2015 MOCK TRIAL COMMITTEE Patrick J . Hannon, Esq., chair

Mary E . Bassett, Esq.

Denise Coffey

Richard Coffey

Stephen B. Deutsch, Esq.

Donald L . Gibson, Esq.

Elliott M. Loew, Esq.

Joshua A. McGuire, Esq.

Mark C . O'Connor, Esq.

John O. Postl, Esq.

Natalie Robinson

Adam Us, Esq.

Hale Yazicioglu, Esq.

The Massachusetts Bar Association expresses its sincere gratitude to this group of dedicated volun­teers who spent countless hours developing this year's case. I t is their commitment to this program and to law-related education in Massachusetts that gives thousands of students this unique educational experience.

In addition, the Trial Court of the Commonwealth is a true partner in this effort, providing both staff and space to make this program possible. Please help us in thanking the courts after your competitions.

Special thanks also go out to the Massachusetts Bar Foundation for their continued support and financial generosity.

I f you have general questions about the Mock Trial Program, please contact the M B A Public and Community Service department at (617) 338-0570 or email MockTrial@MassBar.org.

©2014, Massachusetts Bar Association. Any reproduction of this case packet or any portion is strictly prohibited without the written consent of the Massachusetts Bar Association.

H T T P : / / M O C K T R I A L . M A S S B A R . O R G

MASS A S S O C I A T I O N

November, 2014

Dear Mock Trial Participant:

Thank you for participating in the Massachusetts Bar Association's 2015 High School Mock Trial Program. Now

in its 30 t h year, the competition not only introduces students to our legal system, but also teaches them the im­

portant role that advocacy plays in achieving justice. And, while participants develop critical thinking and public

speaking skills that wi l l benefit them throughout their lives, regardless of whether they pursue careers in the law,

the competition also happens to be an awful lot of fun.

This year's case concerns Harry Kumar, a man (fictional, of course) whose life was cut short on the evening of Aug. 2, 2014. There is no dispute as to what killed Harry (he was shot) or even who did it (it was the defendant).

But was killing Harry a criminal act, or was the defendant legally justified in aiming his gun at Harrys heart and pulling the trigger? And, i f killing Harry was a criminal act, what crime did the defendant commit? Was i t a pre­meditated act of malice that constitutes murder in the first degree, or is the defendant's criminal responsibility

mitigated because he was provoked?

To answer these questions, the factfinder (judge) wi l l need to decide what really happened in the moments leading up to Harry's death. The eyewitnesses agree about much of what took place, but there are (of course) critical differ­ences. Who should the factfinder believe? And what significance, i f any, are the events that occurred in the weeks,

months and years preceding that night?

The defendant's fate wi l l be decided when our tournament begins in late January. Each team wi l l participate in three preliminary rounds, the results of which wil l determine the winners of our 16 regions. Regional winners

participate in a single elimination playoff that culminates in the State Finals at Faneuil Hall, scheduled for Friday, March 27, 2015. A l l participating teams are invited and strongly encouraged to attend the State Finals to observe the tournament's competition at its highest level. The state champion team wi l l compete for the national title in

Raleigh, North Carolina from May 14 through May 16, 2015.

The Mock Trial Program has been structured with the following goals in mind:

• To further students' understanding of the law, court procedures, civil liberties and our legal system;

• To increase students' proficiency in basic life skills, such as listening, speaking, reading and reasoning;

• To develop students' advocacy skills regardless of which side of the case is being represented and irrespective

of the party wi th which students most identify;

• To promote better communication and cooperation between teachers, students, the schools and the legal

profession; and

• To heighten students' consciousness of law-related professions and the academic studies which lead to those

professions.

O f course, this competition would not be possible without the support of the teachers, attorneys, judges and oth­

ers who volunteer countless hours to ensure that this program continues to thrive. Special thanks in particular go

to the M B A staff, who oversee every aspect of the competition and somehow make i t look easy (its not).

I hope you enjoy this year's case and look forward to seeing you all at the State Finals!

Sincerely,

^ ^ ^ ^ ^

Patrick J. Hannon, Esq.

Chair, Mock Trial Committee

I I M B A 2 0 1 5 H I G H S C H O O L M O C K T R I A L P R O G R A M

2015 HIGH SCHOOL MOCK TRIAL PROGRAM Table of Contents

PART I: Mock Trial Statement of Philosophy, Code of Conduct and Highlighted Rules 1

PART I I : Tournament Rules 2

1. General Contest Format 2

2. Team Composition 2

3. Structure and Subsequent Scoring Issues 2

Assigning/Scoring Byes 2

Rescheduling Trials Resulting from Withdrawals 3

4. Witness Performance 3

5. Attorney Performance 4

6. Trial Enactments 4

Court Decorum „ 4

Coin Toss 4

7. Scouting 5

8. Judging 5 Bonus/Penalty Points 5

Tiebreaker Points 6

9. Performance Rating Sheets and Grievance Procedure 6

Authority of Mock Trial Coordinator/Administration 6

10. Time Limits 6

Two-Hour Time Limit 6

Monitoring Time Limits 6

Judges Decision on Abuse of Time 7

11. Objections 7

12. The Schedule 7

Unexcused Absences 7

Late Drop-out Fee 7

Weather Emergencies 8

Confirming Trials 8

Calling in Scores 8

13. Mock Trial Date Book 8

Dropout Date to Avoid Penalty 8

Preliminary Rounds 8

Make-up Dates 8

Tie-breakers „ 8

Sweet Sixteen 8

Elite Eight 8

Final Four and State Championship 8

14. Mock Trial Website 9

H T T P : / / M O C K T R I A L . M A S S B A R . O R G I I I

PART I I I : Hints on Preparing for a Mock Trial 10

PART IV: Trial Procedures 1 2

1. Courtroom Layout 12

2. Steps in a Mock Trial 12

Opening of the court • 12

Opening statements • 12

Direct examination by plaintiff/prosecution 13

Cross-examination by defense ; 13

Redirect examination by plaintiff/prosecution.... 13

Re-cross-examination by defense 13

Direct and redirect by plaintiff/prosecution 13

Cross and re-cross by plaintiff/prosecution 13

Closing arguments (attorneys) 13

Burden of proof 13

Judge's role and decision 13

PART V: Simplified Rules of Evidence and Procedure 14

Article I . General Provisions 14

Rule 101—Scope 14

Rule 102—Objections Beyond the Scope of these Rules 14

Article I I . Mode and Order of Interrogation and Presentation 14

Rule 201—Form of Question During Direct Examination 14

Rule 202—Scope of Direct Examination 14

Rule 203—Narration 14

Rule 204—Form of Question During Cross-examination 15

Rule 205—Scope of Cross-examination 15

Rule 206—Redirect Examination • 15

Rule 207—Re-cross-examination 15

Rule 208—Recalling Witnesses Prohibited 15

Article I I I . Invention of Facts (Special Rules for Mock Trial Program) 15

Rule 301—"Invented Fact" Defined 15

Rule 302—Invention of Facts on Direct Examination 15

Rule 303—Methods of Redressing Invention of Facts on Direct Examination 15

Rule 304—Invention of Facts on Cross Examination 16

Article IV. Relevance • 16 Rule 401—Definition of "Relevant Evidence" 16

Rule 402—Irrelevant Evidence Inadmissible 16

Rule 403—Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion or Waste of Time.... 16

Rule 404—Character Evidence Not Admissible to Prove Conduct, Exceptions, Other Crimes 16

Rule 405—Methods of Proving Character 17

Rule 406—Subsequent Remedial Measures 17

Rule 407—Compromise and Offers to Compromise 17

I V M B A 2 0 1 5 H I G H S C H O O L M O C K T R I A L P R O G R A M

Article V Physical Evidence 17

Rule 501—Prerequisites for Admission of Physical Evidence 17

Rule 502—Procedure for Introducing Physical Evidence 17

Rule 503—Use of a Writing to Refresh Recollection 18

Rule 504—Publishing Documents to the Court 18

Rule 505—Use of a Witness' Affidavit to Impeach..... 18

Article V I . Witnesses 18

Rule 601—General Rule of Competency 18

Rule 602—Lack of Personal Knowledge 18

Rule 603—Who May Impeach 18

Rule 604—Evidence of Character and Conduct of a Witness 18

Rule 605—Impeachment by Evidence of Conviction of Crime 18

Rule 606—Religious Beliefs or Opinions 18

Article V I I . Opinions and Expert Testimony 18

Rule 701—Opinion Testimony by Lay Witnesses 18

Rule 702—Testimony by Experts 19

Rule 703—Bases of Opinion Testimony by Experts 19

Rule 704—Opinion on the Ultimate Issue 19

Article V I I I . Hearsay 19

Rule 801—Definitions 19

Rule 802—Hearsay Rule 20

Rule 803—Hearsay Exceptions, Availability of Declarant Immaterial 20

Rule 804—Hearsay Exceptions, Declarant Unavailable 20

Rule 805—Hearsay With in Hearsay 21

Article LX. Procedural Rules 21

Rule 901—Authority to Object 21

Rule 902—Procedure for Objections 21

Rule 903—Motion to Strike 21

Rule 904—Other Motions 21

Rule 905—Closing Arguments 21

Rule 906—Objections During Opening Statements and Closing Arguments 21

PART V I : Trial Script and Exhibits 22

1. Stipulations of the Parties 23

2. Affidavit of Sergeant Sam Bush 25

3. Exhibit A—Diagram of living room and adjacent area 28

4. Affidavit of Hanna/Hans Kumar 29

5. Affidavit of Dr. Sasha Betts 33

6. Curriculum Vitae of Dr. Sasha Betts 36

7. Affidavit of Stephanie/Steven Hardee 37

8. Probate Findings with CORI 41

9. Affidavit of Martha/Mark Hockbird 47

H T T P : / / M O C K T R I A L . M A S S B A R . O R G V

10. Affidavit of Morgan Dexter Kazarosian •••••• -49

11. Curriculum Vitae of Morgan Dexter Kazarosian 52

PART V I I : Pertinent Information, Statutory Case Law and Evidentiary Standards..... 53

A P P E N D I C E S

A. Guidelines for Attorneys • • ..........59

B. Guidelines for Tournament Judges 60

C . Matrix on Judging Criteria and Performance Rating Sheet 62

D . MBA Mock Trial Website Log-in Instructions •••• 65

E . Performance Rating Sheet 66

F. Student Rosters 67

V I M B A 2 0 1 5 H I G H S C H O O L M O C K T R I A L P R O G R A M

PART I: Mock Trial Statement of Philosophy,

Code of Conduct and Highlighted Rules

Hie Massachusetts Bar Association annual Mock Trial Program is governed by the rules set forth herein. Please pay particular attention to the following:

PURPOSE OF PROGRAM: The purpose of the tournament rules is to create a

level playing field so that all students can derive maxi­mum educational benefit. To that end, teacher and

attorney/coaches are encouraged to emphasize the educational rather than the competitive aspect of the tournament.

KNOWLEDGE OF THE RULES: Teams are responsible and accountable for knowing

and abiding by all the tournament rules. Rules may

not be waived even by mutual consent of the parties. Any violation of the rules could result in disciplinary action that may consist of forfeiture or disqualification for the offending team(s).

COURTROOM COURTESY/DECORUM: To allow students to experience first-hand how a real

courtroom operates, the M B A schedules all trial en­actments before sitting judges in district courthouses, whenever possible. While mock trials are taking place,

the court is conducting its regular business. According­ly, all students, teachers, and spectators are expected to conduct themselves with maturity and decorum, and

to treat host judges and all courthouse personnel with all due respect.

TRIAL SPACE COURTESY: Trial enactments are subject to the physical con­

straints of the individual courtrooms. Students and spectators may not rearrange courtroom furniture or

remove equipment from any other courthouse office unless they have received the permission of the court. Teams are responsible for restoring the courtroom to

its original condition at the conclusion of the trial, ready for the next day's business.

PLAGIARISM: Arguments presented in court are expected to be the

team's own effort. As with all academic work, plagia­

rism is prohibited. Wi th the ready availability of vid­

eotapes of the trials, a team might inadvertently appro­priate another team's strategy or arguments. Coaches should exercise supervision over the use of videotapes to ensure that they are used properly.

WITHDRAWAL/CANCELLATIONS: The decision to participate in the Mock Trial Pro­

gram is a serious commitment and should not be undertaken lightly. I t is inconsiderate when a school withdraws from a trial and/or the tournament at the

last minute, after the other side has prepared carefully for the trial, made plans to leave school early and ar­ranged for transportation.

Withdrawing on the day of the trial is also insensi­

tive to the courts, which have agreed to clear court­room space, and to the judges and attorneys who have volunteered to hear the cases. Please consider carefully your decision to participate in the tournament and then honor your commitment.

CODE OF CONDUCT FOR TEACHER AND ATTORNEY COACHES:

Mock Trial is a competition, and like all competi­

tions, the behavior of coaches should reflect the high­est standards of conduct. Just as in athletic competi­tions, the officials must be shown respect at all times.

As part of teaching students about our legal system, we must emphasize that respect must always be shown to the judges and their decisions. While a coach may

privately report perceived egregious misconduct of a judge to the Mock Trial Committee, the students

should be shown at all times by word and by example that the judge and judge's decision are to be respected.

Coaches should likewise show the same respect to each other. I n a difficult situation, coaches are expected to conduct themselves so as to move the competition and

the tournament schedule forward. I f a coach fails to observe this code of conduct, the

Mock Trial Committee may prohibit the coach from further participation in the tournament or impose such other appropriate sanctions. A l l decisions of the

committee are final. The goal of the Mock Trial Pro­gram is to provide a positive experience of the legal system for coaches, students and volunteers.

H T T P : / / M O C K T R I A L . M A S S B A R . O R G 1

PART II: Tournament Rules

New, modified or highlighted rules appear in bold.

1. GENERAL CONTEST FORMAT

The commonwealth will be divided into 16 geo­

graphical regions. Within each region, each team wil l

participate in three preliminary round trials, alternat­ing between plaintiff/prosecution and defense. The team with the greatest number of victories wi l l advance

to the quarterfinals. In the event of a tie, there wi l l be a single elimination tiebreaker to determine the regional

representative. (See Section 3, Structure and Subsequent

Scoring Issues, later in this section for more information

on how byes affect scoring.) Regional representatives then wi l l face off in the single elimination quarterfinals, with the winning teams advancing to the single elimination semifinals. The two remaining teams wil l face each oth­

er in the state finals.

2. TEAM COMPOSITION 2.1 Schools that wish to participate in the tourna­

ment may enter one team, which must be com­prised of students currently attending that school and a teacher-coach, administrator, or other re­

sponsible party who is also from that school. No team may be comprised of students representing more than one school. Only high school students,

grades 9-12 or its equivalent, are eligible to com­pete in trial enactments. Students who are not in

grades 9-12 or its equivalent may participate in the Mock Trial Program by attending the meet­

ings and trial enactments of a single high school team, but may not themselves compete or partici­

pate in trial enactments.

2.2 Each school's overall team may be comprised of any number of students, but no fewer than six

and no more than nine students (three to six at­torneys and three witnesses) may participate in

any one trial. Violation of this rule is considered gross misconduct and wil l result in a 10 point re­duction. All teams have the option of providing an official student timekeeper during the trial. The Defense's timekeeper will be referred to as the clerk, and the Prosecution/Plaintiff's time­keeper will be referred to as the bailiff.

2.3 A team may use its members in several differ­ent ways. I t may use the same roster of students

throughout all trial enactments or it may rotate students after the first trial to give others a chance to participate in the tournament. Students may

play different roles (attorney or witness) at dif­

ferent trial enactments, as long as no fewer than six and no more than nine students appear in any one trial. (See Part II, Sections 4 and 5, Witness

Performance and Attorney Performance and Part

III, Hints on Preparing for a Mock Trial.)

2.4 During the preliminary trials, at no time wil l any team play the same side three times. I f you notice that your team is playing one side three times on your schedule, please contact Mock Trial Central

immediately.

2.5 Use of a podium shall not be required of the par­ticipants at any level of competition unless other­

wise instructed by the judge.

2.6 Al l teams are to work wi th their assigned attorney-coaches in preparing their cases. I t is suggested

that they meet wi th their attorney-coach at least twice prior to the. first trial. For some suggestions regarding the attorney-coach's role in helping a

team prepare for the tournament, see Appendix A

Guidelines for Attorneys.

2.7 Prior to the first trial of the tournament, all teams are required to conduct one fu l l trial enactment

or dress rehearsal based on the case. (Several addi­tional sessions devoted to the attorneys' question­

ing of individual witnesses are suggested also.)

3. STRUCTURE AND SUBSEQUENT SCORING ISSUES

3.1 The total pool of registrants and where schools are geographically located determines into which

region schools wi l l be placed. We wi l l make every effort to ensure that each region has enough teams for three trials. Inevitably, some regions wil l have

an odd number of teams. Teams for whom there is no opponent within their region for a given t r i ­al wi l l receive a bye. Byes are randomly assigned.

2 M B A 2 0 1 5 H I G H S C H O O L M O C K T R I A L P R O G R A M

3.2 Any team having a bye will receive a "win" for purposes of determining advancement in the tournament.

3.3. Any team having a bye that does not win its region or compete in a tie-breaker will, if pos­sible, be given the opportunity to compete in a bye make-up trial. Bye make-up trials will take place after snow make-ups, and are intended to give schools having a bye the opportunity to take part in at least three trial enactments. Because participation in a bye make-up trial is optional, the MBA cannot guarantee that bye make-up trials will be scheduled for every eli­gible team; however, every effort will be made to do so. Bye make-up trial results will not be used for purposes of determining which teams advance in the competition.

3.4 I f multiple tie-breaker trials are required to de­termine a regional winner, any team having had a bye will automatically compete in the first tie­breaker trial.

For example:

After the preliminary rounds, Teams A, B, and C each have a record of 3-0. One of Team B's "wins," however, came as a result of a bye.

Because two tie-breaker trials are required to determine the regional winner, Team B will au­tomatically compete in the first tie-break trial. Teams A and C will be randomly assigned by the M B A to either the first or second tie-break­er trial.

The team losing the first tie-breaker trial is eliminated from the tournament. The winner advances to the second tie-breaker trial, which determines the regional winner.

4. WITNESS PERFORMANCE

4.1 A student shall not perform both as a witness and

as an attorney during the same trial enactment. Witnesses may take the stand in any order, but all

witnesses must take the stand. Violation of this rule is considered gross misconduct and wil l result

in a 10 point reduction.

4.2 Each witness is bound by his or her written af­fidavit. Witnesses are not to invent facts material

to the case (See Simplified Rules of Evidence, Rules

301 and302). Neither should cross-examining at­

torneys ask questions that require the witness to invent facts material to the case.

4.3 The witness affidavits are to be treated as sworn to under oath. I f a witness testifies in contradic­tion of a fact in the witness statement, the op­position may impeach the testimony of the wit­

ness, that is, point out the contradiction on cross-examination in accordance with Rules 303a and 601.

4.4 I f a witness invents an answer which is likely to materially affect the outcome of the trial, the op­position may object and ask for a bench confer­

ence; the judge wi l l decide whether to allow the testimony.

4.5 The case materials provide sufficient legal points on which to question each witness without the

witness inventing, or the cross-examining attorney requiring the witness to invent, facts. Judges wil l be instructed to deduct penalty points f rom wit­

nesses for serious or repeated invention of facts, especially i f the behavior appears to be intended to disrupt the presentation of the opponent's case or to eat into their time allotment. Judges also wil l

be instructed to deduct penalty points from cross-examining attorneys who repeatedly ask questions which require the witness to invent facts. (See

Simplified Rules of Evidence, Rules 301 and 302.)

Teachers should monitor witness and attorney preparation and stress the importance of a spirit of fair play.

4.6 Unless otherwise permitted by an advisory ruling issued by the Mock Trial Committee specifically relating to this rule, there shall be no use of props and/or any intentional alteration of students' phys­

ical appearance and/or clothing in order to mimic the appearance of a trial character in the case. The

witness' appearance is assumed to be as she/he ap­pears in the case in accordance with the character­

istics provided in the trial materials. Judges have been advised not to award either bonus points or

penalty points for any unintentional use of props and/or alteration of appearance and/or clothing. Any witness who clearly and intentionally uses

a prop and/or alters her/his appearance and/or clothing in order to mimic the appearance of a trial character (e.g., wearing a theatrical wig and/ or makeup, police uniform, badge, etc.) may be

subject to penalty points at the judges discretion.

H T T P : / / M O C K T R I A L . M A S S B A R . O R G 3

4.7 Witnesses shall stay in the courtroom at all times

during the mock trial proceedings unless permis­sion for a student to leave has been obtained from

the opposing coach prior to the match.

4.8 Witnesses, whether plaintiff/prosecution's or de­

fendant's, shall not sit at the attorneys' table.

4.9 Witnesses are not permitted to use notes when

testifying during the trial.

4.10 Voir dire of expert witnesses shall not be permit­

ted; any questions directed to an expert about her/his credentials must be raised on cross-exam­ination. However, nothing in this rule precludes

appropriate objections to an expert's testimony i f

proper foundation has been laid.

4.11 There shall be no sequestration of witnesses. I f such a motion is made, it wil l be denied.

5. ATTORNEY PERFORMANCE

5.1 Each team must prepare an opening statement, three direct examinations, three cross-examina­

tions and a closing argument.

5.2 The attorney presenting the opening statement may not make the closing arguments in the case.

No attorney may conduct more than one direct examination. No attorney may conduct more than one cross-examination. Only one attorney from each side may conduct the examination of an individual witness, including re-examinations.

Violation of this rule shall result in the offending

player receiving a score from the judge but the team

shall also receive a deduction of 10 PENALTY

POINTS.

5.3 A team with three attorneys wil l perform the tasks

as follows:

• Attorney A does the opening statement, a direct examination and a cross-examination.

• Attorney B does the closing argument, a direct examination and a cross-examination.

• Attorney C does a direct examination and a

cross-examination.

A team with four, five or six attorneys wil l divide

the tasks in any way consistent with rule 5.2.

5.4 Attorneys may use notes in presenting their cases,

i.e., opening arguments, direct examinations of

witnesses, etc. However, undue reliance on notes

is not encouraged. (See Appendix C, Matrix on

fudging Criteria.)

4 M B A 2 0 1 5

6. TRIAL ENACTMENTS 6.1 The trial proceedings are governed by the Sim­

plified Rules of Evidence found in this packet of

materials. Procedural motions shall not be raised

at trial.

6.2 Usual rules of courtroom decorum apply to all participants and spectators. Appropriate dress is required. The judge should give verbal warning without penalty points to students whose jackets are not buttoned, whose ties are not tied properly,

or who are otherwise not appropriately attired. I f

the matter is not remedied, there may be further sanction involving the deduction of penalty points. No spectator signs or banners are permitted.

6.3 No photographs, or audio or video recording of the proceedings by anyone, including spectators and parents, is permitted without the permission

of both the other side and the court.

6.4 No electronic devices may be used to assist in a team's presentation during a trial. This includes video cameras, laptop computers, tape recorders, PDA's, Blackberries and other similar devices.

6.5 Immediately prior to each trial enactment, the attorneys and witnesses for each team must be physically identified to the opposing team.

6.6 In all tiebreaker and subsequent rounds, teams must conduct a coin toss to determine which side the teams wi l l argue. The coin toss is to be con­ducted as soon as both teams have arrived at the

trial location and prior to the judge taking the bench. The coin toss procedure is as follows:

a. Each team wi l l designate a single represen­

tative who wi l l participate in the coin toss

process.

b. The representatives wi l l need to decide which

team wi l l toss the coin and which team, will

call "heads" or "tails."

c. The winner of the coin toss chooses which

side her/his team wi l l play (plaintiff/prosecu¬

tion or defendant).

6.7 Immediately prior to each trial enactment, the

coaches shall submit a prepared Student Roster

and Performance Rating Sheet to the presiding

judge.

6.8 The Stipulations of the Parties may not be dis­

puted at the trial.

H I G H S C H O O L M O C K T R I A L P R O G R A M

6.9 The presiding judge may interrupt an attorney's

opening and closing statements and ask questions.

6.10 Students may read other law, cases and materials in preparation for the mock trial. However, they

may cite only the law and cases given and may introduce as evidence only those documents that are provided in this packet.

6.11 Exhibits and affidavits may be reproduced or en­larged and used during the trial; however, the con­

tents of exhibits and affidavits may not be altered or redacted, except to reflect revisions posted on the Mock Trial website. This shall also apply to

the use of the case materials as demonstrative aids or chalks.

6.12 During the actual trial (including any recesses,

up to and until after both closing statements have been made) teacher-coaches, attorney-coaches, student witnesses, student observers and all other

observers may not talk to, signal, or otherwise communicate with, or in any way coach their team. Behavior of this sort may result in disquali­

fication of the team from the tournament.

7. SCOUTING

7.1 Coaches, students and other people associ­ated wi th the team's preparation may not scout or create the appearance of scouting. No coach,

student or other person associated with a team's preparation may attend an actual trial enactment or scrimmage of any possible future opponent in the tournament. This rule prohibits, among other things, giving substantive information concern­

ing an actual trial enactment or scrimmage to other teams through social media, the Internet, by telephone, in person or otherwise. This rule

does not prohibit any activity allowed by Rule 7.2.

7.2 While teams are encouraged to scrimmage each other before the tournament begins, a team may

not participate in a scrimmage after its first trial has taken place. The only exception to this rule is

that a team may, after winning its region, scrim­mage any team that has been eliminated from the

competition, so long as the eliminated team did not compete against any of the other teams re­maining in the competition.

7.3 Any violation of the scouting rules, whether in­tentional or unintentional, should be brought to

the attention of the Mock Trial Committee and may result in disciplinary action.

8. JUDGING

8.1 The Mock Trial Program depends on the generous support of hundreds of volunteers. Please thank your judges for their time, regardless of their de­

cisions. W i t h approximately 50 trials a week for five weeks, we simply would not have a program without their assistance.

8.2 Under no circumstances should teacher-coaches,

attorney-coaches, or students debate with the judge after she/he gives a decision. We encourage you to provide feedback to the M B A on particular

judges by using the evaluation forms provided.

8.3 The mock trials are designed to be hearings or bench trials, that is, trials held before a judge act­ing as finder of fact.

8.4 Judges must be provided with a prepared Student Roster Form (see back of packet) before each trial, that is, one on which the coaches have entered the names of all the participating witnesses and attorneys.

8.5 The presiding judge wil l render two decisions at the conclusion of the trial. The first decision ren­dered by the presiding judge is based on the mer­

its of the legal case and the applicable law. The 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.

8.6 The second decision wil l be based on the quality of the students' performances. The judges have been instructed to rate the performance of all witnesses

and attorneys on the team. They also have been

instructed to award points based on total perfor­mance. No consideration should be given to age or grade level. (See Appendix Cfor the Performance

Rating Sheet and Matrix on fudging Criteria.)

8.7 A t the sole discretion of the presiding judge, B O ­NUS POINTS (a total of up to five points) may

be awarded to a team's total score to recognize superior team performance, exceptionally thor­ough preparation, a particularly professional and

mature level of conduct, an especially sophisti­

cated legal argument, well-made objections and responses and an outstanding ability to think and respond extemporaneously.

H T T P : / / M O C K T R I A L . M A S S B A R . O R G 5

8.8 A t the sole discretion of the presiding judge, PENALTY POINTS (a total of up to five points)

may be deducted from a team's total score for un­sportsmanlike behavior. Such behavior might in­clude, but would not be limited to, a team strat­

egy of excessive objections, serious or repeated witness invention of facts designed to disrupt the presentation of the opponent's case or to eat into

their time allotment or any other behavior which, in the presiding judge's opinion, is inconsistent with proper courtroom demeanor and the spirit

of this tournament. Penalty points also may be

deducted from cross-examining attorneys who repeatedly ask questions which require the wit­ness to invent facts or for other behavior of par­

ticipants, which, in the opinion of the presiding judge, is inappropriate and deserving of punitive

action.

8.9 In case of a mathematical tie, a tiebreaker point wi l l be awarded. This is explained on the perfor­mance rating sheet. The total number of points awarded, including the tie breaker point i f it is

needed, determines which team prevails.

9. PERFORMANCE RATING SHEETS AND GRIEVANCE PROCEDURE

9.1 The criteria used to evaluate students' perfor­mances are located in the Matrix on Judging Cri­teria in Appendix C of the case packet.

9.2 Judges have been encouraged to call opposing coaches into chambers at the conclusion of the trial enactment so that the coaches may review

the scoring sheet and check the scores for math­ematical accuracy. Coaches must sign the scoring sheet at that time. Even i f the judge does not call

the coaches into chambers, they are responsible for reviewing the scoring sheet and checking its

accuracy at the conclusion of the trial. I t is also

the coaches' responsibility, i f they choose to do so, to copy the scores onto a clean copy of the Performance Rating Sheet so that students can

review their individual performances. The M B A does not keep track of individual scores.

9.3 The scoring decision of the court is final. We ask that you accept the decision of the judges with dignity and remember that they are volunteering their time. As your attorney-coach wil l tell you, we don't always agree with the judge's decisions.

For the correct procedure to follow in the event of

a gross rule violation by a student and/or coach,

see Section 11, Objections.

9.4 There is no formal grievance procedure. Failure or refusal to check the accuracy of the scores or to sign the scoring sheet wi l l not preserve a right to

appeal the decision of the court, which is final.

10. TIME LIMITS

The script for the trial enactment is designed to be completed within a two-hour time limit. The M B A has

reserved a sufficient amount of time for the teams to be able to complete the trials. Teams that do not moni­

tor their time and run longer than the two hour allot­ted time wi l l bear sole responsibility for the inability to complete a trial. A n incomplete trial wi l l N O T be

rescheduled. It wi l l be counted as a loss to both teams.

10.1 The following time periods should be observed in

preparing the case for trial.

a. Opening statements: five minutes per side

b. Direct examination: seven minutes per wit­

ness

c. Redirect examination: time limit left to

judge's discretion; l imit of three questions per

witness

d. Cross-examination: five minutes per witness

e. Re-cross-examination: time limit left to

judge's discretion; l imit of three questions per

witness

£ Closing arguments: seven minutes per side

10.2 Time runs from the beginning of the witness examination, opening statement, or closing argument until its conclusion. Introduction of counsel or witnesses prior to the opening state­ment shall not be included in the time allotted for opening statements. However, if counsel or witnesses are introduced once the opening statement has commenced, such time shall be included in the time allotted for the open­ing statement. Time stops only for objections, questioning from the judge or administering die oath. Time does not stop for introduction

of exhibits.

10.3 Both teams have the option of providing a stu­dent timekeeper for the trial enactment — a clerk for the defense and a bailiff for the pros-

6 M B A 2 0 1 5 H I G H S C H O O L M O C K T R I A L P R O G R A M

ecution/plaintifF. The clerk/bailiff must bring a stopwatch or other silent timing device, and time cards to each trial. The clerk/bailiff may only use the time cards provided on the MBA website printed out on white paper. The time cards will be printed with: 2 minutes, 1 min­ute, 30 seconds, 15 seconds, and STOP.

10.4 The clerk/bailiff will be responsible for moni­toring its own and the other team's time, how­ever the timekeeper should only provide time signals for its respective team. I f a time limit is exceeded, the clerk/bailiff may hold up the STOP time card and state, "time." Ultimately, the judge is responsible for moving the trial along and may adjust time at his/her discre­tion. Deliberate abuse of the time limits may result in deduction of points.

10.5 During the rounds of the competition, time­keepers are to act as a neutral entity. Time­keepers are not to communicate with their respective teams during the course of the trial presentation. I f any significant time discrep­ancy between the clerk and bailiff occurs, the clerk/bailiff should notify the judge. The de­termination of the abuse of the time periods is a discretionary decision of the judge. The judge's

decision on abuse of time is final and cannot be

appealed.

11. OBJECTIONS

11.1 Physical constraints of the courtroom may pre­vent all counsel from sitting together at the coun­sel table.

11.2 Any objections, even to gross rule violations, must

be raised during the course of the trial or they are lost. A gross rule violation might consist of a teacher, parent, school official or lawyer coaching

or signaling the students on the team during the

course of the trial. Such coaching could include a verbal message, hand or facial gestures or cough­

ing, and other noise making intended to convey a message to the students.

11.3 The proper procedure to follow in objecting to a gross rule violation is to request a bench confer­ence and bring the objection to the attention of

the presiding judge.

11.4 Coaches may raise objections, but only in the event of improper behavior on the part of op­

posing coaches or spectators. The intent of this

rule is to allow coaches to object to behavior on the part of other adults when it might be difficult

for students to object to or even to see an adult's behavior. Coaches must raise objections immedi­ately at the time of the infraction. This rule does

not allow coaches to make objections on behalf of their student attorneys regarding the substance of the trial. I t applies only to gross rule violations

such as coaching or signaling time that occur dur­ing the course of the trial.

11.5 Unless circumstances require otherwise (i.e. the

physical constraints of the trial location) in order to avoid even the appearance of coaching, coaches and other spectators shall not sit in jury boxes or

other seating which is forward of the attorney's tables. Students should be reminded not to com­municate in any way with their coaches, witnesses

or non-participating students during the course of the trial.

12. THE SCHEDULE

12.1 The times and dates of the trials are set by the court and, except under extreme circumstances,

i.e., dangerous weather conditions, they cannot be changed. An unexcused absence from a trial wi l l result in a forfeit for the absent team and a win for the opposing team.

12.2 Most trials wi l l be scheduled between 1 and 2

p.m. Because courts are closed for business at 4:30 p.m., please keep an eye on the clock. We have asked judges to do the same.

12.3 The M B A wi l l assess a fee of $250 to any school that drops out of the competition after the "latest dropout date to avoid penalty" listed in the Mock

Trial Datebook, found in Rule 13 of the case ma­terials.

12.4 A team that does not participate in an assigned trial shall have forfeited that trial.

A team forfeiting a second trial during a tourna­

ment year wi l l be considered to have dropped out of the tournament. Upon its second forfeit, the team wil l be assessed the drop out fee and may no longer compete in trials for the remainder of the

tournament year.

A team which forfeits a trial is also subject to be­ing suspended from the Mock Trial Program for

H T T P : / / M O C K T R I A L . M A S S B A R . O R G 7

the following year at the discretion of the M B A

Mock Trial Committee. The team wi l l have the opportunity to explain the reasons for the forfeit(s) before the decision of the committee.

The amount of notice provided by the team in advance of the forfeit shall be considered by the

committee as part of its deliberation.

Forfeiting a trial deprives another team of the op­portunity to compete. Additionally, the trials for the tournament take many hours of staff time to

coordinate. Please make sure you and your team members are committed to completing the tour­

nament before you register.

12.5 Accommodations in the Mock Trial schedule will be considered for academic testing and/or religious reasons if the request is submitted be­fore the deadline date provided on the registra­tion form. Other requests for accommodations will be considered only for extraordinary cir­cumstances. Please make sure that your team is available to commit to the entire Mock Trial competition.

12.6 The state police, the court or other authority of the trial location, the school district, or the prin­cipal of a participating school are the only rele­

vant authorities who may declare a weather emer­gency. A weather emergency may not be declared by a teacher or team coach. A weather emergency

may either reflect the closure of a school or trial venue, or the determination by a relevant au­thority that i t is unsafe for students to travel. I f a

weather emergency has not been declared by a relevant authority, teams wishing to cancel a trial

due to inclement weather must forfeit the trial. Except under exceptional circumstances, weather

emergencies must be declared by 11 a.m. on the day of the trial. A coach of the team of a cancel­

ling school is responsible for informing both the coach of the other team and Mock Trial Central of the cancellation. Mock Trial Central wi l l in­

form the judge and trial venue of the cancella­tion. The coach of the team giving notice must do so immediately after the emergency is declared,

both by telephone and by email, and the team giving notice must receive prompt confirmation of the notice from the teacher coach or their adult

(non-high school student) designee at the oppos­

ing school in order for the notice to be effective. To avoid miscommunication between teams, please make every effort to make live telephone

contact with a responsible adult at the opposing school. Court time permitting, trials cancelled due to weather emergencies wi l l be rescheduled.

Failure to comply with provisions for weather

emergencies may result in a forfeit.

12.7 Coaches shall confirm with each other (three school days) in advance of any given trial. A t that

time, coaches shall confirm which side each team wil l be playing. To ensure effective communica­tion in the event of a weather, or other emer­

gency, Mock Trial Central strongly recommends that coaches exchange emergency contact infor­mation—such as a cell phone, or other telephone

number where they can be reached on the day of the trial. The website posting is final and official.

12.8 Teacher-coaches (of the winning team) must call in their scores to the M B A by 9 a.m. the next morning. Messages may be left on the MBA's

voice mail at (617) 338-0570. Scores also may be emailed to MockTrial@MassBar.org.

12.9 The teacher coach or their adult (non-high school student) designee must attend all trials with stu­dents. I f not, the team wil l have to forfeit match.

13. MOCK TRIAL DATEBOOK

A schedule wil l be prepared in early January indicat­

ing the time and place of your trials and the side your

team must argue. This wi l l be posted in a secure area on

the website.

Latest dropout date to avoid penalty.... Nov. 21, 2014

Preliminary rounds begin week of Jan. 26, 2015

Winter break week of Feb. 16, 2015

Snow make-ups week of Feb. 23 2015

Tiebreaker week week of March 2, 2015

Sweet Sixteen trials week of March 9, 2015

Both Elite Eight and Final Four trials will take place on one day during the week of March 16, 2015. Teams will be assigned to either Boston or Worces­ter. More information will be disseminated at the teacher/attorney orientations.

State Championship Friday, March 27, 2015

8 M B A 2 0 1 5 H I G H S C H O O L M O C K T R I A L P R O G R A M

14. MOCK TRIAL WEBSITE

Our home page, http://MockTrial.MassBat.org, serves as the most current and efficient source of in­formation regarding clarifications on stipulations, case

updates, trial results and answers to frequently asked

questions. There is a "registrants only" area located on the web­

site. Your team wil l be randomly assigned a password. This password wil l give you access to your schedule at

any time. (See Appendix D for log-in instructions). This Web-based system was designed to complement the re­lay of information with regard to scheduling and pro­

grammatic changes. While we wil l continue to contact you on the phone, staying abreast of your team's trial schedule is your responsibility. We suggest you assign

this task to one of your students. I f you have a question, comments or concerns, email

MockTrial@MassBar.org. We wil l post frequently asked

questions to the website on a regular basis. Directions from your school to a specific court can also be accessed at MockTrial.MassBar.org.

I f you do not have access to the Internet and/or email, and did not inform us on your registration form, please call us immediately at (617) 338-0570.

H T T P : l / M O C K T R I A L . M A S S B A R . O R G 9

PART III: Hints on Preparing for a Mock Trial

Review all of the materials in the case packet

• A l l students should read the entire set of materials and discuss the information/procedures and rules

used in the Mock Trial Program.

• The facts of the case, witnesses' testimony, and the

points for each side in the case then should be exam­

ined and discussed. Key information should be listed

on the chalkboard as discussion proceeds so that it

can be referred to at some later time.

Assign roles early

• Even though a team has to represent only one side in

the case during any single trial, all roles in the case

should be assigned and practiced. This wil l help in

practicing the case as well as in preparing for future

trials.

• Schools should designate alternates for both students

and teacher-coaches in order to be prepared for un­

expected illness or absence.

• The credibility of the witnesses is very important

to a team's presentation of its case. Experience has shown that close decisions in the trial enactments often hinge on individual differences in witness per­

formance. Therefore, students acting as witnesses really need to "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.

Preparing opening/closing statements and witness

questions

• Teams should allow their students to prepare their

own questions, wi th the teacher-coach and attorney-coach giving the team continual feedback and assis­tance on the assignment as i t 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.

• Team members should prepare their opening state­ments. Legal and/or non-legal language should be

avoided where its meaning is not completely under­

stood by attorneys and witnesses.

• Closing arguments should not be totally composed before trial, since they are supposed to highlight the important developments for the plaintiff/prosecu¬

tion 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 clos­

ing arguments.

Practice, practice, practice

• As a team approaches the date of its first trial, i t is

required that the team conduct at least one complete trial as a kind of dress rehearsal. Al l 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-coach should be invited to attend this session and comment on the

enactment.

Prepare to adapt

• The ability of a team to adapt to different situations is often a key component in a mock trial enactment,

since each judge or lawyer acting as a judge has her/ his own way of doing things. Because the proceedings

or conduct of the trial often depend in no small part on the judge who pre-sides, student attorneys and other team members should be prepared to adapt to

judicial rulings and requests.

Some of the skills most difficult for team members

to learn

• Deciding which facts are the most important to

prove their side of the case and making sure such

proof takes place.

• Stating clearly what they intend to prove in an open­ing statement and arguing effectively in their closing statement that the facts and evidence presented have

proven their case.

• Following the formality of court, e.g., standing up when the judge enters, or when addressing the judge,

calling the judge "Your Honor," etc.

1 0 M B A 2 0 1 5 H I G H S C H O O L M O C K T R I A L P R O G R A M

• Phrasing questions on direct examination that are

not leading (carefully review the Simplified Rules of Evidence and watch for this type of questioning in practice sessions).

• Refraining from asking so many questions on cross-

examination that well-made points are lost. When a witness has been contradicted or otherwise discred­ited, student attorneys tend to ask additional ques­

tions, which often lessen the impact of the point pre­viously made.

(Stop and recognize which questions are likely to re­quire answers that wi l l make good points for your

side. Rely on the use of those questions. Avoid point­less questions!)

• Thinking quickly on their feet when a witness gives an unexpected answer, an attorney asks unexpected questions, or a judge throws questions at the attor­

ney or witness. (Practice sessions wil l help prepare for this)

For more tips on how to prepare for your mock trial, go to MockTrial.MassBar.org and click on the "Mock Trial Tips" link.

H T T P : / 7 M O C K T R I A L . M A S S B A R . O R G 1 1

PART IV: Trial Procedures

Before participating in a mock trial, i t is important to be familiar wi th the physical setting of the court­

room, as well as the events that generally take place during a trial and the order in which they occur. This section outlines the usual steps in a bench trial, that is,

a trial without a jury.

1. COURTROOM LAYOUT

Participants

The judge

The attorneys:

• plaintiff/prosecution and defense

The witnesses:

• three witnesses for the plaintiff/prosecution

• three witnesses for the defense

Jury Box

Court Officer

Judge

Witness

Defense Table Plaintiff/

Prosecution Table

Audience Seating Audience Seating

2. STEPS IN MOCK TRIAL

The opening of the court

2.1 The plaintiff/prosecution team's attorney-coach

or teacher-coach shall serve as the court crier

2.2 The court crier shall first consult the judge as to the desired method for her/his introduction and the opening of the court. The judge wi l l have sole

discretion as to whether or not there wi l l be for­mal process employed for her/his introduction

and the opening of the court.

2.3 I f the j udge confirms that she/he would like a for­

mal process, as the judge enters the Courtroom

and/or approaches the bench to begin, the trial,

the bailiff shall cry aloud "All rise and remain

standing!"

2.4 When the judge has ascended to the bench, the

bailiff shall cry aloud, "Hear Ye! Hear Ye! The

Mock Trial Court of the Commonwealth of Mas­

sachusetts is now in session. The Honorable Jus­

tice [judge's last name] presiding. Al l persons hav­

ing business herein can now be heard. You may be

seated."

2.5 The judge wil l then ask the attorneys for each side

i f they are ready. Often the judge wil l begin the

trial by asking i f there are any preliminary matters

or by requesting stipulations. The lawyers would

offer stipulations, i f any, in response to that ques­

tion.

2.6 Stipulations of the parties are issues that both sides

have agreed to prior to the trial. Only the docu­ment in the case packet labeled Stipulations of the Parties and/or additional stipulations designated by the Mock Trial Committee are considered to

have been stipulated to and may be entered as such. A team may not object to the admission of

stipulations.

2.7 The judge shall direct the bailiff when to recess or adjourn court; upon adjournment the bailiff shall require all present to rise and cry aloud, "This court is adjourned. Please remain standing until

the judge leaves the courtroom."

Opening statements

2.8 Before proceeding with this opening statement,

each team of attorneys should have one of its

members introduce the team to the presiding

judge:

"Your Honor, my name is Mr./Ms. . M y colleagues are Mr. /Ms. and Mr./

Ms. ."

2.9 Only the co-counsel are introduced to the judge

at the beginning of the trial. Witnesses should be

introduced in character (not by actual name) as

they are called to the stand.

2.10 Occasionally, the judge wil l have all witnesses stand at the beginning of the trial to be sworn in, but, most often, the judge or the court officer wi l l swear in each witness as she or he is called to the

stand. The judge wi l l ask each witness:

1 2 M B A 2 0 1 5 H I G H S C H O O L M O C K T R I A L P R O G R A M

"Do you solemnly swear or affirm to tell the whole truth, and nothing but the truth, according to the Mock Trial Rules and Affidavits?

2.11 After introducing herself/himself and co-counsel

to the judge, the plaintiffs attorney/prosecutor

summarizes the evidence that wi l l be presented to prove the case.

2.12 After introducing herself/himself and co-counsel

to the judge, the defendant's attorney summarizes the evidence that wil l be presented to rebut the case the plaintiff/prosecution has made.

Direct examination by plaintiff/prosecution

2.13 The plaintiff/prosecution's attorneys conduct dir­

ect examination (questioning) of each of its own witnesses. A t this time, testimony and other evi­dence to prove the plaintiff/prosecution's case wil l

be presented. The purpose of direct examination is to allow the witness to narrate the facts in sup­

port of the case.

NOTE: The attorneys for both sides, on both direct

and cross-examination, should remember that their

only function is to ask questions. Attorneys them­

selves may not testify or give evidence, and they must

avoidphrasing questions in a way that might violate

this rule. ,

Cross-examination by the defense

2.14 After the attorney for the plaintiff/prosecution

has completed questioning a 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. Inconsistent stories, bias

and other damaging facts may be pointed out to the judge through effective cross-examination.

Redirect examination by the plaintiff/prosecution

2.15 The plaintiff/prosecution's attorneys may conduct redirect examination of its witnesses to clarify any testimony that was cast in doubt or impeached

during cross-examination. Each side is limited to three questions per witness on redirect.

Re-cross-examination by the defense

2.16 The defense attorneys may re-cross examine the opposing witnesses to impeach previous testi­mony. Each side is limited to three questions per

witness on re-cross.

H T T P : / / M O C K T R I A L . M A S S B A R . O R G

Direct and redirect examination by the plaintiff/prosecution

2.17 Direct and redirect examination of each defense

witness follows the same pattern as the steps above which describe the process for direct and redirect examination of the plaintiff/prosecution

witnesses.

Cross and re-cross-examination by the plaintiff/prosecution

2.18 Cross and re-cross-examination of each defense witness follows the same pattern as the steps

above which describe the process for cross and re-cross-examination of the plaintiff/prosecution

witness.

Closing arguments (attorneys)

2.19 Defense: Defense's closing statement is presented first. I t is essentially the same for both the defense

and the plaintiff/prosecution. Counsel for the de­fense reviews the evidence as presented, stresses the facts favorable to the defense and shows how

the plaintiff/ prosecution has failed to prove all the necessary elements of its case. Counsel con­cludes with a request that the court enter judg­ment on behalf of the defendant.

2.20 Plaintiff/Prosecution: The closing statement is a review of the evidence presented. I t should review the evidence as presented, stress facts favorable to

the plaintiff/prosecution and show how the plain­tiff/prosecution has met its burden of proving all the necessary elements of its case. Counsel con­

cludes with a request that the court enter judg­ment on behalf of the plaintiff/prosecution.

Burden of proof

2.21 Burden of Proof: In a civil case, the plaintiff is required to prove its case by a preponderance of

the evidence; in a criminal case, the prosecution

is required to prove its case beyond a reasonable doubt.

The judge's role and decision

2.22 The judge is the person who presides over the trial

to ensure that the parties' rights are protected and that the attorneys follow the Simplified Rules of

Evidence and trial procedure. In trials held with­out a jury or in evidentiary hearings, the judge also serves as the fact finder, that is, she/he de­

termines the facts of the case and renders a judg­ment.

1 3

PART V: Simplified Rules of Evidence and Procedure

In American trials, elaborate rules are used to regu­

late the admission of proof (i.e., oral or physical evi­dence). These rules are designed to ensure that both parties receive a fair hearing and to exclude any evi­

dence deemed irrelevant, incompetent, untrustworthy or unduly prejudicial. I f i t appears that a rule of evi­

dence is being violated, an attorney may raise an objec­tion to the judge. The judge then decides whether the rule has been violated and whether the evidence must

be excluded from the record of the trial. In the absence of a properly made objection, however, the judge prob­

ably wi l l allow the evidence. The burden is on the at­torneys to know the rules and to be able to use them to protect their clients by limiting the actions of opposing

counsel and their witnesses. Formal rules of evidence are complicated and differ

depending on the court where the trial occurs. For pur­poses of the Mock Trial Program, the rules of evidence have been modified and simplified. Not all judges wil l interpret the rules of evidence or procedure in the same way, and you must be prepared to point out the specific rules (quoting them, i f necessary) and to argue per­suasively for the interpretation and application of the

rule you think proper. No matter which way the judge rules, you should accept his or her ruling wi th grace

and courtesy.

ARTICLE I. GENERAL PROVISIONS

Rule 101. Scope

These Simplified Rules of Evidence and Procedure gov­

ern the trial proceedings of the Mock Trial Program.

The only rules of evidence that may be cited are those

included here.

Rule 102. Objections Beyond the Scope of These

Rules A n objection which is not contained or referred to in these Simplified Rules of Evidence and Procedure shall not be considered by the court. Counsel responding to such an objection is responsible for pointing out to the judge that the objection raised is not contained in these rules. I f counsel fails to do so, the court may exercise its discretion in considering such an objection.

ARTICLE II. MODE AND ORDER OF INTERROGATION AND PRESENTATION

Rule 201. Form of Question During Direct Examination On direct examination, witnesses may not be asked leading questions except as may be necessary to elicit background information or basic foundation to de­velop the witness' testimony. A leading question is one that suggests to the witness the answer desired by the

examiner, and often suggests a "yes" or "no" answer.

Example of a direct (non-leading) question: "Ser­

geant Brown, please describe what the defendant looked like the morning of the arrest." (NOTE: This question

is not leading provided that i t has already been estab­lished that the defendant was arrested on a particular morning, and that Sgt. Brown observed the defendant

on the morning of her arrest.)

Example of a leading question: "Sergeant Brown, when the defendant was arrested, wasn't she wearing a

red sweatshirt, blue jeans and white sneakers?"

Rule 202. Scope of Direct Examination Direct examination may cover any relevant facts about

which the witness has personal knowledge.

Rule 203. Narration

(a) Questions Calling for Narrative Testimony

Questions on direction examination must ask for

specific information, and may not be so broad that

the witness is invited to wander or narrate a story.

Questions calling for narrative testimony are objec­

tionable.

Example of a question that calls for narration:

"Please tell the court everything you know about

the accident."

(b) Narrative and Non-responsive Answers

The witness' answer to a question may not go be­

yond the facts about which the question was asked. Answers that go beyond the scope of the question are objectionable. I f the judge sustains an objection on these grounds, the objecting attorney may make

a motion to strike the improper testimony.

1 4 M B A 2 0 1 5 H I G H S C H O O L M O C K T R I A L P R O G R A M

Rule 204. Form of Question During Cross-Examination On cross-examination, an attorney may ask leading questions of the opponents witness.

Rule 205. Scope of Cross-examination Cross-examination may cover any relevant facts about which the witness has personal knowledge (whether or

not raised during the direct examination) or matters relating to the credibility of the witness.

Rule 206. Redirect Examination After cross-examination, a maximum of three addi­

tional questions may be asked by the direct examin­ing attorney, but questions must be limited to matters

raised by the attorney on cross-examination. The judge has the discretion to limit the scope of redirect.

Rule 207. Re-cross-examination After redirect examination, a maximum of three ad­ditional questions may be asked by the cross-examin­ing attorney, but questions must be limited to matters

raised by the attorney on redirect examination. The judge has the discretion to l imit the scope of re-cross.

Rule 208. Recalling Witnesses Prohibited After a witness has been excused from further testify­ing, the witness may not be recalled by either party.

ARTICLE III. INVENTION OF FACTS (Special Rules for Mock Trial Program)

Rule 301. "Invented Fact" Denned An "invented fact" is a material fact which is not con­

tained anywhere in the stipulations, in the evidence, or in any witness' affidavit, and which is not a "fair and reasonable extrapolation" of facts which are clearly

found within such case materials. An "invented fact"

is not permitted because it would promote the unfair creation of inferences which are not supported by the case materials. The case materials provide sufficient fac­

tual and legal points on which to question each witness without the witness inventing, or the cross-examining attorney requiring the witness to invent facts.

A fair and reasonable extrapolation does not ma­terially affect the outcome of the case or the argu­ments in the case, and must be reasonably inferred to be within the personal knowledge of the witness.

Example of a fair and reasonable extrapolation: A witness/soccer player states in her/his affidavit that the

final score of the game was 2—1. The coach of the team does not mention the score of the game in her/his af­

fidavit. It is reasonable to assume that the coach would have personal knowledge of the score, and it is a fair

and reasonable extrapolation of the facts contained in the evidence (assuming the coach was at the game) to

know the final score. The coach is permitted to testify that the final score of the game was 2 - 1 .

Example of an unfair and/or unreasonable extrapo­lation: In the above example, i f a conversation between two players occurred during the soccer game, and the

statements made during the conversation are impor­tant to the case, unless the coach's affidavit contains sufficient information to provide a foundation for the

coach to testify to what was said, i t is not reasonable to assume that the coach heard the conversation just because she/he was at the game. I t would be an unfair

extrapolation for the coach to claim that she/he heard the conversation.

Rule 302. Invention of Facts on Direct Examination On direct examination, each witness is bound by the facts contained within her/his written affidavit, but is

not required when testifying to be limited only to facts contained in her/his affidavit. A witness may testify to knowledge of other facts contained within the case ma­terials, and to fair and reasonable extrapolations there­

of, but such testimony must be reasonably based upon her/his personal knowledge.

Rule 303. Methods of Redressing Invention of Facts on Direct Examination

(a) Traditional Impeachment

I f a witness testifies in contradiction to a fact in the witness' own affidavit, opposing counsel should impeach the witness during cross-examination. I f

a witness testifies to an "invented fact," opposing counsel may elect to impeach the witness during cross-examination, by asking questions to confirm

that the fact is not contained in the witness' affidavit (or elsewhere in the case materials), or may elect

to object to the "invented fact," pursuant to Rule 303(b), at the time it is offered by the witness.

(b) Objection Raised at Bench Conference

I f a witness testifies to an "invented fact," opposing counsel may immediately request a bench

conference, at which time counsel may object to the invention of facts (as defined above). After the

bench conference, any fact deemed by the judge to be an "invented fact" shall not be permitted; the

H T T P : / / M O C K T R I A L . M A S S B A R . O R G 1 5

"invented fact" shall be stricken, and the witness

shall be instructed to answer counsel's questions

without reference to the "invented fact." Invention of facts objections should be raised

at bench conferences to preserve the integrity and decorum of the trial atmosphere. However, the granting of a bench conference is a discretionary

decision of the judge and a request for a bench conference may not always be granted. I f the judge

declines a request for a bench conference, the invention of facts objection may be raised in open

court.

Sample objections that may be made at the bench

conference:

"Your Honor, the witness is creating facts which are

not in the record."

"Your Honor, the witness has invented facts which are

not supported by the record."

"Your Honor, the facts offered constitute an unfair or

unreasonable extrapolation from the facts contained in

the record."

A t a bench conference, counsel should be prepared to

direct the judge to the invention of facts rules.

Rule 304. Invention of Facts on Cross-examination On cross-examination, i f a witness is asked a question

the answer to which is not contained in the stipula­tions, in the evidence or in any witness' affidavit, the

witness may respond with any answer as long as i t is re­

sponsive to the question, is not contrary to the witness' affidavit and does not contain unnecessary elaboration. I f the witness provides an answer that is contrary to the

witness' affidavit, the affidavit may be used to impeach

the witness' testimony. A witness may not be impeached for failing to adopt

facts from another affidavit or exhibit i f she/he elects not to adopt such facts. I f a witness is unable to respond in accordance with Rule 304, she/he may claim to have no recollection on which to base an answer. Questions calling for the invention of facts on cross-examination

are not objectionable on those grounds.

Example: I f the soccer player in the examples under

Rule 302 above claims that the soccer coach was pres­ent and heard the entire conversation, but the coach does not admit that in her/his affidavit, the coach is not

required to adopt the player's statement and is allowed to deny that she/he heard the conversation, or may tes­t i fy that she/he does not recall whether she/he heard

the conversation. The coach's credibility may not be

questioned (i.e., she/he may not be impeached) solely because she/he failed to adopt the assertion of the soc­cer player that the coach heard the conversation. I f the coach is asked whether she/he heard the conversation,

counsel's objection on the grounds that the question

calls for invention should be overruled.

ARTICLE IV. RELEVANCE

Rule 401. Definition of "Relevant Evidence" "Relevant evidence" means evidence which tends to make the existence of any fact that is of consequence to the determination of the outcome of the case more

or less probable than i t would be without the evidence.

Rule 402. Irrelevant Evidence Inadmissible Relevant evidence is admissible, except as otherwise provided in these rules or other law provided in the case materials. Irrelevant evidence is not admissible.

Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion or Waste of Time Although relevant, evidence may be excluded i f (a) its probative value is outweighed by the danger of unfair prejudice; (b) i f i t confuses the issues; (c) i f it is mis­

leading; or (d) i f i t causes undue delay, wastes time, or is a needless presentation of cumulative evidence.

Rule 404. Character Evidence not Admissible to Prove Conduct, Exceptions, Other Crimes Evidence of a person's character or character trait is not

admissible for the purpose of proving action in con­formity therewith on a particular occasion, except for:

(1) Character of accused. Evidence of a pertinent

character trait offered by an accused, or by the

prosecution to rebut same; or

(2) Character of victim. Evidence of a pertinent char­

acter trait of the victim of a crime offered by an accused, or by the prosecution to rebut same; or

(3) Character of witness. Evidence of the character of

a witness as provided in Rules 603, 604 and 605.

N O T E : Although evidence of a person's crimes or oth­er wrongs is not admissible for the purpose of proving

action in conformity therewith on a particular occa­

sion (except for the instances noted above), i t may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge,

identity or absence of mistake or accident.

Example: Sam the Safecracker is on trial for a bank

1 6 M B A 2 0 1 5 H I G H S C H O O L M O C K T R I A L P R O G R A M

robbery in which the bank vault was opened by using both a dentists drill and the Pip Diamond, a uniquely

flawless jewel that had been stolen from a safe in the

Famed Farmer Museum the previous year. Evidence that Sam participated in the Famed Farmer heist is not admissible to prove that Sam is guilty of the bank rob­bery but may be admissible to show that Sam had the opportunity to open the safe (using the Pip Diamond)

or that the Famed Farmer heist was part of the plan or preparation for the bank robbery (in which the Pip

Diamond was used).

Rule 405. Methods of Proving Character

(a) Reputation or Opinion

In all cases where evidence of character or a

character trait is admissible, proof may be made by testimony as to reputation or in the form of an opinion. On cross-examination, questions may be

asked regarding relevant, specific conduct.

(b) Specific Instances of Conduct

In cases where character or a character trait is an

essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct.

Rule 406. Subsequent Remedial Measures When measures taken after an event which, i f taken before, would have made the event less likely to occur,

evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion

of such subsequent remedial measures when offered for another purposes, such as proving ownership, control, or feasibility of precautionary measures (if controvert­

ed), or for impeachment.

Example: I n a lawsuit for negligence arising out of a slip and fall in a grocery store parking lot, evidence

that the grocery store added a sign after the accident, warning customers that the area may be slippery, wi l l

not be admissible to prove that the grocery store was at fault for the accident, but may be admissible to show

that the parking lot is under the control of the grocery store (if the store owner denies i t) .

Rule 407. Compromise and Offers to Compromise Evidence of compromise or offers to compromise

a claim which was disputed as to either validity or amount is not admissible to prove liability of the claim or its amount. Evidence of conduct or statements made

in compromise negotiations is likewise not admissible.

This rules does not require exclusion of such evidence when i t is offered for another purpose.

ARTICLE V. PHYSICAL EVIDENCE

Rule 501. Prerequisites for Admission of Physical Evidence Physical evidence may be introduced i f i t is relevant. Physical evidence wil l not be admitted into evidence until i t has been identified and shown to be authentic,

or its identification and authenticity have been stipu­lated. That a document is authentic means only that i t is what i t appears to be, not that the statements in the document are necessarily true.

N O T E : The exhibits in this mock trial are not auto­matically admissible at trial. While the authenticity of the exhibits has been stipulated, a proper founda­tion must be laid in order to introduce an exhibit in evidence.

Rule 502. Procedure for Introducing Physical Evidence The proper procedure to use when introducing a physi­

cal object or document for identification and/or in evi­dence is as follows:

• Show the exhibit to opposing counsel, so that coun­

sel is aware of what exhibit is being offered.

• Ask the judge to mark the exhibit for identification. "Your Honor, I ask that this document be marked

as Exhibit A for identification." At this point, you are not offering the exhibit as evidence, but rather marking i t so that i t is clear what document you are referring to when asking the witness questions about the exhibit.

• Hand the document to the witness and ask the

witness to identify it . " I show you what has been

marked as Exhibit A for identification. Would you please identify that exhibit?"

• Ask the witness questions about the exhibit to es­tablish its relevance and other pertinent informa­tion.

• Offer the exhibit into evidence. "Your Honor, at

this time I ask that the court admit Exhibit A in evidence as Exhibit 1."

• The judge wil l ask opposing counsel i f there is any

objection, rule on any objection (after argument), and either admit the exhibit into evidence or not.

H T T P : / / M O C K T R I A L . M A S S B A R . O R G 1 7

Rule 503. Use of a Writing to Refresh Recollection I f a witness is unable to recall information contained in a document, the attorney, after requesting the Court's permission and showing the document to opposing

counsel, and i f no objection is sustained, may show a document to the witness to help the witness remember the information without introducing the document

into evidence. The witness cannot read the document to the court and must return the document to counsel

before answering the question.

Rule 504. Publishing Documents to the Court Once a document has been admitted in evidence, counsel for either party may publish specific portions of the document to the court by directing the judge's

attention to the relevant portion and reading it aloud.

Opposing counsel may object only i f counsel has mis­

read the document.

Example: " I direct the courts attention to the second

page of Exhibit 1, at the top, where i t says 'Dolores is

deceased.'"

Rule 505. Use of a Witness' Affidavit to Impeach Unless prohibited by Rule 802, a witness may be asked questions about her/his affidavit without introducing the document. If, after appropriate questioning, a wit­

ness refuses to admit having made a statement con­tained within her/his affidavit, the attorney may, in conformance wi th Rule 502, enter into evidence the

affidavit containing the statement for the purpose of impeachment. A n affidavit admitted into evidence un­

der this rule may be considered by the Court only for the limited purpose of impeachment; the document

admitted wi l l be deemed to contain only the alleged

inconsistent statement(s).

A R T I C L E V I . W I T N E S S E S

Rule 601. General Rule of Competency Every person is presumed to be competent to be a wit­

ness.

Rule 602. Lack of Personal Knowledge A witness may not testify to a matter unless the witness

has personal knowledge of the matter; the witness may not speculate. This rule is subject to the provisions of Rule 703, related to opinion testimony by expert wit­

nesses.

Rule 603. Who May Impeach The credibility of a witness may be attacked by any party, including the party calling the witness.

Rule 604. Evidence of Character and Conduct of a Witness

(a) Opinion and Reputation Evidence of Character

The credibility of a witness may be attacked or supported by evidence in the form of opinion or

reputation, but subject to these limitations:

(1) The evidence may refer only to character for truthfulness or untruthfulness; and

(2) Evidence of truthful character is admissible

only after the character of the witness for truthfulness has been attacked by opinion or

reputation evidence, or otherwise.

(b) Specific Instances of Conduct

Specific instances of the conduct of a witness may not be offered for the purpose of attacking or supporting

the witness' credibility, except on cross-examination either (1) to rebut testimony regarding the witness' character for truthfulness or untruthfulness, or (2) to impeach the witness' testimony regarding the truthfulness or untruthfulness of another witness

as to which character the witness being cross-

examined has testified.

Rule 605. Impeachment by Evidence of Conviction of Crime For the purpose of attacking the credibility of a wit­ness, evidence that the witness has been convicted of a crime shall be admitted, but only i f the crime was a felony or involved moral turpitude, regardless of pun­ishment, and the court determines that the probative value of this evidence as reliable proof outweighs its

prejudicial effect to a party.

Rule 606. Religious Beliefs or Opinions Evidence of the beliefs or opinions of a witness on

matters of religion is not admissible for the purpose of showing that by reason of their nature the witness'

credibility is impaired or enhanced.

A R T I C L E V I I . O P I N I O N S A N D E X P E R T T E S T I M O N Y

Rule 701. Opinion Testimony by Lay Witnesses I f the witness is not testifying as an expert, the wit­ness' testimony in the form of opinions or inferences

is limited to those opinions or inferences which are (a)

rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' tes­timony or the determination of a fact in issue.

18 M B A 2 0 1 5 H I G H S C H O O L M O C K T R I A L P R O G R A M

Rule 702. Testimony by Experts I f scientific, technical, or other specialized knowledge

wil l assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, background, training, and/or education may testify in the form of

an opinion. Prior to offering such an opinion the witness must be deemed qualified by the court, pur­suant to a request by the attorney conducting the examination.

Rule 703. Bases of Opinion Testimony by Experts The facts or data upon which an expert bases an opin­

ion may be those perceived by or made known to the expert at or before the trial. The facts or data supporting an experts opinion need not be admissible in evidence

provided that they are of a type reasonably relied upon by experts in the field in forming opinions or inferences.

Rule 704. Opinion on the Ultimate Issue

(a) General Rule

Opinion or inference testimony otherwise admis­

sible is not objectionable because it embraces an is­

sue to be decided by the trier of fact.

(b) Opinion on Guilt or Innocence in a Criminal Case

I n a criminal case, an expert witness shall not express an opinion as to the guilt or innocence of

the accused.

ARTICLE VIII. HEARSAY

Rule 801. Definitions The following definitions apply under this article:

(a) Statement. A "statement" is an oral or written assertion or nonverbal conduct of a person, i f i t is intended by the person as an assertion.

(b) Declarant. A "declarant" is a person who makes a statement.

(c) Hearsay. "Hearsay" is an out-of-court statement offered to prove the truth of the matter asserted.

Example of a statement which is offered for the truth of the matter asserted:

"Ralph Malph told me the light was green" when offered to prove that the traffic light was green.

Examples of statements not offered for the truth of the matter asserted:

• The statement is offered to prove that the per­

son to whom it was addressed had notice or knowledge of the contents of the statement ( if

relevant). In this case, whether the statement is

true does not matter, what matters is that the listener heard the statement.

• The statement is offered because the statement itself constitutes a verbal act that is at issue, such as defamation or fraud. In this case, you

may be even trying to show that the statement

is false.

• The statement is offered as circumstantial evi­dence of the declarants state of mind (e.g., " I

am Napoleon" offered to show that the declar­ant is insane).

N O T E : This list is by no means exhaustive.

(d) Statements which are deemed not to be hearsay by rule. A statement is not hearsay if:

(1) Prior statement by witness. The declarant testi­fies at the trial and is subject to cross-examina­tion concerning the statement and the state­

ment is: (A) inconsistent with the declarants testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in an affidavit; (B) con­

sistent with the declarants testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or

improper influence or motive; or (C) one of identification of a person made after perceiving the person.

(2) Statement by a party-opponent. The statement

is offered against a party and is: (A) the party's own statement in either an individual or rep­

resentative capacity; (B) a statement of which the party has manifested an adoption or be­lief in its truth; (C) a statement by a person

authorized by the party to make a statement concerning the subject; (D) a statement by the

party's agent or servant concerning a matter within the scope of the agency or employment

made during the existence of the relationship; or (E) a statement by a co-conspirator of a par­ty during the course of and in furtherance of

the conspiracy.

N O T E : The statement need not be an "admis­sion."

H T T P : / / M O C K T R 1 A L . M A S S B A R . O R G 1 9

Rule 802. Hearsay Rule Hearsay is not admissible, except as provided by these

rules.

Rule 803. Hearsay Exceptions, Availability of Declarant Immaterial The following are hearsay statements, but are not ex­

cluded by the hearsay rule, even though the declarant

is available as a witness:

(1) Present sense impression. A statement describing or explaining an event or condition made while

the declarant was perceiving the event or condi­tion, or immediately thereafter. Example: "She

said, 'He sure is driving awfully fast.'"

(2) Spontaneous exclamation (also commonly re­ ferred to as "excited utterance"). A statement made under the impulse of excitement or shock

i f its utterance was spontaneous to a degree that reasonably negated premeditation or possible fab­rication and i f i t tended to qualify, characterize,

or explain the underlying event. Example: " I can't believe I ate the whole thing!"

(3) Then-existing mental, emotional or physical "conditions." A statement of the declarant's then-existing state of mind, emotion, sensation or physical condition (such as intent, plan, motive,

design, mental feeling, pain and bodily health), but not including a statement of memory or be­

lief to prove the fact remembered or believed. Ex­ample: "He said he had a terrible stomach ache."

(4) Statements for purposes of medical diagnosis or

treatment. Statements made for the purpose of

medical diagnosis or treatment.

(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once

had knowledge but now has insufficient recollec­tion to enable h im to testify fully and accurately, shown to have been made or adopted by the wit­

ness when the matter was fresh in his memory and to reflect that knowledge correctly.

(6) Records of regularly conducted activity (the "business records" rule). A memorandum, report, record or data compilation, in any form, of acts,

events, conditions, opinions or diagnoses, made

by a person wi th knowledge:

(1) I f kept in the course of a regularly conduct­

ed business activity; and

(2) I f it was the usual course of business to make the record at the time of the event recorded or within a reasonable time there­

after;

(3) Unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness of the re­

cords in question.

The term "business" as used in this paragraph

includes business, institution, association, pro­fession, occupation and calling of every kind,

whether or not conducted for profit.

(7) Learned treatises. To the extent called to the at­

tention of an expert witness upon cross-examina­tion or relied upon by the expert witness in direct examination, statements contained in published

treatises, periodicals or pamphlets on a subject of history, medicine or other science or art, estab­lished as a reliable authority by the testimony or admission of the witness or by other expert testi­

mony or by judicial notice.

(8) Reputation as to character. Reputation of a per­

son's character among associates or in the com­

munity.

(9) Co-conspirator statements. Statements by a co­

conspirator in a criminal conspiracy.

Rule 804. Hearsay Exceptions, Declarant Unavailable

(a) Definition of Unavailability

"Unavailability as a witness" includes situations in

which the declarant:

(1) Is exempted by ruling of the court on the ground of privilege from testifying concerning the sub­ject matter of the declarant's statement; or

(2) Testifies to a lack of memory of the subject matter of the declarant's statement; or

(3) Is unable to be present or to testify at the trial because of death or then-existing physical or

mental illness or infirmity.

A declarant is not unavailable as a witness i f any of the above is due to the wrongdoing of the proponent

of a statement for the purposes of preventing the witness from attending or testifying.

2 0 M B A 2 0 1 5 H I G H S C H O O L M O C K T R I A L P R O G R A M

(b) Hearsay exceptions

The following are not excluded by the hearsay rule i f the declarant is unavailable as a witness:

(1) Former testimony. Testimony given as a wit­ness at another hearing of the same or a dif­ferent proceeding, or in a deposition taken in

compliance with law in the course of the same or another proceeding, i f the party against

whom the testimony is now offered or, in a civil action or proceeding, a predecessor in in ­terest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

(2) Statement under belief of impending death. In

a prosecution for homicide or in a civil action or proceeding, a statement made by a declar­ant while believing that the declarants death

was imminent, concerning the cause or cir­cumstances of what the declarant believed to be impending death.

(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarants pecuniary or proprietary inter­est, or so far tended to subject the declarant to

civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarants position

would not have made the statement unless be­lieving i t to be true. A statement tending to expose the declarant to criminal liability and

offered to exculpate the accused is not admissi­ble unless corroborating circumstances clearly indicate the trustworthiness of the statement.

(4) Statement of personal or family history, (a) A statement concerning the declarants own

birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption or marriage, ancestry or other similar fact of personal or

family history, even though declarant had no means of acquiring personal knowledge of the

matter stated; (b) a statement concerning the foregoing matters, and death also, of another

person, i f the declarant was related to the other by blood, adoption or marriage or was so in­timately associated with the other's family as

to be likely to have accurate information con­cerning the matter declared.

(5) Declaration of deceased person. In any action

or other civil judicial proceeding, a declaration of a deceased person shall not be inadmissible in evidence as hearsay or as private conversa­

tion between husband and wife, as the case may be, i f the court finds that i t was made in good faith and upon the personal knowledge of the declarant.

Rule 805. Hearsay within Hearsay Hearsay included within hearsay is admissible only i f each part of the combined statement conforms with an exception to the hearsay rule provided in these rules.

ARTICLE IX. PROCEDURAL RULES

Rule 901. Authority to object Objections to an opening statement must be made

and argued only by the attorney making the oppos­ing opening statement. Objections during the direct examination or cross-examination of a witness must be

made and argued only by the opposing attorney cross examining or examining the same witness. Objections regarding a closing argument must be made and ar­

gued only by the attorney making the opposing closing argument.

Rule 902. Procedure for Objections The attorney authorized to object may object any time any tournament rule or rule of procedure or evidence is violated, except as noted in Rule 906.

Rule 903. Motion to Strike I f an answer is unresponsive or otherwise objection­able, the opposing counsel may ask the judge to strike the objectionable testimony.

Rule 904. Other Motions Motions for directed verdict or dismissal or any other

motions not specified in the Simplified Rules of Evi­dence and Procedure are not permitted.

Rule 905. Closing Arguments Closing arguments must be based on the evidence and testimony presented during the trial.

Rule 906. Objections During Opening Statements and Closing Arguments No objections may be raised during the course of opening statements or closing arguments. An objection

to an opening statement or to a closing argument may

be made immediately following the opening statement

or closing argument. A brief rebuttal or explanation is permitted at the discretion of the judge.

H T T P : / / M O C K T R I A L . M A S S B A R . O R G 2 1

PART VI* TRIAL SCRIPT AND

EXHIBITS

2 2 M B A 2 0 1 5 H I G H S C H O O L M O C K T R I A L P R O G R A M

C O M M O N W E A L T H OF MASSACHUSETTS

WORCESTER, ss. SUPERIOR COURT DEPARTMENT

C R I M I N A L A C T I O N N O . 2014 -1211

C O M M O N W E A L T H OF MASSACHUSETTS

v.

STEPHANIE / STEVEN HARDEE

STIPULATIONS OF T H E PARTIES

Now come trie parties in the above-captioned matter and hereby agree and stipulate to the following:

1. On September 12, 2014, a grand jury returned an indictment alleging that the defendant murdered Har­

old Kumar with deliberate premeditation and malice. The indictment does not assert, and the Common­wealth does not allege, that this killing was committed with extreme atrocity or cruelty or in the commis­sion or attempted commission of a felony punishable by a maximum sentence of imprisonment for life.

2. The factfinder in this case shall consider the lesser included offenses of murder in the second degree and voluntary manslaughter.

3. The Commonwealth has elected not to charge the defendant with improper storage of a firearm.

4. The jurisdiction and venue of this court are proper and may not be contested.

5. The Court has ruled that all statements made by the defendant to the police on August 2, 2014 were vol­

untary, and that admission of those statements at trial would not violate the defendant's rights under the United States Constitution or Massachusetts Declaration of Rights. The defendant's appellate rights on this issue are fully preserved, and no objection concerning this issue may be raised at trial.

6. A l l pre-trial matters have been resolved and are not at issue in this trial.

7. Al l named witnesses must testify in this trial and their appearance as witnesses is not subject to objection. This stipulation does not prohibit objecting to a witness being permitted to give an opinion i f that witness

has not been properly qualified as an expert. Any other person not called in this trial to testify is unavailable and no inquiry is permitted as to the reasons therefor.

8. Expert witnesses have had pre-trial access to each other's affidavits and all materials referenced therein.

9. Al l documents and all signatures on documents are authentic. Notwithstanding this stipulation regarding authenticity, a party seeking to offer a document into evidence must establish that the document meets the other requirements of admissibility.

10. Any photographs, videos, reports, statements, charts, or physical evidence referred to in any affidavit that are not provided in the case materials are not available for use at trial. Neither party may comment or oth­erwise make any argument based upon such unavailability.

11. No technical information beyond the information contained in the case materials is admissible at trial.

H T T P : / / M O C K T R I A L . M A S S B A R . O R G 2 3

STIPULATIONS O F T H E PARTIES (cont.)

12. A l l witness roles in this case are gender-neutral.

13. A l l persons, places, and events described in the materials are completely fictional. Any resemblance to real

persons, places or events is coincidental.

14. The parties hereby reference any additional stipulations listed on the M B A Mock Trial Website and duly

incorporate said additional stipulations herein.

Witnesses for the Prosecution

Sergeant Sam Bush

Hanna/Hans Kumar

Dr. Sasha Betts

Witnesses for the Defendant

Stephanie/Steven Hardee

Martha/Mark Hockbird

Morgan D . Kazarosian

Trial Materials and Exhibits

Affidavit of Sergeant Sam Bush

Diagram Prepared by Sergeant Bush

Affidavit of Hanna/Hans Kumar

Affidavit of Dr. Sasha Betts

Curriculum Vitae of Dr. Sasha Betts

Affidavit of Stephanie/Steven Hardee

Probate Court Order dated January 17, 2014

Affidavit of Martha/Mark Hockbird

Affidavit of Morgan D . Kazarosian

Curriculum Vitae of Morgan D . Kazarosian

4842-3580-4191, v. 2

M B A 2 0 1 5 H I G H S C H O O L M O C K T R I A L P R O G R A M

A F F I D A V I T OF S E R G E A N T SAM BUSH

1. M y name is Sergeant Sam Bush. I reside at 12 Gibson Circle in Martins Landing, Massachusetts. Since 2007, I have been employed as a police officer with the Town of Martins Landing. I received my police training with the United States Army 89th Military Police Brigade at Fort Hood and through the State

Police Academy.

2. Although this was my first homicide investigation, I have had training in crime scene investigation, traffic stops, and the proper methods for collecting evidence and establishing the "chain of custody." The chain of

custody is how we create a detailed record of evidence we seize. Evidence must be placed into an evidence

bag and immediately surrendered to the state crime lab. That way we can be certain i t has not been tam­pered with, lost, or contaminated.

3. In addition to my patrol duties, I teach a training program for civilians applying for a license to own and carry a handgun. Massachusetts requires that anyone applying for a license to carry a handgun must receive training. I provide two training classes. The first class is mandatory for new applicants. It's called "Pistol

Basics in the Home." Students learn basic marksmanship and gun safety. State law requires that guns be locked away when not in use, so part of that class discusses the proper use of trigger locks and safes. The

second class is called "A.C.E." ("Advanced Combat Exchange"). ACE is a six-week optional class for stu­dents who already have a license. ACE focuses on avoidance and escape, i f at all possible. We also teach students how to reload under pressure, how to clear malfunctions, and how to shoot from a variety of

positions: kneeling, standing, and even seated in a car.

4. I know Stephanie/Steven Hardee from the Pistol Basics Course, which she/he'd passed successfully in July

2012. Based on my conversations with Hardee, I was aware that Hardee's granddaughter/grandson, Mar­tha/Mark had moved in with her/him. Hardee had a married daughter who had passed away.

5. In August 2013, Hardee enrolled in ACE. She/he was a good student at first. She/he always obeyed range safety protocol. The first week, Hardee borrowed a department gun. Then Hardee came to class with her/ his own gun, a Lovett P226 .357 sig. The .357 sig is a caliber designed for use in semi-automatic handguns

and is known as a "man-stopper." Hardee told me that the U.S. Secret Service uses that same caliber. She/ he said that she/he wanted the "very best caliber for the very worst person."

6. Hardee's gun had all the features. It had a grip called "crimson sword" that projects a red laser dot onto the target for quicker aiming. I t even had a "combat" finish to protect against rust and reduce glare. Hardee said she/he got a gunsmith to reduce the amount of force i t took to pull the trigger, which meant i t was

easier to fire multiple shots very quickly.

7. I saw that Hardee spent a lot of time practicing exercises that were not in the ACE class curriculum, includ­ing "The Dril l ." The Dri l l is an exercise in speed and accuracy. The shooter draws the gun and fires three shots as fast as she/he can. Hardee's first shot always hit a little high on the target. Other than that, Hardee

could put every shot center mass.

8. On Saturday, August 2, 2014,1 was on patrol in my marked cruiser. Shortly after 9:00 p.m. I responded to 18 Gazitzer Way for a report of a home invasion. I was aware that the address was Hardee's residence.

Upon arrival, I exited my vehicle and observed the front door. I t was open, but exhibited no signs of forced entry. The doorframe, lock, and doorknob were all intact and showed no signs of damage. I did notice that

the large picture window to the left of the front door had been shattered; there was glass all over the yard, suggesting that i t had been smashed from within.

H T T P : / / M O C K T R I A L . M A S S B A R . O R G 25

A F F I D A V I T O F SGT. SAM B U S H (cont.)

9. Concerned for the safely of any occupants in the home, I drew my sidearm and entered the residence. Once inside, I sensed the strong odor of burned gun powder. M y attention was immediately drawn to the

presence of an adult male lying between the living room and the stairs. The victim was slumped on his right side wi th his head toward the base of the stairs. He was wearing shorts, sneakers, and a long-sleeve

Red Sox t-shirt that was stained with blood. His feet were pointed in the general direction of the outer

wall/living room window. A diagram that I prepared of the scene is attached hereto as Exhibit A.

10. There was a large amount of blood under and around the victim. The victim was lying on top of a baseball

bat. I t was clear that the victim was already deceased. On the living room floor were three spent shell

casings and shards of crockery that appeared to have been a decorative vase. I also observed a spatter of

reddish-brown material on the wall. The material appeared to be blood.

11. The other areas of the room appeared undisturbed. A television was on the wall opposite the stairs, above

the fireplace. Near the back of the room was a Barcalounger-style chair. A small table was located adjacent

to the chair. A landline telephone was on the table.

12. I quickly determined that the situation was still volatile. I observed Hardee seated on the couch. She/he was calm. Her/his firearm was next to her/him and within her/his reach. Leaning against the staircase was a juvenile who I knew to be Hanna/Hans Kumar. Hanna/Hans was shaking and unsteady on her/his feet. She/he was sobbing and repeating, "She/he didn't have to shoot my dad." Martha/Mark Hockbird was also

present. Hockbird was trying to console Hanna/Hans. I heard her/him, say, "She/he didn't have a choice,

Hanna/Hans." Hanna/Hans shouted, "Get away from me! You're glad that he's dead!"

13. As a safety precaution, I secured Hardee's weapon and placed Hardee in handcuffs. I informed Hardee that

this was normal when there has been a shooting. I told Hardee i t was for Hardee's safety and mine. I also

told Hardee that she/he was not under arrest. Hardee blurted out, "You know that's Harry over there. I

had to shoot him. I didn't have a choice."

14. A t that time, Officer Roger Grinage and Officer Thomas McGahan arrived. Just to be cautious, I read

Hardee her/his Miranda rights. Hardee said that she/he still wanted to talk wi th me, "one-on-one." A t my

request, the other officers removed Hanna/Hans and Martha/Mark to separate rooms. I remained with

Hardee, who told me her/his version of the events voluntarily.

15. Hardee explained that Harry had unexpectedly arrived around 9:00 p.m. and forced his way into the

home. Hardee stated she/he was scared that Harry would take Hanna/Hans and that Hardee would never

see them again.

16. Hardee described the victim as being "completely out of control." Hardee stated she/he was terrified be­

cause she/he knew Harry had a violent history. Hardee explained that the kids were so scared that they

ran from the room but returned when Harry started smashing things. Hardee said Harry was armed with

a baseball bat. Hardee told me that Harry told Hanna/Hans to get her/his stuff and ordered her/him into

the truck. When Hanna/Hans refused to go, Harry became enraged and struck Hanna/Hans with the bat,

knocking her/him down.

17. Hardee said he had the gun in his bathrobe pocket. She/he said that she/he put her/his hand on the gun,

but did not draw the weapon at first. Hardee said that when Harry raised the bat in his right hand, Hardee

knew in that instant that it was going to be either her/him or Harry.

2 6 M B A 2 0 1 5 H I G H S C H O O L M O C K T R I A L P R O G R A M

A F F I D A V I T O F SGT. SAM B U S H (cont.)

18. I looked around the room to confirm that all the physical evidence I could observe was consistent with Hardee's story and concluded that i t was. I took the handcuffs off Hardee at that point, and reassured her/ him that everything was going to be okay. Hardee looked very relieved.

19. A t that point, Officer McGahan, who had been interviewing Hanna/Hans, pulled me aside and recounted the kid's version of events. I reconsidered my original conclusion, walked back over to Hardee, and asked

whether Hardee already had the gun in her/his robe when Harry arrived. Hardee paused and then tried changing the subject, telling me again about how the victim had been 'completely out of control'. At that point i t became clear that I needed to arrest Hardee. Based on what I had heard, my law enforcement train­

ing, and my knowledge of Hardee's performance at the ACE class, i t was clear that Hardee knew exactly

what she/he was doing when she/he shot Harry. I put the handcuffs back on and informed Hardee that she/he was under arrest.

20. Upon inspecting Hardee's pistol, I confirmed that i t was her/his Lovett P226. It contained a magazine with a capacity of ten rounds. There were six rounds in the magazine and a round in the chamber. I retrieved three spent shell casings from the floor. Each shell bore a factory stamp indicating the caliber of the shell.

Each shell was marked .357 sig. I observed a bullet hole in the wall, just to the left of the shattered window, at a height of 69 inches. I retrieved the bullet from that hole. I also collected the glass and ceramic shards. Samples of the blood on the wall and floor were swabbed, and photographs were taken of the crime scene.

A l l of the evidence was then labeled and transported to the state crime lab in Sudbury, Massachusetts. Finally, I arranged for delivery of the body to the Medical Examiner's Office.

SIGNED U N D E R T H E PAINS A N D PENALTIES OF PERJURY THIS 2 n d DAY OF OCTOBER, 2014.

Sergeant Sam Bush

H T T P : / / M O C K T R I A L . M A S S B A R . O R G 2 7

Exhibit A

KEY

A. Entrance door

B. Window

C. Table

D. Ceramic fragments

E. Bookcases (2)

F. Fireplace

G. Wall-mounted TV

H. Chair

J. Barcalounger

K. Side table

L. Sofa

M. Bullet casings (3)

N. Chalk outline

O. Stairway to 2 floor

P. Bullet hole in wall

Q. Glass fragments

R. Telephone

S. Hallway

T. Passage to dining room

Diagram of living room and adjacent area 18 Gazitster Way, Mar t in 's Landing, M A

prepared by Sergeant Sam Bush, Mart in 's Landing Police Depar tmen t

2 8 M B A 2 0 1 5 H I G H S C H O O L M O C K T R I A L P R O G R A M

A F F I D A V I T OF H A N N A / H A N S K U M A R

1. M y name is Hanna/Hans Jo Kumar. I am 14 years old. I was born on September 20, 2000. M y mother was

Nancy Kumar. She died in 2011 because her immune system got cancer and i t attacked her body instead of defending it. M y dad was Harry Kumar. He died in August when my grandmother/grandfather shot him with a pistol. That's what this case is about.

2. Before my mom died, I didn't see my dad very often. He worked on an oil platform in Dubai, which is on the other side of the world pretty much. So he was gone most of the time, which was okay because I had my mom.

3. Then my mom got sick and my dad moved back to live with us and help take care of her. She was sick for two years and then she died. I still miss her, and I know my dad also missed her a lot. We were both very sad when she died. I saw a counselor to talk about my feelings. Dad didn't. I wish he had talked to someone

because the whole thing made him really angry. He yelled at me a lot, especially when I made mistakes. M y counselor said that he was not really mad at me, that he was mad at the world because my mom had died. But he couldn't yell at the world so he yelled at me instead.

4. After my mom died, my dad and I were living together by ourselves. Dad was doing the best he could, but i t was hard for him because he had never had to take care of me by himself before. He would forget to do

things sometimes, like make my lunch for school or make sure I had a bath or buy me new clothes. A t first I tried to remind him, but that made him angry, like he thought I was telling him he was a bad parent. So I just tried to do a lot of those things myself. Only I'm kind of a screw-up, so I made a lot of mistakes

and my dad would yell at me more. He was just trying to make me a better person. The only times when he spanked me were to make me remember a lesson that had to do with safety, like leaving a burner on on the stove, or going out without telling him. He explained that the pain i t took to teach me the lesson was

a lot less than it would hurt i f I burned the house down or got killed by kidnappers when I wandered off. I always understood exactly why I got a spanking, and it really helped me learn my lesson.

5. I was also screwing up in school a lot, not studying much and doing badly on tests. Dad thought i t was important that I apply myself and get a good education, so that I could go to college and get a job in an

office, not on an oil rig. So Dad was pretty hard on me about my grades. A few times when he was lecturing me about grades, or making messes, or something else, the police showed up. They said that there had been noise complaints from neighbors about our shouting. That was ridiculous. Those people should mind their

own business. I t had nothing to do with them. I think they were just trying to get Dad in trouble because they didn't like him.

6. Sometimes i t was so hard for my dad that he needed a vacation from me, which made sense. Ordinar­ily when you have two parents, they get to take turns taking care of a kid, but Dad couldn't take turns.

So sometimes he sent me to stay with my grandmother/grandfather. Grandma/Grandpa Hardee was my mom's mother/father, so she/he wasn't related to Dad. I think Grandma/Grandpa also was angry with

the world about M o m dying, but she/he blamed my dad for some reason. No matter how much I told Grandma/Grandpa about everything good that Dad did for me, Grandma/Grandpa just seemed to talk about the yelling. She/he said over and over again that she/he didn't like me living with Dad, and that she/ he was going to do something about it .

7. Still, Grandma/Grandpa was often the only person I could talk to about Dad's behavior. For example, on New Year's Eve in 2012,1 wanted to sleep over at a friend's house, and Dad didn't want me to. We started

arguing, and I must have said something that Dad thought was disrespectful, because he really started screaming at me. I was too mad to listen, and I stormed out of the house and ran all the way to Grandma/ Grandpa Hardee's house. Eventually Dad came and found me there, after he had calmed down. I guess he

H T T P : / / M O C K T R I A L . M A S S B A R . O R G 2 9

A F F I D A V I T O F HANNA / HANS K U M A R (cont.)

must have been really worried about me, because he had been talking to the police about where I had gone off to. Anyway, Grandma/Grandpa talked to Dad some more while I was out of the room, and by the end

of their conversation everything was back to normal and I went home with Dad. Dad told me that he was glad I was safe, but that I really shouldn't have run off to Grandma/Grandpa's house like that. I t seemed

that he really hated i t when Grandma/Grandpa got involved in our fights.

8. Things were okay until May 2013, but then Dad and I started fighting again. This time it was because Dad didn't like some of the other kids I was hanging around with. He told me that they were disrespectful and that they were bad influences because they spent a lot of time playing video games instead of studying. I

really liked these kids, and a couple of them had single parents too, so I felt like they understood what I was going through with Dad. I wanted to stay home to hang around with them for the summer, but Dad

had enrolled me in some coed fast-pitch softball camp starting in June. I told him I didn't want to go, and I guess that was really disrespectful because he had worked hard to come up with the money for camp.

"We had a few fights about it, but they were the usual kind of fights where we just yelled at each other. I know that the counselor at camp thought that Dad had hit me, but i t was like I told the investigator from DCF—we just had an argument, and after i t was over I tried to show my Dad how much I appreciated him sending me to softball camp by practicing really hard and must have hurt myself doing slides or ac­

cidentally hit myself with the bat or something. I t wasn't Dad's fault.

9. After the DCF report was cleared up, I was back at home with Dad for the rest of the summer and every-

thing.was great. And when school started again in the Fall, I was careful to make sure that Dad didn't know

anything about me spending time with the kids he didn't like. But when mid-term teacher reports came

out in early November, Dad learned I wasn't doing so great in school. A n d a few days before Thanksgiv­

ing, he caught me goofing off at a friend's house when I had a test the next day. We had another big fight.

Dad told me that I'd better straighten out or else he'd pull me out of school and send me to some military

academy where my friends would never see me again. Dad also smacked me for being at the friend's house

without letting him know where I was.

10. At the time, I was really mad about Dad trying to stop me from seeing my friends, so I ran over to Grand­

ma/Grandpa Hardee's again and told her/him everything that had happened. But as soon as I finished my

story, I could tell that Grandma/Grandpa was really mad at Dad, and I was afraid that I had gone too far

wi th this. I was afraid of what Grandma/Grandpa might do—yell at Dad, or worse. So when Grandma/

Grandpa started quizzing me about the details, I clammed up and made it clear to her/him that everything

was fine. I never said anything about not wanting to live with Dad. That would have really hurt Dad's

feelings.

11. A few days later I was told was that I wasn't allowed to live with Dad anymore, I had to live with Grandma/

Grandpa Hardee and my cousin, Martha/Mark Hockbird.

12. Martha/Mark was living with Grandma/Grandpa while she/he went to college. Living with her/him was

the only part that made staying with Grandma/Grandpa okay. We played games and she/he helped me

practice softball. I was really mad at Grandma/Grandpa for taking me away from Dad, but Martha/Mark

explained that i t was just temporary.

13. Grandma/Grandpa went to bed early, so I was able to sneak out sometimes to see my friends. Sometimes I stopped by the house to see Dad too. Sometimes he took me out for ice cream or took me to the batting

cages. We didn't see each other too often, but I really enjoyed the times when we could be together.

3 0 M B A 2 0 1 5 H I G H S C H O O L M O C K T R I A L P R O G R A M

A F F I D A V I T O F HANNA / HANS K U M A R (cont.)

14. Al l this time there was an investigation into whether Dad was a fit parent. Grandma/Grandpa Hardee tried to talk to me about it a few times. It seemed like she/he was trying to persuade me that I should choose to be with her/him instead of Dad. On the first Saturday in April , there was a school dance—the "Spring

Fling" i t was called. I was supposed to go with my friends, but at the last minute Grandma/Grandpa asked me to stay at home. Martha/Mark was out at a party, and Grandma/Grandpa said that she/he didn't want to be alone. She/he looked like she/he was going to cry. I reluctantly agreed to stay home. We played

checkers all evening, and Grandma/Grandpa kept saying, "You're not going to leave me all alone, are you

Hanna/Hans? You wouldn't do that, right?" I t was really weird.

15. There was going to be a hearing on August 12, 2014 on whether I could go back to living with Dad. Grandma/Grandpa Hardee was getting more and more nervous about the hearing as it got closer. She/

he kept saying that she/he would do anything to keep me away from my dad, and how much better I was doing living with her/him. It's true that my grades were a little better, but that's mostly because Martha/ Mark was helping me with my homework. A few times, Grandma/Grandpa told me that the hearing was

going to be hard on me, but that I just needed to understand that the whole thing was for my own good. She/he said, "One way or another, things wil l work out right. Either the judge wil l keep you away from

that Harry or something else wil l happen. The important thing is that you should live here where we are

both happy." I didn't know what to say to that.

16. I hated talking to Grandma/Grandpa about where I should live. On July 31,1 told my dad that I wanted to be back with him, and he said that he thought he could get Grandma/Grandpa to see reason i f Dad could just get ten minutes alone with her/him. I thought having them talk was a great idea, so I suggested that Dad come pick me up at the house on Saturday night, which was ten days before the hearing. I told Dad

we would go to the batting cages, but really the idea was to get Dad and Grandma/Grandpa talking.

17. That Saturday morning, over breakfast, I told Grandma/Grandpa that Dad was going to come over to talk

that evening. Grandma/Grandpa was reading the newspaper, but when I mentioned Dad, she/he looked up and said that she/he didn't want to see "that Harry" until the hearing, when it would be too late. I said

that Dad just wanted to talk, and Grandma/Grandpa said that was fine. I was so relieved.

18. Dad was late. He was supposed to take me out earlier, but he showed up around 9:00 in the evening. When

I heard the doorbell, I was already all ready, and I started to head downstairs with my bat bag and a back­pack. When I was at the top of the stairs, I heard Grandma/Grandpa greet Dad at the door. When I got downstairs, Grandma/Grandpa asked me what was in my bag. I explained that i t was my softball equip­ment. Grandma/Grandpa seemed upset, and yelled at me to get back upstairs and to stay in my room. I

dropped my bags and headed upstairs. Martha/Mark came with me.

19. When we got to my room, Martha/Mark told me it had been a bad idea, trying to get the two of them to­gether. "You know what your dad can be like, Hanna/Hans. It's not fair to Grandma/Grandpa to put her/

him through this!" I told Martha/Mark that Grandma/Grandpa had agreed to this. Martha/Mark must have seen how upset I was, because she/he tried to talk to me to distract me from listening to the argument, but pretty soon we were both listening. I t was very hard, listening to Dad and Grandma/Grandpa argue.

20. I guess the talk didn't go well. Pretty soon I heard Dad start yelling at Grandma/Grandpa, saying some­thing like, "You'll never get to see her/him again after that hearing!" After that there was more yelling, but I couldn't hear what either one of them was saying. Then I heard a crash and Martha/Mark and I both ran

downstairs to see what had happened. I saw Grandma/Grandpa up against the bookcase, next to the chair

H T T P : / / M O C K T R I A L . M A S S B A R . O R G 3 1

A F F I D A V I T O F HANNA / HANS K U M A R (cont.)

in the corner. There was a broken vase on the coffee table in between her/him and my dad. I started asking what happened and my dad said, "Grab your stuff. Say goodbye. We're leaving." He looked really mad, so I ran over to him immediately. Then Grandma/Grandpa started telling me that I wasn't going anywhere,

and that I should get back in my room.

21 . Well, that was the last straw. I was so mad at Grandma/Grandpa for keeping me away from Dad and ru­

ining the whole year. I lunged at Grandma/Grandpa, yelling at her/him, "Mind your own business! This

don't concern you!" Dad had my bat in his hand for some reason, and he used it to hold me back, and kind of shooed me toward the door with it. I guess I stumbled, because I fell backward and must have bumped

my head. I 'm really clumsy sometimes.

22. I was lying on the ground, looking at Grandma/Grandpa, who suddenly was holding her/his gun. I don't know where the gun came from—Grandma/Grandpa usually keeps i t i n her/her bedroom. She/he started

yelling at Dadi Dad put his hands up, the way people do when someone points a gun at them. He still had the bat in his right hand, though. He tried talking to Grandma/Grandpa calmly, and he stepped in front of me to make sure that i f Grandma/Grandpa did anything stupid, I wouldn't get hit by a bullet. That's why

I didn't get hit by a bullet when the gun went off. Dad blocked the bullet. He must have dropped the bat, because I heard it hit the floor. Then Grandma/Grandpa shot him two more times.

23. The whole thing is my fault. I should never have tried to set up the meeting. M y dad died trying to make sure I wouldn't get hurt. I can't believe that Grandma/Grandpa Hardee went that far to carry out her/his threat to keep me away from my dad. I don't think she/he should go to jail, but I do think that she/he should get probation or something. There has to be a consequence for killing my dad for no reason.

SIGNED U N D E R T H E PAINS A N D PENALTIES OF PERJURY THIS 3 r d DAY OF OCTOBER, 2014.

Hanna/Hans Kumar

M B A 2 0 1 5 H I G H S C H O O L M O C K T R I A L P R O G R A M

A F F I D A V I T OF DR. SASHA B E T T S

1. M y name is Dr. Sasha Betts. I am 62 years old and currently serve as Second Deputy Medical Examiner

in the Office of the Chief Medical Examiner for the Commonwealth of Massachusetts ("OCME"). The O C M E is responsible for investigating the cause and manner of death in violent, suspicious, or unex­plained deaths in Massachusetts. M y job requires familiarity with a wide array of forensic specialties, from

pathology to ballistics to crime scene reconstruction. I have seen all of the usual causes of death—shoot­ings, drownings, stabbings, etc.—as well as some of the more unusual scenarios, like accidental decapita­tion.

2. I received my undergraduate degree in biology from the University of Vermont in 1974, and my medi­cal degree from the Johns Hopkins University School of Medicine in 1978. I completed a fellowship in forensic pathology at Mass. General Hospital. I did my residency at the Beth Israel Deaconess Medical

Center in Boston and worked in the Emergency Room at Beth Israel in Trauma Care Services for 14 years. Eventually, the stress of the job became just too much and I sought out a position with a bit of a slower pace. I figured being a medical examiner would be a good fit—no rush to save lives, just take your time and

do a good job. I left Beth Israel to work in the O C M E in 1994, the same year that I moved to Mearinam, Massachusetts. I've lived there ever since with my spouse Terry.

3. Since becoming a medical examiner, I have had a lot more time for my real passion, writing, and have been published in numerous medical journals. A particular focus of my scholarship has concerned the reliability of different forensic disciplines. While I pride myself in being a sort of "Jack of all Trades"—I can do a little

bit of everything—my years of experience have convinced me that the backbone of all forensic analysis is pathology. You want to find out i f i t was murder or suicide? Let me examine the body. You want to know i f the victim fell or was pushed out that window? Let me examine the body. I have conducted 372 autopsies

with the OCME, give or take a couple, and I would estimate that I have successfully identified the cause and manner of death more than 90% of the time just based upon an autopsy.

4. On the morning of Monday, August 4, 2014, we received a body from the Martin's Landing Police Depart­

ment. The body was a white male, giving outward appearances of a man between the ages of 40 and 48. He was found wearing a Boston Red Sox baseball shirt, shorts, and sneakers. Per the identification from the Martin's Landing Police Department, the body was that of 40-year-old Harry Kumar of Martin's Landing.

The victim's wallet was in his back pocket, containing $2,000 in cash, a passport, a driver's license, credit cards, and business cards, all confirming his identity as Harry Kumar.

5. The autopsy was conducted at 10:00 a.m. on Wednesday, August 6, 2014. M y preference is normally to conduct the autopsy on the same day that I receive the body. Unfortunately, that was not possible in this

instance, as we had received four victims just the day before from a horrific car accident at Dead Man's Curve. I guessed right away that the driver had been texting. Sure enough, i t turned out I was right. Any­

how, we stored the victim according to protocol. Therefore, the delay in conducting the autopsy did not have any impact on my observations and findings.

6. I begin every autopsy with a physical examination of the victim. The victim was 71 inches in height and

weighed 225 pounds. Sergeant Sam Bush of the Martin's Landing Police Department informed me that eyewitnesses indicated that there were three gunshots fired at the victim. However, I only observed wounds consistent with two gunshots—one to the victim's left forearm and one to the victim's chest. Sgt. Bush

further informed me that the shooter claimed that he/she had shot the victim in self-defense, but added that the suspects story "just didn't add up."

H T T P : / / M O C K T R l A L . M A S S B A R . O R G 3 3

A F F I D A V I T O F D R . SASHA B E T T S (cont.)

7. I next examined the two wounds on the victims left forearm to determine, i f possible, which was the entry and which was the exit wound. I did not observe any stippling (powder burns) on the skin of the victim.

Stippling is more prevalent when the gun is a few inches to a few feet away from the victim. The closer the gun is to the victim, the more stippling there is. There was no stippling on either side of the victim's forearm, indicating that the shooter was likely more than five feet away from the victim at the time the shot

was fired. The gunshot wounds were classic perforating wounds, the kind that go through an object, in this

case, the victim's forearm. To determine which was the entry and which the exit wound, I first compared their size and shape. Generally, an exit wound is larger and more irregular in shape. Here, however, both wounds were of an equivalent size and shape. This is fairly uncommon, but can happen when a gunshot is

fired from a fairly close distance—two to three feet—or a particular type of bullet is used.

8. I n any event, I determined that the size and shape of the wounds were inconclusive and moved onto the next step, an examination of the skin around the wounds. M y initial observations of the skin proved in­conclusive as to which was the entry and which was the exit wound. However, using a magnifying glass, I was able to observe that the skin around the anterior (or front-side) wound was inverted slightly, indicative

of an entry wound. The skin around the posterior (or back-side) wound was unremarkable. I also observed blood down the posterior of the victim's forearm towards his elbow, and a significant amount of blood on the left sleeve of his shirt, all consistent with the posterior wound on the victim's forearm being the exit

wound.

9. I then examined the exterior of the second gunshot wound to the victims chest. Unlike the wound to the victim's forearm, this wound was what we call a penetrating wound, where the bullet does not leave the body. The entry wound was on the upper-left side of the victim's chest. I noted that i t was likely that the

bullet went through the victim's chest and punctured his left lung.

10. After completing my external examination, I then moved to more closely examine the gunshot wound to

the victim's chest. I started with a standard Y-incision. Just as I had predicted during my external examina­

tion of the victim's body, the bullet appeared to penetrate the victim's body on his left side in the third rib

interspace, or the space between the third and fourth ribs. I also observed that the bullet had penetrated the

victim's left pulmonary artery—the artery that carries blood from the heart to the lung. I found the bullet

in the victim's left lung, which appeared to have collapsed. I removed the bullet and sent i t to the lab for

testing.

11. I then examined the rest of the victim's organs. The color, size, and weight of the victim's organs were un­remarkable. I also took samples of the victim's tissues to be examined at the lab. Nothing significant was

found. However, the toxicology reports found traces of warfarin, a drug that is used to treat blood clots as it generally thins the blood. Warfarin can be prescribed i f you have a certain type of irregular rapid heart­

beat or have had a heart valve replacement. Because I did not observe any valve replacements in the victim's

heart, i t is likely that he was taking warfarin to treat an irregular heartbeat.

12. I n connection with the autopsy, it was my responsibility to determine the cause and manner of the victim's

death. As for cause of death, my autopsy was conclusive and consistent with the eyewitness accounts that

the victim had been shot and killed. Specifically, I determined that i t was the gun shot that struck the vic­

t im in the chest that caused the fatality immediately upon impact.

3 4 M B A 2 0 1 5 H I G H S C H O O L M O C K T R I A L P R O G R A M

A F F I D A V I T O F DR. SASHA B E T T S (cont.)

13. The autopsy was equally conclusive about the manner of death. M y determination that the entrance wound on the victims anterior (or front side) of his left forearm established that the victim's left hand was raised above his head at the time he was shot, in a defensive manner. This finding confirms the account

of the eyewitness who stated that the victim had both hands raised above his head in a defensive manner at the time of the shooting. Taking this conclusion into account, along with the location of the bullet re­trieved from behind the victim, i t is my opinion that the shot to the forearm was the first, shot, that the

second shot missed the victim, and that the third and fatal shot was then fired, striking the victim in the chest and killing him almost immediately.

14. I am aware that the defendant has hired an independent forensic analyst to try and refute my findings, and I am aware that she/he says the blood spatter and the gunpowder residue are inconsistent with my conclu­sions. Based upon my thirty-five years of experience, including twenty years with the OCME, forensic pa­

thology is the most reliable method of determining cause and manner of death. Blood spatter and ballistic analysis can be useful when forensic pathology cannot provide the answer, but that is not true in this case. I f i t were', I would have done that analysis myself.

SIGNED U N D E R T H E PAINS A N D PENALTIES OF PERJURY THIS 2 n d DAY OF JANUARY, 2015.

Sasha Betts, M . D .

H T T P : / / M O C K T R I A L . M A S S B A R . O R G 3 5

Exhibit A

SASHA BETTS, M.D.

Second Deputy Medical Examiner 452 Tanaka Lane

Centerville, MA 01772

CURRICULUM V I T A E

E D U C A T I O N AND T R A I N I N G

1978

1974 B.S., University of Vermont, Burlington, V T

M.D., Johns Hopkins University School of Medicine, Baltimore, MD

R E S I D E N C Y

1979-82 Beth Israel Deaconess Medical Center, Boston, MA

FELLOWSHIP

1982-84 Forensic Pathology, Massachusetts General Hospital, Boston, MA

L I C E N S U R E

MA

BOARD C E R T I F I C A T I O N American Board of Pathology American Board of Forensic Science

E M P L O Y M E N T HISTORY Second Deputy Medical Examiner, OCME, 1994 - present Beth Israel Deaconess Medical Center, Boston, MA 1984 - 1994

PUBLICATIONS

"Common Errors in Forensic Autopsies," AMERICAN JOURNAL FOR MEDICINE AND PATHOLOGY

3:132-41 (1998).

"The Pathologist Knows Best," AMERICAN JOURNAL OF SCIENCE 28 (l):58-62 (2002).

"Hearsay and Heresy: The Inherent Unreliability of Eye Witnesses and TSIew Science'" Criminal

Justice Quarterly, 11: 225-31 (2004).

"Recent Advancements in Blood Spatter Analysis," Forensic Sciences Review, 30:261-5 (2006).

"The Basics of Crime Scene Reconstruction," Police Beat Monthly (June 2008).

"Don't Lose Your Head: How to Keep Cool When Others Can't," Henry Ford Hospital Medical

Journal, 11: 225-31 (2010).

"The Forensics of Self-Defense," with Dr. Marianne Engelke, Harvard Medical Journal (expected publication date September 2015)

M B A 2015 H I G H S C H O O L M O C K T R I A L P R O G R A M

A F F I D A V I T OF S T E P H A N I E / S T E V E N H A R D E E

1. M y name is Stephanie/Steven Hardee. I am 71 years old and live at 18 Gazitster Way in Martins Land­

ing, Massachusetts, a quiet suburb just outside of Boston in Middlesex County I am currently residing at home. I am confined to my home as a condition of bail, and have also had to pledge my home as security for my appearances in court.

2. M y spouse passed away in 2011 shortly after being diagnosed with stage 4 lung cancer. At about the same

time, my granddaughter/grandson, Martha/Mark Hockbird, came to live with me when he began college at Boston University. Martha/Marks parents now live in London, but she/he could live and commute

from my house and save a fortune in room and board. I t also worked out because Martha/Mark likes to do homework well into the early morning hours, while I like to turn in by 9 p.m. I also enjoyed having the company.

3. M y spouse and I had two children. I n addition to our daughter Alyssa (Martha/Mark's mother), we had

another daughter, Nancy, who married a man who we thought was going to be a great husband and father. His name was Harry Kumar. They met in college and were married in March, 1999. Unfortunately, shortly after our grandchild, Hanna/Hans was born, Harry took a job with Getty Oil . For a few years, he was

working on an oil rig in Dubai. Nancy stayed in Martins Landing with the baby. Things seemed O K with Harry out of the way.

4. Hanna/Hans was born in 2000. Since Harry was away for long periods of time, Nancy was, for the most

part, a single mother raising Hanna/Hans. M y spouse and I certainly helped out when we could, and saw quite a lot of Hanna/Hans, even though we were both still working ful l time.

5. I remember the night of April 5, 2009 like i t was yesterday. We got the call from Nancy that changed our lives. After a routine medical appointment, the doctor had told Nancy to come back for further tests. We

thought nothing of it, until that day when Nancy told us that she had been diagnosed wi th Hodgkins Disease. A few years earlier, Nancy had suffered a severe bout of mononucleosis, which seemed to have

been successfully treated at the time. We did not know that the risk of Hodgkins Disease increased i f you had contracted "mono." Unfortunately, although the early prognosis was good, Nancy had a very serious setback and passed away exactly two years later.

6. Right after her diagnosis in 2009, Harry returned from Dubai. After Nancy died, he moved back to the Boston area and took an apartment wi th Hanna/Hans in Olney, the town next to Martins Landing. M y spouse also had become quite i l l and passed away about a month later. What I quickly found out was

that Harry was a different person than the Harry we had known before. Apparently being in Dubai had a negative impact on Harrys demeanor. When he returned, I found him to be belligerent, short-tempered, and volatile, different than how he had been in the past. As a result of the Probate Court investigation,

we became aware of his previous run-ins with the law and of all the charges that had been brought against him. I f I had known that before, I would have fought h im for custody after Nancy passed away. I t should

have occurred to me then to do that, especially considering that, after Nancy died, her friends confided in

my spouse and me that she had become somewhat afraid of Harrys temper. Although she never admitted it, I am certain that before she died, he had hit her on more than one occasion.

7. After Nancy died, it seemed that Harry and Hanna/Hans were always arguing about something. I t also turned out that Hanna/Hans was not a top student, and was having real trouble with grades. The com­bination of all of these issues apparently led to arguments which sounded so loud and violent that their

neighbors called the police on several occasions. I know that on one occasion, in June 2012, Harry left the

H T T P : / / M O C K T R I A L . M A S S B A R . O R G 3 7

A F F I D A V I T O F S T E P H A N I E / S T E V E N H A R D E E (cont.)

house because he was afraid he had gotten too angry, and asked me to watch Hanna/Hans for a few days. I

told him that he needed to control his temper, and told him to enroll i n anger management classes before

Hanna/Hans came back to him. Surprisingly, he did, and he later told me that he had completed a two-

week course. After that, Hanna/Hans went back home with him. But I was not convinced that the anger

management classes had worked.

8. I n the late afternoon of New Year's Eve, December 31, 2012, the Olney police were again called to Harry's

apartment to investigate a disturbance. Hanna/Hans and Harry were having an argument about New

Year's Eve. When the police arrived, Harry told the police they had been arguing and that Hanna/Hans left in a rage. I never believed that, because Hanna/Hans came to my house and told me what really hap­pened—that Harry had become angry when Hanna/Hans said she/he wanted to sleep over at a friend's

house on New Year's Eve. Soon after that, Harry came by and we seemed to have a productive discussion. I t seemed that his anger had subsided. He told me that he was spending a lot of time with Hanna/Hans

helping with schoolwork, which Hanna/Hans also told me was the case. Harry promised to do everything he could to help the situation get better. I had always thought he was a good actor, but I let Hanna/Hans

go back home with him anyway. I should never have done that.

9. In June of 2013, right after school was out for the summer, serious problems erupted again between Harry and Hanna/Hans. Hanna/Hans told me that the arguments were about Harry not being too fond of her/ his friends. It got very ugly, very quickly, because Hanna/Hans kept seeing these friends despite having been warned not to see them. Just after school was out for the summer, Hanna/Hans was attending a two-

week overnight summer camp for coed fast-pitch softball. During the first few days of camp, one of the counselors, also a school teacher, noticed that Hanna/Hans had several welts and other bruises and abra­sions which were not consistent with sliding into second base. The counselor, a mandated reporter, filed a report wi th the Massachusetts Department of Children and Families ("DCF"). Hanna/Hans was tempo­

rarily placed with me under an agreement with Harry. I found out about all of this when Harry, DCF, and I made the agreement. After an investigation, the allegations of abuse were not substantiated, and Hanna/

Hans returned home. That, in hindsight, was an unfortunate mistake.

10. As the 2013-2014 school year began, I kept a closer eye on Hanna/Hans to make sure she/he was okay.

I made it very clear to Harry that I was watching everything that was going on. Apparently that was not good enough. Just before Thanksgiving, Harry and Hanna/Hans had a violent argument that resulted

in Hanna/Hans coming to my house and begging me to take her/him in. When I asked what had gone wrong, she/he said that Harry had hit her/him again and threatened to "move to a place where nobody

would ever find them" i f Hanna/Hans did not "straighten out." I asked what was meant by "straighten out" and Hanna/Hans could not give me an answer. I was worried about the threat to take the child away,

because I assumed Harry still had contacts in the Middle East. I contacted DCF and they convinced Harry to let Hanna/Hans stay with me until I filed a petition with the Probate Court seeking custody of Hanna/ Hans. The Court appointed a guardian ad litem ("GAL") to investigate the issue of an appropriate custody

arrangement for Hanna/Hans while she/he remained with me.

11. Following the GAL's investigation, the Judge ordered that I was to have temporary custody of Hanna/Hans

for the remainder of the school year. A copy of the Probate Court Judge's order is attached to this affidavit

as Exhibit A. A hearing was scheduled for August 12, 2014, to determine the issue of whether Harry or

I would have permanent custody. Harry thought, however, that it would be a good idea not to wait until

August 12. It turned out not to be such a good idea.

38 M B A 2 0 1 5 H I G H S C H O O L M O C K T R I A L P R O G R A M

A F F I D A V I T O F S T E P H A N I E / S T E V E N H A R D E E (cont.)

12. On Saturday, August 2, 2014, at about 6:30 in the evening, Hanna/Hans told me that Harry wanted to

speak with me about the custody trial. I told Hanna/Hans to tell her/his father that I was willing to talk on the phone, but that I was not going to agree to anything that would end up with custody going to him.

13. Sometime around 9:00 p.m. that evening, the doorbell rang. Martha/Mark was in the living room near the front door. She/he was still living with us for the summer because she/he had a summer internship. I was also in the living room in my Barcalounger recliner, watching TV. I heard Martha/Mark ask who i t was,

and I heard i t was Harry. I told Martha/Mark not to let him in. Unfortunately, Martha/Mark had opened the door, and when she/he tried to close it, Harry must have pushed the door open and come into the house.

14. Harry seemed to be out of breath, as though he had just run a race, although I did notice that he was

not sweating. At that moment, Hanna/Hans came down the stairs from the bedroom with her/his co-ed softball bag and a backpack. I asked what was in the backpack, and she/he said i t was "clothes and softball

stuff." I told Hanna/Hans to go back up to the bedroom. She/he looked at Harry and slowly started back up the stairs. I also told Martha/Mark to go upstairs with Hanna/Hans and to stay in the bedroom. I did not want to argue in front of the kids.

15. As soon as the kids were upstairs, I asked Harry why he was there. He seemed surprised at the question. He

then told me that he was there to take Hanna/Hans out and to discuss the custody trial. I told him that I had not known he was coming and did not want to discuss the trial. I also told him that he was not going to take Hanna/Hans anywhere. Only much later did I learn that Hanna/Hans had told him to come over and that they had secretly gone out on other occasions after I went to bed.

16. I told Harry he had to leave. I explained to him that i t was inappropriate for him to come to the house, that he shouldn't have pushed his way in, and that we simply had nothing to talk about. But Harry refused to

leave. He started talking, loudly, about how I was "out of line," that I was trying to "destroy his life," and that i t was time to resolve the custody issue "once and for all." I told him that he was crazy i f he thought that the judge would ever let him have custody of Hanna/Hans. I told him that, i f he ever wanted to see

Hanna/Hans again, he needed to let me have permanent custody. Otherwise, I was going to tell the judge that Hanna/Hans had recently confided in me that Harry was physically abusing her/him.

17- That's when Harry snapped. He first yelled for Hanna/Hans to come downstairs, and then picked up a softball bat that was lying up against the wall. "What are you going to do with that?" I asked him. Harry responded, "What do you think I 'm going to do?" and smashed an antique vase on a table near the door. I became extremely concerned that Harry was out of control enough to hurt all of us.

18. I then took out my Lovett .357 sig hand gun from the drawer in the table next to the Barcolounger. I now believe i t to be an act of divine intervention that I had my gun wi th me. I usually keep my Lovett .357 up­

stairs in the bedroom, but when I am downstairs alone in the house at night, I sometimes keep i t with me. I had cleaned it earlier that night, but then just left i t in the drawer of the table next to the Barcalounger. I always keep the gun loaded. I am licensed in the Commonwealth of Massachusetts to own and carry this

weapon. I am also licensed to carry a concealed weapon. The kids had started to come back downstairs because of all the noise, so I immediately put the Lovett .357 out of sight in my bathrobe pocket.

H T T P : / / M O C K T R I A L . M A S S B A R . O R G 39

A F F I D A V I T O F S T E P H A N I E / S T E V E N H A R D E E (cont.)

19. Martha/Mark tried to be a peace-maker and told us both to calm down and stop fighting. Harry told her/

him, "Shut up, mind your own business, and get out the way." Harry then said to Hanna/Hans, "Get your

things and say goodbye to your grandmother/grandfather." I told Hanna/Hans to get back upstairs and

into her/his bedroom. She/he started to comply; however, Harry took the bat and struck Hanna/Hans

with it, causing her/him to stumble towards the doorway. He told Hanna/Hans that i f she/he did not get

right into his truck, "You wil l be sorry you were ever born."

20. I was convinced that Harry was going to hit Hanna/Hans again, beat her/him ruthlessly, and never let me

see her/him again. I took the gun out of my pocket and told Harry to "get out." I aimed the gun at Harry.

He raised his right hand with the bat in it, like he was going to hit me. He was only a few feet away. I

thought he was going to smash my head like a pumpkin with the bat, that I would die, and that Hanna/

Hans would end up beaten, missing, or dead as well.

21 . I was extremely nervous and scared to death. I fired three times to make sure that he didn't get to me and/

or take Hanna/Hans. I had no choice.

SIGNED U N D E R T H E PAINS A N D PENALTIES OF PERJURY THIS 15* DAY OF SEPTEMBER, 2014.

S. Hardee

4 0 M B A 2 0 1 5 H I G H S C H O O L M O C K T R I A L P R O G R A M

Exhibit A

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, ss. PROBATE AND FAMILY COURT DEPARTMENT

Docket No. MI13-2660-E

In re:

PETITION FOR CUSTODY

OF

HANNA/HANS KUMAR, a minor.

FINDINGS OF FACT, CONCLUSIONS

AND TEMPORARY ORDERS

(on Petition filed December 2, 2013)

This matter was heard before me upon the Emergency Application of the Petit ioner,

Stephanie/Steven Hardee ("Petit ioner") for a Preliminary and Permanent order for custody of the

minor child, Hanna/Hans Kumar ("Child"). The Respondent is Child's sole surviving parent, his

father Harry Kumar ("Father"), upon whom proper notice of these proceedings was served.

Upon the fi l ing of this Petition, the Court appointed a Guardian ad litem ("GAL") to conduct

an investigation of the fitness of each of the residences of Petit ioner and Father, and an evaluation

of the relative suitability of such residences for the best interests of Child.

A t a hearing on Petitioner's Emergency Mot ion for Temporary Orders on January 15, 2014,

it was represented to the Court that Father assented to the entry of a temporary order of custody

of Child to the Petitioner. Based upon such representation, the addit ional evidence submit ted w i th

the Petit ion, and the result of the GAL's report, all of which has now been reviewed by this Court as

more ful ly set for th below, the Court makes the fol lowing findings:

H T T P : / / M O C K T R I A L . M A S S B A R . O R G

E X H I B I T A (cont.)

FINDINGS OF FACT

1. Child's date of birth is October 10, 2000.

2. Child's mother passed away on April 5, 2011.

3. Petitioner is seventy-one years old (d /o /b 4 /1 /43) and the parent of Child's

deceased mother; i.e., Child's Grandparent.

4. Child lived w i th Father until June 24, 2013, when Child began to live w i th Petitioner,

w i th the assent of Father.

5. Petitioner's spouse passed away on June 7, 2011.

6. Child's cousin, Mar tha/Mark Hockbird (d/o/b 5 /23/93) , also a grandchild of

Petit ioner, currently resides w i th Petitioner while enrolled at Boston University.

7. In connection w i th a claim alleging the suspicion of abuse of Child dated June 17,

2013 by a mandated reporter, the Department of Children and Families ("DCF") conducted an

investigation and found insufficient evidence to support allegations of abuse.

8. DCF also reported a non-descript intervention on November 27, 2013, which was

reported to be resolved between DCF and Father.

9. Records obtained by the Family Services Department of the Probate Court revealed

a pat tern of police responses to calls for disturbances at Father's residence in 2012 and 2013, all of

which were related to arguments between Child and Father, some of which were described by

neighbors as violent.

10. Records obtained by the Family Services Department of the Probate Court in

connect ion w i th the criminal background check of Petit ioner revealed no criminal record.

11 . Records obtained by the Family Services Department of the Probate Court in

connect ion wi th the criminal background check of Father revealed the information contained on

4 2 M B A 2 0 1 5 H I G H S C H O O L M O C K T R I A L P R O G R A M

E X H I B I T A (cont.)

the report attached hereto as Exhibit 1 f rom the Massachusetts Criminal Justice Information

System.

12. The GAL Report submitted to the Court revealed the fol lowing informat ion,

summarized as fol lows:

a. Petitioner's residence provides a suitable home for the Child.

b. Father's residence provides a suitable home for the Child.

c. Child has performed better academically since September 2013.

d. Child exhibited genuine affection for Father.

e. Child exhibited some genuine affection for Petitioner.

f. Although no evidence of physical abuse of Child by Father could be supported,

interviews w i th Child caused the GAL to be concerned that Child may have been physically

reprimanded by Father, but did not want to admit such action for fear of retr ibut ion by Father or

causing Father further legal t rouble.

g. Child exhibited some fear of Father's anger.

CONCLUSION

Based upon the findings of fact, this Court is not able to evaluate w i th certainty, at this t ime,

the appropriateness of a permanent custody order, w i thout hearing test imony f rom both parties,

together w i th such further evidence as they may wish to provide to this Court.

H T T P : / / M O C K T R I A L . M A S S B A R . O R G

E X H I B I T A (cont.)

ORDERS OF THE COURT

Based upon the representat ions made by Petit ioner in court at the hearing as wel l as the

other evidence referred to above, it is

ORDERED:

1. That Petit ioner, Stephanie/Steven Hardee be awarded TEMPORARY CUSTODY of

Child pending fur ther order of the Court;

2. That Child not be removed f rom the Commonweal th of Massachusetts w i thou t

fur ther order of the Court; and

3. That this mat ter be, and hereby is scheduled FOR TRIAL TO DETERMINE THE ISSUE

OF PERMANENT CUSTODY ON TUESDAY, AUGUST 12, 2014 AT 10:00 A M in Court room 6,

Cambridge, Massachusetts at which t ime the parties are ORDERED to appear, give test imony, and

provide such evidence on the issues relating to the Custody of the Child.

SO ORDERED this 1 7 t h day of January, 2014.

Alyssa Erspamer, Justice of the Probate Court

4 4 M B A 2 0 1 5 H I G H S C H O O L M O C K T R I A L P R O G R A M

Exhibit 1

Massachusetts Criminal Justice In fo rmat ion System

1-3006

6/7/2012 Court: Worcester Dist. Court Status: Closed

Offense: Assault & Battery Dang. Weapon/Bat

Disposition: Guilty Plea; (6 months HOC susp. to 12/7/12, anger mgt) v

5/25/2006: Court: Worcester Dist. Court Status: Closed

Offense: Dom Violence (G.L. C.209A)

Disposition: No action taken (6 months under advisement)

8/5/1998 Court: Worcester Dist. Court Status: Closed

Offense: Assault & Battery Dang.Weapon/Bat, (Count 1)

amended to assault

Disposition: Restitution (R. Denitto, Owner, Denitto Big & Tall Mens

Department Store), $1,000 fine

8/5/1998: Court: Worcester Dist. Court Status: Closed

Offense: Breaking and Entering w/ ln tent to Commit Felony (Count 2)

Disposition: Guilty Plea (6 months Committed HOC)

7/5/1993 Court: Whitecastle Dist. Ct. Status: Dismissed

Offense: Destruction of property (Count 1)

Disposition: Restitution (Pollocks Bar & Grille)

7/5/1993 Court: Whitecastle Dist. Ct. Status: Closed

Offense: Disturbing the Peace. (Count 2)

Disposition: Guilty Plea; Committed 60 Days HOC Concurrent w/Ct.3

7/5/1993 Court: Whitecastle Dist. Ct. Status: PV/Closed

Offense: Probation Violation (Count 3)

Disposition: 60 days Committed House of Correction.

H T T P : / / M O C K T R I A L . M A S S B A R . O R G

E X H I B I T 1 (cont.)

Name: Kumar, Harry N.

DOB: 5/25/74

Social Security No.: 0045-0038-3006

Page -2- of -2-

12/26/1992 Court: Boston Municipal Ct.

Offense: Disturbing the Peace

Disposition: Probation until 12/26/1994

12/26/1992 Court: Boston Municipal Ct.

Offense: Assault w/DW (tire iron)

Disposition: Suspended Sentence until 12/26/1994.

12/26/1992 Court: Boston Municipal Ct.

Offense: Possession Dangerous Weapon (tire Iron)

Disposition: Suspended Sentence until 12/26/1994.

Status: Closed

(Count 1)

Status: Closed

(Count 2)

Status: Closed

(Count 3)

5/20/1991 Court: Cambridge Dist. Ct. Status: Closed

Offense: Juvenile/Disturbing the Peace (Count 1)

Disposition: Fine $65.00

5/20/1991 Court: Cambridge Dist. Ct Status: Dismissed

Offense: Juvenile/Possess Alcohol (Count 2)

Disposition: Dismissed

End of report

M B A 2 0 1 5 H I G H S C H O O L M O C K T R I A L P R O G R A M

A F F I D A V I T OF M A R T H A / M A R K H O C K B I R D

1. M y name is Martha/Mark Hockbird. I am 21 years old and live at 18 Gazitster Way in Martins Land­ing, Massachusetts, with my grandmother/grandfather. I was born and raised in Peabody, Massachusetts and attended Sherman Academy, a great private school on the north shore of Massachusetts. When it was time for college, my parents decided to move to London for my mom's job. M y grandmother/grandfather,

Stephanie/Steven Hardee, whom I was always close to, insisted that I stay with her/him so I could attend Boston University, my college of choice. I have lived with her/him now for three years and i t has been

great. I don't know what wi l l happen i f my grandmother/grandfather goes to jail.

2. M y grandmother/grandfather has been good to me even though she/he has been through so much. Her/

his spouse died from cancer right around the time I moved in. M y grandmother/grandfather took care of her/his spouse in such an unselfish and loving manner. Seeing how they cared for each other really

imparted some life lessons to me. M y own parents were never the touchy-feely types, so I never witnessed that kind of love, affection, dedication, and loyalty that I understand one should have in a marriage. M y grandmother/grandfather is truly my role model.

3. In June of 2013, my grandmother/grandfather unselfishly allowed my cousin Hanna/Hans to move in

with us. I have known Hanna/Hans since her/his birth and we saw each other at most holidays, fam­ily birthdays, and funerals. Hanna/Hans is great kid but has been the victim of a dysfunctional father for years. Her/his poor mom died of cancer a few years ago, but her/his dad, whom I am sorry is dead,

was kind of a rotten parent. He always had a short fuse and seemed to criticize Hanna/Hans a lot. It just seemed like no matter what Hanna/Hans did, i t was never good enough for Uncle Harry.

4. Things were going well wi th me and my grandmother/grandfather, and although I had to share my grand­

mother/grandfather, I did not resent Hanna/Hans coming to live with us. I kind of liked having my cousin around. We played X-box together, practiced softball, and talked about life. I really felt bad for Hanna/ Hans, because with her/his mother gone, her/his father was all she/he had. Hanna/Hans told me that her/

his dad always punished her/him when he was angry, but that she/he was used to her/his dad's outbursts. I had promised to keep that bit of information confidential. She/he said more than once, "Dad may be a jerk, but he's really okay, and besides, he's all I've got." I kind of understood. That Uncle Harry was a

maniac, but he was still her/his dad.

5. After Hanna/Hans came to live with us, I still caught her/him talking to and texting with her/his dad fairly often. Sometimes, Hanna/Hans snuck out after Grandmother/Grandfather went to bed, I am pretty sure

to meet up with Uncle Harry. I tried to stay out of it because I was pretty sure that they were not supposed to be talking, but who could blame Hanna/Hans for wanting to stay in contact with her/his own father?

I heard a lot of stuff over the years about Uncle Harry hitting his wife and Hanna/Hans, but I never actu­ally saw any of it. What I saw between Hanna/Hans and Uncle Harry was more like mental abuse; Uncle

Harry was always criticizing and belittling Hanna/Hans. I know that there was no love lost between Uncle Harry and Grandmother/Grandfather. I had recently told Grandmother/Grandfather about how Uncle

Harry hit Hanna/Hans when he was mad, but I cannot really tell you that Hanna/Hans ever came right out and said those exact words. I think Grandmother/Grandfather already knew that Hanna/Hans was getting hit, because when I said that she/he was, Grandmother/Grandfather said that she/he was going to

take care of that problem.

6. I was i n the house on August 2, 2014 when my Grandmother/Grandfather shot Uncle Harry. I t all started

when Uncle Harry called Hanna/Hans and they made some plans to meet. I first thought that they were supposed to meet after my grandmother/grandfather went to bed, like they always did, but Hanna/Hans

said that Uncle Harry wanted to talk about the custody issues. I told Hanna/Hans that she/he better tell

H T T P : / / M O C K T R l A L . M A S S B A R . O R G

Grandmother/Grandfather that Uncle Harry was coming. When the doorbell rang, I was in the living

room on the loveseat watching television. I got up to answer the door. When I asked who was there, Uncle

Harry said it was him. M y grandmother/grandfather yelled, "Don't let him in!" but it was too late. I had

barely opened the door and Uncle Harry just pushed his way through.

7. Immediately, my grandmother/grandfather got up and started screaming, "What are you doing here?" A t

that point, Hanna/Hans came downstairs with her/his softball stuff and a backpack. When my grand­

mother/grandfather saw Hanna/Hans, Grandmother/Grandfather said something like, "Where do you

think you are going? Get back into your room." Hanna/Hans just stood there for a moment, like she/he

didn't know what to do. Grandmother/Grandfather also asked me to go upstairs with Hanna/Hans, so I

did.

8. From upstairs we could hear Grandmother/Grandfather and Uncle Harry arguing about the custody order.

There was a lot of yelling downstairs, but all I could make out was Grandmother/Grandfather saying that

Uncle Harry would never get custody of Hanna/Hans and would never see Hanna/Hans again.

9. Then I heard something crashing downstairs and Hanna/ Hans and I headed back downstairs, where Uncle

Harry and Grandmother/Grandfather were still arguing. I saw the broken vase. I instinctively got between

Grandmother/Grandfather and Uncle Harry and asked them both to calm down. I saw that Uncle Harry

had a crazed look in his eyes. He yelled at me to "mind my own business," then yelled at Hanna/Hans to

get her/his stuff and "say goodbye" to Grandmother/Grandfather. Grandmother/Grandfather's face was

beet red. She/he told Hanna/Hans to go back to her/his room, but Uncle Harry, who had a bat in his hand,

used the bat to shove Hanna/Hans to the foyer, and threatened that i f she/he didn't get out to his truck,

she/he'd be sorry.

10. Things just got worse when Grandmother/Grandfather pulled a gun out of her/his robe pocket and yelled

at Uncle Harry to get out of the house. I backed out of the way toward the television. Uncle Harry still

had the bat raised, and within seconds, Grandmother/Grandfather shot Uncle Harry three times in quick

succession. I saw Uncle Harry, with the bat still in his hand, collapse onto the floor. It all happened really

fast.

11. While all this was happening, poor Hanna/Hans was freaking out, screaming at Grandmother/Grandfa¬

ther to stop, but really, Grandmother/Grandfather was very frightened by Uncle Harry and was just trying

to protect us from this maniac. I tried to comfort Hanna/Hans while Grandmother/Grandfather called the

police, but she/he was just hysterical and screaming, "She/he killed him. I can't believe Grandma/Grandpa

just killed him."

12. I really feel bad for Hanna/Hans. She/he is an orphan now, and of course was taken away from the 18

Gazitster Way home. I am not actually sure where she/he is living now because she/he refuses to talk to

me. She/he thinks that I have taken "Grandmother/Grandfather's side," which is not true. I am just telling-

it like I saw i t . I think that Grandmother/Grandfather was scared to death that Uncle Harry was going to

beat us to death. Grandmother/Grandfather was only trying to protect us and herself/himself from Uncle

Harry.

SIGNED U N D E R T H E PAINS A N D PENALTIES OF PERJURY THIS 18* DAY OF SEPTEMBER, 2014.

Martha/Mark Hockbird

48 M B A 2 0 1 5 H I G H S C H O O L M O C K T R I A L P R O G R A M

A F F I D A V I T OF M O R G A N D E X T E R K A Z A R O S I A N

1. M y name is Morgan Dexter Kazarosian. I reside at 265 Amos Avenue, Oceanside, Massachusetts with my spouse and nine cats. I am 58 years old. I am employed by the forensic and firearm consulting firm

of Kimber & Colt, which provides consulting services in the fields of firearms, forensics, shooting scene reconstruction, crime scene reconstruction, blood spatter analysis, and ballistics.

2. M y credentials are completely and accurately described in my curriculum vitae, attached hereto as Exhibit A. I am an award-winning forensic expert and consultant with over 30 years of experience in firearms, shooting scene reconstruction, gunshot distance determinations, blood spatter analysis, and gunshot resi­

dues. I have a Bachelor of Arts in physics and law enforcement, a Master's in Criminal Justice, and a Master of Science in Forensics. I have received training from the Smith and Wesson Academy, the Beretta Pistol Academy, and the FBI Academy. I have undergone extensive training and gained experience in trajectory

reconstruction, gunshot residue analysis, gunshot distance determinations, shooting scene reconstruction, and blood spatter pattern analysis.

3. Prior to joining the firm of Kimber & Colt, I was employed for 15 years as a forensic firearm specialist for

the Massachusetts State Police, Ballistics Section. I worked on hundreds of cases involving organized crime shootings, homicides, home invasion shootings, and drive-by shootings. In private practice, my clients have included Federal and State law enforcement agencies, district attorneys, civil and criminal lawyers, and private individuals, including police officers involved in shootings.

4. I am currently the President of the National Forensic Association. I am the former President of the Ameri­can Crime Scene Reconstruction Association. I am a long-term member of the American Academy of

Forensic Science and the American Society of Criminology. I have received the "Expert of Experts Award" from the American College of Forensic Experts.

5. I have published a number of articles on how to process and analyze physical evidence at crime scenes. I have received special recognition for two publications, one called "The Right to Defend One's Home by

Force," and the other titled "An Armed Society is a Polite Society."

6. Approximately one month after the shooting, I was retained by the attorneys representing the defendant,

Stephanie/ Steven Hardee, to analyze the forensic evidence in this case and render an opinion as to whether the forensic evidence supports Hardee's claim of self-defense.

7. In connection with my investigation, I conducted an inspection of Hardee's home, where the incident occurred. I reviewed Sgt. Bush's diagram of the living room, the photographs of the crime scene, and

the photographs of the gunshot wounds taken by the Medical Examiner. I have examined the decedent's blood-stained long-sleeve T-shirt. I have read the Medical Examiner's affidavit and Sgt. Bush's affidavit, but have not reviewed any other affidavits in this case. I did not examine the body of the deceased, Harry

Kumar, or interview any witnesses other than Hardee.

8. Blood-spatter pattern analysis plays an important role i n the reconstruction of many crime scenes and

gunshot reconstruction. The various types of blood stains and patterns illustrate where blood was expelled from the body, the order in which the wounds were inflicted, the type of weapon used, whether the victim was in motion when the injury was inflicted, whether the victim was moving towards the shooter, the dis­tance between the shooter and the victim, the direction i n which a bullet was traveling, and the angle at

which it struck the victim.

9. According to Hardee and the police officer's affidavit, three shots were fired. One shot missed Kumar. The bullet was lodged in the wall behind where Kumar was standing. The bullet was recovered and I was able to

H T T P : / / M O C K T R I A L . M A S S B A R . O R G 4 9

A F F I D A V I T O F M O R G A N D E X T E R K A Z A R O S I A N (cont.)

examine it. Another bullet struck Kumar in the left arm. This bullet pierced Kumar's left arm and exited his

arm (what we call a "through and through shot"). The bullet had enough force to travel through the arm

and break the window behind Kumar, and it was never located. The third and final bullet struck Kumar in

the chest. This obviously was the fatal wound. This bullet remained lodged in his body and it was recovered

during the autopsy I was also able to examine this bullet.

10. I visited Hardee's home shortly after I was retained. The first thing I did was examine the bullet hole in

the wall which was 69 inches from the floor. I next attempted to determine the location of the blood spat­

ter. A l l of the visible blood had been removed from the scene, so I attempted to reconstruct the spatter

patterns based on the photographs taken by the investigating officer. The photographs were insufficient,

however—many were taken at the wrong angle, or at too far a distance. They were obviously the work of

someone who was new to this process.

11. However, I was able to identify and measure the blood spatter patterns on the walls and floor myself by us­

ing Luminol. Luminol is a chemical that reacts with the iron oxides present in blood, causing the Luminol

to glow. This effect is enhanced with the use of a black light, which I also used. Obviously, I wasn't able to

use Luminol on the glass shards from the broken window, which had become contaminated when they fell

to the ground outside the house.

12. The Medical Examiner's affidavit describes in detail the two gunshot wounds sustained by Kumar, one to

the left arm, and a second to the chest. The Medical Examiner characterized the wound to the left arm as

being a "defensive" wound. The ME's opinion is not valid for three reasons.

13. First, there was no blood spatter on the floor between the victim and the wall; all blood stains on the wall were therefore attributable to blood from an exit wound. According to Hardee, the deceased was standing

approximately five feet from the wall when the first shot was fired. The blood spatter on the wall behind Kumar ranged from the lowest droplet I could find—at 28 inches f rom the floor—to the highest spatter at 54 inches from the floor, and spanned a distance of 26 inches measuring from left to right. The circle

was centered around a point two inches into the left edge of the window (where the broken pane would have been), and 44 inches above the floor. As I stated earlier, I was unable to view any blood spatter on the

window itself, but I reconstructed the approximate circle using blood stains on the wall along the window

and under the window sill, which was 32 inches off the floor. The window was 60 inches wide.

14. The M E affidavit indicates that Kumar was 71 inches tall. Therefore, i f Kumar's left hand had been raised,

the blood spatter would be expected to be from a range of 68 to 74 inches from the floor. The position of

the spatter behind Kumar suggests that his left hand was at or near his side when the shot was fired, not

above his head.

15. Second, Hardee was using National brand, fully-jacketed, high-velocity .357 sig ammunition. These

rounds are designed for maximum velocity and penetration. The round passed between Kumar's radius

and ulna bones—though the fleshy part of the arm. The ulna (or "elbow bone") and the radius (or "radial

bone") are two long bones in the forearm, which are parallel to each other with a space between them.

Because of the shape of the bullet and the speed it was traveling, the entry and exit wounds are remarkably

similar. Therefore, i t is my opinion that i t cannot be conclusively established which is the entry wound and

which is the exit wound.

16. Finally, as the M E noted, Kumar was taking blood thinners. As a blood spatter expert, I have been given specialized training on the behavior of blood spatter under a variety of conditions, including extremes

5 0 M B A 2 0 1 5 H I G H S C H O O L M O C K T R I A L P R O G R A M

A F F I D A V I T O F M O R G A N D E X T E R KAZAROSIAN (cont.)

of temperature, and also how blood behaves when the victim is taking different medications, including

blood thinners. When a person is taking blood thinners, the blood becomes less viscous. Normally, when the heart stops at death, blood immediately stops circulating. I t is possible for blood to ooze out of the body due to gravity before it begins to coagulate. However, when a person is taking blood thinners, the

less viscous blood continues to exit the body prolifically, even after death. Neither the police nor the M E would know this unless they had studied this particular phenomenon. Therefore, the blood stains on the left sleeve would be consistent with Kumar's left arm flailing as he fell to the ground after sustaining the

chest wound, and the blood would continue to flow from the arm wound even post mortem. Based on the position of the arm I observed from the photographs of the scene, blood running from the wound toward the elbow is not determinative of Kumar's arm position at the time he was shot.

17. As part of my investigation, I also examined the decedent's shirt for the presence of gunpowder residue.

There was gunpowder residue on the front of the shirt, but none on the left sleeve. When a gun is fired, i t discharges gasses directly from the muzzle into the wound and onto the skin and clothing. "Range of fire" is an estimate of how close the muzzle of the gun was to the victim's body or clothing at the time of

discharge. This is determined by the presence or absence of gunpowder residue that exits the muzzle of the gun along with the bullet at the time the gun is fired. I f the gun muzzle is in close proximity to the skin or clothing at the time of discharge—-within four feet or so—there wil l typically be traces of gunpowder.

18. To accurately determine the range of fire for the wound to the decedent's chest, I test-fired Hardee's weapon at various distances with the same type of ammunition to create a pattern of gunpowder residue

matching that found on the decedent's shirt. This technique is known as "muzzle-to-garment" testing.

19. Based upon my muzzle-to-garment testing of the decedent's weapon, and the amount of residue on the shirt, I concluded that, at the time Hardee's gun was discharged striking Kumar's chest, the muzzle of the gun was approximately 36 inches from Kumar. Because there was no gunpowder residue on the sleeve at all, I knew that Kumar had been at least four feet away from Hardee when that shot was fired.

20. During my interview with Hardee, she/he told me that she/he was very nervous during the altercation. Although she/he had a lot of experience shooting the pistol, i t was always during controlled conditions at

the range where she/he always wore hearing and eye protection. In my experience, it is common for shoot­ers to be surprised at the differences between firing a gun at a range and "in the field." Shooters are sur­prised at how much louder the shots sound without hearing protection. Based on Hardee's statement that

she/he was nervous, and my experience with first-time shooters outside of the range, I concluded that the first shot fired by Hardee was the shot that missed Kumar and lodged in the wall. Since i t is not disputed that the chest wound was the fatal wound, and based on the muzzle-to-garment testing, I concluded that

the second shot fired by Hardee was the shot that hit Kumar in the arm, and the third shot was to the chest. Finally, based on Hardee's self-report that she/he did not move or crouch while firing his weapon,

and because the gunshot residue establishes that the third shot was closer than the second shot, and based on the eccentric abrasion of the chest wound, I concluded that Kumar was the aggressor, and that Hardee fired all three shots in self-defense.

SIGNED U N D E R T H E PAINS A N D PENALTIES OF PERJURY THIS 15 A DAY OF JANUARY, 2015.

Morgan Dexter Kazarosian

H T T P : / / M O C K T R I A L . M A S S B A R . O R G 5 1

Exhibit A

MORGAN DEXTER KAZAROSIAN Curriculum Vitae

Experience

1990 - Present: Partner, Kimber & Colt. Consulting firm specializing in firearms testing, accidents, investigations and failures and wound pattern testing. Because of our vast law enforcement experience in firearms (use, repair/disassembly, tactics, safety) and investigations, we can provide your company with an analysis or consultation of a firearm failure or investigation involving a firearm (accidental discharge, suicide, homicide). We employ persons who are current manufacturer-certified armorers in different weapon systems.

1975 - 1990: Massachusetts State Police. Served as a trooper, sergeant, lieutenant and finally captain. Investigated all crimes involving firearms, including homicides, gang- related shootings, drive-by shootings, and snipers. Trained at the Massachusetts State Police Academy in Agawam, Massachusetts in ballistics and firearms crime investigation and the FBI Academy in Quantico, Virginia.

Education

M.S. cum laude in Forensic Science, McNally University (1975).

B.S. in Criminal Justice, Hamilton College (1972).

Certifications

Board Certified in Forensic Traumatology, NCCM

Diplomate, American Academy of Experts in Traumatic Stress

Law Enforcement Instructor- Use of Force

Publications

Top Ten Mistakes Made by Law Enforcement Officers in ballistics analysis. JOURNAL OF

FORENSIC SCIENCES, Kazorian, M. and LaPierre, W.; Vol. 59 Issue 4, July 2013.

"Use of Force- How the Courts Have Restricted Second Amendment Rights of Law Abiding Citizens," American Rifleman Magazine, June 2002.

The Right to Defend One's Home by Force. JOURNAL OF FIREARMS AND PUBLIC POLICY, Volume 20, Issue 3, September 2001.

"An Armed Society is a Polite Society," Women and Guns Magazine, Issue 32, August, 1999.

Proper Use of Forensic Analysis in Self-Defense Cases, MASS. JOURNAL OF CRIMINAL DEFENSE

LAW, Spring 2001.

Use of Forensic Analysis to Establish Self-Defense After Crime Scene Contamination, Kazorian, M., McNally Universtiy, 1974 (Master's Thesis).

MBA 2015 HIGH SCHOOL MOCK TRIAL PROGRAM

PART VII: Pertinent Information,

Statutory Case Law and Evidentiary Standards

H T T P : / / M O C K T R I A L . M A S S B A R . O R G 53

I. STATEMENT OF THE CASE I n this case, the defendant has been charged criminally with first degree murder by deliberate premeditation

with malice aforethought, in violation of Massachusetts General Laws, Chapter 265, Section 1. The defendant does not deny that he killed the decedent, but claims that the killing was justified on the grounds of self-defense and/or defense of another. The possible verdicts are: (1) Not Guilty; (2) Guilty of Murder in the First Degree; (3)

Guilty of Murder in the Second Degree; or (4) Guilty of Voluntary Manslaughter.

The Commonwealth of Massachusetts bears the burden of proving each element of the charge beyond a reason­

able doubt. The defendant has been arraigned and all pre-trial issues have been resolved. The matter is scheduled

for trial before a judge today.

IL BURDEN OF PROOF " In a criminal case, the commonwealth must prove a defendant's guilt beyond a reasonable doubt."

Commonwealth v. Pinckney, 419 Mass. 341 (1995).

"[Wjhat is reasonable doubt? I t is a term often used, probably pretty well understood, but not easily defined.

It is not mere possible doubt; because every thing relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. I t is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an

abiding conviction, to a moral certainty, of the truth of the charge. The burden of proof is upon the prosecutor. A l l the presumptions of law independent of evidence are in favor of innocence; and every person is presumed to be innocent until he is proved guilty. I f upon such proof there is reasonable doubt remaining, the accused is entitled to the benefit of i t by an acquittal. For it is not sufficient to establish a probability, though a strong one arising

from the doctrine of chances, that the fact charged is more likely to be true than the contrary; but the evidence must establish the truth of the fact to a reasonable and moral certainty; a certainty that convinces and directs the understanding, and satisfies the reason and judgment, of those who are bound to act conscientiously upon it. This we take to be proof beyond reasonable doubt; because i f the law, which mostly depends upon considerations of a moral nature, should go further than this, and require absolute certainty, it would exclude circumstantial evidence

altogether."

Commonwealth v. Webster, 59 Mass. 295 (1850).

III. MURDER "Murder is an unlawful kill ing with malice. A killing done in self-defense [or defense of another], because justi­

fied, is not unlawful. Malice is any unexcused intent to k i l l , to do grievous bodily harm, or to do an act creating

a plain and strong like-ilihood that death wi l l follow. Although unlawful, an intentional killing may be voluntary

manslaughter, and not murder, i f malice is mitigated by adequate provocation. Reasonable provocation negates

malice in any unlawful killing."

Commonwealth v. Toon, 55 Mass. App. Ct. 642 (2002).

"Murder committed with deliberately premeditated malice aforethought, or wi th extreme atrocity or cruelty, or

in the commission or attempted commission of a crime punishable with death or imprisonment for life, is murder

in the first degree. Murder which does not appear to be in the first degree is murder in the second degree."

M.G.L. c. 265, § 1.

"In order to prove murder in the first degree by deliberate premeditation, the commonwealth must establish

beyond a reasonable doubt that the defendant reflected on his resolution to k i l l , and that his decision to k i l l was

the product of cool reflection for some short period of time."

Commonwealth v. Stewart, 460 Mass. 817 (2011).

54 M B A 2015 H I G H S C H O O L M O C K T R I A L P R O G R A M

"[W]here the purpose is resolved upon and the mind determined to do i t before the blow is struck, then i t is,

within the meaning of the law, deliberately pre meditated malice aforethought."

Commonwealth v. Tucker, 189 Mass. 457 (1905).

"[N]o particular period of reflection is required, and . . . a plan to murder may be formed in seconds."

Commonwealth v. Coleman, 434 Mass. 165 (2001).

IV. VOLUNTARY MANSLAUGHTER "Voluntary manslaughter is unlawful homicide arising not from malice, but from the frailty of human nature,

as in a case of sudden passion induced by reasonable provocation, sudden combat, or excessive force in self-defense."

Commonwealth v. Carrion, 407 Mass. 263 (1990).

"Reasonable provocation includes something that would produce in an ordinary person such a state of passion,

anger, fear, fright, or nervous excitement as would eclipse his capacity for reflection or restraint. Sudden combat is among those circumstances constituting reasonable provocation, and has been described as "when two meet, not intending to quarrel, and angry words suddenly arise, and a conflict springs up in which blows are given on both

sides, without much regard to who is the assailant..." However, the exchange of blows does not mean that a k i l l ­ing should be mitigated to voluntary manslaughter by reason of sudden combat as a matter of law. The question necessarily becomes whether this exchange of blows satisfies the standard of reasonable provocation — i.e., "would have been likely to produce in an ordinary person such a state of passion, anger, fear, fright, or nervous excitement

as would eclipse his capacity for reflection or restraint, and that what happened actually did produce such a state

of mind in the defendant."

Commonwealth v. Walczak, 463 Mass. 808 (2012) (Lenk, J. concurring).

"[W]here the evidence raises the possibility that the defendant may have acted on reasonable provocation, the

Commonwealth must prove, and the [factfinder] must find, beyond a reasonable doubt that the defendant did not

act on reasonable provocation [in order for the defendant to be found guilty of murder]."

Commonwealth v. Lapage, 435 Mass. 480 (2001).

"One of the elements of self-defense is the reasonableness of the force used to defend oneself, and i f the Com­monwealth fails to disprove all the elements of self-defense except the element of reasonableness of the force used, i.e., that the defendant used excessive force in self-defense, then self-defense does not lie, but excessive force in

self-defense w i l l mitigate murder to voluntary manslaughter."

Commonwealth v. Silva, 455 Mass. 503 (2009).

V. SELF-DEFENSE AND DEFENSE OF ANOTHER

"Where there is evidence of self-defense [or defense of another], the burden is on the Commonwealth to prove

beyond a reasonable doubt that the defendant did not act in self-defense [or defense of another]."

Commonwealth v. Harris, 464 Mass. 425 (2013).

"To establish that the defendant did not act in proper self-defense [in using deadly force], the Commonwealth must prove at least one of the following propositions beyond a reasonable doubt: (1) the defendant did not have a

reasonable ground to believe, [or] did not believe, that he was in imminent danger of death or serious bodily harm, from which he could save himself only by using deadly force; or (2) the defendant had not availed himself of all

proper means to avoid physical combat before resorting to the use of deadly force; or (3) the defendant used more

force than was reasonably necessary in all the circumstances of the case."

Commonwealth v. Glacken, 451 Mass. 163 (2008).

H T T P : / / M O C K T R I A L . M A S S B A R . O R G 55

"An actor is justified in using force against another to protect a third person [i.e., in defense of another] when:

(a) a reasonable person in the actor's position would believe his intervention to be necessary for the protection of

the third person; and (b) in the circumstances as that reasonable person would believe them to be, the third person

would be justified in using such force to protect himself."

Commonwealth v. Martin, 369 Mass. 640 (1976).

"Under clause (b) of the Martin formula, the circumstances must be viewed from the perspective of the inter­

vening defendant, not of the third party. Thus, whether the third party was, in retrospect, actually entitled to use

self-defense is not a consideration . . . [T]he intervening defendant need only reasonably believe that the third party

is being unlawfully attacked [in a manner that justified use of deadly force]; the question whether that belief was

correct in retrospect does not enter the analysis."

Commonwealth v. Young, 461 Mass. 198 (2012).

"[T]he proper exercise of self-defense means that a person in the defendant's circumstances would reasonably believe that he was about to be attacked and that he was in immediate danger of being killed or seriously injured,

and that there was no other way to avoid the attack. A person using a dangerous weapon (or deadly force) in self-defense must also have actually believed that he was in imminent danger of serious harm or death. A person may not use force in self-defense until he has availed himself of all proper means to avoid physical combat, and must

use no more force than reasonably necessary in all the circumstances."

Commonwealth v, Santos, 454 Mass. 770 (2009).

"In passing upon the reasonableness of the force used by the defendant, again on the hypothesis that he was

acting in self-defence, the [factfinder] should consider evidence of the relative physical capabilities of the combat­

ants, the characteristics of the weapons used, and the availability of maneuver room in, or means of escape from,

the [] area."

Commonwealth v. Kendrick, 351 Mass. 203 (1966).

"The manner i n which deadly force is used, and the scope of the threat presented, are considerations for a [fact­

finder] when deciding whether excessive force was used."

Commonwealth v. Walker, 443 Mass. 213 (2005).

"Whether a defendant used all reasonable means of escape before acting in self-defense is a factual question dependent on a variety of circumstances, including the relative physical capabilities of the combatants, the weap­

ons used, the availability of maneuver room in, or means of escape from, the area, and the location of the assault."

Commonwealth v. Pike, 428 Mass. 393 (1998).

"[T]he defendant [must have] availed himself of all means, proper and reasonable i n the circumstances, of re­

treating from the conflict before resorting to the use of deadly force. This rule does not impose an absolute duty

to retreat regardless of personal safety considerations; an individual need not place himself in danger nor use every

means of escape short of death before resorting to self-defense. He must, however, use every reasonable avenue of

escape available to him."

Commonwealth v. Benoit, 452 Mass. 212 (2008).

"It is a settled rule of law that, in general, self-defense is unavailable to the person who initiates the fray, or to

a defendant who provokes or initiates an attack. This is so because someone who provokes or initiates an attack cannot be said to be taking advantage of every opportunity to avoid the combat . . . [Cjonduct involving only the

use of nonthreatening words wi l l not be sufficient to qualify a defendant as a first aggressor."

Commonwealth v. Harris, 464 Mass. 425 (2013).

56 M B A 2015 H I G H S C H O O L M O C K T R I A L P R O G R A M

VI. THE CASTLE DOCTRINE "In the prosecution of a person who is an occupant of a dwelling charged with killing or injuring one who was

unlawfully in said dwelling, it shall be a defense that the occupant was in his dwelling at the time of the offense

and that he acted in the reasonable belief that the person unlawfully in said dwelling was about to inflict great bodily injury or death upon said occupant or upon another person lawfully in said dwelling, and that said oc­cupant used reasonable means to defend himself or such other person lawfully in said dwelling. There shall be no duty on said occupant to retreat from such person unlawfully in said dwelling."

M.G.L. c. 278, § 8A.

"The enactment of M.G.L. c. 278, § 8A, modified the common law by justifying the use of deadly force by a person in his own home to respond to an assault threatening death or great bodily harm by someone unlawfully in the home, even though the person had a reasonable means of retreat or escape. It is generally for the jury to

determine whether the victim in a particular case was, in fact, unlawfully present in a dwelling, and the judge may instruct on the law of trespass to assist the jury in this determination.

Nothing i n M.G.L. c. 278, § 8A, however, eliminates the duty on the part of the occupant of the dwelling to

retreat from a confrontation with a person who is lawfully on the premises. The statute is not applicable, therefore, in circumstances where one is threatened or assaulted in one's home by another who is an invited guest, and thus

lawfully on the premises, even when that guest launches a life-threatening assault on the defendant.

The obvious purpose of the statute is to allow an occupant to defend against unlawful intruders and not to permit the use of deadly force against social guests whenever a verbal altercation threatens to escalate into a physi­cal confrontation. On the other hand, the plain language of the statute includes someone who is "unlawfully in said dwelling," and it is a familiar principle that a person who enters a dwelling lawfully, but refuses to leave when

ordered to do so, becomes a trespasser."

Commonwealth v. Peloquin, 437 Mass. 204 (2002).

VII. EVIDENCE OF VICTIM'S PRIOR CONDUCT "In this Commonwealth, where the evidence could raise a reasonable doubt as to whether the defendant acted

in self-defense in killing the victim, evidence of the victim's character as a powerful, dangerous, quarrelsome or

violent person, i f known to the defendant, may be admitted as tending to show the defendant's reasonable ap­prehension for his safety. A defendant may present evidence of the victim's reputation as a violent or quarrelsome person and of his knowledge of that reputation by his own testimony, by the testimony of others, or both ... I t has been our rule, however, that evidence of the victim's specific acts of violence against others, even i f known to the

defendant at the time of the killing, is inadmissible to prove either the victim's general reputation for violence or the defendant's concern for his safety.

The defendant makes a reasonable argument that, where evidence in a homicide case could raise a reasonable

doubt that a defendant acted in defense of himself, the defendant should be allowed to prove that at the time of the kil l ing he knew of specific violent acts recently committed by the victim. We join the weight of authority in

this country i n concluding, as a matter of common law principle, that a defendant in a homicide case may intro­duce evidence of recent, specific instances of the victim's violent conduct, known to the defendant at the time of

the homicide, to support his assertion that he acted justifiably in reasonable apprehension of bodily harm. The incidents must not be remote (a discretionary matter for the trial judge) and other competent evidence must raise

the question whether the defendant may have acted justifiably in his own defense.... It should be recognized that we are not considering here the admission of evidence of general reputation or of specific incidents of violence to show that the victim was, or was likely to have been, the aggressor.

Commonwealth v. Pontes, 396 Mass. 733 (1986).

H T T P : / / M O C K T R I A L . M A S S B A R . O R G 5 7

"In this appeal, [the defendant] argues that evidence of [the victim]'s violent reputation and past conduct, even though unknown to [the defendant] at the time of the killing, should have been admitted at her trial because it

was relevant to her claim that [the victim] was the "first aggressor" in the altercation that resulted in his death, and that she acted in self-defense. After surveying the state of the law in jurisdictions throughout the country, we are persuaded that evidence of a victim's prior violent conduct may be probative of whether the victim was the first

aggressor where a claim of self-defense has been asserted and the identity of the first aggressor is in dispute. Conse­quently, when such circumstances are present, we hold, as a matter of common-law principle, that trial judges have the discretion to admit in evidence specific incidents of violence that the victim is reasonably alleged to have ini t i ­

ated. While there is potential for confusion and prejudice inherent in the admission of this type of evidence, trial judges are well equipped to decide whether the probative value of the evidence proffered outweighs its prejudicial

effect in the context of the facts and issues presented in specific cases.

[Ajdmission of evidence showing the victim's prior violent acts on the first aggressor issue reflects the principle

that in criminal cases there is to be greater latitude in admitting exculpatory evidence than in determining whether

prejudicial potentialities in proof offered to show guilt should result in its exclusion. Where the victim's propensity for violence is in question . . . the danger of prejudice to the defendant lies in refusing to admit such evidence. Not­withstanding our usual hesitation to allow the admission of character evidence to prove conduct, we are persuaded

that some form of evidence tending to show the victim's violent character should be admissible for the limited

purpose of supporting the defendant's self-defense claim that the victim was the first aggressor.

Cowin, J. (dissenting). The court today holds that a "victim's prior violent conduct may be probative in deter­mining whether the victim was the first aggressor where a claim of self-defense has been asserted and the identity

of the first aggressor is in dispute." . . . Because I believe that past acts of violence by a victim, unknown to a defen­dant, do little to help a [factfinder] resolve the issue whether a defendant was the first aggressor and have no place

in our consideration of a defendant's guilt or innocence, I respectfully dissent.

It has long been the rule in the Commonwealth that evidence of a person's character is not admissible to prove

that that person acted in conformity with that character on a particular occasion. Consistent wi th this guiding principle, we allow [factfinders] to consider evidence of a victim's prior acts of violence or reputation for violence,

provided that the defendant knew about such acts or reputation at the time of the altercation. This "known" evi­dence bears directly on the controversy being tried — it is nonpropensity evidence that speaks to a defendant's reasonable belief at the time of the alleged crime. Today's decision represents a fundamental break from this limita­

tion on character evidence by allowing a defendant to present evidence that has no direct connection to the case at hand and is relevant to nothing but a victim's general tendency toward violence. While the court largely avoids

the use of the term "character evidence," the evidence to be admitted after today is precisely that: evidence of a

person's prior acts used to show his or her propensity to commit such acts.

A guiding principle of our legal system is that we try cases and controversies, not people or their characters. Be­

cause we understand that good people sometimes do bad things, that bad people dp not always do bad things, and that circumstances greatly influence behavior, i t follows that, with certain well-defined exceptions, a person's prior actions, no matter how vile, should not be considered in judging their action at any other particular time. Precisely

because a person's prior actions can be misleading and inaccurate predictors of future behavior, we have long held that i t is unfair to judge a person based on past transgressions. Human action being infinitely varied, there is no

adequate probative connection between the two. For these reasons, I have considerable misgivings about adopting the view that character evidence is adequately relevant where such a view seems inconsistent wi th our long-held

judicial philosophy against condemning people on the basis of past behavior. I believe we should adhere faithfully to this basic philosophy and remain committed to considering the crime charged and the facts of the case at hand,

not the character or prior acts of the victim or the defendant.

Commonwealth v. Adjutant, 443 Mass. 649 (2005).

5 8 M B A 2 0 1 5 H I G H S C H O O L M O C K T R I A L P R O G R A M

APPENDIX A: Guidelines for Attorneys

The preparation phase of the tournament is intended to be a cooperative effort of students, teacher-coach and attorney-advisor. For such cooperation to occur, it is important for attorneys to avoid even the appearance of talk­

ing down to students or stifling discussion through the use of complicated legalese. Experience has shown that students and teachers alike develop a better understanding of the case and learn more

from the experience i f the attorney-advisors do not dominate the preparation phase of the tournament.

Attorneys and witnesses may neither contradict the "Stipulation of the Parties" or "Witness Affidavit" sheets for

the case (see Part V, Trial Script), nor introduce any evidence that is not included in this packet of materials. Al l witnesses (three for each side) must take the stand. The rules of evidence governing trial practice have been modified and simplified for the purposes of this mock

trial tournament. (See Part TV of materials packet.) Other more complex rules are not to be raised during the trial

enactment.

The first session with a student team should be devoted to the following tasks:

• Answering the questions that students have concerning general trial practices;

• Explaining the reasons for the sequence of events/procedures found in a trial;

• Listening to the students' approach to the assigned case;

• Discussing general strategies as well as raising key questions regarding the enactment;

• Discussing the realities of the courtroom situation, that is, that each judge wi l l conduct the trial differently.

Students and teacher-coaches should be prepared to accept a judge's ruling, whatever it is, wi th grace and

courtesy;

• 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 a constructive observer and critical teacher—listening, suggesting and demonstrating to the team;

• The decision of the judge in any mock trial enactment determines which team advances in the single elimi­nation tournament. This decision is to be based on the quality of the students' performances. Judges wi l l be

instructed to award points based on total performance and to give no consideration to age or grade level (see

the Performance Rating sheet); and

• Years of tournament experience have shown that, except for opening the court, general procedural instruc­

tions, and rulings on objections, etc., i t is best to keep judicial involvement/participation to a minimum

during the trial enactment.

H T T P : / / M O C K T R I A L . M A S S B A R . O R G 5 9

APPENDIX B: Guidelines for Tournament Judges

I t is essential that the presiding justice carefully rate

each team on a clean Performance Rating sheet, since

the best numerical score determines the prevailing team.

To avoid confusion, i t is strongly recommended that

judges award a score to each student immediately after

her/his performance, rather than waiting until the trial

is concluded. The script for the trial enactment is designed for

completion within a two-hour time limit. The M B A has reserved a sufficient amount of time for the teams to be able to complete the trials. Teams that do not moni­tor their time and run longer than the two-hour allot­ted time wil l bear sole responsibility for the inability to complete the trial. An incomplete trial wil l not be rescheduled. I t wi l l be counted as a loss to both teams. Due to our agreement with the courts, we ask that you help move the trials along. We encourage you to give the students a "post-competition pep-talk," but please

keep your eye on the clock.

• Attorneys have been asked to keep their presenta­tions within the following guidelines:

Opening statements 5 minutes each

Direct examinations 7 minutes/witness

Cross-examination 5 minutes/witness

Redirect/

re-cross-examinations 3 questions/witness

Closing statements 7 minutes each

• Each team wi l l be responsible for monitoring its own and the other teams time. Objections may be raised i f time limits are exceeded. Ultimately, the judge is

responsible for moving the trial along. In keeping with the atmosphere and decorum of a courtroom

trial, timekeepers, stopwatches, and buzzers are not permitted during the enactment of the trial.

• The purpose of the tournament is to hear both sides;

therefore, motions as to jurisdiction, to split the

trial, or to dismiss for failure to establish a prima

facie case, etc., should be denied. A foundation must be laid for admissibility of expert witness testimony,

but no voir dire shall be allowed.

• There shall be no sequestration of witnesses at any time during the trial. I f such a motion is made, the

motion must be denied.

• The rules of evidence governing trial practice have

been modified and simplified for the purpose of this

Mock Trial Program. (See Part V, Simplified Rules of

Evidence.) They are to govern the proceedings. Other

more complex rules are not to be raised during the

trial enactment.

• Attorneys and witnesses may neither contradict the "Stipulation of the Parties" or "Witness Affidavit"

sheets for the case (see Part VI, Trial Script), nor in­

troduce any evidence that is not included in this packet of materials. (See Part V, Simplified Rules of

Evidence, Rules 701 and 702.)

• An attorney for a team presenting the opening state­ment may not make the closing arguments in the

case, and no attorney shall conduct more than two examinations. Tournament procedures permit only one opening and closing statement for each party.

(See Part II, section 5, Attorney Performance.)

• Under contest rules, student-attorneys are allowed to use notes in presenting their cases; witnesses may

not use notes in testifying. However, undue reliance

on notes should be reflected in the score. (Refer to

Appendix C, Matrix on fudging Criteria.)

• Witness statements may be used by attorneys to "re­

fresh" a witness' memory and/or impeach the wit­

ness' testimony in court.

• Students' performances also should be evaluated on their use of objections. Refer to Appendix C, Matrix

on Judging Criteria for more information.

• Points should be awarded based on total perfor­

mance. No consideration should be given to age or

grade level.

• No fractions of points are allowed (i.e., 7-5). Scor­ing is on a 10-point scale.

• The judge should give a verbal warning without

penalty points to students whose jackets are not but­toned, whose ties are not tied properly or who are otherwise not appropriately attired. I f the matter is not remedied, there may be further sanction involv­

ing the deduction of penalty points.

6 0 M B A 2 0 1 5 H I G H S C H O O L M O C K T R I A L P R O G R A M

• Coaches have been instructed that they may raise objections, but ONLY in the event of improper be­

havior on the part of opposing teachers or specta­tors. Coaches must raise objections immediately at the time of the infraction. This rule does not allow

coaches to make objections on behalf of their stu­dent-attorneys regarding the substance of the trial. I t applies only to gross rule violations (such as coach­

ing or signaling time) that occur during the course of the trial.

• A t the sole discretion of the presiding judge, B O ­NUS POINTS (a total of up to five points) may be awarded to a team's total score to recognize superior

team performance, exceptionally thorough prepara­tion, a particularly professional and mature level of conduct, an especially sophisticated legal argument,

well-made objections which are sustained and an outstanding ability to think and respond extempo­raneously.

• A t the sole discretion of the presiding judge, PEN­A L T Y POINTS (a total of up to 5 points) may be deducted from a team's total score for unsportsman­like behavior. Such behavior might include, but

would not be limited to, a team strategy of excessive objections, serious or repeated witness invention of facts designed to disrupt the presentation of the op­

ponent's case or to eat into their time allotment or any other behavior which, i n the presiding judge's opinion, is inconsistent with proper courtroom de­

meanor and the spirit of this tournament. Penalty points may also be deducted from cross-examining attorneys who repeatedly ask questions that require

the witness to invent facts or for other behavior of students and adults, which, in the opinion of the pre-siding judge, is inappropriate and deserving of

punitive action.

• I n case of an arithmetic tie, the tiebreaker point is to

be awarded to one of the teams. This point should indicate which team, overall, gave the better perfor­mance, and it will determine who prevails i n the trial

enactment. (See explanation on bottom of the Perfor­

mance Rating sheet).

• The decision of the judge in a high school mock trial enactment determines which team advances in the

tournament and which team is eliminated. (See the

Performance Rating sheet and criteria for awarding

points.)

• Judges are encouraged to call the opposing coaches

into chambers at the conclusion of the trial enact­ment so that they may review the scoring sheet and check the scores for arithmetic accuracy. Coaches

have been instructed to sign the scoring sheets at that time. They have also been instructed that there is no formal grievance procedure. The decision of the court is final. The score sheet should be given

to the coach of the prevailing team (after you have explained your verdict).

• In the event that you encounter unsportsmanlike behavior from a teacher, lawyer-coach or student,

contact us at (617) 338-0570 or email MockTrial@

MassBar.org.

• Experience has shown that better understanding is

promoted among students and teachers, and more good wi l l generated, i f the presiding judge in a mock trial takes a few minutes following the enactment to explain her/his decisions regarding the case and the

teams' presentations. Two decisions should be ren­dered: the first on the merits of the legal case, and the second, on the teams' performance. As previ­

ously mentioned, we encourage you to spend a few moments explaining your decisions to the students, but we ask that you remember that courts expect the

teams to be out of the building shortly after the two-hour time period is up.

H T T P : / / M O C K T R I A L . M A S S B A R . O R G 6 1

APPENDIX C: Matrix on Judging Criteria

Attorney Performance: Opening Statement 9-10 Points 5-8 Points 1-4 Points

Content • Articulates a theme for the case. • States what the witness and documentary

evidence will show. • Gives the court a clear picture of the case. • Is persuasive without lapsing into argument.

Presentation • Speaks clearly and with a solid command of

the language. • Presentation is organized. • Rarely, if ever, refers to notes. • Uses appropriate body language and voice

inflections. • Observes proper courtroom etiquette.

Content • The court can extract the theme for the case. • States some of what the witness and docu­

mentary evidence will show. • Gives the court a correct but incomplete

picture of the case. • Is persuasive yet incorporates some thread of

argument.

Presentation • Speaks somewhat clearly and with a good

command of the language. • Presentation has some organization. • Uses notes, but does not present as if memo­

rized. • Uses some appropriate body language and

voice inflections. • Somewhat observes proper courtroom

etiquette.

Content • Does NOT state a theme for the case. • States little or none of what the witness and

documentary evidence will show. • Does NOT gives the court any picture or gives

a confusing/contradictory picture of the case.

• Uses primarily argument.

Presentation • Does NOT speak clearly and has little com­

mand of the language. • Presentation is not organized. • Over-dependent on notes. • Uses little, if any, appropriate body language

and voice inflections. • Does NOT observe proper courtroom etiquette.

Attorney Performance: Closing Argument 9-10 Points 5-8 Points 1-4 Points

Content • Revisits the theme. • Uses relevant law to support the argument. • Cites relevant testimonial and documentary

evidence that w a s entered during the trial. • Does not cite testimonial and documentary

evidence that w a s NOT entered in at trial. • Uses persuasive language. • Clearly states what is requested of the court.

Presentation • Speaks clearly and with a solid command of

the language. • Refers to notes only when citing testimonial

evidence and law presented at trial, otherwise does not read from notes.

• Speaks with fluency and not as if reiterating a memorized speech.

• Uses appropriate body language and voice inflection.

• Always observes proper courtroom etiquette.

Content • Gives some reference to the theme. • Uses some relevant law to support the argu­

ment. • Cites some relevant testimonial and documen­

tary evidence that w a s entered during the trial.

• Cites little, if any, testimonial or documentary evidence that w a s NOT entered in at trial.

• Uses somewhat persuasive language. • Somewhat, but not emphatically, states what

is requested of the court.

Presentation • Speaks somewhat clearly and with some com­

mand of the language. • Refers to notes when presenting testimo­

nial evidence and law presented at trial and shows undue reliance on notes.

• Speaks somewhat comfortably and seldom, if ever, lapses into reiterating a memorized speech.

• Uses some appropriate body language and voice inflections.

• Most a lways observes proper courtroom etiquette.

Content • Gives little, if any, reference to the theme. • Uses little, if any, relevant law to support the

argument. • Cites little, if any, relevant testimonial or docu­

mentary evidence that w a s entered during the trial and/or cites a substantial amount of testimonial or documentary evidence that w a s NOT entered in at trial.

• Does NOT use persuasive language. • Does NOT state what is requested of the

court.

Presentation • Does NOT speak clearly or comfortably and

has little, if any, command of the language. • Primarily reads from notes or is clearly reiter­

ating a memorized pre-written speech. • Uses little, if any, appropriate body language

and voice inflections. • Does NOT observe proper courtroom eti­

quette.

M B A 2 0 1 5 H I G H S C H O O L M O C K T R I A L P R O G R A M

Attorney Performance: Direct Examination 9-10 Points 5-8 Points 1-4 Points

Content • All questions are relevant. • Asks who, what, when, why, where and how ques­

tions. • The questions are organized to clearly tell the wit­

ness' story. • Necessary documentary evidence is entered

through the appropriate witness and the proper foundation is laid when the evidence is entered.

• When appropriate, the proper groundwork is laid for an expert witness and the expert witness' testimony is fully developed.

• Makes and responds to objections demonstrat­

ing knowledge of the Rules of Evidence.

• Shows knowledge of case theory and team

strategy.

Presentation • Speaks clearly and with a solid command of the

language. • Asks no leading questions except for background

questions. • Lawyer(s) i s / a r e able to effectively rebut objec­

tions from opposing side without losing composure. • Rarely refers to notes. • The witness is the focus of the examination at all

times, not the lawyer. • Uses appropriate body language and voice inflec­

tions. • Observes proper courtroom etiquette.

Content • Most questions are relevant. • Mostly asks who, what, when, why, where and

how questions. • Questions are organized to somewhat tell the

witness' story. • Most necessary documentary evidence is

attempted to be entered, but proper foundations may not be laid every time.

• When appropriate, the proper groundwork is laid forthe an expert witness but the expert witness testimony is NOT fully developed.

Presentation • Speaks somewhat clearly and with some com­

mand of the language. • Asks few, if any, leading questions except for

background questions. • Lawyer(s) i s / a r e able to effectively rebut most

objections from opposing side and loses little composure.

• Uses notes but does not read verbatim from them repeatedly.

• The witness is the focus of the examination at most times.

• Uses some appropriate body language and voice inflections.

• Observes proper courtroom etiquette.

Content • Few, if any, questions are relevant. • Does NOT ask who, what, when, why, where

and how questions. • The questions are NOT organized to some­

what tell the witness' story. • Little, if any, necessary documentary evi­

dence is entered and/or proper foundations are NOT laid when evidence is attempted to be entered.

• When appropriate, the proper groundwork is NOT laid for an expert witness.

Presentation • Does NOT speak clearly and has little com­

mand of the language. • Asks many leading questions. • Lawyer(s) i s /a re NOT able to rebut most

objections from opposition and/or loses composure.

• Uses notes and reads verbatim from them question after question.

• The witness is NOT the focus of the examina­tion.

• Uses little, if any, appropriate body language and voice inflections.

• Does NOT observe proper courtroom etiquette.

Attorney Performance: Cross-Examination 9-10 Points 5-8 Points 1-4 Points

Content • All questions are precisely aimed at attacking the wit­

ness' testimony or the other side's case. • Appropriately uses affidavit to impeach the witness

when necessary. • Makes appropriate use of evidence when necessary. • Makes and responds to objections demonstrating

knowledge of the Rules of Evidence.

• Shows knowledge of case theory and team strat­

egy.

Presentation • Speaks clearly and with a solid command of the lan­

guage. • Examination is conducted using predominantly leading

questions. • Questions are pointed to elicit yes or no answers and

done so without undue repetition of the wording of the questions.

• Lawyer quickly and appropriately reacts to the witness' answers, especially if the witness is being evasive.

• Lawyer(s) i s / a r e able to effectively rebut objections from opposing side.

• Uses appropriate body language and voice inflections. • A lways observes proper courtroom etiquette.

Content • Most questions are aimed at attacking the

witness' testimony or the other side's case. • Uses affidavit to impeach the witness

when necessary.

• Makes use of evidence when necessary.

Presentation • Speaks somewhat clearly and with some

command of the language. • Examination is conducted using mostly

leading questions. • Questions are pointed to elicit yes or no

answers, but there is some repetition of the wording of the questions.

• Lawyer sometimes and to a lesser degree reacts to the witness' answers, especially if the witness is being evasive.

• Lawyerfs) i s / a r e somewhat able to rebut objections from opposing side.

• Uses some appropriate body language and voice inflections.

• Most a lways observes proper courtroom etiquette.

Content • Few, if any, questions are aimed at attacking

the witness' testimony or the other side's case.

• Does NOT use the affidavit to impeach the witness when necessary.

• Makes little, if any, use of evidence when necessary.

Presentation • Does NOT speak clearly and has little com­

mand of the language. • Examination is NOT conducted using leading

questions. • Questions are NOT pointed to elicit yes or no

answers. • Lawyer does NOT react or does NOT react

appropriately to the witness' answers , especially if witness is evasive.

• Lawyer fs ) i s /a re NOT able to rebut objec­tions from opposing side.

• Does NOT use appropriate body language and voice inflections.

• Does NOT observe proper courtroom etiquette.

H T T P : / / M O C K T R I A L . M A S S B A R . O R G 6 3

Witness Performance

9-10 Points 5-8 Points 1-4 Points

Total knowledge and command of case and character (direct AND cross).

Portrays part in convincing and compelling w a y (direct AND cross).

Able to respond to questions effectively on cross-examination.

Knows affidavit extremely well.

A lways gives specific responses to questions.

Is not argumentative unless absolutely neces­sary and only to the extent needed to clarify a question.

A lways compliant to judge's instructions.

A lways projects answers to judge.

Response to questions is a lways audible.

Good knowledge and command of character (direct AND cross).

Some ability to portray the part (direct AND cross).

Responds less securely on cross-examination.

Good knowledge of affidavit.

Sometimes gives specific responses to ques­tions.

Somewhat argumentative when not neces­

sary.

Sometimes compliant to judge's instructions.

Sometimes projects answers to judge.

Response to questions is sometimes audible.

Very little knowledge and command of char­acter (direct AND cross) .

Little ability to portray the part (direct AND cross).

Poor cross-examination responses.

Poor knowledge of affidavit.

Rarely gives specific responses to questions.

Overly argumentative.

Rarely compliant to judge's instructions.

Rarely projects answers to judge.

Response to questions is rarely audible.

Requires rehabilitation.

, j j . - r . . . i - V

6 4 M B A 2 0 1 5 H I G H S C H O O L M O C K T R I A L P R O G R A M

APPENDIX D: MBA Mock Trial Website Log-in Instructions

1. Log onto the Mock Trial website by typing "http://MockTrial.MassBar.org" into your browser's address field. H i t the "Enter" key.

2 . In the upper right-hand corner, click the "Mock Trial Login" link.

3. In the form field labeled "ID", enter your 6 digit Mock Trial Team Login I D , issued by Mock Trial Central at orientation.

4. Enter your password in the "PASSWORD" field. This wi l l be a randomly generated non-sense word, issued by Mock Trial Central at orientation.

5. Click the "Login" button or hit the enter key to submit the form.

6. The "Mock Trial Login" l ink in the upper right hand corner wi l l now read "Welcome" school next to i t . For example, "Welcome, Lunenburg High School Mock Trial Team." Now you wil l be able to access your team's schedule.

I f you do not see the "Welcome..." in the upper right hand corner, or i f an error message appears in red below the login box, repeat steps 3 through 5.

7. In order to log out of your school's page, click the " L O G O U T " button below the "Welcome..." label i n the upper right corner of the screen.

The I D and PASSWORD information wi l l be given out at the Mock Trial orientations.

H T T P : / / M O C K T R I A L . M A S S B A R . O R G 65

2015 MOCK TRIAL TOURNAMENT PERFORMANCE RATING SHEET

PHILOSOPHY OF THE MOCK TRIAL TOURNAMENT

While the MBA's Mock Trial Committee wishes this trial enactment to be as realistic an experience as possible,

please remember that this is for the educational benefit of the students. A l l participants are urged to compete in a

spirit of fair play. Winners must call in their scores to (617) 338-0570 or email to MockTrial@MassBar.orgby 9 a.m.

the next morning.

Students are to be judged upon their knowledge of procedure, the law and the facts of the case, in addition to

the overall quality of their presentation. For each of the performance categories listed below, we ask that you rate each individual on a scale of 1 to 10. No fractions of points are allowed. Students are to be judged on their total performance. No consideration should be given to age or grade level. Note: A l l categories must be judged except

discretionary points. Bonus or penalty points are to be awarded solely at the judge's discretion.

Highest Score =10 Lowest Score = 1

PROSECUTION/PLAINTIFF

A T T O R N E Y P E R F O R M A N C E (TIME LIMITS)

Opening statement (5 min.) .

Direct of Sgt. Sam Bush (7 min.)

Direct of Hanna/Hans Kumar (7 min.)

Direct of Dr. Sasha Betts (7 min.)

DEFENSE

A T T O R N E Y P E R F O R M A N C E (TIME LIMITS)

Opening statement (5 min.)

Cross of Sgt. Sam Bush (5 min.)

Cross of Hanna/Hans Kumar (5 min.)

Cross of Dr. Sasha Betts (5 min.)

Cross of Stephanie/Steven Hardee (5 min.)

Cross of Martha/Mark Hockbird (5 min.) _

Cross of Morgan Dexter Kazarosian (5 min.'

Closing argument (7 min.)

Direct of Stephanie/Steven Hardee (7 min.) _

Direct of Martha/Mark Hockbird (7 min.)

Direct of Morgan Dexter Kazarosian (7 min.)

Closing argument (7 min.)

W I T N E S S P E R F O R M A N C E

Sgt. Sam Bush

Hanna/Hans Kumar.

Dr. Sasha Betts

D I S C R E T I O N A R Y POINTS

Bonus points (if applicable)

Penalty points (if applicable)

TOTAL POINTS

W I T N E S S P E R F O R M A N C E

Stephanie/Steven Hardee

Martha/Mark Hockbird

Morgan Dexter Kazarosian

D I S C R E T I O N A R Y POINTS

Bonus points (if applicable) ,

Penalty points (if applicable).

TOTAL POINTS

T I E BREAKER* ( if applicable). T I E BREAKER* (if applicable

************************************

*TIE BREAKER—If , and only if, there is a tie resulting from the addition of the points, the judge must award a special point based on overall impression to determine the winner of rhe competition.

Judge's signature Date

Prosecution/plaintiff coach's signature** Defense coach's signature**

**Please review the performance rating sheet carefully at the conclusion of the trial enactment. Your signature indi­cates that you have reviewed it and concur that it is arithmetically accurate. Failure or refusal to sign this sheet will not preserve a right to appeal the decision of the court, which is final.

6 6 M B A 2015 H I G H S C H O O L M O C K T R I A L P R O G R A M

2015 MOCK TRIAL STUDENT ROSTERS Prior to each trial, coaches for the rwo competing teams should fill in the roster below with the names of the students

who will be playing the roles for that particular trial. Only one performance rating sheet should be submitted to the judge. At the conclusion of the trial, the presiding judge will give the original performance rating sheet to the prevailing team. (Be sure to ask them for it i f they do not give it to you). Upon request, the judge may allow the opposing team to copy the score sheet. The prevailing team's coach must call in the score to the Mock Trial Central at (617) 338-0570 by 9 a.m. of the day following the trial. Messages may be left after business hours. Your cooperation is needed so that we can keep the scores on the Web page up to date.

PLAINTIFF/PROSECUTION

Opening statement

Direct of Sgt. Sam Bush

Direct of Hanna/Hans Kumar :

Direct of Dr. Sasha Betts .

Cross of Stephanie/Steven Hardee .

Cross of Martha/Mark Hockbird

Cross of Morgan Dexter Kazarosian .

Closing argument .

Witness •— Sgt. Sam Bush :

Witness — Hanna/Hans Kumar

Witness — Dr. Sasha Betts

DEFENSE

Opening statement

Cross of Sgt. Sam Bush _ _

Cross of Hanna/Hans Kumar .

Cross of Dr. Sasha Betts

Direct of Stephanie/Steven Hardee .

Direct of Martha/Mark Hockbird

Direct of Morgan Dexter Kazarosian .

Closing argument

Witness — Stephanie/Steven Hardee

Witness — Martha/Mark Hockbird .

Witness — Morgan Dexter Kazarosian . .

Rule 5.2: The attorney presenting the opening statement may not make the closing arguments in the case. No attorney may conduct more than one direct examination. No attorney may conduct more than one cross-examination. Only one attorney from each side may conduct the examination of an individual witness, including re-examinations. Violation of this rule shall result in the offending player receiving a score from the judge but the team shall also receive a deduction ofl 0 PENALTY POINTS.

H T T P : / / M O C K T R I A L . M A S S B A R . O R G 6 7