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What is hearsay?  In life, as in the courtroom, people like to make decisions based on first hand information.  Outside the law, people will often discount as “hearsay” information that is unreliable that they have heard from other people.  So too, in law, lawyers try to make sure that information comes directly from people first hand.   Hearsay is a complex system of rules and exceptions to rules that come from ancient England and that are embodied in our evidence rules.  For example, a witness says “John told me Mike robbed the bank”.  Since the witness did not see Mike rob the bank, the statement would be hearsay evidence to the fact that Mike robbed the bank.  Such a statement would be inadmissible, and it is the job of a mock trial student to object to such evidence.  “Objection hearsay!”  The judge will sustain such objections.  No one would want to be convicted of a criminal offense based on such second hand information.

Coaches for mock trial teams often simply tell their students to object whenever one witness attempts to quote another person.  This is probably good advice.  Often a mock trial lawyer will miss many potential objections.  It is then the job of the opposing attorney to then know what exception to the hearsay rule that he or she is relying on.  Here is a list of several exceptions to the hearsay rule:

1.    Confessions.  A witness is almost always allowed to quote a person who confesses to a criminal offense, or makes a statement against his or her interest.

2.    Excited Utterances. A witness is usually allowed to quote another person who was very excited or scared or agitated at the time.  It is thought that person in such a state would be in no shape to concoct fabrications, and thus most be telling the truth.  For example, a police officer arrives on the scene of a bank after an alarm is sounded.  A hysterical teller blurts out that “Mike” a former employee demanded money at gunpoint.  The police officer would be able to quote the teller as to the identity of the robber.  However, it is the job of a mock trial lawyer to establish the state of mind of the teller.

3.   Business Records. A witness who maintains record for a business or agency is generally allowed to admit the content of those records into court.  For example, a bookkeeper at a convenient store can introduce receipts for purchases of fuel by a getaway car even though he or she was not working on the day of the robbery.

4. Prior Statements Under Oath. Statements made at a prior court proceeding are generally admissible if the witness later becomes unavailable.  For example, if a teller witnesses a robbery and is questioned in court about that robbery, and ends up dying before trial, that earlier testimony would be admissible at a later trial.

5.   Statements Made for Purpose of Medical Diagnosis. Generally, a doctor or nurse is allowed to quote a patient as to statements made about their medical condition.  For example, a nurse may testify that a patient complained that injuries were cause by a beating during a robbery.  However the nurse may not quote the patient as to who, in particular, caused the injuries.

Knowing the hearsay exceptions is a good way for a mock trial lawyer to score points in a trial.

Whether in a real life trial, or a mock trial, witnesses tend to forget some of the facts of a case.  There is a specific way to handle such circumstances.  Below is a basic outline that lawyers follow in court.  In a mock trial, it is important to stay in character.

REFRESHING A WITNESS’S RECOLLECTION ON DIRECT

Q:        What was the weather like that day?

A:        Dark and cloudy?

Q:        Are you sure?

A:        Uhm, uhm, no I guess not. (laughter)

Q:        Did you provide a written statement in this case?

A:        Yes, I did.

Q:        Do you believe that it may refresh your recollection to look at it?

A:        Yes, I guess so…

Q:        Can I approach the witness? (Directed to the judge)

Judge: Yes

Q:        Do you recognize this statement?

A:        Yes.

Q:        Go ahead and read to yourself this part right here. (Must not read it aloud).

Q:        Now that you have read that, does that refresh your recollection?

A:        Yes

Q:        So let me ask you again, what was the weather like that day?

A:        It was warm and very sunny out.

Q:        Thank you

REFRESHING A WITNESS’S RECOLLECTION ON CROSS EXAMINATION

Q:        You testified a few minutes ago that it was dark and cloudy on the day in question, didn’t you?

A:        Yes.

Q:        But in your witness statement, you said it was warm and sunny, didn’t you?

A:        No, I don’t think so.

Q:        Your honor, can I approach the witness?

Q:        Read this part to yourself.

Q:        Have you had a chance to read it?

Q:        I’ll ask you again, in your statement you said it was warm and sunny didn’t you?

A:        Yes, I guess I did.

So you opted to be a witness in the mock trial rather than a lawyer?  Uh-oh. Lawyers only have to ask a bunch of questions.  Thats easy.  As a witness, you need to have all the answers.  Here are a few tips to survive the ritual of a senior year mock trial without being too traumatized.

1)    Read your witness statement over and over.  You will find that you don’t really absorb it until you practice your direct-examination and cross-examination with your classmates.  After you practice a few times, you will find that you absorb it better when you re-read it because you know what will be asked.

2)    Know how you spell your name.  In real life, judges often ask a witness to spell his or her name.  Learn how to spell your mock trial name so you can provide the spelling without choking in front of the class.

3)    Answer questions verbally. Court proceedings are audio-recorded.  A nod of the head doesn’t cut it.

4) Try to make eye contact wit the jurors when you testify. Making eye contact with the judge is not important except when you are being sworn in.

5)   Try out the witness chair before the trial begins. Sitting in the witness seat can be daunting.  When you first sit down to testify, the whole “Law-and-Order” ambience can be a little overwhelming.  Test drive the seat, the chair, the cushion, and the positioning of the mic before you testify, so when you get sworn in for reals you can focus on the task at hand.

6)   Remind your lawyer to protect you before the trial. If you are being badgered by a lawyer, you can’t object.  Remind your lawyer classmate, that after they do the direct exam, that they need to be prepared to object at questions asked of you, rather than go on a mental vacation.  Facing hard questions is part of being a witness, but you don’t want to be hung out to dry either.

7)    Dress for the part. If you are an expert witness, or a doctor etc, it is better to dress up a little to fit the part.  Ask your coach if you can borrow a tie.  He may even show you how to tie it.  At a minimum, no shorts or tank tops for mock trial court or real court.

8 )   Remember what “sustained” and “overruled” mean. When a lawyer objects, don’t try to answer the question until the judge rules.  “Overruled” means you can answer.  If the judge says “sustained”, just wait for the next question.

Any questions?  Leave questions below in the comment section!

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