Материал: Uchebnik_dlya_sud_expertov

"Hearsay" is something the witness has heard someone said outside the courtroom. Also, any written statement made outside the courtroom is hearsay. Hearsay evidence is objectionable. However, there are exceptions to the hearsay rule for purposes of the mock trial. If an exception applies, the court will allow hearsay evidence to be introduced. In a mock trial, hearsay evidence is allowed when the witness is repeating a statement made directly to the witness by one of the witnesses in the case. Hearsay is also allowed if one of the witnesses is repeating a statement made by an individual who is no longer alive. Note that this exception to the hearsay rule does not extend to witness testimony about what another person heard a witness said. This is "double hearsay."

Example: “Mary, the plaintiff, told me that Harry, the defendant, was drunk the night of the accident”.

Objection: "Objection, Your Honour, this is double hearsay."

Response: "Your Honour, since Harry is the defendant, the witness can testify to a statement he heard Harry made."

Rule 5. Firsthand Knowledge

Witnesses must have directly seen, heard, or experienced whatever is they are testifying about. A lack of firsthand knowledge is objectionable.

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

Objection: "Your Honour, the witness has no firsthand knowledge of Harry’s condition that

night."

Response: "The witness is just generally describing her usual experience with Harry."

Rule 6. Opinions

Unless a witness is qualified as an expert in the appropriate field, such as medicine or ballistics, the witness may not give an opinion about matters relating to that field. Opinions are objectionable unless given by an expert qualified in the appropriate field. As an exception to this rule, a lay witness may give an opinion based on common experience.

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

Objection: "Objection, Your Honour, the witness is giving an opinion."

Response: "Your Honour, the witness may answer the question because ordinary persons can judge whether a cast was put on correctly."

Rule 7. Opinions on the Ultimate Issue

Witnesses, including experts, cannot give opinions on the ultimate issue of the case: the guilt or innocence of the defendant or the liability of the parties. These are matters for the judge and the jury to decide. Opinions on the ultimate issue in a case are objectionable.

Example: "I believe that Mr. Smith was negligent in driving too fast in this case." Objection: "Your Honour, the witness is giving an opinion on the ultimate issue - the negli-

gence of Mr. Smith."

Response: "The witness is commenting that the driver was speeding. This is not the ultimate issue in this case."

Rule 8. Additional Rules of Evidence

Objections during the testimony of a witness must be made only by the direct examining and cross-examining attorney for that witness.

Cross-examination is not limited to the scope of direct questioning.

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A shot redirect examination, limited to no more than two questions, will be allowed following cross-examination, if an attorney desires. Questions on redirection are limited to the scope of the cross-examination.

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a)Do the examples help you to understand the rules better?

b)What can you say about the responses? Do you think they are justifiable? Can they help to overrule the objection?

c)What response could you give in each situation?

d)Could you give your own examples to illustrate each case?

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RULES OF CRIMINAL PROCEDURE

Procedure 1. Introduction of Documents or Physical Evidence

Sometimes the parties wish to offer as evidence letters, affidavits, contracts, or other documents, or even physical evidence such as a murder weapon, broken consumer goods, etc. Special procedures must be followed before these items can be used in trial.

Step 1: Introducing the Item for Identification

a.An attorney says to the judge, "Your Honour, I wish to have this (letter, document, item) marked for identification as (Plaintiff’s Exhibit A, Defence’s Exhibit A, etc.)."

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

c.The attorney shows the item to the opposing counsel.

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

Witness: "Yes."

Attorney: "Can you, please, identify this item?"

Witness: "This is a letter I wrote to John Doe on September 1." (Or witness gives other appropriate identification.)

e. The attorney may then proceed to ask the witness question about the document or item.

Step 2. Moving the Document or Item into Evidence.

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

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

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

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

Procedure 2. Impeachment

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On cross - examination, an attorney wants to show that the witness should not be believed. This is best accomplished through a process called "impeachment", which may use one of the following tactics: (1) asking questions about prior conduct of the witness that makes the witness’ truthfulness doubtful (e.g., "Isn’t it true that you once lost a job because you falsified expense reports?"); (2) asking about evidence of certain types of criminal convictions (e.g., "You were convicted of shoplifting, weren’t you?"); or (3) showing that the witness has contradicted a prior statement, particularly one made by the witness in an affidavit. Witness statements in the Mock Trials Materials are considered to be affidavits.

In order to impeach the witness by comparing information in the affidavit to the witness’ testimony, attorneys should use this procedure:

Step 1. Repeat the statement the witness made on direct or cross - examination that contradicts the affidavit.

Example: "Now, Mrs. Burke, on direct examination you were out of town on the night in question, didn’t you?" (Witness responds, "Yes.")

Step 2. Introduce the affidavit for identification, using the procedure described in Proce-

dure 1.

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

Example: "All right, Mrs. Burke, will you read paragraph three?" (Witness reads, "Harry and I decide to stay in town and go to the theatre.")

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

Example: "So, Mrs. Burke, you testified that you were out of town on the night in question, didn’t you? " "Yes." "Yet, in your affidavit you said you were in town, didn’t you?" "Yes."

Procedure 3. Qualifying an Expert

Only a witness who is qualified as an expert may give an opinion as to scientific, technical, or other specialized knowledge in the area of his/her expertise. (Note: A lay witness may give an opinion about something related to one’s common experience (see Rule 6).) Expert cannot give opinions on the ultimate issue of the case.

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

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

Q: Dr. Jones, what is your occupation?

A: I am a heart surgeon. I am Chief of Staff at the Howard University Medical Center. Q: What medical school did you attend?

A: I graduated from Georgetown Medical School in 1978. Q: Where did you do your internship?

A: I did a two year internship in cardiology at John Hopkins University from 1978 - 1980. Q: Did you afterwards specialize in any particular field of medicine?

A: Yes, I specialized in heart attack treatment and heart surgery. Q: Have you published any articles or books?

A: I wrote a chapter in a medical text on heart surgery procedures after heart attacks.

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Q: Describe the chapter.

A: I set out the steps for identifying heart attacks and doing open heart surgery. Q: What professional licenses do you have?

A: I am certified by the D.C. Board of Medical Examiners to practice medicine in D.C.

Attorney #1: Your Honour, I ask that Dr. Jones be qualified as an expert in the field of medicine. Judge: Any objection?

Attorney #2: We object. No foundation has been laid regarding Dr. Jones’s ability to render an opinion as to all fields of medicine.

Judge: Objection sustained. Dr. Jones’ expertise seems to be limited to certain areas of medicine. Attorney #1: Thank you, your Honour. We ask that Dr. Jones be qualified as an expert in the field

of heart surgery. Judge: Any objection? Attorney #2: No, your Honour.

Judge: Let the record reflect that Dr. Jones is qualified to testify as, an expert in the field of heart surgery.

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

Example: (Dr. Jones has been qualified as an expert on heart surgery.) Q: Dr. Jones, what is your opinion as to Mr. Hart’s cause of death?

A: The patient suffered a massive heart attack caused by clogged arteries.

Q: Dr. Jones, in your opinion was the patient also suffering from a rare lung disease transmitted thought contact with the North American mongoose as the defence contends?

Objection: The witness is testifying outside her area of expertise.

Judge: Sustained. Please, confine your opinion to matters related to care and treatment of the heart. Q: Dr. Jones, in your opinion, how should the patient’s doctors have treated him?

A: They should have recognized that the patient was having a heart attack based on his chest pains, purple face, difficulty breathing, and numbness in his left arm. They should have given him the proper medication and treated him in the emergency room right away.

Q: Who was at fault in this matter?

A: Dr. Smith and General Hospital were definitely negligent.

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

Judge: Sustained.

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CASE

On August 22, 1990, shortly after midnight, Jaeger called 911 from his home and reported that his nineteen-year-old live-in girlfriend, Mary Barndt, had shot herself. When police and paramedics arrived, they found Mary partially clothed and lying in the kitchen. A. 22 caliber pistol was

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