There are six important rules that cover the basis of “Relevance.” However, this article will only cover Rules 401, 402, and 403. The other rules, Rules 404, 405, and 406, will be covered in another article going over Character Evidence.
Rule 401 and Rule 402
These Relevance rules are very basic. The basic premise for relevance is that any evidence admitted must be relevant. The rules, Rule 401 and Rule 402, define whether evidence is admissible or inadmissible. Rule 401 goes over the definition of relevance. Rule 402 says irrelevant evidence is inadmissible.
Relevance is a very Low Bar – The court favors evidence to be admitted. Therefore, not much is needed to establish the relevance of the evidence being entered.
Rules 401 and 402 Work Together – Rule 401 is followed by 402. Therefore, both rules work together. Rule 401 goes over the definition of relevance. Rule 402 says irrelevant evidence is inadmissible.
Relevance is Dangerous – Relevance is a dangerous objection. This is because the side that brings up the relevance objection must substantially prove that the evidence being admitted is irrelevant. It also dangerous because it allows your opponent to explain their case-in-chief to the jury.
Rule 403 is an extremely useful objection because it allows you to exclude evidence. The basic wording of the rule allows the court to decide to exclude evidence if they believe it would be prejudiceor unfair to the case.
The exact wording says:
Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
However, there are a few catches to this objection.
The evidence must be “substantially” or greatly unfair before it can be excluded.
The rule is difficult to argue and win since the evidence must be “substantially” unfair.
The Balancing Equation (Prejudice vs. Probative)
The reason why this rule is difficult to use is that the court favors evidence being admitted than excluded. Therefore, it must protect against the misuse of this rule.
The court uses a BALANCING test to determine if the evidence is prejudice or probative. The difference between prejudicial and probative evidence is:
Prejudicial Evidence – Evidence that greatly prejudices (a preconceived opinion that is not based on reason) the jury
Probative Evidence – Evidence that can establish a fact
Rule 403 is a very High Bar – Unlike Rule 401 and Rule 402, with Rule 403, you must be able to establish that the evidence is not prejudice to the jury.
Evidence must be Substantially Prejudice – Evidence must prejudice the jury. The court will perform a balancing test to determine if it should be excluded from the trial
Objection Capital is a new and somewhat complicated concept in Mock Trial. This is a skill that should only be used by expert Mock Trial teams. However, this skill doesn’t mean it can’t be applied to beginner teams, as well. It is one of the less important skills in Mock Trial but it is helpful when competing against other high-level teams.
What is Objection Capital and How is it Useful?
Objection Capital(noun) – The amount of useful objections you can make in a single Mock Trial round. The act of optimizing the use of objections in a case-in-chief.
Here are the reasons why Objection Capital is useful…
Reduce Wasted Time – If you make repeated objections, it ends up wasting time for everyone. Judges get bored when they hear the same repeated objections being made.
Boost Credibility – If you limit objections to parts of the trial where it makes sense (i.e. Powerful Evidence, Blatant Misuse of Rules of Evidence, etc.), you end showing that you know when it’s the right time to object and overall boosting your credibility as an attorney.
Keeping Jurors Interested – Objections often make jurors and judges lose track of the trial. Jurors and judges often become bored when they hear the same objections or objections with low value. If you limit the amount of objections you make to where its necessary, you can keep the jurors and judges interested and on pace with the case-in-chief.
Reduce the Chance of Error – You reduce the amount of times you can make an error. Objections can open a can of worms where you might make an error and decrease your overall credibility. Getting an objection wrong and overruled makes your team look less credible.
How to Implement Objection Capital
Only you and your team will know when it’s critical to make an objection and reduce useless objections. Look over your chase-in-chief, practice against other teams, and understand critical rules of evidence. Once you know the in’s and out’s of the Rules of Evidence, you will know where it’s a good time to make objections and argue your objection.
Study the Rules of Evidence – This is the important and underrated concept in Mock Trial. You MUST study the in’s and out’s of the Rules of Evidence. The Rules of Evidence is where you can really advance your skills in Mock Trial. Judges and jurors look for teams that know their Rules of Evidence and see them as being more credible.
Implement a Limit – If you place a limit per attorney, you can limit your objections. For example, each attorney can get 4 objections and emergency objections.
The Impeachment Process is the only way to kill witness credibility. However, not so many teams use it correctly and can often be hurdle themselves into the “improper impeachment” zone.
As an attorney, you MUST make sure that the witness has lied by re-asking the question with, “Is it your sworn testimony today that …?” and making sure they agree to their sworn testimony. I have seen too many attorneys make the mistake of not re-asking the question or re-asking the question but ignoring the witnesses new answer.
The Impeachment Process
Is it your sworn testimony today that _____________?
Ex: Is it your testimony that you didn’t speak with John?
You gave a statement prior to todays trial, correct?
Your honor, may I approach opposing counsel and the witness with this witness’ affidavit?
This is your witness affidavit?
And you had 24 hours to make any changes to it?
Is it a fair and accurate copy?
And this is your signature on the last page?
Please read silently as I read aloud line #(s)
Ex: Please read silently as I read aloud lines 30-35
Did I read that correctly?
Retrieve the document from the witness
Ex: Your honor, permission to retrieve the document