Controlling Your Witness: A Guide to Witness Control

What is Witness Control?

Witness Control is a concept that assists attorney in eliciting information from witnesses, especially non-responsive witnesses. It also allows attorneys to control the witnesses emotions and gain as much information from the witness as possible. For example, if a witness is being non-responsive, concepts in Witness Control allow the attorney to use the “responsiveness” of the witness to their advantage

My Personal Experience

As a witness, I hate witnesses. I am guilty of being a “bad” witness but some witnesses are just downright mean to their attorneys. But as a previous Mock Trial attorney and witness, here is a step by step guide to Witness Control.

Tips on Witness Control

  • The first time a witness is non-responsive or runs (filibustering), let them be non-responsive or let them run. After he has finished, re-ask the question, putting any misunderstanding on yourself and giving the witness the benefit of the doubt with a phrase such as, “I’m sorry, my question might have been unclear…”
  • If a witness runs the second time, let them run for a little bit. However, stop them with a phrase such as, “Directing your attention back to the question I had previously asked,…” This is a little bit hostile. However, it’s encouraged if you were cordial the first time.
  • If a witness runs the third time, you now have enough power to use more aggressive tactics.
    • If you have an expert, or someone who has previously testified in court, you can be more aggressive. You may say, “Sir/Ma’am, you’ve testified in court *x* times before, right? So you understand your role here is to answer the questions posted to you right?” and begin re-asking your question.
    • If you have a normal (lay) witness, begin asking straightforward “yes” or “no” questions with them.
  • If a witness runs the fourth time and you have done all of the things stated above, they’re aggressive and you need to ask the judge to direct the witness to answer the question. Just be sure that your questions are direct and the witness has actually been evading them before asking the judge to get involved. There is nothing worse for an opposing team than a judge intervening just so a witness could be more responsive in answering your questions.
  • Even after all that, you’re allowed to bring a motion to strike the answer from the record and request the judge to instruct the witness to answer. If you feel like a witness is being over the top, you should ask the judge to instruct the timekeeper to stop the clock.

Why do these tips work?

As an attorney, you want to make yourself look a cordial and non-aggressive attorney. Therefore, by being a friendly attorney, the jury will see that you’re a small fish trying to ask questions to an angry shark.

If a witness is aggressive, the jury and judge will see that they are being non-responsive and hostile. Therefore, the jury and judge will deduct points on for their team. The reason why being an aggressive witness isn’t good is because why should a witness, especially an expert witness, be hostile and non-responsive unless they have something to hide.

Why are witnesses aggressive and hostile?

As you may have guessed, bad teams have hostile and aggressive witnesses. However, the reason why a witness may be hostile or aggressive is because they are trying to run you off time. Therefore, time is a key ingredient in Mock Trial because you are only allowed at max three hours in a High School tournament and points will be deducted when you are overtime. Other times, you may have asked a question that would damage their credibility. Therefore, they may be aggressive since they have something to hide.

Why You Should and How to Conduct Pre-Trial Motions

What are Pre-Trial Motions?

Pre-Trial is your first impression with the judge and the first time the jury hears your team speak. Therefore, it’s crucial that you deliver your pre-trial and how well your attorney delivers in those first few minutes.

Should You Deliver Pre-Trial Motions?

Yes! Many teams forget to do this step. Not only does pre-trial make your team look better, you’re allowed to enter important case documents such as stipulations, the federal rules of evidence, or rules of competition.

Pre-Trial Format

  1. The judge will ask your side (or the room as a whole) whether there are any pre-trial matters that the court should attend to. Usually, the prosecution/plaintiff will go first but if the opposing team does not go, you may use this time to go.
  2. Whoever performs pre-trial motions for your team will stand and respond with:
    1. “Yes, your Honor.”
  3. The attorney will make appearances before the court.
    1. “First, your Honor. We’d like to make introductions before the court.”
    2. (Wait for Permission from the Judge), (If nothing for a few seconds, proceed)
    3. Good Morning/Afternoon/Evening your Honor. My name is (John Doe) along with my Co-Counsel (Joe Smith) and (Jane Brown). We represent the defense/prosecution/plaintiff, (Anytown Police Department), in today’s trial.”
  4. The attorney should ask for the judge’s preference for moving about the courtroom (if not asked already). It is usually best to ask permission for exactly what you would rather do as an attorney rather than letting the judge decide (as it sets control). Make sure you note what permissions you have and don’t have as it’s bad to ask for permission and then ignore the judge’s instructions.
    1. “We’d like to ask your Honor’s permission to move about the well freely.”
  5. Ask for permission to Approach Opposing Counsel and the Witness
    1. “Your Honor, I ask your permission to approach the opposing counsel and witness when necessary.”
    2. The Judge will usually reply with: “Please ask permission to approach the witness. You do not have to ask permission to approach counsel” (Usually)
  6. The Attorney will offer copies of the stipulations, relevant case laws, rules of competition, etc. to the bench. To expedite matters, if the judge allows you to approach to tender these documents, an attorney who is not doing pre-trial should tender documents to the bench.
    1. “Next, your Honor, the defense/prosecution/plaintiff has some documents that we’d like to tender to the bench. May I approach?”
    2. Wait for Approval
    3. Approach the judge with the documents (Stipulations/Rules of Evidence) and identify what they are for the court: “We have here the federal rules of evidence and a copy of the stipulations for today’s case.”
  7. (Different per State/Team) Your Attorney will invoke Rule XXX for the constructive sequestration of all non-party witnesses. In a real court case, sequestration would be the removal from the courtroom of all witnesses when they are not testifying. In Mock Trial, doing this constructively allows the witnesses to remain in the courtroom to simplify and expedite this process. In theory, these witnesses are not aware of the testimony of anyone else.
    1. “Lastly, your Honor, we’d like to invoke rule 615: the constructive sequestration of all non-party witnesses. The defense/prosecution/plaintiff designates (John Smith) as our party representative today/we have no party representative.
    2. The Judge may or may not ask the other side to designate a party representative.
    3. NOTE: The Federal Rules of Evidence lists Rule 615 for Sequestration. The rule number may differ if your state does not use the Federal Rules of Evidence. 
    4. Some judges are not frequent with Mock Trial rules so you may need to explain what constructive sequestration is for them.
  8. Finally, the attorney will let the judge know that his side is ready to proceed.
    1. “With that your Honor, the defense/prosecution/plaintiff is ready to proceed.”

Sample Pre-Trial Motions

= Judge | = Attorney 1 | A2 = Attorney 2

  • J: Are there any pre-trial matters that we need to attend to?
  • A1: Yes, your Honor.
  • J: Go Ahead
  • A1: First, your Honor. We’d like to make introductions before the court.
  • J: You may proceed
  • A1: Good Morning your Honor. My name is John Doe along with my Co-Counsel Joe Smith and Jane Brown. We represent the plaintiff, Anytown Police Department, in today’s trial.
  • A1: We’d like to ask your Honor’s permission to move about the well freely.
  • J: Please ask permission to approach the witness. You do not have to ask permission to approach counsel.
  • A1: Next, your Honor, the defense/prosecution/plaintiff has some documents that we’d like to tender to the bench. May I approach?
  • J: You may
  • A2: Hands documents to Judge
  • A1: We have here the federal rules of evidence and a copy of the stipulations for today’s case.
  • J: Is there anything else?
  • A1: Lastly, your Honor, we’d like to invoke rule 615: the constructive sequestration of all non-party witnesses. The plaintiff designates John Smith as our party representative today
  • J: Granted
  • A1: With that your Honor, the plaintiff is ready to proceed.

Hearsay: An In-Depth Guide to Hearsay Exceptions

If you haven’t read our Introduction to Hearsay article, please give it a read. The introduction will give you the basic explanation of hearsay and the two basic exceptions you can use to combat a hearsay objection.

As a refresher, the two exceptions are that hearsay can be used to: show an effect on the listener or the subsequent actions of the person who heard the statement. These exceptions can only be used when the statement is NOT being used to prove the truth of the statement (the matter asserted).

However, there are many other rules and exceptions when it comes to Hearsay. These sections will go over each rule and exception.

What are “Statements That Are Not Hearsay”?

Rule 801, otherwise known as, Statements That Are Not Hearsay, are exceptions for the use of hearsay. In this section, there is a particularly important rule known as 801(d)(2), known as Admission by a Party Opponent Rule.

  • In a civil case, it allows the plaintiff to introduce what the defendant and plaintiff said.
  • In a criminal case, it always allows the prosecution to introduce what the defendant said.

This rule may sound unfair but it does make practical sense. It allows the plaintiff or prosecution to introduce statements the defendant gave. As such, the defendant can always get on the witness stand to correct any misstatements. The section rationale is that people shouldn’t be able to make statements as though they were true and prevent their statement from being discussed.

Another part of 801(d)(2) are exceptions and rules if the two parties in the case are companies. You may ask, why do we need rules and exceptions for companies? It’s because companies are entities made up of a lot of people and this section defines who can speak for these companies as the party opponent.

  • 801(d)(2)(b) – This exception allows documents signed by the plaintiff or prosecution to be admitted by the defendant.
  • 801(d)(2)(c) – This allows authorized people or persons to speak on behalf of the company as the party opponent.
  • 801(d)(2)(d) – This rule allows employees to testify as party opponents. However, it must be within the scope of the case.

The last important part of 801(d)(2) allows anything that a party opponent says or write to be admitted as evidence. For example, if you were to admit an e-mail message as evidence written by the party opponent and you received a Hearsay objection, this rule will back you up. There is a chance people will confuse this with another exception called, statement against interest, which this article covers. However, that is a completely different exception.

Exceptions to the Rule Against Hearsay

The rest of the rules and exceptions are based around Rule 803 and Rule 804. There are twenty exceptions listed in Rule 803 and six exceptions listed in Rule 804. There are two main distinctions about these rules which makes them very important.

  • Rule 803 – These exceptions are available regardless of who made the statement.
  • Rule 804 – These exceptions can only be used when the declarant is “unavailable.”

If you’re wondering what “declarant is unavailable” means, we must go over a few things. A declarant is a person who makes the statement. If that person is “unavailable,” it most likely means that person is dead. There are other reasons why a person might be unavailable listed in the Federal Rules of Evidence. However, in Mock Trial, it most likely means that person is dead. If the declarant is alive, Rule 804 will not work. Though, there are exceptions in Rule 803 that make the statement admissible.

Rule 803: Declarant Immaterial Exceptions

This section will only go over the most important and common use cases for Rule 803. You may need to read the entire section of Rule 803 as there are over 20 exceptions listed for this rule. We can spend days going over each rule which is why we will only go after the most important.

803(1) – Present Sense Impression 

These are statements that are made while or after witnessing something occur. These statements are allowed as there is some sense of reliability in these statements since they occur while or right after something happens. For example, a 911 call can be admitted using Present Sense Impression since most 911 calls are often made while or after something happens.

803(2) – Excited Utterance

These are statements made due to a startling event that occurred. The issue is that the witness who made this statement must have been under stress due to the startling event occurring. These statements are generally allowed because a witness is less likely to make up a lie while they are in a state of shock due to the incident. This rule is somewhat similar to 803(1) except there is less of a time constraint.

803(3) – Then Existing Mental State/Physical Condition 

These are statements made by the person who is under a mental state (intent or motive) or physical condition (pain). However, these statements must be forward-looking. In other words, the event must have occurred for it to be admissible under this exception. For example, if the declarant says, “I’m going to rob the bank on Main Street,” and the bank on Main Street is robbed, the statement tends to prove that the bank was robbed on Main Street.

803(4) – Statements Made in Order to Obtain Treatment

These are statements made to a doctor. Statements made by the patient are admissible under this rule. However, statements made by the doctor are not admissible. These statements are allowed because the patient has a special interest in receiving the correct treatment for their condition. Another important note, make sure the opponent using this rule is not using it for an explicit purpose. For example, if the patient said, “I was shot in the leg. My friend James did it.” The first part is allowed since the doctor needs that information to treat the patient. However, the second part is not allowed because the doctor doesn’t need to know who did it.

803(6) – Business Records

Records of regularly conducted business activities are admissible using this exception. However, records are not admissible if they were created due to anticipation of a lawsuit. For example, accounting records are allowed because they are accurate representations of how the company spent money. However, if accounting records were misrepresented due to anticipation of some type of litigation, these records are not allowed. These records are allowed because businesses have special interest in keeping accurate and up-to-date records. Another note, if you use this exception, you may need to lay some foundation on the origins of the document.

803(8) – Public Records 

Records created by the government or a government agency under a legal presence are admissible using this exception.  This exception is only allowed to be used in civil cases. These records are admissible because the government has no interest in the outcome of a civil trial between two private entities and we can trust that the government’s documents are accurate and have no special interest. However, these documents are not allowed in criminal cases because the government may have special interest in prosecuting the individual.

803(18) – Learned Treatises

This exception allows both parties in a civil and criminal case to admit published documents that an expert witness may use. These documents are generally allowed because they are published by individuals who are peer reviewed and reliable. However, these documents are not fully admitted into evidence. The document is not allowed to be published to the jury because it is technical and complicated for jury members to understand them. They are only allowed to be discussed by expert witnesses.

Rule 804: Declarant Unavailable Exceptions

In order for Rule 804 to apply, the declarant must be unavailable and there must be an available exception for you to use this rule. If we look at the Federal Rules of Evidence, there are five conditions that make a declarant unavailable. However, the only applicable reason why a declarant may be unavailable in Mock Trial is because they are dead. Once we’ve established that the declarant is unavailable, we may then use the exceptions in 804(b). In this article, we will go over three of the six exceptions that are worth mentioning.

804(b)(1) – Former Testimony

This exception allows two parties in litigation to preserve the testimony of a declarant who is elderly, sick, or dying. For example, if the declarant gives their testimony in a deposition or in court and they become unavailable, their testimony becomes admissible under this exception. However, in order to use this exception, the declarant must have been under oath and must have had a cross examination. Therefore, police statements and witness affidavits are not admissible since they either are not under oath or were not subject to a cross examination.

804(b)(2) – Statement Under Belief of Impending Death

If a statement was made by a declarant before their death, their statement becomes admissible under this exception. These statements are allowed because we believe that a person on their deathbed or about to die will not die with a lie which makes their statements reliable in the eyes of the court. However, there must be evidence that the declarant knew they were about to die. Finally, this exception only applies to civil cases and criminal cases that involve homicide.

804(b)(3) – Statement Against Interest

Statements that are not the penal (criminal), pecuniary (monetary), or proprietary (property) interest of the declarant, such that the declarant wouldn’t say these statements unless they were true, are admissible under this rule. For example, this rule allows the defendant on trial for a crime to introduce a statement of another witness or person admitting to the crime. However, this exception can only be used when the declarant is unavailable, as well as, special circumstances when a statement like this is offered. The reason this exception exists is because people will not admit things that will get them in trouble unless it was actually true.