MOCK TRIALMANUAL

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INTRODUCTION: Can you imagine what it would be like to be accused of a serious crime and be required to stand trial where the trial outcome is determined by a jury who must determine your innocence beyond a reasonable doubt? Or maybe facing a civil lawsuit for large sums of money? You are now about to participate in a mock trial where one of you will face these serious consequences, while the rest of the class will participate in various roles that will help determine your innocence, guilt, or liability.

Students will play all of the roles in the trial—lawyers, witnesses, and members of the jury. Each of you will be expected to interpret and act out the information that is given to you by your instructor. The outcome of this trial will be determined by the amount and quality of the effort that each of you gives to your role. You will find this mock trial experience to be challenging to your talents and abilities and rewarding in the amount of fun, knowledge, and enjoyment that you will receive from having participated in it.LAW 2

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The key to any successful trial is to be well organized. You should take your assigned role seriously and prepare in detail to make a professional appearance before your classmates and instructor. Be innovative, but realistic—impromptu responses based on your knowledge and preparation will add realism to the mock trial. On the other hand, attempting to fake preparation may result in a breakdown of the trial effort. The trial requires teamwork and cooperation from all participants. If these conditions are present, it should prove to be an effective means of gaining valuable, practical experience and knowledge of our legal system and of the relevant issues raised in this case.

Learn to cooperate with others. Disruptive behavior is not tolerated in real trials. Contempt of court citations carry punishment of fines and imprisonment. In the class trial, lack of respect or noninvolvement may be punished by grade reductions.

STEPS IN A TRIAL:

1. Opening Statements to the Jury by the Prosecution2. Opening Statements to the Jury by the Defense3. Direct Examination of Witnesses by the Prosecution4. Cross Examination of these Witnesses by the Defense5. Redirect Examination of Witnesses by the Prosecution6. Direct Examination of Witnesses by the Defense7. Cross Examination of these Witnesses by the Prosecution8. Redirect Examination of Witnesses by the Defense9. Closing Argument to the Jury by the Prosecution10. Closing Argument to the Jury by the Defense11. Deliberation of the Jury12. Verdict of the Jury

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THE PARTIES: A trial revolves around an argument involving two or more people. The people who bring their argument to the trial are called the “parties” to the case.

A civil trial involves one person complaining about something another person did or failed to do. The person who does the complaining is called the “plaintiff,” and the person who is the object of the complaint is the “defendant.”

In a criminal trial, a person is accused of a particular act which the law calls a crime, such as murder, robbery, or fraud. The person who does the accusing is the “prosecutor.” The prosecutor speaks on behalf of the government, which in turn represents the people of the state or nation. The person who is accused of the crime is the “defendant.”

Except in a few special circumstances (most notably small claims court cases in which the lawyers frequently are not involved), both parties will hire and instruct lawyers to prepare their respective cases and to make their arguments in court.

Trial lawyers control the presentation of evidence at trial and argue the merits of their side of the case. They introduce evidence and question witnesses to bring out the facts surrounding the allegations. In addition, they are responsible for presenting both opening and closing statements.

THE FACTS OF THE CASE: Long before a trial actually takes place, some argument or incident occurs. Perhaps there is a traffic accident; a husband and wife decide they can no longer live together; or someone is robbed at gunpoint. The argument or incident involves many facts, which together make up the case. Persons on opposite sides of a case often will view the facts quite differently and might give different accounts of the same event. This disagreement over the facts of an incident forms the basis for a trial. Such inconsistencies often result from human error rather than intentional lying. In a trial, the parties present their differing versions of the facts before an impartial “trier of fact:” a judge or a jury. The job of the trier of fact is to decide which facts are correct.

WITNESS TESTIMONY: Each witness is bound by the facts contained in their own witness statement, also known as affidavit. Fair extrapolations may be allowed, provided reasonable inference may be made from the witness’ statement. If, in direct examination, an attorney asks a question which calls for extrapolated information pivotal to the facts at issue, the information is subject to objection under rules of evidence for unfair extrapolation. If in cross examination, an attorney asks for unknown information, the witness may or may not respond, so long as any response is consistent with the witness’ statement or affidavit and does not materially affect the witness/testimony. A witness is not bound by facts contained in other witness statements.

Witnesses will supply the facts in the case but may testify only to facts stated in or reasonably implied from their own witness statements or fact situation. On direct examination, when your side’s attorney is asking you questions you should be prepared to tell your story. Know the questions your attorney will ask you and prepare clear and convincing answers that contain the LAW 4

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information that your attorney is trying to get you to say. However, do not recite your witness statement verbatim. Know its content beforehand so you can put it into your own words. Be sure that your testimony is never inconsistent with, nor a material departure from, the facts set forth in your affidavit.

In cross examination, anticipate what you will be asked and prepare your answers accordingly. Isolate all the possible weaknesses, inconsistencies, problems in your testimony and be prepared to explain them as best you can. Witnesses can be impeached if they contradict the material contained in their witness statements.

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The stipulated facts are a set of indisputable facts from which witnesses and attorneys may draw reasonable inferences. The witness statements contained should be viewed as signed statements made in sworn depositions. If you are asked a question calling for an answer that cannot reasonably be inferred from the materials provided, you must reply, “I don’t know” or “I can’t remember.” It is up to the attorney to make the appropriate objection when witnesses are asked to testify about something which is not generally known, or cannot be reasonably inferred from the fact situation or a signed witness statement.

THE EVIDENCE: While the description of the facts of the argument or incident as presented by each party is important, the trier of fact usually needs a lot more information in order to make a decision. The version of the facts given by the parties may be incomplete, or affected by their emotional state at the time of the incident. Or, in a few cases, parties might even give false versions of the facts.

For all these reasons, the trier of fact needs more information than just the stories of each party. In a trial, the attorneys for each side present all of the factual information they can gather to support their side of the case. This information is called “evidence.”

Evidence may take several forms including: Testimony: A person, called a “witness,” tells the court what he or she saw, heard, did, or

experienced in relation to the incident in question. Documents: Letters, notes, deeds, bills, receipts, etc., that provide information about the

case. Physical Evidence: Articles such as weapons, drugs, clothing, etc., that can provide clues to

the facts. Expert Testimony: A professional person, someone not involved in the incident, who can give

medical, scientific, or similar expert instruction to help the trier of fact decide the importance of the evidence presented.

Attorneys are responsible for collecting all of the evidence that supports the side of the case they are representing and for deciding how to present that evidence at the trial. It is the attorney’s job, therefore, to work out a strategy for a trial.

In general, there should not be any surprises at the trial if the attorneys are well prepared. This lack of surprises is also due to the fact that the attorneys for the opposite sides must let each other know what evidence they have collected. This advance sharing of information is called “discovery.” Discovery enables both sides to prepare their cases as well as possible, to ensure that the trial is fair.

Before the trial, witnesses might make “affidavits,” which are written statements of the facts, made voluntarily and sworn to, usually in the presence of a notary or other person authorized to administer oaths. Witnesses might also be required to give a “deposition,” which is testimony given out of court. At a deposition, attorneys for both sides are present to question the witness, while a stenographer records the testimony for later use in court.LAW 6

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THE BURDEN OF PROOF: To guarantee that the trial process is fair to everyone involved, certain legal principles govern the way parties present their evidence, and the way the judge or jury considers the evidence and makes a decision. One of the most important rules concerns which party must prove his or her version of the facts, and how convincing he or she must be. This rule is called the “burden of proof.”

In a civil case, the person who brings the case to court and does the complaining (the plaintiff) has the burden of proof. Plaintiffs must convince the judge or jury that these facts are correct “by a preponderance of the evidence,” meaning that their evidence is slightly more convincing than the defendants’. Some refer to this as meaning that 51 percent or more of the evidence supports the plaintiffs’ side.In a criminal case, the burden of proof is considered to be much stricter, because the defendant may go to prison if the prosecutor proves the state’s case. Therefore, the prosecutor must convince the judge or jury “beyond a reasonable doubt” that the accused committed the crime. Some state that “beyond a reasonable doubt” means that the trier of fact (judge or jury) must be at least 95 percent sure that the prosecutor is correct.

THE DEFENSE: As described above, the complaining or accusing parties usually have the burden of proving their particular version of the facts. The job of the defense team is to present evidence which prevents the plaintiff or prosecution from meeting the burden of proof. Defense evidence should explain, disprove, discredit, excuse, and/or justify the evidence presented by the other party.

In criminal cases, defendants try to defeat the charges by utilizing one or a combination of the three main categories: factual defenses, affirmative defenses, and procedural defenses. Factual defenses disprove or discredit the facts that the prosecution that the prosecution attempts to establish; examples include the inability to meet the stand of proof, alibi, and mistaken identity. Affirmative defenses accept some or all of the factual allegations set forth by the prosecution while excusing the actions of the defendant as lawful; examples include insanity, self-defense, duress, infancy, and immunity. Procedural defenses are based on problems with the way evidence is obtained or the way an accused person is questioned, arrested, or tried; examples include statute of limitations, double jeopardy, entrapment, the Miranda warning, and the exclusionary rule.

STEPS IN A TRIAL

THE OPENING STATEMENT: The opening statement is the introduction to the case, the very first time the attorneys for each side get to tell the judge and jury about what happened to their clients. Think of it as a road map for the trial or an index to a book. The first impression is very important; it paints a picture of the case that will be presented for each side. Opening statements should always start with an opening sentence or two that presents the theme of the case and then be followed by: (1) a summary of the facts according to each party; (2) a brief overview of the evidence that will be presented at the trial; (3) a statement regarding what the LAW 7

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party plans to prove from the trial and how it will be proven; and (4) a concise synopsis of the burden of proof and applicable law regarding the case.

At no other time are the jurors most attentive and receptive to know about your case. Yet on the other hand, it may also be the most overlooked and least organized aspect of the trial. Because of the importance of the opening statement, it is imperative that you organize and prepare an outline of your opening statement.

To be effective, the opening statement should be told as a simple story or a forceful narrative. It should be brief, absolutely clear, concise, direct, and explained in plain layman language. Begin your statement with a formal address to the judge such as “Your Honor, my name is (full name), representing the people/plaintiff/defendant in this case.” Proper phrasing in an opening statement also includes: “The evidence will indicate that ...”, “The facts will show that ...”, “Witnesses (full names) will be called to tell ...”, and/or “The plaintiff/defendant will testify that ...”

When organizing the opening statement, make a list of the points you want or need to make; these are your headings. Then write the facts that will establish each point. The opening statement might be given in either chronological sequence or by a topical outline manner stressing the important key facts to be proved. It should be a strong positive statement of the specific facts and particular details of your case.

Another method of organization can be modeled after a screenplay. Begin by introducing the time and the place, then introduce your client (the central character), followed by the complicating element (what's gone wrong), then relate events chronologically in a way that suggests the story should end happily.Techniques such as repetition, empathy, analogies, rhetorical questions, and stories may be useful and should be strongly considered. Repetition is the reiteration, or repeating the same word, or the same idea in different words, for the purpose of making a deeper impression on the audience. Create empathy for your client by describing personal facts about him/her—create favorable images in the jury’s mind about your client’s life. Analogies show similarities in some respects between things that are otherwise dissimilar; use simple examples to appeal to the common layperson. A rhetorical question is a figure of speech in the form of a question posed for its persuasive effect without the expectation of a reply. And finally, an effective story most certainly will interest, amuse, and/or instruct the juror.

Where it is appropriate to use visual aids (diagrams, charts, etc.) by all means use them. But before using such visual aids, clear it with the judge.

Tell the jury about any problems or weaknesses you have with your case rather than to have them unveiled during the trial; this can be accomplished by communicating what they should expect to hear from the opposition and then downplaying or justifying these issues. Your voice should be well modulated and conversational in tone. You should maintain good eye contact

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with the jury and present a relaxed and friendly attitude. Be firm and persuasive using short and simple action words.

The measure of a truly successful opening statement is whether, after hearing it, the jury clearly understands the facts in your case and would render a favorable verdict for your client without going any further with the trial process. Above all, it must be believable and simple.

THE DIRECT EXAMINATION: After the opening statements, the process of witness examinations begins. First, the plaintiff or prosecution team presents its witnesses, then the defense team. Each time a witness is called to the stand, the attorney who called the witness asks a series of questions called the “direct examination.” These questions are designed to get the witness to tell a story, reciting what he or she saw, heard, experienced or knew about the case. The questions must ask only for facts, not for opinions (unless the witness has been declared to be an “expert” in a particular subject, such as a doctor or a police detective). In addition, the attorney may only ask questions and may not make any statements about the facts, even if the witness says something wrong.

When the direct examination is completed, an attorney for the other side then asks questions to show weaknesses in the witness’ testimony, a process called “cross examination.”

Style Points:

1. Attorney Conducting Direct Examination: Questions should be designed to get the witness to tell the story in a logical manner. Avoid lengthy or complicated questions. Leading questions cannot be used on direct examination; in other words, your questions should not suggest a specific response. Be prepared to rephrase questions in case the witness does not understand a question or fails to remember facts accurately, or in case the other side objects to a question.

2. Opposing Attorney: Listen for violations of the Rules of Evidence and be prepared to make good objections.

3. Witnesses: The most important factor in the trial is the believability (often called “credibility”) of the witnesses. Witnesses should tell their stories clearly with as little hesitation as possible. It’s important for witnesses to know the facts thoroughly.

At the close of cross examination the attorney who conducted the direct exam may do a “redirect.” A redirect examination follows the same rules as direct. However, the questions are limited to subjects discussed in the cross examination. It should not be used simply to restate testimony already brought out, and it is not allowed to be used to present brand new testimony.   For this reason, it is optional, and may be quite short. Redirect examination is used to help explain testimony brought out during cross-examination, where the witness was limited to very specific questions.

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The following suggestive techniques of direct examination may be helpful: Prepare an outline of the key facts each witness will testify to. Isolate exactly what information each witness can contribute to proving your case and

prepare a series of brief, clear, and simple questions designed to obtain that information. Be sure all items you need to prove your case will be presented through your witnesses.

Organize the key facts in a logical, coherent manner either chronologically or topically in a narrative form.

Questions you ask of any witness should be short, clear, and direct. Use short, simple action words in your questions and language that can be understood by any

person. The witness is there to tell a specific story, so use open-ended type questions to allow the

witness to freely tell the facts in their own words. As to the critical and crucial portions of witness testimony, use closed-type questions to elicit

and emphasize the details. When it is appropriate and relevant, bring out any harmful matters on direct examination to

downplay its significance. Move the direct examination along at a brisk pace. When you come to the point of critical

testimony, slow down the tempo so that important details and facts are clearly and directly understood in the witness testimony.

If a witness can’t recall important facts, help to refresh the witness’s memory with supporting documentary evidence to recall those facts.

Plan the conclusion of each witness’s testimony to end with an important question and answer.

Don’t interrupt the witness’s answer to a question. Allow the witness to finish answering the question before asking another.

Don’t ask a lot of irrelevant questions. Get straight to the point of the witness’s testimony. Counsel should introduce the witness with a formal request such as “Your Honor, I would like

to call (full name of witness) to the stand.” Conclude your direct examination with “Thank you Mr./Mrs. ________, that will be all, Your

Honor.” If there is a real need for redirect examination, be brief. The primary purpose of redirect

examination is to rehabilitate the witness in allowing the witness to clarify or explain any inconsistent matters raised by cross examination.

THE CROSS EXAMINATION: The purpose of the cross examination is to show the judge and jury that a given witness should not be believed because that witness: (1) cannot remember facts; (2) did not give all of the facts in the direct examination; (3) told a different story at some other time; (4) has a reputation for lying; and/or (5) has a special relationship to one of the parties (maybe a relative or close friend) or bears a grudge toward one of the parties. The cross examination questions are designed to bring out one or more of the above factors.

For cross examination, you must first ask yourself whether you should cross examine a particular witness or not. In doing so, you should consider the goal to be accomplished by your cross examination. Affirmative purposes of cross examination should be to elicit and stress by LAW 10

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repetition the unfavorable portions of direct examination testimony or to develop new matters not covered on direct which are favorable to your theory of the case. At all costs, exploit a prior statement(s) available from the witness which is favorable to your case.In preparing for your cross examination, first make a list of the probable key facts you expect the witness to testify to. Next determine your purpose for cross examining a particular witness. Finally, you should assess your realistic expectation for your cross examination and what kinds of risk you will take to achieve a successful cross examination of the witness.

The following are guidelines for a successful cross examination: Be brief, short, and to the point. Never try to make more than three points on cross

examination. Use short questions with plain words. Never ask a question to which you don’t know the answer. If you don’t know, don’t ask it. Listen to the answers given by the witness. Don’t quarrel with the witness. Never permit the witness to repeat what was said on direct examination. Essentially never ask “how or why?” It gives a well-prepared witness a chance to clarify from

their point of view. Never permit the witness to explain anything. The element of surprise may, in fact, be a valuable attorney’s tool, but it is best achieved by

being friendly and winning over everybody in the courtroom, including the other side. Avoid the one too many question.

Finally, conduct your cross examination in a quiet, pleasing, and polite manner. Demeanor of counsel is very important. On direct examination it is easy to be sympathetic and supportive of your witnesses. It can be considered unethical and bad manners to be sarcastic, snide, hostile, or contemptuous. Begin your cross examination with a strong point and end it with a strong point. An effective cross-examination is one in which the cross examiner, the witness, the judge, and jury all agree on the outcome.

Style Points:

1. Attorney Conducting Cross Examinations: This attorney must know precisely what kind of weaknesses he or she wants to show in the witness, and then design the questions to point them out. Questions should be short: “leading” questions are allowed (for example, the attorney may use questions with phrases like, “Isn’t it true that…?). Questions should not be long or argumentative, nor should they ask the witness “how,” “why,” or “could you explain.” Questions that give the witness a chance to make an explanation will usually not help the cross examiner’s case.

2. Opposing Attorney: Listen carefully for violations of the Rules of Evidence, and be prepared to make objections. Listen carefully to the kind of attack the cross examiner is making; decide whether the attack is successful. After the cross examination, the opposing attorney may conduct a “redirect” examination, to give the witness a chance to explain or correct some points made in the cross examination.

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3. Witness: Witnesses should try to give explanations whenever possible. Witnesses must pay close attention during cross examination, since the attorney may try to confuse the witness. They should try to stick to the facts they recited on direct examination.

THE CLOSING ARGUMENTS: The purpose of the closing argument (or “statement”) is to convince the trier of fact (judge or jury) that the evidence presented is sufficient to win the case for whichever side the attorney is representing. The closing argument should include: (1) a summary of the evidence presented that is favorable to the presenting attorney’s side; (2) a summary of the case; and (3) a legal argument showing how the law requires the judge or jury to interpret the facts, and why that law requires them to rule in favor of the side for which the attorney is arguing. New information may not be introduced in the closing argument.

The closing argument should be a clear, concise, and well organized summation of the case. It should persuasively resolve any problems that the jurors might have in dealing with the factual or legal issues involved. The organized presentation should appeal to good common sense and experiences for a fair disposition of the case. It should create a favorable attitude for your client’s case and also reconcile inconsistencies that might hurt your side. A good closing should synthesize what actually happened in court rather than being repackaged.

Keep it simple. Keep it short. The closing argument should be no longer than is necessary. As to the length of the summation, ask yourself how long you can effectively concentrate and listen to a speaker on a given topic. Be firmly explicit of why your theory of the case is more credible than your opponent’s. What is so obvious about the facts of your case? Use short sentences with language that is direct and easy to understand. Techniques such as repetition, empathy, analogies, rhetorical questions, and stories may be helpful (for more on these specific techniques refer to the prior section outlining the opening statement). The closing statement should also be emotionally charged and strongly appealing, unlike the calm opening statement. Since it is meant to be persuasive, the closing argument should be active and forceful without being overwhelming. Emphasize the main points of your summation with feeling.

Proper closing argument phrasing includes “The evidence has clearly shown that ...”, “Based on this testimony, there can be no doubt that ...”, “The plaintiff has failed to prove that ...”, and/or “The defense would have you believe that ...”

Style Points:

1. Plaintiff/Prosecuting Attorney: Remember, the plaintiff has the burden of proving the facts in a civil case by a preponderance of evidence while the prosecution has the burden of proving the defendant guilty beyond a reasonable doubt. Therefore, the summary of the favorable

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evidence presented by the plaintiff/prosecutor is extremely important. Be sure to avoid claiming evidence that was not, in fact, presented; similarly, do not emphasize evidence that the defense successfully attacked, except to give a firm response to such an attack. Cite the law clearly and correctly, and make a clear argument regarding how the law requires the judge or jury to rule in the favor of the plaintiff/prosecutor.

2. Defense Attorney: Summarize all of the evidence presented to weaken the case of the plaintiff/prosecution. Emphasize the inability of the plaintiff/prosecution to meet the burden of proof, and stress that such inability must clearly lead to a decision in favor of the defendant.

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RULES OF EVIDENCE: So that each party to a trial can be assured of a fair hearing, certain rules have been developed to govern the types of evidence that may be introduced in a trial, as well as the manner in which evidence may be presented. These rules are called the “rules of evidence.” The attorneys and the judge are responsible for enforcing these rules. Before the judge can apply a rule of evidence, an attorney must ask the judge to do so. Attorneys do this by making “objections” to the evidence or procedure employed by the opposing side. When an objection is raised, the attorney who asked the question being objected to will usually be asked by the judge to respond. A response should tell the judge why the question was not in violation of the rules of evidence.

The rules of evidence used in real trials can be very complicated. A few of the most important rules of evidence have been adapted for mock trial purposes and are presented below. Your mock trial will exclusively recognize these rules of evidence. It should be noted that a pattern of necessary objections during the mock trial may result in bonus points; however, points may be deducted if objections are ignored and/or if objections become frivolous, irrelevant, and unnecessary. Therefore, think carefully before you make an objection.

RULE 1 – LEADING QUESTION: A “leading” question is one which suggests the answer desired by the questioner, usually by stating some facts not previously discussed and then asking the witness to give a “yes” or a “no” answer. The question is giving the witness information about what the intended answer ought to be. The lawyer essentially puts words in the witness’ mouth. Leading questions may not be asked on direct examination. Leading questions may be used on cross examination.

Example: “So, Mr. Smith, you took Ms. Jones to a movie that night didn’t you?”

Objection: “Objection, Your Honor, counsel is leading the witness.” (Opposing Attorney)

Response: “Your Honor, leading is permissible on cross examination,” or “I’ll rephrase the question.” For example, the above question would not be leading if rephrased as “Mr. Smith, where did you and Ms. Jones go that night?” (This would not ask for a “yes” or “no” answer)

RULE 2 – UNFAIR EXTRAPOLATION: “Unfair extrapolation” occurs when a witness is asked or answers to information outside the scope of the facts on record (mock trial materials). All questions and answers must be consistent with the materials and may not significantly affect the witness’ testimony or any substantive issue of the case. Both questions and answers that unfairly extrapolate are objectionable.

Example: “Mr. Brown, please tell us about your prior experience as a forensic scientist.”

Objection: "Objection, Your Honor. The witness is testifying to information not found in the mock trial materials."

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RULE 3 – NARRATION: “Narration” occurs when the witness provides more information than the question called for. Witnesses’ answers must respond to the questions. A narrative answer is objectionable.

Example: Question, “What did you do when you reached the front door of the house?” Witness, “I opened the door and walked into the kitchen. I was afraid that he was in the house—you know he had been acting quite strangely the day before.”

Objection: “Objection, Your Honor, the witness is narrating.”

Response: “Your Honor, the witness is telling us a complete sequence of events.”

RULE 4 – RELEVANCE: Questions and answers must relate to the subject matter of the case; this is called “relevance.” Questions or answers that do not relate to the case are “irrelevant.” Irrelevant questions or answers are objectionable.

Example: (In a traffic accident case) “Mrs. Smith, how many times have you been married?”

Objection: “Your Honor, this question is irrelevant to this case.”

Response: “Your Honor, this series of questions will show that Mrs. Smith’s first husband was killed in an auto accident, and this fact has increased her mental suffering in this case.”

RULE 5 – HEARSAY: “Hearsay” is something the witness has heard someone say outside the courtroom. Hearsay evidence is objectionable. However, there are a number of exceptions to the hearsay rule and if an exception applies, the court will allow hearsay evidence to be testified to. One exception is permitting hearsay evidence when the witness is repeating a statement made by one of the parties in the case. Another example of an exception is when the witness who made the statement has died or is otherwise unable to testify.

Example: “Harry told me that he was going to visit Mr. Brown.”

Objection: “Objection, Your Honor, this is hearsay.”

Response: “Your Honor, since Harry is the defendant, the witness can testify to a statement he heard Harry make.”

RULE 6 – HISTORICAL INACCURACY: The witness or lawyer states inaccurate historical facts.

Example: “Jim was driving his car eastbound on Main Street when the accident occurred.”

Objection: “Objection, Officer Dean’s affidavit clearly states that Jim was heading west on Main Street.”

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Response: “It is obvious that Officer Dean has ulterior motives in this case and shouldn’t be trusted.”

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RULE 7 – WITNESS IS NOT AN EXPERT (OPINION): Unless a witness is qualified as an expert in the appropriate field, such as medicine or ballistics, the witness may not give an opinion about matters relating to that field. Opinions are objectionable unless given by an expert. As an exception to this rule, a lay witness may give an opinion about something in common experience, e.g., “He seemed to be driving pretty fast for a residential street.”

Example: (Said by a witness who is not a doctor) “The doctor put my cast on wrong. That’s why I have a limp now.”

Objection: “Objection, Your Honor, the witness is giving an opinion.”

Response: “Your Honor, the witness may answer the question because ordinary persons can judge if common medical procedures were properly followed.”

RULE 8 – COUNSEL IS TESTIFYING: The attorney is making factual statements rather than only asking a question. Trial procedures do not permit attorneys to testify.

Example: “My client could not have been at the crime scene at 6 p.m. because he was still at work…”

Objection: “Your Honor, counsel is simply testifying instead of asking questions to his witness.”

Response: “I was simply refreshing my client’s memory about the evening in dispute as to trigger a response.”

RULE 9 – ASKED AND ANSWERED: A question that just reiterates something that has already been established, perhaps to emphasize a response to the judge or jury.

Example: “How many times has the defendant been tried and convicted of domestic assault charges?”

Objection: “Objection, Your Honor, this same exact question was posed during direct examination.”

Response: “The previous question pertained to the all of the defendant’s prior convictions and not just those limited to domestic assault.”

RULE 10 – BADGERING THE WITNESS: The lawyer harasses, abuses, and/or insults the witness.

Example: “Isn’t it true that you kidnapped the neighbor’s Labrador retriever so you could sexually molest it?”

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Objection: “Objection, Your Honor, this is absolutely inappropriate and counsel is clearly badgering the witness.”

Response: “Your Honor, the witness has displayed a pattern of abuse towards animals in the past.”

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RULE 11 – COACHING THE WITNESS: The lawyer attempts to give hints or answers to a witness on the stand (such as nodding or shaking their head to hint at a yes or no response or even blatantly saying words or full answers).

Example: Question, “Did you attempt to call the police immediately after you struck Mr. Rogers with your vehicle?” Witness pauses for quite some time and looks over to his counsel for help; they begin whispering “Yes” to him.

Objection: “Objection, counsel is coaching the witness.”

Response: “Your Honor, we are simply restating our client’s version of the facts per his affidavit.”

RULE 12 – OUTSIDE THE SCOPE OF CROSS: Redirect examination is limited to matters brought out during the cross examination of a witness. Objections can be made against attorneys who violate this rule.

Example: “How many times has the defendant been tried and convicted of domestic assault charges?”

Objection: “Objection, Your Honor. Counsel is asking the witness about matters that did not come up in cross examination.”

Response: “Your Honor, the defendant’s criminal history was briefly mentioned during the cross examination.”

Your first consideration in making legal objections is whether you should object to a particular question. The objection dilemma is this: On the one hand, jurors don’t like a lot of legal objections, as they believe you are trying to prevent them from hearing all of the evidence even though you may have a legitimate legal basis for making an objection. On the other hand, you want to protect your record in the event you should want to appeal the case.

If a witness should answer a question before the trial judge makes a ruling and in fact the objection is sustained, move that the answer be stricken from the record and that the jury be instructed to disregard the answer (unfortunately, it is too late). But likewise, ask the trial judge that the witness be instructed not to answer a question until the Court has made a ruling on a legal objection.

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SPECIAL PROCEDURES

PROCEDURE 1 – INTRODUCTION OF DOCUMENTS OR PHYSICAL EVIDENCE: Sometimes the parties wish to offer as evidence letters, affidavits, contracts, or other documents, or even physical evidence such as a murder weapon, broken consumer goods, etc. Special procedures must be followed before these items can be used in trial.

STEP 1 – INTRODUCING THE ITEM FOR IDENTIFICATION

A. The attorney says to the judge, “Your Honor, I wish to have this (letter, document, item) marked for identification as (Plaintiff’s Exhibit A, Defense Exhibit I, etc.).”

B. Attorney takes the item to the clerk who makes the appropriate marking.C. Attorney shows the item to the opposing counsel.D. Attorney shows the item to the witness and says, “Do you recognize this item marked as

Plaintiff’s Exhibit A?”Witness: “Yes.”Attorney: “Could you please identify this item?”Witness: “This is a letter I wrote to John Doe on September 1.” (Or witness gives other appropriate identification.)

E. Attorney may then proceed to ask the witness questions about the document or item.

STEP 2 – MOVING THE DOCUMENT OR ITEM INTO EVIDENCE

If the attorney wishes the judge or jury to consider the document or item itself as part of the evidence, and not just the testimony about it, the attorney must ask to move the item into evidence at the end of the witness examination. The attorney proceeds as follows:

Attorney says, “Your Honor, I offer this (document/item) into evidence as Plaintiff’s Exhibit A, and ask that the Court so admit it.”

Opposing counsel may look at the evidence and make objections at this time.

The judge rules on whether the item may be admitted into evidence.

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GRADING BREAKDOWN

PLAINTIFF/PROSECUTIONOpening Statement 20%Plaintiff/Prosecution Witnesses:Direct Examination Questions

15%

Defense Witnesses:Cross Examination Questions

10%

Closing Statement 15%Trial Performance / Participation 30%Professional Dress 10%TOTAL PERCENT 100%

DEFENSEOpening Statement 20%Plaintiff/Prosecution Witnesses:Cross Examination Questions

10%

Defense Witnesses:Direct Examination Questions

15%

Closing Statement 15%Trial Performance / Participation 30%Professional Dress 10%TOTAL PERCENT 100%

IMPORTANT INSTRUCTIONS

Up to an additional five percent may be earned for going above and beyond when dressing for court.

All submitted documents must be typed and free of spelling and grammatical errors. Be sure to include answers for direct examination questions; speculative answers are not

necessary for cross examination questions. A title page and group roles page are required to precede all other paperwork; every group

member’s full name should be properly spelled. Document formatting must be consistent throughout and all sections need to be properly

labeled; strictly follow the supplied templates for compliance. Paperwork to be graded is a representation of the entire group, therefore each member

should equally contribute; submission implies that each member fully endorses the final product.

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