Mock Trial Instruction Packet

Transcription

1 Mock Trial Instruction Packet C:\Documents and Settings\AStrobl\My Documents\3 - Living Law (LL)\3 - Criminal Law\2 - Criminal Law II - Mock Trial\1 - Trial Packet\1 - Mock Trial Instruction Packet.doc

2 Table of Contents Table Roles in a Criminal Trial... 4 Steps in a Trial... 4 Discovery... 6 Brief Overview:... 6 Detailed Overview:... 6 Basic Trial Procedures... 8 A. Pre-trial Preparation... 8 B. Courtroom & Participants... 8 C. Beginning the Trial... 8 D. The Trial... 8 Opening Statements Purpose: Overview: Test Your Opening: Opening Statement: Prosecution Purpose: Include: Avoid: General Walkthrough: Opening Statement: Defense Purpose: Include Avoid: General Walkthrough: Direct-Examination Purpose: Rules for Direct-Examination: Include: General Walkthrough: Cross-Examination Purpose: Rules for Cross-Examination:

3 General Walkthrough: Rules of Evidence A. Witness Examination (Evidence of Character) Overview: B. Witness Examination Overview: I.) Refreshing Recollection Overview: General Walkthrough for Refreshing Recollection: II.) Impeaching a Witness Overview: General Walkthrough for Impeaching the Witness: C. Hearsay Evidence Overview: D. Opinion Testimony Overview: E. Relevance of Evidence Overview: F. Introduction of Physical Evidence Overview: General Walkthrough for Admitting Physical Evidence: G. Objections Closing Arguments Glossary Glossary 1: Courtroom Layout: Direct Exam Glossary 2: Courtroom Layout: Opening Statement & Cross Exam Glossary 3: Team Layout and Strategy Resources Used to Create Packet

4 Roles in a Criminal Trial (And what they do) Judge Attorneys Plaintiff/Prosecution Attorney Defendant s Attorney Defendant Witness Jury Bailiff Court Reporter The person in charge of the court. Rules on the admissibility of evidence, instructs the jury on the principles of law which apply to the case, and announces the verdict. Attorneys (both Prosecution & Defense) control the presentation of evidence at trial and argue the merits of their side of the case. They do not themselves supply information about the alleged criminal activity. Attorneys do not prove anything. Instead, they introduce evidence and question witnesses to bring out the full story. Is the side that represents the government and will present the case for the state (government) against the defendant. By questioning witnesses, they try to convince the judge or jury that the defendant(s) are guilty beyond a reasonable doubt. They suggest a motive for the crime and will try to refute any defense presented by the defendant. The attorney will give their opening and closing statement first, cross-examines the defense witnesses, and object to improper questions asked by the opposing attorney. All of this is done to provide enough evidence to meet the burden of proof and persuade the jury that their verdict should be in favor of the plaintiff/prosecution (guilty). Is the person(s) who represent the defendant(s) and will present the case on their behalf. They offer their own witnesses to present their client s version of the facts. They work to undermine the prosecution s case by showing that the prosecution has failed to prove its case beyond a reasonable doubt, that prosecution witnesses cannot be depended upon, or that their testimony makes no sense or is seriously inconsistent. The attorney gives their opening and closing statements last, cross examines the plaintiff/prosecution witnesses and objects to improper questions asked by the opposing attorney. All of this is done to provide enough evidence to persuade the jury that there is too much doubt for the prosecution to meet the burden of proof (beyond a reasonable doubt) and persuade the jury that their verdict should be in favor of the defendant (not guilty). This person is being accused of some wrong-doing. May be found guilty of a crime and/or owe money (depending on the type of case) if he/she loses the case. Gives his/her account of what he/she believes to be the facts in the case. Is asked questions by attorneys from both sides. Listens to the evidence and decides who wins the case. Announces that the court is in session and which judge is presiding. Swears in witnesses Takes notes on everything said and done at the trial. Steps in a Trial 4

5 5

6 Discovery Brief Overview: Discovery occurs prior to the trial (during the pre-trial phase), the discovery procedure involves the exchange of information between the prosecutor and defendant. Simply put, what this means is that both the prosecution and the defense MUST exchange information and both sides start the trial with the same information. This is done to ensure that the trial is as fair as possible. There are, of course, different state and federal rules of procedure, so the rules may be different depending on where the trial is. Examples of things sought in discovery are alibi witness statements, samples taken at the scene of the crime, and witness statements. While all of these things are exchanged during the discovery process certain things are exempt (and are not exchanged). One example of something that would not be exchanged is work product. Work product is material that reflects an attorney's impressions, conclusions, opinions, or legal research or theories. Detailed Overview: Rule 412. Disclosure to Accused: A. The State shall disclose to defense counsel the following material and information within its possession or control: 1. Names and last known addresses of persons whom the State intends to call as witnesses, together with their relevant written or recorded statements; 2. Any written or recorded statements and the substance of any oral statements made by the accused; 3. Any reports or statements of experts, including results of physical or mental examinations and of scientific tests, experiments, or comparisons, and a statement of qualifications of the expert; 4. Any books, papers, documents, photographs or tangible objects which the State intends to use; 5. Any record of prior criminal convictions, which may be used for impeachment, of persons whom the State intends to call as witnesses. B. The State shall inform defense counsel if there has been any electronic surveillance (including wiretapping) of the accused. C. The State shall disclose to defense counsel any material or information within its possession or control which tends to negate the guilt of the accused. (EXCULPATORY EVIDENCE) D. Matters not subject to disclosure: 1. Work product (legal research, records, correspondence, or reports to the extent that they contain the opinions, theories or conclusions of the State or of defense counsel) 2. Informants (informant's identity where his identity is a prosecution secret and a failure to disclose will not infringe the constitutional rights of the accused) 3. National security (where it involves a substantial risk to national security and where a failure to disclose will not infringe the constitutional rights of the accused) Rule 413. Disclosure to Prosecution: A. Notwithstanding the initiation of judicial proceedings, and subject to constitutional limitations, a judicial officer may require the accused, among other things, to: 6

7 1. Appear in a line-up; 2. Speak for identification by witnesses to an offense; 3. Be fingerprinted; 4. Pose for photographs not involving reenactment of a scene; 5. Try on articles of clothing ("If it don't fit, you must acquit!"); 6. Permit the taking of specimens of material under his fingernails; 7. Permit the taking of samples of his blood, hair and other materials of his body which involve no unreasonable intrusion thereof; 8. Provide a sample of his handwriting; 9. Submit to a reasonable physical or medical inspection of his body. B. Subject to constitutional limitations, defense counsel shall inform the State of any defenses he intends to make and shall furnish the State with the following material and information within his possession or control: 1. Names and last known addresses of persons he intends to call as witnesses together with their written or recorded statements and any record of prior criminal convictions known to him. 2. Any books, papers, documents, photographs, or tangible objects he intends to use as evidence or for impeachment; 3. And, if defendant intends to prove an alibi, specific information as to the place where he maintains he was at the time of the alleged offense. 7

8 Basic Trial Procedures A. Pre-trial Preparation 1. Discovery 2. Motions 3. Pretrial orders 4. Jury selection B. Courtroom & Participants 1. Judge 2. Attorneys 3. Witnesses 4. Jurors 5. Bailiff 6. Court reporter C. Beginning the Trial Bailiff Announces: Court clerks and bailiffs aid the judge in conducting the trial. In an actual trial, the court clerk keeps track of the court records. The bailiff provides the security of the courtroom and also escorts witnesses and juries in the courtroom. When the judge has announced that the trial shall begin, the clerk says: All rise; the Honorable Judge (Judge s Name Here) presiding. Court is now in session. Please be seated and come to order. When the bailiff has brought a witness to testify, the clerk may swear in the witness as follows: Do you solemnly affirm that the testimony you may give in the case now pending before this court shall be the truth, the whole truth, and nothing but the truth? For the Mock Trial, many times a guest judge will swear all witnesses in at once to speed up the process. D. The Trial 1. Plaintiff/Prosecution rises and introduces him/herself: "May it please the court and ladies and gentlemen of the jury, my name is, counsel for in this action." 2. Attorney for Plaintiff/Prosecution always delivers his/her opening statement first. 3. Defendant/Defense attorney generally gives his/her opening statement immediately after. 4. Actual trial developed by testimony of witnesses. a. Plaintiff/Prosecution witnesses called first. b. Order determined by strategy, i.e., chronologically into overall story. 5. Direct examination of Plaintiff/Prosecution witnesses a. Cross examination by Defense. b. Redirect examination by Plaintiff and re-cross examination by Defense occurs in real trials, but in mock trials it is strongly suggested that teachers allow only a very limited redirect, if at all. 6. Defendant/Defense cross-in-chief proceeds when Plaintiff/Prosecution rests its case. a. Direct examination of witnesses called by Defense. 8

9 b. Cross examination by Plaintiff, etc. 7. After each side has called all of its witnesses, cross examines its opponent's witnesses; they enter all relevant documents or objects into evidence. 8. Judge permits Plaintiff/Prosecution closing argument, then Defense closing argument. Only the Plaintiff may rebut the Defendant's closing argument. 9. After closing arguments, the judge gives the jury their instructions. a. Brief explanation of the applicable law. b. Jury leaves courtroom to deliberate in private. c. Illinois requires unanimous jury in both civil and criminal cases or "hung jury" requires retrial before new jury. 10. Jury returns with decision on paper given to judge who announces the decision on open court. a. If a criminal case, guilty defendant scheduled to return at later date for sentencing. 9

10 Opening Statements Purpose: To give a brief description of the case, from your perspective, to the jury so jurors are able to understand what the case is about and your general perspective of events. Overview: The opening statement is the attorney's first opportunity to present the jury with a clear and concise description of the case from his or her client's perspective, but the opening statement is not an argument. The attorney may not infer from or plead the facts of the case that he/she expects to prove during the trial. The purpose of the opening statement is to tell the jury what the case is about and what you expect your evidence will be. The opening statement is first given by the plaintiff or prosecution, then the defendant. Test Your Opening: A test of a good opening statement is this: If the jurors heard the opening statement and nothing else, would they understand what the case is about and would they want to decide in your favor? Opening Statement: Prosecution Purpose: To inform the jury of the nature and facts of the case. Argument, discussion of law, or objections by defense attorney or defendant are not permitted. Include: Name of the case. Your name. Client s name. Opponent s name. A description or story of the facts and circumstances that led to the case. A summary of the key facts each witness will bring out in testimony and the importance of any documents to be introduced. Explanation that the burden of proof lies with you and that you are able to meet it Conclusions and request for the jury to find the defendant guilty of counts. 10

11 Avoid: Too much detail. It may tire and confuse the jury. Exaggeration and overstatement. Don t use such phrases as prove it to a mathematical certainty or prove it absolutely beyond question. Argument. It violates the function of the opening statement (which is to provide the facts of the case from your client s viewpoint), and you risk rebuke from the bench. Anticipating what the defense attorney will say. Walking or pacing. It distracts juries and irritates judges. General Walkthrough: 1. Introduce yourself (and your client) Example: "May it please the court, ladies and gentlemen of the jury, my name is, counsel for, the plaintiff/prosecution in this action." 2. Provide an organized summary or outline of what your evidence will be, presented in either chronological order or any other orderly sequence of events (for example: witness by witness). 3. Briefly explain the important evidence/arguments that your side will be making. When thinking about what is necessary, think about the elements that you will need to meet to find the defendant guilty of the crimes they are being charged with. When explaining, use phrases like: The evidence will indicate... The facts will show... Witnesses will present evidence to show... Witness will be brought to testify on the state s/plaintiff s behalf that... Witness will be called to tell you Be sure to acknowledge that the burden of proof rests with you (the prosecution), the degree of that burden, and that, with the evidence, you will meet that burden. 5. Provide a conclusion which includes a respectful statement to the jury. Example: "Ladies and gentlemen of the jury, it is your responsibility to listen attentively to the statements of the witnesses and to determine the facts in this action. Thank you for your time." Turn to the judge, Thank you your honor. Sit down. Opening Statement: Defense Purpose: To deny that the prosecution or plaintiff has a valid case and, in a general way, to outline the facts from the standpoint of the defendant. Interruptions by prosecution or plaintiff are not permitted. Include: Your name and your client s name. 11

12 General theory of defense. Facts that tend to weaken the plaintiff s case. A rundown of what each defense witness will testify to. Conclusion. Avoid: Repetition of facts that are not in dispute. Exaggeration and argument. Strong points of the plaintiff s case. Walking or pacing. It distracts juries and irritates judges. General Walkthrough: 1. Introduce yourself (and your client) Example: "May it please the court, ladies and gentlemen of the jury, my name is, counsel for the defendant in this action." 2. Include a reminder that opening statements are not evidence. 3. Create a cohesive (but non-argumentative) reference to anticipated deficiencies in your opponent's evidence, plus a summary of what your evidence will be. When explaining, use phrases like: The evidence will indicate... The facts will show... Witnesses will present evidence to show... Witness will be brought to testify on the state s/plaintiff s behalf that... Witness will be called to tell you Include a reminder that the burden of proof rests with your opponent and a conclusion which indicates that at the close you will return and request the jury to find in favor of the defendant. 5. Provide a conclusion which includes a respectful statement to the jury. Example: "Ladies and gentlemen of the jury, it is your responsibility to listen attentively to the statements of the witnesses and to determine the facts in this action. Thank you for your time." Turn to the judge, Thank you your honor. Sit down. 12

13 Direct-Examination Purpose: Direct examination is the heart of criminal trial procedure. Direct examination occurs when your side calls your witnesses to testify. For the prosecution you would call your witnesses to give testimony (speak about) the elements that make up the counts. For the defense you would call your witnesses to give testimony that would raise doubt about the elements that make up the counts. Rules for Direct-Examination: The rules governing direct examination are fairly simple: Questions on direct examination will: 1. Layout your side of the events and hopefully convince the jury to see your side 2. Use each witness to construct your case into a single story that the jury can understand 3. Focus on the descriptions or statements that you need each witness to make in order to construct your case 4. Note: When thinking of direct examination, you should see it as building a wall. What bricks or facts do you need to construct your wall or case? What questions will need to be asked in order for you to get to that point? Questions on direct examination should: 1. Make the witness seem like he/she ought to be believed 2. Keep the witness "in control" (prevent the witness from rambling since this weaken the effect on his/her evidence) 3. Not be leading (where the attorney is telling the story for the witness) Questions on direct examination should not: 1. Be a leading question. 2. Be a narrative. Uncontrolled narrative questions are not permissible. The attorney may not set his/her witness on "automatic pilot" with a narrative question and let the witness fly alone. 3. Ask multiple and repetitious questions Include: A well conducted direct examination must be carefully prepared in advance by the attorney and practiced with the witness. The direct examination is most effective when questions are put to the witnesses in plain language, rather than legal jargon which may seem long, boring or unnatural to the jury. You should focus on making your case as concise and interesting as possible. The following is a list of the sorts of questions that might be asked on direct examination: 13

14 "What happened then?" or "What did you see?" "How long have you worked for Mrs. Smith?" "What happened after you saw the yellow car?" "How far away was the other car when you first saw it?" "How long did you stand there?" "Did Bill (the defendant) say anything about...? Directing your attention to (date), could you please tell the court what occurred? What happened then...? What did you see...? How long did you see...? Did John (the defendant) say anything about...? How long have you worked with Mrs. Smith? General Walkthrough: 1. The opposing side finishes their opening statement (if you are the prosecution) or they have just finished their direct examination (if you are the defense) The attorney calls the witness for direct examination: "Your Honor, I'd like to call to the stand." After the witness is sworn in by the bailiff or court clerk, some introductory questions should be asked: Please state your name, address and occupation Length of residence or present employment, if this information is relevant establishing his/her credibility Further questions about professional qualifications if you wish to qualify the witness an expert. 3. Conclude your direct examination: Thank you, Mr./Ms.. That will be all, your Honor." 4. The witness remains on the stand for cross-examination by the opposing attorney. Note: After you have completed your direct-examination, the opposing side gets to crossexamine the witness and then you will have an opportunity to re-direct if necessary 5. Possibly: Redirect (Examination) If the witness' credibility or reputation for truthfulness has been attacked on cross-examination, the attorney whose witness has been damaged may wish to ask a few more questions. These questions should be limited to the damage the attorney thinks was done by the opposing attorney on cross-examination, and should be phrased so as to try to save or "rehabilitate" the witness' credibility in the eyes of the jury. 14

15 Cross-Examination Purpose: Cross-examination is the right of the accused to question witnesses that testify against them. Crossexamination follows the opposing attorney's direct-examination of his/her own witness. Properly constructed cross-examinations will deconstruct the opposing direct-examinations. For example, if the purpose of directexamination is the building of a wall brick by brick then cross-examination is the deconstruction of that same wall brick by brick. In Illinois and a majority of other jurisdictions, the scope of cross examination is limited to the scope of direct. This means that cross-examination can usually only focus on what was discussed in direct examination. So if an attorney s direct-examination purposely left out things which they did not want to discuss, it would be difficult to raise those issues on cross-examination. As long as a line of questioning reasonably relates to what was testified to on direct examination it is considered within the scope. Also, this limitation does not prevent an attorney from inquiring into the witness' bias or prejudice or using prior convictions or inconsistent statements to impeach him/her. Rules for Cross-Examination: The rules governing cross-examination are fairly simple: Questions on cross-examination will: 1. Reducing the effect of direct examination 2. Developing independent evidence on behalf of your side 3. Note: There are a number of ways to meet these objectives which are listed in the impeachment part of the "Rules of Evidence" section of this unit. 4. Test the witness' truth-telling ability (and believability) in order to cast doubt on the validity of the witness' story 5. To establish (or strengthen) facts of the cross-examiner's case wherever possible 6. To deconstruct the opposing argument Questions on direct examination should: 1. Use leading questions which are aimed at getting "yes" or "no" responses he cross examiner has the right to ask leading questions, which is an important advantage in dealing with adverse witnesses. 2. Be based on evidence which was brought out on the direct examination of that witness 3. Never include questions to which the attorney does not know the answer! 4. Attempt to impeach the witness. On cross-examination, the attorney may want to show that the witness should not be believed. This is called impeaching the witness. Impeaching the witness can be done by asking the witness questions about: Prior bad conduct that makes his/her credibility (truth-telling ability) seem doubtful and shows that the witness should not be believed. Prior criminal convictions of the witness. 15

16 Prior statements made by the witness which contradict his/her testimony at trial and point out the inconsistencies in his/her story. The bias or prejudice of the witness that is, showing that the witness has reason to favor or disfavor one side of the case. The accuracy of his/her sensory perceptions (which is the witness' ability to see, hear or smell). General Walkthrough: 1. Approach the opposing witness and greet them 2. Since your cross-examination is dependent upon what is said in the direct-examination, there are many possibilities of how you should execute a proper cross-examine. First you should focus on proper questions. Proper phrasing of questions includes: Isn't it a fact...? On (date), when you made a statement in your attorney's office, you said that, didn't you? Some possible question examples: o Prior bad conduct: "Is it true that you have had your credit cards revoked for failure to pay your bills?", or "Isn't it true that you often exaggerate events?" o Past conviction: "Is it true that you were recently convicted of armed robbery?" o Prior inconsistent statement: Bill Jones testifies at trial that Joe's car was traveling 90 mph. The opposing attorney asks, "Isn't it a fact that before this trial you gave a statement to the police saying that Joe's car was only traveling 50 mph?" o Bias or prejudice: Mrs. Young is the mother of the defendant. The prosecuting attorney points this out and asks, "Mrs. Young, you don't want to see your son go to jail, do you?" o Inaccurate sensory perception: Mrs. Block testifies that she saw Sam, who was a block away, take a bag of marijuana from his briefcase and hand it to Joe Smoker. On cross examination, the attorney asks Mrs. Block, "Isn't it a fact that you didn't have your glasses on when you claim to have seen Sam and Joe?" 3. You should try to leave your big point for the last question so it stays in the minds of the jury as the witness is leaving the stand 4. Cross examination should conclude with, "Thank you, Mr. /Ms.. That will be all, Your Honor. 5. The witness remains on the stand for re-direct by the opposing attorney (if necessary). Note: After you have completed your cross-examination, the opposing side gets to re-direct the witness and then you will have an opportunity to re-cross if necessary 6. Possibly: Re-cross Examination After you have completed your cross-examination, the opposing side will have an opportunity to re-direct, after that you will have a chance to re-cross if you would like (remember you must stay within the scope of the re-direct). Re-cross is used when you want to deconstruct what the opposing attorney attempted to salvage on his/her re-direct. 16

17 Rules of Evidence In actual courtroom trials, what spoken testimony (oral evidence) and physical evidence are allowed into evidence is governed by very complex rules. These rules are designed to ensure that both sides receive a fair hearing and to keep out any evidence that doesn t relate to the issue of the case, isn t reliable, or whose value as evidence is totally outweighed by how prejudicial it would be. The complexity of the rules of evidence used with mock trials varies, depending upon the experience of the class and teacher in conducting mock trials. A more simplified form of rules appears below. If you would like more detailed examples of rules (which will not be allowed in our trial) see the rules of evidence prepared by the Arizona Bar Foundation Formal rules of evidence are quite complicated and differ depending on the court where the trial occurs. For purposes of mock trial programs, the rules of evidence have been modified and simplified. Many students seek help outside of class from adults that have experience in the legal profession. You need to make sure that you explain to them that we will only be using the following rules of evidence: A. Witness Examination (Evidence of Character) Overview: Evidence about the character of a party to the case: For mock purposes, evidence about the character of a party may not be introduced unless person's character is an issue in the case. Example: In a divorce trial, whether one spouse has been unfaithful to another is a relevant issue, but it is not an issue in a criminal trial for theft. Similarly, a person's violent temperament may be relevant in a criminal trial for battery, but it is not an issue in a civil trial for breach of contract. B. Witness Examination Overview: During witness examination there are two instances where you might need to show the witness their witness statement: I. Refreshing recollection: If you are conducting direct examination and your witness can not remember what they had previously testified to. II. Impeaching the witness: If you are conducting cross-examination and the witness says something inconsistent (different) than what they said in their previous witness statement. 17

18 I.) Refreshing Recollection Overview: If, during direct examination, a witness cannot recall a statement that he/she made in an earlier witness statement (affidavit), the attorney may help the witness to remember. The lawyer must first mark and identify the statement as an "exhibit" and show the other side a copy (to give them a chance to object). However, the statement need not actually be admitted into evidence in this situation. General Walkthrough for Refreshing Recollection: 1. Listen for: I don t recall of I don t remember 2. Say: Is there something that would help you recall? 3. Listen for: Yes, my witness statement 4. Say: Your Honor, I d like a copy of the witness statement 5. Do: Show exhibit to opposing counsel 6. Listen for: Wait to see if there are any objections 7. Say: Your Honor, may I approach the witness? 8. Listen for: Wait for the judge to say you may 9. Say: I am showing you what has been marked as Exhibit # (Same as above) 10. Say: Do you recognize this? 11. Listen for: Yes 12. Say: Can you tell us what it is? 13. Listen for: Brief explanation of what the item is 14. Say: Is this the statement that you gave to the police shortly after the events on (insert date) 15. Listen for: Yes 16. Say: Did you give this statement to the police when these events were fresh in your memory? 17. Say: Please take a moment to review your witness statement. 18. Do: Hand the statement to the witness and give them a moment to read it. 19. Say: Now do you recall (insert question that they could previously not recall here)? 20. Listen for: Yes 21. Do: Take the witness statement away from them 22. Say: Can you please explain (or repeat the question once more)? 23. Listen for: The answer to your question II.) Impeaching a Witness Overview: If during cross examination, the witness makes a statement that is different than he/she made in an earlier witness statement (affidavit) or does not recall something that is contained in their witness statement, the attorney should work to impeach the witness (to discredit the witness). The lawyer must first mark and identify the statement as an "exhibit" and show the other side a copy (to give them a chance to object). However, the statement need not actually be admitted into evidence in this situation. General Walkthrough for Impeaching the Witness: 1. Listen for: I don t recall of I don t remember or they make a different statement than they previously made 18

19 2. Say: Re-ask they question that you asked (this could can be sued later to make the jury aware that the witness is deliberately changing their testimony) 3. Say: Your Honor, I d like a copy of the witness statement 4. Do: Show exhibit to opposing counsel 5. Listen for: Wait to see if there are any objections 6. Say: Your Honor, may I approach the witness? 7. Listen for: Wait for the judge to say you may 8. Say: I am showing you what has been marked as Exhibit # (Same as above) 9. Do: Hand the exhibit to the witness 10. Say: Do you recognize this? 11. Listen for: Yes 12. Say: Can you tell us what it is? 13. Listen for: Brief explanation of what the item is 14. Say: Is this the statement that you gave to the police shortly after the events on (insert date) 15. Listen for: Yes 16. Say: Did you give this statement to the police when these events were fresh in your memory? 17. Listen for: Yes 18. Say: Please read the lines from (insert lines you want them to read here) 19. Listen for: Witness to read the lines you said (and only the lines you said). 20. Say: Re-ask the question you previously asked (implying that they are lying) C. Hearsay Evidence Overview: Hearsay is evidence based on the reports of others rather than the personal knowledge of a witness and therefore generally not admissible as testimony. These types of questions may only be asked when the questioning attorney has information that indicates that the conduct actually happened. Any out of court statement that is offered to prove the truth of the contents of the statement is hearsay. These statements are generally inadmissible in a trial. Examples: In a case where Joe is being tried for murdering Henry: The witness may not testify, "Ellen was there, and she told me that Joe killed Henry." The underlined statement is hearsay and would not be permitted at the trial. In a civil trial arising from an automobile accident: A witness may not testify, "I heard a by-stander say that Joe ran the red light." In a criminal case: Sandy says, "I've heard that Jack has a criminal record." Exceptions to the Hearsay Rule: Though hearsay is not usually allowed at a trial, a judge may sometimes allow it if: 1. The statement (called the Admission ) was made by a party in the case and it contains evidence which goes against his/her side 2. The statement describes the then-existing state of mind of a person in the case, and that person's state of mind is an important part of the case. 3. The statement is an "excited utterance." 19

20 4. The statement is a "dying declaration. Examples: (#1) Admission: in a murder case, the defendant told someone that he/she committed the murder. (#1) Admission: Joe is being tried for murdering Henry. The witness may testify, "Joe told me that he killed Henry." (#2) In the case, the witness may testify, "I once heard Joe say, "I'm going to get even with Henry if it's the last thing I do." (#3) Excited Utterance: Mark sees Alison with a gun and it's pointed at his friend, Kimberly. Mark yells, "Run, Kim, Alison's got a gun and she s after you." Kimberly is subsequently shot: Jill, whose back was turned, may testify that she heard Mark warn Kimberly. (#4) Dying Declaration: Kimberly is shot in the chest and falls into the arms of Mark. Kimberly says, "I never thought she'd really do it, Alison shot me." Kimberly then dies and Mary may testify that her dying words implicate Alison as the murderer. D. Opinion Testimony Overview: As a general rule, witnesses may not give opinions, but "experts" who have special knowledge or qualifications may. If you would like to use an expert, the expert must first be "qualified" by the attorney who calls him/her. This means that before an expert may be asked and may give an opinion, the questioning attorney must bring out the expert's qualifications and experience (this is called laying foundation ). All witnesses may give opinions about what they themselves saw or heard at a particular time, if such opinions are: 1. Relevant to the facts at issue 2. Are helpful in explaining their story A witness may not testify to any matter of which he or she has no personal knowledge! Examples: The witness may say, "Roy was drunk. He had slurred speech; he staggered and smelled of alcohol." A psychiatrist could testify that, "Roy has severe eating problems", but only after the lawyer has qualified the psychiatrist as an expert through a series of questions about his/her background and experience in a particular field. The witness works with the defendant but has never been to the defendant's home or seen the defendant with her children. The witness may not testify that the defendant has a bad relationship with her children or that she is a bad mother, because the witness has no personal knowledge of this. E. Relevance of Evidence 20

21 Overview: Generally, only relevant evidence may be presented. Relevant evidence is any evidence which helps to prove or disprove the facts in issue in the case. However, if the evidence is relevant but also unfairly prejudicial, potentially confusing to the jury, or a waste of time, it may be excluded by the court. Examples: On cross examination the defense asks Ms. Stone, "How old are you?" This question would be permitted only if Ms. Stone's age is relevant to the case. The defendant is charged with running a red light. Evidence that the defendant owns a dog is not relevant and may not be presented. F. Introduction of Physical Evidence Overview: There is a special procedure for introducing physical evidence during a trial. Below are the basic steps to use when introducing a physical object or document (such as a pre-trial [witness] statement) into evidence in a court: General Walkthrough for Admitting Physical Evidence: Example: 1. Say: Your Honor, I d like this marked as Exhibit # (e.g. Prosecution #2) 2. Do: Show exhibit to opposing counsel 3. Say: Your Honor, may I approach the witness? 4. Listen for: Wait for the judge to say you may 5. Say: I am showing you what has been marked as Exhibit # (Same as above) 6. Say: Do you recognize this? 7. Listen for: Yes 8. Say: Can you tell us what it is? 9. Listen for: Brief explanation of what the item is 10. Say: Is this an accurate representation of the map of the city of? Or Is this the actual? 11. Say: Your Honor, I d like to offer Exhibit # (Same as above) into evidence. 12. Listen for: The judge will ask the other side if there are any objections. If there are no objections the judge will say that the exhibit is entered into evidence. 13. Do: Place the map on the overhead projector or show the evidence to the jury. 14. Do: Continue to ask your witness questions (note: you can [and should] have your witness go up to the map while testifying) Suppose this is a personal injury case in which the tenant claims he was injured when he tripped on a loose step in the apartment building. A neighbor who lives in the same building is testifying: 21

22 Attorney: Witness: Attorney: Judge: Mrs. Spak, are you familiar with the condition the stairs were in the day before the accident? Yes. I ask the judge (in a real trial this would be the bailiff or reporter) to mark this as Defendant's Exhibit 1 for identification. This will be Defendant's Exhibit 1 for identification. Counsel (attorney) now shows the exhibit to opposing counsel (attorney). Opposing attorney will have a chance to raise objections if they feel it is necessary. If not, the opposing attorney will say, No, objections your honor. Attorney: Thank you. Now, Mrs. Spak, I show you what has been marked as Defendant's Exhibit 1 for identification. Do you recognize this? Witness: Yes Attorney: Can you please tell the court what it is? Witness: It's a picture of the back stairs of my apartment building. Attorney: Are you very familiar with the stairs in your apartment building? Witness: I should be, I ve lived there for fifteen years. Attorney: Mrs. Spak, turning your attention once again to those stairs as they were the day before the accident, can you tell us whether this picture is an accurate and complete picture of the stairs as they looked at that time? Witness: Yes, I would say it is. Attorney: Thank you, Mrs. Spak. Your Honor (handing exhibit to judge), we offer what has been marked as Defendant's Exhibit 1 into evidence, and we permission to show it to the jury so they can see it during Mrs. Spak's testimony. G. Objections An attorney can object any time she or he thinks the opposing attorney is violating the rules of evidence. The attorney may object to questions that the other side s attorney is asking, to answers that a witness is giving, or to exhibits that the other side is attempting to admit into evidence. Generally attorneys are not allowed to object to opening statements or closing arguments (but there are some exceptions). The attorney wishing to object should stand up and do so at the time of the violation (immediately). When an objection is made, the judge will ask the reason for the objection. The objecting attorney should state what specific rule of evidence is being violated. Then the judge will turn to the other attorney who asked the question or offered the exhibit, and that attorney usually will have a chance to explain why the objection should not be accepted (that is, should be overruled ) by the judge. The judge will then decide whether the question, answer, or exhibit must be discarded because it has violated a rule of evidence ( Objection sustained ) or whether to allow the question, answer, or exhibit to become part of the trial record ( Objection overruled ). Possible Objections That Can Be Used During The Mock Trial Irrelevant Evidence (Relevancy) Asked & Answered Laying a Proper Foundation Leading Questions (on Direct Examination) Speculation Compound Question Hearsay Creation of Material Fact Narrative No Personal Knowledge/ Lack of Expert Opinion Improper Character Testimony Personal Knowledge Argumentative Question Beyond the Scope of Direct Examination Opinion Testimony 22

23 Objection Mock Trial Objection Sheet Sample Objectionable Questions What the Attorney Would Say What it Means How to Respond Irrelevant Evidence (Relevancy) Leading Questions (on Direct Examination) Hearsay Jamie, what is the name of your dog? After you went to the store, you saw Charlie at 8:30, right? Charlie told me that he saw Jamie jump from the roof. "Objection, Your Honor. This testimony is irrelevant/not relevant to the facts of this case." "Objection, Your Honor. Counsel is leading the witness." "Objection, Your Honor. Counsel's question, the witness' answer, is based on hearsay." Note: If the witness has already given a hearsay answer, the attorney should also say, "and I ask that the statement be stricken from the record." This means that the witness s answer, the attorney s original question, or the exhibit will not help to decide the issues in the case (it does not pertain). Leading the witness is only objectionable when done on direct examination. Leading questions are proper on crossexamination. A leading question is one that suggests the answer to the question and is usually answered by yes or no. Hearsay is a statement made outside of the courtroom. Statements that are made outside of the courtroom are usually not allowed as evidence if they are offered in court to show that the statements are true. Note: The most common hearsay problem arises when a witness is asked to tell what another person said to him or her. Explain why your question or evidence matters. What is the point that you are trying to make? Does it follow the rules of evidence? Explain. Rephrase your question. Your witness will probably be able to figure out what specific details you were asking about now. Ask an open question and let the witness testify. There are many exceptions to the hearsay rule. Two of the most common are: 1. That a witness may repeat a statement made by either party in the case if the statement contains evidence that goes against his or her side; OR 2. If a person s state of mind at the time of a certain event is important, any statements made about that event at the time the event occurred concerning the speaker s intent, knowledge, or belief will be admissible. If neither of these two exceptions exist, it is difficult to overcome. You will need to get the witness C:\Documents and Settings\AStrobl\My Documents\3 - Living Law (LL)\3 - Criminal Law\2 - Criminal Law II - Mock Trial\1 - Trial Packet\1 - Mock Trial Instruction Packet.doc

24 No Personal Knowledge/ Lack of Personal Knowledge Argumentative Question Asked & Answered Speculation Creation of Material Fact Witness has never been to the amusement park: Can you tell us how much a ticket to the amusement park would cost? YOU KNOW YOU DID IT SO JUST ADMIT IT! What time where you there? and then So you were there at what time? How fast do you think Charlie normally walks? Well I couldn t have seen it because aliens came down just then! "Objection, Your Honor. The witness has no personal knowledge to answer the question." Objection your honor, The question is argumentative. Or Objection, your Honor. Counsel is badgering the witness. Objection your honor asked and answered. Objection. Counsel is asking the witness to speculate in order to answer the question. "Objection, Your Honor. The witness is creating facts material to the case which are not in the record." The witness is testifying to things that the witness has not directly seen, heard, or experienced. Attorneys cannot badger or argue with the witness. Questions may also not be argumentative in tone or manner. Badgering is harassing or asking again and again. While attorneys questioning the other side s witnesses can be forceful and pressing, if they go too far a judge will sustain an objection for being argumentative. Attorneys may often ask the same question several times to ensure that the jury hears the answer. Many times they will ask the same question with minor changes. Attorneys cannot ask questions that get witnesses to guess at answers. This is not a real objection and is used in the mock trial scenario to avoid the creation of evidence, by students, which misleads and confuses the issues presented. An opposing witness cannot create new facts that would change the outcome of the case, although witnesses can add minor (or actual person) to testify to what they saw/heard. You would need to explain how the witness actually knows what they are testifying to. The explanation would need to adhere to the rules of evidence. Rephrase the question to make it seem less forceful. Chances are, if the opposing attorney uses this objection, you probably meant to be argumentative. If this is the case, you have made your point and can move on. You will need to explain what you had not previously asked the question or you would need to explain how your question is asking the witness to testify to something that is not on the record. You would explain how they know the answer to the question. You would need to explain: 1. Where the information is located in the packet that you have received or 2. That it is a minor detail that will not dramatically impact the outcome of the case or 3. How a reasonable person would have read the material 24

25 Improper Character Testimony Beyond the Scope of Direct Examination Laying a Proper Foundation Compound Question Narrative Expert Opinion Jordon, how fast can the average human run? "Objection, Your Honor. Character is not an issue here." Where one witness is asked if another witness lied "Objection, Your Honor. Counsel is asking about matters that did not come up in the direct exam." (Or, matters that are "beyond the scope of the direct examination"). Objection, Your Honor. No foundation. Counsel asking questions without first providing the necessary background. Objection, Your Honor. Counsel is asking a compound question. Objection, Your Honor (the question calls for a) narrative. Objection your honor, calls for an expert opinion (if the witness is not an expert) details. This should be used if the attorney believes a witness has gone beyond the information provided and is providing new information that is totally out of character and will change the outcome of the trial. Witnesses are not allowed to This is when a witness begins to tell a long story. Witnesses are allowed to answer the questions but must do so in a relatively concise manner. Unless it is within the common experience of people to form an opinion on the subject, opinions will not be allowed. and could interpret it the same way Don t bother over coming the objection. Instead just rephrase the questions so you ask a question and the witness answers. Basically, ask more questions to get the information. You would need to explain that it is either: 1. A common experience 2. Or the witness is an expert witness. Expert witnesses may give opinions, if they explain the basis for the 25

26 Opinion Testimony "Objection, Your Honor. Counsel is asking the witness to give an opinion." Unless it is within the common experience of people to form an opinion on the subject, opinions will not be allowed. opinion, which is called laying a foundation. An expert witness is someone who by training or experience has special knowledge in the case. You would need to explain that it is either: 1. A common experience 2. Or the witness is an Expert witness. Expert witnesses may give opinions, if they explain the basis for the opinion, which is called laying a foundation. An expert witness is someone who by training or experience has special knowledge in the case. Knowing what objection to use and when to use it is difficult but essential. If you would like practice, visit the following sites: Mock Trial: Objection Your Honor Game Hints on Objections: Attorneys should object only when they are sure there is a reason and they have a specific objection in mind. Remember, too many objections during a trial are objectionable (Note: I would much rather have you object too many times than not enough)! Only one attorney should stand and object at a time. The attorney assigned to do the direct or cross-examination of a particular witness should be the only attorney able to raise objections when the opposing side conducts its examination of that witness. Once an objection has been made, the witness should stop talking until the objection has been resolved. If the objection has been overruled, the attorney asking the question should persevere and ask the question again to ensure that the witness gets to answer the question or the exhibit gets admitted into evidence. Many times once the objection is overruled, the attorney doesn t follow up and pursue the issue. When judges rule against attorneys, attorneys should take the ruling gracefully, not making facial expressions or gestures that show the ruling affected them. Similarly, attorneys pleased with a ruling should not thank the judge for it. When objections are sustained, attorneys should move on to another question and end their questioning on a strong note. If the judge has overruled an objection by an attorney, that attorney should not be afraid to object to another question. 26

27 Closing Arguments Lawsuits are usually won during the course of the trial, not at the conclusion. They are won by witnesses, exhibits, and the manner in which the lawyer paces, spaces and handles them. Sometimes, however, lawsuits have been lost by fumbling, stumbling and incoherent closing arguments. This is not intended to minimize the importance of closing arguments, but rather to emphasize its proper position as a summation of the evidence and a relation of that evidence to the issues in the case (Brown and Seckinger, Problems in Trial Advocacy, 1977). The attorney should argue but not shout or attack personalities. The testimony of each witness should not necessarily be repeated in chronological order since the jury has already heard all of the witnesses. Instead, the attorney, by referring to the witnesses' testimony, should focus on putting the whole story together for the jury. 1. Closing statements should: An address to the judge, jury and your opponent (For example: "May it please the court, ladies and gentlemen of the jury ) An explanation to the jury of your purpose--to summarize the facts and relate them to the issues in the case. An "argument" telling the jury why it should consider all of the evidence and decide in your favor (i.e., tell them what the verdict should be and why). Persuasively and forcefully summarize the strong points from witness testimony Note flaws in the testimony which support the claims of your side Be well-organized (it may be wise to present the strongest point at the outset and again at the end of the dosing argument) Prosecution in criminal cases--emphasize that guilt beyond doubt was shown by the state, Defendants in criminal cases--raise questions about the weight of the evidence Be presented so that notes are barely necessary and eye contact can be established Be emotional and strongly appealing (unlike the "neutral" opening statements). 2. Proper phrasing includes: The evidence has clearly shown that... Based on this testimony, there can be no doubt that... The evidence overwhelmingly shows that Closing arguments should conclude with, "You, as the jury, have carefully listened and have heard the facts in this case. Now you must decide the verdict, considering..." and then conclude with thank you your honor. C:\Documents and Settings\AStrobl\My Documents\3 - Living Law (LL)\3 - Criminal Law\2 - Criminal Law II - Mock Trial\1 - Trial Packet\1 - Mock Trial Instruction Packet.doc