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CRC Guidance Memo

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CRC Guidance Memo - Page 2 Empty Re: CRC Guidance Memo

Tue Dec 24, 2019 4:44 pm
[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.

I think that's slightly different from my reading of the Bailey sanctions. The Bailey sanction memo says: "When determining if these inventions were egregious, the CRC looked at the statements made, rather than the tone or demeanor of the witness..."

The difference in wording here is that AMTA is saying the tone was not a part of the egregiousness determination - however, I think it was a part of the determination that this was an improper invention. Whether or not it is egregious (and therefore sanctionable) is a related but different question.

Rule 8.9 defines two types of invention: contradictions ("Any instance (on direct, cross, re-direct, or re-cross examination) in which a witness introduces testimony that contradicts the witness’s affidavit") and unreasonable material inferences ("Any instance on direct or re-direct examination in which an attorney offers, via the testimony of a witness, material facts not included in or reasonably inferred from the witness’s affidavit."). The key to your question is, how does AMTA define testimony? The rulebook does not define it.

I think the guidance memorandum makes it clear that non-verbal cues or other forms of non-verbal testimony could violate 8.9. Consider an extreme example - the witness shows up to the round wearing a t-shirt that says "I lied in my affidavit". Or, as the guidance memo suggests, the defense crosses P fact witnesses on what the Ryder's voice sounds like. They then call the defendant who uses a heavy accent. At no point here would the witness be saying something which contradicts the affidavit (in fact, Ryder is not even subject to rule 8.9), but there is still a clear material invention of fact. The guidance memo also hints that this could violate rule 7.6.

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?

I suspect part of it is a concern about dampening inventive "shady" witnesses who are not disavowing the affidavit. Having a witness be a shady character does not mean a team is making them an alternate suspect or that they are recanting the affidavit. And as you say, there's nothing wrong with running a "our own witness did it" case - if the facts support it. I'm just gonna say that, especially with the latest changes to State v. Ryder, I don't think this case lends itself to that theory, and the harder you have to work to fit a case theory to the facts, the more likely it is that something is going to cross the line into invention.

Also, the board is not a monolith, and it's quite possible they themselves do not agree on what should be encompassed by the rule. We've seen at the last couple of board meetings a motion to change the rules and ban teams from calling hostile witnesses, which has not passed. So clearly there is at least some disagreement. The board can agree that the instances that have been sanctioned so far are beyond the line without agreeing entirely on where the line is.

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).

The memo elucidates the factors that concern you, and then goes on to add: "In general, AMTA is likely to sanction improper inventions that are designed to get around and/or eliminate the effectiveness of impeachment as a remedy. " Then it lays out three major categories likely to draw sanctions, two of which we have already seen in practice (we've seen sanctions issued for recanting the affidavit and for using witness characteristics to break the fourth wall). The one we have not (to my knowledge) seen is this: "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."

My takeaway from the memo is that the board does not want teams to do something like this: D team calls two fact witnesses, who invent small, seemingly immaterial facts. D team then calls no-affidavit Ryder, who invents large portions of testimony which suddenly make those previously small, immaterial facts extremely relevant. This is also a scenario where impeachment as a remedy is essentially destroyed, because impeaching the witnesses who appear to only be inventing "small" facts is well-known to cost points in front of the judges. Nor can the defendant be impeached, since they do not have an affidavit. The memo makes clear that this tactic is definitely not allowed: "Put another way, it is absolutely not a permissible strategy to “bait” the opposing team into impeaching witnesses on facts that may or may not be material." This is also probably why the board does not require a team to actually attempt an impeachment in order to make a Rule 8.9 complaint.

It is possible to read this memo as broadly as you do by focusing on the factors listed. But I am reading it in light of the sanctions that AMTA has already issued, which gives me the belief that AMTA is really trying to target "game breaking" moves that destroy impeachment as a remedy while also reserving some discretion to itself in case teams cook up some new and unexpected moves in the future.

If AMTA actually does go ahead and sanction a team for inventions that were not of the game-breaking variety, I guess I'll be on here eating my hat. But I don't think that is what's being suggested by the CRC memo.
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CRC Guidance Memo - Page 2 Empty Re: CRC Guidance Memo

Tue Dec 24, 2019 5:19 pm
kmcf8, I was looking over your submission, here's a couple of points:

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 one of the things your example highlights is the fact that whether or not an invention is material is going to be sometimes heavily impacted by what the affidavit says. If the affidavit says "I've never been to Illinois" and the witness testifies at length about how they have never been to Chicago, then there's no material invention. Your survey response noted that you yourself didn't think this demonstrative made any material difference in the case. I think almost everybody would agree, myself included. The question in materiality is not "does this score my team points" - it is "does this change the material fact pattern of the case in a way that gives the P or D an advantage".

The most confusing piece of the recent sanctions for me was definitely the Sullivan portion, primarily because I’ve seen and done things fundamentally similar (relying on the fact that a witness didn’t mention something to assert that it didn’t happen) in mock trial all the time. And after spending a lot of time thinking about it I’ve constructed some justifications for what made this one different, but frankly, I have no idea if my
explanations are the same AMTA has, if there’s some other distinction I’m missing, or if I’ve been unintentionally breaking the rules for years.

I don't know enough about how the Sullivan testimony played into the CRC's sanction of Yale. The only document I have that addresses it at all is Bays' appeal to the Board, which doesn't include a transcript of what was said like there is for the Rivers cross. If someone has something like that, and wants to lay it out for me, I could probably better understand the arguments.

In general, think inferring facts by omission exists in a weird space in mock trial, because every affidavit usually says the witness was told to include everything they know that is relevant. I think this creates a strong inference that when a witness describes something in detail or with great confidence, anything they did not include could be inferred not to have happened or not be relevant. When the witness' affidavit states that they are uncertain about something, I think the same inference can be a lot harder to draw. I also think there's a difference between adding a fact and highlighting the absence of a fact, like I said in response to your Lee example.
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CRC Guidance Memo - Page 2 Empty Re: CRC Guidance Memo

Wed Dec 25, 2019 5:09 pm
kmcf8 wrote: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.

I think this is a super important point. Some people seem to be taking the stance that if you're not trying to make an improper invention you won't get anywhere near being sanctioned for egregiousness, but that only makes sense if you take "egregious" to just mean "really really inventy." And the rules make it clear that's not the case. On the contrary, they appear to be entirely separate dimensions of a witness's testimony, where it can meet all the factors of egregiousness without causing any problem at all, right up until an inference reaches slightly beyond what's considered reasonable — at which point, we are told, sanctions are appropriate. No wonder people are worried.

Pacificus wrote:The memo elucidates the factors that concern you, and then goes on to add: "In general, AMTA is likely to sanction improper inventions that are designed to get around and/or eliminate the effectiveness of impeachment as a remedy."

But here's the thing: eliminating the effectiveness of impeachment as a remedy is also a positive thing for normal testimony to do. If you think your invention is proper, of course you'll be trying to frame it so that it isn't impeachable. So let's say you're absolutely right, and a primary basis for AMTA's sanction decisions is whether an invention is designed to evade any attempt to impeach or discredit it within the framework of the mock trial game. That doesn't make it any more unlikely to be sanctioned for something you didn't think was an improper invention. A team could make an inference that they see as material, premeditated, unimpeachable, and reasonable. AMTA could see that inference as material, premeditated, unimpeachable, and unreasonable. The team thinks what they did was totally in line with the rules; AMTA thinks it's egregious and deserving of sanctions. As kmcf8 pointed out, some of the highest-stakes cases will come down entirely to judgments about what inferences are reasonable.
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CRC Guidance Memo - Page 2 Empty Re: CRC Guidance Memo

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