Rule 4. Hearsay

 

"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 expect 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 expect 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 negligence 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

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

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

Ø 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.

Работа в парах. Ответьте на вопросы. Объясните свою позицию в аудитории.

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?

3. Работа в мини-группах. Прочитайте и переведите текст. Разыграйте сцены: а) представления вещественных доказательств; б) способов дискредитации свидетеля или его показаний стороной обвинения(стороной защиты); в) установления профессионализма судебного эксперта.

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