Hearsay: A Basic Explanation for Beginners

January 3, 2019 / Article Contributor / 1 Comment

Overview

Hearsay’s a difficult rule for many students to understand. The idea in itself isn’t difficult to understand. However, the exceptions to Hearsay make it difficult for teams to respond.

A basic explanation is when a phrase or idea gets lost through explanation… For example, the game “whisper down the lane” is a basic level of hearsay. In the game, a message gets whispered to a number of people down a chain. By the end of the chain, the message becomes distorted. This principle of distortion down a chain is why it’s not allowed in court as evidence.

The Definition of Hearsay

The definition of Hearsay (Rule 801) should be memorized by heart.

Rule 801, Federal Rules of Evidence: “An out of court statement offered in evidence to prove the truth of the matter asserted”

Not only should you remember this rule by heart, you should understand the definition of what the rule says. In theory, the rule says that, a person or witness has offered a phrase that was said outside the court and has tired to use the phrase as evidence to prove the phrase.

The Elements of Hearsay

However, there are three elements you should understand before you use it as an objection.

The statement must have been made outside the courtroom. You may not declare statements said by a previous witness that has testified during the trial as hearsay.
Only human declarants are allowed to make the statement. An animal or machine (including computers) are not capable of making statements in the eyes of the court.
The statement must be used to prove the truth of the statement. If it is used for another purpose, it is not considered hearsay.

The third element is very important because this is where you can fight the objection and where teams have trouble understanding the hearsay objection. Again, if the statement is being used for another purpose other than to prove the truth of the statement, it is not considered hearsay. For example, it’s is allowed when it is being used to show an effect on the listener or the subsequent actions of the person who heard the statement.

Examples of Hearsay and Non-Hearsay Statements

“X said the sky was blue” – Hearsay
“People didn’t have umbrella’s because X said the sky was blue” – Hearsay used to show the subsequent actions of people.

Here is another example. In this scenario, a man falls on the floor and breaks his back at a supermarket. He decides to sue the supermarket. At the trial, a woman testifies on the stand…

“I told the manager that the floor was slippery”

Is this considered hearsay? No, because the store manager should’ve taken steps to mop the floor or warn customers about the slippery floor. Simply put, the statement is being used to show that it is being offered to show an effect on the listener. The listener in this case is the store manager who was negligent when the woman told him that the floor was slippery but didn’t fix the problem.

Is there more?

Of course there is more to the rule and the exceptions that are available. This is what makes the rule complicated for most teams. Since this is a basic explanation for beginners, we will go into more of the exceptions in our in-depth guide.

Mastering Objections and the Rules of Evidence

January 1, 2019 / Article Contributor / Leave a comment

Objections in Mock Trial are rooted in the Federal Rules of Evidence. These rules are developed and adopted by the Supreme Court that govern how evidence can be used or admitted during the trial.

There are rare cases where in some states, objections may be rooted in another form of the Rules of Evidence. You will need to check with your Mock Trial moderator or with your state’s bar association.

Today, this article will base its rules around the “National High School Mock Trial Championship” Federal Rules of Evidence. These rules are adopted for Mock Trial and specifically, the National High School Mock Trial Championship. You may download a copy in the Resources section of this website.

The Rules of Evidence

In the rules of evidence, there will be ten (X) articles that list out the rules. However, there are only four important rules that this guide will list out. The other rules are rarely used.

If you want to skip through this guide to the specific rules, click here:

Article IV – Relevance and it’s Limits
Article VI – Witnesses
Article VII – Opinions and Expert Testimony
Article VIII – Hearsay

Overview of Objections

In this article, we’re going to talk about mastering objections and the rules of evidence. Objections are the most important skill that you will learn as an attorney as it is used as leverage during a trial. When you say “Objection,” you are pointing out a legal issue in the line of questioning or answer during the trial. There are two forms of objections and they are:

Procedural Objections – These are made when there are legal issues with the question on how it is asked or phrased.
Substantive Objections – These are made when there are legal issues with the content of the question or answer.

How to Object

Stand. Object. State your Grounds. Stop

Stand: Before you can object, you must stand up before you say a word.
Object: Say the word “Objection”
Grounds: State the grounds for the Objection
Stop: Let the other side respond to the Objection

Ending Strong on Closing Arguments

October 13, 2018 / Article Contributor / Leave a comment

Closing Arguments are the Mona Lisa’s of Mock Trial. Closing Arguments require you to take down notes and create an argument on the spot using evidence that was admitted during the trial while including your theme and theory. It’s the single most important task that can either make or break your case. It’s the attorney’s only chance to stand before the jury and argue their case theory without having to worry about objections or interference.

Closing argument are the most challenging as you must tie two or more hours of testimony for the most important facts and show the jury that you have proven everything the opening attorney promised. Closing arguments are the time to answer questions that the opening attorney presented in the beginning and leave the jury with a clear, clean cut, painting in their heads.

Focusing on a few solid points will really drive home the jury. Elicit the most important facts that came out on the record. Having good content is not difficult, given the argument is logical. The one thing that separates team is good presentation to great presentation. The jury is most likely paying more attention to the way you move and speak than the actual content. Emotion, conviction, confidence, and passion are the most important factors in swaying a jury in your favor and getting the most points.

Remember Primacy, Recency, and Frequency
Remember Move About The Well

Tips

Talk to Your Team

Ask each attorney and each witness what the three most important facts are from his role and use that information to creation three important facts for your speech. Closing Arguments are a summation of all the key facts of your case and it’s important to consult your teammates to learn about the important things they will put in their exams.

Draft First

Always write a draft and have it reviewed by your teammates and coaches. This will help you get the vivid imagery that your closing needs.

Time Your Closing

It’s important to stay under time (If your Mock Trial program has time limits for closings and openings). Don’t go over time or go under time. The time you get (usually 5 minutes) should be more than enough for you to say everything that needs to be said. You don’t want to lose points for going over time. It’s good to trim the useless facts and keep your speech precise.

Rule of Three & Primacy, Recency, Frequency

Remember these rules for everything. Your jury hears things that are First Heard, Recently Heard, and Frequently Heard. It’s also best to keep three important points to talk about in your closing.

Comment on Admitted Facts

If you comment on evidence that was not introduced, it would be considered a mistrial in a real courtroom. In Mock Trial, the jury will just deduct points, or the opposing team may expose your error.

Practice Is Key!

There is nothing better than practice. Practice your speech in front of your teammates and coaches to get feedback from them. Practice your speech in front of other people, as well, to get even more feedback from a different perspective.

Prosecution/Plaintiff ALWAYS speaks last

People always forget this but Prosecution/Plaintiff ALWAYS speaks. It’s because the burden falls on Prosecution/Plaintiff and they will always close last. This provides Prosecution/Plaintiff a rebuttal to rebut opposing counsel’s arguments or flip their theme. When you’re on Prosecution/Plaintiff, listen to the Defense closing and try to flip their speech.

No Objections are Allowed

As always, Objections are NEVER allowed on Openings and Closings.

Silence Speaks Louder than Words

In Public Speaking, the most powerful tool you can use is a pause. By taking healthy pauses between a point, your words will resonate with the Jury and will serve to bring their attention back to you.

Organization

Paragraph One: Captivate Your Audience

First paragraph should focus on repeating the theme and theory. It should be able to draw the Jury into your side of the case. The paragraph should focus on rehashing the egregious facts in the other side’s case.
Be sure to utilize pauses, voice fluctuation, and tone changes to capture the jury.

Paragraph Two: Burden of Proof

Prosecution/Plaintiff should acknowledge the burden of proof. If you are on Defense, emphasize the burden the other side holds
Burden of Proof differs between Civil and Criminal cases and explain your Burden of Proof.

Paragraph Three, Four, and Five: Walk Through The Facts

Organize the case topically as this is the most persuasive organization style. Similarly, this means you should avoid chronological, witness-by-witness accounts.
Rule of Three & Primacy, Recency, and Frequency. That means, each of these three paragraphs should highlight an important fact that will advance your side’s case and will tell the jury the story of what happened through these paragraphs. In other words, people remember what happens first, what happens last, and what happens often.
Use Exhibits. If a document or photo was admitted that may be useful for your closing, make use of it. In addition, it’s a good idea to hold evidence in front of the jury to visualize your point and to captivate their emotions.
Bury the Bad Facts. If a witness was hammered on cross, try to rehabilitate them during the closing argument by pointing the jury back in the correct direction and reminding them of the important facts.
Attack. If an opposing witness is being paid to testify, or has something to gain, be sure to bring it up in your closing. Likewise, if an opposing witness has a bad past, bring that up.
Comment on Broken Promises. If the opposing side made any promises on opening and they were broken, bring them up and hammer them for it. For instance, pointing out a broken promise is an easy way to damage their credibility.
FLIP THEIR THEME. If there is any way to twist their theme to your favor, and it’s clever and honest, do it. However, if you cannot flip their theme or you feel it’s too weak, it’s probably NOT worth to attempt to flip their theme. Above all, a botched flipped theme won’t go over well with the Jury or the Judge.

Paragraph Six: End Strong

End by leading the jury back to the theme
Sum up your case in one sentence
Make a strong emotional connection with the jury