Mock Trial Basics of Evidence and Delivery
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Mock Trial Basics of Evidence and Delivery

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This is an improvised document taken from the NYSBA website and used with permission from Patsy Lester. All credit goes to her.

This is an improvised document taken from the NYSBA website and used with permission from Patsy Lester. All credit goes to her.

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Mock Trial Basics of Evidence and Delivery Mock Trial Basics of Evidence and Delivery Presentation Transcript

  • Evidence and Delivery Making Your Case Courtesy of Patsy Lester, East Islip High School
  • Author’s Note
    • These are tactics that have worked for the East Islip Mock Trial Team in Region VI. I offer them as suggestions only. There are many other methods, so find the ones that work for you and your team.
    • The rules are based on the 2008 NYSBA Mock Trial case. Be aware that these rules change often, and always follow the most current rules.
    • Feel free to use and alter this presentation as it suits your needs.
    • In the spirit of cooperation, I’d appreciate feedback and suggestions.
    • Contact me at [email_address]
    • Patsy Lester, East Islip HS
  • East Islip High School (Region VI) 2008 NYS Champions These people like to brag. They can because they are New York State Champions.
  • Admissibility
  • Admissibility
    • General Rule
      • All r elevant evidence is admissible
      • Relevant evidence has probative value
      • Unduly prejudicial evidence may be excluded
  • Foundations
    • Requirements
      • Relevance
      • Authenticity (witness has personal knowledge)
    • Laying a Foundation
      • Stipulations
      • One or more witnesses
      • Direct and Cross examinations
      • Conditional admissibility (further facts, subject to connection)
  • Admissibility Exceptions
    • Rule 201
    • Some evidence may be excluded
      • Prejudicial value vs. the probative value
      • Confusing the issues
      • Results in an undue waste of time
  • Character & Reputation
    • Generally NOT admissible [202]
    • EXCEPTIONS:
      • When character is the legal issue (slander, defamation cases)
      • Prosecution may not introduce character evidence to show propensity
      • BUT if the defense offers evidence of good character to show innocence, the Prosecution may rebut
  • Bias & Credibility are Admissible
      • Questions relating to the bias or credibility are appropriate for cross examination
      • The bias must be relevant to the case at hand
      • Rule 308 : If the witness’ credibility or reputation for truthfulness has been attacked on cross, the re-direct may exceed the three question limit
  • Hearsay
  • Hearsay
    • Rule 401
    • The most misunderstood legal concept!!!
    • Hearsay has a 3 part definition:
    • An out of court statement
    • Offered for the truth of the matter asserted
    • Made by someone other than the witness
  • Hearsay
    • You cannot argue that something is not hearsay because it was said to the witness, or that the declarant is in court.
    • That’s the definition of hearsay- somebody ELSE said it, not the witness on the stand!!!!
    • **Can be spoken or written : documents are hearsay unless they fall under an exception…
  • Why is Hearsay Inadmissible?
    • Context
    • Intent
    • Misunderstanding
    • Whether it was actually said
  • Hearsay Exceptions
    • 402: Admission of a Party Opponent- [admissions against interest]
      • The declarant must be a party
      • The statement must be related to the issue
    • 403: State of Mind
      • The emotion, sensation, physical condition, intent, plan, health, feeling of the declarant
  • Hearsay Exceptions…
    • 404 Business Record-
      • A record kept in the normal course of business concerning an event or act
      • Made at the time
      • By a person with knowledge
      • Not in contemplation of litigation
    • 405 Present Sense Impression
      • Statement describing or explaining a situation or condition
      • Made while the declarant was experiencing the situation or condition, or immediately thereafter
  • Business Records
    • A business record DOES NOT have to have been made by the witness to authenticate it
    • A witness who can reasonably testify that this is how the record is normally kept [has personal knowledge] can authenticate a business record
  • Admitting a Business Record
    • Have the document marked and ask the normal foundational questions, then
      • Are documents such as this kept in the normal course of business?
      • Have you regularly kept such records?
      • And was this record made at the time the issues/events/transactions it describes?
      • Was this document made in contemplation of litigation?
  • Admitting a Business Record [cont]
    • Other questions may be necessary to establish this witness’s ability to testify to this record.
    • Submit it as “ A business record exception to the hearsay rule ”
  • Opinion Testimony
  • Opinion Testimony
    • 501: Witnesses who are not experts may give opinions
      • which are based on what they saw or heard
      • are helpful in explaining their story
      • of which they have personal knowledge
      • May NOT offer opinions on anything requiring special knowledge or training
  • Opinion Testimony
    • 502
      • Experts may render opinions based on professional experience
      • Questioning attorney must bring out the expert’s qualifications, education and/or experience
  • Physical Evidence
  • Physical Evidence
    • Rule 601
      • Tangible evidence
      • Photograph, video: verify that it is a fair and accurate representation
      • Demonstrative evidence (map)
      • Signed documents
      • Business records
  • Offering Exhibits
    • Have 4 copies ready
    • Have yours, marked where it’s relevant
    • 3 clean copies for the
      • Witness
      • Judge
      • Opposing counsel
  • Exhibits [continued]
      • Mark for identification: Your honor, at this time I would like to have this document marked for identification as P/D exhibit [P- num, D-letter]
      • Mock Trial courtesy: cite the page in the case materials book for the fact finder’s convenience
      • Show evidence to opposing counsel
      • Ask permission to approach the witness, or that it be shown to the witness
      • State “ I now show you what has been marked as exhibit…” or “Let the record reflect that I am showing the witness what has been marked as P/D exhibit …”
  • Exhibits [continued]
    • Ask foundation questions about the exhibit:
      • Do you recognize this?
      • What do you recognize it to be?
      • How do you recognize it?
  • Exhibits [continued]
    • Depending on the type of evidence:
      • *Is it in the same or substantially the same condition as it was the last time you saw it?
      • *Is that a fair and accurate representation?
      • *Would it help you to explain what happened to the court?
  • Exhibits [continued]
    • Offer the Exhibit into evidence
    • Your honor, at this time I ask that what has been marked as P/D exhibit… be moved into evidence as P/D…
    • Have the witness use the evidence
    • Return to the bench: Thank you, your honor, I am finished with P/D Exhibit …
  • Objections to Exhibits
    • Objections may be made at both identification and offer
      • Foundation
      • Relevance
      • Prejudice
      • Hearsay
  • Delivery
  • Verbal Communication
    • The Basics:
    • Show respect at all times: “ Mother may I?”
    • Confidence will gain points, but hubris and arrogance will lose points
    • “ Make noises like a lawyer” (ie: no “umm”’s)
    • Use common language
    • Use “legalese” precisely and sparingly
  • Verbal Tactics
    • Directs should “sound like a conversation that the judge is eavesdropping on”
    • Crosses should be succinct, to the point, and all leading.
  • Verbal Tactics Continued
    • Witnesses: use nouns and verbs instead of adjectives
      • BAD: “It was a terrible storm”
      • GOOD: “ It was raining really hard, there was thunder and lightening and huge gusts of wind ”
    • Signposts
      • “ Now I’d like to direct your attention to the morning of September 24, 1999”
  • Verbal Tactics Continued
    • Primacy and Recency
      • People remember what they heard 1 st and last
      • Bury harmful things in the middle of your direct
      • Put your weakest witness in the middle
      • Put the most damaging questions at the end of your crosses
  • Nonverbal Communication
    • Competition starts when you get off the bus
    • Stay in your role: the judge is watching!
    • Sit up straight
    • Watch your lawyers/witnesses!
    • If you don’t care, why should the judge?
  • Body Language and Eye Contact
    • Do not walk and talk at the same time
    • Do not hold anything in your hands [like a pen]
    • Don’t crowd the judge or the witness
    AS MUCH AS POSSIBLE
  • Summary
    • Proper Preparation Prevents Poor Performance
    • Confidence is the key to winning, and confidence comes from being prepared!
  • Created by Patsy Lester for the 2008 NYSBA Mock Trial Summer Institute [email_address]