Competition Rules
What can you not do during objection battles?
Talk to your co-counsel
You are the defense.
You ask: "What did Huda say to you?"
The Prosecutor objects to hearsay.
Name the Exception.
801(d)(2) Opposing Party Statement:
An Opposing Party’s Statement. The statement is offered against an opposing party
and:
(A) was made by the party in an individual or representative capacity.
Prosecution asks any witness about Nikki giving drugs to other people, including Huda, before.
Name the objection.
404 Character evidence:
Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
A witness lies on the stand or contradicts their affidavit. What is the first step you do?
Ask them: "your testimony today is that...?"
Name the objection for questions or evidence involving "unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."
What is Rule 403 - More Prejudicial than Probative.
What is the test?
Who can object to opposing counsel's examination?
Only to attorney directly directing/crossing that witness.
You're the Prosecution.
You ask: "What did Nikki say?"
Defense objects to hearsay.
Name the response.
801(d)(2) Opposing Party Statement:
An Opposing Party’s Statement. The statement is offered against an opposing party
and:
(A) was made by the party in an individual or representative capacity.
What is the test for whether evidence is relevant?
401: Test for Relevant Evidence
Evidence 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.
After you ask "your testimony here today is..."
what are the next steps?
Ask the foundational questions (under oath, signed, tell the truth).
Give statement to witness.
have them read silently while you read aloud.
"did I read that correctly?"
When trying to show a witness a document, evidence, or their witness statement, who do you show the document to first?
Opposing counsel!
A witness invents a fact during their examination. What do you do?
Bonus points if you can do it right now.
Impeachment by Omission.
"you remember giving a statement under oath? you had to tell the truth? The whole truth? nothing but the truth? You knew you had to say everything that you know about this case? and you had an opportunity to review and edit your statement prior to this? *hand statement* Nowhere in this do you mention "..." do you?"
How do you respond?
Your honor, just because Huda Mustiffa is dead and unavailable, does not make all of her statements automatically admissible. The statement must still fall under one of the 5 exceptions for unavailable declarants.
(1) Former Testimony.
(2) Statement Under the Belief of Imminent Death.
(3) Statement Against Interest.
(4) Statement of Personal or Family History.
(6) Statement Offered Against a Party That Wrongfully Caused the Declarant’s
Her statements do not fall under any of these exceptions.
For pros team, (6) would be the closest one to get them in under but unlikely as there is no alleged intent in this case and she did not intend to cause Huda's unavailability as a witness.
Prosecution tries to enter rehab critical incident report into evidence.
What is the argument for saying it is impermissible character evidence?
For Nikki: it's being used to prove that he has a character trait of using substances when he is not supposed to and/or providing them to Huda previously and that because of that character he has a propensity to do it again here. that is impermissible character evidence.
For Huda: It is being used to show that she has an extensive propensity to use drugs and other substances which is not permissible character evidence.
A witness says "I don't remember"
What do you do? Bonus points if you can do it right now.
Refresh Recollection.
"would seeing your statement help you to remember?"
Give statement.
"read silently and look up when done"
"Has your memory been refreshed?"
Re-ask question
An attorney asks a question about something that wouldn't normally come in or was already excluded because they objected. OR counsel asked a question about it and you cross on it so they object to it.
What can you do about it?
re-direct/cross with questions about it and when objected to respond that counsel "opened the door" to the testimony.
When can you talk to me? :)
Before you confer with your opponents and after trial/during lunch break.
Not at all during trial or breaks in trial.
You attempt to enter in the Rehab Critical Incident report.
Opposing counsel objects to hearsay.
Name the exception(s).
(1) Statement Made for Medical Diagnosis or Treatment. A statement that:
(A) is made for — and is reasonably pertinent to — medical diagnosis or treatment; and
(B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.
(2) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
Prosecution asks any witness about Nikki giving drugs to other people, including Huda, before.
Defense objects to character evidence.
Name the response.
Rule 405: By Specific Instances of Conduct. When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.
AND
404(b):
Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
Proves last two.
A witness says something not in their affidavit or makes something up.
What do you do?
Impeach by Omission
Lay the proper foundation for a document exhibit to enter it into evidence.
Let's lay the evidence for the police report, Exhibit 1.
Would you recognize the report if I were to show it to you?
Give Exh.
What is this?
is it the same or substantially the same as it was when you last saw it?/ fair and accurate copy?
has it been altered in any way?
Permission to enter into evidence.
Opposing counsel objects to the testimony being outside of the direct or that witness states something outside of affidavit.
How do you respond?
Your honor, Rule 611(b) allows for the scope of cross going outside of the scope of direct.
611(b): Scope of cross examination. The scope of the cross examination shall not be limited to the
scope of the direct examination, but may inquire into any relevant facts or matters contained in the
witness’ statement, including all reasonable inferences that can be drawn from those facts and matters,
and may inquire into any omissions from the witness statement that are otherwise material and
admissible.
AND
Additionally, if witness is testifying to things outside of their affidavit, that is a matter opposing counsel can take up on re-direct/cross. I can ask if they know, and if they don't know, they can say that.
Prosecution attempts to enter the Facebook Post into evidence.
Name the Objection.
Effect on the Listener: Caused Niki to delete the second portion
Recorded Recollection: A record that:
(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh in the witness’s memory;
and
(C) accurately reflects the witness’s knowledge.
***If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.***
Defense attempts to discuss Huda's previous drug use and substance abuse.
Prosecution objects to impermissible character evidence.
How do you respond?
Rule 404(a)(2):
a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:
(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant’s same trait
Her drug use is pertinent to the Defense's Defense.
405(b): a defendant may offer evidence of an alleged victim’s pertinent trait, and if the
evidence is admitted, the prosecutor may:
(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant’s same trait; and
Name the steps for an impeachment by omission.
Foundational questions.
give statement.
"nowhere in this statement do you say xx?"
A response to an objection for "More prejudicial than Probative" or to an objection on evidence that is only objectionable because it isn't clear (ex. the Facebook post stating "parting gift")
AKA A response when you quite literally don't know what to say.
Your honor, this goes to weight not admissibility.