Tag Archives: opinion testimony


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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