Mock Trial Procedures You and the Law

There are 2 sides: Prosecution Prosecution Responsible for proving beyond a reasonable doubt that the accused committed the crime. Responsible for proving beyond a reasonable doubt that the accused committed the crime. Defense Defense Responsible for finding their client not guilty for the crime they are being charged with. Responsible for finding their client not guilty for the crime they are being charged with.

Burden of proof! Reasonable Doubt Reasonable Doubt The prosecution has a burden. The prosecution has a burden. Their job is harder than the defense. Their job is harder than the defense. The burden is called, “Beyond a reasonable doubt.” The burden is called, “Beyond a reasonable doubt.” Therefore, the defense just has to create doubt! Therefore, the defense just has to create doubt!

So how do they do it? The trial: The trial: Opening Statements Opening Statements Prosecution goes first. Prosecution goes first. Defense goes second. Defense goes second. Why do you think the Prosecution gets/has to go first? Why do you think the Prosecution gets/has to go first? The trial The trial Direct examinations Direct examinations Cross examinations Cross examinations Closing Statements Closing Statements Prosecution, then defense Prosecution, then defense Rebuttal by Prosecution. (offering a contrary argument) Rebuttal by Prosecution. (offering a contrary argument) Why do they get a rebuttal? Why do they get a rebuttal?

Opening Statements Imagine a movie preview. Imagine a movie preview. Always phrased, “We are going to show you that…” or “We will prove that” or “You are going to see…” Always phrased, “We are going to show you that…” or “We will prove that” or “You are going to see…” Give the jury an idea of what is coming. Give the jury an idea of what is coming. Never phrase it, “We already showed you”, or “This person did this…” Never phrase it, “We already showed you”, or “This person did this…” Why? They haven’t seen the movie yet! Why? They haven’t seen the movie yet! 3 minutes long 3 minutes long

Examinations Prosecution gets to direct examine their witnesses first. Prosecution gets to direct examine their witnesses first. Direct Examination: Direct Examination: Example of what’s right: Example of what’s right: Tell us where you were on the night of… or What happened after you went to your locker? Then what did you do? Tell us where you were on the night of… or What happened after you went to your locker? Then what did you do? Example of what’s wrong: Example of what’s wrong: Isn’t it true that you loaded the gun the night before you killed your husband? Isn’t it true that you loaded the gun the night before you killed your husband? The witness has to tell the entire story. The witness has to tell the entire story. The attorney may not “Lead” the witness in any way/shape/form to the answer. The attorney may not “Lead” the witness in any way/shape/form to the answer. Rule of thumb: If the answer is yes/no, then you cannot ask the question in Direct Examination Rule of thumb: If the answer is yes/no, then you cannot ask the question in Direct Examination

Examinations Cross Examination: Cross Examination: This is a hostile examination. One side’s attorney against the other side’s witness. This is a hostile examination. One side’s attorney against the other side’s witness. They are from opposite teams. They are from opposite teams. After the direct examination, the witness stays on the stand, and the cross-examiner approaches. After the direct examination, the witness stays on the stand, and the cross-examiner approaches. Control the witness!!! Always ask them to answer all questions with a yes/no unless asked otherwise. Control the witness!!! Always ask them to answer all questions with a yes/no unless asked otherwise. Examples of what is okay: almost anything! Examples of what is okay: almost anything! As long as you are controlling the witness, leading and non- leading questions are OK.

Examinations Re-Direct – If you still have time, then the direct examiner may re-approach and clarify anything brought up in the cross- exam. Nothing new. Re-Direct – If you still have time, then the direct examiner may re-approach and clarify anything brought up in the cross- exam. Nothing new. Re-Cross – same as Re-direct…must have time remaining. Re-Cross – same as Re-direct…must have time remaining.

Objections: Sometimes an attorney is breaking the rules: Sometimes an attorney is breaking the rules: You need to protect your witness and your case. You need to protect your witness and your case. Only the attorney responsible for the witness on the stand may object…nobody else on the attorney teams!!! Only the attorney responsible for the witness on the stand may object…nobody else on the attorney teams!!! Judge can either Judge can either Sustain (says it’s a good objection and doesn’t allow the question to be answered) or Sustain (says it’s a good objection and doesn’t allow the question to be answered) or Overrule (says it’s a bad objection, that question should be answered.) Overrule (says it’s a bad objection, that question should be answered.)

Objections Leading Leading Argumentative Argumentative Badgering Badgering Speculation Speculation Foundation Foundation Hearsay Hearsay First-hand knowledge First-hand knowledge Ultimate Issue Ultimate Issue Asked and answered Asked and answered Outside the Scope Outside the Scope

Leading Can only be used when a direct examination is happening. Can only be used when a direct examination is happening. Asking yes/no questions Asking yes/no questions Stating a question that has the answer built in to it so the witness just has to confirm the attorney is correct or incorrect. Stating a question that has the answer built in to it so the witness just has to confirm the attorney is correct or incorrect.

Examples n What did you have for lunch? n Not leading n You had a chicken ceasar salad for lunch, didn’t you? n Leading

Examples n Isn’t it true, you have no siblings? n OK in a cross examination n How many siblings do you have? n This is what you would ask in a direct examination

Argumentative/Badgering Arguing with the witness. Arguing with the witness. Did you do this? “No.” Are you sure you didn’t do this? “Yes.” Positive you didn’t do this? “Yes.” You did this, why aren’t you admitting to it?!? Did you do this? “No.” Are you sure you didn’t do this? “Yes.” Positive you didn’t do this? “Yes.” You did this, why aren’t you admitting to it?!? Badgering Badgering Arguing with attitude. Arguing with attitude.

Speculation & Foundation Speculation – Asking the witness to try and guess at what might have happened if circumstances were different. Speculation – Asking the witness to try and guess at what might have happened if circumstances were different. “Let’s say you went home instead…do you think…” or “What do you think might have happened if…” “Let’s say you went home instead…do you think…” or “What do you think might have happened if…” Foundation – Only happens on Direct examinations. This is a big one Foundation – Only happens on Direct examinations. This is a big one If the attorney has not established foundation for a question, they cannot ask it. If the attorney has not established foundation for a question, they cannot ask it. Example: First question of the direct exam, “So when you were at the party…who did you see drinking alcohol? Example: First question of the direct exam, “So when you were at the party…who did you see drinking alcohol? It hasn’t been established that there was a party, with drinking at it, and the witness was actually at that party and saw people drinking. All of that must be established first. It hasn’t been established that there was a party, with drinking at it, and the witness was actually at that party and saw people drinking. All of that must be established first.

Hearsay/First-hand knowledge Asking questions that the witness doesn’t know from first-hand experience is not allowed. Asking questions that the witness doesn’t know from first-hand experience is not allowed. Was Jeshuan drinking that night? Was Jeshuan drinking that night? “Well, I heard (“Objection! Hearsay.”) that he was drinking.” “Well, I heard (“Objection! Hearsay.”) that he was drinking.” So was he? So was he? “Yes.” “Yes.” How do you know? How do you know? “I heard from Susie” “I heard from Susie”

Ultimate Issue Cannot ask, straight up, with no foundation, “Did you commit this crime?” to the defendant. Cannot ask, straight up, with no foundation, “Did you commit this crime?” to the defendant. That’s the ultimate issue everyone is here trying to solve. That’s the ultimate issue everyone is here trying to solve. EX: the defendant’s mental state EX: the defendant’s mental state

Asked and answered Sometimes an attorney will ask the same question over and over again. Sometimes an attorney will ask the same question over and over again. You killed him? Yes You killed him? Yes So you really killed him? Yes So you really killed him? Yes Like shot him in the face and he died? Yes Like shot him in the face and he died? Yes

Outside the Scope Questions asked that do not pertain to the packet/trial. Questions asked that do not pertain to the packet/trial. Can also be called an “Irrelevant Question” Can also be called an “Irrelevant Question”

Establishing a witness as an expert Only one type of witness may actually speculate and that is an “expert” witness. Only one type of witness may actually speculate and that is an “expert” witness. But they must be established as an expert during the direct examination. But they must be established as an expert during the direct examination. What are your credentials? Witness lists his/her background/academic credentials. What are your credentials? Witness lists his/her background/academic credentials. Your honor, I’d like to establish this witness as an expert in his/her field. Your honor, I’d like to establish this witness as an expert in his/her field. Judge: “Are there any objections from the prosecution/defense”? Judge: “Are there any objections from the prosecution/defense”? If none – the witness is declared an expert by the judge and they may now speculate on certain things. If none – the witness is declared an expert by the judge and they may now speculate on certain things.

The rule of 3 You want the jury to hear important things 3 times! You want the jury to hear important things 3 times! But what objection does this sound like? But what objection does this sound like?

Closing statements Typically written as the trial is progressing. Typically written as the trial is progressing. The attorney giving the closing will know what his/her side will be proving and attempting to prove so they can write some of it before the trial. The attorney giving the closing will know what his/her side will be proving and attempting to prove so they can write some of it before the trial.

The end After the closing, the jury is sent out to deliberate the verdict. After the closing, the jury is sent out to deliberate the verdict.