THE LITIGATION PROCESS

All lawsuits are either civil or criminal cases. While there are many similarities between the two types of lawsuits, several key differences exist:

CIVIL CASE CRIMINAL CASE

WHO INITIATES LAWSUIT

One or more persons, corporations, organizations, or governments brings a lawsuit against one or

more persons, corporations, organizations,

or governments.

State or federal government initiates case against

one or more individuals.

TERM FOR PARTY INITIATING CASE

Plaintiff Prosecution

TERM FOR PARTY DEFENDING CASE

Defendant Defendant

TERM FOR THE ACCUSATION OF WRONGDOING

The plaintiff “sues” the defendant. The defendant is “indicted.”

BURDEN OF PROOF

The plaintiff must prove its case by a “preponderance of the evidence.”

(more likely than not)

The prosecution must prove its case “beyond a reasonable

doubt.”TERM FOR THE VERDICT

The defendant is either found “liable” or “not liable.”

The defendant is either found “guilty” or “not guilty.”

GOAL Opportunity for the individual plaintiff to claim that the defendant

privately wronged him/her.

The government acts on behalf of the community to enforce the

criminal laws.

This year’s mock trial involves a civil case brought by Mr. and Mrs. Peacock against Mr. and Mrs. Mustard. The Peacocks, the plaintiffs, are suing the Mustards, the defendants, for violation of Illinois’ social hosting law. The purpose of this trial is to determine whether the Mustards are liable to the Peacocks for violation of this law, as outlined in the Statement of the Law. The Peacocks’ case will be heard in a fictional court located in Illinois.

INITIATING A CIVIL LAWSUIT: PRE-TRIAL STEPS

A. Client Interview

A party interested in bringing a civil lawsuit usually meets with an attorney to discuss a legal problem and to determine whether s/he would like to hire the attorney to represent him/her in the potential lawsuit. Once the attorney-client relationship begins, subsequent discussions between the attorney and the client about the case generally are confidential. In the initial interview, the attorney asks the client questions about the details of the legal problem. In a civil case, the attorney then determines whether some legal action or conflict resolution is necessary to resolve the client’s problems, such as a lawsuit, mediation, negotiation, or arbitration.

1

CH1 8625069v.1

A person who has been charged with a crime typically follows a similar procedure. First, a criminal defendant usually meets with an attorney, and the attorney tries to determine from the interview what responses or defenses the client would make regarding the prosecution’s allegations. The attorney might also determine whether or not the client should accept a plea bargain, in which the client agrees to plead guilty to an offense in exchange for a reduced charge or sentence.

B. Filing a Complaint and an Answer

If the individual and the attorney decide that the legal problem should be addressed by filing a civil lawsuit, the attorney files a legal document with the court that is called a “complaint.” The complaint names the defendant, briefly describes the plaintiff’s version of what happened, states why the plaintiff believes s/he deserves relief from the defendant, and sets forth the specific relief that the plaintiff seeks. The defendant generally has a fixed amount of time after filing the complaint to respond with a legal document called an “answer.” The answer is the defendant’s opportunity to admit, deny, or claim insufficient knowledge about the wrongdoing the plaintiff has alleged. The defendant would also claim any additional defenses, called “affirmative defenses,” in the answer. The defendant has the burden of proof for any affirmative defenses. This process of exchanging a complaint and an answer helps the parties identify exactly what they disagree about.

When the attorney files the complaint, the attorney must decide whether to file it in state court or in federal court. Federal courts can only hear lawsuits involving (a) any violation of a federal law or (b) a violation of state law where the parties live in different states and the amount of money at issue in the lawsuit exceeds $75,000. State courts can hear both of these types of cases, in addition to all other cases involving violations of state law.

C. Discovery

After the complaint and the answer are filed, and before trial begins, the parties engage in a process called discovery. The purpose of discovery is to make certain that both parties to a lawsuit have an equal chance to prepare for trial and have the best possible information available. To do this, attorneys use evidence-gathering devices such as interrogatories, depositions, and subpoenas. Interrogatories are written questions one party asks another. A deposition is a face-to-face interview under oath that involves brief questions and answers with a court reporter recording both the questions and the answers. A subpoena is used to compel production of tangible items such as records, documents, and pieces of evidence that are relevant to the case. After written and oral testimony, records, and other evidence are collected, the parties have a better understanding of the legal issues in dispute and the facts surrounding the case. For the purposes of the mock trial competition, however, you will not need to engage in discovery.

D. Pre-trial Motions

Prior to trial, attorneys often file motions (formal requests to the court) asking the court to rule in their favor on certain issues before the trial begins. These motions sometimes help

2 CH1 8625069v.1

attorneys to simplify the issues that will be addressed during the trial. Pre-trial motions also frequently address the admissibility of controversial pieces of evidence, with one side’s attorneys asking the court to exclude certain pieces of evidence from trial. For the purposes of the mock trial competition, however, pre-trial motions are not permitted.

TRIAL

There are two types of trials: jury trials and bench trials. In a jury trial, a panel of jurors hears the case and resolves factual disputes for the court. In a bench trial, the judge resolves factual disputes. This year’s mock trial will be a bench trial rather than a jury trial. The judge will resolve factual disputes and will apply the law to the facts in order to come to a decision.

A full civil trial generally proceeds in the following steps:

1. Plaintiff’s Opening Statement

2. Defendant’s Opening Statement

3. Direct Examination by Plaintiff of Plaintiff’s First Witness

4. Cross-Examination by Defendant of Plaintiff’s First Witness

5. (Optional) Redirect by Plaintiff of Plaintiff’s First Witness

6. (Optional) Re-cross by Defendant of Plaintiff’s First Witness

(Additional Witnesses for Plaintiff follow steps 3-6)

7. Plaintiff Rests His/Her Case

8. Direct Examination by Defendant of Defendant’s First Witness

9. Cross-Examination by Plaintiff of Defendant’s First Witness

10. (Optional) Redirect by Defendant of Defendant’s First Witness

11. (Optional) Re-cross by Plaintiff of Defendant’s First Witness

(Additional Witnesses for Defendant follow steps 8-11)

12. Defense Rests His/Her Case

13. Plaintiff’s Closing Argument

14. Defendant’s Closing Argument

15. (Optional) Plaintiff’s Rebuttal

3 CH1 8625069v.1

The following material explains each of these stages of the trial and provides additional information that an attorney must know before conducting a trial.

A. Opening Statements

Once the trial begins, the opening statement is an attorney’s first opportunity to address the court and frame the case from the perspective of his/her client. For that reason, most successful trial attorneys believe that a good opening statement is extremely helpful to winning a case. The purpose of the opening statement is to give the judge or jury a preview of the evidence and testimony that will be presented during the course of the trial, so they can begin to understand how each piece of evidence will relate to the entire case. That is especially important because, in the course of trial, each witness will likely only be able to establish some of the important facts or legal elements that the party needs to win its case. The opening statement allows the attorney to describe how those pieces of the puzzle will fit together: what testimony and evidence will be presented, how the evidence relates to the issues at stake, and how s/he would like the judge or jury to rule.

When preparing the opening statement, an attorney should:

1. Develop a theme: a short, catchy statement summarizing what happened in the case. For example, consider a case where the plaintiff was injured because the defendant failed to clean up an unsafe construction site. Before the plaintiff was injured, the defendant made some improvements, but still did not meet safety standards. In that case, the plaintiff’s theme might be, “The defendant did too little to keep its workers safe.” The plaintiff would likely invoke that theme at various points in the opening statement and possibly again in the closing argument.

2. Develop a theory: a short explanation of what the party believes happened in the case, based on the testimony and evidence that the party believes will be admitted in

court. Everything that occurs during the trial, including all of the party’s direct and cross- examinations, should support this theory.

3. Lay out the elements for the claim and show how they will be established during trial (plaintiff) or not established during trial (defendant). During this section of the opening statement, attorneys often tell the jury what each important witness will say by using language like “Casey Lee will testify that….” See the Statement of the Law for the list of elements in this case.

4. Discuss the facts in a light most favorable to the client – without arguing. Argument is only allowed during the closing argument at the end of trial.

5. Address your case’s strengths and weaknesses.

6. Highlight key evidence so the judge or jury is prepared to watch for that part of the trial in particular.

7. Request relief, as described in the complaint (plaintiff), or request that the party be found not liable (defendant).

4 CH1 8625069v.1

When preparing for trial, attorneys must practice their opening statement several times. Many attorneys memorize their opening statement and only use notes to aid them at the podium. The first thing that an attorney does when he or she approaches the podium to speak is to make sure that the judge is ready by making direct eye contact and asking, “May it please the Court?” After the judge nods or otherwise indicates that the attorney may proceed, the attorney begins his or her opening statement to the court.

When delivering the opening statement, an attorney should:

1. Introduce himself or herself and the client.

2. Establish a rapport among the judge and/or jury, the attorney, and the client.

3. Demonstrate confidence, sincerity, and credibility.

4. Hold the judge’s and/or jury’s attention.

5. Make eye contact with the judge and/or jury.

6. Leave the judge and/or jury with the belief that his/her client’s cause is just.

B. Presenting Your Case

After both sides make opening statements to the court, the plaintiff (in a civil case) or the prosecution (in a criminal case) presents its case in chief, that is, the evidence set forth to prove its case. The plaintiff/prosecution always goes first in either type of trial because it bears the burden of proof – that is, the plaintiff/prosecution is responsible for persuading the judge or jury that the defendant is liable/guilty by proving each element of the legal claim using witness testimony, exhibits, and stipulations. The burden of proof in a civil case is “the preponderance of the evidence.” This means that the plaintiff must prove that each element of his/her case is more likely true than not true.

Under the law, the defense is not required to prove anything in order to prevail, unless the defense is arguing something in addition to the elements the plaintiffs must prove, such as an affirmative defense. Thus, a defendant’s case in chief could be made up of two possible components: evidence to refute the plaintiff’s/prosecution’s proof and/or evidence to prove any defenses being raised by the defendant. As a consequence, the defense must think about whether it wants merely to deny the allegations the plaintiff/prosecution has made, or if it wants to present an alternative theory or explanation of what happened.

1. Direct Examination

When a party begins presenting its case, the attorney for that side will stand and state, “The [plaintiff or defendant] would like to call [the name of the witness] to the stand.” The judge then swears in that witness, and the witness promises to tell the truth. The attorney who called the witness then questions the witness, a process referred to as “direct examination.” The process of direct examination is critical to the trial, since attorneys may not make their own

5 CH1 8625069v.1

statements or claims about the case to the jury while presenting the case in chief. For example, an attorney cannot simply assert that “Jamie Fulton lives at home with his/her father.” Instead, the attorney must elicit that information from a witness by questioning him/her. A good attorney is able to draw information out from witnesses in a way that presents the party’s case in the most favorable light to the judge and/or jury.

The manner in which attorneys elicit testimony in direct examination is somewhat unnatural, because they are not permitted to ask leading questions – that is, questions that suggest a specific, desired answer or response. Instead, on direct examination, attorneys ask open-ended questions that allow witnesses to answer in their own words. For example, “Who did you see standing on the corner?” is a permissible question on direct examination, while “Didn’t you see Tracy standing on the corner?” is a leading question and is impermissible.

Before a witness takes the stand for direct examination, the attorney should prepare the witness so that s/he can tell his or her story without the use of leading questions. If the witness is well prepared, the witness will anticipate the attorney’s questions and will be able to tell the whole story with little prompting by the attorney, although the witness will not be permitted to narrate all of the witness’s testimony without first being questioned on a particular topic by the attorney. The following questions are proper examples of this technique:

Question Answer

What is your name? Jamie Fulton.

Where do you live? At home with my father.

What is your occupation? I am a student.

To encourage witnesses to speak loudly so the judge and/or jury can hear their responses, the attorney may stand in different spots in the courtroom. Sometimes the attorney may want to stand close to the jury, at the back of the room, or close to the witness depending upon the subject matter and the desired responses. Above all else, during direct examination the attorney wants to elicit all the information necessary to prove the case. To do this, the attorney must think carefully about each of the elements the attorney must prove in order to win the case and think about how to establish that element. Every witness called should present testimony that in some way adds strength to their side’s theory of the case.

2. Cross-Examination

Cross-examination occurs after the side that has called the witness has completed its direct examination. The opposing side’s counsel now has an opportunity to question the witness. The purpose of cross-examination is to undermine or discredit the testimony given by the witness on direct examination by revealing inconsistencies, contradictions, and weaknesses in that testimony. Cross-examination is also used to show that the witness lacks credibility and should not be believed.

6 CH1 8625069v.1

Two major rules limit the way in which cross-examination can be conducted. First, an attorney who is cross-examining a witness may ask leading questions, which are not permitted during direct examination. As mentioned above, leading questions are those that, when asked, suggest a certain answer – for example, “Isn’t it true that you were angry at the plaintiff?” By using leading questions, the cross-examiner can draw out admissions from the witness that will tend to help the cross-examiner’s case, while restricting the witness’ ability to explain or justify his or her testimony. To accomplish this goal, an attorney asking leading questions should phrase them so that the witness must answer only “yes” or “no.” Limiting the answers in such a manner prevents the witness from offering qualifying information that would weaken any admissions. For instance, successfully crafted leading questions force a witness to simply respond “Yes, I was angry at the plaintiff,” rather than allowing the witness to explain, “Yes, I was angry at the plaintiff, but I would never have harmed him/her.”

Using leading questions to elicit admissions from opposing witnesses is very important, because those admissions are useful in persuading juries to accept the cross-examiner’s larger theory of the case. Because leading questions are so helpful, a cross-examining attorney should use them almost all of the time. Only in very rare situations would an attorney want to ask a witness a non-leading question on cross-examination.

Examples of Leading Questions:

“You knew s/he hadn’t copied the essay word-for-word, didn’t you?”

“Isn’t it true that you posted the statement on a website open to the public?”

“Isn’t it correct that you had access to your teacher’s computer?”

“You’re good friends with the defendant, aren’t you?”

“You have been accused of cheating before, correct?”

Second, when cross-examining a witness, an attorney generally may only ask questions about the subjects covered during direct examination. This means that cross-examination should generally be brief. Indeed, a cross-examiner does not want to strengthen a witness’s testimony by having the witness repeat everything he or she said on direct examination. Rather, a cross-examination typically consists of a few questions (perhaps no more than five to seven) that are designed to cast doubt on the witness’s testimony.

Impeaching, or discrediting, a witness often takes place during cross-examination. The following is an example of how to impeach a witness whose testimony does not match a prior statement that the witness made in a deposition.1 Suppose that for the purposes of this example, the witness had testified during a pre-trial deposition that U-Place was a popular public website

1 Depositions typically occur in a question-and-answer format. For the purposes of this mock trial, the ten witness statements contain answers that the witnesses gave during pre-trial depositions that have been converted into narrative form. The witness statements, however, should be treated as if they were depositions.

7 CH1 8625069v.1

that many people used, but at trial, the witness testified on direct examination that U-Place was a private website that only a few people could access.

Impeaching a Witness Based on a Prior Inconsistent Statement:

Q: Did you testify on direct examination that U-Place was a private website?

A: Yes.

Q: Do you remember having your deposition taken on (state the date)?

A: Yes.

Q: Do you remember swearing to tell the truth at your deposition?

A: Yes.

Q: Did you tell the truth on that date?

A: Yes.

Q: Do you remember signing your witness statement and certifying that it was a true, correct, and complete summary of what you said during your deposition?

A: Yes.

Q: Do you remember making the following statement at your deposition? (Read the witness’s prior inconsistent statement out loud.)

or

Q: Please read paragraph one of your witness statement out loud so that the jury can hear what you said on that date.

3. Redirect and Recross-Examinations

After the opposing counsel has finished cross-examination, the side that called the witness might have an opportunity to conduct redirect examination to address any issues that were raised during cross-examination. Similarly, after redirect, the opposing side might have the opportunity to conduct recross-examination. Redirect and recross are not opportunities to go over the witness’s initial testimony once again or to ask questions regarding new topics. Rather, each is used only to respond to any unresolved issues from the opposing counsel’s prior questioning. For example, redirect examination is typically used to make a witness look better if a harmful fact has come out during cross-examination. If an attorney attempts to go beyond the topics discussed in the direct examination or in the cross-examination, the opposing counsel may object on the grounds that the questions are “beyond the scope of direct examination” or “beyond the scope of cross-examination.”

8 CH1 8625069v.1

Overuse of redirect and recross-examination is a common problem in the mock trial competition. Redirect and recross-examination should only be used when the attorney can substantially improve his or her case by asking one to three questions of the witness that have not been asked already. Generally speaking, redirect and recross-examination should not be needed for most witnesses.

4. Exhibits

In addition to using witness testimony to prove the required elements, either party may introduce exhibits. There are four main types of exhibits: (1) physical evidence like an item of stolen property; (2) demonstrative exhibits like diagrams, charts, and maps; (3) written exhibits like contracts, checks, and letters; and (4) record exhibits like private business and public records. To introduce an exhibit in court, attorneys must be careful to first lay a “foundation.” Foundation to admit an exhibit is established by presenting evidence that the exhibit is actually what it purports to be and that it complies with the applicable rules of evidence. The foundation may be established using witness testimony, certification, or other methods. For example, an administrative assistant who prepared a letter for an organization may testify that the particular letter being introduced was the same letter that he or she wrote and mailed on a particular date. Every foundation must meet the following four requirements before the exhibit can be admitted into evidence:

1. The witness attempting to establish the foundation must have personal knowledge about the exhibit;

2. The exhibit must be relevant and reliable;

3. The exhibit must be authenticated, meaning that the attorney must establish that the exhibit is really what it purports to be (for example, an attorney must show that a gun being admitted is not just any gun, but the gun that fired the bullet that killed the victim in a murder trial); and

4. If applicable (in other words, if the exhibit is a photograph, a videotape, or something similar), the exhibit must fairly and accurately depict what appeared on the

relevant date.

These elements are established by questioning a witness about them.

Example: How to Admit an E-Mail Exhibit into Evidence

Step 1: Establish personal knowledge:

Q: Ms. Smith, have you ever e-mailed Judy Jones about the sale of your home?

A: Yes.

Q: Did you e-mail Judy Jones on that subject on March 3, 2005?

9 CH1 8625069v.1

A: Yes.

Q: At what time?

A: Around 9:00 in the morning.

Step 2: Show exhibit to opposing counsel to provide him or her an opportunity to object to the use of the exhibit.

Step 3: Ask the judge for permission to approach the witness so that you can show the witness the exhibit.

Step 4: Establish foundation:

Q: I’m showing you what has been marked as Exhibit A. Do you recognize this document?

A: Yes.

Q: What is the document?

A: It is a printout of the email I sent to Judy Jones on the morning of March 3, 2005.

Q: Does the exhibit fairly and accurately represent how the content of the email appeared when you sent it to Ms. Jones on March

3, 2005?

A: Yes.

Step 5: Offer exhibit into evidence.

Plaintiff’s Attorney: Your Honor, the plaintiff offers Exhibit A into evidence.

Judge: Any objections?

Defense Attorney: No, your Honor.

Step 6: Have exhibit marked into evidence.

When one side is entering an exhibit, the other side may properly object if the attorney entering the exhibit does not thoroughly lay a foundation for the exhibit – in other words, if there is some reason to doubt that the exhibit is what it purports to be. An objection may also be proper if the exhibit raises some additional evidentiary problem, such as hearsay. The objection process and the rules of evidence are discussed further below.

In a jury trial, an item that is admitted would then be shown to the jury through a process called “publishing” the exhibit. Generally, the exhibit would be handed to each jury member

10 CH1 8625069v.1

individually for close examination. At the conclusion of the case, the exhibit would also be given to the jury to take into the jury room during deliberations.

5. Stipulations

Finally, a party may use stipulations—that is, agreements between the parties that certain facts exist and are not in dispute—to prove the required elements. Stipulations are usually made in writing and are shown or read to the judge and/or jury. The stipulations for this case may be found in the Statement of the Case.

6. Resting

When the plaintiff/defendant is finished presenting all of its evidence, it “rests.” This is done simply by standing and announcing to the judge, “Your Honor, [plaintiff or defense] rests.”

C. Closing Arguments

The closing argument is the attorney’s last chance to persuade the judge or jury that his or her client deserves to win the case. Unlike the opening statement, the attorney is allowed to argue during the closing argument. Effective closing arguments discuss the facts and the law and argue that the credible evidence presented at trial requires a verdict in the attorney’s client’s favor. In closing arguments, it is permissible for attorneys to argue inferences from the facts, refer to important testimony, use admitted exhibits, and tell stories to persuade the judge or jury. The attorney should explain how each element of the case was proved, or was not proved in the case of the defense, and ask for a verdict in his or her client’s favor. This is the time to persuasively and unreservedly argue the client’s case.

The party with the burden of proof—the prosecution or the plaintiff—addresses the judge or jury first. The defense then responds. The plaintiff/prosecution then has the opportunity to respond briefly in order to rebut the defense’s arguments. Since the plaintiff/prosecution carries the burden of proof, it always has the last word before the court.

Attorneys use different approaches when presenting closing arguments. An attorney should try to use techniques that work well for his/her particular case and for his/her individual personality.

Common techniques during closing argument include:

1. Thanking the judge and/or jurors for their courtesy and attentiveness during the trial.

2. Making eye contact with the judge or jury.

3. Returning to the theme and theory presented during the opening statement and the trial.

4. Recalling the testimony of key witnesses and showing how the testimony reveals disparities or other problems in the other side’s position. For example, an attorney

might bring a jury’s attention to important testimony during closing arguments by reminding the jury that “You heard Casey Lee testify that….”

11 CH1 8625069v.1

5. Commenting on the opposing counsel’s opening statement and pointing out areas where the other side failed to introduce evidence to support its points.

6. Explaining away adverse evidence, if at all possible, so that the judge and/or jury will not be left with the opposing side’s negative view of the evidence.

7. Using diagrams to illustrate weaknesses for the other side in the facts.

8. Highlighting how the law favors a verdict for the client, including how the elements of the claim have or have not been met.

9. Emphasizing the burden of proof (defense) or explaining why the burden has been met (plaintiff/prosecution).

10. Requesting a verdict or decision in the client’s favor.

D. Deliberations and Verdict

In a jury trial, after the lawyers finish giving closing arguments, the judge reads predetermined jury instructions to the jurors in open court. These instructions provide the jury with an explanation of the relevant law and explain the elements that the plaintiff/prosecution must prove before the jury can reach a verdict in its favor. Because the jury instructions are so important in helping the jurors to understand the applicable law, many successful attorneys structure their cases, especially closing arguments, around these predetermined jury instructions. You will not use jury instructions for the mock trial, as this year’s case is a bench trial.

Once the judge has issued these instructions, the jury meets in a closed room to decide what they believe actually happened. In criminal cases, the verdict must be reached by a unanimous vote. In some jurisdictions, in contrast, the verdict in a civil trial does not need to be by unanimous vote.

After the jury has reached its decision, it reports the verdict to the judge and parties in open court. The foreperson—a member of the jury chosen as leader by the other jurors—announces the verdict. Once a verdict is returned and before it is recorded, the jury members may be polled at a party’s request. This means that the judge asks each juror to affirm that the reported verdict is his or her true and correct verdict. After the verdict is accepted by the judge, the trial is usually over and the judge dismisses the jury from their duty. In some cases, a second phase of the trial is held to determine the appropriate sentence (in a criminal trial) or the extent of liability (in a civil trial). The jury continues to participate in these follow-up phases.

Peacock v. Mustard is a bench trial, which means that the decision-making process proceeds somewhat differently. Since the judge is the sole decision-maker in a bench trial, the verdict is simply announced by the judge after the trial concludes. Sometimes the judge will not announce the decision right away. Rather, the judge will take time to think about the evidence and the trial, and he or she will later inform the parties of the decision.

12 CH1 8625069v.1

E. Objections

An attorney can object to questions, exhibits, and statements made during opening statements and closing arguments. Objections during opening statements and closing arguments, however, are considered very rude and are seldom made. For purposes of this mock trial competition, objections may not be made during opening statements and may not be made during closing arguments.

1. Objections During Witness Examination

During either direct or cross-examination, an attorney may object to a question or an answer if: (1) the question is inappropriate; (2) the question is likely to lead to the introduction of inadmissible evidence; or (3) the answer given is inadmissible. Objections to questions should be made after the question is asked but before the witness answers. While it is generally considered rude to interrupt another attorney when he or she is speaking, it should also be kept in mind that objections must be made in a timely manner to be effective.

To object, an attorney must take the following steps:

1. Stand up.2. Say “Objection, your Honor.” 3. Use one or two words to briefly state the reason for the objection, such

as “hearsay” or “relevancy.”

4. Be prepared to give a longer explanation supporting the objection, in

case the judge asks why the statement was hearsay or why the question

was irrelevant, for instance.

All objections must be directed to the judge, not to the opposing counsel. After one attorney objects, the judge may then permit the opposing counsel to respond to the objection. Next, the judge may also ask the objecting party to explain why the questioning attorney’s response was incorrect; in case this occurs, an objecting attorney should always be prepared to say something defending his or her objection against the opposing counsel’s response. After this process is complete, the judge will rule on the objection. If the objection is sustained—that is, granted—the witness will not be permitted to answer the question. If the question has already been answered, the answer will be stricken from the court record and the jury will be instructed to disregard the answer. If the objection is overruled—that is, denied—the witness will be required to answer the question or the answer already offered will be permitted to stand.

If the objection is not made in time and the witness answers an objectionable question, opposing counsel may ask the court to “strike” the testimony. Likewise, if a witness does not answer the specific question asked, or goes beyond the scope of the specific question asked, the objecting counsel may ask the court to “strike” the testimony as non-responsive.

13 CH1 8625069v.1

Objections can be important strategic tools. An attorney must be selective when choosing to object so that each objection functions as a small victory for the objecting side. Above all, the objecting side should view objections as a tool used to shut down the point the opposing side is attempting to make. This is accomplished by breaking up the flow of whatever is about to be said that may damage the objecting side’s case. If an attorney objects unwisely and too often, the attorney risks frustrating the judge and losing credibility with the jury. It is important to remember that just because an attorney has grounds to state an objection, that doesn’t mean the objection will be an effective tactic at that particular moment.

There are two broad types of evidentiary objections that come up during trial in the context of witness questioning. The first type is an objection to the form of the question or answer. If this type of objection occurs, the attorney asking the question can usually rephrase the question or the witness can rephrase the answer. It is important to remember that an attorney also has the option to withdraw the question entirely, rather than rephrase the question to suit the opposing side’s objection. The second type is an objection to the substance of the question or answer. If this type of objection is sustained, it will result in exclusion of the evidence; in other words, the witness will usually not have to answer the question.

The following two charts show the most common objections encountered during the presentation of evidence through witnesses at trial, along with sample questions and answers that might draw such objections:

Sample Objectionable Question Corresponding Objection

“Jamie, what is the name of your dog?” Calls for an irrelevant answer

“Jordan, how fast can the average human run?” Calls for an expert opinion (if the witness is not an expert)

“Principal Hathaway, what was Tracy doing on the afternoon of April 6, 2011?”

Witness lacks foundation (in other words, the witness has no firsthand

knowledge)

“What did you discuss with your attorney?” Calls for a privileged communication

“Has Drew committed defamation?” Calls for a legal conclusion

“What happened at the Scholarship Committee meeting?” Calls for a narrative answer

“Terry, did Tracy tell you that s/he wrote his/her scholarship essay without any outside help?” Calls for a hearsay answer

“You never liked working for the Young Leaders Council, did you?” Leading (would be acceptable on cross)

14 CH1 8625069v.1

Question One: “Where did you attend college?”Question Two: “Where did you obtain your

undergraduate degree?”Asked and answered (repetitive)

“Drew, what subjects do you like to teach?” (Assume that this question is asked on re-direct and Drew has not been questioned before now about what subjects

s/he prefers.)

Beyond the scope (of direct, cross, or redirect)

“When you met to discuss the school’s new technology funding, what did you talk about?” (Assume that no evidence has been admitted

indicating that any meeting was held about the school’s technology funding.)

Assumes facts not in evidence

“Before you stopped by Taylor Duran’s classroom, what was going on?” Confusing/misleading/ambiguous/vague

“Principal Hathaway, why were you named principal of Big City Central?” Calls for speculation

“How long have you coached track, and how successful has the BCC track team been?” Compound question (two-part question)

“Your testimony conflicts with the scholarship letter. Why shouldn’t a judge believe the letter rather than

your testimony?”Argumentative

Witness: “I have worked at BCC since 2001.”

Attorney: “Since you came to BCC in 2002, have you ever seen a student as promising as Jamie?”

Misstates evidence/misquotes the witness

Sample Objectionable Answer Corresponding Objection

Question: “What did you do after school on April 6, 2011?”

Answer: “I took my dog to the veterinarian, because he has been suffering from an upset stomach. You

know, many dogs have allergies that can cause stomachaches. My dog is allergic to chicken.”

Irrelevant

“My attorney told me that I did not have a strong chance of winning this lawsuit.” Privileged

15 CH1 8625069v.1

“Yes, Drew committed defamation.” Contains a legal conclusion

“In my opinion, Jamie would have never been able to join BCC’s track team.” Opinion

“Dale told me that the Scholarship Committee held a meeting on April 13, 2011.” Hearsay

“I got to school at about 8:30 in the morning. First I took off my coat and hung it in the closet. Then I sat

down at my desk and turned on my computer. While I looked through my lesson plans, my students started arriving at my classroom and finding their seats. At 9:00, I began teaching my first class of the day…”

Narrative

Question: “When did Jamie’s grades start to improve?”

Answer: “Jamie just isn’t a cheater – I know s/he would never do such a thing.”

Unresponsive/volunteered

2. Objections to Exhibits

Attorneys may also object to exhibits that the opposing side seeks to introduce. The following is a list of the most common objections encountered during the presentation of evidence through exhibits at trial:

Sample Objectionable Exhibit Corresponding Objection

The business card of Jamie’s veterinarian. Irrelevant

A receipt from www.phonyessays.com that purports to show that Jamie paid $20 to

download a sample scholarship essay. (Assume that no one can testify about where the receipt came from or whether the receipt is authentic.)

Lacks foundation

A transcript showing what Dale Vicente said at the Scholarship Committee’s meeting on April

13, 2011.

Contains hearsay

Risk of prejudice outweighs its value as proof

16 CH1 8625069v.1

An e-mail that a fellow student wrote in which Tracy is described as belonging to a gang.

ATTORNEY CONDUCT AT TRIAL

The attorney’s role throughout the entire lawsuit is crucial. The judge and/or jury closely and continuously scrutinizes an attorney’s attitude and conduct from the first moments of the trial process through the end of closing arguments. Thus, an attorney’s actions can significantly affect the outcome of the case.

Above all, an attorney must strive to convey honesty, sincerity, and conviction when presenting his or her client’s case. Attorneys should be thoroughly prepared for trial in order to appear at ease in the courtroom setting. To achieve this ease, there is no substitute for meticulous preparation and practice. At all times, the attorney should convey a sense of formality as a gentle reminder to the jury that the task they perform is real and important.

An attorney must always demonstrate respect when dealing with the judge, witnesses, and opposing counsel. Thus, the following rules of courtroom etiquette have evolved:

1. Attorneys always should address the judge as “your Honor” or refer to the judge as “the Court.”

2. Attorneys always should address remarks to the judge, not to the opposing counsel.

3. Whenever objecting or addressing the court in any fashion, an attorney should always stand and begin or complete statements or questions with “your Honor.”

4. If an attorney needs to hand something to a witness, the attorney should first ask the judge for permission to approach the witness.

5. If an attorney would like to have a private discussion with the judge out of the hearing of witnesses or jurors, the attorney should first ask if he or she may approach the bench.

6. After an interruption, an attorney may not begin or resume questioning of a witness until the attorney has obtained permission from the court by asking, “Shall I proceed, your Honor?” or “May it please the Court?”

Most trial judges expect such courtesies; all trial judges appreciate them; and proper courtroom etiquette requires them.

TRIAL AND EVIDENTIARY RULES

Rules of evidence are, as the name indicates, the rules by which a court determines what evidence is admissible at trial. In the United States, federal courts follow the Federal Rules of Evidence, while state courts generally follow their own rules, which are determined on a state-by-state basis. Since this case is set in a federal court in Illinois, we will be using the Federal Rules of Evidence.

17 CH1 8625069v.1

A. Relevancy

Only relevant evidence may be introduced at trial. Evidence is considered relevant if it has any tendency, however small, to prove or disprove a factual matter at issue in the case. Most relevant evidence is admissible and all irrelevant evidence is inadmissible. Some relevant evidence may be excluded, however, if its value as proof is substantially outweighed by the possibility that its admission would result in unfair prejudice, confusion of the issues, misleading of the jury, undue delay, waste of time, or the needless presentation of redundant evidence.

B. Hearsay

Hearsay is a statement made outside of court that a witness repeats in the courtroom for the purpose of proving that the matter asserted in the statement is true. Witnesses’ testimony must be based on their own personal knowledge – in other words, the testimony must be about what they personally saw or experienced. They are generally not permitted to testify about rumors, gossip, or what somebody else told them. This limitation on the admissibility of evidence is embodied in the rule against hearsay.

The purpose of the hearsay rule is to ensure that parties prove their cases through the testimony of witnesses whose credibility can be tested through cross-examination by the opposing side, rather than through out-of-court statements made by speakers who are not present in court and who, therefore, cannot be cross-examined. The rule’s ultimate goal, thus, is to ensure reliable testimony.

As an example, suppose that one of Drew Lowell’s defenses is to argue that U-Place is not a public website. If, in support of this argument, Taylor Duran testifies that “Jordan McKenzie told me last Tuesday morning that U-Place was a private website,” that statement would be objectionable hearsay. The statement is hearsay because it was an out-of-court statement that is now being offered in court to prove the truth of what was said (i.e., that U-Place is a private website).

Not all out-of-court statements, however, are hearsay; instead, a series of exceptions exists to the general hearsay rule.

(i) Statements not offered for the truth of the matter asserted. Such statements are not hearsay, for example, when they are offered to prove something other than the truth of what is being asserted. This is a subtle but important distinction. For example, suppose that Drew were on trial for the murder of Jordan, and Taylor testified to the same fact – that Jordan told Taylor on Tuesday morning that U-Place was a private website – in order to prove that Jordan was still alive on Tuesday morning. In this situation, this statement would not be considered hearsay, because it is offered in court only to establish that Jordan was alive, rather than to establish that U-Place is a private website.

As another example, suppose that Sarah is suing Burger Haven, a fast-food restaurant, because she slipped on ketchup that was on the restaurant’s floor and fell down, injuring her back. During the course of the lawsuit, suppose that Sarah must prove that Burger Haven’s manager, Bob, was aware that ketchup had spilled onto the floor but did not clean it up. Sarah’s attorney calls Bob as a witness and asks Bob, “Isn’t it true that another customer, Sue, told you

18 CH1 8625069v.1

that she had spilled ketchup on the floor ten minutes before Sarah came into the restaurant?” Bob responds, “Yes, Sue told me that there was ketchup on the floor.” Even though this statement was made out of court, Bob’s testimony is not hearsay, because it is not being offered to show that there was ketchup on the floor. Instead, it is being offered to show that Bob was aware that there may have been ketchup on the floor.

As a third example, suppose that while Joe is driving down the street, his car’s brakes fail and he crashes into Melissa’s vehicle. After learning that Joe’s brakes were in total disrepair when the accident occurred, Melissa sues Joe for negligently failing to maintain his car’s brakes. As part of her case, Melissa is trying to prove that Joe knew his brakes needed repair but did nothing about it. Melissa’s attorney calls Joe to the stand and asks Joe, “Isn’t it true that two days before the accident, your mechanic told you that your brakes were going to fail and that they needed to be replaced?” Joe responds, “Yes, my mechanic told me that my brakes were going to fail.” This out-of-court statement is not hearsay, since it is offered only to show that Joe was aware that a mechanic thought his brakes were in poor condition. It would have been hearsay if the statement were offered to show the truth of the matter asserted – in other words, if it were offered to prove that the brakes actually were in poor condition.

(ii) Business records. Records kept in the regular course of business regarding regularly conducted activities are admissible, even when they are offered for the truth of the matters contained within the records. This is commonly known as the “business records exception” to the hearsay rule. If a business letter were written regarding unusual or one-time circumstances, however, it would generally be considered inadmissible hearsay if the discussion contained in the letter were offered to prove the truth of the matter asserted in the letter.

(iii) Admissions by party-opponent. If one party seeks to introduce evidence of something that the opposing party said in the past, that statement is not hearsay. The rationale behind this exception is that since a party presumably has no need to cross-examine itself, that party may not object when its own out-of-court statements are offered against it in court. These statements are called “admissions by a party-opponent.”

(iv) Statements against interest. A statement made out of court that is against the interests of the speaker is admissible if the speaker is unavailable as a witness (for example, if the speaker refuses to testify, cannot remember anything about the statement, is dead or gravely ill, etc.). This exception exists because most people assume that if a person says something negative about himself or herself, it is probably true; therefore, such statements are regarded as reliable evidence, even though the speaker is not available in court to be cross-examined.

C. Impeachment

The process of discrediting a witness’s testimony at trial is known as impeachment, and there are numerous ways for an attorney to conduct this process. One method of impeachment is to offer evidence that a witness’s prior out-of-court statements are inconsistent with the witness’s testimony at trial. If at trial a witness offers testimony that is inconsistent with the witness’s prior statement, affidavit, or deposition, that witness can be confronted with the prior statement on cross-examination. This method of impeachment allows the cross-examiner to show that the witness has said different things on different occasions about the same subject, and consequently

19 CH1 8625069v.1

the witness’s testimony at trial should not be believed. Despite the general rule against hearsay, inconsistent statements are admissible because they are offered not for their truth; instead, they are only offered to show that the witness has made two conflicting statements and hence is not credible.

Another type of impeachment involves demonstrating that a witness is biased or has motives that might cause him or her to not tell the truth. For example, if an attorney shows that a police officer would receive a bonus or promotion if a defendant were convicted, that would impeach the officer’s testimony. Also, if a witness has a personal stake in the side for which he or she is testifying—such as an employee who fears that if he or she does not testify on his/her employer’s behalf, then he or she will be fired or demoted—then it may be used to impeach that witness’s credibility.

A third method of impeachment occurs when an attorney introduces evidence that a witness has been convicted of a crime in order to make the witness seem dishonest. Different rules govern the admissibility of different types of convictions; however, if a witness was convicted during the past ten years for a crime directly involving lying or dishonesty—for example, counterfeiting or lying on a tax return – then evidence of that conviction is always admissible against the witness. An attorney can raise a witness’s prior convictions on direct or cross-examination.

It is important to know that once a witness’s character for truthfulness has been attacked, an attorney can then call a second witness to testify that s/he believes that the first witness is honest or that the first witness has a reputation for being honest. This type of evidence of truthfulness cannot, however, be introduced before a witness is impeached.

D. Opinion Testimony

In general, witnesses do not testify about their own opinions. Instead, they testify about specific facts within their knowledge. However, there is no absolute rule against opinion testimony. Generally speaking, a witness’s opinion testimony can be admitted if the opinion: (1) is rationally based on the witness’s perception (in other words, so long as the witness has some reason for his or her opinion); and (2) helps the jury decide the case.

E. Character Evidence

Evidence of a person’s character is generally not admissible because it is considered unfair to try to prove how a person acted on the particular occasion at issue by proving how that person usually or frequently acts. This prohibition means, for example, that an attorney cannot introduce evidence of a person’s prior actions in order to prove that the person behaved similarly on a later occasion.

There are significant exceptions to this general rule. As described above, one important exception involves character evidence about a witness’s character for truthfulness. When a witness’s character for truthfulness is at issue in the case, evidence concerning that witness’s character traits is admissible if the evidence: (1) is either in the form of opinion or reputation evidence; and (2) deals directly with the witness’s character for truth-telling. For example, on cross-examination, an attorney can attempt to impeach the witness’s credibility using certain

20 CH1 8625069v.1

prior convictions and reputation for untruthfulness as evidence of that witness’s lack of credibility.

Another important exception is that character evidence is admissible where the character of a party is an essential element of a claim. Thus, if a defendant stated publicly that the plaintiff was dishonest, and the plaintiff sued the defendant for defamation, both parties would be able to introduce evidence of the plaintiff’s honesty or dishonesty.

F. Refreshing Recollection

Occasionally a witness will answer a question by saying “I don’t remember.” When this occurs, an attorney can attempt to refresh the witness’s recollection by showing the witness a document or other item that may help the witness recall the issue in question. If a witness’s recollection is successfully refreshed after reviewing the document, then the witness may answer the question accordingly. In such a case, however, the document or item used by the attorney to refresh the witness’s recollection is generally not itself admissible in evidence. Rather, the only admissible evidence is the witness’s own testimony. The following elements must be demonstrated to establish a foundation for refreshing the recollection of a witness who is on the stand:

1. The witness knows the facts, but has a memory lapse on the stand.2. The witness knows a report (or other document, exhibit, or affidavit) will jog his or her memory.3. The witness is given and reads the relevant part of the report.4. The witness states his or her memory has now been refreshed.5. The witness now testifies to what he or she knows without further aid of the report.

G. Authentication

Every piece of evidence offered to the court must be authenticated before it can be admitted – in other words, it must be shown to be genuine. This process can be done in a number of ways. Often, a witness with personal knowledge will authenticate a piece of evidence by testifying that he or she knows what it is, prepared it, or is otherwise familiar with it. Alternatively, a witness might be able to testify to the authenticity of handwriting in a document, or the piece of evidence might have a distinctive mark – for example, a postmark – that can satisfy the authentication requirement. For items like photographs or videotapes, authentication occurs by proving that the item is a true and accurate representation of the scene that it purports to portray.

Certain types of documents are self-authenticating; in other words, they are presumed to be genuine and, therefore, require no extra evidence of authenticity. The most important types of self-authenticating documents are business records and certified copies of public records.

21 CH1 8625069v.1

SELECTED RULES OF EVIDENCE

General Provisions

Rule 102. Purpose and Construction.

These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.

Rule 104. Preliminary Questions.

(a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.

(b) Relevancy conditioned on fact. When the relevance of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

(c) Hearing of jury. Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests.

(d) Testimony by accused. The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case.

(e) Weight and credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.

Rule 105. Limited Admissibility.

When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.

Rule 106. Remainder of or Related Writings or Recorded Statements.

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

Relevancy and Its Limits

Rule 401. Definition of “Relevant Evidence.”

22 CH1 8625069v.1

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Rule 402. Relevant Evidence Generally Admissible: Irrelevant Evidence Inadmissible.

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time.

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Rule 404. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes.

(a) Character evidence generally. Evidence of a person’s character or trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1) Character of accused. In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution;

(2) Character of alleged victim. In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor;

(3) Character of witness. Evidence of the character of a witness, as provided in rules 607, 608 and 609.

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in

23 CH1 8625069v.1

advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

Rule 405. Methods of Proving Character

(a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

(b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct.

Rule 406. Habit; Routine Practice.

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

Witnesses

Rule 602. Lack of Personal Knowledge.

A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness’s own testimony. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.

Rule 603. Oath or Affirmation.

Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’s conscience and impress the witness’s mind with the duty to do so.

Rule 607. Who May Impeach.

The credibility of a witness may be attacked by any party, including the party calling the witness.

Rule 608. Evidence of Character and Conduct of Witness.

(a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

24 CH1 8625069v.1

(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’s credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the Court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’s character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

(c) The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused’s or the witness’s privilege against self-incrimination when examined with respect to matters which relate only to credibility.

Rule 609. Impeachment by Evidence of Conviction of Crime.

(a) General rule. For the purpose of attacking the character for truthfulness of a witness, (1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and (2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.

(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

(c) Effect of a pardon, annulment, or certificate of rehabilitation. Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

(d) Juvenile adjudications. Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

25 CH1 8625069v.1

(e) Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.

Rule 611. Mode and Order of Interrogation and Presentation.

(a) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time and (3) protect witnesses from harassment or undue embarrassment.

(b) Scope of cross-examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The Court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

(c) Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’s testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

Rule 612. Writing Used to Refresh Memory.

If a witness uses a writing to refresh memory for the purpose of testifying, either (1) while testifying, or (2) before testifying if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce into evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera [in chambers], excise any portions not so related and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.

Rule 613. Prior Statements of Witnesses.

(a) Examining witness concerning prior statement. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.

(b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2).

26 CH1 8625069v.1

Rule 614. Calling and Interrogation of Witnesses by Court.

(a) Calling by court. The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.

(b) Interrogation by court. The court may interrogate witnesses, whether called by itself or by a party.

(c) Objections. Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.

Rule 615. Exclusion of Witnesses.

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause, or (4) a person authorized by statute to be present.

Opinions and Expert Testimony

Rule 701. Opinion Testimony by Lay Witnesses.

If the witness is not testifying as an expert, the witness's testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Rule 702. Testimony by Experts.

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Rule 703. Bases of Opinion Testimony by Experts.

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinion or inferences upon the subject, the facts or data need not be admissible in evidence.

27 CH1 8625069v.1

Rule 704. Opinion on Ultimate Issue.

(a) Except as provided [below], testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

Rule 705. Disclosure of Facts or Data Underlying Expert Opinion.

The expert may testify in terms of opinion or inference and give reasons therefore without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

Hearsay

Rule 801. Definitions.

The following definitions apply under this article:

(a) Statement. A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.

(b) Declarant. A “declarant” is a person who makes a statement.

(c) Hearsay. “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

(d) Statements which are not hearsay. A statement is not hearsay if:

28 CH1 8625069v.1

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person; or

(2) Admission by party-opponent. The statement is offered against a party and is (A) the party’s own statement, in either an individual or representative capacity, or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.

Rule 802. Hearsay Rule.

Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress.

[Excerpts from] Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial.

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

(3) Then existing mental, emotional, or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.

(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness

29 CH1 8625069v.1

to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

(7) Reputation as to character. Reputation of a person’s character among associates or in the community.

(8) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.

[Excerpts from] Rule 804. Hearsay Exceptions; Declarant Unavailable.

(a) Definition of unavailability. “Unavailability as a witness” includes situations in which the declarant:

(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement; or

(2) persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so; or

(3) testifies to a lack of memory of the subject matter of the declarant’s statement; or

(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

(5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance (or in the case of a hearsay exception under subdivision (b)(2), (3) or (4) the declarant’s attendance or testimony) by process or other reasonable means.

30 CH1 8625069v.1

(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

(2) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Rule 805. Hearsay Within Hearsay.

Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.

Rule 807. Residual Exception.

A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.

31 CH1 8625069v.1CH1 3995383v.1