Should Questioning on what an Affidavit doesn't say be a violation?

Suffice to say there's been a lot of controversy surrounding the CIC this year. From the rulings released earlier in the year for Koller Air to the issue of in-tournament review at Nationals. But a recent ruling by the CIC at Nationals struck a cord with me because it appears to make something a violation that I always thought was good mock trial; directing or crossing a witness on a fact that isn't in their affidavit. That is to say, using what an affidavit doesn't say as evidence that either the witness didn't see something, didn't do something, or has no knowledge of something.

For example, if I was directing a Plaintiff Gelfand and we were facing a Defense running a stroke theory based on Reese tripping at the airfield. I would consider directing on facts not present in Gelfand's affidavit to rebut that theory. "Did you ever see Reese vomit?" "Did you ever hear Reese say that he was dizzy?" "Did you ever hear Reese say that he was nauseous?" etc. I was always under the impression that this was good mock trial.

However one of the CIC sanctions at Nationals had to do with a Kwan who allegedly invented that they were unaware of any appeals being filed after Robin Skye was convicted. Nowhere in Kwan's report is there any information about whether an appeal was or was not filed. Therefore by my former understanding of the rules, Kwan saying he is unaware of an appeal is okay, since if he was familiar with it, he would have mentioned it in his report.

Again, this is distinct from having Kwan state definitively there were no appeals filed. As that would be a direct material fact that would require knowledge that would need to be included in the report. But having Kwan simply say they are unaware about whether an appeal was filed tracks with him not including any info about an appeal in his report.

Now I must disclose that I was not at Nationals, and the CIC hasn't made the specific facts of this sanction public yet. So I may not have the complete set of facts here. But if what is being alleged is correct and you can now be sanctioned for bringing up what an affidavit doesn't say on direct, then this is probably the biggest decision the CIC has made all year, and something that will significantly impact how teams do Mock Trial across the country.

I'm not going to ask if this style of questioning is a violation or not. Because the truth is I don't think of any of us really know. Without clear guidelines laid out by AMTA the only people who know what is or isn't allowed is the CIC itself. I certainty would have never guessed that this style of questioning is against the rules before Nationals happened.

What I am going to ask is whether this should be a violation. Because in my opinion this doesn't only lower the skill ceiling of this activity significantly, but also throws alot of realism right out the window. In real life a Plaintiff attorney asking a D.B. Gelfand about the symptoms of a stroke he didn't see Reese exhibit before the flight makes complete sense. Hell it's good advocacy. Because in real life if you're recounting events on an affidavit or in a deposition you're not going to write down or say every single thing you didn't see. There's no way D.B. Gelfand is going to write in his affidavit that he didn't see Reese vomit before the flight, because why on earth would he think to?

In my opinion preventing teams from directing or crossing on the blank parts of an affidavit stifles not only creativity but good advocacy. But I want to hear what other members of the community think about this. Should this style of questioning be allowed?

I generally agree with OP but would note that one difference, perhaps significant difference between the Gelfand example and the Kwan example, is that Kwan is an expert. Experts, at least in most mock trial cases, do not have personal knowledge of any facts. They rely on hearsay evidence and draw their own conclusions that have to be explicit (I won’t get into the Kane Software v impeachment issue because that’s a whole other can of worms). If the absence of an appeal was relevant to Kwan’s conclusion, he should have mentioned it in his report. I have to suspect that for this particular team to make this point about an appeal effectively, they needed Kwan or some witness to elaborate on the importance of an appeal. That would be an affirmative fact and would go a bridge too far. I agree with OP, but I also wouldn’t jump to conclusions about the CIC report because I suspect there is more to this. In any event, there should be more leeway with respect to the current rules surrounding inventions.

I’ve been waiting almost a year for AMTA to publicize this Kwan sanction, and it seems clear that they have either forgotten about it, or they are hoping we have forgotten about it.  I don’t know which is worse.   It’s shameful, because this sanction is probably the most significant invention related decision since Yale 2019. And yet, many teams are unaware of it, if they did not have the fortune of knowing someone attending last year’s NCT.  So, on top of a failure to be transparent, AMTA’s refusal to publicly address this issue contributes to an inequality of access to information.  That means that some teams going to Chicago are walking into a bear trap, with no idea that a couple of CIC panelists will punish them for a direct question based on an affidavit’s silence.  

And dear CIC panelist who may be reading this, maybe you’re thinking it’s unnecessary to address this specific sanction because your rules are already clear enough – to which I say, ha ha ha ha ha ha ha ha.    The 2019 memo, the Rulebook examples, the advisory opinions: nothing you’ve released has ever taken a position on directs based on silence.    Won’t you at least take a poll? I would be shocked if more than 10% of our community agrees that it violated our invention rules for Kwan to respond that they were unaware of an appeal.  I echo OP’s point. According to the very minimal information the CIC panel released, this Kwan didn’t even take the affirmative position that no appeal was filed.  He just said he was not aware of one.  In what galaxy is this a material invention?   Is the rest of the AMTA  board aware of the fact that unsupported decisions like this by the CIC over the last 2 years are severely eroding the community’s confidence in the board?  Up until the Kwan decision, I would've said without hesitation that questions based on an affidavit's silence were fair game, and like OP said, simply good advocacy.  I know, in practice, the large majority of teams also use this exact tactic.  It is not a violation, and it should not be a violation.  

AMTA owes its members an explanation.  The best thing it could do would be to publicly reverse the CIC panel’s decision, and apologize to the sanctioned team.  But if they stand by this decision, then it’s even more important that they issue guidance on what exactly is and is not allowed when it comes to asking about the negative space of an affidavit.  Again, AMTA board member, if you are reading this and thinking your existing rules adequately address this issue, I implore you to reconsider. You are wrong.

If you are an NCT team frustrated with the lack of guidance, you can help force the CIC’s hand.  Submit a request for an advisory opinion.  Ask about the Kwan decision. Tell them the rules are unclear.

I've had my fair share of moments exactly like this. It seems to stem from the standard coming from the rules. Essentially, the standard is what would need to change in order for competitors to comfortably do exactly what you're saying. I think a permissible inference is reasonable when it comes to general stuff (IE: if it's not in your affidavit, you probably shouldn't say it), but it works super counterintuitively when it gets to the finer details. That's unfortunate, when mock trial is all about the finer details.

For example, inferences are great when it comes to stuff like inferring that Cosmos has been to a spa lunch from lines 12-13: "I cannot express how exhausting spa lunches ... can be." In this case, it cannot be inferred that Cosmos has never been to a spa lunch, despite the fact that Cosmos doesn't explicitly say the words, "I have been to a spa lunch."

To be clear, I agree with the fact that Kwan should be treated differently, because they are an expert. Kane is yet another line of defense against invention, and I think that gives the decision around Kwan a little bit more merit. Whether that merit makes it justifiable is something that I don't feel qualified enough to touch on.

However, expert or not, the issue that Kwan pointed out is that the standard of a permissible inference turns into a grey area really quickly. Bringing it into this year's NCT case, if Bralow, on direct examination, is asked the question, "Did you ever hear the defendant say they prescribed Renibix, Amtamid, and Sanguixa to Derrick Vinson, knowing that it created a high degree of likelihood that substantial harm would result to Vinson?" and Bralow answers in the negative, I think by rule and given the Kwan decision, that would likely be invention of fact, despite the fact that the witness saying no is very clearly the only true answer; if Bralow heard the defendant confess to every provable element of a crime that they are familiar with, they would have put it in their affidavit.

In this same example, if Bralow was asked the same question on cross examination and they answered in the affirmative, they absolutely would and should be able to be impeached. Therefore, there's really only one way to interpret it, right? This goes to the Gelfand example; Gelfand was aware that the plane crashed and details the instances in which Campbell appeared disoriented. That must mean that Gelfand would have mentioned it if Campbell was vomiting or even if he tripped a second time. However, even though every reasonable person would infer it a certain way, the rules would penalize a team for this.

Obviously, these examples are taken to the extreme and I would probably start laughing if someone actually asked that question, but I think it shows just how easy it is to find flaws within the current standard for invention of fact. If my witness said something like that on the stand and we got penalized for that, I wouldn't be very happy about it.

This rule not only can be tough when it comes to deciding what is and isn't unfair invention of fact, but it also probably makes AMTA reps' lives infinitely more difficult. If we have a lower standard for invention, I think that just opens the door for frivolous claims of invention. It allows invention of fact to become a tool for teams to sanction other teams when the stakes get high, rather than punishing those who make egregious violations. If AMTA raises the standard for a team to get penalized, it discourages teams from making claims, because the claims can be determined to be unfounded easier, and I think this should be the case. Most of these claims are things you can solve in-round, and if they're not, that means it would probably not be allowed, even under a more relaxed standard for what constitutes invention.

This is a really tricky rule, and quite honestly, I don't blame the rules committee or the CIC for it existing, because if they became less strict on it, people would just find a way to invent and make damning statements kinda true. I don't blame them for being cautious. However, I think it's something worth revisiting, because this kind of stuff can prematurely end a season for some great competitors.

IDontKnowWhatImDoing wrote:
To be clear, I agree with the fact that Kwan should be treated differently, because they are an expert. Kane is yet another line of defense against invention, and I think that gives the decision around Kwan a little bit more merit.

You are giving the CIC too much credit.  If the fact that Kwan was an expert played a role in their decision, they failed to mention that in the few sentences they released.  If it's true that the witness type impacts the invention analysis, the CIC should say so.  The rulebook does not say that.  

As a side note, the Kwan testimony doesn't even present a Kane issue, because "I am not aware of an appeal" is not an expert conclusion.  But it's not useful to press further on the analysis of expert / non-expert, unless the CIC tells us this distinction matters.  So far, they have remained silent on this issue.  That's the problem.