused of driving nude, who, years ago, was arrested for organizing a pro-nude protest. When your opposing attorney get’s up to cross examine your witness, he’s going to make a big deal of your client’s former pro-nude arrest, but you know how to shut that line of questioning down…

“You were arrested in 2007, correct?”

“Objection! 404 B!”

“Your Honor, I am not attempting to show conformity therewith, and thus the witnesses’s answer to my question is not excluded under Rule 404 B. I am merely trying to show…uh…the defendent’s proclivity of nudity.”

“Your Honor, that sounds like conformity therewith to me.”

“Sustained. Counsel, move on to your next question”

Okay, so, first of all, that was nearly incomprehensible without knowing the rules, so I’ll explain. Rule 404, in general, lists evidence that can be used to show the character, or personality traits and habits, of the witness. 404, part b, explains that the use of past crimes, wrongs, or just acts (which can be positive, like commendations or awards) cannot be used in the court of law to show “conformity therewith”. Put more simply, it is not kosher to try to say that, because a witness did something in the past, they’re likely to do it again. Especially when it comes to crimes. Just because Jack the Ripper murdered 3 other women doesn’t mean he murdered this one…except, under 404 A, you can use that line of argument…but no matter.

Second of all, that exchange is not at all typical for the courtroom. You opponent will always have a better response, and you will have to fight for your objection. But, if you know the Rules of Evidence, you should know exactly what argument you can use to attack or defend, as the case may be.

So, I’ll go through a few of the most common rules that you will have to know to be able to defend or attack effectively.

Rule 404: Character Evidence

Evidence that shows a witness’s personality traits, possible habits, morality, or any other character traits is inadmissible if the evidence is a singular event used to imply that the event regularly occurs.

Part A: Character evidence is more admissible when characterizing the defendant or the victim.

Part B: Crimes, wrongs, and acts are not admissible to indicate that a similar crime, wrong, or act happened again. They can indicate a variety of other things, however, such as motive, opportunity, intent, preparation, etc.

You got drunk at a New Year’s Party in 2004, correct? And you are now accused of drunk driving? So, you’re an alcoholic? What do you mean, “no”? You aren’t an alcoholic? But you have consumed alcohol. So you *must* be an alcoholic. 

Objection! 404 B. Counsel is trying to show conformity therewith.

Oh…I’ll move on, Your Honor

Rule 701: Opinion Testimony

A witness that is not an expert can give opinions in their testimony if the opinion requires no specialized knowledge and the witness based the opinion on reasonable facets of their own judgement. The opinion must also be beneficial to the overall understanding of the case.

Good: It looked like she was upset. Her eyes were bloodshot, and she was eating her sandwich with an intense ferocity.

Bad: I only saw the back of the runner’s shoe, but I could tell easily that Mr. Wayne was Batman. 

Objection! Speculation!

Rule 702: Expert Testimony

An expert can testify to matters of their expertise if their opinions are based on facts, and established by trusted methods.

Good: I ran the blood through a centrifuge, and found the results to be an exact match to Batman’s blood.

Bad: I tasted the blood, and knew that it tasted like Batman’s blood.

Rule 801: Hearsay

Hearsay deserves it’s own paragraph. Any words that came out of anyone’s mouth while not in court are called hearsay. Written documents are also hearsay, as are typed, telegraphed, smoke signaled, skywritten, or any other forms of messages. Any communication that happens outside of court is hearsay. That, however, would make a lot of helpful information not at all admissible in court, which would really be a shame. Luckily, there are a bajillion rules dedicated to letting evidence in that is technically labelled as hearsay. And, so we’ll go over a few.

Rule 801 (d): Non-Hearsay

These are things that you might assume are hearsay, but actually aren’t, according to the law. The biggest of the five listed is “Party Opponent”, which means that the party that is named as your opponent supposedly said or wrote or otherwise declared the evidence that you are trying to enter. It always works, as long as you can support that the person who is supposed to have said it is the representative of the opposing party.

Rule 803: Hearsay Exceptions

This lists all the evidence that is technically hearsay, but is still allowed to be heard. For example, business letters are admissible under hearsay exception 803 (6),  Records of Regularly Conducted Business, and exclamations are allowed under 803 (2), Excited Utterances. There are a lot of exceptions, but they aren’t all worth memorizing; instead, figure out which ones might be relevant for the case materials provided.

All right, that’s it for now. You’ll learn more later, I’m sure.

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Witness Day!

Kaitlyn’s Mock Trial Tip of the Day 

It’s time to cover witnesses again! Hooray! Witnesses sort of get the short end of the stick when it comes to Mock Trial, because people forget that they’re important. But I haven’t! Witnesses make or break a case. If your witnesses are strong, you’ll hold up well against any sort of obstacles. But if not, you can observe the case crumble before your eyes. So what makes a witness strong or weak?

Strengths:

Personality: A witness with a memorable set of behaviors, voice patterns, and mannerisms is a lot more likely to be regarded well for the team. The only issue is, it needs to be consistent. No dropped accents or mood swings. You need to react like a normal person, but in character. So, basically, acting, but with a less established script.

Knowledgeable: Know your affadavit, back and forth. Make timelines for yourself to remember exactly when everything happened. Don’t let any part of your affadavit go overlooked. In cross examination, the opposing lawyer will be trying to nitpick through your affadavit, bring up exact quotes out of context. You should be able to give a positively connotated contextual anecdote about every damaging part of your affadavit.

Mood: Confidence and calmness are your best friends as a witness. You want to seem like you know why you’re in court, why you’re answering these questions, and most importantly, that your side of the story is the most accurate. You are more respected if you speak with confidence and clarity. Likewise, under cross examination, be confident when the lawyer challenges you. There are times when the lawyer will attempt to impeach you (I’ll cover that more in detail another day), but you know your affadavit says differently. Stick to your guns, unless you legitimately feel that you might be misremembering. If you know your affadavit though, that shouldn’t be an issue. Don’t let the opposing attorney frazzle you.

Dress: You should dress professionally, but in a manner that suits the persona of your character. If you’re playing a poor housewife who can’t afford fancy clothes, go thrift store shopping and find something that looks simultaneously bedraggled and classy. If you’re a big business man, with a huge chain of stores across the country, find an obnoxiously large watch and huge cuff links to go with your sleek suit. The clothes add another facet of realism to your character.

Be prepared: You know your affadavit. You know when it sounds shady, when it’s doubtful, when it sounds outright terrible. You know where your weak spots are. Why not figure out a plan on how to spin them positively? You almost lost your license because you mixed up lab samples? Why not express how that mistake made you quadruple check every sample to prevent it from happening again? You didn’t clean up the poisonous beads on your coffee table, which was within reach of your two-year old son? Talk about how you entrusted your daughter with the beads, to teach her responsibility, how you always looked out to make sure the two-year old was never near the beads, or how you could never have imagined how a toy company would release a poisoned product. You have the ability to figure out how to make all of your actions look good, at least in some small way. Take advantage of that before trial.

Weaknesses:

Submissiveness: One of the worst things you can do as a witness is to give in. When you’re under fire in cross examination, there will be a lot of questions for you to answer, that are damaging to you, but accurate. Don’t let that opposing attorney get the answers s/he wants easily though. Always answering “yes” or “no” without any sort of justification indicates to the jury that you think you are guilty, that you don’t want to argue because everything is accurate, and you are as terrible a person as the attorney says.

Argumentativeness: The polar opposite of submissiveness, though, is just as bad. If you argue with your cross examining lawyer on every question, the jury is going to get annoyed, as is the cross-examining lawyer. You are also more likely to make mistakes that will cause impeachment. Just look at the following exchange:

Cross: You were born in Virginia, right?

Witness: Yeah, I was born there, but I never liked it. Why do you need to know that?

Cross: So you are confirming that you were born in Virginia, right?

Witness: No, I was born in a hospital.

Cross: A hospital in Virginia, right?

Witness: I associate more strongly with being born in America than Virginia. I am a patriotic man, and proud of it.

What is that witness gaining by arguing about where he was born? Absolutely nothing, unless he’s trying to alienate everyone in the courtroom. The trick is to find a medium between submissiveness and aggression; don’t fight questions that don’t matter, but make sure your side of the story is represented when it matters most.

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