Evidence Workshop

Evidence Workshop

Preparation: Set up room like a courtroom without the jury box,  have everyone bring their Trial Notebooks and all case material, provide copies of the Objection List, copies of the Objection Log, copies of How to Object instruction sheet, and three 3 copies of each exhibit.

Part I: Introduction

  • Check in
  • How many have done objections before?
  • For whom is this the first time objecting? 
    For those who have done it before what is our advice to the team members who haven’t?
  • Discussion:  In general terms why would one want to object?
    • To keep evidence out
    • To make sure the Mock Trial Rules are followed.
    • To protect the witness.
    • To make sure the correct procedure is followed
    • To see how opposing counsel will respond and perhaps throw them off.

Part II: When and How to Object

  • When to Object
    • When a question is asked and before the witness answers
    • After an exhibit is identified and when it is offered into evidence
    • When a witness volunteers something that is objectionable to a quesiton that did not call for that answer
  • How to Object  
    • Rise
    • Say “Objection” and cite the rule
      • Example: “Objection. Hearsay”
      • Example: Objection your Honor, ,Leading quesiton”
    • Let other side respond
    • Give a more detailed response when and if the Court looks back to you. 
  • Additional points
    • Argue the objection to the court not opposing counsel or the jury
    • Rise smoothly and quickly
    • Stand straight with good posture
    • Use a confident voice
    • Act like you know what you are talking about even if you are unsure
    • Accept the Court’s ruling gracefully
  • Practice 
    • Put a chair in the front of the class
    • Have one person at a time come forward and sit in the chair
    • Pick several objections:  Hearsay, Relevancy, asked and answered
    • Student in front simply rises and says objection and the reason.
      • Example: “Objection, hearsay.”
    • Other students comment on their style and form until the attorney objecting gets it right
      • Example:  “You sound confident but are not rising smoothly.”
      • Example: “You are rising quickly and smoothly but are too loud.”
    • Then a new attorney takes their place 

Part III: Common Objections based on the Mock Trial Rules

  • The number of all of these rules can vary slightly
  • Teams are not precluded from raising additional objections so long as they are based on Mock Trial Rules of Evidence or other mock trial rules.
  • Objections not related to mock trial rules are not permissible.
  1. Witnesses are bound by their statements
  2. Unfair extrapolation 
  3. Witnesses are not permitted to use notes while testifying during the trial.
  4. Only two questions are allowed  on cross examination
  5. Only two questions are allowed on re-direct
  6. On closing arguments the Prosecution/Plaintiff must ask the Court before beginning that they want to reserve any unused time for rebuttal 
  7. No objections are allowed during Opening Statement and Closing Argument
  8. Note: Any other deviation from the Mock Trial Rules can also be objected to.

Part IV: Common Procedural Objections

  1. Argumentative Questions
  2. Lack of Proper Foundation
  3. Assumes Facts not in Evidence
  4. Question calls for a Narrative or general answer
  5. Non-responsive answer
  6. Repetition
  7. Leading Question on direct examination
  8. Outside the scope of cross examination (or of re-direct)

Stipulations

  • Look at the Rule on Stipulations (Often Rule 31)
    • Stipulations shall be considered part of the record and already admitted into evidence
  • Read the stipulations aloud in your case with the group
  • Discuss how these can be used in response to objections (and in opening statements and closing arguments).

Break and snacks

Part V: Common Substantive Objections

These are usually based on the Federal Rules of Evidence (FRE)

  • Relevance FRE 401, 402
  • Relevancy: Prejudicial Effect exceeds Probative Value, Confusion, Waste of Time FRE 403
  • Character Evidence Not Admitted to Prove Conduct, Exceptions FRE 404, 607, 608
  • Methods of Proving Character FRE 405, 608
  • Lack of Personal Knowledge FRE 602
  • Improper Lay Opinion FRE 701
  • Improper Expert Opinion Rules FRE 702, 703 and 704
  • Hearsay FRE 801, 802
    • Prior Statement by Witness not Hearsay under certain circumstances FRE 801(d)(1)
    • Admission by Party Opponent not Hearsay FRE 801(d)(2)
    • Hearsay Exceptions FRE 803
      • Present Sense Impressions
      • Excited Utterance
      • Then existing emotional or mental state
      • Statements for the purpose of medical diagnosis or treatment
      • Reputation as to character 
      • Hearsay within Hearsay FRE 805

Possible Hearsay Exercise

  • Create a detailed story (3 to 5 sentences – a bank robbery, a car accident, etc.) 
  • Tell it to one student privately
  • That student then pretends to be dying on the floor and whispers it to someone else
  • The rest of the students pretend to be at a party.  The new student then tells (whispers) it privately to another student.
  • The new student tells (whispers) it to someone else and so forth until it goes through everyone in the room.  No student can hear it twice.
  • The last person tells the story to the group.  The coach then reads the original story.
  • The  facts have usually changed quite a bit. 
  • Discuss whether  the statement should be admitted into evidence – it would originally an exception to the hearsay rule because it was a dying declaration, but there are not multiple layers of hearsay. 
  • Explain that many objections, such as hearsay, have to do with reliability. Go into what does and does not make evidence more reliable.

Part VI: Practice - Putting it all together

  • Identify direct and cross attorneys for each witness
  • They will practice in pairs
  • Someone else plays the witness with the objection log in front of them
  • Witness does very little because objections come before the witness can speak.
  • Direct or cross attorney – using the objection log, ask the witness the objectionable questions
  • Opposing attorney objects
  • Attorney asking the question responds
  • Coach acts as judge  (may require several do-overs until attorneys are comfortable moving on 
  • Every witness is gone through so every attorney will get a chance to practice

Break and Snacks

Part VII: Impeachment and Exhibits & Impeachment

  1. Introducing and Objecting to Exhibits
    • Have exhibits handy
    • Identify attorneys who will need to introduce exhibits
    • Go over the rules for introducing exhibits
    • Practice 
    • If there are any objections practice these
    • Discuss whether the team want to object themselves to particular Exhibits in the competition
  2. Impeachment 
    • Discuss when to impeach
    • Discuss problem with limited time on cross
    • How to impeach
      • Clearly establish the witness’ answer 
        •  “I don’t remember”
        • Contradicts statement
      • I would like to refer you to your  sworn statement on (date)
      • Counsel, I direct you to page ___ line ____
      • Read the part of the statement that contradicts or refreshes the recollection of the witness
      • Was “Was this your sworn testimony on _____”
      • Some rules (or the opposing attorney or judge) may require you to show the witness the testimony (This uses up your time though)
    • Practice

Wrapping it up

  • Ask if any unanswered questions
  • Give positive encouragement
  • End with fun team building exercise