I.    Scope of These Rules

Rule 101: Scope. These rules govern all proceedings in the Ohio Mock Trial program. The only
Rules of evidence to be considered in the competition are those included in these rules.

Rule 102: Objections. An objection not based on these rules shall not be considered by the
court (the Judge).

II.    Relevancy

Rule 201: Relevancy. Only relevant evidence is admissible. Relevant evidence is evidence
(physical or testimonial) that tends to make the existence of a fact which is important to the case
more or less probable than the fact would be without the evidence. However, relevant evidence
may be excluded by the court, if it is unfairly prejudicial may confuse the issues, or is a waste of
time. Evidence that is not relevant is not admissible.

Examples
1.    Relevant evidence:  In a lawsuit by Driver B for personal injuries sustained in a car
accident at an intersection testimony that Driver A ran a red light is relevant because
it tends to prove that driver A was at fault in causing the accident, and fault is an issue
that is important to the case.
2.   Relevant evidence that may be excluded because it is unfairly prejudicial: A
Plaintiff/Plaintiff/Prosecution presents a color picture of himself/herself after an
accident which depicts gruesome, bloody injuries. Although the picture is relevant to
show the existence and nature of the Plaintiff/Prosecution's injuries, it may be found to
be unfairly prejudicial if it is likely to inflame feelings of anger and sympathy to such
an extent that a fair decision is jeopardized. Evidence that is extremely helpful to one
side is not the same as evidence that is unfairly prejudicial.
3.    Relevant evidence that may be excluded because a waste of time: Testimony about
any matter that has already been fully presented through other evidence.
4.  Irrelevant evidence: Testimony that Driver A has donated money to many charities
when the only issue in the case is who caused a car accident.

Rule 202: Character. Evidence about the character of a party or witness other than his/her character for truthfulness or untruthfulness may not be introduced, Evidence about the character of a party for truthfulness or untruthfulness is only admissible if the party testifies,

Examples
1.     Inadmissible character evidence:  Testimony that a student has a reputation as a heavy
drinker.
2.   Admissible character evidence:  Testimony by witness B that witness A has told lies on
several occasions.

Witness Examination
A.  Direct Examination (attorney questions witness s/he has called to the stand)

Rule 301: Direct Examination - Form of Questions. Witnesses should be asked neutral
questions and may not be asked leading questions on direct examination. Neutral questions are
open-ended questions that do not suggest the answer and that usually invite the witness to give a
narrative response. A leading question is one that suggests to the witness the answer desired by the examining attorney and often suggests a "yes" or "no" answer.

Examples
Proper direct examination questions:
a.    What did you see?
b.    What happened next?
c.     Were you speeding?

2.   Leading questions (not permitted on direct):
a.    Isn't it true that you saw the defendant run into the alley?
b.    After you saw the defendant run into the alley, you called the police, didn't you?

Rule 302: Scope of Direct Examination. On direct examination an attorney may inquire as
to any relevant facts of which the witness has 1st-hand, personal knowledge.

Rule 303: Refreshing Recollection. If a witness is unable to recall information contained in
his/her witness statement or contradicts the witness statement, the
attorney calling the witness may use the witness statement to help the witness remember.

Example
Witness cannot recall what happened after the defendant ran into the alley or contradicts witness
statement on this point:
1.    Mr./Ms. Witness, do you recall giving a deposition in this case?
2.    Your Honor, may I approach the witness? (Permission is granted.) I’d like to show
you a portion of the summary of your deposition, and ask you to review the first two
paragraphs on page three.
3.   Having had an opportunity to review your statement, do you now recall what
happened after the defendant ran into the alley?

B.   Cross Examination (attorney questions witness called by other side following the direct
examination)

Rule 304: Cross-Examination - Form of Questions. An attorney should usually, if not
always, ask leading questions when cross-examining the opponent's witnesses. open-ended
questions tending to evoke a narrative answer, such as "why" or "explain" should be
avoided. Leading questions are not permitted on direct examination because it is thought
to be unfair for an attorney to suggest answers to a witness whose testimony is already
considered to favor that attorney's side of the case. Leading questions are encouraged on
cross-examination because witnesses called by the opposing side may be reluctant to admit
facts that favor the cross-examining attorney's side of the case.)_However, it is not a
violation of this rule to ask a non-leading question on cross-examination.

Examples

Good leading cross examination question:
Isn't it true that it was almost completely dark outside when you say you saw the
defendant run into the alley? (This is a good question where the witness' statement
says it was "almost completely dark" but a potentially dangerous question when the
statement says it was "getting pretty dark out. "

2.   Poor cross-examination question:
How dark was it outside when you saw the defendant run into the alley? (The witness
could answer, "It wasn't completely dark I could see him."

Rule 305: Scope of Cross-Examination. The scope of cross examination shall not be
limited to the scope of the direct examination but may inquire into any relevant facts or
matters contained in the witness' statement, including all reasonable
inferences that can be drawn from those facts and matters, and may inquire into any
omissions from the witness statement that are otherwise material and admissible.

Rule 306: Impeachment. On cross-examination the cross examining attorney may
impeach the witness. Impeachment is a cross-examination technique used to demonstrate
that the witness should not be believed. Impeachment is accomplished by asking questions
which demonstrate either (1) that the witness has now changed his/her story from
statements or testimony given by the witness prior to the trial- (2) that the witness' trial
testimony should not be believed because the witness is a dishonest and untruthful person.
Impeachment differs from the refreshing recollection technique. Refreshing recollection is
used during direct examination to steer a favorable, but forgetful  witness back onto the
beaten path. Impeachment is a cross-examination technique used to discredit a witness'
testimony.

Example
Impeachment with prior inconsistent statement:
Attorney:    Mr. Jones, you testified on direct that you saw the two cars before they
actually collided, correct?
Witness:     Yes.
Attorney:    You gave a deposition in this case a few months ago, correct?
Witness:     Yes.
Attorney:    Before you gave that deposition you were sworn by the court reporter
to tell the truth, weren't you?
Witness:     Yes.
Attorney:    Mr. Jones, in your deposition, you testified that the first thing that drew
your attention to the collision was when you heard a loud crash, isn't
that true?
Witness:     I don't remember ever saying that.
Attorney:     Your Honor, may I approach the witness?  (permission is granted.)
Mr. Jones, I’m handing you the summary of your deposition and I’ll ask
You to read along as I read the second full paragraph on page two-“ I
heard a loud crash and I looked over and saw that the two cars had just
collided. This was the first time I actually saw the two cars." Did I
read that correctly?
Witness: Yes
Attorney: Thank you Mr. Jones.

2.  Impeachment with prior dishonest conduct:
Attorney:  Student X, isn't it true that last fall you were suspended from school for
three days for cheating on a test?
Witness:  Yes.

C.   Redirect Examination (questions asked after the cross-examination, by the attorney who
called the witness)

Rule 308: Redirect Examination. After cross-examination, additional questions may be
asked by the direct examining attorney, but such questions are limited to matters raised by
the opposing attorney on cross-examination. Just as on direct examination, leading
questions are not permitted on direct.

Comment: If the credibility or reputation for truthfulness of the witness has been attacked
successfully on cross-examination, the attorney whose witness has been damaged may wish
to ask questions on redirect which will allow that witness to "rehabilitate" himself/herself
(save the witness' truth-telling image). Redirect examination may also be used to strengthen
a positive fact that was weakened by the cross-examination. Redirect examination is not
required. A good rule to follow is: if it isn't broken, don't fix it:

Examples
Cross-Examination of physician called by Plaintiff/Prosecution in murder case:
Attorney:    Doctor, you testified on direct that the decedent died of arsenic
poisoning correct?
Witness:     Yes.
Attorney:  Isn't it true that you have a deposition in which you testified that you
did not know the cause of death?
Witness:  Yes, that's true.

Redirect
Attorney:Doctor, why did you testify in your deposition that you did not know
the decedent's cause of death?

Witness:  I had not yet received all of the test results which allowed me to
conclude that the decedent died of arsenic poisoning.

2.    Cross Examination:
Attorney:Doctor, isn't it true that the result of test X points away from a finding
of arsenic poisoning?
Witness: Yes.

Redirect
Attorney: Doctor, why did you conclude that the decedent died of arsenic
poisoning even though test X pointed away from arsenic poisoning?

Witness:  Because all of the other test results so overwhelmingly pointed toward
arsenic poisoning and because test X isn't always reliable.

Comment~ Neither one of these redirect examinations should have been conducted unless
the attorney had a good idea of what the witness' response would be. As a general rule, it is
not advisable to ask a question if you do not know what the answer will be.

D.  Recross-Examination (questions asked by the cross-examining attorney after redirect)

Rule 309: Recross-Examination. After redirect, additional questions may be asked by
the cross-examining attorney, but such questions are limited to matters raised on redirect
examination.  Recross is not mandatory and should not be used simply to repeat points that have already been made.

Example
Assume the cross-examination and redirect examination set forth in the example under

Rule 308 above have occurred. A good recross-examination would be the following:
Attorney:Doctor, isn't it true that when you gave your deposition you had
received all of the test results except the result of text X?
Witness:Yes, that's true.

Comment~ The cross-examining attorney would then argue in closing argument that the
doctor testified in his deposition that he did not know the cause of death at the time of his
deposition and that the only test result received after the deposition was text Y which
pointed away fiom arsenic poisoning.

IV.  Hearsay:

A  The Rule

Rule 401: Hearsay: Any evidence of a statement made out of court by someone other
than the witness testifying which is offered to prove the truth of the matter asserted in the
out-of-court statement is hearsay and is not admissible

Example
Witness X testifies that "Mrs. Smith said that the decedent's wife had a bottle of
arsenic in her medicine cabinet." This testimony is inadmissible if offered to prove that
the decedent's wife had a bottle of arsenic in her medicine cabinet, since it is being
offered to prove the truth of the matter asserted in the out-of-court statement by Mrs.
Smith. If however, the testimony is offered to prove that Mrs. Smith can speak
English, then the testimony is not hearsay because it is not offered to prove the truth
of the matter asserted in the out-of-court statement. However, the testimony is only
admissible if Mrs. Smith's ability to speak English is relevant to the case.

Comment: Why should the complicated and confusing condition be added that the out-
of-court statement is only hearsay when "offered for the truth of the matter asserted"?
The answer is that hearsay is considered untrustworthy because the speaker of the out-
of-court statement has not been placed under oath and cannot be cross-examined
concerning the statement or concerning his/her credibility. In the previous example,
Mrs. Smith cannot be cross-examined concerning her statement that the decedent's wife
had a bottle of arsenic in her medicine cabinet, since witness X, and not Mrs. Smith has
been called to give this testimony. However, witness X has been placed under oath and
can be cross-examined about whether Mrs. Smith actually made this statement, thus
demonstrating that she could speak English. When offered to prove that Mrs. Smith
could speak Engiish, witness X's testimony about her out-of-court statement is not
hearsay.

B,  Exceptions to Hearsay Rule

Rule 402: Hearsay Exceptions. The following, which would otherwise fall within the
definition of hearsay, are not excluded from evidence by the hearsay rule:
Admission Against Interest. Hearsay is admissible if the out-of-court statement was
made by a party in the case and contains evidence which goes against that party's
side. Admissions against interest are permitted because they are thought to be
more trustworthy than other hearsay, since people generally do not make
statements that are against their own interest, unless they are true.

Examples
1.    Witness X testifies that the defendant said she killed her husband.
2.   Witness X testifies that after the accident, the (Plaintiff/ Prosecution) said he
ran the red light.

Excited Utterance. A statement relating to a startling event or condition made out of
court by someone other than the witness testifying, which statement was made
under the stress of excitement caused by the event or condition.

Example
1.    Witness X testifies that Mrs. Smith opened the medicine cabinet and said,
"Oh my God!"

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
inciuding a statement of memory or belief to prove the fact remembered or believed.

Example
1.    If statement of mind is directly at issue. In a case where the decedent's family
is trying to collect life insurance for a fatal gunshot wound, the insurance
company claims it is suicide (which is not covered). The family says it was
an accident (which is covered). Witness X testifies that a day before the
shooting, the decedent said, "I'm so depressed, I could just die."

2. If physical condition is directly at issue. In an abuse case against the father, the preschool teacher testifies the 3 year old girl (alleged victim) said to her in school, "I can't sit down, daddy
whipped me and it hurts too bad."

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 unless circumstances indicate a lack of trustworthiness.

Example
In a case involving a car accident where the defendant allegedly was speeding,
Witness X testifies that on the date of the accident moments before the accident
occurred, Mrs. Smith (now deceased), while looking out the window of her house
said, "That car is going much too fast."

Statements for Purposes ofMedical or·Psychological Diagnosis or Treatment. A
statement made to a physician or psychological counselor that assists the physician
or counselor in arriving at a diagnosis or conclusion about the patient's condition
and/or that assists the physician or counselor in prescribing a course of treatment
for the patient.

Example
Patient tells physician that he has had stomach pain for three days. The
physician may testify that this is what the patient said.

V.   Opinion Testimony

Rule 501: Opinion Testimony by Non-Experts.
For mock trial purposes, most witnesses are non-experts. If a witness is not testifying as an expert, the witness' testimony in the form of opinions is limited to opinions that are rationally based on what the witness saw or heard and that are helpful in explaining the witness' testimony, non-experts, (lay witnesses) are considered qualified to reach certain types of conclusions or opinions based on what they see or hear. Generally, lay witnesses may give opinions about matters which do not require experience or knowledge beyond that of the average lay person. Note,however, that the opinion must be rationally based on what the witness saw or heard and must be helpful in understanding the witness' testimony.

Examples

Witness y a non-expert, may testify that the defendant appeared to be under the influence
of alcohol. However, it must be shown that this opinion is rationally based
on witness X's observations by bringing out the facts underlying the opinion, e.g., the
defendant was stumbling; his breath smelled of alcohol; his speech was slurred. If witness X
thinks the defendant was under the influence because he had a strange look in his eye, then
the opinion should not be permitted because it is not sufficiently rational and has potential
for undue prejudice.

2.   Witness X, a non-expert, may not testify  that in his opinion the decedent died of arsenic
poisoning since this is not a matter that is within the general knowledge of lay persons.
Only an expert, such as a forensic pathologist, is qualified to render such an opinion.

Rule 502: Opinion Testimony by Experts. Only persons who are shown to be experts at trial
may give opinions on questions that require special knowledge beyond that of ordinary lay
persons. An expert must be qualified by the attorney in the party for whom the expert is
testifycing.  This means that before the expert witness can be asked for an expert opinion, the
questioning attorney must bring out the expert's qualifications and experience. This is usually
accomplished by asking the expert himself/herself about his/her background, training and
experience.

Example
Attorney:   Doctor, please tell the jurors about your educational background.
Witness:    I attended Harvard College and Harvard Medical School.
Attorney:Do you practice in any particular area of medicine?
Witness:I am a board-certified forensic pathologist. I have been a forensic pathologist for 28
years.

Physical Evidence

Rule 601: Introduction of Phvsical Evidence.Physical evidence (objects) must be relevant
and authentic (shown to be what they appear to be) in order to be admissible. For mock trial
purposes, all exhibits contained in the case materials have already been stipulated as admissible
evidence and should not be altered to give either side an unfair advantage. This means that both
sides have agreed that all exhibits are admissible. Therefore, it is not neoessary to demonstrate
through a witness' testimony that an exhibit is authentic or an accurate representation nor is it
necessary to seek a ruling from the court that the physical evidence is admissible. Exhibits are generally presented to the court through witness' testimony.

Example
Attorney:Your honor, we have marked this one-page document as Plaintif/Prosecution's Exhibit l (or Defendant's Exhibit A). Let the record reflect that I am showing Plaintiff/Plaintiff/Prosecution's Exhibit 1 (or Defendant's Exhibit A) to opposing counsel.
 (Exhibit is shown to opposing counsel.) Your Honor, may I approach the witness?
The Court: You may.
Attorney:   Witness I am showing you what has been marked as Plaintiff/Prosecution's
Exhibit 1. Do you recognize that exhibit?
Witness:    Yes.
Attorney:   Could you explain for the Court what that is?
Witness:    It's a map of the accident scene. (At this point, the attorney may ask the
witness any additional relevant questions about the exhibit, and then give it to the judge).

VII.   Invention of Facts and Extrapolation (special rules for the Ohio Mock Trial competition)
The object of these rules is to prevent a team from "creating" facts not in the material to gain an
unfair advantage over the opposing team.

Rule 701: Invention of Facts - Direct Examination. On direct examination the witness is
limited to the facts given in the case materials. If the witness goes beyond the facts given (adds
new facts or speculates about facts, the testimony may be objected to by opposing counsel as
"  speculation or as invention of facts outside the case materials. If a witness testifies in
contradiction of a fact given in the witness statement, opposing counsel should impeach witness' testimony during cross-examination. (See also, Competition Instructions, "Testimony of Witnesses-Guidelines. ")

Rule 702: Invention of Facts - Cross-Examination, If on cross-examination a witness is
asked a question the answer to which is not contained in the facts given, the witness may
respond with any answer, so long as it is responsive to the question, does not contain
unnecessary elaboration beyond the scope of the witness statement, and does not contradict the
witness statement. An answer which is unresponsive or unnecessarily elaborate may be
objected to by the cross-examining attorney. An answer which is contrary to the witness
statement may be impeached by the cross-examining attorney. (See also, Competition
Instructions, "Testimony of Witnesses-Guidelines. ")

VIII.   Additional Rules of Evidence

Rule 801: Non-Responsive Answer. A witness' answer is objectionable if it fails to respond
to the question asked.

Example

Attorney:  Isn't it true that you hit student B?
Witness:  Student B hit me first. S/he was asking for it, acting like a jerk and humiliating me in front of all my friends.

Attorney: Your Honor, I move to strike the witness' answer as non-responsive and ask
that s/he be instructed to answer the question asked. (Another option is to
impeach the witness with prior testimony if s/he testified in his/her deposition that s/he hit student B).

Rule 802: Lack of Personal Knowledge. A witness may not testify on any matter of which the
witness has no personal knowledge. Personal knowledge means what the witness did, said, saw,
heard, or otherwise perceived.

Example.  If Witness X did not personally see arsenic in the medicine cabinet of the decedent's
wife, he cannot testify that she had arsenic in her medicine cabinet. (This testimony
would be based on his assumption from other facts, based on speculation or on what
someone else told him and not upon his own personal observations).

IX Procedural Rules

Rule 901: Procedure for Objections.
An attomey may object ifs/he believes that the opposing attorney is attempting to introduce improper evidence or is violating the modified rules of evidence.
The attorney wishing to object should standup and object at the time of the claimed
violation. The attorney should state the reason for the objection. It is not necessary to cite by
rule number the specific rule of evidence that has been violated. (Note: Only the attorney who
questions a witness may object to the questions posed to that witness by opposing counsel.) The
attorney who asked the question may then make a statement about why the question is proper.
The judge will then decide whether a question or answer must be discarded because it has
violated a modified rule of evidence (objection sustained), or whether to allow the question or
answer to remain in the trial record (objection overruled). Objections should be made as soon as
possibie; however, an attorney is allowed to finish his/her question before an objection is made.
Any objection that is not made at the time of the claimed violation is waived. When an objection
has been sustained, the attorney that asked the question may attempt to rephrase the question.
Judges may make rulings that seem wrong to you. Also, different judges may rule differently on
the same objection. Always accept thejudge's ruling graciously and courteously. Do not argue
the point further after a ruling has been made.

The following are examples of common objections. (This is not a complete list. Any objection
properly based on these modified rules of evidence is permitted):
A.  Irrelevant evidence "Objection This testimony is irrelevant."
B.  Irrelevent evidence that should be excIuded: "Objection. This evidence is unfairly
prejudicial (or a waste of time) and should be excluded because ...
C.  Leading question: "Objection. Counsel is leading the witness." remember, leading is
only objectionable when done on direct or redirect examination.)
D.  Improper character testimony "Objection. This is testimony about character that does
not relate to truthfulness or untruthfulness."
E. Beyond the scope of cross or redirect "Objection. Counsel is asking the witness about
matters that were not raised during the cross or redirect examination."
F.   Hearsay "Objection. Counsel's question calls for hearsay." If a hearsay response could
not be anticipated from the question, or if a hearsay response is given before the attorney
has a chance to object, the attorney should say, "I ask that the witness' answer be stricken
from the record on the basis of hearsay.
G.  Improper opinion "Objection. Counsel is asking the witness to give an expert opinion,
and this witness has not been qualified as an expert." OR: "Objection. Counsel's question
calls for an opinion which would not be helpfull to understanding the witness testimony (or
which is not rationally based upon what the witness perceived).
H.  Invention of facts "Your Honor, we object on the basis that opposing counsel's question
seeks evidence that is outside the record in this case. Witness X has never given testimony
in this case concerning .. ." If the witness gives testimony on direct that is beyond the
scope of the materials, the cross-examining attorney should say "move to strike the
testimony concerning ... as beyond the scope of the case materials."
I.      Lack of personal knowledge  "Objection.  The witness has no personal knowledge that
would allow him to answer this question."

Rule 902: Motions to Dismiss. Motions for directed verdict or dismissal of the case are not
permitted.

Rule 903: Condensed Trial Sequence and Time Guidelines.
A   Plaintiff/Prosecution's Opening Statement (4 minutes maximum)
B.  Defendant's Opening Statement (4 minutes maximum)
C.  Plaintiff/Prosecution's Direct Examination (8 minutes maximum per witness)
      Defendant's Cross-Examination (7 minutes maximum per witness)
D.  Plaintiff/Prosecution's Redirect (optional) (2 minutes maximum per witness)
      Defendant's Recross (optional) (2 minutes maximum per witness)
E.  Defendant's Direct Examination (8 minutes maximum per witness)
      Plaintiff/Prosecution's Cross-Examination (7 minutes maximum per witness)
F.   Defendant's Redirect (optional) (2 minutes maximum per witness)
      Plaintiff/Prosecution's Recross (optional) (2 minutes maximum per witness)
G.  Preparation for Closin Argument (2 minutes maximum)
H.  Plaintiff/Prosecution's Closing Argument (5 minutes maximum)
I.    Defendant's Closing Argument (5 minutes maximum)
J.    Plaintiff/Prosecution's Rebuttal (optional) (2 minutes maximum in addition to the 5 minutes)