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CRC Guidance Memo

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CRC Guidance Memo Empty CRC Guidance Memo

Sat Dec 21, 2019 1:25 am
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I’m writing this to express some concerns about the guidance memo that AMTA just released. I’m really worried, based on reading it, that it doesn’t do anywhere near enough to explain enough issues to allow teams to avoid  what happened to me and my team last spring. After reading it, I think it leaves room for more teams to get in trouble without meaning to do anything wrong. And frankly, after what happened to my team last year, that terrifies me.

To be clear up front, I am not writing this post to relitigate last year’s sanctions. What’s done is done. In many respects, the AMTA board acts as the Supreme Court in this activity. Their decisions are final. While I may disagree with their reasoning, I have accepted that their decision is the one that matters, and my program has shifted its attention to competing this year.

But there is a reason that the Supreme Court has an obligation to issue thorough decisions that document exactly what the law is, why it decided what it decided, and why the arguments opposing its position fail. There would be a problem if the Supreme Court issued a decision that failed to explain the principles underlying its conclusions. There would be a problem if the court failed to clarify what the law of the land was, leaving us largely unsure what is a crime and what isn’t. So, too, there is a problem when the board, the final decision maker in AMTA, fails to clarify its principles, fails to explain the rules, and nonetheless holds the ability to levy severe sanctions and threatens to do so regularly.

To the AMTA board: since this June, I have tried to come up with a charitable reading for your actions, to take you at you word when you say that there are principles upon which your ruling makes sense, and that you can explain them all if we just read your promised memo. It seemed strange to me then (and still seems strange to me now) that a board that shares among themselves a common and coherent understanding of the rules wouldn’t tell us what it was. It seemed strange that a board that apparently agreed that our behavior was in clear enough violation of the rules to merit the kind of accusations of bad faith that you levied at us last June would be unwilling to lay out the clear vision of that violation you all shared. It seemed strange that you would not want to tell the community, as soon as possible, what it was that we had done wrong so that other teams might avoid doing the same. It seemed strange that the only public, detailed explanation of what it was you found objectionable in our conduct is the one that I published on Perjuries.

And yet, in an effort to give you the benefit of the doubt, I attributed to the board the following motivations (which I hope are sufficiently charitable): The board had a reasonable reading of the rules that was self-consistent and that made what we did wrong. We did not understand that reading. But all of the board members had a shared understanding of what was and was not allowed, and that understanding made sense. The reason the board didn’t explain it to us then is that it wanted to take the time to really get it right and really make their interpretation clear to everyone. We were going to get a full, comprehensive, and detailed memo this December that answered all of our questions.

Last month I submitted a series of questions to AMTA through your survey. I asked you to provide a memo that made your principles clear enough that I would see why the arguments I made last June were wrong. I asked you a series of fourteen questions about the invention rules that I hoped, if answered fully, would make clear what your position is.

I will say that the board did an excellent job of laying out the underlying general principles behind the rule. You did a great job of explaining why we have the rule and the meanings of  the general terms in the rule. But that wasn’t where the issue was in the last few sanctions cases. We already know what the general principles of the rule are. But we never got specifics. We never got an explanation about the edge cases, and those edge cases are important. You said it yourself, that it is the “grey area”  where teams are getting sanctioned.

You say that “the problem seems to arise when teams seek to find the ‘gray area’ between what is acceptable and what is not. It is for that reason impossible for AMTA to construct a completely black and white test for what always will and never will constitute an improper invention.” I’m not asking for a black and white test that covers all issues that could arise in the future in a single go. But there are places where it has become abundantly clear that your stance on specific issues is not clear to the public, and that that lack of clarity has resulted in sanctions. In such a case, it is the duty of the CRC and board to clarify those specific issues, and you haven’t done so.

Out of the 14 specific questions I asked, I can charitably say that three of them were answered—and even those three were not answered clearly. The 11 questions that went unanswered were important, and they went unanswered even when AMTA was creating an FAQ to specifically answer people’s questions. These are questions that I know other competitors, coaches, and mock nerds have as well.  Can the implication of a witness’s testimony be invention? Can a witness act non-credibly in a way that implies that their testimony is false (as I’ve heard many teams seem to be doing this year)? What facts from the real world we can assume are true in Midlands and use to make inferences from the affidavit? Are witnesses allowed to deny misquotations/paraphrases of their affidavit on cross? I still don’t know.

As for my ask that this memo make it clear to us what we did wrong in April, this guidance memorandum moved me closer to understanding your reasoning on exactly one of your four allegations against us. Even there, I’m not sure I would have said, based on this memo, that what we did in that case was not allowed (I would have called it borderline), so this memo would have done just about nothing to prevent what happened last year. In short, if we had had this “comprehensive guidance memo” last April, we would have walked into that final round and done more or less exactly what we did. We would have done so in good conscience, fully believing we were not breaking the rules. That’s a problem.

I am posting a copy of my survey responses here, and I hope others will do the same so that we can work together to try and get these questions answered.

AMTA, if you want to prevent teams from wandering, unknowingly, into trouble as we did, please answer. Please actually answer all of the specific questions we are asking. Please tell us what the rules are. I don’t know if we just need a more extensive FAQ, or a new memo, but we need answers. Because we want to follow the rules. None of us want to break them. But we need help to get there.
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CRC Guidance Memo Empty Re: CRC Guidance Memo

Sat Dec 21, 2019 1:18 pm
I tend to agree with Elizabeth’s post. The issue that I’m seeing with the memorandum is that it doesn’t necessarily explain anything that teams don’t already know regarding invention a material fact. In fact, the examples that they give about what could be considered material facts aren’t necessarily useful when determining what exactly would be considered egregious. I think the reason that they need to clarify that, is because it’s only egregious just penalties that could even be brought to tab after the round. Furthermore, the fact that the only remedy available in trial is impeachment could definitely negatively affect the team having to impeach the witness. Quite frankly, it’s easy for a witness to simply deny the fact that they were being impeached for and if somebody has to use considerable amount of time on cross-examination attempting to impeach this witness, it could make them look bad because many of the judges in these competitions are judging mock Trial for the first time, so they might not even recognize what is a “material fact” or more precisely “creation of a material fact”. I think AMTA definitely needs to explain either in the judge presentation what to look for when a witness is being impeached, or in a memorandum that explains in more detail what is egregious invention of material fact and remedies available during trial, just so other teams don’t go through those same issues if they have to go to tab.
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CRC Guidance Memo Empty Re: CRC Guidance Memo

Sat Dec 21, 2019 2:51 pm
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I remember when the last guidance memo went out two years ago someone pointed out that it felt more like a threat than a clarification. I don’t remember who said it because Perjuries is down now, but I think the sentiment applies to this memo too. It seems like the CRC’s top priority in every memo and notification they release (including the ones this summer) is to yell at us about how breaking rule 8.9 is cheating and we shouldn’t do it and they will sanction us if we do. We get it already, inventing is bad. I don’t know anyone who is trying to cheat. But it seems really underhanded to say that and then not answer peoples questions about what rule 8.9 actually means. What struck me as particularly problematic about their stance is that they say all that about how anyone who breaks the rule is evil and then they don’t give us a good way to follow it.

I want to point out three places in this memo that, taken together, seem to create a big problem. 1) the claim that they will still sanction you even if you just genuinely didn’t understand the rule and thought what you were doing was ok. They basically say that you can get slammed with sanctions (like Yale did) if you can’t figure out the rule. So then the obvious question is how do we figure out what’s allowed and what isn’t. I can only think of two ways. The first would be for AMTA to outright tell us now what is and is not allowed, and the second would be if we could ask them questions later if we had concerns or didn’t understand whether specific things were ok.

But that brings me to the other two places in the memo 2) they say

It is for that reason impossible for AMTA to construct a completely black and white test for what always will and never will constitute an improper invention.
In other words this memo isn’t going to even try to catch all cases and draw a clear dividing line. And we can see that too from the fact that it seems like they didn’t answer all of the questions people had. So we won’t have the first way of gaining an understanding because AMTA can’t/wont outright tell us now what is and is not allowed. Must be the second way, then, right?

Nope because 3) they say

Can the CRC, or someone else affiliated with AMTA, advise us on whether certain testimony we intend to elicit violates the rules?
Generally speaking, no. The CRC and Rules Committees do not render advisory opinions and only rarely issue clarifications.
They won’t tell us in specific cases either or clarify things on a case by case basis if we ask.

In other words, they are threatening to sanction us all if we don’t get it right but they don’t give us any way to know if we are getting right. I feel like this is just a game of roulette now.
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CRC Guidance Memo Empty Re: CRC Guidance Memo

Sat Dec 21, 2019 5:32 pm
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Here's what I submitted. For what it's worth, I think the memo is more than enough for most teams, but AMTA needs to address what Elizabeth calls "edge cases." It's like AMTA is balancing the game for the average team, but they need to make sure the rules cover what top teams have been doing too. As far as I can tell, the memo only answered one of the questions I asked.


What do you want to see AMTA address in the CRC guidance memorandum?
I hope the CRC will address the nitty-gritty of the invention rules in enough detail that leaves no ambiguity about the definition of improper invention and about how improper inventions will be sanctioned. I detail my questions and concerns (of which there are many) in my responses to subsequent questions.
More broadly speaking, I hope the Board articulates their vision of mock trial and how they hope mock trial evolves going forward. I think we would all agree that the game has changed a lot in recent years; teams nowadays are playing at a much higher level than teams did even five years ago (compare championship rounds from the late 2010s with those from the early 2010s). The mock trial metagame has dramatically evolved, and it’s my opinion that the rules have not kept up. If any of you watch the NBA, it’s like the debate over whether James Harden’s arsenal of stepback moves constitutes a travel. See this tweet (https://twitter.com/BleacherReport/status/1050027764332617729) as one example of a Harden move, and believe it or not, the NBA’s official Twitter posted a reply explaining why this was not a travel (https://twitter.com/NBAOfficial/status/1050037099326570497). I don’t know when the NBA last updated its rules re: traveling, but my guess is that when they did, they didn’t imagine a player doing the kind of stuff that Harden does.
I believe AMTA finds itself in a similar position with Rule 8.9. Teams in 2019 are doing things that would probably have been unthinkable to mockers from 2009, let alone 19999. Personally, I’m all for it. I’ve been involved with AMTA for almost a decade now, and I find that the level of competition now is much higher. I believe that students are rising to the challenges posed to them by AMTA (affidavit-free witnesses, new NCT cases), and the quality of trials reflects that.
I think it’s great that AMTA has ushered in this transformation of mock trial as a mental sport. I really, really, really hope that the Board uses the CRC memo as an opportunity to forge onward, as opposed to an attempt to turn back the clock. At the same time, it’s time that the rules governing the sport got a refresh, starting with the rules on invention.

What is your understanding of what is and is not an improper invention of fact under the AMTA Rules?
An invention occurs on direct examination when a witness testifies to something that is neither included in their affidavit nor reasonably inferred from their affidavit. An invention occurs on cross examination when a witness testifies to something that is contradictory to their affidavit.
An invention is improper when the testimony constituting the invention is material. An improper invention is egregious when it cannot be remedied by impeachment. I understand the standard against which an improper invention is judged regarding its egregiousness is whether it could possibly by remedied by impeachment, not whether the opposing attorney in the trial was able or capable of impeaching.
My understanding is that this is the full, exhaustive set of circumstances that define invention, improper invention, and egregious improper invention. This implies that an attorney cannot make an invention, improper invention, nor an egregious improper invention. This also implies that a case theory cannot be an invention, improper invention, nor an egregious improper invention.

Is there anything that you believe is unclear about AMTA's current invention of fact rules?
Yes. What constitutes a “reasonable inference” is unclear, and there are a lot of ways that lack of clarity manifests itself in mock trial.
First, a question that I’ve pondered since I played by first AMTA case: is a witness’ affidavit supposed to represent the entire, positive universe of their perceptions, or only what that witness “deemed” to be relevant? (I put “deemed” in quotations since the witness doesn’t actually exist, but is just a character written by the case committee.) A contrived example that I hope illustrates my confusion is this: Suppose a witness’ affidavit says, “I went to the grocery store and bought milk, but I did not buy eggs.” Obviously, the witness must affirm their purchase of milk and deny a purchase of eggs. But, what about bread, or jam, or apples? If the affidavit is supposed to represent the witness’ entire, positive world, that means the witness bought milk and milk alone; the witness must deny purchasing anything else. However, if the affidavit is supposed to be a reflection of what the witness (if a real person) deemed to be relevant, then they certainly could have purchased bread, jam, etc.
In other words, if a witness’ affidavit is silent on a particular issue, is it a reasonable inference for the witness to give a definitive answer regarding that issue? The grocery store example is contrived, but I’ve seen witnesses do just this in my years in AMTA, on both immaterial and material issues.
Second, how does the reasonable inference rule apply to implications? Witnesses are able to use mannerisms, tone, and other performative flair to say one thing but mean another. It’s certainly possible for the witness to speak words that are consistent with their affidavit, but perform them in a way that leads the listeners to a conclusion that is not a reasonable inference from (or, perhaps, even a contradiction of) their affidavit.
Third, how is “reasonable” defined? Like, who’s the “reasonable” person whose inferences are those against which we are judged? Different people can parse and interpret sentences in wildly different ways (let alone paragraphs, full affidavits, and case patterns). Also, real-world experiences can drastically alter how a reader interprets an affidavit. I remember a trial in the Bowman case where the ride operator witness was played by a person who had worked many summers at an amusement park, and their character and content was heavily informed by their past experiences in the real world. It certainly opened my eyes to how witnesses could be played more realistically, but does this run afoul of the CRC’s interpretation of “reasonable inference”?
Additionally, is it necessarily the case that every affidavit (and portion thereof) has exactly one, and only one, “reasonable” interpretation? There have been times when affidavits say one thing but heavily hint at another, often as an unspoken extension of what’s printed. Would it be reasonable for the witness to testify only to what is literally printed on the page? Would it also be reasonable for the witness to testify to what was implied?
To extend this point a bit further, let’s say that A and B imply C, which then implies not D. If a witness’ affidavit explicitly contains A and B, can they testify C? Can they testify not D? As an example, let’s say that A is “I left the grocery store at 1:58” and B is “I walked to the pharmacy, which I entered at 2:01.” An implication C could be that “the grocery store and pharmacy are very close to each other.” An implication not D could be that “I couldn’t have been the driver in a hit and run that occurred at 1:59.”
Fourth, consider a situation where a witness is being cross-examined on a part of her affidavit, but the witness and the crossing attorney have different interpretations of the affidavit, both of which are reasonable. If the witness doesn’t back down, are they at risk of sanctions? This goes back to the point I raised above, but let’s assume that both interpretations are reasonable.
Fifth, how does reasonable inference apply to experts? It seems almost like common practice nowadays for an expert witness to make up an initialism and a ton of detail to a “method” they applied, even though that information is conspicuously missing from their affidavit. I imagine the case writers omit that information for brevity and for the evidentiary challenges, but is the expert making a reasonable inference by drawing out their 702 foundation? On one hand, the testifying witness is ostensibly an expert with decades of experience, but on the other hand, I’ve seen experts really, really, really stretch their affidavits. And even disregarding some of the more outlandish expert testimony I’ve seen, even just giving some initialism that isn’t in the report--is that a reasonable inference?

Recent AMTA cases have included some available witnesses who did not provide affidavits governed by Rule 8.9 (such as the defendant in a criminal case). Do you think that this has created issues under the invention-of-fact rule? If so, do you think AMTA should go back to drafting cases in which all available witnesses have affidavits?
No, I don’t believe that this has created issues under invention of fact rules. I do believe, however, that the introduction of affidavit-free witnesses was a sort of Pandora’s Box that AMTA opened without having prepared for all the ramifications. I think everyone would agree that there’s been a significant paradigm shift in mock trial the past five years, and I think having affidavit-free witnesses was a key spark in that. Having witnesses without affidavits has given teams license to be creative with their cases, and I believe that sort of opened everyone’s collective eyes to what could be possible in mock trial. I remember being absolutely floored when I realized the implications of Max Heisman not having an affidavit.
This all said, I would vehemently oppose AMTA deciding to go back to drafting cases where all witnesses have affidavits. Regardless of your stance on the invention rules and the recent sanctions, I think most would agree that having affidavit-free witnesses makes the activity more educational, more dynamic, and more interesting. It enables teams to put on interesting cases (or at least, it enables some variety between teams), and there’s a lot to be said about learning to cross-examine a witness whose testimony you don’t know until maybe an hour before they testify. I’m very happy that AMTA has forged into the future with affidavit-free witnesses, and I’m excited to see how AMTA can continue to drive the evolution of this brain sport. I do think, though, that the extant rules are not equipped to handle some of the material that teams are coming up with nowadays, both in cases with and without affidavit-free witnesses. The solution is to move forward and amend the rules, not to move backward and stop writing affidavit-free witnesses.

What additional information, resources, or documentation do you feel you need to help you better understand and abide by the invention of fact rules?
Most helpful would be examples that illustrate what I’m sure will be technical explanations. Bonus points if the examples are drawn from AMTA cases, since that’s what the audience will be familiar with.

Are there any changes to the actual wording of the invention of fact rule(s) that you believe AMTA should consider?
As you might have guessed, I am skeptical that the current framework of ‘reasonable + material’ can be the standard against which testimony is judged, particularly in this day and age. I would suggest that the CRC and Board consider a wholesale change to the definition of invention, improper invention, and egregious improper invention.
If the Board decides to stick with the current framework, along with incremental changes and/or clarifications, I think there needs to be some rethinking about how cases are written. Not to dive into the minutiae of the Yale sanctions, but I think everyone seemed to forget that there’s a line in the Rivers affidavit that’s like, “The dairy farmers told me this couldn’t have turned out any better if I planned it, and I just laughed.” I don’t have an opinion on the specifics of what Yale did, but it’s not crazy to me that they decided to play a hostile character. These throwaway, ‘cackling evil villain’ lines that seem to make their way into swing witness affidavits plant seeds in competitors’ minds, and they end up doing stuff that could run them afoul of the current invention rules. That’s just one example of unspoken implications that case writers tend to include in affidavits. If the Board keeps the rule more or less as is, I believe the wording of affidavits in future cases must be adjusted in response.

Is there anything else that you think the CRC should know or consider as it drafts its memorandum to the community?
After the Yale sanctions were announced, the CRC sort of punted the issue to this mid-year memo. Which was totally understandable, given the seriousness and complexity of the situation. But I think the community is looking for more clarity about why Yale was found to have violated the invention rules as they exist. I don’t know whether the CRC should directly address the Yale sanctions in this memo, given that we’ll probably be closer to the 2020 NCT than the 2019 NCT when the memo is published, but I hope the CRC keeps in mind that there are still a lot of questions that people expect will be answered in this memo. In other words, please be thorough and err on the side of including too much information/explanation.
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CRC Guidance Memo Empty Re: CRC Guidance Memo

Sat Dec 21, 2019 8:11 pm
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I guess I disagree with everybody else, because I thought the CRC's memorandum was actually pretty clear, in line with the sanctions that have been handed down over the last two or three years, and consistent with the last CRC memo.

Can the implication of a witness’s testimony be invention? Can a witness act non-credibly in a way that implies that their testimony is false (as I’ve heard many teams seem to be doing this year)? What facts from the real world we can assume are true in Midlands and use to make inferences from the affidavit?

Elizabeth, I think the answer to your questions I quoted above is pretty obvious from the memo, and the answer is: Don't try to find out. (Denying an incorrect quote from an affidavit is fine and always has been, and it's pretty obvious nobody has ever been sanctioned for that with out many other factors being in play.)

Rule 8.9 puts inventions into three zones: 1) Proper inventions, 2) improper inventions we won't issue sanctions for, and 3) egregious improper inventions. Everybody who is upset seems to want to know how to stay in zone #2. AMTA's answer is: stop trying to do that. Stay in zone #1, don't play with zone #2, and you'll never end up in zone #3. Clearly, AMTA got a lot of messages from people who want to know how to stay in zone #2:

In response to our recent survey regarding improper invention, respondents asked a lot of questions about the circumstances in which AMTA believes sanctions are appropriate for improper invention. We understand the curiosity. However, let us underscore that teams should work hard to avoid being in that position in the first place.

Still, the CRC has been very clear about one category of conduct which will mostly always be egregious: conduct which essentially "breaks" the mock trial universe. I think this was clearly explained in the memo, but if you put on a hostile witness who strongly implies their own affidavit is false via conduct/word/actions, you're definitely in zone 2 and probably in zone 3. This is the kind of conduct which breaks the mock trial universe because that witness can never be effectively cross examined, since any cross must rely on the affidavit, which the witness is disavowing. Similarly, I recall a recent sanction where a defense team asked an opposing witness to provide a physical description of the (not present) defendant, then had their own witnesses contradict that on direct. Again, this is the kind of thing that breaks the mock trial universe and is impossible to remedy on cross, because witnesses in mock trial fact patterns have no gender, race, sex, height, hair color, eye color, etc...

What constitutes a “reasonable inference” is unclear, and there are a lot of ways that lack of clarity manifests itself in mock trial.

I agree that there may be some area to disagree about what constitutes a reasonable inference, but the guidance memo makes it relatively clear and addresses this at length: unreasonable inferences are attempts to fill gaps in the affidavit with material and helpful facts. From the memo:

For example, let’s say, hypothetically, that Armani Rodriguez’s affidavit in this year’s case stated, “I did not like Parker from the moment I laid eyes on her.” It would be a reasonable inference from this statement that Rodriguez saw Parker. It would not be a reasonable inference that Rodriguez undertook any actions toward Parker that are not otherwise specifically described in Rodriguez’s affidavit because of Rodriguez’s vague sentiment of “dislike.” Nor would it be a reasonable inference that Rodriguez disliked Parker for any particular reason – for example, because Parker was wearing a specific color t-shirt

Secondly, as a practical matter the very forgiving gray area of zone #2 means that what constitutes a reasonable inference is not the deciding factor in determining who gets sanctioned, because if you do inadvertently stray over that line, you won't be sanctioned unless it is egregious. Slipping up and accidentally denying your affidavit on cross because you forgot what it said is an invention, but it is not an egregious invention. It is telling that out out of who knows how many of hundreds or thousands of rounds have taken place over the last two years at AMTA sanctioned tournaments, there have been exactly four sanctions issued, and only two of those resulted in suspensions. Clearly the vast majority of programs have stayed well within zone #1, and most of those who strayed across the line ended up in zone 2 and still were not sanctioned. If you come up with an unreasonable inference and use it in a round, but it isn't egregious, you still won't be sanctioned. If you're sitting there thinking "is this inference unreasonable?" then the answer is probably yes.

Elizabeth noted in her original response to the sanctions against her over the summer that the night before the tournament she was re-reading the rulebook to make sure what Yale was about to do was permissible. When it comes to rule 8.9, the AMTA message seems to be that this is exactly the wrong way to approach rule 8.9. You should not be reading the rulebook and the affidavits looking for gaps you can build a case theory around. If you have to go back to the rulebook the night before the tournament and ask yourself if what you are doing is allowed, you probably shouldn't be doing it.
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CRC Guidance Memo Empty Re: CRC Guidance Memo

Sat Dec 21, 2019 8:39 pm
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“Denying an incorrect quote from an affidavit is fine and always has been, and it's pretty obvious nobody has ever been sanctioned for that with out many other factors being in play.”

Um, I pretty sure this is *exactly* one of the things AMTA dinged Yale for last year.
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CRC Guidance Memo Empty Re: CRC Guidance Memo

Sat Dec 21, 2019 9:03 pm
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LogicalNitpicker wrote:Um, I pretty sure this is *exactly* one of the things AMTA dinged Yale for last year.

Not at all. Sadly, I don't have access to the old Perjuries thread which had actual line-by-line breakdowns of what was said during the NCT. But they were not sanctioned because the witness in question denied a misquote of the affidavit - they were sanctioned because the cumulative effect of the witness (who made several statements implying the affidavit was false - "Of course I said that, I didn't want to get sued!") was to deny the accuracy of the affidavit itself - an egregious material invention, and one a team had been sanctioned for the year prior.
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CRC Guidance Memo Empty Re: CRC Guidance Memo

Sat Dec 21, 2019 9:28 pm
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Pacificus wrote:
Rule 8.9 puts inventions into three zones: 1) Proper inventions, 2) improper inventions we won't issue sanctions for, and 3) egregious improper inventions. Everybody who is upset seems to want to know how to stay in zone #2. AMTA's answer is: stop trying to do that. Stay in zone #1, don't play with zone #2, and you'll never end up in zone #3. Clearly, AMTA got a lot of messages from people who want to know how to stay in zone #2:

This is spot-on. Complaints that the line for egregious invention is vague are also spot-on, but to some extent that's the point. There's no way to legitimately aim to stay completely within the rules for proper invention and end up at egregious improper invention. The memo isn't unclear about which inventions are improper, just the line about when improper invention becomes egregious.

However, the line drawn in the memo for impropriety is more restrictive than I think is best for the activity. Ingenuity is a fun part of the activity, and I don't remotely prefer the version of mock trial that the memo mandates. The type of inventions I think add to the activity are distinguished by the Rodriguez hypothetical:

"Is it a reasonable inference that Rodriguez disliked Parker for some reason? Arguably, yes." 
"Can the specific reason why Rodriguez dislike Parker be reasonably inferred? No."

The memo makes it pretty clear that a ton of commonplace inventions are to be considered cheating. I tend to think that clever material inventions in cases like the example, where an impeachment by omission would fall flat because the invention is seemingly innocuous, are good for competitive mock trial. I'm no attorney, but I would imagine that real life witness statements are frequently lacking enough that in a case similar to the one described above, the witness would commonly have and be able to give the reason implied to exist. The memo makes it so that reason cannot be given except if asked about directly on cross. For the case above, I don't necessarily have a problem with that, but I think there are better examples where the same understanding of the rule eliminates some inventions that are good for the competition.

Most obviously, expert methods. Almost every expert, including many coached by AMTA board members, invents a method not named in their report. As reliable methodology is a requirement of admissibility and is rarely (if ever) included explicitly by the case writers, I'm not sure what expert-directing attorneys are expected to do. It may be a reasonable inference that the expert used a reliable method, but the memo is clear that it is not reasonable to infer a specific method. With other explanatory gaps, I guess the best practice is to address it on cross or not at all, but the rules of evidence makes this a different case. It seems pretty blatantly clear that AMTA considers invention of a method to be cheating, and a lack of a method to be inadmissible. 

A fairly similar case is with a lot of speculation. I thought that the case writers included speculative descriptions to test whether teams knew how to stick to descriptions of perception, by inventing the reasons that the explicit conclusion is supposed to imply. If getting this into evidence is material, which is the only time it matters anyway, then this is cheating by the memo.

Addressing bad facts preemptively with invented explanations is another example of what we should now consider to be cheating, for example the Lopez firing. It's a reasonable inference that Lopez was fired for some reason, but not any specific reason. Same goes for Doos not calling the police after they saw what they did, Lee fleeing to Aruba, Corbin not missing taking care of Parker, etc. The point is that undermining bad facts on direct (or even re-direct!) is material, commonplace, and cheating. Should it be?

AMTA's response that avoiding egregious invention is best done by avoiding improper invention altogether is not going to be effective if they rule out very common practices that don't disadvantage anyone. Teams are going to feel its within their rights if everyone else is doing it. Recanting an affidavit or basing an entire theory on a series of blatant contradictions is another story, but non-contradictory invention that judges don't find suspect should be allowed. Teams who take sportsmanship seriously under this memo will be at a competitive disadvantage, and I expect a huge uptick in alleged violations of the rule as a result of this memo.
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CRC Guidance Memo Empty Re: CRC Guidance Memo

Sat Dec 21, 2019 9:42 pm
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“But they were not sanctioned because the witness in question denied a misquote of the affidavit.”

Actually, on two occasions the Rhodes’ attorney misquoted the Rivers’ affidavit and then asked the Yale witness to agree. In each case, the Yale witness declined. According to Elizabeth’s notes (which is all we have to go on, since AMTA won’t release their official decision memo), AMTA declared both of these “no”s to be “recantations.” So Yale was punished, in part, for “denying an incorrect quote from an affidavit.”
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Sat Dec 21, 2019 10:03 pm
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GameCockMock wrote:Almost every expert, including many coached by AMTA board members, invents a method not named in their report. As reliable methodology is a requirement of admissibility and is rarely (if ever) included explicitly by the case writers, I'm not sure what expert-directing attorneys are expected to do. It may be a reasonable inference that the expert used a reliable method, but the memo is clear that it is not reasonable to infer a specific method. With other explanatory gaps, I guess the best practice is to address it on cross or not at all, but the rules of evidence makes this a different case. It seems pretty blatantly clear that AMTA considers invention of a method to be cheating, and a lack of a method to be inadmissible. 

I agree with everything you said except for this. In cases where the method is not described, the name of the method an expert used is an invention, but rarely material. The conclusions they reached and the data they relied upon are material. The actual name of the method is really not. If a witness in their affidavit says they formed a conclusion through reading a bunch of affidavits, and the witness says "I relied on the CAC Method - Collect documents, Analyze, and Conclude!" (as is common) - I don't think that's material. The material facts are things that bear on the reliability of the method, the data used, and the like. Just fabricating a name for the method to make it sound more sciencey or whatever is not a material invention. The name is not material.

That said, I agree that this memo deems many things to be cheating that have been common in mock trial for a long time. It's a sea change from when I competed. But I don't think it lacks clarity. I think the standard is clear, and many are just unhappy because that standard differs from longtime practice.

However this application of 8.9 is almost two years old now. I don't feel very bad for Yale, and despite what Elizabeth says, anybody who reads her submission to the CRC can see she does in fact very much want to re-litigate the board's decision. This memo is nothing new, it's a more detailed restatement of the last memo, and a team was sanctioned during the 2018 regionals for almost the exact same conduct that Yale engaged in at the NCT. So her implied argument that "nobody can really know how to avoid sanctions under this standard" does not hold any water with me. Is it hard to know when an improper invention will get you sanctioned? Yes. Is it hard to know what an improper invention is? Not at all.
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Sat Dec 21, 2019 10:20 pm
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So Yale was punished, in part, for “denying an incorrect quote from an affidavit.”

I said:

nobody has ever been sanctioned for that with out many other factors being in play.

Again, I don't have the transcript sadly, but there were many aspects of that round that factored into what happened. No team has ever been sanctioned solely for telling an attorney "no" when they ask "Did I read that correctly?" on cross. But since we are on the subject, Elizabeth's contention in her submission to the CRC is that Yale's witness was entitled to say "No" in the following circumstance:

CX Question: “If you had known that the defendant was going to post this lie you would have told her not to? You would, wouldn’t you?”

CX Question:  “You would agree with me that had the defendant told you of this post before she made it, you would have told her not to do it, yes or no?”

The Affidavit:  "I want to be clear: even though I reviewed most of Jerri Anderson’s [the defendant] other posts, I did not review Anderson’s social media post before Anderson posted it on October 30, 2017. If I had known what Anderson was going to say, I would’ve told Anderson not to do it."

Her convoluted defense of why this is okay?

Sometimes an attorney asks a question on cross that means the same thing as a line in the affidavit under the most natural reading of that line, but the witness has over parsed that line in a weird way resulting in a negative answer from the witness.

I'm sorry but what? Words have meaning. When a mock trial witness "over parses" the words of the affidavit so they don't mean the same thing anymore, that's a material invention of fact. It's really not that complex.
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Sat Dec 21, 2019 10:55 pm
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“I'm sorry but what?”

Um, not even close.  One the first quote, Rivers wasn’t even required to agree that the statement was a lie. The affidavit is clear that he just doesn’t know whether there was lead in Empowermilk.  I don’t remember whether this came up on direct (alas, AMTA has taken great pains to hide the video). And even if he knew it was a lie, that may not be why he opposed the posting (as Yale pointed out, he could have just been opposed to the hashtag).

Similarly for the second quote.  All the Rhodes’ attorney had to do was quote the line exactly.  It’s not hard.  He just didn’t do it.  If you give a fish room to wriggle, they’ll eventually get away. And it’s your fault if they get away. The solution:  get better, get tighter.
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Sat Dec 21, 2019 11:36 pm
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All the Rhodes’ attorney had to do was quote the line exactly.

Rhodes attorney wasn't trying to quote the affidavit. He didn't say "you said X" or read "X" from the affidavit and then ask "did I read that correctly?" If he had done that, and the Yale witness denied quote was accurate because Rhodes quoted the affidavit wrong, that would be "denying a misquote" and completely unproblematic.

He asked the witness about a fact from the affidavit, which the witness denied. You don't get to deny a fact from the affidavit just because the question is not worded as a literal quote of the affidavit, and Bays isn't even arguing that you can. She's arguing that somehow the words that were said by Rhodes attorney don't add up to substantially the same fact as the line I quoted from the affidavit. That's an argument that requires a distortion of the English language so substantial that I suspect that if a real attorney tried to make this argument to a real judge, there would probably be some real sanctions involved. People have been prosecuted for perjury for a lot less. And if it's the standard for rule 8.9, then rule 8.9 is totally meaningless.
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CRC Guidance Memo Empty Re: CRC Guidance Memo

Sun Dec 22, 2019 1:08 am
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Pacificus wrote:
GameCockMock wrote:Almost every expert, including many coached by AMTA board members, invents a method not named in their report. As reliable methodology is a requirement of admissibility and is rarely (if ever) included explicitly by the case writers, I'm not sure what expert-directing attorneys are expected to do. It may be a reasonable inference that the expert used a reliable method, but the memo is clear that it is not reasonable to infer a specific method. With other explanatory gaps, I guess the best practice is to address it on cross or not at all, but the rules of evidence makes this a different case. It seems pretty blatantly clear that AMTA considers invention of a method to be cheating, and a lack of a method to be inadmissible. 

I agree with everything you said except for this. In cases where the method is not described, the name of the method an expert used is an invention, but rarely material. The conclusions they reached and the data they relied upon are material. The actual name of the method is really not. If a witness in their affidavit says they formed a conclusion through reading a bunch of affidavits, and the witness says "I relied on the CAC Method - Collect documents, Analyze, and Conclude!" (as is common) - I don't think that's material. The material facts are things that bear on the reliability of the method, the data used, and the like. Just fabricating a name for the method to make it sound more sciencey or whatever is not a material invention. The name is not material.

I'm not sure I agree, especially with the recent trend of garbage defense experts. A made-up, legit-sounding name can (and does) cover up for some of the shortcomings written into the report. At that point, I'd say the made-up method name is material.
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CRC Guidance Memo Empty Re: CRC Guidance Memo

Sun Dec 22, 2019 2:07 am
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Chiming in as another person who submitted a long survey response with a number of specific questions to AMTA (attached below) and was really upset and frustrated by this memo. While I didn’t number my questions in the response, I would say I asked approximately nine broad ones with a lot of subpoints, and maaaaaaybe three were addressed at all. Only one was answered to any degree of thoroughness.

While I understand that a single memo can’t specifically answer every single question from all 120 survey respondents, I frankly have no idea where to go next with these questions. I don’t know any board members. AMTA has told us there won’t be a place we can send in questions or ask for help. I’m a coach of several teams across multiple programs, and students come to me with questions on the invention rules that I don’t know how to answer, and I do not know where to turn for help.

I want to highlight a couple of the questions I asked that I think are particularly important to clarify right now, because they relate to things I’ve already seen many teams running this season.

1) Is a witness allowed to imply that they lied? I’ve seen a number of D teams this year call X swing witness, run an “X did it” theory, and construct a direct to imply that X did it through acting, tone, unconvincing denials, and carefully phrased attorney questions. At no point did these witnesses contradict their affidavits or testify to any invented facts. But the team is implying through those other strategic elements that the witness did indeed lie in their affidavits, and it eliminates impeachment as a truly effective remedy because, of course, the directing team wants to destroy the credibility of their own witness. I do not know if this is allowed at all, even though I’ve seen versions of it for years with no specific prohibition from AMTA. If it’s not allowed, that’s a serious break from what the general understanding of the rules seems to be, and AMTA should absolutely issue a big announcement emphasizing it. If it is, I don’t know where the line is between that sort of implied recanting and what Yale did.
2) Can a team rely on the fact that a witness didn’t mention something in their affidavit to assert on direct that it didn’t happen? This happens all the time in mock trial, and I think the memo touches briefly on this but in a really roundabout way. I’ve seen teams this year run a series of questions on a Cameron Lee direct trying to establish an alternate suspect that went something like this: “You said you thought this person crossing the bridge behind Jordan was Parker, could you see their face?” “No, I guess I couldn’t really see them.” “Could you recognize them in some other way?” “No, I mean I just figured it was Parker.” “What about Parker’s limp, did you hear this person limping?” “No, I definitely didn’t hear them limping.” “So what did you actually see?” “I guess all I know is that someone without a limp followed Jordan over the bridge.” Is this allowed? After reading the memo, I’m still not sure, but if not there once again needs to be a much bigger announcement about it because that’s a dramatic departure from general understanding.

I also want to voice my specific frustration with AMTA’s reluctance to spend much time clarifying what makes an invention egregious/sanctionable. I go into some detail in my survey response about why I think it’s important to make that clarification, but I want to make a few additional notes based on the memo itself.

AMTA takes a very black and white stance on the idea that any improper invention is cheating regardless of the degree. Borrowing the terminology used above regarding three zones of inventions, this means they see a sharp line between zone 1 and zone 2, and an escalating scale of “egregiousness” between zones 2 and 3. If that’s the case, how, how, can you have lines in the memo like “is ____ a reasonable inference? Arguably, yes”. If your standard is that there is absolutely no wiggle room there, no place for reasonable people to differ, and that one side is completely fine while the other is always cheating, how in the world can a reasonable inference be arguable?

Honestly, I think they got it more right in the line where they say it’s arguable. As evidenced by the empirical fact that I have, in good faith, disagreed with other mockers on my team about whether something was a reasonable inference, there isn’t a perfect division between what someone would always infer and what’s cheating. But I don’t think this memo is even internally consistent, because it says that that exact same “arguability” doesn’t exist.

I also really disagree with GameCockMock’s statement that it’s impossible to aim for zone 1 and end up in zone 3. The entire problem is that I think the super blurry line is between zone 1 and zone 2, and zone 3 is almost a different axis.

Say my witness testifies to something that is not an invention, but is incredibly important to my case. That’s zone 1. It’s completely fine and obviously the whole point of testimony. Now say I testify to something that’s reasonably inferred and is incredibly important to my case. Still zone 1. Now say I end up on the wrong side of the reasonable inference line - I thought it was a reasonable inference, but I got it wrong. It’s a fact that’s super important to my case, I bring it up in closing, I base my theory on it, I do it in multiple trials in the tournament, it was definitely premeditated. If the rules about what makes something egregious and sanctionable are the handwavey “material” lines mentioned in the memo, suddenly this testimony jumps from zone 1 to zone 3 just from me getting the reasonable inference standard slightly wrong. It never touches zone 2 at all.

So essentially I think the distinction about what’s egregious and sanctionable is important precisely because invention is in many places a gray area. If that line is only related to whether the fact is important/used in closing/etc, then any time I misunderstand reasonable inference with a fact that matters to my case it’s automatically egregious, which is a terrifying thing.
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Sun Dec 22, 2019 2:21 am
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On a separate note, I’ve noticed that a number of people (both posting here and in AMTA) seem to feel that the people asking a ton of specific questions are just looking for ways to cheat or find clever loopholes, and that thus it’s fine to leave the line fuzzy and just warn people to stay very far away from it. To me, both that view and that response are shortsighted and damaging to the activity.

It would be like telling someone that instead of having a timekeeper to know the exact time for statements they should just write a 2 minute opening, because then they won’t get anywhere near the time limit and risk breaking the rules. Yes, that’s true, but a team making all their decisions on that philosophy is also going to lose, because they won’t actually get enough content out to put on a case. Similarly, if a team only uses facts word-for-word from the affidavit, they won’t run the risk of being anywhere near the invention rules, but they will also lose because they have no characters or direct structure. People asking for really specific clarifications on rules isn’t some big conspiracy of competitors trying to figure out loopholes that let them cheat, it’s a lot of confused people wanting to know the exact framework in which they are allowed to be creative and push up against the edges without breaking rules.

If every team at NCT last year cut every demo that used any borderline inventy material from their case just to be safe, we wouldn’t have seen a single demo on the experts. To be clear, I didn’t see a single demo I actually thought was cheating. But pretty much all of them had at least one thing (a trend line in a graph, a pie chart with made up percentages) that I would now stop and think about before doing, in case it was invention. And if AMTA’s advice is “if you have to think about whether it might violate the rules, don’t do it,” we create a world where there are no demos at nationals and where teams who think harder about the rules are hurt more.

As a specific example of this, my team ran a demo on Mendez in which she held up four small bowls containing “ingredients” for Almond Power (water, salt, almonds, wheatgrass) and talked about how each one couldn’t possibly have had lead. The general statements in the affidavit were things like “We test every product run to make sure it’s pure” and “any lead could only come from the water used in manufacturing, but we use only spring water from the Amber Mountains, and we test it daily to make sure it’s pure”. We believed that since what the actual ingredients were didn’t matter, and she stated generally that none of them had lead, we could just pick four ingredients for her to talk about. But the fact that she was able to go through each ingredient specifically, regardless of what the ingredients actually were, definitely made her more credible to the jury (which is why we did it in the first place). We were judged at one point by a member of the board who noted particularly loving the demo and scored it well, so even after NCT I believed it was within the rules. But now I would no longer be confident running something like this. I would definitely at least have to think about whether it’s invention. So if I followed AMTA’s advice and cut it because I had to think about it, we’d lose one of the most interesting and creative parts of our case for no reason.
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CRC Guidance Memo Empty Re: CRC Guidance Memo

Sun Dec 22, 2019 3:23 am
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kmcf8 wrote:On a separate note, I’ve noticed that a number of people (both posting here and in AMTA) seem to feel that the people asking a ton of specific questions are just looking for ways to cheat or find clever loopholes, and that thus it’s fine to leave the line fuzzy and just warn people to stay very far away from it. To me, both that view and that response are shortsighted and damaging to the activity.

It would be like telling someone that instead of having a timekeeper to know the exact time for statements they should just write a 2 minute opening, because then they won’t get anywhere near the time limit and risk breaking the rules. Yes, that’s true, but a team making all their decisions on that philosophy is also going to lose, because they won’t actually get enough content out to put on a case. Similarly, if a team only uses facts word-for-word from the affidavit, they won’t run the risk of being anywhere near the invention rules, but they will also lose because they have no characters or direct structure. People asking for really specific clarifications on rules isn’t some big conspiracy of competitors trying to figure out loopholes that let them cheat, it’s a lot of confused people wanting to know the exact framework in which they are allowed to be creative and push up against the edges without breaking rules.

If every team at NCT last year cut every demo that used any borderline inventy material from their case just to be safe, we wouldn’t have seen a single demo on the experts. To be clear, I didn’t see a single demo I actually thought was cheating. But pretty much all of them had at least one thing (a trend line in a graph, a pie chart with made up percentages) that I would now stop and think about before doing, in case it was invention. And if AMTA’s advice is “if you have to think about whether it might violate the rules, don’t do it,” we create a world where there are no demos at nationals and where teams who think harder about the rules are hurt more.

As a specific example of this, my team ran a demo on Mendez in which she held up four small bowls containing “ingredients” for Almond Power (water, salt, almonds, wheatgrass) and talked about how each one couldn’t possibly have had lead. The general statements in the affidavit were things like “We test every product run to make sure it’s pure” and “any lead could only come from the water used in manufacturing, but we use only spring water from the Amber Mountains, and we test it daily to make sure it’s pure”. We believed that since what the actual ingredients were didn’t matter, and she stated generally that none of them had lead, we could just pick four ingredients for her to talk about. But the fact that she was able to go through each ingredient specifically, regardless of what the ingredients actually were, definitely made her more credible to the jury (which is why we did it in the first place). We were judged at one point by a member of the board who noted particularly loving the demo and scored it well, so even after NCT I believed it was within the rules. But now I would no longer be confident running something like this. I would definitely at least have to think about whether it’s invention. So if I followed AMTA’s advice and cut it because I had to think about it, we’d lose one of the most interesting and creative parts of our case for no reason.

I think this also has a particularly damaging effect on student run teams. Because If you are student run, then you have literally no way of telling what is and is not against the rules. In a lot of these key cases I'm still confused as to what is and is not allowed. If you are a student run program, I guess the response has to be to just run as far as possible away from anything that might possibly be invention. But then you loose to teams that have more flexibility to push closer to the line? And who has that flexibility? The board coached programs. I'm not saying the board coached programs are trying to cheat, but they have a resource the rest of us don't have: their coach who know exactly what the board thinks on a particular subjects.

Let's say that I have a really cool direct that I've written and I'm pretty sure it's ok, but I have a little bit of doubt. The place in my direct where I have some doubts is an important place. So I know that if I'm wrong and it's invention, then it's probably egregious, and I will be sanctioned. But if I'm right, and it's totally fine, then I'm not breaking the rules so I can do it with clear conscience, I won't get sanctioned, and I might get some extra points for it. Now if I'm a student run program, what this letter is telling me is basically "too bad, don't do it because you shouldn't risk it." So I have to play it safe and cut that part of my direct even if it's a huge opportunity cost. But if I'm in a board coached program, I just ask my coached program, I ask my coach. My coach tells me that I am right and its allowable, and then I do it and get the points for it.

It should not take having a coach on the board to understand the rules well enough to optimally play the game.

And before anyone tells me that these are just made up hypotheticals, we already have concrete examples where that might be the case. kmcf8's example of the almond milk demo is a prime one. Is that allowed. If (as it sounds like), kmcf8 is from a board coached program s/he can just clear it with her coach, if s/he's from a non board program, s/he has to take it out of his/her scripts and risk loosing something that, in the end sounds like it was a really nice piece of mock that scored well and that the board turned out to like.

In her survey questions Bays mentions a couple cases where teams coached by board members/former board members did things that I think would be super questionable based on this memo. The thing with Foley seems to involve a parsing of the affidavit almost as weird as Yale's parsing of Rivers, for example. This means one of two things. One is that teams coached by board members have been breaking rule 8.9 over the last few years (notably after the last guidance memo was released), which, according to the board's current stance, means that their own teams are cheating. I certainly hope that that is not the case. The other is that they were able to ask their coaches whether these things were ok, and because their coaches understand what the rules are better than I do, they were able to confirm that those things were ok. And it sounds like those things were effective. That means that if a student run program wanted to try something like that they wouldn't be able to (because if you have any doubts don't do it), but board coached programs were able to do it to great effect.

To take something from this year, I've heard  a lot of descriptions like this one about what teams are doing this year:

I’ve seen a number of D teams this year call X swing witness, run an “X did it” theory, and construct a direct to imply that X did it through acting, tone, unconvincing denials, and carefully phrased attorney questions. At no point did these witnesses contradict their affidavits or testify to any invented facts. But the team is implying through those other strategic elements that the witness did indeed lie in their affidavits, and it eliminates impeachment as a truly effective remedy because, of course, the directing team wants to destroy the credibility of their own witness.
Like kmcf8, I have NO IDEA if this is allowed. Based on what happened to Yale, I'd be really worried that it's not. Based on some of the stuff in the memo about creating alternate universes and theory being relevant and it being important that impeachment still be effective, I'd be worried that it's not allowed. But also, based on the general layout ofwhat the rules are at the beginning of the document and based on the way I'v always read the rules, it seems fine. Other things in the memo about a case theory not being invention etc, make it seem fine as well. It also sounds like it might be a really effective strategy if done right. Now if I'm a student run program, I'm not touching that with a 10 foot pole. Because that's the kind of thing where, if it turns out it's not allowed it's definitely egregious. But if it is allowed it's great. So I've just given up on what may be a good strategy. If I'm a board coached program, I go to my coach, and I ask if it's ok. If my coach says no, then I don't do it. If my coach says yes, then I do it and have an advantage over student run programs.

That's part of why it's so important that there be a way for the board to answer our questions and for them not to just say "when in doubt, don't do it." Because some programs will be in doubt a lot more than others.
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CRC Guidance Memo Empty Re: CRC Guidance Memo

Sun Dec 22, 2019 3:07 pm
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Pacificus wrote:
That said, I agree that this memo deems many things to be cheating that have been common in mock trial for a long time. It's a sea change from when I competed. But I don't think it lacks clarity. I think the standard is clear, and many are just unhappy because that standard differs from longtime practice.


GameCockMock wrote:
AMTA's response that avoiding egregious invention is best done by avoiding improper invention altogether is not going to be effective if they rule out very common practices that don't disadvantage anyone. Teams are going to feel its within their rights if everyone else is doing it. Recanting an affidavit or basing an entire theory on a series of blatant contradictions is another story, but non-contradictory invention that judges don't find suspect should be allowed. Teams who take sportsmanship seriously under this memo will be at a competitive disadvantage, and I expect a huge uptick in alleged violations of the rule as a result of this memo.

I think one of the dangers here that we haven’t talked about yet is that AMTA is insisting that the rules haven’t changed. All of their public announcements say that the rules are the same as ever. If there has been a sea change from common practice (including the practices that their own teams have been using for the last few years), they can’t say “the rules haven’t” changed and then expect this memo to make sense.

One of two things just happened.

1) The rules just changed to meet this memo, in which case they need to tell everyone “hey, we changed the rules. A lot of stuff you have been doing is now not ok.” Like if they are using this to tell us that stuff that used to be ok now isn't then it's dishonest and dangerous of them to say that there haven't been any changes. If they say there haven't been any changes, people will assume that the stuff that they have been doing for years and haven't had any problems with is fine (especially if they see other well respected teams doing it too).


2) The rules didn’t change, in which case most teams (including the ones coached by the board) have just been cheating for years and we didn’t know it. If everyone has been cheating for years, and just didn’t know it then all of their claims about how it should be obvious to us what the rules are and how its easy to stay within them if you don’t go looking for grey areas just go down the toilet.
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CRC Guidance Memo Empty Re: CRC Guidance Memo

Sun Dec 22, 2019 3:59 pm
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Say my witness testifies to something that is not an invention, but is incredibly important to my case. That’s zone 1. It’s completely fine and obviously the whole point of testimony. Now say I testify to something that’s reasonably inferred and is incredibly important to my case. Still zone 1. Now say I end up on the wrong side of the reasonable inference line - I thought it was a reasonable inference, but I got it wrong. It’s a fact that’s super important to my case, I bring it up in closing, I base my theory on it, I do it in multiple trials in the tournament, it was definitely premeditated. If the rules about what makes something egregious and sanctionable are the handwavey “material” lines mentioned in the memo, suddenly this testimony jumps from zone 1 to zone 3 just from me getting the reasonable inference standard slightly wrong. It never touches zone 2 at all

I think there are a series of escalating steps that have to exist to violate Rule 8.9:

First, there has to be an invention of a fact. I.e. if you stick exactly to the facts in the affidavit, you can never violate rule 8.9, but almost no teams actually do this.

Secondly the invented fact has to be material. This requirement takes a whole load of common mock trial strategies and permits them. Experts can make up names for methods, so long as that made up name doesn't change the underlying facts of how the expert reached their conclusion. Witnesses can wear costumes and have accents in order to be more entertaining. Note that "material" does not mean "something that will help you earn points" - it's material to the case being tried ala Rule 401.

Thirdly, the invented material fact has to be unreasonably inferred. AMTA has made it clear they construe reasonableness narrowly: A reasonable conclusion is one that "a reasonable AMTA competitor would draw from a particular fact or set of facts contained in the affidavit." Not an inference an AMTA competitor could draw, or that the witness would draw.

Finally, the unreasonably inferred material fact has to be used in such a way that it is egregious. This final bar is what prevents most sanctions, because it is so hard to meet. The common thread here is that the unreasonable material invention must be so serious that it essentially breaks the mock trial case. This is actually quite rare, as we have seen, and not something one can really stumble into by accident.  AMTA provides three big circumstances where an invention is probably egregious:

1. Recanting the affidavit

2. "Breaking" the mock trial fourth wall (by say, building a case theory on the physical appearance of a witness or the defendant when that witness is a playable character)

3. "Using seemingly innocuous characterizations of witnesses during trial to be latter corroborated by testimony from the 'no affidavit' defendant are likely to be considered egregious improper inventions."

This common thread in all these is that they destroy impeachment as a remedy. So, a good shorthand for looking at an invention you want to use is, can the opposing team successfully impeach it? If the answer is no, you're probably into egregiousness.

This is where we can decide the questions raised by kmcf8.

kmcf8 wrote:1) Is a witness allowed to imply that they lied? I’ve seen a number of D teams this year call X swing witness, run an “X did it” theory, and construct a direct to imply that X did it through acting, tone, unconvincing denials, and carefully phrased attorney questions. At no point did these witnesses contradict their affidavits or testify to any invented facts. But the team is implying through those other strategic elements that the witness did indeed lie in their affidavits, and it eliminates impeachment as a truly effective remedy because, of course, the directing team wants to destroy the credibility of their own witness. I do not know if this is allowed at all

I think the answer is definitely no. Nobody could read any of the affidavits in the current case and believe "this witness lied about everything" is a reasonable interpretation of the affidavit, and I don't think it's a close call. And issuing sanctions for this is not new. Students were suspended in March of 2018 for doing basically this. The fact that defense teams are doing this at invitationals says nothing about the sanctions standard because invitationals are not controlled by AMTA. I think teams that try this at regionals are in for a spanking.

I don't think this is a particularly new standard either. As mentioned I stopped competing a while ago, but neither there nor in judging in the years since do I recall it being a common strategy for teams to deliberately attempt to recant the affidavit by implication. I suspect this is a strategy that has become more popular in the era of "no affidavit" defendants.

Can a team rely on the fact that a witness didn’t mention something in their affidavit to assert on direct that it didn’t happen? This happens all the time in mock trial, and I think the memo touches briefly on this but in a really roundabout way. I’ve seen teams this year run a series of questions on a Cameron Lee direct trying to establish an alternate suspect that went something like this: “You said you thought this person crossing the bridge behind Jordan was Parker, could you see their face?” “No, I guess I couldn’t really see them.” “Could you recognize them in some other way?” “No, I mean I just figured it was Parker.” “What about Parker’s limp, did you hear this person limping?” “No, I definitely didn’t hear them limping.” “So what did you actually see?” “I guess all I know is that someone without a limp followed Jordan over the bridge.”

Here's the relevant quote from the affidavit:

The spot where I was sitting by the pond was a bit secluded, and I didn’t have a great view of the bridge, I could see most people as they headed to the trails and back. I can’t be certain, but I’m pretty sure I saw Jordan and Parker cross the bridge around this time, heading back towards Campsite 12. Well, I know for certain I saw Jordan because I specifically remember seeing Jordan carrying a hiking staff across the bridge. And I know I heard someone else on the bridge about ten minutes later, so I just assumed that it was Parker, trailing behind again. I didn’t actually see Parker, though, because I was looking out at the lake when I first heard the second person walking across the bridge. By the time I turned back around the person was mostly hidden by the trees.

This is admittedly a harder case, but I think it's still an improper material invention. The inventions would be when Lee says: "I definitely didn’t hear them limping.” and in response to the question about what they saw: "I guess all I know is that someone without a limp followed Jordan over the bridge.”

The way you wrote the hypothetical implies Lee actually saw someone without a limp follow Jordan over the bridge - definitely contradicted by the affidavit, but also definitely impeachable, so I'll set that aside for now and look at the wording of "I definitely didn't hear them limping".

This requires us to infer that Lee knows what a limp sounds like (I myself don't know what a limp sounds like) and that they definitely remember they didn't hear this sound. Given that Lee suggests Lee is not even sure Parker has a limp when Lee saw her ("Parker was walking a little behind, carrying a hiking pole, and seemed to have a bit of a limp—favoring her right leg.") I think this is unreasonable. But it could easily be made reasonable: If the questioner asked "Do you remember hearing that person walk with a limp?" and Lee said no. Now we're only inferring that Lee doesn't remember one way or another - a much more reasonable inference than Lee definitely remembers it didn't happen. This inference is reasonable from the last paragraph in the affidavit, in which Lee affirms they included everything they were told to include anything important that they remember.

I would also add that I'm pretty confident this invention would not cross the line into egregiousness, because the affidavit provides plenty of ways for this testimony to be successfully impeached. Lee must still testify on cross that they 1) knew Parker had a limp and 2) is still "pretty sure" the person following Jordan was Parker. A clever cross could blow this witness apart.

While the issue of reasonableness is a closer call here, I think it's clear what the CRC is telling teams: Don't build a case around a close call. I share the concerns raised by others that this standard narrows the creativity allowed in mock trial, but I don't think it's terribly unclear. If it was so easy to slip from zone 1 into zone 3, we should have seen a lot more than four sanctions over the last two years.

Finally, while "be reasonable" is not the clearest rule in history, but it is also the rule for a lot of real world law too. The Fourth Amendment bars unreasonable searches and seizures, tort law requires reasonable care, etc. No law or rule accounts for every situation.
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CRC Guidance Memo Empty Re: CRC Guidance Memo

Sun Dec 22, 2019 4:14 pm
Pacificus wrote:

This is where we can decide the questions raised by kmcf8.

kmcf8 wrote:1) Is a witness allowed to imply that they lied? I’ve seen a number of D teams this year call X swing witness, run an “X did it” theory, and construct a direct to imply that X did it through acting, tone, unconvincing denials, and carefully phrased attorney questions. At no point did these witnesses contradict their affidavits or testify to any invented facts. But the team is implying through those other strategic elements that the witness did indeed lie in their affidavits, and it eliminates impeachment as a truly effective remedy because, of course, the directing team wants to destroy the credibility of their own witness. I do not know if this is allowed at all

I think the answer is definitely no. Nobody could read any of the affidavits in the current case and believe "this witness lied about everything" is a reasonable interpretation of the affidavit, and I don't think it's a close call. And issuing sanctions for this is not new. Students were suspended in March of 2018 for doing basically this. The fact that defense teams are doing this at invitationals says nothing about the sanctions standard because invitationals are not controlled by AMTA. I think teams that try this at regionals are in for a spanking.

I don't think this is a particularly new standard either. As mentioned I stopped competing a while ago, but neither there nor in judging in the years since do I recall it being a common strategy for teams to deliberately attempt to recant the affidavit by implication. I suspect this is a strategy that has become more popular in the era of "no affidavit" defendants.


See I would actually have said otherwise If I didn't know about the Yale thing. The more I think about what's said in the memo the more I think that what they say about what you can and can't do is restricted to what the witness says, not how they act. Like there isn't a rule that says you can't act shifty. The rule just says you can't say you lied. By that reading doing this would be totally fine. That's where Bays's questions about implication come in (and i think kmcf8 asked a question about it too)

I also think it's important to differentiate this case from the Bailey case or the Yale case. In both of those cases the witness said things that (at least in AMTA's view, whatever you personally feel about the Yale case) were recanting (that its, they said things that contradicted the affidavit) it wasn't just an acting choice.

I've heard of a LOT of teams doing stuff like this this fall where they don't ever contradict the affidavit or say anything that isn't in the affidavit but they just act really sketchy. And i had heard of teams doing that as far back as the Whit Bowman case.

The thing is, I also see your arguments for why it wouldn't be allowed. So my point isn't that you are wrong that this wouldn't be allowed and that teams are gonna get sanctioned for it. I think, based n the Yale thing that I lean towards agreeing with you that it's too dangerous.

My point is that it's really unclear to me now. And that's a problem. It's not obvious. A lot of teams think it's allowed but also a lot of people think it's cheating. If it's cheating, then it's egregious cheating.

What makes me so mad is that this kind of thing is a widespread practice and has been for a few years. AMTA knows it's a widespread practice. If they think its cheating, why didn't they say so in the memo? Instead they left us in a situation whether their teams know whether it's allowed and the rest of us don't. That's not fair.

Pacificus wrote:
This is admittedly a harder case, but I think it's still an improper material invention. The inventions would be when Lee says: "I definitely didn’t hear them limping.” and in response to the question about what they saw: "I guess all I know is that someone without a limp followed Jordan over the bridge.”

The way you wrote the hypothetical implies Lee actually saw someone without a limp follow Jordan over the bridge - definitely contradicted by the affidavit, but also definitely impeachable, so I'll set that aside for now and look at the wording of "I definitely didn't hear them limping".

This requires us to infer that Lee knows what a limp sounds like (I myself don't know what a limp sounds like) and that they definitely remember they didn't hear this sound. Given that Lee suggests Lee is not even sure Parker has a limp when Lee saw her ("Parker was walking a little behind, carrying a hiking pole, and seemed to have a bit of a limp—favoring her right leg.") I think this is unreasonable. But it could easily be made reasonable: If the questioner asked "Do you remember hearing that person walk with a limp?" and Lee said no. Now we're only inferring that Lee doesn't remember one way or another - a much more reasonable inference than Lee definitely remembers it didn't happen. This inference is reasonable from the last paragraph in the affidavit, in which Lee affirms they included everything they were told to include anything important that they remember.

I would also add that I'm pretty confident this invention would not cross the line into egregiousness, because the affidavit provides plenty of ways for this testimony to be successfully impeached. Lee must still testify on cross that they 1) knew Parker had a limp and 2) is still "pretty sure" the person following Jordan was Parker. A clever cross could blow this witness apart.
I don't think you can necessarily say that this isn't going to wind up being egregious. This is very very close to what the Yale team did on Sullivan. And if I recall correctly from what Bays said on Perjuries the first time, AMTA concluded the what they did on Sullivan was an egregious improper invention independent of what happened on Rivers. If that's true then this is yet another case where something could be either totally fine or egregious.

Even you admit its a case where the question of whether its invention is a hard one. And its also the kind of thing I've seen all over the circuit. We can't have places where the question of whether its invention is a hard one, but if it's fine it's fine and if it's not fine its egregious and therefore sanctionable.

And again, this is the kind of question AMTA easily could have cleared up in their FAQ if they had wanted to. So why didn't they?

As a meta point, Pacificus, I think the thing I would tell you is that maybe you get what's going on and it's really clear to you. Thank you for trying to explain to the rest of us. But I count a bunch of mock nerds here who aren't finding it clear. Whether something is clear is really an empirical question. If a lot of people don't understand it, then it's not clear. If you had a teacher who gave lectures that only a third of the class understood, even though the whole class was smart and good at the subject, you would not say that that lecturer was a clear lecturer. In this case there are a lot of people here saying they don't understand. There are even more on MTC. Therefore, it is not clear. And part of what terrifies me further is that the people on this site are usually the people who know mock the best. We pay close attention. We really think about mock things all the time. If it's not clear to us, I really doubt its going to be clear to the people who don't pay super close attention. But those people matter too. You shouldn't have to do a super close read of Impeachements or Perjuries and dig through four years of sanction decisions and memos etc in order to understand this rule and compete in a way where you won't get sanctioned. And right now, I think that's a real risk.
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CRC Guidance Memo Empty Re: CRC Guidance Memo

Sun Dec 22, 2019 5:04 pm
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Like there isn't a rule that says you can't act shifty. The rule just says you can't say you lied.

I guess I would say the strong implication from FAQ #6 in the CRC memo is that this is not allowed. "Trying to get around the invention-of-fact rules by using accents, costuming, or other character development is not allowed." Clearly what the witness says is not all that is considered when AMTA looks at an invention of fact complaint. While that FAQ specifically deals with facts about the witness, I think it strongly suggests non-verbal conduct may also add up to an invention of fact. I would suspect the reason AMTA won't say "you can't act shifty" is because acting shifty has long been a part of being a mock trial witness - think about all the witnesses who fake a NYC accent and imply they are mobsters. That's just fun, and an effort to score points by being entertaining. But what you can't do is act shifty in response to questions about the veracity of your affidavit, because that's recanting the affidavit. It is true that the Bailey and Yale cases also involved verbal recantations. The word in the rule is "testimony" - does a person's testimony include their nonverbal as well as verbal conduct? I tend to think it does, because otherwise the answer to FAQ #6 makes no sense.

If a lot of people don't understand it, then it's not clear.

I guess I don't disagree there is some lack of clarity, and I don't mean to be dismissive of concerns, but I have two feelings about it:

a) To some degree this lack of clarity is definitely intentional. AMTA is trying to discourage all material inventions of fact, so they will not issue a memo which explains how to violate rule 8.9 without getting sanctioned. I think you can divine where that line is, but I think it's perfectly fair that AMTA doesn't want to explain it. This does create, as others have noted, potential problems given that some teams are coached by board members. But to some degree those problems are inescapable given the very odd nature of having a rule that is designed to not be enforced by the board, unless it is violated in an egregious way.

b) At a certain point, the rules cannot be made more clear. How would someone else re-write or re-interpret rule 8.9? How should this be handled? AMTA is mostly volunteers, I doubt the CRC can spend the whole year issuing advisory opinions. There is an eight page memo with examples and explanations, but at the end of the day the rule hinges on reasonableness and while that creates some gray area, it is a gray area that exists in a lot of real world law and not one easily avoided.

One option I guess is to go back to the way things used to be, which was basically a Wild West of invention. When I competed, the operating assumption was that Rule 8.9 was just not something you really could ever file a complaint over. AMTA had never sanctioned anybody for violating 8.9 and it was hard to imagine that they would unless you like, re-wrote the affidavit or something. Inventions were part of the game; if the other guys thought of one that couldn't be impeached, I just thought "damn that was smart". Seeing stuff that would be sanctioned now was common at the NCT and ORCS.

Is that the way to go? I legitimately don't know. I still had fun competing under those rules. But I also see the unfairness of the "universe breaking" inventions that some teams have adopted as a strategy, and I agree with the outcome of every one of the three published sanctions memos on Rule 8.9.
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CRC Guidance Memo Empty Re: CRC Guidance Memo

Sun Dec 22, 2019 5:20 pm
Pacificus wrote:
Like there isn't a rule that says you can't act shifty. The rule just says you can't say you lied.

I guess I would say the strong implication from FAQ #6 in the CRC memo is that this is not allowed. "Trying to get around the invention-of-fact rules by using accents, costuming, or other character development is not allowed." Clearly what the witness says is not all that is considered when AMTA looks at an invention of fact complaint. While that FAQ specifically deals with facts about the witness, I think it strongly suggests non-verbal conduct may also add up to an invention of fact. I would suspect the reason AMTA won't say "you can't act shifty" is because acting shifty has long been a part of being a mock trial witness - think about all the witnesses who fake a NYC accent and imply they are mobsters. That's just fun, and an effort to score points by being entertaining. But what you can't do is act shifty in response to questions about the veracity of your affidavit, because that's recanting the affidavit. It is true that the Bailey and Yale cases also involved verbal recantations. The word in the rule is "testimony" - does a person's testimony include their nonverbal as well as verbal conduct? I tend to think it does, because otherwise the answer to FAQ #6 makes no sense.

Interesting. That's not how I read #6 at all. I thought #6 was just supposed to prevent teams from like putting the witness in a wheel chair and then being like "ha! how could she possibly have killed the kid?" or Doing the gotcha thing where they have the witness act an identifying feature on defense and then make a big deal about the fact that the P eyewitnesses didn't identify it (like that one team did on Morrison).

I can see you argument that maybe it would apply to acting shifty too. But I certainly wouldn't have guessed that from reading the memo.

Again, I think this is a case where, given how common this kind of thing is, AMTA should have spelled it out more.




Pacificus wrote:
If a lot of people don't understand it, then it's not clear.

I guess I don't disagree there is some lack of clarity, and I don't mean to be dismissive of concerns, but I have two feelings about it:

a) To some degree this lack of clarity is definitely intentional. AMTA is trying to discourage all material inventions of fact, so they will not issue a memo which explains how to violate rule 8.9 without getting sanctioned. I think you can divine where that line is, but I think it's perfectly fair that AMTA doesn't want to explain it. This does create, as others have noted, potential problems given that some teams are coached by board members. But to some degree those problems are inescapable given the very odd nature of having a rule that is designed to not be enforced by the board, unless it is violated in an egregious way.

I guess my concern isn't that AMTA didn't manage to get a test that's 100% accurate all the time. I know that's not possible. But I do think that when there are things that are super common and we now have evidence that multiple people asked about them, I don't get why AMTA wouldn't answer those ones. Sure, will teams find ways to push the boundaries in new ways down the line in ways we haven't thought up now? Of course they will. But they could at least have done there best to answer the grey areas that have already been pointed out to them.


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CRC Guidance Memo Empty Re: CRC Guidance Memo

Mon Dec 23, 2019 12:46 am
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I'll attach the survey response I wrote here as well. Mine wasn't as thorough as some of the others that have been posted above — I think they all show important points where more clarity would be useful, I simply raised a few that stood out to me in particular. Frustratingly, several of the passages that brought me the most confusion were directly emphasized in the memo without actually being explained.

The most blatant of these was the rule that non-contradictory material inventions are allowed on cross "as long as the witness’s answer is responsive to the question posed." The memo quoted this line, italicized it, noted that they had added the emphasis, and... that's it. No clarification on what sort of answers count as responsive. I've seen a dazzling variety of interpretations of that term, and it's very important to know which one AMTA intends. Because in my experience it's super common for a witness on cross to respond to a yes-or-no question eliciting a bad fact, then add an invented explanation or justification for the fact that is consistent with but not inferred from their affidavit. I'm inclined to believe that's okay, but I'm still totally in the dark as to what sort of answers fall within the scope of the "responsive" constraint.

Likewise, I'm still not sure exactly what set of materials a witness is permitted to testify from on direct, what set they are prohibited from contradicting on cross, and whether those two sets are even different. The memo clarified that the term "affidavit" can be broad enough to include even maps and drawings, but it's not clear whether it covers all exhibits created by a witness or just those designated as being part of their affidavit. It also introduces the term "incorporated exhibits" as something distinct from an affidavit, without any explanation of what they include or what restrictions apply to them. In particular, there's no discussion of exhibits that a witness did not create but did see before or during trial, and how they can contribute to the witness's testimony.

Then of course there's the issue of reasonable inference, where it really feels like we're running against a brick wall. The memo talks about this for paragraphs, but it doesn't seem to give much new information. I don't see how the notion of a "reasonable AMTA competitor" is much more clear than a "reasonable person" — I'm still not sure whether I'm supposed to be imagining a set of reasonable competitors who must be in total consensus, or a single competitor who reaches one set of conclusions that differ from my own in a way that's somehow predictable to me. It doesn't help that we only get one and a half examples of inferences that AMTA actually considers reasonable. Furthermore, some of the language they use is almost comically ambiguous. After noting that it's not enough for an inference to be consistent with the affidavit, they write "Rather, the specific conclusion must be drawn from the facts." Is this saying that a reasonable inference is a conclusion that must be drawn from the facts? Or that a reasonable inference must be a conclusion that is drawn from the facts? Because those are very different things, and my brain keeps switching between the two parsings.

There was one spot where I felt that the memo helped clear up some lingering confusion: on how the availability of an in-trial remedy is relevant to their sanction decisions. This was something mentioned in previous sanction letters but not included in the (admittedly non-exhaustive) list of relevant factors in the rule itself. It was nice to get some discussion of how that factors into their judgments of egregiousness, though I agree with some other posters that the more important issue for competitors is where the line between proper and improper inventions falls in the first place. Still, I give AMTA credit for adding some clarity there.

But there were also places where I felt this memo only added confusion. It made some sweeping generalizations about the purpose of the rule that seem to obscure the distinction between what's allowed on direct examination and what's allowed on cross. For instance, they write: "it is absolutely not a permissible strategy to "bait'" the opposing team into impeaching witnesses on facts that may or may not be material." And a bit later on: "Teams are not permitted to “fill in the gaps” of a witness’s knowledge to help their case." It's been my understanding that both of those tactics are explicitly permitted on cross and re-cross examination, so long as a witness's answers do not contradict their affidavit and are responsive to the questions posed. Yet AMTA seems to presenting them as something that's fundamentally unsportsmanlike. I've already seen the distinction between direct and cross inventions get routinely glossed over in the discussion surrounding recent sanctions, and this rhetoric from AMTA only seems to conflate them further, setting the stage for attitudes of righteous indignation toward actions that the rules are structured to allow.
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CRC Guidance Memo Empty Re: CRC Guidance Memo

Tue Dec 24, 2019 2:12 am
@Pacificus: Your definition of egregious is pretty similar to what my understanding had always been before last year - that things become egregious when they’re game-breaking in some way, something that abuses the nature of mock trial to put the crossing attorney in an impossible situation. And I think if this is the standard, you’re absolutely right that that’s what prevents most sanctions, that’s the point where most inventions will never get close to the line, because if you get the reasonable inference standard wrong but it’s not game-breaking then the crossing attorney just impeaches you and you lose points. But I think the really, really crucial point is that AMTA doesn’t seem to just be using the game-breaking standard, and the memo implies that whether something could be impeached is also not necessarily a determining factor in whether it’s sanctionable (at least, that’s how I read the bit about a team not giving up their right to file sanctions if they don’t try to impeach).

Instead, AMTA seems to be saying in the memo that something can be an egregious improper invention without being game-breaking at all. Their list of things that can make something an egregious invention includes “the significance of the invented facts to the case, the use of the invented facts in argument, repeated use of the same invented facts across trials or throughout a single trial, and evidence of prior planning or premeditation.'' Notably, all of these things are things that are actively good parts of testimony if the fact is not an invention. And if egregiousness can be based solely on materiality and premeditation, that’s when the only difference between a completely fine piece of testimony and an egregious improper invention is the “reasonable inference” line.

That’s entirely why I think it’s important to define. If egregiousness is “things that are game-breaking”, you’re right that it’s hard to get to accidentally, but if it’s not, it’s really easy to get to accidentally, and we deserve to know which of those it is.

Pacificus wrote:So, a good shorthand for looking at an invention you want to use is, can the opposing team successfully impeach it? If the answer is no, you're probably into egregiousness.

Again, I think the game-breaking standard and “is it possible to impeach” standard you lay out would make sense, and would be along the right lines for defining this rule better (although they still leave open some questions that I asked in my survey, I’d love to hear your thoughts on them). But crucially, I don’t think those standards match what AMTA has actually said in their memo, because many of their stated factors to consider in determining egregiousness are just about the significance of the fact and have nothing to do with either being game-breaking or hard to impeach.



Pacificus wrote:I think the answer is definitely no. Nobody could read any of the affidavits in the current case and believe "this witness lied about everything" is a reasonable interpretation of the affidavit, and I don't think it's a close call.

To be clear, I also definitely don’t think “this witness lied about everything” is a reasonable interpretation of any affidavit. But since a theory doesn’t have to be reasonably inferred, that doesn’t have any impact on whether I can run a “blame your own witness” theory in the first place (especially in a case with a non-affidavit defendant, where the theory doesn’t need to be based on the witness’s own testimony). My question is instead based on whether implication counts as testimony - if it doesn’t, a witness I want to blame can testify only to things within their affidavit but imply through acting that they are biased or lying, and if it does, they can’t, and people have been breaking that rule in the past without knowing it.

Pacificus wrote:Students were suspended in March of 2018 for doing basically this.
Pacificus wrote:Clearly what the witness says is not all that is considered when AMTA looks at an invention of fact complaint. While that FAQ specifically deals with facts about the witness, I think it strongly suggests non-verbal conduct may also add up to an invention of fact.

In the Bailey sanctions, AMTA specifically said they didn’t look at the tone of the witness. In both past sanctions that involved recanting, specific lines were pointed out as the things that actually violated the invention rules, and there was never any general statement about the whole approach to a “blame X” theory being problematic. So after reading about the Bailey sanctions, what I took from that is “okay, if you want to cast doubt on your witness’s testimony, you can’t straight up say ‘I lied in my affidavit’ or ‘I only said that because my mom was in the room’, those lines are recanting.” I certainly didn’t get “I should never run a theory that involves discrediting my witness” from that memo. Was I supposed to? If so, why not say it outright?


Pacificus wrote:I don't think this is a particularly new standard either. As mentioned I stopped competing a while ago, but neither there nor in judging in the years since do I recall it being a common strategy for teams to deliberately attempt to recant the affidavit by implication.

Huh. Maybe my experience is skewed for some reason but I can name half a dozen teams off the top of my head who ran hostile “blame your own witness” theories during the AMTA season in the Hendricks case, and those were just the ones I personally knew of. And while I get that AMTA doesn’t police invites I can name another half dozen teams I’ve personally seen running those theories this fall, and a dozen more I’ve heard about. If it’s something AMTA wants to eliminate, I would LOVE to hear an official, specific announcement about it before the regular season starts, because I think there’s a non-trivial chance teams won’t get that from this memo.
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CRC Guidance Memo Empty Re: CRC Guidance Memo

Tue Dec 24, 2019 4:11 am
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Pacificus wrote:
Can the implication of a witness’s testimony be invention? Can a witness act non-credibly in a way that implies that their testimony is false (as I’ve heard many teams seem to be doing this year)? What facts from the real world we can assume are true in Midlands and use to make inferences from the affidavit?

Elizabeth, I think the answer to your questions I quoted above is pretty obvious from the memo, and the answer is: Don't try to find out. (Denying an incorrect quote from an affidavit is fine and always has been, and it's pretty obvious nobody has ever been sanctioned for that with out many other factors being in play.)

Rule 8.9 puts inventions into three zones: 1) Proper inventions, 2) improper inventions we won't issue sanctions for, and 3) egregious improper inventions. Everybody who is upset seems to want to know how to stay in zone #2. AMTA's answer is: stop trying to do that. Stay in zone #1, don't play with zone #2, and you'll never end up in zone #3. Clearly, AMTA got a lot of messages from people who want to know how to stay in zone #2:

In response to our recent survey regarding improper invention, respondents asked a lot of questions about the circumstances in which AMTA believes sanctions are appropriate for improper invention. We understand the curiosity. However, let us underscore that teams should work hard to avoid being in that position in the first place.

This CRC stance is what disappoints me the most about their memo. Like I pointed out in my survey responses, I believe the game has fundamentally evolved and the rules need a refresh to catch up. There's nothing wrong with that, it happens in any environment with innovation on one side and regulation on the other. However, telling teams just to avoid the gray area is lazy at best and intellectually dishonest at worst.

I frankly don't get why the CRC keeps doubling down on the current invention rules. Nobody would blame them if they came out with a new set of rules better tailored to the mock trials of today. But they seem intent on sticking with the current rules, even as teams mine the gray area for an edge over their opponents.
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