1. Mock Trial Rules of Evidence Arkansas Bar Association Mock Trial Committee Anthony L. McMullen, J.D., Vice Chair (2015-16)

2. Mock Trial Rules of Evidence The Rules of Evidence determine whether testimony/evidence is admissible at trial. When preparing cases, students should determine whether a piece of evidence is admissible or not (and should be able to provide the arguments therefor in the event of an objection).

3. Mock Trial Rules of Evidence When making an objection... It must be made as soon as the objectionable testimony is elicited or given. The reason for the objection must be provided. In the MTC, students are expected to cite the rule number. Most lawyers, however, do not know the rules by number. You’ll impress many of the judges. The other side will receive the opportunity to respond. As the attorney presenting the evidence, you must always be prepared to defend the admissibility of the testimony you are attempting to present.

4. Mock Trial Rules of Evidence These rules go beyond general objections regarding the examination of a witness (see Rule 4.18) Argumentative Lack of Foundation Assuming Facts Not in Evidence Question Calls for Narrative Non-Responsive Asked and answered Leading Also, be sure to review Rule 4.20, which covers admitting exhibits into evidence.

5. Mock Trial Rules of Evidence Major topics/rules Relevance (Rules 401-403) Character Evidence (Rules 404-405) Impeachment (Rules 607-609) Hearsay (Rules 801-804) Lay and Expert Opinions (Rules 701-705) Note: These are the rules as of May 16, 2016.

6. Relevance Rule 401: Definition of “Relevant Evidence” “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Rule 402 paraphrased: Relevant evidence is admissible unless another rule excludes it; irrelevant evidence is inadmissible.

7. Relevance For a piece of evidence to be relevant... E: The evidence must help to establish a fact. P: The fact must be relevant to the case. The fact does not necessarily have to be one of the elements involved in the case. Ex: Motive is not an element to a murder case, but because someone with a motive is more likely to commit murder than someone without a motive, evidence of a motive is generally relevant in a murder trial.

8. Relevance Why might evidence be inadmissible? Irrelevant: The evidence does not help in some minimal way to establish the fact introduced. Immaterial: The proposition for which the evidence is being introduced has nothing to do with the case. Incompetent: The evidence is privileged or otherwise inadmissible due to another rule.

9. Relevance Rule 403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence. Example Murder case, defendant claims that he was not the murderer. Prosecution wishes to introduce gory color photographs of the murder victim.

10. Relevance Review Rules 407-411 on your own These rules prohibit certain E to prove certain P’s. Example: Rule 407: Subsequent Remedial Measures Subsequent remedial measures are inadmissible to prove negligence or product liability. They are admissible for other propositions (proving ownership, control, feasibility of precautionary measures)

11. Character Evidence Rule 404: Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes (a) Evidence of a person’s character or a trait of character, is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except...

12. Character Evidence Rule 404: Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes Cannot introduce character E if P is that the witness acted in conformity with that character. The witness has a reputation for shooting guns; cannot present E to show that he shot a gun at the time in question. Rule does not prohibit introduction of character E for other P’s (e.g., motive, intent, knowledge) Can present E to show that he has knowledge of how to use a weapon at the time of the incident.

13. Character Evidence Rule 404: Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes (1) Character of accused – In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidencing the same trait of character of the accused offered by the prosecution;

14. Character Evidence Rule 404: Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes (2) Character of alleged victim – In a criminal case, evidence of a pertinent character trait of the alleged victim of the crime offered by an accused, or by the prosecution to rebut same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the aggressor;

15. Character Evidence Rule 404: Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes The Rule 404 exceptions summarized: These exceptions only apply in criminal cases. The defendant may present evidence of his/her good character, but the prosecutor can rebut the same. The defendant may present evidence of the victim’s bad character, but the prosecution can rebut the same. The character evidence must still be relevant, and admissibility is still subject to Rule 403 (unfair prejudice).

16. Character Evidence Rule 404: Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes (3) Character of witness – Evidence of the character of a witness as provided in Rules 607, 608 and 609. These are rules for impeachment (challenging the credibility of a witness). We will get to these next.

17. Character Evidence Rule 404: Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes (b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, and subject to the limitations imposed by these rules.

18. Character Evidence Rule 405: Methods of proving character (a) Reputation or opinion. In all cases where evidence of character or a character trait is admissible, proof may be made by testimony as to reputation or in the form of an opinion. On cross-examination, questions may be asked regarding relevant, specific conduct. (b) Specific instances of conduct. In cases where character or a character trait is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct.

19. Impeachment Rule 607: Who May Impeach The credibility of a witness may be attacked by any party, including the party calling the witness. A witness’s credibility becomes a relevant issue the second that witness takes the stand.

20. Impeachment Methods for impeaching a witness Prior inconsistent statements Bias Prior convictions Prior bad acts A reputation for untruthfulness An inability to recollect or observe Contradictory evidence

21. Impeachment Prior inconsistent statements If a witness gives a statement that is inconsistent with a statement previously made, evidence of the inconsistent statement may be introduced. (The statement is not hearsay. See Rule 801(d).) Example: If the police officer testifies that the victim was found running against the flow of traffic, but his police report shows the victim running with the flow of traffic, the office should be asked about it on cross-examination.

22. Impeachment Bias There is no specific rule related to bias, but it is accepted that bias evidence is relevant to a witness’s credibility.

23. Impeachment Rule 609: Evidence of Conviction of Crime (a) In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction: (1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence: (A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in the witness is not a defendant; and (B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and

24. Impeachment Rule 609: Evidence of Conviction of Crime (a) In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction: (2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the evidence of the crime required proving – or the witness’s admitting – a dishonest act or false statement.

25. Impeachment Rule 609: Evidence of Conviction of Crime Other considerations [paraphrased] (b) Cannot use crimes more than ten years old (measured from the later of date of conviction or date of release from confinement, whichever is later) unless the evidence’s probative value substantially outweighs its prejudicial effect. (c) Cannot a crime if there has been a pardon. (d) Circumstances where a juvenile adjudication can be used.

26. Impeachment Rule 608: Evidence of Character and Conduct of Witnesses (a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence, or otherwise.

27. Impeachment Rule 608: Evidence of Character and Conduct of Witnesses (b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the Court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

28. Hearsay Rule 801: Hearsay Defined “Hearsay” is a statement [oral, written, or implied], other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Note: If the statement is offered to prove the truth of the matter asserted, then the statement is hearsay. If the statement is offered for any other purpose, it is not hearsay. Rule 802 summarized: Hearsay is inadmissible unless it falls within an exception to the rules.

29. Hearsay Rule 801: Excluded from the definition of hearsay Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross examination concerning the statement and the statement is (A) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person;

30. Hearsay Rule 801: Excluded from the definition of hearsay Admission by a party-opponent. The statement is offered against a party and is (A) the party’s own statement in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy....

31. Hearsay Rule 801: Excluded from the definition of hearsay Admission by a party-opponent. Basically, any statement that is made by the opposing party (or someone representing the opposing party) is admissible as an admission. This rule only applies to the parties to the case. This DOES NOT apply to their witnesses.

32. Hearsay Rule 803: Hearsay Exceptions, General Present Sense Impression Excited Utterance Then existing mental, emotional, or physical conditions Statements for the purpose of medical treatment Recorded Recollection Records of Regularly Conducted Activity

33. Hearsay Rule 804: Hearsay Exceptions; Declarant Unavailable Former testimony Statement under belief of impending death Statement against interest Statement of personal or family history Forfeiture by wrongdoing

34. Opinion Testimony Rule 602: Lack of Personal Knowledge A witness may not testify to a matter unless evidence is introduced to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony. This rule is subject to the provisions of Rule 703, related to opinion testimony by expert witnesses. (See Rule 2.2.)

35. Opinion Testimony Rule 701: Opinion Testimony by Lay Witness If the 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 determine a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

36. Opinion Testimony Rule 702: Testimony by Experts If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.