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AMTA Sanctions for Invention of Fact (again)

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  • AMTA Sanctions for Invention of Fact (again)

    AMTA just announced another set of sanctions for invention of fact (18-03-02 Public Sanctions Letter). In summary: a defense team calls Bailey Bell-Leon, who makes several statements that effectively amount to a recantation of Bailey's affidavit. These include statements implying that Kerry Bell-Leon and/or their lawyer encouraged Bailey to lie in Bailey's affidavit.

    Just a few weeks ago, AMTA sanctioned a team for invention of fact (see thread here).

    It seems that AMTA is taking inventions of fact more seriously this season. How do you think this will affect team strategies as ORCS begin - particularly with regards to defense teams that seem to toe the line more frequently than prosecution teams due to the necessity of more creative case theories?

  • #2
    I agree with this one more than the first only because it was directly contradicting the affidavit. I dont have a problem with hostile bailey where they are clearly lying, but I don't think you can outright say, "I lied when I made my affidavit". If someone cites a line and read it and you say, "nope thats not what happened," that is a problem. It is basically just going too far, it means the other side has nothing that they can do to you.

    I think this characterization was clever, but at the end of the day, this is a direct contradiction and a refutation of the affidavit and if we don't follow the affidavits we don't have much to go off of! I know a lot of teams play fast and loose with them, but you can't go against them.
    Last edited by Adevans; March 2nd, 2018, 07:48 PM.

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    • #3
      I competed in the AMTA world for four years in the pre-invention, non-deposition world (Bowman) and in the world after that (Park, Covington/Bancroft, Winter). The sanctioned inventions from this year are easily some of the most egregious inventions I've seen. They undercut the spirit of fair competition. And they're extremely lazy, as both of the inventions have been done by the side that has the easiest job in the world.

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      • #4
        Originally posted by dcphlmock View Post
        I competed in the AMTA world for four years in the pre-invention, non-deposition world (Bowman) and in the world after that (Park, Covington/Bancroft, Winter). The sanctioned inventions from this year are easily some of the most egregious inventions I've seen. They undercut the spirit of fair competition. And they're extremely lazy, as both of the inventions have been done by the side that has the easiest job in the world.
        This is spot-on. When you sign up to compete within AMTA, you know (or should know) the rules. Inventions, especially denying the facts written in your affidavit, isn't just poor trial strategy - it's cheating. I don't understand how anyone could look at a situation like Bailey questioning the integrity of the facts in her affidavit and take issue with this sanction. If it's written there, accept it. Twist the facts, invent here and there if you want, but you're stuck with the basic parameters of what's in the case. If you don't like that and you're too lazy to just follow the rules, find a new activity.

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        • #5
          I actually find this sudden increase in sanctioning disturbing. There are really two questions at stake here: 1) Are inventions of fact against the current AMTA rules, but, also 2) Should they be against the rules?

          The answer to the first question is obviously yes. As a matter of rule enforcement it is hard to fault the Executive Committee for acting as it has in these past two incidents. But I think their willingness to suddenly intervene in these matters should give everyone pause. There is a reason that the only in-trial remedy to invention is cross-examination or impeachment! Why should there be a post-hoc adjudication process as well? I'm surprised that AMTA even wants to take on the onus of playing referee here. Now that there have been two of these sanctions, everyone and their brother is going to be submitting inventions of fact for AMTA to review -- basically every team does it to some extent, it's part and parcel of mock trial. Does AMTA really want to have to deal with that? And as competitors, do we really want someone else, outside of the courtroom, rulings on such matters? If you're not capable of dealing with another team's invention in trial, you need to figure that out but you should keep it in the round.

          Obviously the AMTA rules exist for a reason -- to set the basic terms of engagement for mock trials. Some sort of baseline is clearly necessary. I'm just not sure that deciding, post-hoc, whether an invention of fact occurred in a trial should be part of those rules.

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          • #6
            No Recross Is Necessary I think the reason behind this enforcement is that, in this instance, the ďonly in-trial remedyĒ that you mentioned - impeachment - was rendered entirely ineffective. You canít impeach a witness with his affidavit if heís claiming his affidavit is garbage. Sure, AMTA might see an increase in egregious invention allegations, but thereís nothing to suggest that theyíre going to start sanctioning teams for run-of-the-mill, impeachable inventions. Ideally, teams making said inventions will be penalized by way of scoring if and when the witness is successfully impeached. The prosecution team in this case didnít have the option, so the defense had a leg up because they broke the rules. Not cool.
            Last edited by tedcruz2020; March 3rd, 2018, 03:09 AM.

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            • #7
              This is easily the most cowardly, underhanded, bad-faith move one can pull in mock trial. I totally agree with not enforcing any competition penalties for the previous invention, but outright alleging that your attorneys made you lie in your affidavit completely undercuts the validity of Mock Trial as an exercise. It's a cheap way to avoid bad facts, and you can't impeach on it, since, well what are you going to impeach with? The affidavit that they allege is a lie?
              May I please the court?

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              • #8
                I don't know, I think it's quite possible to effectively demonstrate the ridiculousness of that kind of invention on cross.

                It would go something like this: First, cross them on the bits of the affidavit where Bailey promises to tell the truth and literally says he knows the difference between the truth and a lie. Remind the court that he is 13 years old and isn't Jesse Duran -- i.e., he's not a sociopath and it's unlikely that he could have written 200 lines of pure fabrication. Then make a big deal about how perjury is a federal crime, and how if Bailey really was told by his lawyers to lie, they should be disbarred at the very least. Then proceed with some normal cross questions, since you can now read literally anything into the record from the affidavit since Bailey is claiming the whole thing is a prior contradiction. Get out all the juicy stuff you normally would. Finish with some sort of final question about "were you lying then or are you lying now?" Lastly, in closing, throw out what you have prepared and ad-lib an entire argument around the fact that the defense team conspired in advance to lie under oath, wasted the court's time, damaged the integrity of the judicial process, etc. The whole point is that this is such an egregious offense that AMTA thinks it should merit sanctions -- so, by the same logic, any sane judge should punish that team in round on the ballot, so long as you (as the prosecution) set it up right.

                You just have to call their bluff, if a team tries something as stupid as this. If you know what you're doing they shouldn't be able to get away with it in the round without looking like idiots.

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                • #9
                  Originally posted by No Recross Is Necessary View Post
                  I don't know, I think it's quite possible to effectively demonstrate the ridiculousness of that kind of invention on cross.

                  It would go something like this: First, cross them on the bits of the affidavit where Bailey promises to tell the truth and literally says he knows the difference between the truth and a lie. Remind the court that he is 13 years old and isn't Jesse Duran -- i.e., he's not a sociopath and it's unlikely that he could have written 200 lines of pure fabrication. Then make a big deal about how perjury is a federal crime, and how if Bailey really was told by his lawyers to lie, they should be disbarred at the very least. Then proceed with some normal cross questions, since you can now read literally anything into the record from the affidavit since Bailey is claiming the whole thing is a prior contradiction. Get out all the juicy stuff you normally would. Finish with some sort of final question about "were you lying then or are you lying now?" Lastly, in closing, throw out what you have prepared and ad-lib an entire argument around the fact that the defense team conspired in advance to lie under oath, wasted the court's time, damaged the integrity of the judicial process, etc. The whole point is that this is such an egregious offense that AMTA thinks it should merit sanctions -- so, by the same logic, any sane judge should punish that team in round on the ballot, so long as you (as the prosecution) set it up right.

                  You just have to call their bluff, if a team tries something as stupid as this. If you know what you're doing they shouldn't be able to get away with it in the round without looking like idiots.
                  I think that's actually a pretty interesting evidence question. I don't know if an affidavit qualifies as a "a trial, hearing, or other proceeding or in a deposition." The perjury prong is obviously met, but trials, hearings, and depositions all involve an opportunity to cross, which isn't present when you're just writing an affidavit.

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                  • #10
                    Originally posted by No Recross Is Necessary View Post
                    Then make a big deal about how perjury is a federal crime, and how if Bailey really was told by his lawyers to lie, they should be disbarred at the very least.
                    Umm... I'm pretty sure the implication is that the State's lawyers were the ones who told Bailey to lie, so you'd be arguing for disbarring yourselves. I mean, I really doubt the defense is saying that their own attorneys had Bailey make up seeing Dylan with a gun and so on.

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                    • #11
                      Originally posted by Voir Dire View Post
                      Umm... I'm pretty sure the implication is that the State's lawyers were the ones who told Bailey to lie, so you'd be arguing for disbarring yourselves. I mean, I really doubt the defense is saying that their own attorneys had Bailey make up seeing Dylan with a gun and so on.
                      Ah, haha, you're right -- I wasn't thinking clearly. Good point. This is more of a "hostile witness" type situation then, but it seems to me that AMTA has had this problem in the past. For instance, last year I saw a team run a hostile Perez (P witness) who implied that he was in cahoots with his employer (the defendant, Shaw) and was therefore lying about not discriminating based on age. Or even in State v. Bowman a few years ago, some teams ran a sketchy Hayley Floyd as part of the conspiracy theory that Floyd was behind everything, and had therefore lied in his testimony. These are both slightly different situations, but I sort of admire the creativity that some teams employ to come up with novel case theories. They just have to be prepared to weather the consequences of a tough cross. But they shouldn't, imo, be punished by AMTA for that.

                      So in this situation, my intuition is that the cross of Bailey would have to focus more on the fact that she was subpoenaed. I'm not a lawyer, but I doubt that a subpoena works by having the victim, the state's lawyer, and the victim's child locked in a room together while they come up with an affidavit describing what happened. Surely a third party is present -- either from the court itself (which issues the subpoena) or maybe even from the defense, as in a deposition. So Bailey's claim must therefore be that he and his mom planned everything out before going to court to give the affidavit, which means that he wrote 200 lines of coherent bullshit from memory, got it notarized by the court, and didn't blink an eye. Again, he's 13 -- it sounds ridiculous. The cross examiner just has to draw out the logical absurdities of Bailey's invention.

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                      • #12
                        I think all of these responses ignore that oftentimes judges are at a complete loss for what is/isn't supposed to happen. Things like this aren't supposed to happen. The rules say they aren't supposed to happen. There is no reason egregious violations of the rules should be remedied through in-trial procedure, especially given the fact that judges often do not have mock trial experience. For every judge who says that you are better than actual attorneys, there are judges who also think shitshows like that are permissible because they're reflective of the real world. Witnesses do oftentimes recant their testimony on the stand. People often provide much more complicated testimonies than the six-page affidavits we often get for mock trial witnesses. They get some details wrong, which often leads to them being shown their prior statement. It's why there are judges who can manage to look past the cleanest impeachments. None of that is supposed to happen here -- and we should be concerned about creating incentives structures that reward teams that take gross liberties depending on whether the people scoring them know the rules.

                        Something that's stuck with me, from the first sanction, is that if it was Seton Hall that committed the violation, they lost a ballot, on the defense, by 22 points, while picking up the other judge by 6. Losing by that wide a margin on the side of the case favored 2-to-1 at some tournaments makes me think one judge realized there were things happening that shouldn'tve and corrected their scores accordingly, and the other didn't.
                        Last edited by dcphlmock; March 5th, 2018, 10:27 AM.

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                        • #13
                          These inventions arenít ďcreative case theories.Ē They are against the rules. Itís not that other teams didnít/couldnít think of the inventions. Itís that other teams choose not to do them because they choose not to cheat. When teams choose to invent, especially something like recanting the affidavit, they gain an advantage that had nothing to do with their skill at mock trial but entirely with to do with their willingness to cheat.

                          Iím glad AMTA sanctioned teams for these inventions. Mock trial isnít fair unless the rules are enforced.

                          If you want to say that inventions shouldnít be against the rules, that might be different. I think most inventions can be handled with impeachments and so maybe AMTA could just let teams invent and get called out. But thatís not true of all inventions. The two sanctions AMTA issued were after teams invented something that was designed to get around impeachments. Also, no one intentionally invents something thinking ďHey, This is ok because the other team will totally be able to impeach me.Ē They think they will get around the impeachment. Some people are better at inventing than others, but itís all designed to get an advantage that other teams wonít be able to call out. Thatís why we need AMTA to step in on occasion like they did this year.

                          I hope these sanctions reduce the amount of inventing in AMTA. Itís gotten out of hand. Now that people know there are consequences, maybe they will think twice about breaking the rules.

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                          • #14
                            The reason these two sanctions are so worrisome to me is not because of these specific sanctions themselves. I, and seemingly most of us, agree that in both cases the inventions went too far. But what frightens me is that it's unclear at what point my and my team's perception of what's "too far" will differ from AMTA's perception. The line between what AMTA considers blatant cheating and the sort of inventions that, for example, have taken Yale to the past few national championships is a shockingly thin one. So far, I think I understand what has made these inventions cross that line, but I'm terrified that at some point something I consider to be fine will actually be sanctionable and my team will suddenly be barred from competition with no warning.

                            I think a witness saying "I lied in my affidavit" is against both the rules and spirit of mock trial. I think a witness implying they lied in their affidavit (through tone or established bias, without contradicting the words on the page) is brilliant mock trial. I don't know if AMTA agrees, and I don't know how to clarify.

                            The way the last few cases have been structured has really pushed teams to try creative/unpredictable theories with questionable evidentiary backing. And while the rules for defendant invention have obviously been an entirely different thing in the last few years, these sort of theories by nature require some creative interpretations of statements if you don't want your entire story to rest on the word of your defendant. Personally, I've absolutely loved the direction this has taken mock, because it's made every trial unique and creative in a way they weren't five years ago. I'm just wondering if the sanctions are isolated incidents or if AMTA is trying to full-on reverse this trend.

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                            • #15
                              I absolutely agree with kmcf8 's post. Since these sanctions have been released, my team and I have found ourselves questioning at every turn what exactly is a reasonable extrapolation based on the facts given to us and what crosses the line in preparation for ORCS. It is obviously a case by case basis depending on all circumstances of what is sanctionable, which is why AMTA probably hasn't released "cut and dry" information on where that line is and isn't. But that makes things sticky. I have loved the freedom some of these past couple of cases have given us to create new and creative defense theories. There has been an emergence of teams coming up with completely new facts, forcing many teams to follow suit without knowing what the line actually is. It has been an adapt or die scenario where facts have to be invented to win ballots and make rounds competitive and exciting. I love that, it helps distinguish the great teams from the spectacular ones. Hopefully all this won't deter teams from continuing to be creative but will cause everyone to think twice and ask themselves if what they are doing is in the spirit of the competition and follows the rules as written.

                              And to the other point made in the post, I agree that there is definitely a distinction between implying you might be lying (hostile witness style e.g.: Haley Floyd) and overtly saying you are lying without any basis or reasonable inference. Sure, Bailey says s/he didn't tell Kerry about the affair in exchange for concert tickets (which isn't really lying per say), but that is leaps and bounds from answering yes to having lied for Kerry before. I would hope that AMTA is fine with the former, nuanced approach but is trying to prevent inventions that completely fly in the face of mock trial as an activity and undermine basic tenants of the game.

                              Clearly these sanctioned teams have been getting bids (at least that was my understanding from the reading of the memos). Expecting a team who might be inexperienced or even completely new to come up with an entire method of reviving the other team's witness on cross examination at a moment's notice is unfair at best. It's much easier for all of us to look back on what happened and reflect on what could be done versus coming up with something effective in the heat of the moment. That's on a completely different level then the type of thinking on our feet we do during objections, in speeches, and any other parts of the trial. It's disappointing that there is no infallible in-round remedy to prevent these teams from gaining an unfair advantage through these inventions. Unfortunately I think that all AMTA can do is address it after the fact and send a message to teams that it won't be tolerated moving forward.

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