To assure each party to a trial of a fair hearing, certain rules have been developed to govern the types of evidence that may be introduced, as well as the manner in which evidence may be presented. These rules are called the "rules of evidence." The attorneys and the judge are responsible for enforcing these rules. Before the judge can apply a rule of evidence, an attorney must ask the judge to do so. Attorneys do this by making "objections" to the evidence or procedure employed by the opposing side. In mock trials only, when an objection is raised, the attorney who asked the question that is being challenged may be asked, by the judge, why the question was not in violation of the rules of evidence.

The rules of evidence used in real trials can be very complicated. A few of the most important rules of evidence have been modified for mock trial purposes, and these are presented below.

Rule 1. Leading Questions
A "leading" question is one that suggests the answer by the questioner, usually asking the witness to give a yes or no answer.

Example: "So, Mr. Smith, you took Ms. Jim to a movie that night, didn't you?"

There are some exceptions, but generally leading questions usually may not be asked on direct examination. The only exception allowed in mock trials is that leading questions may be used as foundational questions. Leading questions may be used on cross-examination.

Objection: "Objection, Your Honor, counsel is leading the witness." (Opposing Attorney)
Possible Response: "Your Honor, leading is permissible on cross-examination," or "I'll rephrase the question." For example, the above question would not be leading if rephrased as: "Mr. Smith, where did you go that night? Who did you go with?" (This would not suggest the answer the attorney desires nor ask for a yes or no answer.)

Rule 2. Relevance
Questions and answers must relate to the matter of the case; this is called "relevance." Questions or answers that do not relate to the case are "not relevant."

Example: (In a traffic accident case) "Ms. Jim, how many times have you been married?"

Questions or answers that are not relevant are objectionable.

Objection: "Your Honor, this question is not relevant to this case."
Possible Response: "Your Honor, this series of questions will be foundational (or relevant) to show that Ms. Jim's first husband was killed in an auto accident, and this fact has increased her mental suffering in this case."

Rule 3. Hearsay
"Hearsay" is an out-of-court statement, written or oral.

Examples: An oral statement: "Harry told me that he was going to visit Mr. Kong." or a hospital report.

Hearsay evidence is objectionable. However, here are three exceptions to the hearsay rule for purposes of the mock trial. If an exception applies, the court will allow hearsay evidence to be introduced.

Exceptions: In a mock trial, hearsay evidence is allowed when: (a) a witness is repeating a statement made directly to the witness by one of the parties in the case; (b) a witnesses is repeating a statement made directly to the witness by someone who is dead; or (c) when a witness' state of mind is an important part of the case and the hearsay consists of evidence of what someone said which described that particular person's state of mind.

Objection: "Objection, Your Honor, this is hearsay."
Possible Response: 'Your Honor, since Harry is the defendant (or party in the case) the witness can testify to a statement he heard Harry make."

Exception to the hearsay rule does not extend to witness testimony about what another person heard a witness say. This is "double hearsay."

For mock trials, other exceptions to the hearsay rule are not used.

Rule 4. Firsthand Knowledge
Witnesses must have directly seen, heard, or experienced whatever it is they are testifying about.

Example: "I know Harry well enough to know that two beers usually make him drunk, so I'm sure he was drunk that night, too."

A lack of firsthand knowledge is objectionable.

Objection: "Your Honor, the witness has no firsthand knowledge of Harry's condition that night."
Possible Response: "The witness is just generally describing her usual experience with Harry."

Rule 5. Opinions
Unless a witness is qualified as an expert in the appropriate field, such as medicine or ballistics, the witness may not give an opinion about matters relating to that field.

Example: (Said by a witness who is not a doctor) "The doctor put my cast on wrong. That's why I have a limp now."

Opinions are objectionable unless given by an expert qualified in the appropriate field. An exception to this rule, a lay witness may give an opinion about something based on common experience of people in the community and of which the witness has first-hand knowledge.

Objection: "Objection, Your Honor, the witness is giving an opinion."
Possible Response: 'Your Honor, the witness may answer the question because ordinary persons can judge whether a cast was put on correctly."

Opinions on the "Ultimate Issue" are objectionable.

Witnesses, including experts, cannot give opinions on the ultimate issue of the case: the guilt or innocence of the defendant or the liability of the parties. These are matters for the trier of fact to decide.

Example: "I believe that Mr. Smith was negligent in driving too fast."
Objection: "Your Honor, the witness is giving an opinion on the ultimate issue - the negligence of Mr. Smith."
Possible Response: "The witness was commenting that the driver was speeding. This is not the ultimate issue in this case."

Special Procedures

Procedure 1. Introduction of Documents or Physical Evidence

Sometimes the parties wish to offer as evidence letters, affidavits, contracts, other documents, or even physical evidence such as a murder weapon, broken consumer goods, etc. The document or physical evidence must be relevant to the case and the attorney offering the item into evidence must be prepared to defend its use on that basis. The following special procedures must be followed before the items can be used in trial. (MIAO: Mark, Identify, Authenticate, Offer)

Step 1. Introducing the Item for Identification
a. An attorney says to the judge, "Your Honor, I wish to have this (letter, document, item) marked for identification as (Plaintiff's Exhibit A or Defense Exhibit 1, etc.)"

b. The attorney takes the item to the clerk, who marks it appropriately.

c. The attorney shows the item to the opposing counsel and says to the judge, "Your Honor, may the record reflect that I am showing what has been marked as (Plaintiff's Exhibit A) for identification to opposing counsel.

d. (authentication) The attorney shows the item to the witness and says. "Do you recognize this item marked as (Plaintiff's Exhibit A)?

Witness: "Yes."
Attorney: "Can you please identify this item?"
Witness: "This is a letter I wrote to John Doe on September 1." (Or witness gives other appropriate identification.)
Attorney: "Is this letter in the same or substantially the same condition?" (Or if the exhibit is a diagram: "Is this diagram fair and accurate?")

Step 2. Moving the Document or Item into Evidence

If the attorney wishes the judge to consider the document or item itself as part of the evidence and not just as testimony about it, the attorney must ask to move the item into evidence at the end of the witness' examination. The attorney proceeds as follows:

a. The attorney says, "Your Honor, I offer this (document/item) into evidence as (Plaintiff's Exhibit A) and ask that the court so admit it."

b. Opposing counsel may look at the evidence and make objections at this time.

c. The judge rules on whether the item may be admitted into evidence.

d. The attorney may then proceed to ask the witness questions about the document or item.

Procedure 2. Impeachment

On cross-examination, an attorney wants to show that the witness should not be believed. This is accomplished through a process called "impeachment," which may use the following tactics showing that the witness has contradicted a prior statement, for example, one made by the witness in an affidavit. Witness statements in the mock trial materials are considered to be affidavits.
In order to impeach the witness by comparing information in the affidavit to the witness' testimony, attorneys should use this procedure.

Step 1. Introduce the affidavit for identification, using the procedure described in Procedure 1.

Step 2. Repeat the statement the witness made on direct or cross-examination that contradicts the affidavit.

Example: "Now, Ms. Jim , on direct examination you testified that you were out of town on the night in question, didn't you?" (Witness responds, "Yes.")

Step 3. Ask the witness to read from his/her affidavit the part that contradicts the statement made on direct.

Example: "All right, Ms. Jim, will you read paragraph three?" (Witness reads, "Harry and I decided to stay in town and go to the movies.")

Step 4. Dramatize the conflict in the statements. (Remember, the point of this line of questioning is to demonstrate the contradiction in the statements, not to determine whether Ms. Jim was in town or out of town.)

Example: "So, Ms. Jim, you testified that you were out of town on the night in question, didn't you?" ("Yes.") "Yet, in your affidavit, you said you were in town, didn't you?" ("Yes.")

Procedure 3: Prior Inconsistent Statement (usually hostile witness, based on section 802.1 Hawaii Rules of Evidence)

An attorney may want to use the witness' prior statements as if the witness were testifying to that effect at the trial. The classic example of this would be where the wife is beaten by the husband and gives her statement right after the bearing to the police. Subsequently, she reconciles with her husband and at the trial, she takes the stand and says, "it never happened." or "I don't remember." Under this procedure her affidavit or prior statement made to the police is used substantively or as the truth of what happened. (Procedure 3 is to be distinguished from Procedure 2 as impeachment just shows that the witness has given contradictory prior statements. Under the rules of evidence, the contradictory statements in Procedure 2 are not necessarily offered as the truth of what happened, but merely to show that the witness said different things at different times and is not, therefore, to be believed.)
In order to use the witness' prior statements as the truth of what happened, attorneys should use this procedure.

Step 1. Introducing the Item for Identification
a. An attorney says to the judge, "Your Honor, I wish to have this (letter, document, item) marked for identification as (Plaintiff's Exhibit A or Defense Exhibit 1, etc.)

b. The attorney takes the item to the clerk, who marks it appropriately.

c. The attorney shows the item to the opposing counsel and says to the judge, "Your Honor, may the record reflect that I am showing what has been marked as (Plaintiff's Exhibit A) for identification to opposing counsel.

d. The attorney shows the item to the witness and says, "Do you recognize this item marked as (Plaintiff's Exhibit A)?

Witness: "Yes."
Attorney: "Can you please identify this item?"
Witness: "This is a letter I wrote to John Doe on September 1." (Or witness gives other appropriate identification.

Step 2. Offering Statement into Evidence

Attorney: "This was your statement of (date, time, place), correct?"
Witness: "Yes."
Attorney; "This statement (was made under oath, signed by you, adopted or approved by you, is essentially, word for word, what you said.), correct?"
Witness: "Yes."
Attorney: (to judge) "The written statement is offered as substantive evidence under Rule 802.1, Hawaii Rules of Evidence.

Procedure 4: Past Recollection Recorded
Witness testifies that he/she cannot remember what happened.

Step 1: Introducing the Item for Identification
a. An attorney says to the judge, "Your Honor, I wish to have this (letter, document, item) marked for identification as (Plaintiff's Exhibit A or Defense Exhibit 1, etc.)"

b. The attorney takes the item to the clerk, who marks it appropriately.

c. The attorney shows the item to the opposing counsel and says to the judge, "Your Honor, may the record reflect that I am showing what has been marked as (plaintiff's Exhibit A) for identification to opposing counsel.

d. The attorney shows the item to the witness and says, "Do you recognize this item marked as (Plaintiff's Exhibit A)?

Witness: "Yes."
Attorney: "Can you please identify this item?"
Witness: "This is a letter I wrote to John Doe on September 1." (Or witness gives other appropriate identification.)


Step 2: Witness Testify

The attorney has the witness testify that he/she saw or heard what happened. Have the witness testify that he/she can't remember. Have the witness testify that when he/she made and signed the statement, the events were fresh in his/her memory and that the statements were an accurate description of what happened.

 

Step 3: Offers Statement into Evidence

Attorney offers the statement into evidence as past recollection recorded and may read the statement to judge or jury, but the written statement may not be put into evidence unless offered by the adverse party.

 

Procedure 5: Qualifying an Expert
Only a witness who is qualified as an expert may give an opinion as to the scientific, technical, or other specialized knowledge in the area of his/her expertise. (Note: A lay witness may give an opinion about something related to one's common experience (See Rule 5).) Experts cannot give opinions on the ultimate issue of the case.

Before an expert gives his/her expert opinion on a matter, the lawyer must first qualify the expert. There are two steps to qualify an expert. First, the lawyer must lay a foundation that shows the expert is qualified to testify on issues related to that expert's field of expertise. To lay a foundation, the lawyer asks the expert to describe factors such as schooling, professional training, work experience and books he/she has written that make a person an expert regarding a particular field. Second, once the witness has testified about his/her qualifications, the lawyer asks the judge to qualify the witness as an expert in a particular field.

Example: The wife of Harold Hart is suing Dr. Smith and General Hospital for malpractice. She claims they did not treat Mr. Hart for an obvious heart attack when he was brought to the hospital. Mrs. Hart's lawyer is examining his expert witness, Dr. Jones:

Q; "Dr. Jones, what is your occupation?"
A: "I am a heart surgeon. I am Chief of Staff at the New Columbia Medical Center."
Q: "What medical school did you attend?"
A: "I graduated from Georgetown Medical School in 1978."
Q: "Where did you do your internship?"
A: "I did a two year internship in cardiology at Queens Hospital from 1978-1980."
Q: "Did you afterwards specialize in any particular field of medicine?"
A: "Yes, I specialized in heart attack treatment and heart surgery."
Q: "Have you published any articles or books?"
A: "I wrote a chapter in a medical text on heart surgery procedures after heart attacks."
Q: "Describe the chapter."
A: "I set out the steps for identifying heart attacks and doing open heart surgery."
Q: "What professional licenses do you have?"
A: "I am certified by the New Columbia Board of Medical Examiners to practice medicine in New Columbia.

Attorney #1: "Your Honor, I ask that Dr. Jones be qualified as an expert in the field of medicine."
Judge: "Any objections?"
Attorney #1: "We object. No foundation has been laid regarding Dr. Jones's ability to render an opinion as to all fields of medicine."
Judge: "Objection sustained. Dr. Jones's expertise seems to be limited to certain areas of medicine."
Attorney #1: "Thank you, your Honor. We ask that Dr. Jones be qualified as an expert in the field of heart surgery."
Judge: "Any objections?"
Attorney #2: "No, your Honor."
Judge: "You may proceed with your questions."

Once qualified, an expert may give opinions relating only to the expert's area of expertise. That is, an expert cannot give an opinion in an area outside his/her expertise.

Example: (Dr. Jones has been qualified as an expert on heart surgery.)

Q: "Dr. Jones, what is your opinion as to Mr. Hart's cause of death?"
A: "The patient suffered a massive heart attack caused by clogged arteries."
A: "Dr. Jones, in your opinion was the patient also suffering from a rare lung disease transmitted through contact with the North American mongoose as the defense contends?"

Objection: "The witness is testifying outside her area of expertise."
Judge: "Sustained. Please confine your opinion to matters related to the care and treatment of the heart."

Q; "Dr. Jones, in your opinion, how should the patient's doctors have treated him?"
A: "They should have recognized that the patient was having a heart attack based on his chest pains, purple face, difficulty breathing, and numbness in his left arm. They should have given him the proper medicine and treated him in the emergency room right away."
Q: "Who was at fault in this matter?"
A: "Dr. Smith and General Hospital were definitely negligent."

Objection: "The witness is testifying to the ultimate issue of the case, which is whether Dr. Smith and General Hospital are liable for malpractice. That is a question of fact for the judge (or jury, when the case is tried before a jury) to decide."
Judge: "Sustained."