MOCK TRIAL COMPETITION

Transcription

1 VINCENT J. APRUZZESE MOCK TRIAL COMPETITION High School Workbook Sponsored by the New Jersey State Bar Foundation in Cooperation with New Jersey s County Bar Associations and the New Jersey State Bar Association Celebrating 32 Years of Service to the Educational Community

2 ATTENTION TEACHER-COACHES CASE CLARIFICATIONS We do not send mock trial case clarifications or updates by mail. It will be your responsibility to check our website, periodically for possible updates or corrections. CODE OF CONDUCT Teacher- and attorney-coaches, students, parents and observers are expected to abide by the provisions of the competition s Code of Conduct. See Part I of this workbook for details. UPDATES Please note that changes have been made to the following rules: R.2:3-1, R.2:5-3, R.5:2-1, R.5:2-5, R.5:6-1, and R.5:6-2. Two new rules, R.5:5-7 and R.5:5-8, have been added as exceptions to the hearsay rule. Please read these carefully. Changes have also been made to the Explanation of Performance Ratings and score sheets. See Part IX. BEHAVIOR OF CONTESTANTS, JURORS AND OBSERVERS Students and adults who participate in the New Jersey State Bar Foundation s High School Mock Trial Competition are expected to comport themselves properly in and out of the courtroom. Students and observers must respect their surroundings. Contestants and observers must (a) remove their litter from courtrooms and other areas and place trash in receptacles; (b) refrain from entering sections of the courthouses or other facilities where they are not authorized to be such as judges chambers, conference rooms, offices, etc.; (c) refrain from using or removing property belonging to the courthouses or other facilities; (d) refrain from tampering with sound systems and (e) leave the courtrooms, jury rooms, restrooms, and common areas of the courthouses or other facilities in good order. Failure to do so may result in sanctions, including, but not limited to, the team s immediate disqualification from the competition. Copyright 2013 New Jersey State Bar Foundation

3 Vincent J. Apruzzese High School Mock Trial Competition Sponsored by the New Jersey State Bar Foundation OFFICIAL ENTRY FORM In order to enter the competition, you must complete this Official Entry Form. All entries must be received no later than October 25, Please type or print clearly. Name of School School Address Zip County in which School Is Located Name of Teacher-Coach Area Code, Telephone Number and Ext. (work) (home) School Fax Number Date Submitted Address Please check the following where applicable: I need a lawyer-coach. I already have a lawyer-coach. His/her name is: This is my first year coaching mock trial. This is the school s first year of participation in mock trial. We are mock trial veterans. Other ( please explain): Please return this completed entry form to: Sheila Boro, High School Mock Trial Competition, New Jersey State Bar Foundation, New Jersey Law Center, One Constitution Square, New Brunswick, NJ Fax number: Please Note: You must complete and return this form to the State Bar Foundation in order to enter the competition. Please keep a copy for your records. 1

4 Mock Trial Competition Statement of Goals To increase comprehension of the historical, ethical and philosophical basis of the American system of justice. To demystify the operation of the law, court procedures and the legal system. To help students increase basic life and leadership skills such as listening, speaking, writing, reading and analyzing. To heighten appreciation for academic studies and promote positive scholastic achievements. To bring law to life for students through active preparation for and participation in the competitions. The goal is not to win for the sake of winning, but to learn and understand the meaning of good citizenship in a democracy vis-a-vis our system of law and justice. In this sense, all the students who participate will be winners. 2

5 Vincent J. Apruzzese, Esq. In recognition of his many years of service, the New Jersey State Bar Foundation named its Mock Trial Competition in honor of Vincent J. Apruzzese, Esq. in Mr. Apruzzese is a past president of the New Jersey State Bar Association. He led the drive to build the New Jersey Law Center, served as the first chairman of the New Jersey State Bar Foundation, and was chair of the Foundation s Public Education Committee for several years. This competition is a fitting tribute to his leadership, indefatigable spirit and insight in implementing free law-related education programs for the public and particularly for young people. 3

6 Dear Educator: The New Jersey State Bar Foundation s Mock Trial Competition, now in its 32nd year, is one of the nation s foremost contests of its kind for high school students. Our Mock Trial Competition has won many national awards for excellence in educational programming. We thank you, the educators, and your students for your strong support and interest in the Mock Trial Competition. Last year 221 teams registered statewide. We look forward to working with you again in the year ahead. The New Jersey State Bar Foundation s Mock Trial Competition is made possible by a network of support and cooperation from New Jersey s 21 County Bar Associations. County bar volunteers coordinate trials at the local levels and devote countless hours each year to bring this exciting educational program to students throughout the state. Volunteer attorneys from the counties will assist you and your team in preparing for the competition. This program is made possible through funding from the IOLTA Fund of the Bar of New Jersey. We hope you ll join us in this classic educational event. Sincerely, Ronald C. Appleby, Jr., Esq. Chair, Mock Trial Committee New Jersey State Bar Foundation One Constitution Square New Brunswick, New Jersey FAX:

7 Sponsored by the New Jersey State Bar Foundation Free Mock Trial Workshop for Teachers & Attorneys Learn how to conduct a mock trial and prepare your team for the New Jersey State Bar Foundation s High School Mock Trial Competition on Monday, October 21, 2013 at the New Jersey Law Center in New Brunswick from 9:30 a.m. to 1:10 p.m. The workshop is for teachers and attorneys (county coordinators and attorney-coaches) only. Due to space limitations, we regret that we cannot accommodate students. Teachers attending the entire workshop will receive professional development hours. An overview of the mock trial structure, from local contests through statewide finals, will be presented. Students will enact this year s case. A mock trial judge will explain how teams will be evaluated. The workshop is free but reservations are required. Please complete and return the form below. Please keep a copy of this workshop form for your records. Directions follow: From NJ Turnpike: Take Exit 9 to Route 18 North to Route 1 South. Take Route 1 South to Ryders Lane, New Brunswick (FIRST EXIT). The Law Center is the first right turn off of Ryders Lane. From Trenton: Take Route 1 North to second Ryders Lane sign (RYDERS LANE-NEW BRUNSWICK). Ryders Lane passes over Route 1. The Law Center is the first right turn off of Ryders Lane. For further information about directions, call or visit our website at Please Note: This is a registration form for the workshop only. It is not an entry form. You must complete an Official Entry Form in order to enter the competition. HIGH SCHOOL MOCK TRIAL WORKSHOP Please register me/us for the free workshop on October 21, I understand that this workshop is for teachers and lawyers only, not students. NAME(S) SCHOOL OR LAW FIRM ADDRESS WORK PHONE HOME PHONE I am a Teacher Attorney-Coach County Coordinator Return to: Sheila Boro New Jersey State Bar Foundation One Constitution Square New Brunswick, NJ Fax number:

8 VINCENT J. APRUZZESE HIGH SCHOOL MOCK TRIAL COMPETITION TABLE OF CONTENTS Part I Code of Conduct 7 Part II Rules of General Application 12 Part III Hints on Preparing for a Mock Trial Competition 18 Part IV Trial Procedures 20 Part V Simplified Rules of Procedure and Evidence 23 Part VI Guidelines for Attorney Team Advisers 30 General Guidelines to Presentations for Judges 30 Part VII Mock Trial Videotape Loan Program 31 Part VIII Mock Trial Case* 33 Part IX Performance Ratings 76 * The New Jersey State Bar Foundation gratefully acknowledges the assistance of the Mock Trial Committee and the following volunteers in preparing this year s original case: The Hon. Marilyn C. Clark, Presiding Judge, Law Division, Criminal Part, Superior Court, Passaic County; Mock Trial Committee Chair Ronald C. Appleby, Jr., Esq. and committee members Kathleen M. Dotoli, Esq., Bryan Lonegan, Esq. and Edward J. Moody. Special thanks to Brian Shiels, a Graduate Research Assistant in the Department of Civil and Environmental Engineering of the New Jersey Institute of Technology, for providing technical expertise in accident reconstruction and civil engineering. Photo of Buick Regal Grand National courtesy of DIGITAS of Detroit, MI. Drawing of the accident scene produced by Dillion Collins, a junior civil engineering student at the New Jersey Institute of Technology. The Vincent J. Apruzzese High School Mock Trial Competition is sponsored by the New Jersey State Bar Foundation in cooperation with the New Jersey State Bar Association and New Jersey s County Bar Associations, and is funded by the IOLTA Fund of the Bar of New Jersey. 6

9 PART I CODE OF CONDUCT For Participants in the Vincent J. Apruzzese High School Mock Trial Competition Please review the following revised code carefully. It is the teacher-coach s responsibility to obtain all required signatures. OVERALL PURPOSE AND SPIRIT OF THE COMPETITION The Vincent J. Apruzzese High School Mock Trial Competition ( Mock Trial Competition ) has been created for the purpose of stimulating and encouraging a deeper understanding and appreciation of the American legal system by high school students. Because of the competition s experiential educational format, learning derives from various sources and results from both articulated and unarticulated messages. The students learn proper comportment from each other, their teacher-coaches, their attorney-coaches, the volunteer mock trial judges and their parents and other guest-observers in the courtroom. Given the multifarious sources of student learning in the Mock Trial Competition, this Code of Conduct interprets Participants to include not only the students, but all of those who have the potential to influence student learning. In keeping with this interpretation, Extensions of this Code of Conduct must be executed by the team members, the teacher-coach and the attorney-coach. In addition, each teacher-coach is required to provide parents and other guest-observers with copies of this Code of Conduct. SPECIFIC GOALS OF THE MOCK TRIAL COMPETITION All Participants shall in manner and in deed do their parts in helping the Mock Trial Competition achieve the following specific goals: Promote cooperation, academic integrity, honesty and fair play among students. Promote good sportsmanship and respect for others in both victory and defeat. Participants must also demonstrate respect for County Mock Trial Coordinators, mock trial personnel, mock trial judges and other volunteers who make this competition possible. Promote good faith adherence to the Mock Trial Competition rules and procedures. Improve proficiency in speaking, listening, reading, reasoning and analytical skills. Promote respect for the judicial system and instill a notion of proper courtroom decorum. This includes respect for the courthouse and other venues where mock trials take place. Promote congeniality and open communication between the educational and legal communities. SPECIFICALLY PROHIBITED NEGATIVE BEHAVIORS Although not exhaustive, the following list contains behaviors that are directly opposed to the goals and objectives of the Mock Trial Competition and which, if engaged in, will constitute grounds for such disciplinary action as the County Coordinator at the local level (or Mock Trial Committee at state regional, semi-final and final levels) deems appropriate given the circumstances: Failure of the teacher-coach (a) to familiarize all parents and guest-observers with the contents of this Code of Conduct, or (b) to submit Extensions of this Code of Conduct executed by the team members, teacher-coach, and attorney-coach to the County Coordinator prior to the first round of competition. Use of communications technology (audio recording, visual recording, telephone, text-messaging by telephone, BlackBerry, laptop or other telecommunications device) by a team member (a) to communicate with any member of its team during an ongoing mock trial round, or (b) to record or in any way memorialize any portion of a round of the competition in which the team is not a participant. 7

10 Acceptance of an audiotape, videotape, DVD recording, CD recording, or other transcription of the performance of another team in a round that the recipient did not participate in, even if the recipient has not viewed the material, listened to the recording or read the transcript. Plagiarism by any member of a team or any team s use of material plagiarized by its teacher-coach, its attorneycoach, or by the parents or guest-observers of team members. Direct verbal or written communication outside of the courtroom with a volunteer mock trial judge by any team, its teacher-coach, its attorney-coach or the parents or guest-observers of team members, except as permitted after the trial for the teacher- or lawyer-coach under R.5:3-6. ACCOUNTABILITY FOR AND CONSEQUENCES OF ENGAGING IN PROHIBITED CONDUCT All Participants, including parents and guest-observers, must adhere to the rules and procedures of the Mock Trial Competition and this Code of Conduct (which includes by this reference the Extensions signed by the student teams, teacher-coaches and attorney-coaches). Failure to abide by the Mock Trial Code of Conduct is sufficient grounds for disqualification and dismissal of the team with which the offender(s) is directly or indirectly connected at the sole discretion of the County Coordinator at the local level or the Mock Trial Committee at the state regional, semi-final and final levels. 8

11 EXTENSION OF CODE OF CONDUCT To Be Signed by Teacher-Coach Participants in the Vincent J. Apruzzese High School Mock Trial Competition I have read and fully commit myself to the overall purpose and spirit of the Mock Trial Competition. Moreover, I endorse the specific goals of the Mock Trial Competition as set forth in the Code of Conduct and agree not to engage in or condone any of the negative behaviors set forth therein. I execute this Extension of said Code of Conduct in my role as teachercoach, hereby agreeing to focus attention on the educational value of the Mock Trial Competition. I agree to act as an adult role model for my students and to discourage willful violations of the rules. I will instruct my students as to proper procedure and decorum and will assist them in understanding and abiding by the competition rules and procedures as well as adhering to the spirit of this Code of Conduct. By action and by deed, I will teach my students the importance of treating others with respect and courtesy. In my interaction with other teacher-coaches, attorney-coaches, mock trial judges, county mock trial coordinators, other volunteers and mock trial personnel, I will set an example that my students can follow. I understand that I have the following responsibilities for which I, alone, am accountable: Training students to fulfill the role of jurors and bringing a sufficient number of student jurors to each round of competition. Circulating the Code of Conduct to all parents and guest-observers in advance of their attending any of the rounds of competition. I agree that I will not disseminate any reproduction of any portion of this competition without the express written consent of each student and the parent/guardian of each, as well as the permission or consent of the student s own coach, whose images may be captured on film or other telecommunications technology. I will not post any images from this competition on Facebook, MySpace, Twitter or any other social networking site without the permission as set forth above. I will not encourage or permit anyone else to do so, and will report same if it happens. I further agree that any violation of this rule subjects me to removal from the competition and places my entire team in jeopardy of being severely penalized for my actions. I agree to act as a role model by carrying out my responsibilities as a teacher, never forgetting that I am representing the educational system in addition to coaching high school students as their mock trial advisor. Thus, I will zealously encourage fair play and promote conduct and behavior that is in keeping both with proper courtroom decorum and the spirit of the Mock Trial Competition. I will discourage skirting the rules and engaging in obstructionist behavior that interferes with the orderly flow of courtroom procedures. I agree to inculcate the highest standards of the education profession by discouraging a culture of win-at-any-cost and by promoting a spirit of willing compliance with the rules of the competition and the ethical guidelines provided by this Code of Conduct. Date: Teacher-Coach School 9

12 EXTENSION OF CODE OF CONDUCT To Be Signed by Attorney-Coach Participants in the Vincent J. Apruzzese High School Mock Trial Competition I have read and fully commit myself to the overall purpose and spirit of the Mock Trial Competition. Moreover, I endorse the specific goals of the Mock Trial Competition as set forth in the Code of Conduct and agree not to engage in or condone any of the negative behaviors set forth therein. I execute this Extension of said Code of Conduct in my role as attorneycoach, hereby agreeing to abide by the rules and procedures of the Mock Trial Competition and to uphold the highest standards of the legal profession. I agree to act as a role model of our honorable profession by carrying out my responsibilities as an officer of the court, never forgetting that I am representing the judicial system in addition to coaching high school students as their mock trial advisor. Thus, I will zealously encourage fair play and promote conduct and behavior that is in keeping both with proper courtroom decorum and the spirit of the Mock Trial Competition. I will discourage skirting the rules and engaging in obstructionist behavior that interferes with the orderly flow of courtroom procedures. I agree to inculcate the highest standards of the legal profession by discouraging a culture of win-at-any- cost and by promoting a spirit of willing compliance with the rules of the competition and the ethical guidelines provided by this Code of Conduct. I agree that I will not disseminate any reproduction of any portion of this competition without the express written consent of each student and the parent/guardian of each, as well as the permission or consent of the student s own coach, whose images may be captured on film or other telecommunications technology. I will not post any images from this competition on Facebook, MySpace, Twitter or any other social networking site without the permission as set forth above. I will not encourage or permit anyone else to do so, and will report same if it happens. I further agree that any violation of this rule subjects me to removal from the competition and places my entire team in jeopardy of being severely penalized for my actions. Date: Attorney at Law, State of New Jersey School 10

13 EXTENSION OF CODE OF CONDUCT To Be Signed by Student Team Member Participants in the Vincent J. Apruzzese High School Mock Trial Competition As a Team Member/Juror of High School, I state that I have read and fully commit myself to the overall purpose and spirit of the Mock Trial Competition. Moreover, I endorse the specific goals of the Mock Trial Competition as set forth in the Code of Conduct and agree not to engage in or condone any of the negative behaviors set forth therein. I execute this Extension of said Code of Conduct as a condition of participation in the Mock Trial Competition and hereby promise to compete with the highest standards of comportment, showing respect for my fellow students, opponents, judges, attorney-coaches, teacher-coaches, county mock trial coordinators and mock trial personnel. I agree to accept both defeat and success with dignity and restraint. I promise to avoid all tactics that I know are wrong or in violation of the rules. I make a commitment to comply with the rules of the competition in spirit and in practice. I will not plagiarize or accept plagiarized material. I will not use telecommunications technology to circumvent the rules or to gain unfair advantage. I understand that use of telecommunications technology in the courtroom by any Participant (with the exception of permissible videotaping by participating teams per R.2:5-3) seeking to gain advantage for a team subjects that team to the risk of disciplinary action, which could result in an expulsion of the team from the competition or in the lesser penalty of a score reduction. I agree that I will not disseminate any reproduction of any portion of this competition without the express written consent of each student and the parent/guardian of each, as well as the permission or consent of the student s own coach, whose images may be captured on film or other telecommunications technology. I will not post any images from this competition on Facebook, MySpace, Twitter or any other social networking site without the permission as set forth above. I will not encourage or permit anyone else to do so, and will report same if it happens. I further agree that any violation of this rule subjects me to removal from the competition and places my entire team in jeopardy of being severely penalized for my actions. By signing below, I agree to vigorously uphold the Code of Conduct of the Mock Trial Competition: Date: Date: Date: Date: Date: Date: Date: Date: Date: Date: Date: Date: Date: Date: Date: Date: 11

14 PART II RULES OF GENERAL APPLICATION RULE 2:1 APPLICABILITY, SCOPE, CONSTRUCTION AND CITATION OF RULES 2:1-1 APPLICABILITY; SCOPE The Vincent J. Apruzzese Mock Trial Competition is governed by these simplified rules of procedure and evidence. Additional rules regarding the competition and its procedures are contained throughout this workbook. Please read the entire workbook carefully. Other rules of procedure or evidence may not be raised. 2:1-2 CONSTRUCTION These rules shall be construed to secure a just determination, simplicity in procedure, and fairness in administration of the competition. 2:1-3 CITATION Attorneys should be prepared to cite the specific rule number upon which an objection is based if requested to do so by judges. RULE 2:2 GENERAL CONTEST FORMAT 2:2-1 LOCAL COMPETITIONS Each team must compete in at least two trials, switching sides for the second trial. If there are an uneven number of teams in the initial two trials, the County Mock Trial Coordinator has the discretion to ask teams to volunteer to play both sides at the same time or to randomly assign team(s) to do so. Contestants must be prepared to field both sides simultaneously if necessary. If a team does not have enough members to play both sides at once, the teacher-coach must notify the County Mock Trial Coordinator in advance. In the event of an emergency, last-minute cancellation by a team, or failure of a team to appear, which may create an uneven number of teams competing, the County Mock Trial Coordinator shall designate one team to field both sides. After each team has had an opportunity to play both sides, the County Mock Trial Coordinator may elect to utilize a single-elimination or other format. The County Mock Trial Coordinator has the authority to configure local contest schedules. The County Mock Trial Coordinator will determine which teams advance based upon win/loss record and point scores. In a configuration where teams play only two rounds initially, a team with two losses should not advance and a team with two wins should advance. Where three rounds of competition are initially scheduled, a team with three losses should not advance and a team with three wins should advance. If a team has questions about the local competition, the teacher-coach should contact the County Mock Trial Coordinator. Names and phone numbers of County Mock Trial Coordinators are posted on our website, www. njsbf.org. 2:2-2 DATES AND TIMES; FAILURE TO APPEAR Local contest dates and times will be determined by county coordinators. Failure to appear on the dates specified by the County Mock Trial Coordinator will result in forfeiture. The county coordinator works very hard to arrange contest schedules, and teams should make every effort to participate in the local contest once they have entered. Last-minute cancellations create scheduling difficulties for everyone. 2:2-3 POSTPONEMENTS Postponements may be made only by the county coordinator. 12

15 2:2-4 CHANGES TO RULES AND PROCEDURES No rule or procedure may be changed after the 30 th day preceding the first contest. 2:2-5 OFFICIAL REPRESENTATIVE OF EACH TEAM The official representative of a mock trial team is the teacher-coach, not students, lawyer-coaches or others. All communications regarding a team must be made by and through the teacher-coach as official team representative. Communications received from students will not be answered. See R.2: Teacher-coaches and attorneycoaches are prohibited from coaching more than one team in any given year. 2:2-6 WORKBOOKS Workbooks may be photocopied as necessary, and permission to photocopy a workbook is hereby granted. Please download the workbook from the Foundation s website, RULE 2:3 TEAMS 2:3-1 TEAM MEMBERS A competing team in any given round shall consist of no more than TEN (10) students two (2) attorneys, three (3) witnesses and alternates plus the teacher-coach. A school may enter ONE (1) team only. For any single trial, a team must consist of two (2) attorneys and three (3) witnesses. The competition is open to New Jersey high schools only. For our policy regarding a combined team, please see the back of this workbook. 2:3-2 IDENTIFICATION OF TEAMS Teams will be identified by I.D. numbers, not high school names, and teams should not bring materials, such as notebooks, T-shirts, school newspapers, etc., that would identify their schools. Guests of each team should similarly be requested to refrain from wearing or bringing items to contests that would identify the schools with which they are affiliated. Contestants are not permitted to identify their school or the opposing team s school to the judges. 2:3-3 STUDENT JURIES Each team should bring SIX (6) student jurors to each competition. Team members may serve as jurors in rounds in which their team is not playing, and jurors may serve as team members in rounds in which they are not serving as jurors. A student should not serve as a juror on a trial in which his or her school is participating unless there are extenuating circumstances. Rules pertaining to student jurors are set forth infra at R. 2:4. RULE 2:4 STUDENT JURIES 2:4-1 PURPOSE OF STUDENT JURIES The purpose is to provide students with a better understanding of the duties and responsibilities of jurors and to enable more students to participate in the competition. 2:4-2 JURY CHARGE Because of time restraints, actual procedures for selection and charge of jurors will not be followed. Juries will render their decision based upon a simplified charge and upon the factual testimony they have heard during the course of the trial. (The charge to the jury is the final address by the judge to the jury before the verdict, in which the judge sums up the case and instructs the jury as to the rules of law which apply to its various issues and which they must observe.) The judge will not read the charge to the jury. Jurors are expected to be familiar with the contents of the jury charge. 2:4-3 JURY VERDICT Student juries will be required to render a verdict based upon the merits of the case and applicable law. They will not at any time determine which team wins or advances to the next round. That decision will be made by the judges 13

16 only. Jurors will neither score team performances nor will their verdicts or performances as jurors be scored. 2:4-4 PROHIBITIONS Jurors are not allowed to take notes or use recording devices. 2:4-5 PROCEDURES In all competitions, the jurors from losing teams will be released, except for the runners-up. In each phase, jurors from first runner-up teams will be eligible to act as jurors in the final competition on the local or regional level. The runners-up from the state semi-final competition will be eligible to serve as jurors in the final statewide championship round at the New Jersey Law Center. In the statewide championship round, the jurors of winning teams will not participate, unless the runner-up team is not available. The runner-up team in the semi-finals will be requested to provide jurors for the championship round. Jurors should proceed immediately to the courtroom in which the trial they are assigned to will be conducted and shall seat themselves in the jury box. Jurors will only be triers of the facts. Their decisions will not affect which team wins. At the conclusion of the trial, jurors will be allotted 15 minutes maximum to deliberate the facts and render a decision concerning those facts. Student jurors shall be responsible for electing a spokesperson from among the jury to advise the judge of the jury s verdict when the trial reconvenes. The spokesperson must briefly summarize the reasons for their verdict. Generally, jurors are requested to arrive at an unanimous decision. Jurors are requested to take into consideration only the facts that are presented to them without considering testimony which may have been presented in a previous trial in which they acted as jurors. RULE 2:5 GENERAL PROCEDURE FOR TRIALS 2:5-1 DETERMINATION OF SIDES State Level Determination of which team will be prosecution/plaintiff and which team will be defense at the state level, which includes regionals, regional finals and state semi-finals as well as the final round, will be made by drawing lots a few minutes before each trial begins. However, if the same two teams have previously met in the statewide semi-finals and have both qualified for the statewide finals, the teams must switch sides in the championship round. At the regionals, teams that are eligible to advance to the next round will switch sides if possible. Where it is impossible for both teams to switch sides, a drawing of lots must be used to determine assignments in the next round. 2:5-2 DETERMINATION OF SIDES Local/county Level At the local/county level, sides for the initial round of competition may be preassigned at the discretion of the County Mock Trial Coordinator. Contestants in any subsequent round of a competition should automatically switch sides in the case for the next round (provided that they are eligible to advance to the next round). Where it is impossible for both teams to switch sides, a drawing of lots must be used to determine assignments in the subsequent round. 2:5-3 OBSERVATION OF TRIALS BY NON-PARTICIPANTS Teams are permitted to observe mock trial contests, even if they are not participating in those contests. Note-taking by observers during competitions is permissible. Teams that are not participating in a round shall not audiotape or videotape or use any other technological means to obtain auditory or visual information. Only participating teams will be allowed to videotape or audiotape mock trial contests. Each school will be allowed to designate one official videotaper/audiotaper. Experience has demonstrated that careful preparation has more impact on the quality of presentation and the final result than last-minute changes based on the above. 14

17 Those who are designated as the official video/audio recorders are reminded of the last paragraphs of the Extensions to the Code of Conduct which prohibit the distribution/dissemination/reproduction in ANY FORM of any portion of the competition without the express written consent of each student and parent/ guardian as well as the student s coach. RULE 2:6 PREPARATION OF MOCK TRIAL CONTESTS 2:6-1 MEETINGS WITH ASSIGNED ATTORNEYS All teams are to work with their assigned attorneys in preparing their cases. It is recommended that teams meet with their lawyer-advisers at least six times prior to the contest. See Part VI for suggestions regarding the attorneyadviser s role in helping a team prepare for the competition. 2:6-2 DRESS REHEARSALS All teams are required to conduct one full trial enactment (dress rehearsal) with attorney-advisers in attendance based on the case prior to the first round of the competition. Additional sessions devoted to the attorneys questioning of individual witnesses are also recommended. RULE 2:7 DECISIONS The judge(s) will render a decision based on the quality of the students performance in the case and the best team presentation. The judges have been instructed to rate the performance of all witnesses and attorneys on the team. (See Performance Rating Sheet.) Judges will provide qualitative evaluations only, based on the categories in the rating sheet. Numerical scores will not be released. The purpose of this procedure is to re-emphasize the educational goals of the competition. Judges will provide evaluations and announce the winning team before the jury delivers its verdict. The jury verdict is not significant in the judges evaluation. Contestants may, as always, discuss their trials with judges after each contest if time permits. However, contestants are prohibited from contacting competition judges directly to complain about competition results. See Rule 2:14 and Rule 2:15. The student jury will decide on the merits of the legal case and the applicable law. This decision of guilt or innocence in a criminal case, or finding in favor of the plaintiff or defendant in a civil case, does not determine which team wins or advances to the next round. The decisions of the judges are final. RULE 2:8 SCORING PERFORMANCES While all possible measures are taken to encourage consistency in scoring, not all mock trial judges evaluate the performance of students identically. Even with rules and evaluation criteria for guidance, the competition reflects the subjective quality present in all human activities. Please review the score sheet at the back of this workbook very carefully. RULE 2:9 TIME LIMITS The following time limits will be in effect: Opening Statements 4 minutes for each side Direct Examination 6 minutes for each witness Cross-Examination 7 minutes for each witness Closing Statements 8 minutes for each side 15

18 Every effort shall be made to respect these time limits. County coordinators are encouraged to appoint bailiffs to keep time. Bailiffs will also be appointed at the regional, statewide semi-final and statewide final levels. Bailiffs will keep time, and their decisions regarding timekeeping are final. Challenges to timekeeping will not be considered. Timekeepers may issue one-minute warnings verbally or through the use of a card or hand signals. When time is up, judge(s) must halt the trial. Regarding objections, the clock will be stopped. Re-direct and re-cross (optional, to be used at the discretion of the team) After cross-examination, additional questions may be asked by the direct-examining attorney, but questions must be limited to matters raised by the attorney on cross-examination. Likewise, additional questions may be asked by the cross-examining attorney on re-cross, but such questions must be limited to matters raised on re-direct examination and should avoid repetition. One minute will be allowed for re-direct and re-cross respectively. Judges should not deduct points if a team decides not to re-direct or re-cross. (See R. 5: 4-16.) RULE 2:10 REGIONAL COMPETITION To reach the statewide finals, a team will have to compete in a two-part regional competition. Winning teams from each county qualify for the first stage of the regionals, consisting of two, single-elimination trials. Winners of the first stage will return for regional playoffs. Winners of the regional playoffs qualify for the statewide semi-finals. Winning semi-finalists will be eligible to compete in the statewide finals. If there is a tie score, the judge(s) will make the final determination based on overall team performance. Please take note of all of the following contest dates before entering the competition in order to make sure your team can attend. The New Jersey State Bar Foundation will be responsible for coordinating the regional competitions. All regionals will be conducted at the New Jersey Law Center in New Brunswick as follows: Central - February 4, 2014; South- February 5, 2014; and North - February 6, Regional playoffs will be held on February 26, Please reserve these dates. Inability to attend will result in forfeiture. To find out which regional your county belongs in, please call or sboro@njsbf.org. RULE 2:11 SEMI-FINALS Regional finals winners are eligible to compete in the statewide semi-finals scheduled for March 19, 2014 at the New Jersey Law Center in New Brunswick. Please reserve this date. Inability to attend will result in forfeiture. RULE 2:12 STATEWIDE FINALS The winners of the semi-finals are eligible to compete in the statewide championship round scheduled for March 24, 2014 at the New Jersey Law Center in New Brunswick. This date is final; please arrange your schedule accordingly. Inability of finalist teams to attend will result in forfeiture. This will be a single-elimination round. The judges decision will be final. 16

19 2:13 STUDENT ILLNESS POLICY In the event that one or more members of a team cannot compete due to illness, another member or members of that team may substitute for them. The substitutes must be team members who are not already playing in that round. In addition, jurors may serve as substitutes unless they are already serving as jurors in a round. One attorney cannot play the roles of both attorneys in any given round. Likewise, one witness cannot play the roles of other witnesses in the same round. A student-lawyer cannot play the role of a witness in the same round nor can a witness play the role of a lawyer in the same round. If a contestant becomes ill while a trial is in progress, judge(s) may grant a 15-minute recess. During that time, the teacher-coach may arrange for another team member or juror to continue in place of the ill student. The team with the ill student and their teacher-coach and attorney-coach may communicate about the ill student and his or her replacement during the emergency recess. If the ill student cannot continue to compete, and a substitution cannot be made, the team must forfeit the round. It is recommended that teacher-coaches prepare understudies in case of illness. 2:14 COMPLAINT PROCEDURE No one shall contact any competition judge to complain about competition results. Only teacher- or attorneycoaches are authorized to communicate about questions, problems, comments or complaints about contests. Communications received from students will not be answered. Students should discuss issues or concerns with their teacher-coaches. Complaints about county competitions must be submitted in writing, via to your County Mock Trial Coordinator. Names and addresses of the County Mock Trial Coordinators will be posted on the New Jersey State Bar Foundation s website, Please remember that, as stated in R. 2:7, the decisions of the judges are final. If a teacher-coach, as official team representative, wishes to file a grievance regarding another coach s/team s conduct or alleged rule violation, such complaint should be ed promptly to the County Coordinator at the county level or to the Mock Trial Committee at the state regional, semi-final and final level. The County Coordinator or Mock Trial Committee shall forward the grievance to the teacher-coach of the team against which it is lodged and shall give that party a specific time period in which to respond. Final disposition of the grievance rests with the County Coordinator at the local level or the Mock Trial Committee at the state level. 2:15 QUESTIONS REGARDING CASE OR RULES Contestants who have questions about the mock trial case and/or rules should submit them through their teacheror attorney-coaches. Teacher- or attorney-coaches should or fax their questions to Sheila Boro, director of mock trial programs, at sboro@njsbf.org or fax to Communications received from students will not be answered. Please identify yourself, your school, whether you are the teacher-or attorney-coach, and provide a daytime phone number. 17

20 PART III HINTS ON PREPARING FOR A MOCK TRIAL COMPETITION The following tips have been developed from previous experiences in training a mock trial team. All students should read the entire set of materials and discuss the information/procedures and rules used in the mock trial contest. The facts of the case, witnesses testimony, and the points for each side in the case then should be examined and discussed. Key information should be listed as discussion proceeds so that it can be referred to at some later time. All team roles in the case should be assigned and practiced. Credibility of witnesses is very important to a team s presentation of its case. As a result, students acting as witnesses need to really get into their roles and attempt to think like the persons they are playing. Students who are witnesses should read over their statements (affidavits) many times and have other members of the team or their class ask them questions about the facts until they know them cold. Student team members have primary responsibility for deciding what possible questions should be asked of each witness on direct and cross-examination. Questions for each witness should be written down and/or recorded. The best teams generally have students prepare their own questions, with the teacher-coach and attorney-adviser giving the team continual feedback and assistance on the assignment as it is completed. Based on the experience of these practice sessions, attorneys should revise their questions, and witnesses should restudy the parts of their witness statements where they are weak. Opening and closing statements should also be written out by team members. Legal and/or non-legal language should be avoided where its meaning is not completely understood by attorneys and witnesses. Closing statements should not be totally composed before trial, as they are supposed to highlight the important developments for the prosecution or plaintiff and the defense which have occurred during the trial. The more relaxed and informal such statements are, the more effective they are likely to be. Students should be prepared for interruptions by judges who like to question the attorneys, especially during closing argument. As a team gets closer to the first round of the contest, the competition requires that it conduct at least one complete trial as a kind of dress rehearsal. All formalities should be followed and notes taken by the teacher-coach and students concerning how the team s presentation might be improved. A team s attorney-adviser should be invited to attend this session and comment on the enactment. The ability of a team to adapt to different situations is often a key part in a mock trial enactment since each judge or lawyer acting as a judge has his or her own way of doing things. Since the proceedings or conduct of the trial often depend in no small part on the judge who presides, student attorneys and other team members should be prepared to adapt to judicial rulings and requests, even if they appear contrary to outlined contest procedures and rules. 18

21 Some of the things most difficult for team members to learn to do are: (a) To decide which are the most important points to prove their side of the case and to make sure such proof takes place; (b) To tell clearly what they intend to prove in an opening statement and to argue effectively in their closing statement that the facts and evidence presented have proven their case; (c) To follow the formality of court, e.g., standing up when the judge enters; or when addressing the judge, to call the judge your honor, etc.; (d) To phrase questions on direct examination that are not leading (carefully review the rules and watch for this type of questioning in practice sessions); (e) Not to ask so many questions on cross-examinations that well-made points are lost. When a witness has been contradicted or otherwise discredited, student attorneys tend to ask additional questions which often lessen the impact of points previously made. (Stop recognize what questions are likely to require answers that will make good points for your side. Rely on the use of these questions. Avoid pointless questions!) (f) To think quickly on their feet when a witness gives an unexpected answer, an attorney asks unexpected questions, or a judge throws questions at the attorney or witness. (Practice sessions will help prepare for this.) 19

22 PART IV TRIAL PROCEDURES Before participating in a mock trial, it is important to be familiar with the physical setting of the courtroom as well as with the events that generally take place during the exercise and the order in which they occur. COURTROOM LAYOUT JUDGE BAILIFF WITNESS STAND J U R Y B O X DEFENDANT S TABLE AUDIENCE SEATING PROSECUTION OR PLAINTIFF S TABLE AUDIENCE SEATING PARTICIPANTS The Judge(s) The Attorneys Prosecutor Defendant (Criminal Case) Plaintiff Defendant (Civil Case) The Witnesses Prosecutor Defendant (Criminal Case) Plaintiff Defendant (Civil Case) STEPS IN MOCK TRIALS The Opening of the Court Either the clerk of the Court or the judge will call the Court to order. When the judge enters, all participants should remain standing until the judge is seated. The case will be announced, i.e., The Court will now hear the case of v.. The judge will then ask the attorneys for each side if they are ready. 20

23 Appearances Opening Statements to the Jury (1) Prosecution (in criminal case)/plaintiff (in civil case) The prosecutor in a criminal case (or plaintiff s attorney in a civil case) summarizes the evidence which will be presented to prove the case. (2) Defendant (in criminal or civil case) The defendant s attorney in a criminal or civil case summarizes the evidence which will be presented to rebut the case the prosecution or plaintiff s attorney has made. Direct Examination by Prosecution or Plaintiff s Attorney The prosecutor(s) or plaintiff s attorney(s) conduct direct examination (questioning) of each of their own witnesses. At this time, testimony and other evidence to prove the prosecution s or plaintiff s case will be presented. The purpose of direct examination is to allow the witness to narrate the facts in support of the case. Direct examination is limited by the scope of the affidavits and/or the exhibits contained in this workbook. NOTE: The attorneys for both sides, on both direct and cross-examination, should remember that their only function is to ask questions which elicit the most important facts of the case; attorneys themselves may not testify or give evidence, and they must avoid phrasing questions in a way that might violate this rule. Cross-Examination by Defendant s Attorney After the attorney for the prosecution or plaintiff has completed questioning each witness, the judge then allows the other party (i.e., defense attorney) to cross-examine the witness. The cross-examiner seeks to clarify or cast doubt upon the testimony of opposing witnesses. Inconsistency in stories, bias, and other damaging facts may be pointed out through cross-examination. Direct Examination by Defendant s Attorneys Direct examination of each defense witness follows the same pattern as the preceding which describes the process for prosecution s/plaintiff s witnesses. Cross-Examination by Prosecution or Plaintiff s Attorneys Cross-examination of each defense witness follows the same pattern as the step above for cross-examination by the defense. Closing Arguments to the Jury (1) Defense The closing statement for the defense is essentially the same as for the prosecution/plaintiff. Counsel for the defense reviews the evidence as presented, indicates how the evidence does not satisfy the elements of the charge or claim, stresses the facts favorable to the defense and asks for a finding (verdict) of not guilty (criminal case) or judgment for the defense (civil case). The defense will give its closing argument first, followed by the prosecution/plaintiff, as done in real trials. (2) Prosecution or Plaintiff A closing statement is a review of the evidence presented. It should indicate how the evidence has satisfied the elements of the case, and ask for a finding (verdict) of guilty (criminal case). 21

24 THE JUDGE S ROLE The judge is the person who presides over the trial to ensure that the parties rights are protected, and that the attorneys follow the rules of evidence and trial procedure. In trials held without a jury, the judge also has the function of determining the facts of the case and rendering a judgment. (The student jurors will render a verdict, but will not determine which team wins. That will be decided by the judges.) At all levels of the competition, a panel of two judges will judge the contests wherever possible. This may include two judges, sitting or retired, one judge and one lawyer, or two lawyers. If, for any reason, only one judge is available for any given contest, the contest shall proceed with one judge. THE STAFF S ROLE Staff of the New Jersey State Bar Foundation attend the regional, semi-final and final contests in order to handle room and luncheon arrangements. Please do not ask staffers to get involved in the competition proceedings. Student team members are responsible for pointing out infractions, if any, to judge(s). The judge(s) will then decide. (See Part V for further details, particularly the section dealing with objections.) 22

25 PART V SIMPLIFIED RULES OF PROCEDURE AND EVIDENCE RULE 5:1 GENERAL PROCEDURE DURING TRIALS 5:1-1 USE OF EXHIBITS The use of evidentiary or demonstrative exhibits not contained in this Mock Trial Workbook is not permitted. Use of props, visual and illustrative aids, other than what is specified in this workbook, is prohibited. Case materials cannot be enlarged unless specifically stated. It is assumed that once an exhibit has been put into evidence, it has been published to the jury. As such, copies of the exhibits shall not be distributed to the jury. 5:1-2 STATEMENT OF FACTS AND STIPULATIONS The Statement of Facts, if provided, and any additional stipulations may not be disputed. The Statement of Facts is not admissible as an exhibit. 5:1-3 MOTIONS No motions of any kind are allowed. For example, defense cannot make a motion to dismiss after the prosecution has rested its case. Motion for directed verdict is also prohibited. 5:1-4 VOIR DIRE Voir dire, the preliminary examination of a witness or juror to determine his or her competency to give or hear evidence, is prohibited. 5:1-5 COURTROOM DECORUM Usual rules of courtroom decorum apply to all participants. Appropriate, neat appearance is required. RULE 5:2 OBJECTIONS 5:2-1 IN GENERAL Procedural objections and objections to evidence are restricted to those in the Mock Trial Workbook including those listed in R.5:2-5. Other objections found in the New Jersey and Federal Rules of Evidence are not permitted. All objections, except those relating to openings or closings, shall be raised immediately by the appropriate attorney. When an objection is made, each side will usually have at least one fair opportunity to argue the objection before the presiding judge rules. Sidebars are not permitted. Competitors shall refrain from interrupting an adversary during opening statements or closing arguments. (See Rule 5:2-6.) 5:2-2 TIME FOR OBJECTIONS A student attorney can object any time that the opposing team has violated the rules of evidence or has violated the rules or procedures of the Mock Trial Competition. IMPORTANT: Only student attorneys may object to any violations they believe have occurred, and they must object directly to the judge during the trial at the time of the violation, except as set forth in Rule 5:2-6. 5:2-3 LIMITATION ON OBJECTIONS Objections made after the trial has concluded cannot be addressed. NJSBF staff members cannot object on your behalf. Please do not ask staffers to intervene in the competition. 5:2-4 MANNER OF OBJECTIONS The attorney wishing to object should stand up and do so at the time of the violation, except as set forth in Rule 5:2-6. When an objection is made, the judge will ask the reason for it. Then the judge will turn to the attorney who asked the question, and that attorney usually will have a chance to explain why the objection should not be accepted ( sustained ) by the judge. The judge will then decide whether a question or answer must be disregarded because it has violated a rule of evidence or mock trial procedure ( objection sustained ) or whether to allow the question or answer to remain on the trial record ( objection overruled ). When objecting to a competition rule or procedural violation, student attorneys should be prepared to refer to the appropriate rule number in this workbook if requested to do so by judges. All objections should be made succinctly, with the reason for the objection publicly stated. 23

26 5:2-5 FORM OF OBJECTIONS Following are standard forms of evidentiary objections allowed in the Mock Trial Competition. However, counsel need not parrot the exact words of the provided forms. (a) Irrelevant evidence: I object, your Honor. This testimony is irrelevant to the facts of the case. (b) Leading question: Objection. Counsel is leading the witness. (Remember, this is only objectionable when done on direct examination.) (c) Unfair extrapolation: Objection. The witness testimony is unfair extrapolation in violation of R.5:4-6 in that it goes beyond the witness statement/deposition or any reasonable inference to be drawn therefrom. (d) Improper character testimony: Objection. The witness character or reputation has not been put in issue. (e) Hearsay: Objection. Counsel s question/the witness answer is based on hearsay. (If the witness makes a hearsay statement, the attorney should also say, and I ask that the jury be directed to disregard the statement. ) (f) Opinion: Objection. Counsel is asking the witness to give an opinion. (g) Lack of personal knowledge: Objection. The witness has no personal knowledge that would enable him/ her to answer this question. (h) Speculation: Objection. The question calls for speculation on the part of the witness. (i) Non-responsive answer: Objection. The answer is not responsive. (j) Compound question: Objection. Counsel is asking the witness a compound question. (k) Mischaracterization of testimony: Objection. Counsel is mischaracterizing the witness s testimony. (l) Assuming facts not in evidence: Objection. Counsel s question (or closing argument) assumes facts which are not in evidence. (m) Lack of proper foundation: Objection. Counsel has not laid a proper foundation for the question (or for admission of an exhibit). (n) Narrative answer: Objection. Counsel s question calls for a narrative answer. (o) Conclusion of law improperly called for by the question: Objection. Counsel is calling for the witness to make a conclusion of law. (p) Argumentative question: Objection. Counsel s question is argumentative. While there is no limit on the number of objections attorneys may raise, teams should be aware that judges may assess scoring penalties for objections which are frivolous. 5:2-6 OBJECTIONS TO OPENINGS AND CLOSINGS The presiding judge may interrupt an attorney s opening or closing statement to ask questions. However, attorneys may not interrupt or object during the opposition s opening or closing, but must raise any objections to openings or closings immediately after the opposing attorney concludes. The presiding judge will then rule on the objections and instruct the jury as may be necessary. RULE 5:3 PROCEDURE REGARDING ATTORNEYS 5:3-1 MANDATORY ATTORNEY PARTICIPATION IN EXAMINATIONS Each attorney shall conduct the examination of three witnesses (1 direct and 2 cross-examinations or 2 direct and 1 cross-examination). 5:3-2 ATTORNEY OPENINGS/CLOSINGS Each team must present an opening statement and closing argument. An attorney for a team presenting the opening statement may not make the closing argument. An attorney is not permitted to advise the jury of facts in opening for which there is no good faith basis in the Mock Trial Workbook materials. In closing argument, an attorney is not permitted to comment on evidence that was not presented or evidence which was excluded by the presiding judge. In an opening or closing, an attorney is allowed to make arguments from a fair extrapolation of the facts in the Mock 24

27 Trial Workbook. Fair extrapolation refers to an inference that can be reasonably made from the facts stated in the Mock Trial Workbook or from testimony adduced during the course of the trial. The defendant s attorney shall make the first closing statement, followed by the prosecuting/plaintiff attorney. No rebuttal statements are permitted. Students should be prepared for interruptions by judges who may question the attorneys during closing argument. 5:3-3 DESIGNATION OF ATTORNEY PERMITTED TO OBJECT Only one attorney may address any one witness. The attorney who will examine or cross-examine the witness is the only attorney who may make an objection. Likewise, only the attorney who will open may object to the opposition s opening statement and only the lawyer who will close may object to the opposition s closing. 5:3-4 USE OF NOTES BY ATTORNEYS Attorneys are permitted to use notes in presenting their cases. 5:3-5 COMMUNICATION BETWEEN AND AMONG TEAM MEMBERS AND OTHERS A. During a trial, law instructors, coaches, and all other observers may not talk to, signal or otherwise communicate, in any manner whatsoever, with or, in any way, coach or attempt to coach any members of the team. B. No team member shall seek to communicate, verbally, non-verbally or in writing, with any witness who is in the act of testifying. C. Only the two participating student-attorneys may communicate with each other during the five-minute presummation recess. Failure to comply with the aforementioned shall be considered a violation of the mock trial rules. Should any team member participating in that round observe any conduct which is in violation of this rule, s/he shall immediately and unobtrusively bring the alleged violation to the attention of the appropriate student attorney. The student attorney, at his/her discretion, may then object to the presiding judges. Any such objection must be made at the time the violation is noted, and in the case of Section B above, prior to the witness leaving the witness stand. The judge(s) shall immediately make an inquiry into the matter and may deduct one or more points at their discretion. The deduction may come from the score of the witness, the attorney(s), and/or the overall team score. 5:3-6 COMMUNICATION WITH JUDGES No one affiliated with a competing team is permitted to have any contact with competition judges before or during the competition. Only student-attorneys and student-witnesses may communicate with the judges during a trial. After a trial has concluded, judges may meet privately with the attorney-coach, or teacher-coach if the attorneycoach is not present, for at least five minutes in order to answer specific questions and to provide additional evaluation of students performances. Rule 5:4 WITNESS TESTIMONY 5:4-1 FACTS RELIED UPON FOR TESTIMONY Each witness is bound by the facts contained in his/her own witness statement, the facts contained in the Statement of Facts, if provided, and the necessary documentation provided in the competition workbook. A witness is not bound by facts contained in other witness statements. 5:4-2 WITNESS PHYSICAL APPEARANCE A witness physical appearance in the case is as he or she appears in the trial enactment. 5:4-3 WITNESS GENDER Contestants cannot change the gender of witnesses as provided in the case unless it is indicated that a witness can be male or female. Male or female contestants, however, may play the roles of any witnesses. 25

28 5:4-4 REQUIRED EXAMINATION OF WITNESSES Each team of attorneys must engage in either the direct examination or cross-examination of each witness. Direct examination is limited by the scope of the affidavits and/or the exhibits contained in the workbook. 5:4-5 DIRECT EXAMINATION On direct examination, each witness is bound by the facts contained in his/her own witness statement, the Statement of Facts, if present, and/or any necessary documentation provided in the workbook relevant to his/her testimony. A witness is not bound by facts contained in other witness statements. On direct examination, a witness is not permitted to quote from the witness statement of another witness. Fair extrapolation, as defined in R. 5:4-6, is permitted. 5:4-6 FAIR EXTRAPOLATION A witness who is testifying may use fair extrapolations from his or her own statement. Fair extrapolation refers to an inference that can be reasonably made from the facts stated in the witness statement of the testifying witness. A witness who is testifying on direct examination, in responding to questions of counsel, may utilize the reasonable and logical inferences from his or her own statement. Testimony which is unsupported by the facts in a witness own statement and/or intended solely for the purpose of materially strengthening his or her team s position, is unfair extrapolation and is in violation of the rules and spirit of the competition. If a witness invents an answer which is favorable to his or her side, but not fair extrapolation, the opposition may object; the judge will decide whether to allow the testimony. An exception to this rule can occur when an attorney on cross-examination asks a question, the answer to which is not included in the witness statement. The witness is then free to create an answer. 5:4-7 CROSS-EXAMINATION On cross-examination, a witness is permitted to invent an answer which is not included in his/her witness statement only as permitted by R.5:4-6. If that answer is inconsistent with any other evidence, including statements of that witness, the Statement of Facts, or any other stipulations, the cross-examining attorney may impeach or object as may be appropriate. For example, he or she may object to an answer as being non-responsive. 5:4-8 IMPEACHMENT On cross-examination, the attorney may want to show the court that the witness should not be believed. This is called impeaching the witness. A witness may be impeached by showing that he or she has given a prior statement that differs from his or her trial testimony, that he or she has some interest in the outcome of the case, that he or she has a bias for or against any other party or person, that he or she has some other motivation to either lie or be untruthful, or that he or she is simply mistaken as to what he or she has seen or heard. 5:4-9 USE OF NOTES BY WITNESSES Witnesses are not permitted to use notes while testifying during the trial. 5:4-10 REQUIRED WITNESSES All three witnesses for each side must testify. Teams may not call another team s witnesses. 5:4-11 SEQUESTERING WITNESSES Sequestering witnesses is not permitted. 5:4-12 LEADING QUESTIONS Leading questions are not permitted on direct examination or re-direct examination. However, leading questions are permitted on cross-examination and re-cross-examination. In direct examination, attorneys call and question witnesses. Witnesses may not be asked leading questions by the attorney who calls them. A leading question is one that suggests to the witness the answer desired by the examiner, and often suggests a yes or no answer. Direct questions generally are phrased to evoke a set of facts from the witness. 26

29 Example of a direct question: Mr. Hudson, when did you meet June Harris? Example of a leading question: Mr. Hudson, isn t it true that you first met June Harris on April 14, 1981? In cross-examination, attorneys question the other side s witnesses. An attorney may ask leading questions when cross-examining the opponent s witnesses. Questions tending to evoke a narrative answer should be avoided (these usually begin with how, why or explain ). 5:4-13 NARRATIVE QUESTIONS Narrative questions (questions that call for a narrative answer) and narrative answers are generally not permitted. While the purpose of direct examination is to get the witness to tell a story, the questions must ask for specific information. The questions should not be so broad that the witness is allowed to wander or narrate a whole story. Example of a narrative question: Mr. Hudson, what went wrong with your marriage? Narrative answers: At times, a direct question may be appropriate, but the witness answer may go beyond the facts for which the question asked. 5:4-14 SCOPE OF DIRECT EXAMINATION Direct examination may cover all facts relevant to the case of which the witness has firsthand knowledge. It is limited by the scope of the witness statements and/or the exhibits in this workbook. Any factual areas examined on direct examination may be subject to cross-examination. 5:4-15 SCOPE OF CROSS-EXAMINATION The scope of cross-examination shall not be limited to the scope of the direct examination, but may inquire into any relevant facts or matters contained in the witness statement, including all reasonable inferences that can be drawn from those facts and matters. Opposing counsel may also inquire into any omissions from the witness statement that are otherwise material and admissible and/or into any issue potentially affecting the credibility of the witness. 5:4-16 SCOPE OF RE-DIRECT AND RE-CROSS EXAMINATION After cross-examination, additional questions may be asked by the direct-examining attorney, but questions must be limited to matters raised by the opposing attorney on cross-examination. Likewise, additional questions may be asked by the cross-examining attorney on re-cross, but such questions must be limited to matters raised on re-direct. Re-direct and re-cross are optional, to be used at the discretion of the team. One minute will be allowed for re-direct and re-cross respectively. Judges should not deduct points if a team decides not to re-direct or re-cross. RULE 5:5 EVIDENCE RULES 5:5-1 CHARACTER EVIDENCE Evidence about the character of a party may not be introduced unless the person s character is an issue in the case. 5:5-2 OPINION TESTIMONY A. No witness may give an opinion about how the case should be decided. This is called the ultimate issue question. In addition, witnesses may not give testimony in the form of an opinion unless it fits within one of the exceptions below. B. A lay (non-expert) witness may offer testimony in the form of opinions or inferences if those opinions or inferences are (1) rationally based upon the perception of the witness and (2) helpful to a clear understanding of the witness testimony or the determination of a fact in issue. 27

30 C. A lay witness may offer testimony in the form of an opinion based on the common experience of laypersons in the community and of which the witness has firsthand knowledge. D. An expert witness may offer testimony in the form of an opinion only if the subject matter is within the expert s area of expertise. Certain witnesses who have special knowledge or qualifications may be qualified as experts. An expert must be qualified by the attorney for the party for which the expert is testifying; this means that before an expert can be asked an expert opinion, the questioning attorney must bring out the expert s qualifications and experience. A witness may not testify to any matter of which the witness has no personal knowledge. Example: If Mrs. Davis was not present at the scene of an intersectional collision between a Ford Explorer and a bus, she could not say, The bus went through the red light. 5:5-3 HEARSAY Hearsay is defined as any evidence of a statement made by someone who is not a witness in the case which is offered to prove the truth of a fact, a piece of evidence or any witness testimony. A witness is not permitted on direct examination to quote from the witness statement of another witness. Example: Mrs. Mills is testifying. Her witness statement contains the following statement: Mr. Hudson told me he was at the scene of the crime. This is inadmissible hearsay (if offered to prove that Mr. Hudson was at the scene of the crime) unless Mr. Hudson is also a witness in the case. If Mr. Hudson is a witness in the case, then the statement is not hearsay. Example: Mrs. Mills is testifying. Mr. Hudson is a witness in the case. His witness statement contains the following statement: I heard Mrs. Harris threaten my son. There is no reference in the witness statement of Mrs. Mills about Mr. Hudson hearing Mrs. Harris threaten his son. Mrs. Mills may not testify that Mr. Hudson said that Mrs. Harris threatened his son. The statement is not contained in the witness statement of Mrs. Mills. Such testimony is inadmissible hearsay and also violates the mock trial rule that prohibits a witness on direct examination from quoting from the witness statement of another witness. The following are exceptions to the hearsay rule: 5:5-4 HEARSAY EXCEPTION ADMISSION AGAINST INTEREST Hearsay may be admissible if it was said by a party in the case and contains evidence which goes against that party s interest (e.g., in a murder case, the defendant told someone he committed the murder). 5:5-5 HEARSAY EXCEPTION STATE OF MIND Hearsay may be admissible if it consists of evidence of what someone said which describes that particular person s state of mind at the time it was being said. 5:5-6 HEARSAY EXCEPTION RELIED UPON BY EXPERT Hearsay may be admissible if it was relied upon by an expert witness and forms the basis for the expert s opinion. 5:5-7 HEARSAY EXCEPTION DECLARANT UNAVAILABLE A declarant is considered to be unavailable as a witness if the declarant is dead. The following is not excluded by the rule against hearsay if the declarant is unavailable as a witness: DYING DECLARATION. In a prosecution for homicide, a statement that the speaker, while believing his or her death to be imminent, made about its cause or circumstances. 28

31 5:5-8 Hearsay Exception EXCITED UTTERANCE A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. 5:5-9 RELEVANT EVIDENCE Only relevant testimony and evidence may be presented. Relevant evidence is that which tends to make a fact which is important to the case more or less probable than the fact would be without the evidence. 5:5-10 EXCLUDABLE RELEVANT EVIDENCE Relevant evidence may be excluded at the discretion of the presiding judge if it is unfairly prejudicial, may confuse the issue, or is a waste of time. RULE 5:6 INTRODUCTION OF PHYSICAL EVIDENCE 5:6-1 PRE-TRIAL CONFERENCE Physical evidence must be relevant to the case and the attorney must be prepared to define its use on that basis. In an actual trial an attorney introduces a physical object or document for identification and/or use as evidence during the trial. For the purposes of this mock trial competition, there will be a pre-trial conference, lasting no more than five minutes, in which both prosecution s/plaintiff s and defendant s attorneys get together to present pre-marked exhibits for identification before trial. The issue of admissibility cannot be addressed at this stage. The purpose of the pre-trial procedure is to avoid eroding into each team s time limitations during the trial and to help students understand that attorneys, while they are adversaries, can also work cooperatively to benefit their clients. During this pre-trial, students should introduce themselves and the roles they will play. Remember to give the judges scoresheets with the names of the students at this time. See Important Notice preceding scoresheets for details. 5:6-2 ADMISSIBILITY The sworn statements of witnesses, whether in affidavit, hearing or deposition format, are not admissible into evidence, but may be used during cross-examination for impeachment purposes. Either party may offer any exhibit subject to objection and ruling by the judges. (Please note that the following is an exception for this year s case and cannot be objected to: Exhibit P1.) After the exhibits have been agreed upon, the attorneys may ask witnesses about the documents. For example, an attorney may show a letter (already agreed upon as an exhibit by both sides) to a witness. Mr. Davis, do you recognize this document which is marked Plaintiff s P1 for identification? (The witness should say yes and identify the document.) At this point the attorney may proceed to ask the witness a series of questions about P1. If the attorney wishes to place the document into evidence, say, Your Honor, I offer this letter for admission into evidence as Plaintiff s P1 and ask the court to so admit it. Get a ruling from the court on admission and hand the document to the judge. Bringing physical evidence to the trial, e.g., a weapon in the case of a murder trial, is prohibited unless otherwise indicated. It is sufficient to rely upon the documents provided in this workbook for exhibits. Use of props, visual and illustrative aids, other than what is specified in this workbook, is prohibited. See R. 5:

32 PART VI GUIDELINES FOR ATTORNEY TEAM ADVISERS The rules of evidence governing trial practice have been modified and simplified for the purposes of this mock trial competition (see Part V of this packet.) Other more complex rules are not to be raised during the trial enactment. Team members cannot contradict the witness statement sheets for the case (see Part VIII of this packet) nor introduce any evidence that is not included in this packet of materials. ALL WITNESSES MUST TAKE THE STAND. The decision of the judge(s) in any mock trial enactment determines which team advances. This decision is to be based on the quality of the students performance. The preparation phase of the contest is intended to be a cooperative effort among students, teacher-coach and attorneyadviser. Remember: The official representative of a mock trial team is the teacher-coach, not students, lawyer-coaches or others. All communications regarding a mock trial team will be made by and through the teacher-coach as official team representative. When assisting students, attorney-advisers should avoid use of highly complicated legal terminology unless such terminology is pertinent to the comprehension of the case. Attorneys should not script or prepare the cases for the students. As part of the educational goals of the competition, students are expected to read, study and analyze the case. Attorney-coaches may then help students to refine their strategy. The first session with a student team should be devoted to the following tasks: answering questions which students may have concerning general trial practices; explaining the reasons for the sequence of events/procedures in a trial; listening to the students approach to the assigned case; and discussing general strategies as well as raising key questions regarding the enactment. A second and subsequent session with students should center on the development of proper questioning techniques by the student attorneys and sound testimony by the witnesses. Here an attorney can best serve as constructive observer and critic-teacher, i.e., listening, suggesting, demonstrating to the team. Courtroom Visit In order to provide a real life look at a trial, attorney-coaches should consider arranging, through the local courthouse, a courtroom visit for their team(s). GENERAL GUIDELINES TO PRESENTATIONS FOR JUDGES Under contest rules, student-attorneys are allowed to use notes in presenting their cases; witnesses may not use notes in testifying. Attorneys and witnesses may neither contradict the witness statement sheets for the case nor introduce any evidence that is not included in this packet of materials. Only one opening and closing statement is allowed. Except for opening the court, general procedural instructions, rulings on objections, etc., it is best to keep judicial involvement/participation to a minimum during the trial enactment. Each attorney (two for each side) shall conduct the examination of three witnesses. See R.5:

33 The rules of evidence governing trial practice have been modified and simplified for the purposes of this mock trial competition (See Part V of this packet). They are to govern proceedings. Other more complex rules are not to be raised during the trial enactment. Witness statements may be used by attorneys to refresh a witness memory and/or impeach the witness testimony in court. Attorneys have been asked to keep their presentations within the following guidelines: Opening Statements 4 minutes; Closing Statements 8 minutes; Direct Examination 6 minutes/witness; and Cross-Examination 7 minutes/witness. Regarding objections, the clock will stop. One minute will be allowed for re-direct and re-cross respectively. See rule 2:9 on Time Limits for details. Judges should not deduct points if a team decides not to re-direct or re-cross. The decision of the judge(s) determines which team advances and which team is eliminated. In the event of a tie score, the judge(s) shall make a final determination based on overall team performance. Judges may award an additional point to the team with the better overall team performance in order to break a tie. See Part IX for details. Judges may include in their rating of overall team performance an evaluation of civility and compliance with the Code of Conduct in this workbook as well as compliance with mock trial rules. If a team fails to adhere to the established guidelines/rules set forth for the competition, a judge may (depending upon the circumstances of the violation) lessen his/her rating of that team. The student jury will render the verdict. The judge will decide which team wins. The judge should explain that these two decisions are separate. Winning the verdict does not necessarily mean that the team has won the competition. Better understanding is promoted among students and teachers if the judge(s) in a mock trial takes a few minutes following the enactment to explain his/her decision(s) regarding the teams presentation. Judges will provide a qualitative evaluation of each team s performance. They will not release numerical scores. Judges may also offer their opinions regarding the legal merits of the case after the student jury has rendered a verdict. Judges are also encouraged to meet privately with the attorney-coach, or teacher-coach if the attorney-coach is not present, for at least five minutes after the contest has concluded in order to answer specific questions and to provide additional evaluation of students performances. The judges decisions are final. PART VII MOCK TRIAL VIDEOTAPE LOAN PROGRAM In order to help as many teachers and students as possible participate in the Mock Trial Competition, the Foundation will lend a 65-minute videotape to contestants. The videotape, which is available in one-half inch VHS and DVD, was taped at the New Jersey Law Center in The Mock Trial Instructional Videotape or DVD may be borrowed for a period of two weeks, after which time it must be returned. You may also purchase this videotape or DVD at cost plus postage and handling. If you would like to purchase a copy, send your request with a check or money order in the amount of $10 payable to the New Jersey State Bar Foundation (address follows on the next page). The following videotapes of the 1998 and 2001 National High School Mock Trial Championships and DVDs of the American Mock Trial Invitational Finals are available for loan only: 31

34 1998 National High School Mock Trial Championship Final Round In this final round of the 1998 National High School Mock Trial Championship conducted in Albuquerque, New Mexico, on May 9, New Jersey s statewide championship team, Cherry Hill High School East of Camden County, defeated Guam for the national title. The Cherry Hill High School East team represented the defendant in this criminal trial dealing with homicide. Please note that the national rules differ from those of the Vincent J. Apruzzese High School Mock Trial Competition. (2 hours, available in videotape only) 2001 National High School Mock Trial Championship Final Round On May 12, in the final round of the 2001 National High School Mock Trial Championship in Omaha, Nebraska, Iowa narrowly defeated New Jersey s statewide championship team, Montclair High School of Essex County. In the 2001 national case, high school senior Chris Hall is charged with possession of methamphetamine, a controlled substance. Hall maintains that rival Taylor Jennings, a student who is in competition with Hall for senior class valedictorian, planted the drugs in his/her backpack. Please note that the national rules differ from those of the Vincent J. Apruzzese High School Mock Trial Competition. (3 hours, 31 minutes, available in videotape only) 2007 American Mock Trial Invitational (AMTI) Final Round On May 4, Family Christian Academy of Tennessee defeated University Preparatory Academy of Washington State at the New Jersey Law Center in New Brunswick. The case deals with aggravated manslaughter and death by vehicular homicide. Photo montage of our group trip to the Ellis Island Immigration Museum is also included. Please note that AMTI rules differ from those of the Vincent J. Apruzzese High School Mock Trial Competition. (2 hours, available in DVD only) 2008 American Mock Trial Invitational (AMTI) Final Round On May 20, D.H. Hickman High School of Missouri defeated Gray Stone Day of North Carolina at the Mecklenburg County Courthouse in Charlotte, NC. In this case, Bailey Kissner, who was a young, up-and-coming amateur golfer, is suing Polk Hospital, a private psychiatric facility, for negligence in allowing Martin Dutcher to be released from 24-hour supervised care without ensuring he no longer posed a threat to himself or others. Dutcher assaulted Kissner in a road rage incident, then later Dutcher took his own life. Kissner seeks monetary damages for pain and suffering and pecuniary losses arising from the assault and battery. The trial will determine issues of liability and damages. Please note that the AMTI rules differ from those of the Vincent J. Apruzzese High School Mock Trial Competition. (1 hour, 49 minutes, available in DVD only) American Mock Trial Invitational (AMTI) Final Round On May 19, Menlo School of California defeated Victory Christian Center School of North Carolina at the Middlesex County Courthouse in New Brunswick, NJ. In this case, a teenager severely burned in a fire in a barn illegally converted to a casino, sues the owner of the barn. The owner claims no knowledge of the use to which renters put the barn. AMTI rules differ from those of the Vincent J. Apruzzese High School Mock Trial Competition. (101 minutes, available in DVD only) To borrow a mock trial videotape or DVD, send your request to: High School Mock Trial Video/DVD, New Jersey State Bar Foundation, One Constitution Square, New Brunswick, NJ Please enclose a $50 security deposit for each videotape or DVD you want to borrow. This will be returned to you when you return the videotape(s) or DVD(s). Videotapes and DVDs must be returned via insured U.S. mail, certified mail or UPS so that shipments may be tracked. Orders will be filled on a first-come, first-served basis. We cannot fill orders over the phone. Specify which videotape(s) or DVD(s) you want. Please handle with care as we have only a limited number. A fee will be assessed in the event borrowed tapes or DVDs are not returned or are damaged. Thank you for your cooperation. 32

35 PART VIII State v. Sid Sawyer STATEMENT OF FACTS On April 10, 2012, at approximately 10:55 p.m., Defendant, Sid Sawyer, age 22, and sister, Cathy Sawyer, age 23, were driving down Devon Road in Metropolitan when the car went off the roadway and hit a tree. This was a single car accident, and only Cathy and Sid Sawyer were in the car. Cathy Sawyer was thrown from the vehicle. She died soon thereafter. The State asserts that Sid Sawyer was driving the vehicle, and at the time of the accident his/her driver s license was suspended. The State further asserts that Sid Sawyer fled the scene of the accident. The Indictment alleges three offenses. Count One alleges vehicular homicide and charges Sid Sawyer with driving a motor vehicle recklessly, resulting in the death of Cathy Sawyer. Count Two alleges endangering an injured victim and alleges that Sid Sawyer caused bodily injury to Cathy Sawyer and then left the scene of the accident knowing or reasonably believing that she was physically helpless, mentally incapacitated, or otherwise unable to care for herself. Count Three alleges that Sid Sawyer operated a motor vehicle knowing that his/her driver s license had been suspended and that his/her operation of the vehicle resulted in the death of Cathy Sawyer. Finally, in addition to the Indictment, the State has charged the defendant with driving while intoxicated, a motor vehicle offense, in Summons Exhibits 1. Letter to Sergeant Jean Durand from Sam Axelrod, P1 2. Drawing of accident scene by Sergeant Jean Durand, P2 3. Paterson Buick letter to prior owner of 1987 Buick Regal Grand National with recall notice attached, D1 4. Newspaper article from The Metropolitan Advance, D2 (The article may be referred to solely for impeachment of Sam Axelrod on cross-examination, with the prosecutor referring to it in response to this impeachment, if it occurs). 5. Photo of Logan Sawyer s 1987 Buick Regal Grand National, J1 Stipulations 1. From the car accident, Sid Sawyer sustained a broken ulna of the right arm, a grade 2 sprain of the medial collateral ligament (MCL) of the left knee, and abrasions to the face, arms and legs. 2. Sid Sawyer s blood sample was taken approximately a half hour after the accident at the Carey Richland Central Hospital. The blood was analyzed, and the blood alcohol concentration (BAC) was determined to be By law, it is assumed that Sawyer s BAC at the time of the crash was The BAC of Cathy Sawyer is also stipulated to by the parties. 3. Vander Von Sander is deceased, and hence is obviously unavailable as a witness. 4. The only residence adjoining Devon Road was Vander Von Sander s residence, approximately half a mile away from the accident scene. 33

36 5. The speed limit for the entire length of Devon Road was and is 45 miles per hour. 6. The State Police Laboratory examination of the black box of the vehicle in question revealed that the car was traveling at a speed of 85 mph five seconds before impact, and at a speed of 40 mph one second before impact. The black box was installed when a new motor had been put in the vehicle approximately three years prior to the accident. 7. There is no sign that the vehicle had a mechanical or electronic defect, with the exception of the windshield wipers, which may have caused or contributed to the crash. 8. The car was not equipped with driver or passenger airbags. 9. Dr. Dana Lang may testify to the toxicology report and his/her findings from viewing Sergeant Durand s photographs of the vehicle. 10. The cell phone assigned to , with Cathy Sawyer as registered subscriber, was used to text Logan Sawyer at 10:53 p.m. on April 10, 2012, with the message YOLO. YOLO is commonly known to mean, you only live once. There were no other text messages sent or received on Cathy Sawyer s phone in the hour preceding the accident. 11. Cathy Sawyer had a valid Florida driver s license at the time of the accident on April 10, Sid Sawyer had a New Jersey Driver s License, but it had been suspended on March 30, 2012, due to unpaid parking tickets, and had not been reinstated as of April 10, Witnesses may be male or female. 13. All witness statements, reports and transcripts of testimony are deemed to be sworn. If asked, a witness must acknowledge swearing an oath or certifying to the contents of the document on the date indicated therein, and also to signing any statement or report. Transcripts of testimony from any audiotaped statements have been prepared by an official court stenographer and are stipulated to be accurate. 14. Costumes, make-up and props are prohibited. 15. The trial judge shall dispense with the reading of the jury charge, and it shall be stipulated that all jurors are familiar with its contents. 16. Sergeant Jean Durand is an expert in accident reconstruction. 17. Dr. Dana Lang is an expert in pathology and toxicology. 18. Dr. Harley Vang is an expert in civil engineering and accident reconstruction. 19. Consistent with Sergeant Jean Durand s pretrial testimony, the still photograph of the Grand National from the traffic light camera does not depict the passenger compartment, only the lower part of the front of the car. The exhibit of the car, J1, is not from the traffic light camera. There is no photo from the traffic light camera available for use at trial. The traffic light camera photo is stipulated to be correct, depicting the New Jersey license plate number YR1618 and the grille and hood of a Grand National. 20. All phone numbers and addresses provided in this case at the time of release are fictitious, and must not be accessed in any way. 34

37 21. At the hospital, Sid Sawyer was administered oxycodone, acknowledged to be a powerful opioid painkiller, which is known to cause drowsiness and to dull the senses. At a Miranda motion, the defense moved to exclude Sid Sawyer s statement, arguing that Sid was under the influence of the painkiller, and the effects of a concussion from the accident. While the motion was denied, the court will allow the defense to argue that Sid Sawyer s ability to recollect and relay information at the time of the statement to Sergeant Jean Durand was affected by the accident and/or painkiller, and it is for the jury to decide what weight, if any, to give to it. 22. Sergeant Jean Durand knows Sid Sawyer from a prior juvenile arrest. The State is not allowed to make reference to this juvenile matter in the case. The officer should be instructed by the prosecutors to refrain from making any reference to the juvenile case, and instead the officer may testify that (s)he knew Sid Sawyer from growing up in the town of Metropolitan where Durand has been an officer. The jury will be instructed to draw no negative inference from the fact that Sergeant Durand knows Sawyer. 23. At a pretrial proceeding, the trial judge has ruled that the defense may not claim that medical care was an intervening cause of death of Cathy Sawyer. The defense cannot argue that Cathy Sawyer would have lived, but for the medical assistance given, and/or the delay in providing medical care, and/or a lack of appropriate medical care administered to her. Likewise, while Cathy Sawyer was intoxicated at the time of death, the defense may not claim that she would have lived, but for her intoxication. 24. Sunset occurred at 7:31 p.m. on April 11, 2012, the day Sergeant Durand went back to the crime scene. 25. Sam Axelrod s FlipBook social media facepage, as it was on October 19, 2012, shows that Sid Sawyer had friended Sam, and had written to him/her, on June 20, 2012, What are you up to these days, Out-of-a-Jam Sam? There is no posted reply to that message. The parties have stipulated that Sid friended Sam, at some unknown date, and wrote him/her this message on June Sid Sawyer and Sam Axelrod were both scheduled for Superior Court, Metropolitan County, located in Metropolitan City, on July 19, 2012, before the Honorable Joan Janis. They were both present in court on that morning by the time the judge began to call the calendar at 9:00 a.m. 27. There was no detour from Route 67 on the night in question. 28. Sam Axelrod has a criminal record, which either party can bring out in questioning of that witness. On February 4, 2008, Sam Axelrod was sentenced for burglary, a third degree offense, to a year of probation with a condition of 180 days in jail, but with no objection from the State to the defendant s application to the judge for him/her to serve that time on house arrest with an ankle bracelet. On March 13, 2009, Sam Axelrod was sentenced on possession of a controlled dangerous substance, Oxycodone, without a prescription, a third degree offense, to two years of probation, with time served at plea, which totaled 30 days. Either party may also refer to the most recent case Sam Axelrod has pled to, and for which (s)he is awaiting sentence. The description of the potential penalties indicated by Assistant Prosecutor Jorge Balsa in the October 25, 2012 statement of Sam Axelrod is accurate. Sam Axelrod pled to the third degree offense of theft, with the agreement to testify truthfully against Sid Sawyer, as well as the other conditions as described by Jorge Balsa in the transcribed statement, on October 29,

38 BACKGROUND INFORMATION/PREVIOUS COURT PROCEEDINGS: The defense actually hired an expert to give an opinion as to whether Sid was significantly affected by the painkiller and concussion, to help argue that the statement be stricken at the Miranda hearing. The expert did not conclude that (s)he was significantly affected and the defense has not revealed the expert s written report to the court or the prosecution. The defense also retained a medical expert to examine the medical records of Sid Sawyer and the autopsy records of Cathy Sawyer, but after receiving that expert s report, decided not to use that expert either, finding the report less than favorable. The defense has no duty to inform the State or the Court of any potential expert if the defense ultimately decides not to use said expert. The State, however, must inform the defense of the entirety of its investigation. While the State is normally required to bring in a witness to testify to the blood alcohol concentration in Defendant s blood, in accordance with the confrontation clause of the U.S. and State Constitutions, in this case, the finding is stipulated by the parties, and the scientific reliability of the test cannot be questioned. Nor can either side argue that metabolizing of the alcohol in the body caused the level of alcohol ingested at the rehearsal and party to change in the half-hour between the accident and the blood-draw. That is, it is assumed that the blood alcohol concentration (BAC) (s)he had when tested was the same as at the time of the accident. While the State sought to introduce several of the autopsy photographs at trial, the trial judge upheld the defense motion to exclude them, determining that the photographs would be inflammatory, exciting the passions of the jury, and more prejudicial than probative in the proceedings, particularly since the medical examiner would be able to testify to what (s)he observed. In most cases, some autopsy photos are admitted, but very graphic ones are usually only admitted if they are necessary to help the medical examiner explain to the jury how the fatal injury was caused, or what made that injury fatal. WITNESSES AT TRIAL State s Witnesses Sergeant Jean Durand Dr. Dana Lang Sam Axelrod Defense Witnesses Sid Sawyer Dr. Harley Vang Logan Sawyer All characters, institutions, events and other facts contained herein are fictitious and not intended to represent any individual, living or dead. The facts presented in this case were created for the purpose of teaching mock trial skills and not for any other purpose. 36

39 METROPOLITAN COUNTY PROSECUTOR 100 MAIN STREET METROPOLITAN, NEW JERSEY SUPERIOR COURT OF NEW JERSEY METROPOLITAN COUNTY LAW DIVISION (Criminal) INDICTMENT NO THE STATE OF NEW JERSEY ) ) vs. ) VEHICULAR HOMICIDE ) ) ENDANGERING AN INJURED VICTIM SID SAWYER, ) ) OPERATING A MOTOR VEHICLE WITH ) A SUSPENDED/REVOKED LICENSE, ) RESULTING IN THE DEATH OF ) ANOTHER PERSON Defendant ) COUNT ONE The Grand Jurors of the State of New Jersey for the County of Metropolitan upon their oath do present that Sid Sawyer, on or about April 10, 2012, in the City of Metropolitan, in the County of Metropolitan and within the jurisdiction of this Court, did operate a motor vehicle recklessly, causing the death of Cathy Sawyer, contrary to the provisions of Mock Trial Statute 2C:11-5, and against the peace of this State, the Government and dignity of the same. COUNT TWO The Grand Jurors of the State of New Jersey for the County of Metropolitan upon their oath do present that Sid Sawyer, on or about April 10, 2012, in the City of Metropolitan in the County of Metropolitan and within the jurisdiction of this Court, did endanger an injured victim, Cathy Sawyer, by causing bodily injury to her and leaving the scene of the injury knowing or reasonably believing that Cathy Sawyer was physically helpless, mentally incapacitated, or otherwise unable to care for herself, in violation of the provisions of Mock Trial Statute 2C:12-1.2, and against the peace of this State, the Government and dignity of the same. 37

40 COUNT THREE The Grand Jurors of the State of New Jersey for the County of Metropolitan upon their oath do present that Sid Sawyer, on or about April 10, 2012, in the City of Metropolitan in the County of Metropolitan and within the jurisdiction of this Court, did operate a motor vehicle, knowing that his/her driver s license was suspended or revoked, and that such operation of the motor vehicle resulted in the death of Cathy Sawyer, contrary to the provisions of Mock Trial Statute 2C:40-22(a), and against the peace of this State, the Government and dignity of the same. Mary Jones METROPOLITAN COUNTY PROSECUTOR BY: Jorge Balsa Jorge Balsa, ASSISTANT PROSECUTOR Endorsed: A TRUE BILL Dan Carman Dan Carman, Foreperson Dated: August 27,

41 FINAL JURY CHARGE INTRODUCTION Ladies and gentlemen of the jury, the evidence in this case has been presented and the attorneys have completed their summations. We now arrive at that time when you, as jurors, are to perform your final function in this case. At the outset, let me express my thanks and appreciation to you for your attention to this case. I would also like to commend counsel for the professional manner in which they have presented their respective cases and for their courtesy to the court and jury during the course of this trial. Before you retire to deliberate and reach your verdicts, it is my obligation to instruct you as to the principles of law applicable to this case. You must accept and apply this law for this case as I give it to you in this charge. Any ideas you may have of what the law is or what the law should be or any statements by the attorneys as to what the law may be, must be disregarded by you if they are in conflict with my charge. Ladies and gentlemen, I instruct you that the indictment is not evidence of the defendant s guilt on any charge. An indictment is a step in the procedure to bring the matter before the court and jury for the jury s ultimate determination as to whether the defendant is guilty or not guilty on the charges set forth in it. The defendant, Mr./Ms. Sawyer, has pleaded not guilty to the charges. The defendant on trial is presumed to be innocent and unless each and every essential element of an offense charged is proven beyond a reasonable doubt, the defendant must be found not guilty of that charge. The burden of proving each element of a charge beyond a reasonable doubt rests upon the State and the burden never shifts to the defendant. The defendant in a criminal case has no obligation or duty to prove his/her innocence, nor to offer any proof relating to his/her innocence. The prosecution must prove its case by more than a mere preponderance of the evidence, yet not necessarily to an absolute certainty. The State has the burden of proving the defendant guilty beyond a reasonable doubt. Some of you may have served as jurors in civil cases, where you were told that it is necessary to prove only that a fact is more likely true than not true. In criminal cases, the State s proof must be more powerful than that. It must be beyond a reasonable doubt. A reasonable doubt is an honest and reasonable uncertainty in your minds about the guilt of a defendant after you have given full and impartial consideration to all of the evidence. A reasonable doubt may arise from the evidence itself or from a lack of evidence. It is a doubt that a reasonable person hearing the same evidence would have. Proof beyond a reasonable doubt is proof, for example, that leaves you firmly convinced of the defendant s guilt. In this world, we know very few things with absolute certainty. In criminal cases, the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, then you must find him/her guilty. If, on the other hand, you are not firmly convinced of the defendant s guilt, then you must give the defendant the benefit of the doubt and find him/her not guilty. I further instruct you that you must consider each of the counts separately. You will render verdicts on each count. Ladies and gentlemen, as I have previously stated, you must accept the law as I give it to you. You, however, are the judges of the facts. It is your function to determine the credibility of the witnesses and the weight that you give to each witness s testimony. As you evaluate the testimony of each witness, you may accept all of it, a portion of it, or none of it. Now, ladies and gentlemen, you have heard the testimony of Sam Axelrod. You have heard that he/she has prior criminal convictions and that he/she testified against the defendant under a plea agreement with the prosecutor. This plea agreement involved a plea of guilty to a reduced charge on his/her own case and a promise by the prosecutor that he would recommend a sentence of probation. 39

42 I instruct you that you may only consider his/her prior convictions when you are evaluating his/her credibility as a witness. A jury has the right to consider whether a person who has previously failed to comply with society s rules would be more likely to ignore the oath requiring truthfulness on the witness stand than a person who has never been convicted or pleaded guilty to a crime. You may consider such factors as the nature of the prior convictions, the sentence imposed, and the dates on which they were entered - in other words - how long ago they occurred. Further, as to his/her plea agreement which involved cooperation with the prosecutor in this case, the law requires that the testimony of such witness be given careful scrutiny. You should consider whether his/her testimony was influenced by the promise and/or expectation of favorable treatment in his/her own case. Ladies and gentlemen, I further instruct you that if you believe this witness to be credible and worthy of belief, you have a right to convict the defendant on his/her testimony alone, provided, of course, that upon a consideration of the whole case, you are satisfied beyond a reasonable doubt that the defendant is guilty. As with the testimony of any witness, the evaluation of credibility is entirely up to you. You may accept all of it, a portion of it, or none of it. Now before I proceed to explain the law and each of the charges, I am giving you this specific instruction. JURY INSTRUCTION REGARDING SERGEANT DURAND S PRIOR KNOWLEDGE OF SID SAWYER (See Stipulation #22) Ladies and gentlemen, you have heard testimony in this case that Sergeant Durand knew Sid Sawyer prior to the accident on April 10, I remind you that there is no dispute that Sergeant Durand knew the defendant because the defendant grew up in the Municipality of Metropolitan and Sergeant Durand has been a police officer there for many years. Hence, you are instructed not to draw any negative inference with respect to the fact that the officer previously knew him/her. I will now proceed to explain the law and each of the charges. VEHICULAR HOMICIDE (DEATH BY AUTO WITH DRUNK DRIVING) (MOCK TRIAL STATUTE 2C:11-5) The defendant, Sid Sawyer, is charged in count one of the indictment with the crime of vehicular homicide. This count reads as follows: The Grand Jurors of Metropolitan County, upon their oath, do allege that on or about April 10, 2012, in the municipality of Metropolitan, Sid Sawyer committed vehicular homicide by driving a vehicle recklessly, causing the death of Cathy Sawyer, in violation of Mock Trial Statute 2C:11-5 and contrary to the provisions of law. The statute upon which this charge is based provides: Criminal homicide constitutes vehicular homicide when it is caused by driving a vehicle recklessly. In order for you to find the defendant guilty of this crime, the State must prove the following elements beyond a reasonable doubt: 1. That the defendant was driving the vehicle; 2. That the defendant caused the death of Cathy Sawyer; and 3. That the defendant caused such death by driving the vehicle recklessly. 40

43 In order to find that the defendant caused Cathy Sawyer s death, you must find that she would not have died but for defendant s conduct. A person acts recklessly when he/she consciously disregards a substantial and unjustifiable risk that death will result from his/her conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the defendant s conduct and the circumstances known to him/her, disregard of the risk involves a gross deviation from the standard of conduct that a reasonable person would observe in the defendant s situation. In other words, in order for you to find that the defendant drove a vehicle recklessly, the State must prove beyond a reasonable doubt that the defendant was aware that he/she was operating a vehicle in such a manner or under such circumstances as to create a substantial and unjustifiable risk of death to another. The State must also prove beyond a reasonable doubt that the defendant consciously disregarded this risk and that the disregard of the risk was a gross deviation from the way a reasonable person would have conducted himself/herself in the situation. Recklessness is a condition of the mind that cannot be seen and that can often be determined only from inferences from conduct, words, or acts. It is not necessary for the State to produce a witness to testify that the defendant stated that he/she acted with a particular state of mind. It is within your power to find that proof of recklessness has been furnished beyond a reasonable doubt by inferences that may arise from the nature of the acts and circumstances surrounding the conduct in question. The State herein alleges that the defendant operated the motor vehicle in a reckless manner. The State has cited a number of factors in support of its theory of recklessness. The State has argued that the defendant operated the vehicle in excess of the posted speed limit, under adverse weather conditions; that he/she had not slept for over twenty-four consecutive hours; and that he/she operated the motor vehicle in violation of Mock Trial s drunk driving law. Again, the defendant has pleaded not guilty and denies that he/she was the driver of the vehicle. Now ladies and gentlemen, given the State s arguments, it may be necessary for you, in deciding the verdicts in this case, to determine whether the defendant did operate the vehicle in violation of our drunk driving law. Our drunk driving statute provides that a person is guilty of driving while intoxicated if the person operates a motor vehicle while having a blood alcohol concentration of 0.08% or more. While the actual verdict on the motor vehicle charge of driving while intoxicated is rendered by the judge, not the jury, you may fully consider the evidence related to alleged intoxication when considering your verdicts herein. I further instruct you that that if a defendant, due to self-induced intoxication, is unaware of a risk of which he/she would have been aware had he/she been sober, such unawareness is immaterial. Ladies and gentlemen, you may consider all of the evidence as to Sid Sawyer s alleged operation of the motor vehicle in determining whether or not he/she was reckless. You may draw an inference that defendant was driving recklessly if you are satisfied that he/she was driving while intoxicated in violation of Mock Trial s drunk driving law. You also may draw an inference that the defendant was driving recklessly if you are satisfied that he/she had not slept in over twenty-four consecutive hours. An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts established by the evidence. However, you are never required or compelled to draw either one or both of such inferences. It is your exclusive province to determine whether the facts and circumstances shown by the evidence support any inference and you are always free to accept or reject such inference as you deem appropriate. Again, ladies and gentlemen, I remind you that it is the State s burden to prove beyond a reasonable doubt that the defendant was the actual driver of the vehicle. In conclusion, the three elements of the crime of vehicular homicide that the State must prove beyond a reasonable doubt are as follows: 1. That the defendant was driving the vehicle; 2. That the defendant caused the death of Cathy Sawyer; and 3. That the defendant caused such death by driving the vehicle recklessly. If you are satisfied that the State has proven each and every one of these elements beyond a reasonable doubt, then you must find the defendant guilty of vehicular homicide. If, however, the State has failed to prove any one or more of these elements beyond a reasonable doubt, then you must find the defendant not guilty of vehicular homicide. 41

44 ENDANGERING INJURED VICTIM (MOCK TRIAL STATUTE 2C:12-1.2) The defendant, Sid Sawyer, is charged in count two of the indictment with endangering an injured person, Cathy Sawyer, on the same date and in the same municipality as alleged in count one. This conduct is prohibited by a statute providing: A person is guilty of endangering an injured victim if he/she causes bodily injury to any person... and leaves the scene of the injury knowing or reasonably believing that the injured person is physically helpless, mentally incapacitated, or otherwise unable to care for himself/herself. To find Sid Sawyer guilty of endangering an injured person, Cathy Sawyer, the State must prove beyond a reasonable doubt each of the following elements: 1. That he/she caused bodily injury to Cathy Sawyer; 2. That the injured person, Cathy Sawyer, was physically helpless, mentally incapacitated, or otherwise unable to care for herself; and 3. That he/she left the scene of the injury knowing or reasonably believing that the injured person, Cathy Sawyer, was physically helpless, mentally incapacitated, or otherwise unable to care for herself. The first element that the State must prove beyond a reasonable doubt is that Sid Sawyer caused bodily injury to Cathy Sawyer. Bodily injury means physical pain, illness, or impairment of physical condition. As to causation, the State must prove beyond a reasonable doubt that, but for Sid Sawyer s conduct, Cathy Sawyer would not have suffered bodily injury. The second element that the State must prove beyond a reasonable doubt is that the person who suffered bodily injury, allegedly Cathy Sawyer, was physically helpless, or mentally incapacitated, or otherwise unable to care for herself at that time. Physically helpless means the condition in which a person is unconscious, unable to flee, or physically unable to summon assistance. Mentally incapacitated means that condition in which a person is rendered temporarily or permanently incapable of understanding or controlling one s conduct, or of appraising or controlling one s condition, which incapacity shall include but is not limited to an inability to comprehend one s own peril. The third element that the State must prove beyond a reasonable doubt is that Sid Sawyer left the scene of the injury knowing or reasonably believing that Cathy Sawyer was physically helpless, or mentally incapacitated, or otherwise unable to care for herself at that time. A person acts knowingly when he/she is aware that it is practically certain that his/her conduct will cause bodily injury. A person acts knowingly with respect to the nature of his/her conduct or the attendant circumstances if he/she is aware that his/her conduct is of that nature, or that such circumstances exist, or he/she is aware of the high probability of their existence. A person acts knowingly as to a result of his/her conduct if he/she is aware that it is practically certain that his/her conduct will cause such a result. Knowing, with knowledge, or equivalent terms have the same meaning. In determining whether Sid Sawyer acted knowingly, consider the nature of the acts themselves and the severity of the resulting injury. 42

45 Whether Sid Sawyer acted knowingly toward the injured person is a question of fact for you to decide. Knowledge is a condition of the mind. It cannot be seen. Often, it can be determined only by inferences from conduct, words or acts. Therefore, it is not necessary for the State to produce witnesses to testify that Sid Sawyer stated, for example, that he/she acted knowingly when he/she did a particular thing. It is within your power to find that proof of knowledge has been furnished beyond a reasonable doubt by inference which may arise from the nature of the acts and the surrounding circumstances. The place where the acts occurred and all that was done or said by Sid Sawyer preceding, connected with, and immediately succeeding the events leading to the interaction with Cathy Sawyer are among the circumstances to be considered. Now ladies and gentlemen, in this case, Sid Sawyer denies being the driver of the vehicle and thus denies causing bodily injury to Cathy Sawyer. He/she further asserts that he/she intended to seek medical treatment for Cathy Sawyer after the accident. Again, it is the State s burden to prove that the defendant caused bodily injury to Cathy Sawyer and that he/she left the scene of the injury, knowing or reasonably believing that Cathy Sawyer was physically helpless, mentally incapacitated, or otherwise unable to care for herself. If you do find that the State has proven each of these elements beyond a reasonable doubt, then you should consider the defendant s defense that he/she did try to seek medical treatment for her. The defendant must prove this defense by a preponderance of the evidence, that is to say, the greater weight of the credible evidence meaning evidence that is more probable, more persuasive, or of greater probative value. For Sid Sawyer to prove this defense, the evidence supporting it must weigh more heavily in your minds and be more convincing than the evidence opposing it. The burden of proof is sustained by the quality of the evidence, not the quantity. Ladies and gentlemen, again, in order to find the defendant guilty of endangering an injured person, the State must prove each of the following elements beyond a reasonable doubt: 1. That Sid Sawyer caused bodily injury to Cathy Sawyer; 2. That Cathy Sawyer was physically helpless, mentally incapacitated, or otherwise unable to care for herself; and 3. That Sid Sawyer left the scene of the injury, knowing or reasonably believing that the injured person was physically helpless, mentally incapacitated, or otherwise unable to care for herself. If the State has proven each and every one of these elements beyond a reasonable doubt, and you find that Sid Sawyer has failed to prove by a preponderance of the evidence that he/she intended to seek medical assistance for Cathy Sawyer, then you must find him/her guilty. If, however, the State has failed to prove any one or more of these elements beyond a reasonable doubt, or, if such elements were proven but the defendant has also proven by a preponderance of the evidence that he/she did intend to seek medical assistance for Cathy Sawyer, then you must find the defendant not guilty. 43

46 CAUSING DEATH WHILE OPERATING ON THE REVOKED/SUSPENDED LIST (MOCK TRIAL STATUTE 2C:40-22a) The defendant is charged in count three of the indictment with, on the same date and in the same municipality as alleged in counts one and two herein, operating a motor vehicle with a revoked or suspended driver s license, and that such operation resulted in the death of Cathy Sawyer. The defendant is accused of violating a section of our statutes that makes it a crime for a person who is operating a motor vehicle with a revoked or suspended driver s license to be involved in an accident that results in the death of another. In order for you to find the defendant guilty, the State must prove beyond a reasonable doubt the following elements: 1. That the defendant s license was suspended or revoked; 2. That the defendant knew that his/her license was suspended or revoked; 3. That the defendant knowingly operated a motor vehicle; and 4. That the defendant s operation resulted in the death of Cathy Sawyer. The first element that the State must prove beyond a reasonable doubt is that the defendant s license was suspended or revoked. A motorist s license is suspended or revoked from the time that the Division of Motor Vehicles or a court suspends or revokes that license until the time that the Division restores it. The second element that the State must prove beyond a reasonable doubt is that the defendant knew that his/her license was suspended or revoked. A person acts knowingly with respect to the nature of his/her conduct or the attendant circumstances if he/she is aware that his/her conduct is of that nature or that such circumstances exist or if he/she is aware of a high probability of their existence. Knowledge is a condition of the mind that cannot be seen and that can often be determined only from inferences from conduct, words, or acts. A state of mind is rarely susceptible of direct proof but must ordinarily be inferred from the facts. Therefore, it is not necessary that the State produce witnesses to testify that an accused said that he/she had a certain state of mind when he/she engaged in a particular act. It is within your power to find that such proof has been furnished beyond a reasonable doubt by inference, which may arise from the nature of the defendant s acts and conduct, from all that he/she said and did at the particular time and place, and from all surrounding circumstances. The third element that the State must prove beyond a reasonable doubt is that the defendant knowingly operated a motor vehicle. The fourth element that the State must prove beyond a reasonable doubt is that the defendant s operation resulted in the death of another. When considering this fourth element as to whether the defendant s operation of the vehicle resulted in the death of Cathy Sawyer, the State must prove the following factors beyond a reasonable doubt: First, the State must prove beyond a reasonable doubt that the death would not have occurred but for the defendant s operation. In other words, the State must prove beyond a reasonable doubt that this death would not have occurred if the defendant had not operated a motor vehicle. Second, the State must prove both: (1) that the death was not too remote in its occurrence as to have a just bearing on the defendant s liability; and (2) that the death was not too dependent upon the conduct of another person that was unrelated to the defendant s operation as to have a just bearing on his/her liability. 44

47 In other words, the State must prove beyond a reasonable doubt that the death of Cathy Sawyer was not so unexpected or unusual that it would be unjust to find the defendant guilty of this offense. In sum, ladies and gentlemen, in order to convict the defendant of this charge in the indictment, the State must prove the following elements beyond a reasonable doubt: 1. That the defendant s license was suspended or revoked; 2. That the defendant knew that his/her license was suspended or revoked; 3. That the defendant knowingly operated a motor vehicle; and 4. That the defendant s operation resulted in the death of Cathy Sawyer. Again, ladies and gentlemen, if you find that the State has proven each of these elements beyond a reasonable doubt, as I have defined them to you, then you must find the defendant guilty. If, however, the State has failed to prove any one or more of these elements beyond a reasonable doubt, then you must find the defendant not guilty. FLIGHT Ladies and gentlemen, again, there has been some testimony in the case from which you may infer that the defendant fled shortly after the alleged commission of the crime. The defendant has denied flight and has testified as to the reasons for his/her actions following the accident. The question of whether the defendant fled after the commission of the alleged crime is another question of fact for your determination. Mere departure from a place where a crime has been committed does not constitute flight. If you find that the defendant, fearing that an accusation or arrest would be made against him/her on the charges involved in the indictment, took refuge in flight for the purpose of evading the accusation or arrest on those charges, then you may consider such flight in connection with all the other evidence in the case, as an indication or proof of consciousness of guilt. Flight may only be considered as evidence of consciousness of guilt if you should determine that the defendant s purpose in leaving was to evade accusation or arrest for the offenses charged in the indictment. A person acts purposely with respect to the nature of his/her conduct or a result thereof if it is his/her conscious object to engage in conduct of that nature or to cause such a result. Ladies and gentlemen, it is for you as judges of the facts to decide whether or not evidence of alleged flight shows a consciousness of guilt and it is for you to decide the weight to be given to such evidence in light of all the other evidence in the case. 45

48 Narrative Police Report SERGEANT JEAN DURAND On April 10, 2012 I was working my usual shift from 8:00 p.m. to 8:00 a.m. At 11:01 p.m., I was dispatched to Devon Road, about a mile north of Vander Von Sander s estate. I saw the parked car of Vander Von Sander with its fourway flashers engaged. As it was raining heavily, Von Sander remained in his vehicle. At the driver s side window, he pointed ahead (northbound) towards the area where Devon Road curves left, and on the right side of the road was what I later determined to be a 1987 Buick Regal Grand National, NJ Registration YR1618, registered to Logan Sawyer. The car had obviously left the road going eastbound, had hit a large tree head-on, in the center of the front grille, and came to rest there. The car was pitched downwards, as the field there dips as it approaches the tree. I came up to the car from the rear, and peered inside as best I could with the aid of a flashlight, as there was no other light source in the area, except for the faint glow of Von Sander s truck s headlights, and of my squad car s headlights and spotlight. There was no one in the vehicle. The front windshield was almost completely blown out. The front end of the car was heavily damaged, and there were no lights emanating from the car itself. I called for backup, but none arrived for nearly an hour, although EMS arrived in about ten minutes. This night was unusual, because there had been another accident just before this one, with fatalities as well, which kept other on duty Metropolitan police officers, as well as police from contiguous towns, otherwise employed. With the aid of my flashlight, I saw the body of the woman, later identified as Cathy Praha Sawyer, lying mostly downwards on a pile of rip-rap blue stone, on the edge of the Devon stream. Her face was to one side, and she started to speak. I could make out a few phrases, including, Sid, the driver... too late for me... help Sid. Those are the phrases that I could definitely make out. This led me to believe that there had been another occupant in the vehicle. In fact, the driver s door was open. I was unable to render any assistance to Ms. Sawyer, or move her, as she appeared to have had a neck injury. From my brief physical examination, I saw that her airway was apparently clear, and while she was in obvious distress, I did not have the equipment to render any additional aid. I told her not to try to move, and I tried to comfort her by telling her that an ambulance was on the way. Accordingly, I searched the field for the other occupant. I saw movement about a hundred yards away, by the tree line, northbound, toward Von Sander s residence. The person, already known to me as Sid Sawyer, was behind a bush, and started to crouch behind it as the beam of light hit him/her. I called out Sid, and approached as quickly as I could in the muddy field. Instead of coming toward me, Sid retreated into the woods, in the direction of Von Sander s residence. I had to run to catch up with him/her, even though (s)he was limping. (S)he was in no shape to escape me, however. (S)he was holding his/her right arm with his/her left. Sid s face had cuts and abrasions. I shined the flashlight and examined his/her face, and I immediately smelled the odor of alcohol on Sid Sawyer s breath. His/her eyes were bloodshot. Sawyer said as a spontaneous utterance, with no prompting from me, If only I could go back in time. This would never have happened. I asked if (s)he was able to walk and (s)he replied yes. I assisted him/her by putting Sid Sawyer s left arm over my right shoulder, and we walked back to where Cathy Sawyer was lying. At this time, the ambulance arrived, and EMTs immediately exited and started tending to Cathy Sawyer. Sid Sawyer appeared a bit confused and was disheveled, with twigs and hay sticking to his/her bloody clothing. Sid Sawyer was taken to Carey Richland Central Hospital, as the Metropolitan Hospital was full, in part from the many accidents caused by inclement weather. By dispatch, I was informed that Cathy Sawyer succumbed to her injuries an hour after arriving at the hospital. She had never regained consciousness after EMTs attended to her, so I was the last person to talk with her alive. I examined the vehicle on April 11, 2012, at 1:00 a.m., in the locked, enclosed garage at police headquarters, where the car was towed initially. I was wearing gloves, and had a magnifying glass to aid in my inspection. I documented the following during the examination: In the ignition was the ignition key, which was on a key ring, with the name Logan imprinted on it, linked together with a key ring with an S monogram on it, which ring had two more keys attached. 46

49 There was a half-empty liter bottle of Crown Loyal whisky, in the bright blue drawstring bag it comes in, in the center console, with the cap on. In the bag was a small card addressed to Logan that said, To loyal family, loyal to the end, from Sid. There was a cellular phone assigned to wedged in the cup holder of the center console. The panel under the steering wheel had an indentation, consistent with impact of the knees (as depicted in photographs). However, this was not the case with the passenger side panel. The vehicle is equipped with three-point restraint seatbelts, both lap belts and shoulder belts. Both lap belts and both shoulder belts were broken and frayed at the edges. Given the age of the car, perhaps their age had something to do with their failure. I further note that at no time during my examination did I discern any apparent DNA or fiber evidence to retrieve for submission to the State Laboratory. After I completed my examination and completed photographing the vehicle, it was towed to the police impound lot, located behind headquarters and which is surrounded by a seven-foot-tall fence, topped with razor wire, and only accessible through a gate monitored by police. At 2:00 a.m., on April 11, 2012, I conducted an audiotaped interview of Sid Sawyer at the Carey Richland Central Hospital. At that time, (s)he was not yet under arrest. (S)he had not yet been informed of Cathy Sawyer s death. During this interview Sid Sawyer denied being the driver of the vehicle and stated that the deceased was driving. An official court reporter will prepare a full transcript of this interview. Later on April 11, 2012, I reported for my 8:00 p.m. to 8:00 a.m. shift. I resumed my investigation and examined the roadway, as well as the field, on Devon Road leading to the accident scene at 8:30 p.m. Using a measure meter, I measured the distance from the tree to the road as being 21 feet. I then created a sketch showing the accident scene including the position of the vehicle in relation to the other physical features. It was hard to distinguish the rubber of skid marks on the similarly colored blacktop surface. I briefly looked at the skid marks that I could perceive on the roadway, trying to determine which were from the previous night s accident. However, because this is a dangerous curve, there were numerous skid marks, of indeterminate age, so I could not. I started to look for footprints so that I could photograph Sid Sawyer s path from where (s)he had exited the car, but I realized that even if the rain hadn t washed all traces away, the ground had been trodden by EMTs and the tow-truck operators. I determined that, from Cozy Woods Apartments, where Sid Sawyer said (s)he was traveling from with the decedent, to 555 Blessing Drive, which (s)he said was their destination, would be a distance of six miles, by the most direct route, using Route 67. To take Devon Road, on the other hand, would be a distance of eight miles. Dated: April 12, 2012 Sergeant Jean Durand Sergeant Jean Durand Sergeant Jean Durand s Motor Vehicle Accident Reconstruction Report Accident of April 10, 2012 Resulting in the Death of Cathy Sawyer: I have a bachelor s in science from Metropolitan University, with a major in forensic science and a minor in physics. I have been trained, both at the Metropolitan Police Academy and, in 2007, at the two-week Regional Motor Vehicle Accident Reconstruction Course, and at Annual State MVC (Motor Vehicle Crash) Reconstruction Refresher Courses thereafter. I have written accident reports as a regular part of my work, and authored accident reconstruction reports for MVCs at least 20 times. I have testified several times in municipal courts as to my findings, as an expert in accident reconstruction. My qualifications as an accident reconstruction expert include certification by the Accreditation 47

50 Commission for Traffic Accident Reconstruction (ACTAR). I am also a member of the U.S. Accident Reconstruction Communications (ARC) Network. I have previously documented my observations and investigation of the scene and the vehicle in my narrative report dated April 12, I herein incorporate all of the information contained in that initial report: This accident was a classic 12 o clock frontal impact. In accidents with frontal principal direction of force (PDOF), drivers usually get the most serious injuries from airbags (they can burn you) or from the front part of the car crumpling and invading the passenger compartment. While it is a little before my time, and I have not seen it too often, with no airbag, the injuries often come from the steering wheel, or the post in front of the driver s door. Ejections from the windshield are rare, comprising as few as 12% of ejectee fatalities, whereas a majority eject from windows. They are rare, in part, because the steering column and the steering wheel serve as hard barriers to the driver s ejection. In my many years on the force, having seen hundreds of MVCs, and dozens involving fatalities, I have not seen a driver ejected from the windshield. Ejections themselves and not any pre-ejection occupant impacts are responsible for the bulk of the harm to ejectees. Furthermore, ejected occupants sustain harm much greater than that which would have occurred, had these occupants not been ejected. On the other hand, I understand that Sid Sawyer s injuries were not so serious. llegal street racing has been associated with a high rate of motor vehicle crashes. Drivers with no previous citations are approximately three times more likely to be at zero risk of a crash compared to drivers with previous street racing citations. While street racing is a contributing factor to less than 1% of fatal crashes in the United States, the MVCs and fatalities associated with street racing appears to be an increasing problem in many parts of the country. Injuries that result after the second impact when the body hits the ground outside the car are even more severe than the initial impact. Distance between the victim and the vehicle usually indicates how fast the car was traveling. Given how far Cathy Sawyer s body traveled, I believe the vehicle had to be traveling well in excess of the posted 45 mile per hour speed limit. Perhaps twice that speed. It is my opinion, within a reasonable degree of scientific certainty, that Sid Sawyer was the driver of the Grand National when it struck a tree on Devon Road on April 10, Dated: April 15, Sergeant Jean Durand Sergeant Jean Durand Excerpts from Sergeant Durand s Testimony at a Probable Cause Hearing on June 27, 2012, before a Metropolitan County Superior Court Judge; Questions Posed by Metropolitan County Assistant Prosecutor Jorge Balsa: Q: Could the accident have been caused by the Grand National swerving to avoid other traffic? A: We can t be certain, but Metropolitan has red-light cameras at each end of the road. Vander Von Sander s driveway was the only other access for cars to the roadway between those lights on that four-mile stretch. There were no other cars photographed at either light that night. The camera doesn t photographs all cars, just the ones that fail to stop for red lights. Q: If you have the red-light cameras, do you have an image of any cars failing to stop for one of the lights? A: Yes. The only image was of the Grand National itself, NJ registration YR1618, at the end where Devon meets Main

51 Road, the route between Logan s apartment and 555 Blessing Drive, the Sawyers family home. We pulled that image, to see who was driving, but the image is of the lower part of the car only. It shows the license plate and hood, but not the occupants. Q: Wasn t there a large pile of hay in front of where the car crashed? A: Yes, some distance directly in front of where the car was pointing. Q: Was Sid Sawyer ejected from the vehicle as well as Cathy Sawyer? A: No. The passenger seat, sometimes referred to as the death seat, is the usual side for someone to be ejected from. Cathy Sawyer was ejected from that seat. Q: You mention that the cell phone of Cathy Sawyer was found in the center console cupholder. Has the phone been analyzed? A: Yes. Q: What came out of the cell phone analysis? A: There were no calls to or from that phone in the hours preceding the accident. There was one outgoing text message sent from that phone at 10:53 p.m. to Logan Sawyer s cell phone. Our investigation has revealed that Logan Sawyer is a cousin of Sid and Cathy Sawyer, and they had all been together at Logan s apartment in the hours preceding the accident. Q: How large was the hay pile? A: I would have to guess. I did take photos the next day, though. Q: Did you take photos of any footprints? A: No. On the night of the accident, I had other more important obligations, and no other officer was available to examine the crime scene. The next evening, the crime scene was too disturbed for it have been of much use to photograph the area, and I am sure the rain degraded any shoeprints beyond recognition. Q: When did you finish work on April 11 th? A: I left at my scheduled time of 8:00 a.m. Due to budget cuts, there was no money for overtime. I reported back to duty at 8:00 p.m. that evening. (Transcript prepared by an official court reporter.) Excerpts from the Grand Jury Proceeding of August 27, 2012 (Questions from Individual Grand Jurors, Whose Names Are Kept Anonymous) The following questions were asked of Sergeant Durand, under oath, at the Grand Jury Proceeding by Metropolitan County Assistant Prosecutor Jorge Balsa: Q: Describe Devon Road, where this accident occurred. A: Devon Road is pretty desolate, and few people traverse this road, as there is a nearby highway parallel to it that s wider, better paved and better lit. It starts and ends between two major roads, however, at traffic lights, and is a few miles long. The people that do use it tend to be kids drag racing down the long straightaway. The straight area ends, though, at the 49

52 curve where Sid Sawyer veered off the road. That place is commonly known as dead man s curve, like the Jan and Dean song. From all the blank stares, I m probably dating myself by saying that. Q: Do you know where Sid Sawyer was going? A: There is actually nothing but woods back there. You d have to go to the other side of the road to get to old Von Sander s place, the only house around for miles. All I can say is that it is lucky that I happened to spot Sawyer in that rainstorm. Visibility was pretty bad there in the dark. At first I thought it might be one of the many deer that live out there, but what would a deer be doing out in that rain? You know, Sawyer did have an arrest warrant outstanding, for failure to pay fines. Assistant Prosecutor Balsa, interjecting, instructs the Grand Jury: Ladies and gentlemen, you are not to consider the testimony regarding an arrest warrant when you evaluate the charges against Sid Sawyer. You are to disregard that statement entirely. (Transcript of Grand Jury Proceeding has been prepared by an official court reporter.) 50

53 DR. DANA LANG, M.D., MEDICAL EXAMINER I am the Metropolitan County Medical Examiner. I have been employed in this position for five years. I conducted the autopsy on the body of Cathy Praha Sawyer of Fort Lauderdale, Florida. I have previously conducted hundreds of autopsies as Medical Examiner for Metropolitan County, and did assist in hundreds more in my prior position, as Assistant Medical Examiner in Southwestern County, Texas. I graduated from Metropolitan University in 1990, magna cum laude, with a Doctor of Medicine degree. I have a bachelor s degree in biological sciences from Johns Hopkins University. I am licensed in New Jersey and Texas. In 1995 I became a Diplomate of the American Board of Pathology, Anatomic and Forensic Pathology. I have been a member of the Medical Society of Greater Metropolitan since 2008 and currently serve on the Executive Committee of its Board of Directors. Over the past several years, I have attended various in-house and external seminars and conferences on criminology and trends in forensic science. Last year I participated in the Annual Forensic Dental Identification and Emerging Technologies Course of the Armed Forces College of Pathology. In addition to the autopsy, I have reviewed in preparation for this expert report, the Carey Richland Hospital ER report of defendant Sid Sawyer. HISTORY: This 23-year-old female was involved in a one car motor vehicle accident at approximately 11:00 p.m. on April 10, 2012 on Devon Road in Metropolitan. She was unconscious by the time that emergency medical technicians examined her. She was declared dead shortly after arrival at the hospital. AUTOPSY: The autopsy was performed, beginning at 3:30 p.m. on April 12, 2012, in the Metropolitan County Morgue. The body was nude, draped and tagged at the time it was transported to the examination room. EXTERNAL APPEARANCE and INTERNAL EXAMINATION: The body was that of a 23-year-old female who appeared the stated age. The eyes, ears and nose were unremarkable. The mouth showed well-kept natural teeth. The brain was characterized by edema, severe enough that there were multiple ruptures of the cerebrum where it meets the skull. The cervical spine was damaged at C-5 vertebra with a compression fracture. The lumbosacral spine was normal. The lumbar spine and surrounding tissue were severely damaged, with burst fractures of the L-2 and L-3 vertebrae. Decedent had trauma to the lower trunk in a horizontal pattern, consistent with blunt force trauma caused by a seatbelt. The lower extremities showed a tattoo on the left leg, a picture of a sports car with exhaust fumes coming out the back and the words, in cursive script, Rebel without a Cause. Decedent had lacerations and abrasions to her right leg, right torso and right malar region (cheek) and forehead, and a small piece of safety glass embedded in the upper right malar area. Some of the lacerations of the cheek and forehead are dicing lacerations. The defenestrated body had impacted first with the seatbelt, which broke, then with the windshield, then with the ground. The injuries occasioned by the several impacts, taken together, undoubtedly constituted the proximate cause of death. Dated: April 12, 2012 Dr. Dana Lang, M.D., M.E. Dr. Dana Lang, M.D., M.E. 51

54 Toxicology Report of May 14, 2012 (Appended to the Autopsy): Ethyl Alcohol: 0.163% Blood Alcohol Concentration (BAC) Negative for all common controlled dangerous substances (CDS) Expert Report by Dr. Dana Lang; Dated June 11, 2012: I have been asked to review this case and to render an opinion as to whether Sid Sawyer was the driver of the Buick Regal, and whether (s)he was ejected from the vehicle, upon impact, on April 10, In preparation for this report, I have reviewed the police reports, the accident reconstruction report, photographs of the accident scene, photographs of the Buick Regal as it appeared after the crash, together with Sid Sawyer s medical records for care received on April 10 and 11, 2012 at the Emergency Department of Carey Richland Central Hospital. It is clear that Cathy Sawyer was ejected from the vehicle. Passengers are ejected from vehicles at a much higher rate than drivers are, for the simple reason that the steering wheel blocks the body of the driver from being thrown forward past the windshield. Cathy Sawyer suffered burst fractures of the lower spine, at L-2 and L-3 vertebrae. A burst fracture is a type of traumatic spinal injury in which a vertebra breaks from a high-energy axial load (e.g., car accidents or falls from a great height or high speed), with shards of vertebra penetrating surrounding tissues. In this case, the spinal cord was ruptured, and Ms. Sawyer was immediately paralyzed. Accordingly, she would have landed exactly where Sergeant Durand and EMS personnel found her. The distance calculated by Sergeant Durand is consistent with the injuries seen upon examination of the body, in terms of the secondary impact the body experienced when it hit the ground, on the hard surface of the stones. Many of the surface abrasions and cuts were occasioned by this impact with the stones. Cathy Sawyer was also struck by glass from the passenger side door window, as dicing injuries are seen only on the right side of her face, together with the cuts from the stone surface. This is consistent with decedent being seated in the front passenger seat at the time of the accident. Injuries to the medial collateral ligament (MCL) are usually caused by a direct blow to the outside of the knee. These types of injuries often occur in contact sports, such as football or soccer. Sid Sawyer was diagnosed with this injury in the Emergency Room. Cathy Sawyer did not have any such injury. Head injury is the most common cause of morbidity and mortality in motor vehicle crashes, and is the most frequently injured body region, even among occupants using three-point restraint systems. I base this on an analysis of motor vehicle crashes (MVC) derived from the crash injury research and engineering network (CIREN) database. CIREN combines crash site analysis, vehicle damage assessment, and occupant kinematics in relation to the occupant s injuries. Cathy Sawyer did have a swelling of the brain, which caused fatal damage as the brain grew too large for the skull. An impact with the steering wheel at only 30 mph is comparable to standing against a wall and having a telephone pole rammed into the chest. Organs with ligamentous attachments (eg, aorta, liver, spleen) are particularly susceptible to injury. In my examination of Cathy Sawyer, I did not see serious thoracic injury, attributable to blunt force trauma, of any kind. Nor did decedent suffer any injury to the wrist or between the thumb and forefinger, which would be consistent with impact to the front of the vehicle when driving normally, with the hands in a 2 o clock and 10 o clock pattern. The Emergency Room report, from Carey Richland Central Hospital, of Sid Sawyer reveals that Sid Sawyer 52

55 complained of pain to the right hand to the intake nurse, although the emergency room medical personnel inexplicably failed to examine this area. The ER physician reported that Sid Sawyer had a 3 centimeter laceration across his/her forehead, which required multiple sutures, and edema (swelling) of that area. Accordingly Sid Sawyer was kept overnight at the hospital for observation. The CT scan was negative for fractures of the skull and also negative for bleeding within or swelling of the brain. The fact that decedent had alcohol in her system, equal to BAC of in whole blood, does not change my opinion as to the cause of death. It is my expert opinion, within a reasonable degree of medical scientific certainty, as a forensic pathologist, that decedent, Cathy Sawyer, was the passenger in the vehicle, and not the driver. I base this opinion on the dicing injuries to decedent on the right side, the lack of any discernible injury or trauma to decedent s knees, the injury to Sid Sawyer s knee and the lack of injury to decedent s wrists or hands, whereas Sid Sawyer complained of pain to the right hand. It is my opinion, based on the above, within a reasonable degree of scientific certainty, that Sid Sawyer was the driver of the Buick Regal at the time of the crash, and that Cathy Sawyer was seated in the front passenger seat. Sergeant Jean Durand s reference to the passenger seat being the death seat is unprofessional. I do concede that passengers are more likely to eject from vehicles, in general, than drivers. In this case, however, it is not entirely clear to me whether Sid Sawyer was ejected from the Buick Regal. Had I recourse to follow-up medical records, I might be able to make this determination. Dated: June 11, 2012 Dr. Dana Lang, M.D., M.E. Dr. Dana Lang, M.D., M.E. 53

56 SAM AXELROD Interview by Sergeant Jean Durand (As Recorded on Audiotape. Transcribed by an Official Court Reporter): Q: The time is now 3:30 p.m., on October 18, I am Sergeant Jean Durand, and I am here with Sam Axelrod and with Paul Fabrini, attorney for Sam Axelrod. Well, Mr./Ms. Axelrod, your attorney, who is with us in the room, said that you wished to assist us in the Cathy Sawyer case, and the Prosecutor s Office told me to follow up with you personally. You did send me a letter first, but I did not respond to the letter, and just gave it to the assistant prosecutor assigned to the case at the Grand Jury. We have had you taken out of your jail cell, and you are here at the Metropolitan County Prosecutor s Office. The other inmates were told that you were taken to the hospital for some medical test, so as not to arouse any suspicion. Q: Please review this letter. Is this the letter you sent me? A: Yes, it sure is. Q: Do you agree to give me a sworn statement about the subject of this letter? A: Yeah. Q: Do you swear to tell the truth here today? Do you also swear that all of the contents of this letter are true, to the best of your knowledge? A: Yes, to the best of my knowledge. But I have a lot more knowledge for you today. Q: Mr. /Ms. Axelrod, let s start... A: First of all, call me Ax. Everybody does. Everybody but the guards, at least. Besides, we do know each other. Remember? Q: Ax, sure. I understand that Sid Sawyer has confided in you about what really happened in that accident. A: Yeah, but I m hoping you can help me out. I m supposed to go upstate soon for up to five years. Q: Ax, I know that your attorney explained to you fully that I cannot make any promises here. I don t have the letters E, S and Q after my name. What I can do is put in a good word for you. The Prosecutor s Office can evaluate your cooperation, by telling the truth about what you know, and they can make the final call and speak to the judge at your sentencing. A: What about a written cooperation agreement? Q: The Prosecutor s Office didn t go along with that. Like I told you, the more you can be of assistance, the more we can help. So long as it s the truth, you understand. A: Whatever you say. Q: First, who told you about the accident? A: Well, when Sid was at that first court appearance, the arraignment conference, (s)he was going over his/her discovery packet. (S)he d gotten a copy from his/her attorney. His/her parents had gotten a private attorney, but I don t think they paid enough to have a trial. They paid only enough for a plea. (S)he wanted to know what (s)he was really facing, and I said I d give an old friend a hand. I met Sid out at our old hangout, the Dram Shop, about a week after (s)he had been in court, and we went over things. Q: How did you learn that Cathy was dead? From talking to Sid? A: Yeah. 54

57 Q: When was that? A: Well actually, I had read about it in the paper, the Metropolitan Advance, the day after Sid killed his/her sister. Q: So how do I know that you haven t made up a story based on what you read in Sid s discovery packet? A: Well, it was just your report and the autopsy in that discovery packet. The State hadn t given anything else over yet. But I know things that aren t in that report of yours. Q: Like what? A: The driver s door was open, wasn t it? Q: That s not much. Sid was there. So what if (s)he told you the door was open? A: (S)he told me (s)he kicked it open. After the accident... after his/her sister did a header through the windshield... (s)he couldn t get out. The door was jammed shut. (S)he had to lean back across the console and kick at the door with his/ her left foot. (S)he broke the window and smashed in the door panel before the door would open. Q: What else did (s)he tell you? A: They borrowed Logan s car to see what it could do. I think Sid wanted to show off to Cathy that (s)he wasn t still a crappy driver like when they were kids. Devon Road was nearby, and (s)he wasn t likely to run into any cops like you there. On rainy nights, (s)he said, cops don t like getting wet, pulling people over. It s dryer in the donut shop. No offense. I m just repeating... Q: None taken. So far, you haven t given me anything I wouldn t see in a creative writing class. A: Patience, patience. Sid said they pulled onto Devon Road on the strip before dead man s curve. (S)he was revving the engine when some kid pulls right alongside in a Beamer and rolls down his window and says That thing still runs like a real car? Sid says, Better than a Beamer. The other kid says Oh yeah? Let s see and floors it. So Sid goes after him. (S)he gets the speedometer to three digits and passes the Beamer. Cathy was egging him/her on the whole time. (S)he was also texting something to Logan while they drove. Q: Texting what? A; I don t know. I don t know if Sid knew. (S)he was busy driving. Q: Did Sid say how the accident happened? A: Yeah. (S)he had been driving between that Beamer and the edge of the road The road was slick, and the rain got stronger all of a sudden. (S)he said (s)he must have lost control, and whack! (S)he makes it out, as I told you, Sid sees that Cathy is messed up, laying on the rocks, knows she s a goner and decides to get out of there, at least until (s)he can sober up a little, get his/her head straight, and figure out what to do next. Q: Has Sid ever gone by any other name? A: Yeah, Fiver. I ve heard Sid called Fiver. Q: Why is (s)he called Fiver? A: Why, well, I don t know why. I had a buddy who always called five and ten dollar bills as fivers and tenners. English guy. English chap, you know. I always figured it had to do with that. Sid, like me, would always do anything for a fiver anyway, know what I mean? 55

58 WITNESS STATEMENT OF SAM AXELROD GIVEN AT THE METROPOLITAN PROSECUTOR S OFFICE: Questioning is conducted by Metropolitan County Assistant Prosecutor Jorge Balsa: Q: Mr./Ms. Axelrod, let me say something for the record first. This is all being audio-recorded. The time is now 3:35 p.m., on October 25, You are here with your attorney, Paul Fabrini, as Mr. Fabrini and I have discussed your cooperation in the matter of State v. Sid Sawyer. A: Yes. I m ready to get down to that. Q: You know that you are currently facing up to 20 years imprisonment on your current charges, based upon your being what s known as a persistent offender. A: Mr. Fabrino... Q: That s Fabrini. A: Fabrini, excuse me. Mr. Fabrini, I know that my reputation precedes me. You know about the burglary plea, and that Oxy possession case that landed me in jail, until my handler got me out to lend Metro PD some assistance to flip against my dealer. She s this handicapped old lady who was selling her prescriptions to supplement her SSD [Social Security Disability]. Q: Do you understand that you can get consideration for open charges if you assist the State in an ongoing investigation? A: I learned that early. For the burglary, I did 180 days of jail on the ankle bracelet and a year of probation. It would have been more, but I gave up my co-d, ugh, my codefendant, you know, right away. Q: Mr./Ms. Axelrod, I m well aware of your prior record. It doesn t help us. But you also have outstanding charges. Specifically, you are charged with theft, second degree, meaning that you stole over $75,000. We counted up over a hundred thousand in checks that you cashed from closed and fictitious accounts. A: That Oslo guy set me up, you know. He gave me the checks, and I only got a three percent fee for my effort. Q: Putting aside for the moment what did or did not happen in your case, Mr./Ms. Axelrod, I understand that you know something about the motor vehicle accident in which Sid Sawyer was driving. A: Yeah and I want to know how it affects my case with that Oslo scammer. Q: That remains to be seen based upon our discussion today. Now Mr./Ms. Axelrod, we are here based upon what you told Sergeant Jean Durand, on October 18, I have the typed transcript of the conversation you had with him/her. You already went over this transcript with Mr. Fabrini, did you not, and it was accurate? A: Yes and yes. Q: Mr. Fabrini explained to you that you would be able to plead guilty to certain terms if you agree to testify truthfully against Sid Sawyer? A: But there s no testimony without a trial. Q: That is, if there should be a trial, or at least a testimonial motion hearing before the judge, in any of those situations, you are agreeing that you would testify truthfully against Sid Sawyer. A: Sure. 56

59 Q: In your discussion with Sergeant Jean Durand on October 18, 2012, you were telling the truth? A: Sure. Q: You would be expected, then, to testify consistent with that statement at any hearing or trial against Sid Sawyer. Is that understood? A: Yeah. Then no-jail probation is on the table. Q: Even probation makes you subject to five years in prison, should you violate probation. A: But if I don t violate, I don t go to jail or to prison. Q: As a result of your agreement to give truthful testimony, the State is recommending to the judge an open plea to a third degree. We will waive filing of a persistent offender motion, which could have gotten you a sentence between ten and twenty years, and we will also move to amend your current second degree theft charge, which could get you five to ten years, to a third degree theft charge. As a third-degree offender, you are facing anywhere from one to five years of probation up to as much as five years in prison. If the judge does give you probation, he could order that you serve up to 364 days in jail as a condition of your probation. A: And that jail could be done on an ankle bracelet, like I did before. Q: Possibly. That s not up to me or my office. That s up to the judge. A: Do I have to sign anything? Q: You will sign the plea papers, and you will have to admit your guilt to theft in a value over $ but less than $75,000.00, a third degree offense. The truthful testimony requirement will be part of the plea. A: OK. How will I know if I get no-jail probation or not? Q: The sentence will not occur until after the plea or trial of Sid Sawyer. At your sentence, I will speak as to my assessment of how you performed, that is, to what extent you assisted the State by giving truthful testimony against Sid Sawyer. I will not give any specific recommendation to the judge for your sentence. The judge will then give you a sentence, taking into account such things as your prior record, your offense here for theft of up to $75,000.00, and your testimony if it was necessary. You will still be ordered to give full restitution for the actual total amount of over $100, Do you understand? A: Yeah, I understand. From the street, I ll be able to pay back all that money the Oslo guy stole. Inside, they only pay you less than a dollar-an-hour. Q: Full restitution is a part of the agreement, no matter what. A: Understood. Always nice doing business with you. (Transcript prepared by an official court reporter.) 57

60 SID SAWYER Audiotaped Interview by Sergeant Jean Durand Q: We are on audiotape, Mr./Ms. Sawyer. For the record, the time is 2:00 a.m., the date is April 11, 2012, and I am speaking with Sid Sawyer at his/her bedside at the Carey Richland Central Hospital. A: Durand, how is my sister? Do you know? Q: Metropolitan Hospital gives the best care. You can be sure of that. Q: Sid, I am going to ask you a series of questions. They might sound basic, but they are routine in situations like these. Do you understand? A: What do you mean, situations like these? What aren t you telling me? Q: I have to do this by the book. In accidents where there are injuries, we must do our due diligence in making sure that all of the t s are crossed and the i s dotted. Do you understand? A: But how s my sister? Q: I am not at liberty to say that. But I can tell you that Metropolitan is the best place for someone with injuries. How do you feel? A: OK, considering. My wrist hurts really bad. And I ache all over. My knee s better, without having any weight on it. Q: Well, I have to start out by reading you your rights. You have the right to remain silent. Anything you say or do may be used against you in a court of law. You have the right to consult an attorney. A: Wait a minute why are you telling me this? This wasn t my fault. I just wanted to go home to sleep. Q: I have to follow protocol. You just have to bear with me here If you cannot afford an attorney, one will be appointed for you. If you decide to answer any questions now, without an attorney present, you will still have the right to stop answering at any time if you want to talk to an attorney. Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney present? A: I want to talk with Cathy first. I d rather not say anything until I talk with her. I want to know what she has to say. Q: You can t talk with Cathy right now. I know that you ve been through a lot tonight. I just want to make sure that you understand what I ve just read to you. I am going to ask you to read the statements that I just read to you. Are you able to initial them? I can help you if you need it. Initial here. Here. Here. Here. Here. And finally, here. Ok, good. Do you have any questions? A: Yeah. When can I talk to my sister? Q: Again, you can t talk to her right now. Before we begin, are you thinking clearly? A: Yeah, they just gave me some Oxy for the pain, but I m OK, considering. I sure was confused before though, when we were out there. Are you sure Cathy s all right? Q: There s nothing you could do for Cathy, or anyone else, in your condition. Sid, how old are you? A:

61 Q: I know that we know each other. I just want to make sure that you re going to be honest with me. Are you going to answer my questions truthfully? A: Look, Durand. I m not that same juvenile delinquent who sold his/her prescription pills. That was a wake-up call, and I have been law-abiding ever since. Q: I just want to make sure that you re going to tell me exactly what happened tonight. A: I m not going to lie, if that s what you re asking. Q: Sid, do you know why you re in the hospital? A: I know there was an accident. We were in Logan s car. Q: And who was with you? A: Just Cathy and me. Q: When did you and Cathy get in the car? A: Oh, at 10:45 p.m. That s when we left Logan s apartment, I mean my cousin s apartment, in Metropolitan, at Cozy Woods Apartments. Q: What s the apartment number? A: I don t remember it. It s Logan Sawyer, by the way, same last name as mine. Q: Why were you at Logan s apartment? A: We went there after the rehearsal dinner. Oh man, what time is it again? I have to go to Kate s wedding. Q: Just try to stay focused here. You are in no shape to go to a wedding. How long were you at Logan s apartment? A: Probably an hour or two. I m not quite sure. I was kinda in a little bit of a daze. I d been up all night. Kinda hitting the wall Q: When did you get to your cousin s rehearsal dinner? A: About 5:00 p.m. Q: Who with? A: My parents drove. I don t have a car. There are these fines that are keeping me from getting my license back. Right now I have to concentrate on being full-time at Metropolitan College. Q: What were you doing before you left? A: I fell asleep the night before when I should have been doing a term paper. So I woke up around 10:30 p.m. and pulled an all-nighter. Got it ed out just before we left for the dinner. Q: Did you drink at Logan s apartment? A; I guess. I mean, sure. A drink maybe two. Why? Q: Where were you driving to? 59

62 A: No. I asked why? Q: I am just trying to get a picture of the events of that night. Again, where were you driving to when the accident happened? A: We were going to my house, that is, my parents house, where I live, at 555 Blessing Drive, in Metropolitan. Well, you know that. That s where you arrested me, a few years ago. Q: That s all in the past. Did you drink at your cousin s rehearsal dinner? A: I don t know. I guess. I m not sure why it s any of your business, though. I m over 21. Q: Why did you decide to drive by way of Devon Road? Isn t that out of the way? A: Is that where the accident happened? Again, I was out of it. Well, I guess that was Cathy s idea. She admired cars, and that souped-up car that Logan owns, she wanted to see how that drove. She d been saying it all night. She s in from Florida. I had been in that car a few times with Logan. It didn t impress me much. Q: What happened on Devon Road? A: The rain had let up, stopped even, for a few minutes, right before the crash. I no longer heard that pounding on the roof. The engine was loud, though. Cathy must have been going fast. The last thing I remember doing, myself, was grabbing the cell phone from Cathy. She was texting, and that made me nervous. Q: What do you remember about the accident? A: The only thing I remember and I don t know why I remember this is that we were going fast, then all of a sudden I heard a loud bang. Can you believe this? The song that was playing on the radio was Last Kiss by Pearl Jam. Anyway, I also have this thought of my sister putting her arm out in front of me. You know stopping short. She s like that. Always looking out for me. Next thing I knew, I was out of the car, walking, with another pair of headlights behind us a stopped vehicle. Then I remember crawling into some bushes I had trouble pushing them out of my face, but I didn t know why. Q: If you had taken Route 67, then you would have been in civilization, and been able to get help right away. A: But Route 67 floods every time it rains. Your city ought to fix that, you know. Q: I ll make sure to give your input to the mayor the next time I see him. We ll go back to the accident. Do you remember seeing me? A: Yeah but that was later. I have these confusing images in my head. Q: What do you see in these images? A: I remember that the windshield was gone. But the car was hard to see. I felt like I was sitting on a cloud. I don t even know if I thought about how I got into the bushes. Q: What do you remember next? A: I can t get this memory out of my head. I don t know why, but I think I remember someone asking me to get up. I was afraid of the voice. I ran away. I laid down in the bushes at that point. I was moaning pretty good. Q: Did you see anyone? 60

63 A: No. Like I said, I didn t see anything. It was more a bunch of images and sounds. Q: Did you call for help? A: Hey, are you going to arrest me? Q: You are not under arrest. We are doing a thorough investigation. Do you remember calling for help? A: No. I called out for Cathy, but I wasn t sure if anyone heard me. Q: Do you remember me shining a light on you? A: Sorta. I was scared. I saw a light. Not sure who it was or what it was. I got freaked out. I started to try to get out of the bushes. I didn t know where I was or where I was going. To get help. I just thought, you need help. I just knew that I didn t like where I was. Q: Why didn t you come back to the car? You know, to check on your sister? A: When I called out her name, she didn t answer. I didn t know if I was even making any sounds. I was messed up pretty good, you know. I could barely see. My head was bleeding so bad. Q: Didn t it occur to you that you would want to check on your passenger? A: What do you mean passenger? I was the passenger. I was the passenger. Q: But you were driving, right? A: What do you mean, I was driving? I can t drive. My license is suspended. I told you I was going to be honest. What are you trying to get me to say? Q: And less police cars patrol Devon Road than Route 67. A: I was not driving. Just ask Cathy. She ll tell you. Cathy wanted to drive Logan s souped-up car and there was no talking her out of it. Q: How fast were you guys going when you lost control of the car? A: I don t know. I had my eyes closed. Like I said, I don t remember. I might have even dozed off. I hadn t slept for over 24 hours. I wouldn t drive while suspended, plus Logan s car was a stick shift. Last time I drove one of those I killed the transmission. I don t know where I was going when you arrived. I was just in shock. Interview completed at 2:47 a.m. (Transcript prepared by an official court reporter.) 61

64 HARLEY VANG, PH.D. I am a civil engineer. I went to Metropolitan University, where I received my bachelor s, master s and doctoral degrees in civil engineering. I frequently attend training courses in recent advances in accident reconstruction techniques at the same university, the last time being in I have been retained as an expert in accident reconstruction approximately 50 times. About ten of these cases involved motor vehicle crashes (MVCs). I have testified in court on several occasions. I am being paid $2000 for testifying today, and I was paid $ an hour for my investigation and report, which added up to $2500. These are my customary rates. I have been retained by the defense to reconstruct the accident in order to see if I could determine who was driving the Buick Regal on the night in question, and who the passenger was. I was also asked whether Sid Sawyer was ejected from the vehicle, or had exited through a car door. I was retained on November 15, 2012 and by December 4, 2012 I was at the Metropolitan Police Department at the fenced-in, open air police impound lot. It had snowed the night before, so I was welcomed by a snow-covered car when I arrived. It appears that the car had not been moved since it had been deposited there, soon after the accident. Sergeant Durand professes that (s)he discovered no DNA or trace fibers in the vehicle. Apparently, Sergeant Durand did not spray Luminol to determine whether blood traces were on interior surfaces of the vehicle. Nor did (s)he employ any special type of lighting or additional lighting to aid in the detection of these substances. Given the rain on the night of the accident, we will never know whether DNA or trace fibers were in that vehicle, as the car was exposed to a dozen or so more instances of rain before I was able to examine the vehicle. I myself applied Luminol and used a powerful flashlight to see if the Luminol luminesced, but I saw none of the blue glow that occurs when Luminol makes contact with blood. It was impossible to tell whether the windshield wipers were working at the time of the crash. They were in the lowered position at the time of the impact, so it is conceivable that they did not work, and even that they had failed just before the accident. The motor had not burned out, but the failure cited in Buick s recall notice, and described in the literature for Buick dealer mechanics who were to make the repairs, indicate that the motor did not necessarily have to burn out for the wipers to fail. My examination of the driver s door revealed that it would not close, as the latch mechanism had been broken. The door panel was damaged from the impact, and perhaps from Cathy Sawyer s initial impact. The door window was blown out from the impact. Unfortunately, I cannot tell with certainty whether the door was opened upon impact, but it is very likely, as the door no longer can close, due to the bent a and b columns (the columns just in front of and just behind the vehicle s front door). Sid Sawyer and Cathy Sawyer were only a couple of inches apart in height, so it is not possible to determine who was driving based upon the position of the seats, as would often be the case. I was able to examine the three-point restraint seatbelts (that is, consisting of both lap and shoulder belts). They had both broken at the lap and at the shoulder, and the material showed serious signs of stretching and strain. I would attribute the failure of the belt material to the extreme force exerted on them, given the weight of the bodies, and the inertia of the suddenly stopped speeding vehicle. I examined the accident scene on December 10, 2012, after the snow had fully melted. In my analysis of the scene, I measured the perpendicular distance between the end of the asphalt and the tree, using a laser distance gauge. The distance was 17 feet. I also measured the distance from the tree to the edge of the rip-rap where Cathy Sawyer was found and determined it to be 19 feet. Sergeant Durand s use of a measure meter, which is a wheel that is attached to a stick like a unicycle, and pulled from one point to another, is fine for use on a flat surface, but notoriously imprecise when used on a craggy surface like the area between the road and the tree in question. The black box of the vehicle indicates that the Buick Regal was traveling at 40 mph prior to impacting the tree. I cannot say for certain that the device was correctly calibrated when installed (as this was not a factory installation). My estimation of the speed of the vehicle, based upon the distance the bodies were thrown upon impact, is consistent with that speed. The entire field, up to the tree line Sergeant Durand refers to in his/her report, is wetlands, as referenced on maps produced by the U.S. Army Corps of Engineers. It is a low-lying area, with sparse, very short, soft (not woody) stemmed 62

65 vegetation that thrives in those conditions. When it rains, the nearly bare soil turns muddy quickly, and any trail from footsteps of a human being would be evident. In this case, I saw no reference from Sergeant Durand as to whether (s)he examined the ground for fresh footstep impressions, either that night or the next day. Had Sid Sawyer walked out of the driver s side door of the Regal, there would have been footprints, even the next day. Photos of the scene do indeed show a pile of hay, consistent with what Sergeant Durand says in his/her statement. When I examined the scene, I saw a horse enclosure, from Von Sander Estates, approximately 75 feet from the tree, so I presume this was horse fodder hay. The size of the pile was not measured by Sergeant Durand, but comparing it to other objects in the picture, which I measured in situ, I would say the hay pile was three feet tall and 15 feet in front of the tree that the car impacted. The position of the hay is such that if Sid Sawyer was ejected through the windshield, he/she could have landed on the pile. But it is beyond my ken to say whether it would be large enough to cushion the blow to keep someone from death or particular injuries. I have reviewed the photographs of the roadway. It is impossible to be certain which marks on the roadway resulted from this accident, as the photos were not of high quality. I find it hard to believe, however, that a properly trained accident reconstruction expert at the scene could not have distinguished which skid marks were fresh and pertained to this accident. The opportunity to do this would have been at the site right after the accident. I also would have checked for and examined the soil along the path of the vehicle for tire ruts leading up to the tree. Neither the photographs nor the officer s report provided documentation of this. Given what little was preserved for my examination, and what little was memorialized by Sergeant Durand, I am still able to make the determination, within a reasonable degree of scientific certainty, that it is impossible to tell whether Cathy Sawyer or Sid Sawyer was the driver of the automobile. I am able to so conclude that Sid Sawyer was ejected from the vehicle upon impact, much as Cathy Sawyer tragically was. With head-on collisions, the movement of the occupant s body most commonly involves the up and over or down and under pathways, unless restrained. In this case both seatbelts failed, however, in that they broke and failed to restrain the occupants. The unrestrained occupant has a greater chance of ejection from the seat through the up and over mechanism or entrapment under the dashboard via the down and under path. Whether these occupants would have moved up and over or down and under depends on the circumstances of the crash, which Sergeant Durand notes but does not account for in his/her reconstruction analysis of the accident. While Dr. Lang s figures are correct regarding how rare windshield ejections occur in MVC fatalities, Dr. Lang neglects to consider the fact that the vehicle in this case impacted with the tree at a downward angle. The slope, noted by Sergeant Durand in his/her narrative report, was considerable. Based on the length of the car and where the wheels would have been touching the ground at impact, I determined that the downward angle of the car vis-à-vis the tree trunk was just over 20 degrees. This is quite unlike a normal head-on collision, the type most often seen, where the ground is normally nearly level. This downward slope pitched the rear of the car upward as the vehicle struck the tree trunk. We know this because the roof of the car, just above the windshield, is indented in a manner consistent with the indentation of the car hood, nearly in the center. That means that the rear of the car actually lifted up off the ground, and only the roof s impact with the tree trunk stopped the car from flipping completely over. I do not mean to sound crude, but the physics involved was much like a dump truck tipping back its load, releasing it by gravity. Here, however, the force of the impact of the rapidly accelerating vehicle with the immobile tree meant that both bodies were literally thrown from the vehicle. Sergeant Durand shows a profound lack of understanding of the physics of MVC impacts. One of the major risk factors for experiencing a fatal injury in motor vehicle crashes is ejection. The main deterrent to ejection is the proper use of seatbelts, and, 41 percent of the time, the lap-shoulder belt keeps the vehicle occupant from being ejected. This was not one of those times, for either occupant. Occupant ejections were about 1.5% of all crash-involved occupant events in the 1980s, when lap-shoulder belts were widely in use, but airbags were not. Of these, 0.5% were partial ejections, and 1.0% were complete ejections. They are relatively infrequent but very harmful events in highway crashes, as they cause additional injuries from a second impact (the first impact being with the inside of the vehicle itself). Back in the 1980s, there were over 9,000 fatalities attributable to MVCs with ejections. In spite of the better protection of airbags and other advances in safety technology, about 8,500 people are killed in MVCs involving ejection, perhaps because ejection is more likely in now-popular SUVs. Over many 63

66 years, in MVC fatalities, it has remained that nearly half of unrestrained passenger vehicle occupants are ejected, partially or totally, from the vehicle as compared with five or six percent of restrained occupants. As Sergeant Durand notes, the distance between the victim and the vehicle may indicate how fast the car was traveling and, therefore, how much energy was absorbed by the vehicle occupants. In this case, the car was said to be traveling 85 mph (as per the black box, and my calculations), and the distance Cathy Sawyer s body was thrown is consistent with this. It would be expected that Sid Sawyer would have been thrown the same distance, barring any primary impacts in the vehicle. The distance of the hay bale, I have determined, is roughly the same distance as where Cathy Sawyer s body was discovered. While I was not able to examine the hay bale, hay bales are filled with empty spaces, and the individual stalks of hay would compress upon impact, cushioning that impact. While I am not a medical specialist, I know that injury from blunt force trauma is related to the amount of impact. I submit that the secondary injuries to Sid Sawyer (i.e. from the impact after being ejected from the vehicle) were far less than Cathy Sawyer s because Cathy Sawyer hit a much harder surface. If the landing surface is more resilient, thereby increasing the stopping distance, the kinetic energy will be absorbed by the surface instead of the victim s body. Trauma starts with the transfer of energy to the body from an outside force. The transfer of kinetic energy may be blunt or sharp in nature. Here, it was blunted for Sid Sawyer, but not for Cathy Sawyer. Steering wheel injuries may include: soft tissue neck injuries larynx and tracheal injuries fractured sternum myocardial contusion pericardial tamponade pneumothorax hemothorax flail chest and intra-abdominal injuries (ruptured spleen, liver or bowel) While Sergeant Durand and Dr. Lang both opine that Sid Sawyer was the driver, we see no injuries to Sid Sawyer that are consistent with common steering wheel injuries. The injury to his/her hand is difficult to access, given that it was seemingly not consequential enough for emergency room personnel to describe and treat. As for his/her fractured ulna, there is nothing to prove that it resulted from an impact inside the vehicle, as opposed to when (s)he was thrown from the vehicle. Injuries Occasioned by Striking Dashboard upon Impact: knee injuries femur, hip, or pelvis injuries (if energy is transferred proximally from the knee) head, face, and cerebral (neck) spine injuries Likewise, while the knee injury Sid Sawyer sustained might have been caused by the dashboard, it might also have been caused by the secondary impact after the ejection. The downward angle of the vehicle as it hit the tree, and as it then almost immediately flipped up the back end, resulted in both occupants being thrown clear of the vehicle. The driver was also thrown clear of the steering wheel, as the car was pitched up very high as they both ejected. Harley Vang, Ph.D. Harley Vang, Ph.D. Dated: December 17,

67 LOGAN SAWYER Sworn Audiotaped Statement of Witness, Being Questioned by Sergeant Jean Durand April 12, 2012, from 12:32 p.m. 12:48 p.m.: Q: First, we d like to offer condolences for your loss. And we re sorry to be questioning you only a couple of days after this happened. But we just have to be thorough. When a death is involved, we have to do this type of questioning. So you know why we re here. A: Oh, I know why you have me here. You are questioning me because you want to charge Sid with a crime. You want to say that (s)he murdered his/her own sister, like (s)he could ever do that. That is the charge, isn t it? Q: I m sorry, but we re not able to get into that. We just have a few questions. A: Aren t you supposed to read me my rights first? Q: No, you are not suspected of committing any crime. I am just looking to ask you a few questions. A: OK, OK. I m sorry. This is hard for me. Sid is my family, you know. Not flesh and blood, since I was adopted. I was adopted at a few years old, so I hardly remember any other life before adoption. So Sid is like a sibling to me, but (s)he and Cathy are my cousins. Sid and Cathy and I are about the same age. Q: So, of course, you would want to help your family, flesh and blood or not. We want to help, too. But we need cooperation for that. A: All right. So, actually, I m about a year younger than them. Both of them accepted me as family. Not right away, in Sid s case, but almost. But me, me, me became us, us, us, and we got really close. Q: I understand that you were close with Cathy as well. A: Yeah, and, in a way, though, Cathy was almost more of a help to me than Sid, adjusting, I mean, becoming a Sawyer. Cathy was more outgoing. Cathy is the one who taught me to drive. She had the patience of Job, I tell you. I nearly broke the transmission, never remembering to hit the clutch and move the gears at the same time. Cathy would come out of the car after one of our practice sessions, and she would hold her neck and joke that she had whiplash from my sudden stops. I joked back that she gave me whiplash when she would drive like a speed demon. We could kid each other that way. Once, Cathy really gave me whiplash, though. She was showing off, this is how you do it, and it was bad karma that she hit a speed bump really hard. Not an epic fail, but a fail. She cracked the sump pump, and the oil leaked like a sieve. We had to replace it every hour or so until we got it to a shop! Cathy was always a fast driver. I mean always. She always said you only live once. Q: I see that you re eager to tell us about Cathy s driving skills. I appreciate that you are cooperating with our investigation, but please, let me ask the questions. Let s go back to Sid. A: Well, Fiver was different, quieter. Q: Flavor? A: Fiver. Oh, sorry, Fiver is Sid s nickname. It s a long story. We were reading Watership Down as part of a summer reading list, and, well, the story is about talking rabbits. The one rabbit, named Fiver, was quiet, but he had this sixth sense, not the I see dead people stuff, but he would say that he had a bad feeling about something, that something wasn t right. And usually, right after he said that, wouldn t you know it, but something bad would happen! So I started calling Sid Fiver, and it stuck. We would call Cathy Praha to tease her. It wasn t a nickname, really. It was her middle name. Some old 65

68 ancestor s name. How Cathy d get mad especially if we did it in front of some guy she wanted to impress. Poor Cathy! Q: Understood. I know that Sid and you are close. A: Yeah, Sid is a sensitive soul. When (s)he is n a bad situation, (s)he kinda shuts down. Just like a flick of the switch. Nobody home, you know? It s hard to explain. Sid is definitely a follower, not a leader. Like I told you, I m a little younger than Fiver, but when we re together, I notice that I m always walking ahead of him/her. Usually I m the one who is like, Hey, let s go to the mall, or let s do this, and Fiver s response is usually like, I m in, or Show me the way. Fiver likes to be accepted, especially by someone (s)he respects, like Cathy. Q: Sure. Now, I understand that that night, you were at a wedding rehearsal, with Sid and Cathy. A: That night? Yeah, we were all together because a cousin, Kate, was getting married here in Metropolitan. Q: So Cathy was in town for the wedding? A: Yeah, like you know, Fiver and I live right here in town. Fiver with Aunt Betty and Uncle Mike, his/her folks. Me with some college friends, we call ourselves Alpha, Alpha, Alpha, like we re a fraternity/sorority kind of thing, and we re all alpha dogs, in our own minds. But Cathy, she lives in Florida, and was just up for the wedding, staying with Sid and her folks, Aunt Betty and Uncle Mike, in Metropolitan. Q: When did you first see Sid that night? A: At the rehearsal. Sid was busy with schoolwork up til then. (S)he was doing this paper on The Great Gatsby. I proofread it for him/her. Sid s terrible with grammar. Q: So, there s a wedding toast, so I guess with the rehearsal, there d be some practice drinking, and celebrating? A: Oh, drinking was involved, yeah. It was a Sawyer get-together. Well, the wedding rehearsal ended early, early for me at least, and I was like, let s go to my place, Alpha, Alpha, Alpha. Everybody s got an informal party thing going on there. We always keep a beer keg bucket in the living room, at the ready. So anyway, it was my idea, and, like always, Sid was game. Cathy wanted to come. Q: So you guys drove from the rehearsal hall directly to your apartment? Who was driving? A: I drove them there, in my pride and joy, my 1987 Buick Regal Grand National. Last of the dinosaurs, I called it. The Grand National was a muscle car, less than 1500 made. But the engine had been replaced, one monster engine for another. When that car was coming, you knew it. Not the sportiest looking car, but it attracts attention that way. When it s parked, nobody suspects what you ve got there. Q: Is this a photo of your car? I found this in the trunk after the crash (showing witness what is now marked as J1). A: Yeah, that s my car, just the way it looked before the accident. I took the photo and I was going to put it on FlipBook. Q: How long were you all at your apartment? A: We were at the party for a couple hours, I d say. Nothing crazy going on, pretty chill. Once we all got a buzz on, Sid said we should call it a night. After all, Kate had this crazy idea to take wedding pictures before the ceremony she said the morning light was better, as it would reflect off this lake where we were getting the pictures taken. It s not like we could say no. So Fiver, the responsible one, as always, is saying, let s go home. Q: So Sid was tired and wanted to go home? A: Yeah. Sid hadn t slept for like forever. Sid is a procrastinator, and had been between doing college papers the last 66

69 minute and spending time with family. And so I m about to take Sid and Cathy home to Aunt Betty and Uncle Mike, but Cathy knew that for me the party was only starting, so she asked if they could borrow my car, and come back for me in the morning. As I was planning on having a headache the next morning, and would doubtless be in no mood to drive them, I was like OK. So I gave her the keys. Q: And why would you have to drive to your aunt s and uncle s house the next day anyway? A: Well, their house is further from the lake than where I lived, at Alpha HQ, and Alpha is on the way to the lake, so I would have had to pick them up. Q: Couldn t your aunt and uncle take them to the lake? A: No, because they didn t have enough cars for everybody staying over the house for this wedding. Q: What time did Sid and Cathy leave the party? A: (After a long pause) About 10:30 p.m. I remember our last moment together. I kidded her about that ugly chartreuse green bridesmaid outfit she had to wear, and how she must like it a lot to wear it to the rehearsal dinner. Tomboy that she was, she said she was going to burn that dress right after the wedding. As it turns out, she died in that dress. Q: Again, Logan, I know this is difficult. So you gave Cathy the keys, but you didn t see her or Sid get in the car, did you? A: Actually, I did see them get in, from the window. And Cathy was definitely in the driver s seat. Q: Look, Logan, you know we ve been to your apartment; we picked you up there. And your unit doesn t face the parking lot. A: No, but if you look out the bathroom window from an angle, you can see the one end of the parking lot. Q: True, but you really would have to strain your neck. And that s where your car just happened to be? In the one spot where you could barely see it from looking out the bathroom window, from an angle? A: Right. Exactly. Q: But your assigned spot is on the other side of the lot. A: I didn t park in my assigned spot. Somebody took it, so I had to take someone else s spot. Q: Look, all we re doing is asking you to be honest with us. If you re not, we re going to know. We ve talked to other people, too, right? A: I am being honest with you. I can honestly tell you that Sid wasn t driving. Sid doesn t drive a stick, OK? Sid s not into fast cars. That was Cathy s thing, all right? Q: Do you recognize this key ring, with the S monogram that snaps open and closed, like a carbiner clip, and a key on it? A: Yeah, that s Sid s key ring, so what. Q: Could you tell me how that key ring got clipped onto your car key, which I found in the ignition of your car? A: (Pausing, then) I put that on there. Sid s key ring has Aunt Betty s and Uncle Mike s house key on it. I had borrowed it when I had planned to go to their house at some point, and when I changed my mind, I put the two key rings together, and handed the combined set of keys to Cathy. 67

70 Q: If you were with both Sid and Cathy, why would you give Sid s keys to Cathy? A: That would mean I d have to hand two sets of keys to two different people. Cathy was going with Sid to the house. I just handed her everything. Q: Is that your final answer? A: Yeah. Q: (Durand audibly sighs) So how much did Sid drink at the wedding rehearsal? A: About as much as Cathy and I did. Q: I am not asking how much anyone else drank. How much did Sid drink there? A: A glass of champagne. The glass was that lead crystal thick, looks bigger than it is, on the inside. Maybe a few ounces. Q: Then you went to Number 17, Cozy Woods Apartments, this Alpha apartment you have, right? And how much did Sid drink there? A: I don t think Sid was really feeling it that night. Maybe one beer, one Solo cup, the red cup, you know? Milwaukee s Finest, real cheap, what we call Milwaukee s sewer water. Sid didn t go for cheap beer. Q: Just one? So Sid does go for beer, just not Milwaukee s...? A: Finest. Well, Sid s no alchy. Don t put words in my mouth. Just one beer. Q: What about Cathy? You say she was more outgoing, more of a party person? A: I didn t say a party person, but yeah, maybe two Solo cups. Yeah, two. Q: And how much whisky did you have to go with the beer? A: What whisky? Q: The whisky Sid had given you. A: Oh, Sid told you about that? Yeah, well I guess (s)he really appreciated my help on his/her term paper, and all the other times I saved his/her behind, so (s)he got me my favorite, Crown Loyal. I didn t have time to crack it open yet, though. So no whisky with the beer, Sergeant. Q: So you said earlier that they left around 10:30 p.m.? A: Yeah, about an hour and a half had passed, right. Cathy wasn t tipsy or anything at that point. Q: I wasn t saying that. So did they leave around 10:30 p.m.? A: Yes, around 10:30 or 10:45 p.m. I gave Cathy the keys then, and I heard the car drive off after seeing Cathy get in the driver s side. You could hear that car over the loudest noise, even an Alpha party. Q: Did Cathy or Sid say where they were going to drive? A: Yeah, what goody two-shoes Sid said, home to mommy and daddy, because of Kate s sun over-the-lake, crack-of-dawn wedding pictures. 68

71 Q: I ask because the fastest way from Cozy Woods Apartments to your Aunt s and Uncle s house would be by Route 67. And Devon Road is a roundabout way to get there. A: It takes twice as long, but wasn t there a detour from Route 67 because of the flooding? Or some accident? Q: No detour, and the accident took place at almost the same time as your car s accident. (Witness is silent.) Look, Logan, I know this is difficult, but just hang in there with me for a few more questions. Did anybody call you from the car on their cell phone? A: No, I got a text, though. Q: From who? A: From Cathy. Q: What was the message? A: It was short YOLO. Q: Yolo? A: Yeah, what I said before, You only live once. That was Cathy s motto. That was the entire message. You see, there, where it says the time of the message is sent at 10:53 p.m. I didn t hear the phone because of the party music, so I didn t respond. Before I forget, I am sorry now that I didn t fix the windshield wipers on my car. I found an old recall notice in the glove compartment, and the old owner told me to get it fixed, but I never did anything about it. I hope the wipers were working on that rainy night. Q: Thanks for your cooperation. And again, my condolences for your loss. (Transcript prepared by an official court reporter.) 69

72 EXHIBIT P1 Letter, Postmarked September 22, 2012, to Metropolitan Police Department, Attn: Sergeant Durand: September 20, 2012 Sam Axelrod, Inmate # Metropolitan County Jail Dear Sergeant Durand, I m writing to you because you know me, and because you know that I have always been straight with you. You know that when you caught me in that break-in case in 2008, I not only said who did it with me, but I also led you to the guy s shed where the loot was stashed. I gave it up right away. No beating around the bush and you spoke to the prosecutor and got me 180 days county jail and probation. So, I am looking to help you out again, not on anything small like that theft, but a homicide the Sid Sawyer case. You know that Sid and I are close. I took Sid under my wing when (s)he was young, even though his/her old man wasn t happy about it. You would harass us whenever you saw us together. You two are up to no good, you used to say. And you were always right. I am back in jail again but this time for theft by deception, check fraud and uttering a forged instrument. I really am innocent, but my public pretender, otherwise known as public defender, told me to take the deal because nobody would believe someone with my record, so I did. So I am looking at up to five years state time. You know I ve never done STATE time, prison time, so I am freaking out. If you help me, I ll help you. I was cashing checks drawn from the account of some local corporations. The truth is that this guy from Oslo (that s in Norway, in Europe) I met on the internet told me that he had business in the US of A, but no stateside office. He said that he needed to cash checks here and hired me to do it as his representative. For my trouble, I got ten percent of the proceeds. Yeah, I know, it sounded too good to be true, and it was. A couple hundred thou in check cashing later, I was arrested, and the police retraced my paper trail. I offered to do a sting against my Oslo connection, because, after all, I m just the bottom of the food chain. They should use me as bait to get the big fish. But the State Police said they weren t interested. You know how those State Police are. Anyway, I was out on bail and fighting my case from the street. I thought that if I was on the street I could delay things until something broke my way. But I forgot a court date and next thing you know the warrant squad picks me up and the judge remanded me. Sitting here in a cell, I realize something did break my way. Before I went in I met Sid in court. Sid was clueless. (S)he thought that first court date, the arraignment, was the trial date! (S)he was all dressed up like for a trial, too! (S)he was as unhappy with his/her attorney as I was with mine. I told Sid how I was a paralegal, which is true, by the way. Getting my associate s degree in paralegal studies was easy, after I d spent so much time in jail law libraries. So I tell Sid I ll help him/her out. After all, why shouldn t I help someone out who is innocent like me, right? So Sid gives me a copy of the police reports and other discovery. Only, a week later, after we met at our old hangout for a few beers and went over the papers and his/her defenses and all, Sid tells me that the police have it right. (S)he was driving that night. Sid gave me all kinds of details, but I don t want to waste a lot of ink writing you the details. Besides, if I give up what I know now, you won t have to help me. I can give you all info about that when you come to see me. Your Old Friend, Sam Ax 70

73 EXHIBIT P2 Drawing of Accident Scene Prepared by Sergeant Durand 71

74 EXHIBIT D1 PATERSON BUICK 222 Henry Street Westwood, NJ July 14, 1992 Christopher Mills 27 Rolling Hill Drive Long Branch, NJ Re: Your 1987 Buick Regal Grand National Dear Mr. Mills: Please see the important notice below regarding a recall issued by General Motors pertaining to your 1987 Buick Regal Grand National. You are instructed to make an appointment as soon as possible with our service department to determine if your vehicle is subject to the recent recall. If so, please be assured there will be no cost to you for parts and/or labor should your vehicle be subject to the recall. If you no longer are in possession of this vehicle, please notify us so we may remove you from future mailings. Sincerely, Daniel Paterson Daniel Paterson, President, Paterson Motors Recall Notice For Immediate Release To: National Buick Dealers From: Consumer Relations, General Motors Date: July 1, 1992 Re: Buick Regal Grand National recalled due to potentially defective windshield wiper motor wiring General Motors is recalling its Buick Regal Grand National sedans due to a fault in the car s windshield wiper system, according to the National Highway Traffic Safety Administration (NHTSA). More than 1000 Regal Grand National sedans are missing seals in the windshield washer motor wirings, which may result in driver and passenger side wiper motor failures. The reduced visibility can increase the risk of a collision, said NHTSA. 72

75 The recalled Buick Regal Grand National vehicles were manufactured from January 1985 through December Buick is expected to notify customers affected by this Buick Regal Grand National sedans recall starting next month. The Buick Grand National is one of General Motor s best-selling muscle cars. General Motors will instruct owners to bring in their Buick Regal Grand National cars to local dealerships. Mechanics will inspect, clean and properly seal the driver and passenger side windshield wiper motor connection for free. They will also replace any inoperative passenger side motors, as necessary. 73

76 EXHIBIT D2 Newspaper Article The Metropolitan Advance April 11, 2012 DEAD MAN S CURVE CLAIMS ANOTHER VICTIM DRAG RACING & DRUNK DRIVING KILLS WOMAN Instead of celebrating her cousin s wedding this Saturday, a local young woman will be buried this week. Cathy Sawyer was killed last night in a car crash on Devon Road s infamous dead man s curve. According to police, the deceased s sibling, Sid Sawyer, was intoxicated and driving at a high rate of speed when (s)he came upon the curve and lost control of his/her car and slammed head on into a tree. Cathy Sawyer was thrown through the windshield, sustaining multiple injuries while Sid Sawyer walked away from the accident. The siblings were heading to their parents home after attending their cousin Kate Sawyer s wedding rehearsal dinner. The desolate Devon Road is a well-known strip for drag racing by local youths that ends at a sharp curve. There have been a number of accidents at the curve over the years because of drag racing. 74

77 JOINT EXHIBIT 1 Photo of Logan Sawyer s 1987 Buick Regal Grand National before the accident. 75