Character Evidence Exceptions to 404
Explain rule 406 in your own words.
Character evidence is allowed in if you can establish that the act in question was something that the witness did frequently enough to be considered a habit or a routine practice.
On the cross of Sawyer Shaw, you enter exhibit 15 into evidence. Opposing counsel objects to hearsay. What 801 rule would you use for your response, and how would you word your response?
801(d)(2)(D)
Something to the effect of: Your honor, this is not hearsay pursuant to rule 801(d)(2)(D). Sawyer Shaw is an agent of our party opponent, TBD. Further, he was acting in his capacity as CEO at the time since he was discussing advertising with the CEO of TBD's largest advertiser.
You are directing Adrian Edwards. Adrian Edwards testified about how when they read Riley Winter's article about TURNTable, they became extremely upset. Adrian then says, "I told Sawyer Shaw 'there had better be consequences for anyone responsible.'" Opposing counsel objects to hearsay. Which 803 rule would you use to respond? How would you craft your response?
803(2)
Your honor, this is an exception to hearsay as it is an excited utterance. Adrian Edwards was upset after reading an article slandering their company, and they made this statement while under the influence of that strong emotion.
On direct examination, Riley Winter testifies "Dr. Kramer told me that I have PTSD from being fired." Do you object? If so, what is your objection? How do you word your objection?
Yes, object to relevance
Objection your honor, this is not relevant. The fact that Riley Winter allegedly has PTSD does not make it more or less likely that they were fired from TBD due to their age.
Opposing counsel asks Sawyer Shaw, "You fired Riley Winter on December 23, and you never read Riley's performance evaluations beforehand?"
Object to compound question
Explain rule 608(a) in your own words.
Character evidence is allowed in if a witness testifies about whether, in general, another witness has a reputation for being honest or dishonest.
During Adrian Edwards' direct, you try to enter exhibit 10. Opposing counsel objects to hearsay. Which rule (under 801) would you use to respond to the objection, and how would you phrase your response?
801(d)(2)(A)
Your honor, this is not hearsay under rule 801(d)(2)(A). Riley Winter wrote this article, and Riley Winter is our party opponent in today's case.
Austin Perez's statement is a statement of belief, which is not covered by 803(3). Austin Perez believes that TBD should give Riley Winter another chance.
On direct examination, Kirby Doolittle says "My friends were pretty jealous when they heard I got an internship at TBD." You stand up and you object. What is your objection? How do you word your objection?
Lack of personal knowledge/speculation
Jealousy is an emotion. Kirby Doolittle cannot testify to how their friends felt without saying what they observed that allowed them to draw this conclusion.
Opposing counsel asks Bobbie Lin on direct examination "Could you tell us about the first week you worked for Sawyer Shaw?"
Object: calls for narrative response (I will also accept relevance)
On Bobbie Lin's cross examination, you ask questions about TBD's hiring process. You get Bobbie Lin to say that in the 12 conference calls she listened to, she never heard anyone refer to age. Opposing counsel objects to improper character evidence. How do you respond?
406
Your honor, this is an exception to rule 404. According to rule 406, TBD's hiring and firing was a habit or routine process. Bobbie Lin listened to 12 of these conference calls, and never heard age. The number of times this occurred is enough to establish that this was a routine practice.
You are directing Riley Winter. During direct examination, Riley Winter says "Management told me 'you are the highest paid employee other than Sawyer Shaw.'" Opposing counsel objects to hearsay. Which 801 rule do you use to respond? How do you word your response?
801(d)(2)(D)
Your honor, this is not hearsay under rule 801(d)(2)(D). Our party opponent today is TBD. The management of TBD, regardless of who it is, is an agent of TBD. Since management was discussing salary with Riley Winter, the statement falls within management's work duties.
You are directing Adrian Edwards. During direct, the following quote from Sawyer Shaw is elicited: "We're going after the exact same people you are, and I'd love to have TURNTable as a partner." Opposing counsel objects to hearsay. What exception would you use? How would you word your response?
803(3)
Something like: Your honor, this is an exception to hearsay as it describes a then existing mental, emotional, or physical condition under rule 803(3). In this quote, Sawyer shaw describes his plan for TBD magazine, and then identifies how he would feel if TURNTable advertised with TBD.
You are plaintiff counsel. Sawyer Shaw's is testifying about exhibit 8 on direct examination. He says "My statement on this card was a joke. At TBD, I make jokes all the time." You stand up and object to this. What is your objection? How would you word your objection?
404, improper character evidence
Something to the effect of: Your honor, opposing counsel is using this testimony as improper character evidence pursuant to rule 404. They are trying to show that because Sawyer Shaw makes jokes all the time at TBD, that his statement on Riley Winter's birthday card was also a joke.
Opposing counsel asks Austin Perez a question. It's been 30 seconds since Austin Perez started their answer, and it doesn't appear that they will stop talking any time soon.
Objection: narrative response
Explain rule 404(b)(2) in your own words.
Character evidence can be admitted if it is a crime someone committed in the past, or a "bad act," simply meaning an action society, in general, wouldn't view favorably. This action must be connected to something other than propensity (i.e. because someone acted a certain way in the past they will act that way in the future). Examples of what this action must go to show include plan, motive, intent, lack of accident, opportunity, or knowledge.
You are crossing Austin Perez. You want Austin Perez to agree to the fact that Riley Winter laughed after reading their 50th birthday card. You decide to enter the card into evidence. When you do, opposing counsel objects to hearsay. How do you respond?
Explain rule 803(6)
Regularly conducted activity. Most often used with business records. There are three prongs to prove. Someone has to know the information, it must be a part of that person's job duties to create the document in question, and the document must be used repeatedly in the course of business. These prongs can be proved by witness testimony or a custodial document.
On cross examination, the defense attorney asks Bobbie Lin, "Why do you think Riley Winter was fired?" Do you object? If so, what is your objection? How would you word your objection?
Do not object.
You are not supposed to ask open-ended questions on cross. However, if an attorney messes up and asks as open ended question, trust that your witness will answer it in a way that is beneficial to your case. Here, you should trust Bobbie Lin's answer will be something like "Riley Winter was fired because of their age."
On cross examination, opposing counsel asks Kirby Doolittle "You agreed to testify after TBD offered you a job?" Kirby Doolittle answers. A few questions later, opposing counsel asks "TBD offered you a job before you agreed to testify?"
Objection: asked and answered
What are the 2 parts of the definition of hearsay, and what does each part mean? Why can this definition be used to explain why questions and commands are not hearsay?
1. Out of court statement
2. Used at face value (i.e. you want the jury to believe the statement)
Questions and commands are not value statements. There is no truth that the jury can take away from a question or a command.
You want to enter exhibit 18 during Bobbie Lin's direct. What three questions do you need to ask Bobbie before entering the exhibit in order for the exhibit to qualify as a hearsay exception under rule 803(6)?
Something to the effect of:
1. Did you have the information necessary to create this document?
2. Is it a part of your job duties to create this document?
3. Does TBD use documents like these regularly?
On direct examination, Riley Winter says "Skye Martin is obviously okay with discriminating against people based on their age." Do you object? If so, what is your objection? How would you word your objection?
Yes, object to lack of personal knowledge
Response: Objection, your honor, lack of personal knowledge. Because Riley Winter cannot read Skye Martin's mind, Riley Winter cannot know whether Skye Martin is okay with discrimination. To know whether that was the case, we would need to hear from Skye Martin herself.
On cross examination, opposing counsel asks Austin Perez "In Riley Winter's performance evaluation, you overstated their weaknesses and understated their strengths?"
Objection: compound question