ROE
603 AND 615
Rule 603. Oath or Affirmation to Testify
Before testifying, a witness shall be presumed to have been sworn in, by an oath or affirmation to
testify truthfully administered in a form designed to impress that duty on the witness’s conscience
Rule 615. Excluding Witnesses.
At a party’s request, the court must order witnesses constructively excluded so that they cannot hear
other witnesses’ testimony. But this rule does not authorize constructively excluding:
(a) a party who is a natural person;
(b) an officer or employee of a party that is not a natural person, after being designated as
the party’s representative;
(c) omitted; or
(d) a person authorized by a statute provided in the case materials to be present.
Comment: This rule does not permit the actual exclusion of students portraying witnesses.
Rather, it allows for the constructive exclusion of some witnesses
702
Rule 702. Testimony by Expert WitnessesA witness who is qualified as an expert by knowledge, skill, experience, training, or education may
testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact
to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case
What are the time limits for rounds? (Direct time, cross time, statements, total trial time)
25 mins, 25 mins, 14 mins, 3 hours
Caltry v. Bridgeman (1985)
The key question in a Slayer Statute proceeding is whether the defendant was a “culpable actor” in the death of the decedent. There are three ways to establish that the defendant was a culpable actor: (1) the defendant knowingly caused the death of the decedent; (2) the defendant purposefully caused the death of the decedent; or (3) the defendant facilitated the death of the decedent. In a Slayer Statute proceeding, a plaintiff is free to pursue any or all theories of culpability.
When is it appropriate to stand in trial?
Everyone: When the judge walks into the room
Attorneys: When opposing counsel is showing you evidence, when making objections, when saying “no objections”, whenever the judge is speaking to you and you must respond (even if it’s only to say yes or no)
Opinion by a Lay Witness
701
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that
is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue;
and
(c) not based on scientific, technical, or other specialized knowledge within the scope of
Rule 702
Richards v. Mississippi BBQ (1997)
MRE 703 does not permit experts to testify or present a chart in a manner that simply summarizes inadmissible hearsay without first relating that hearsay to some specialized knowledge on the expert’s part. The Court must distinguish experts relying on otherwise inadmissible hearsay to form scientific conclusions from conduits who merely repeat what they are told. The testimony of the former is admissible; that of the latter is not. At the same time, statements that would otherwise be admissible are not inadmissible simply because they are offered by or through an expert witness.
What do we need to do with an exhibit when we are done using it for the first time?
Publish to the jury
Chambers v. By the Book Publishing, Ltd. (2015)
The hearsay rule is only implicated where an out-of-court statement is being used for the truth of the matter asserted. If it only matters whether the out-of-court statement was made (not whether it was true), then the hearsay rule is not implicated.
Alex Silva says "Like Dr. Edmund said earlier in trial..." What do you do?
Object to 615 - the witness is sequestered and actually, completely, wholeheartedly capping.
805
Rule 805. Hearsay Within HearsayHearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule
Disclosing the Facts or Data Underlying an Expert’s Opinion
Rule 705. Disclosing the Facts or Data Underlying an Expert’s OpinionUnless the court orders otherwise, an expert may state an opinion – and give the reasons for it – without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination.
What does “weight not admissibility” mean? Provide an example of when to use the phrase.
How much value should be based on this evidence v. whether we should be talking about it at all
Filteau v. Wanek (1992)
The application of various rules of evidence sometimes turns on who made a particular statement. As long as the proponent of the statement produces evidence that would permit a reasonable jury to find, by a preponderance of the evidence, that a given person made a particular statement, the court must assume for purposes of assessing its admissibility that the statement was made by that person.
Opposing counsel says that Avery Bancroft’s statements are admissible because he is dead. You respond with …
In order for an unavailable individual’s statements to be admissible under Midlands Rule of Evidence 804 opposing counsel must show two things. First, that the witness is unavailable under 804(a). We agree that they have satisfied that under 804(a)(4) as Mr. Bancroft is dead. However, opposing counsel must also fulfill an exception to hearsay under 804(b), which has not yet been satisfied, thus the statement is still hearsay.
Test for Relevance
Rule 401. Test for Relevant EvidenceEvidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the
evidence; and
(b) the fact is of consequence in determining the action.
Davis v. Adams (1993)
Trial judges must ensure that any scientific testimony or evidence admitted is not only relevant but reliable. In determining reliability, judges should consider only the methods employed and the data relied upon, not the conclusions themselves. The proponent of the evidence has the burden of proving each section of MRE 702 by a preponderance of the evidence.
What can you do to emphasize a point? List them. (There are 5, need 4 to get points)
1. Eye Contact
2. Movement
3. Volume (up or down)
4. Speed (speed up or down)
5. Tonal Inflection
State v. Sinclair (2016)
A comparison of handwriting samples may be done by lay jurors on their own or with the aid of witness testimony. Either direct or circumstantial evidence may support a jury’s conclusion regarding handwriting. Attorneys during closing arguments may also comment on the similarity (or lack of similarity) of handwriting samples, even without the aid of witness testimony. Jurors may give such evidence and conclusions the weight they believe appropriate in concluding the ultimate issue in any particular case
Opposing counsel is attempting to impeach us. It is NOT a direct contradiction. What do we do? As both the Attorney and Witness...
Witness: Double down and say “Like I said..” etc. Remember to always remain in character try to avoid sounding like a mock trial person when you explain this.
If there’s a spot in your affidavit that affirms what you had originally said, flip to it and point it out.
Attorney: Let your witness handle their business. If they are done whooping their crossing attorney, or need help, obj to 801 – this is hearsay as the statements contained in this witness' affidavit are being used for the truth of the matter asserted as there is no direct contradiction...
The character evidence form pertains to which rule? Explain the rule.
The character evidence form pertains to which rule? Explain the rule.
Rule 608. A Witness’s Character for Truthfulness or Untruthfulness
(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by
testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.
Comment: Written notice is required in civil and criminal cases. In lieu of rebuttal witness availability, if the party attacking the character of the witness for truthfulness is the defense and the witness is a plaintiff/prosecution witness, the defense must first notify opposing counsel in writing at the Captains’ Meeting of the intention to offer such evidence. If such notice is given, the form included with these Rules of Evidence should be completed and presented to the judges with the ballots, and the plaintiff/prosecution may offer evidence of truthful character during its case-in-chief.
(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:
(1) the witness; or
(2) another witness whose character the witness being cross-examined has testified about
Skipper v. Arnold (2002)
Although a murder prosecution and a Slayer Statute proceeding share many parallels, a Slayer Statute proceeding is still ultimately a civil proceeding. Therefore, where rules governing criminal trials differ from rules governing civil trials, the rules governing civil trials apply. For example, MRE 704(b) does not apply to a Slayer Statute proceeding. Indeed, subject to MRE 702, it is appropriate in a Slayer Statute proceeding for an expert to opine on the defendant’s mental state, including whether the defendant fits or does not fit the profile of a culpable actor.
What tasks need to be completed by the members of a team after captains and before the round starts? (I listed 9 things, you need 6 to get the points)
Seferian v. Morales (2010)
In a matter of first impression, this Court is tasked with deciding, for hearsay purposes in a Slayer Statute proceeding, how to treat out-of-court statements made by third parties who conspired with a defendant who facilitated the decedent’s death. On one hand, it makes sense for such statements to be admitted for similar reasoning as MRE 801(d)(2)(E). On the other hand, the standard of proof to admit a statement under MRE 801(d)(2)(E) or similar rules is by a preponderance of the evidence—the same standard as a Slayer Statute proceeding generally—meaning statements would only be admissible if the plaintiff has already met its burden. Ultimately, the Court cannot come up with another standard of proof to admit such statements and therefore rules such
statements are not admissible under MRE 801(d)(2)(E). Such statements, however, may still be admissible under MRE 803 and MRE 804 as well as for non-hearsay reasons
We are the plaintiff and opposing counsel starts attacking our witnesses' credibility on cross. However, they DID NOT submit a character evidence form. What do you do?
Object to rule 404, Improper Character Evidence.
Prior to today's trial, the defense had the opportunity to give us notice if they were going to offer any evidence regarding the credibility of our witnesses under rule 608, which pertains to the truthfulness or untruthfulness of witnesses. They did not provide us with that written notice, and that notice is required in Midlands. As such, the exception for 608 has not been met, and this is improper character evidence.
MAKE THE JUDGE LOOK AT THE COMMENT UNDER 608(A). IT SPELLS IT OUT.