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Join date : 2019-11-26

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

Thu Apr 20, 2023 4:01 pm
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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?

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

Fri Apr 21, 2023 12:11 am
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.
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