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A Normative Discussion on Invention of Fact

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  • A Normative Discussion on Invention of Fact

    Elizabeth Bays has posted a lengthy response to AMTA's sanction of her and her program. I have not been around the community in a while nor am I familiar with the facts of the NCT case, so I will leave the specific discussion about those specific sanctions to other threads. But I thought it would be interesting to have a normative discussion about the standard for an improper invention of fact - what it was, what it currently is, and what it perhaps should be.[1]

    AMTA currently describes a "reasonable inference" as such: "AMTA notes that a reasonable inference is not a conclusion that a person could draw from an affidavit, but a conclusion that a reasonable person would draw." (Yale Sanction Letter, page 1). Inferences outside of this are considered improper inventions. However, it does not appear the rule has ever been enforced outside of in-round impeachments until 2018. [2]

    At the time that I competed in AMTA (early 2010s), there had never (so far as I can recall being told or hearing about) a team sanctioned for invention of fact (the Sanctions Page would also support this). I had come from a state where high school mock trial DID have an explicit Rule of Evidence for "Unfair Extrapolation" AKA improper invention, which we were allowed to deploy in the round and which would be ruled on by the presiding judge. I remember being surprised that this was not a thing in the AMTA world, but I quickly got used to it and accepted that impeachment was the remedy for invention of fact.

    My college team essentially operated under the assumption that "improper invention" wasn't really a rule other than if you strayed too far from the affidavit, you would be impeached and lose points. I recall competing against teams that had some quite extravagant inventions and coming up with some fairly significant inventions ourselves. In the Danny Dawson case, many Defense Romans (a crash reconstruction expert) invented nearly out of whole cloth entire direct examinations about the vehicle's trajectory of departure based on one line in the expert report about the vehicle's tire tracks. We also relied on this, but it failed spectacularly when our expert was successfully impeached at nationals by a sharp competitor who made his cross about Roman's failure to document any of this analysis.

    Another example: in the Rachterworld case, we encountered a team who had the ride operator draw a map of the interior of the machine on a whiteboard. The map was entirely invented, and greatly benefited their case (I believe it was defense) by making it appear impossible that the defendant had been able to time his activation of the ride to aid in his co-conspirator's escape. This was pretty frustrating as the ride was never described in the case at all, but my thoughts consisted mostly of "dang, we should have thought of that and had an impeachment ready" and "this case could have been written better". Filing a complaint with AMTA did not cross my mind.

    It seems to me that, under the rule as applied since 2018, AMTA is very likely to be called upon to judge all kinds of complaints about inventions. If inferences are only allowed when "reasonable" rather than just when they are plausible, a huge amount of the stuff we did just a few years ago is totally impermissible and when impeachment doesn't work, teams now can call upon AMTA to investigate and sanction it. Perhaps this reigning in is necessary - I find myself struggling to disagree with the logic AMTA articulates in the 2018 sanction memos, as both instances seem to be substantial inventions of fact which cannot be remedied by impeachment. It does seem like mock trial needs a certain level of fairness, and things like inventions based on non-controllable factors (such as the race or gender of witnesses) or total departures from the fact pattern (recanting an affidavit) should be sanctionable. But it does also seem strange to me that such a substantial change in the how the invention rule is enforced has taken place over the last two years, and I think it's worth discussing how and why the application of the rule changed, and what it means going forward.

    [1] None of this post should be interpreted as a defense of Yale. I'm only seeking a discussion on the broader rule.

    [2] Perhaps there are some veterans on the board who know better and can set me straight.

  • #2
    I think AMTA should clarify more precisely how they are interpreting 8.9(4)(c). The rule as stated, especially on "reasonable inference" is quite unclear. The rule is clear that facts need to be inferrable from the set of facts in the materials, and not just a non-contradictory statement, but exactly what counts as a "conclusion that a reasonable person would draw" is unclear.

    The February 27 CRC letter does little to clarify this point. It claims that the fact would have to logically flow from the affidavit to a reasonable and objective person. However, this hardly clarifies the point. The two examples they provide are (under analysis) also more confusing than helpful:

    Example 1 (permitted inference): "if an affidavit said, “it had been raining all day and it was obvious that Andy had been caught in the rain,” it would be a reasonable inference that Andy’s hair, person, and clothing were wet and that Andy’s makeup was smeared."

    From this affidavit, we know two things:
    1. It was raining the entire day
    2. Some observation by the witness led them to conclude that Andy was caught in the rain

    However, without any in-affidavit information on what could allow someone to conclude Andy was caught in the rain, we actually cannot strictly infer that Andy was wet or had smeared makeup (I know I'm being pedantic, but this is MT, pedantry is what we do).

    So, it would seem that AMTA is allowing the fact to be inferred, not only from the affidavit itself, but also from any general knowledge or understanding that a reasonable and objective person would possess. In that case, we could add the premise to the above example that wet hair, clothing, or smeared makeup are a reasonable basis for thinking someone was caught in the rain. A reasonable person, upon reading the affidavit and applying their personal understanding and knowledge to the facts could possibly conclude Andy had wet hair, making the fact reasonably inferrable. So, based on my understanding it seems we can summarize the criteria for reasonableness from this example as 'a fact that an objective, reasonable reader of the affidavit could possibly assume from the facts of the affidavit given the general knowledge or understanding such a reasonable person is likely to possess'.

    Example 2 (impermissible inference): "It would likely not be a reasonable inference from that line in the affidavit that the witness saw Andy holding an umbrella."

    This is where I get confused. Based on my understanding of the first example, this should be permitted. A reasonable and objective person would also think that someone holding an umbrella is a reasonable basis for concluding they were caught in the rain. Why then is it permitted to infer that the witness saw Andy was wet and had smeared makeup (from no other information than it was raining and something allowed the witness to conclude Andy was caught it in), but impermissible to infer that the witness saw Andy was holding an umbrella? Both are inferring what a witness could have observed but did not state in the affidavit, and both are based solely on the statements in the affidavit and on the general understanding of the reader.

    One could argue that the first example does not invent any object not mentioned in the affidavit, whereas the second assumes the existence of an umbrella. However, this is actually not true. Nowhere in the "affidavit" did it mention Andy wore any makeup. Why would makeup be more inferrable than an umbrella?

    The NCT Final Round sanction letter does little to clarify. AMTA claims in the letter "that a reasonable inference is not a conclusion that a person could draw from an affidavit, but a conclusion that a reasonable person would draw."

    However, no clarification on the distinction between "could" and "would" is provided. No two people are identical, and no particular reasonable person will necessarily come to a given conclusion given an affidavit.

    Someone could infer that Andy was wet and had smeared makeup, but would they necessarily do so? No. They also could (but again, not necessarily would) infer that the witness saw Andy with an umbrella, and that is why the witness wrote what they did in the affidavit. A third reasonable person could infer that the witness heard Andy talking about the rain, and that is why they thought Andy was caught in it. We can talk about what it is possible for a reasonable person to infer, but it is impossible to know what a hypothetical "reasonable" person would necessarily infer.

    Unfortunately AMTA has been very opaque regarding these sanctions these years, and the reasons behind them. Officially, they haven't even publicly released any statement on what inventions were sanctioned in the 2019 NCT final round or why they violated the rules. With vague and confusing statements being released, we are simply left to guess what AMTA is thinking. I believe that further clarifications, and a more precise and objectively applicable definition of what it means to be reasonably inferrable is necessary, to avoid any further sanctions.

    Comment


    • #3
      I really only show up on these boards to be a stickler about invention, but I agree with the thrust of the above: the umbrella example is terrible and poorly thought out. There is no basis in the affidavit for inferring that Andy was wearing makeup and, even if there was, it is questionable if there is enough to say that the reasonable person would infer that she was so wet that it had affected her makeup.

      The example is also useless because to be "caught" in the rain means to be surprised by rain, so the term, almost by definition, excludes the possibility of an umbrella. You can find umbrella ads online that promise that you won't be "caught in the rain" again, meaning that an umbrella prevents one from being caught in the rain. As a result, all the example does is tell us that we can't infer a thing (an umbrella) that is basically already excluded by the wording of the affidavit. That's pretty self-evident and makes for a useless example.

      Personally, I find the reasonable inference rule to be perfectly clear in the vast majority of cases without the example, so I just ignore it. My assumption is that the individual or committee that drafted it was being careless. AMTA should retract the umbrella example and spend more than a few seconds thinking about any future examples they want to publish.

      Comment


      • #4
        A point to consider as we head into next year's criminal case, which may rely on eyewitness identification of the defendant: where should the line be drawn regarding reasonable inferences connected to the appearance of a witness? For example, let's say that a prosecution witness sees the crime and states in her affidavit, "I clearly saw Mr. Suspect burying the victim's body. I am 100% sure it was him. He looked me right in the eyes." The defense witness playing Mr. Suspect is a tall, white male with long blond hair and green eyes. Would it be appropriate for the prosecution witness, either on direct or cross examination, to identify these physical features on the person burying the body? If not, is it inappropriate for the defense to cross on the person's appearance (e.g. questions such as "You didn't see this person's race? Gender? Hair color? Eye color? Height?")?

        In my opinion, it is apparent that a reasonable person, having clearly identified Mr. Suspect as the perpetrator, would necessarily know and have seen these characteristics of said perpetrator. At the same time, AMTA is necessarily precluded from including these physical characteristics in affidavits due to the nature of the activity (having students with diverse physical appearances playing the same witness). As it is, I think defense teams that attempt to attack an eyewitness's credibility by pointing out the lack of these characteristics in their affidavit are scoring cheap points by exploiting this necessary ambiguity.

        I suppose one solution is for AMTA to start writing some filler descriptions into affidavits (e.g. "I identified Mr. Suspect due to his gender, age, hair color, race, etc.") but this seems unnecessarily verbose. Additionally, what happens if the defense witness has a unique physical trait (such as being 7 feet tall)? Where is the line drawn regarding how an eyewitness can describe the suspect? It is my understanding that AMTA intends immutable physical traits (compared to things such as attire) to have no impact on mock trial, but if these descriptions are allowed, aren't defense teams motivated to choose defendants that appear, for lack of a better word, generic?

        Perhaps questions about an identified person's physical appearance, whether on direct or cross, should be disallowed as a whole.

        Sorry for this slight digression.

        Comment


        • #5
          I guess what I would like is, a slightly different standard. If sanctions are going to be enforced by the CRC at regional, ORC, and NCTs from here on out, it seems like there should be a very concrete and easy to follow rule. I tend to agree with OffOnCross about the vagueness of the currently enforced standard - it leaves teams with a lot of room for interpretation (although I do think Yale's invention was well outside of this interpretation).

          It seems like in practice what the CRC has been doing is handing out sanctions for inventions that are so egregious they cannot be remedied by impeachment. In both examples in 2018, and the Yale case, the CRC sanctioned teams for inventions that essentially exploited the inherent nature of mock trial - i.e. working the gender/race of witnesses into the case theory, or denying an affidavit. Both of these examples cannot be remedied by impeachment, but they also seem substantially more extreme than the standard articulated of: "a reasonable inference is not a conclusion that a person could draw from an affidavit, but a conclusion that a reasonable person would draw." In fact, recanting the affidavit is not an inference someone "could" draw from an affidavit, it's an inference someone almost certainly could not draw from an affidavit.

          I do hope AMTA clarifies this in the forthcoming CRC memos. Perhaps less serious violations of 8.9 are intended to be remedied by impeachment, while more serious by sanctions? But if so, perhaps that ought to be made explicit.

          Comment


          • #6
            fsdkjfwidf dpid iwdjfhdwqpodjn ewdueydjepi dcd8ugdhe30sd hb d8e3hjdewodishbn we0d9ie[ufjoduhc w9idhwenuidcuhdufjgrif rfhpjeodfhnwqd fwd.

            You probably have no clue what that's means. That's because no one ever knows what I mean. Hi, I'm Rule 8.9.

            Until recently, I havenít seen a lot of daylight. And Iíve been okay with that. Occasionally people give me a once-over before they head off to war. But in the past couple years, Iíve started to live a more complicated life. People see me around and they get the wrong ideas. They think I mean something that I donít. To be honest, sometimes I donít even know what I mean, or who I am.

            I donít like to be specific. I never have. But, what I've learned in my time on the pages of the AMTA rule book, is that I was poorly designed. I'm vague. I don't make sense to the general public and I do more to confuse than to provide clarity. Once in a while, I will see the face of a pimpled college student peering at me, yet when their eyes meet mine their faces contort with confusion. It hurts to cause this much pain, doubt, and uncertainty in those I am meant to only assist. I want to change. I want to clarify, not confuse. I want to help, not hinder.

            Put an end to my misery and the misery of others. Fix me.

            Comment


            • #7
              It seems to me that there needs to be some amendment to rule 8.9. Looking at the four pieces of testimony for which Yale was sanctioned, I think statements (1) and (2) don't clearly constitutes inventions of fact. Additionally, Bays argues that statement (3), specifically the second half, "I didn't want to get sued," was explaining why he would have said what the line said he would have said. I think standing alone this could be reasonable; in context, however, it wasn't. (I agree with the CRC that statement (4) was an improper invention and find Bays's defense of it meritless. "Had the defendant told you of this post before she made it, you would have told her not to do it," and "If I had known what Anderson was going to say, I would have told Anderson not to do it," seem to me to be expressing the same truth proposition, the only differences being whether (a) Anderson told him of the post or he learned of it through some unstated way (how Rivers learned of the content is immaterial in this context) and whether (b) Rivers was hypothetically "told of this post before [Anderson] made it" or hypothetically "known what Anderson was going to say" (because "this post" was "what Anderson was going to say" I see no difference between the two.)

              There are two specific amendments I think need to be made, one that I don't think changes the rule but rather provides clarification as to how it is interpreted, and a second that would arguably expand the rule and provide a more clear guide as to when inferences of material facts are proper. As a first crack at such an amendment (since so far I've seen lots of calls for clarification but no actual proposed language), I suggest:


              ---
              Rule 8.9 Invention of fact. In lieu of discovery, this rule shall govern the testimony of all witnesses.
              (1) CLOSED UNIVERSE. Mock trial competitors are to advocate as persuasively as possible based on the facts provided. Thus, teams must rely on the facts stated in the Case Problem rather than creating new facts or denying existing facts in order to advantage their parties (an ďImproper InventionĒ).
              (2) JUDGESí SCORING. If a team demonstrates through impeachment that its opponent has made an Improper Invention, judges should reflect that violation in their scores by penalizing the violating team, rewarding the impeaching team, or both.
              (3) STUDENTSí OBLIGATIONS UNDER RULES 1.4, 1.5, 1.6, AND 7.6. Students should note that while the exclusive trial remedy for violating this rule (impeachment) is explained below, an opponentís inability to successfully impeach a witness does not necessarily mean the witness has complied with this rule. Teams have independent professional and ethical obligations under Rules 1.4, 1.5, 1.6, and 7.6. An Improper Invention is cheating regardless of whether an opponent is successful in demonstrating the violation.
              (4) IMPROPER INVENTION.
              (a) Definition. There are exactly two types of Improper Invention:
              i. Any instance (on direct, cross, re-direct, or re-cross examination) in which a witness introduces testimony that contradicts the witnessís affidavit.
              ii. Any instance on direct or re-direct examination in which an attorney offers, via the testimony of a witness, material facts not included in or reasonably inferred from the witnessís affidavit.

              (b) Application. Testimony may constitute an Improper Invention even if the question and answer that elicit it, standing alone, would not constitute an Improper Invention. Instead of looking at the testimony in isolation, it must be considered in light of the witnessís preceding and subsequent testimony.

              (c) Clarification concerning cross-examination. On cross-examination, a witness commits no violation or Improper Invention when she or he testifies to material facts not included in her or his affidavitóas long as the witnessís answer is responsive to the question posed. In other words, a witness is allowed to invent material facts on cross-examination as long as the witness remains responsive to the question posed. Attorneys who ask questions to which the witnessís affidavit does not provide an answer risk receiving an unfavorable answer in trial. Notwithstanding the aforementioned rules, however, nothing in this section is intended to prevent attorneys from attempting to challenge a witnessís credibility by demonstrating an omission through use of the witnessís affidavit.
              (d) Ancillary Terms.
              i. Material facts. Facts are ďmaterialĒ if they affect the merits of the case. Facts are not ďmaterialĒ if they merely provide background information or develop the character of a witness. One test that judges and competitors can use to assess materiality is whether the facts at issue are of the type that could reasonably be expected to be included in the partyís closing argument.
              ii. Reasonable inference. A witnessís answer does not qualify as a ďreasonable inferenceĒ merely because it is consistent with (i.e., does not contradict) statements in the witnessís affidavit. Rather, a reasonable inference must be a conclusion that a reasonable person would draw (as opposed to the conclusion that the witness did not know or could not recall) from a particular fact or set of facts contained in the affidavit. When an affidavit could support the conclusion that (1) a material fact is true or false or (2) a witness has no knowledge, one way or the other, as to a material fact, the witness must testify that the witness lacks knowledge.

              iii. Affidavit. For the purposes of Rule 8.9, an ďaffidavitĒ includes not only a witnessís sworn statement, but also any document in which the witness has stated her or his beliefs, knowledge, opinions or conclusions (such as a deposition or an expertís written report). This definition does not include affidavits or documents produced by other witnesses, except to the extent that a witness has relied on such affidavits or documents in forming her or his own conclusions.

              ---

              I believe the above text would make clear that all four of the inventions at issue here violated the rule. Regarding whether the mystery men in the dairy aisle "made a beeline" for it, the amendment would make clear that because (a) that fact is material and (b) Sullivan did not state where the men were before he saw them in the dairy aisle, he would have to testify that he either did not know or did not remember where they came from.

              As to statements (2) and (3), it would make clear that although taken on their own, Rivers did give Anderson a little push and did not want to get sued, the surrounding testimony and the tone in which he answered clearly lead to the conclusion that the little push was sending men to the grocery store and that "of course I said that I didn't want us to get sued to" was a claim that he had written something false in his affidavit.

              Of course, this is just an initial proposal, and it'd be great to hear if others think phrasing/additions/subtractions would further improve it.
              Ray Barr (the Amazing)
              "Bow ties are cool."

              Comment


              • #8
                Originally posted by captainbowtie View Post
                It seems to me that there needs to be some amendment to rule 8.9. Looking at the four pieces of testimony for which Yale was sanctioned, I think statements (1) and (2) don't clearly constitutes inventions of fact. Additionally, Bays argues that statement (3), specifically the second half, "I didn't want to get sued," was explaining why he would have said what the line said he would have said. I think standing alone this could be reasonable; in context, however, it wasn't. (I agree with the CRC that statement (4) was an improper invention and find Bays's defense of it meritless. "Had the defendant told you of this post before she made it, you would have told her not to do it," and "If I had known what Anderson was going to say, I would have told Anderson not to do it," seem to me to be expressing the same truth proposition, the only differences being whether (a) Anderson told him of the post or he learned of it through some unstated way (how Rivers learned of the content is immaterial in this context) and whether (b) Rivers was hypothetically "told of this post before [Anderson] made it" or hypothetically "known what Anderson was going to say" (because "this post" was "what Anderson was going to say" I see no difference between the two.)
                I agree with your analysis here.

                However, I disagree that statements (1) and (2) should be sanctioned or sanctionable in the future. I think creative invention is part of the fun of mock trial. It should not be the sole focus of mock trial, but I think clamping down too hard on creative case theories and witnesses is likely to damage the activity. I think impeachment needs to remain the primary remedy for invention, and that one of the risks of this sanction is that there will be a huge spike in invention complaints and that AMTA will be bogged down by litigating dozens of them over the course of the 2020 competitive season. I would rather take AMTA out of the business of investigating inventions like (1) and (2), especially given how subjective they are.

                I won't take a crack at re-writing the actual rule. However in the interest of ensuring future inventions can be remedied by impeachment, and eliminating tactics that are immune to impeachment, I would suggest two substantive changes:

                - No More "Hostile" Witnesses

                Hostile witnesses have been an occasional feature of mock trial for a while now, but it is rare that the case writers actually intended for a character to be played that way. Hostile witnesses are therefore almost always inventions in spirit, even if they don't depart from the language or facts in the affidavit. More problematically, a team putting forth a "hostile" witness is by definition trying to destroy that witness' credibility. This is easy to do in a "hostile" direct, but it also has the effect of making a substantial impeachment impossible. Yale's Rivers, as an example, was clearly impeached and it was a well executed impeachment, but it didn't really matter because Yale's theory didn't depend on River's credibility. In fact, attacking Rivers' credibility on cross only helped Yale's argument. This was also the root of one of the 2018 Sanctions. Hostile witnesses are essentially immune to impeachment, and thus an attractive venue for egregious inventions which cannot be remedied. Hostile witnesses should be barred by rule except when specifically allowed by case writers (perhaps, say, in a special instruction).

                - Material Testimony About Playable Person's Appearance/Characteristics Barred

                Yale is not accused of this, but a clear issue in one of the 2018 Sanctions arose from an incident where a team invented material facts based on the physical characteristics of a person who was a playable witness (as I understand it). When teams introduce material testimony of a person's appearance, and that person's appearance is not knowable (because the person must be playable by any student from any team), it should be automatically considered a sanctionable egregious invention, and likely a violation of the professionalism rules as well. This would prohibit arguments about how our (playable) defendant couldn't have done it because the other team's eyewitness couldn't tell you his race/gender/handedness etc which are also, by the nature of the activity, immune to impeachment.

                I think these two changes would ensure that most future inventions could be handled by impeachment. Notably, every team which has been (publicly) sanctioned so far has violated one of these two proposed rules.

                Comment


                • #9
                  Originally posted by DBCooper View Post

                  - No More "Hostile" Witnesses

                  Hostile witnesses have been an occasional feature of mock trial for a while now, but it is rare that the case writers actually intended for a character to be played that way. Hostile witnesses are therefore almost always inventions in spirit, even if they don't depart from the language or facts in the affidavit. More problematically, a team putting forth a "hostile" witness is by definition trying to destroy that witness' credibility. This is easy to do in a "hostile" direct, but it also has the effect of making a substantial impeachment impossible. Yale's Rivers, as an example, was clearly impeached and it was a well executed impeachment, but it didn't really matter because Yale's theory didn't depend on River's credibility. In fact, attacking Rivers' credibility on cross only helped Yale's argument. This was also the root of one of the 2018 Sanctions. Hostile witnesses are essentially immune to impeachment, and thus an attractive venue for egregious inventions which cannot be remedied. Hostile witnesses should be barred by rule except when specifically allowed by case writers (perhaps, say, in a special instruction).

                  - Material Testimony About Playable Person's Appearance/Characteristics Barred

                  Yale is not accused of this, but a clear issue in one of the 2018 Sanctions arose from an incident where a team invented material facts based on the physical characteristics of a person who was a playable witness (as I understand it). When teams introduce material testimony of a person's appearance, and that person's appearance is not knowable (because the person must be playable by any student from any team), it should be automatically considered a sanctionable egregious invention, and likely a violation of the professionalism rules as well. This would prohibit arguments about how our (playable) defendant couldn't have done it because the other team's eyewitness couldn't tell you his race/gender/handedness etc which are also, by the nature of the activity, immune to impeachment.

                  I think these two changes would ensure that most future inventions could be handled by impeachment. Notably, every team which has been (publicly) sanctioned so far has violated one of these two proposed rules.
                  I believe this is in interesting idea, but I think a broad ban on hostile witnesses or appearance testimony is too restrictive.

                  Intrinsically a hostile witness is a character choice, which AMTA rules explicitly say is within the bounds of invention. Although it is possible to use one unfairly, it is not intrinsically unfair. For example, one could use a hostile character to make a witness that testifies a lot of positive things for one side to appear less biased - if they are reluctant to admit what they are testifying or appear to be against the side that called them, it can be more believable than if they were enthusiastic about the testimony. This is in my opinion not unfair, it is simply using a character to determine the way the testimony in the affidavit comes across to the judges. Yale's hostile character crossed the line, not just because the witness was hostile, but because the witness (according to AMTA's perspective) recanted what they wrote in their affidavit, making any impeachment or in-trial remedy impossible for Rhodes. A hostile witness that doesn't claim what they wrote in their affidavit was not truthful, but simply presents the facts inferrable from the affidavit in a way conductive to their team's case theory, is not cheating. It is a good selection of character, and one that can still remain open to impeachment or effective cross examination.

                  With material appearance testimony, I think that any malicious use of material appearance testimony is already prohibited by the invention of fact rule (after all, it would be a material fact not inferrable from an affidavit, by any reading of rule 8.9). I think a simple improvement, would be to make it so that if a team wants to testify to a character's appearance fairly, and that witness is not described and will not be called in trial, they must mention the physical appearance in captain's to the other team, just like we already do with genders, to avoid any potential abuse.
                  Last edited by councilforthefence; June 6th, 2019, 06:01 PM.

                  Comment


                  • #10
                    I'm also not thrilled with the idea of banning hostile witnesses. Playing a witness as hostile -- if done correctly -- can actually increase a witness's credibility, and sometimes is the most realistic way to portray a witness. For example, in the Bancroft/Covington case, one of the prosecution witnesses was Minetos, the step-sibling of Covington. Minetos had been subpoenaed to testify. In a case where you are prosecuting Covington and calling Minetos, it made sense to play Minetos as hostile. It's something that happens in real life, is really fun, and can be done effectively without crossing any lines.

                    Comment


                    • #11
                      Originally posted by The Real Mock Prodigy View Post
                      I'm also not thrilled with the idea of banning hostile witnesses. Playing a witness as hostile -- if done correctly -- can actually increase a witness's credibility, and sometimes is the most realistic way to portray a witness. For example, in the Bancroft/Covington case, one of the prosecution witnesses was Minetos, the step-sibling of Covington. Minetos had been subpoenaed to testify. In a case where you are prosecuting Covington and calling Minetos, it made sense to play Minetos as hostile. It's something that happens in real life, is really fun, and can be done effectively without crossing any lines.
                      I think this is a good point. Hostile doesn't mean they have to recant their affidavit or even appear untrustworthy on the stand. It just means that they're more aggressive when answering questions. Just flooking at examples from this year's cases, Harper Villafana was most effectively portrayed as a super aggressive hostile witness. This didn't mean making Harper lie or anything, it just meant making Harper appear to have no stake in the case and resenting all attorneys for dragging them to court.

                      Comment

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