AMTA is not banning theories that paint swing witnesses as alternate suspects

This is the only logical conclusion to make after AMTA has refused to provide a definitive answer. We know from here and several other forums that AMTA was repeatedly asked some variation of this one question: "Can a swing witness on defense imply they are the actual murderer by acting creepy?" AMTA did not answer it in the FAQ of the memo and has not responded to other requests to answer this question. If the answer was "no," then AMTA surely would have provided the clarity so frequently requested by the community.

Sir Mocksalot wrote:If the answer was "no," then AMTA surely would have provided the clarity so frequently requested by the community.

AMTA:

What is most interesting to me re: this is that the current AMTA rulebook protects a witness characterizing the "persona" of their role. Persona (defined by Oxford) is the aspect of someone's character that is presented to or perceived by others. Here then, it seems that implication to a jury/judge by a witness is protected and even endorsed by the rulebook.

On the other hand, the recent memo writes that using seemingly innocuous characterizations that are later corroborated by the defendant is not only not endorsed by AMTA, but "are likely to be considered egregious improper inventions." I initially understood this to mean characterizations in the physical sense (accent, race, etc.), such as those discussed in FAQ 6 in the Invention of Fact Memorandum because they capitalize on the limitations of mock trial. But teammates of mine have voiced concern that perhaps characterizations are to be interpreted more broadly...

I struggle with this. Certainly, both sides imply all sorts of material facts through the structure, organization, and content of direct examinations. Is this implication limited to text? Or can the way a witness behaves on the stand be a fair means of implication, even if they invent no facts not contained in their affidavit?

I agree that AMTA hasn't provided a definitive answer to this question. I don't believe, though, that means the only logical conclusion we can draw is that alternate theories and implications on direct examination via characterization are allowed. I find the current guidance insufficient and am curious what others in the community think about this.

Am I remembering it wrong, or was State v. Hendricks designed with multiple alternative suspect theories? With some swing witnesses built with enough case facts in their statements-- and others-- to run a theory that they did it instead of Dylan? I know the easy Defense case theory blamed Mickey or whoever else Carmen was horny-murder texting... but, didn't Morgan and Charley have enough groundwork to make it possible to paint them as the perpetrator? I'm honestly asking. I think I blacked out most of that season after playing Dylan the entire time.

Honestly... I am getting the effect that AMTA is implying that if you can run a successful alternative suspect theory without getting torn to shreds by the fact that every team has the Invention of Fact Memorandum printed and ready to pull out at Regionals... you can have it. And I do not disagree. Maybe I'm just not thinking widely enough, but I can't think of a witness this case where the Defense can imply that they did it without inventing material facts. I mean, yeah, you can go full distasteful and play Armani as a creep around the campground... but I can't imagine a case theory like that scoring well enough to make it worth it. And, if I'm right about State v. Hendricks, I don't see AMTA banning it if they want to pull it out once in a while.

Does anyone remember any cases where there was something substantive painting a swing witness as an alternative suspect? Even though Parks v. Duran was about a murder, I think it was civil... It did not have any reasonable alternative suspects that were witnesses, anyway. I sat the next season out (2015-16?) and never read that criminal case. Anybody know?

fraternelle wrote:Does anyone remember any cases where there was something substantive painting a swing witness as an alternative suspect? Even though Parks v. Duran was about a murder, I think it was civil... It did not have any reasonable alternative suspects that were witnesses, anyway. I sat the next season out (2015-16?) and never read that criminal case. Anybody know?

If I recall the Rachterworld case correctly, there was some evidence in the fact pattern that allowed defense teams to paint the park owner as having committed theft from his own business for tax purposes, and claim the defendant was framed.

Not exactly the same, but in State v. Dawson (DUI VHom case) the defendant claimed to have swerved to avoid an animal (a deer) in the roadway. One of the swing witnesses testified that his dog had run off around the time of the crash, and since that witness lived near the crash scene, claiming their dog caused the crash (not being drunk) was a common defense theory.

Okay I think the point now officially stands. We know several teams ran swing witnesses that implied they were the murderer. There are no sanctions on AMTAs site from Regionals. Thus, the teams that ran those theories did not get sanctioned and AMTA is okay with these theories.

Sir Mocksalot wrote:Okay I think the point now officially stands. We know several teams ran swing witnesses that implied they were the murderer. There are no sanctions on AMTAs site from Regionals. Thus, the teams that ran those theories did not get sanctioned and AMTA is okay with these theories.

Frustrating.

I'll use a personal example, even though it might not leave me as anonymous as I originally hoped to stay. C'est la vie; I'm a senior who didn't get out of Regionals, at least. Less ramifications.

We ended up hitting a "Sam Fisher did it" defense while we were pursuing IM; it was clever, and the other team did it very well. I can't see how they will still be able to run it with the case changes, so I don't feel like a total asshole describing it.  But... it felt impossible to overcome. Each witness was asked if the Officer had ever asked them about Sam Fisher, and the Defendant wrapped up the case by saying she saw Sam Fisher kill her daughter. Does AMTA expect the alternative suspect theory to not affect points? The Detective had to say that he never investigated Fisher, followed by the next two witnesses having to agree that the police had ever asked them re: Sam Fisher. I understand that the ultimate result of the trial should be irrelevant to scoring inside the round, but there was no way to soften that blow without an impeachment.

Before anyone says anything, we did our best to impeach the Defendant. However, we did get a judge at the end asking why the Detective never investigated Sam Fisher, when they were clearly a suspect. Exhausting.

We are a new team, so it might just be a lack of skill on our part; however, I have trouble thinking how this particular scenario doesn't fall under the third example on the memo:

Third, seemingly innocuous inventions that are combined across witnesses to build a case theory
are likely to be considered egregious improper inventions. The improper strategy of using a trail
of minor, improper inventions to build a case is not new to AMTA, but it seems to have seen an
uptick in popularity as teams have tried to corroborate the otherwise unsubstantiated stories of “no
affidavit” defendants. For example, 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.

They also write that:

However, a team’s theory as
evidenced by the arguments it makes in Opening, Closing, or through crosses are often considered
by AMTA and highly relevant to the materiality and egregiousness of an improper invention in
witness testimony. If AMTA finds that an attorney argument in statements, objections, and overall
theory created an “alternate reality” in the trial that was designed to reduce and/or eliminate the
effectiveness of impeaching a witness’ invention of material fact, AMTA will consider this as
evidence in determining whether the inventions were egregious under Rule 8.9(6)(b).

Were we just being sore losers when our first instinct was to say that these were egregious inventions of facts? I know that is always a possibility. But... anybody feeling kind enough on how to avoid these situations on future seasons, if AMTA is going to continue to allow them? I can't imagine these theories being O.K.'d without there being some sort of way to overcome them.

First, Ryder is allowed to invent facts. The transcript is not an affidavit for purposes of the invention rule. So Ryder can say whatever they want about Sam Fisher.

Second, Fisher is mentioned in other witness affidavits. Certainly nothing suggests Fisher is a suspect, but for a witness to reference a fact from the affidavit in a way that makes it seem more suspicious is not an invention because the fact is in the affidavit.

Third, Fisher is not a swing witness. In fact, Fisher is not a callable witness at all. So this does not raise the issue in the original post, namely the practice of calling your own witness as a hostile one and having them act in a shady, non-credible, or combative manner in order to implicate them as the murderer. It’s not like blaming the murder on Kelly Doos or Corbin Dallas - it’s more like blaming it on Alexi from Out of the Blue Bonds.

I have an odd view of alternate suspects. When it comes to alternate suspect theories, there's a certain way to make them effective if you're calling the witness, and that isn't flat out accusing them of killing Parker. Coming from an area where alternate suspect theories are not well-received, my team has come to embrace alternate suspects not to unequivocally argue they killed Parker, but to highlight how poor the investigation was. When you look at witnesses like Kelly Doos and Cameron Lee, you see that there are some facts that make them sus. When our team would call Cameron Lee, we had an eccentric characterization of them. We didn't accuse Cameron Lee of doing it, but we pointed out how they were never treated as a suspect. When our team would CROSS Cameron Lee, we would get more ambitious: we'd use Rodriguez and Ryder to show how Cameron Lee was on the Leckrone Loop, we'd show that nobody can confirm Cameron Lee was at Muskie Pond, that Lee went to the campground alone, etc. It made our team especially strong against the standard Lee/Doos/Chesney IM call: It made the prosecution's witness call two suspicious characters and a bad investigator. If you're a skilled team, learn to adapt to different witness calls and try to avoid accusing your own witnesses of killing Parker. I've come to view teams accusing their own witnesses to be a cop-out: it's something that'll throw off the prosecution team, but ultimately something that isn't super dependent on the other team's performance.

For me, it always comes down to:
- Blaming a non-witness --> Ok. Prosecution teams can respond to that.
- Blaming a prosecution witness --> also ok. This is the angle that defenses took in RacheterWorld; that the park owner (prosecution guaranteed witness) or the robbery victim (swing witness if called by prosecution) actually faked the whole thing to defraud the park.
- Blaming your own witness --> not ok. Doesn't show off your ability to "direct" a witness, involves you calling a witness solely to accuse them. A judge would probably hate this too

DoYouRemember wrote:For me, it always comes down to:
- Blaming a non-witness --> Ok. Prosecution teams can respond to that.
- Blaming a prosecution witness --> also ok. This is the angle that defenses took in RacheterWorld; that the park owner (prosecution guaranteed witness) or the robbery victim (swing witness if called by prosecution) actually faked the whole thing to defraud the park.
- Blaming your own witness --> not ok. Doesn't show off your ability to "direct" a witness, involves you calling a witness solely to accuse them. A judge would probably hate this too

I will add; there's an educational and ethical rationale for banning the practice. I can say its "bad mock trial" all I want, but I think the real problem here is that it cuts against the ethical values lawyers undertake.
You're telling me you went to an unrepresented person, convinced them to come to court, to accuse them of a crime and put them at risk of perjury? You did this without telling the judge or the prosecutors? That's the part that's too much.

DoYouRemember wrote:

I can say its "bad mock trial" all I want, but I think the real problem here is that it cuts against the ethical values lawyers undertake.

But I think the fact that it is "bad mock trial" is still important to keep in mind. When a team calls a witness for the sole purpose of asserting they're an alternate suspect, it can make it impossible to cross the witness. The directing attorney knows exactly what the witness will say on "direct", but the crossing attorney has to deal with a witness whose entire purpose in the trial is to look sus.

@fraternelle, while I don't pretend to be an expert on this topic, I think that from what you have described the other team didn't necessarily make an egregious invention of fact, but there are certainly many ways for your team to deal with this in trial. At first glance it may seem insurmountable, but in my experience pointing that out can actually be to your advantage.

Based on the fact that the judge responded to at the end with: "The police should have investigated Sam Fisher." I wonder if you didn't call Chesney. I think if Chesney is called it is very easy to answer with: "I had zero evidence aside from a scribble on a napkin to suggest that the person Sam Fisher was even a person of interest in this case". I can't imagine a judge who would think that the police should have investigated based on the napkin alone. Of course the defendant's testimony makes Fisher sound important, but just point out like why didn't they tell us that months ago so we could investigate Sam Fisher and they wouldn't have to pay all the legal fees to be here. Like how ridiculous is it that after the months and months of discovery, the defendant never thought to mention: "Yeah I saw my daughter get murdered, it was this guy". I personally love a closing line of: "Did the defendant want to go to trial and waste everyone here's time?"

I do not find a defense like this compelling, and I think that there are many fairly easy ways to defend it in trial. It requires a lot of quick thinking though.