people v. davidson - scoe | sacramento county office of ... v. davidson murdertriala featuring a...

People v. Davidson

A Murder Trial

Featuring a pretrial argument on the Fourth Amendment

OFFICIAL MATERIALS FOR THE CALIFORNIA MOCK TRIAL COMPETITION A Program of Constitutional Rights Foundation

Co-Sponsored by:

American Board of Trial Advocates Daily Journal Corporation

©Constitutional Rights Foundation 2 People v. Davidson

ACKNOWLEDGMENTS

Developed by:

Marshall Croddy, President Keri Doggett, Director of Programs Damon Huss, Senior Editor and Curriculum Specialist Lourdes Morales, Senior Program Director Laura Wesley, Associate Director of Programs Patrick Hale, Law Student Intern Writer

Case Reviewers:

Julie Antos, Esq., San Luis Obispo Hon. Raquel Márquez, Riverside

Hon. George Bird, Los Angeles Sharon Matsumoto, Esq., Los Angeles

Mark Becker, Esq., Santa Clara Pamela J. McFarland, Esq., Fresno

Robin Bernstein-Lev, Esq., Justice Nathan Mihara, Santa Clara Los Angeles

David A. Carrillo, Esq., San Francisco

Jane Creighton, Esq., Los Angeles

Linda Dunn, Esq., San Luis Obispo

Carla Garrett, Esq., Contra Costa

Jon Garzoli, Esq., San Joaquin

Nathalie Miller, Esq., San Diego

Lynn Moyer, Esq., Los Angeles

Justice Steven Z. Perren, Ventura

Jennifer Redding, Esq., Santa Clara

Hon. Ron Rose, Los Angeles

Samer Hathout, Esq., Los Angeles Michael Tiktinsky, PhD., San Francisco

Hon. Helios J. Hernandez, Riverside Professor Paul Von Blum, Esq., Los Angeles

Hon. Ross Klein, Los Angeles Sharon White, Los Angeles

Special Thanks to:

Andrew Costly, CRF Senior Publications Manager Denise Dunbar, CRF Development Manager Sarah Badawi, CRF Program Director Christopher H. Paskach, Esq., CRF, Board Chair

Special thanks to Carlos Monagas from the Riverside District Attorney’s Office, Joshua Hanks, Attorney at Law in Riverside and Jean Wentz, retired, Los Angeles, for all their help with the 2016-2017 revisions of the Mock Trial Simplified Rules of Evidence.

Cover Drawing: Timothy Benitez, Fresno County, California Mock Trial Courtroom Art Contest Winner, 2017.

Constitutional Rights Foundation, 601 South Kingsley Dr., Los Angeles, CA 90005. 213.487.5590 F: 213.386. 0459 www.crf-usa.org

http://www.crf-usa.org/


TABLE OF CONTENTS

Program Objectives ............................................................................................... 4

Code of Ethics............................................................................................................... 4

Classroom Discussion Materials ............................................................................. 5

Introduction to California Mock Competition .................................................... 12

Fact Situation ......................................................................................................... 13

Charges ................................................................................................................... 16

Stipulations.............................................................................................. 16

Legal Authorities and Pretrial Materials .......................................................... 18

Pretrial Arguments .................................................................................... 18

Legal Authorities ....................................................................................... 20

Witness Statements .................................................................................................. 29

Exhibits .................................................................................................................. 46

The Form and Substance of a Trial ..................................................................... 56

Team Role Descriptions ...................................................................................... 57

Procedures for Presenting a Mock Trial Case ................................................... 61

Diagram of a Typical Courtroom ..................................................................... 65

Mock Trial Simplified Rules of Evidence ........................................................... 66

Allowable Evidentiary Objection .......................................................... 67

Summary of Allowable Objections ................................................................... 78

Copyright 2017, Constitutional Rights Foundation. All Constitutional Rights Foundation (CRF) publications, including these Mock Trial materials, are protected by copyright. These Mock Trial materials are intended for use solely by teachers, coaches, students and other participants in the 2017-2018 California Mock Trial competition. However, we hereby grant to all recipients a license to reproduce the “Classroom Discussion Materials” to students and educators. It is a violation of this copyright to forward, print, or distribute the mock trial materials to individuals or groups that are nonparticipants in the 2017-2018 California Mock Trial competition, or to use these materials for commercial purposes or financial gain, without prior express permission from CRF. Any team in violation of this copyright may be disqualified from participation in the competition. All rights reserved.


PROGRAM OBJECTIVES For the students, the Mock Trial program will: 1. Increase proficiency in basic skills (reading and speaking), critical-

thinking skills (analyzing and reasoning), and interpersonal skills (listening and cooperating).

2. Develop an understanding of the link between our Constitution, our courts, and our legal system.

3. Provide the opportunity for interaction with positive adult role models in the legal community.

For the school, the program will: 1. Provide an opportunity for students to study key legal concepts and

issues. 2. Promote cooperation and healthy academic competition among

students of varying abilities and interests. 3. Demonstrate the achievements of young people to the community. 4. Provide a hands on experience outside the classroom from which

students can learn about law, society, and themselves. 5. Provide a challenging and rewarding experience for teachers.

CODE OF ETHICAL CONDUCT All participants (including observers) are bound by all sections of this Code and agree to abide by the provisions.

1. All competitors, coaches and other participants, including observers will show courtesy and respect for all team members and participants, including their opponents and all courthouse staff, judges, attorney coaches, teacher coaches and mock trial staff and volunteer personnel.

2. All competitors, coaches and participants, including observers, will show dignity and restraint, irrespective of the outcome of any trial. Trials, contests and activities will be conducted honestly, fairly, and with civility.

3. Team members and all student participants will conform to the highest standards of deportment. Team members and participants will not employ tactics they believe to be wrong or in violation of the Rules. Members and participants will not willfully violate the Rules of the competition in spirit or in practice. All teams and participants are responsible for insuring that all observers are aware of the Code.

4. Teacher Coaches agree to focus on the educational value of the Mock Trial Competition. They shall discourage willful violations of the Rules and/or this Code. Teachers will instruct students as to proper procedure and decorum and will assist their students in understanding and abiding by the letter and the spirit of the competition's Rules and this Code of Ethical Conduct.

5. Attorney Coaches agree to uphold the highest standards of the legal profession and will zealously encourage fair play. Attorney Coaches are reminded that they must serve as positive role models for the students. They will promote conduct and decorum among their team members and fellow coaches in accordance


with the letter and the spirit of the competition's Rules and this Code of Ethical Conduct and will demonstrate the same through their own behavior. They will emphasize the educational value of the experience by requiring that all courtroom presentations (e.g. pretrial, questions, objections, etc.) be substantially the work product of the student team members.

By participating in the program, students, teacher coaches and attorney coaches are presumed to have read and agreed to the provisions of the Code. Violations of this Code of Ethical Conduct may be grounds for reductions in scores, disqualification from a contest and/or suspension or expulsion from the program.

2017–2018 CALIFORNIA MOCK TRIAL PROGRAM Each year, Constitutional Rights Foundation creates the Mock Trial for students across the state of California. The case provides students an opportunity to wrestle with large societal problems within a structured forum and strives to provide a powerful and timely educational experience. It is our goal that students will conduct a cooperative, vigorous, and comprehensive analysis of these materials with the careful guidance of teachers and coaches.

The lesson and resources included in this packet offer schools and teachers additional methods to expand and deepen the educational value of the Mock Trial experience. We encourage all participants to share these resources with their colleagues for implementation in the classroom. We hope that by participating in the lesson and the Mock Trial program, students will develop a greater capacity to deal with the many important issues identified in People v. Davidson.

CLASSROOM DISCUSSION MATERIALS The lesson "Free Speech on Campus" is adapted from "Free Speech on Campus: Trigger Warnings, Safe Spaces, and Controversial Speech at U.S. Colleges" by Aimée Koeplin, Ph.D., in Bill of Rights in Action, 32:4 (Summer 2017).]

Civil Conversation: Free Speech on Campus Overview: Civil Conversations give students the opportunity to engage in a supported close reading and analysis of a text that presents different perspectives on an issue. Students then participate in a structured small- group discussion of the text and the issue it addresses. Finally, students reflect on their participation in the conversation, with an emphasis on forming their own informed opinion and considering where they found common ground with their classmates. It is very deliberately not a debate, but a chance for students to engage in thoughtful dialogue. This Civil Conversation reflects controversial topics raised by the facts in this year’s Mock Trial case.

The procedure for this activity is included in the Reading Guide that follows the article “Free Speech on Campus.”


Free Speech on Campus The First Amendment to the U.S. Constitution includes the freedom of speech. “Congress shall make no law… abridging the freedom of speech.” The freedom of speech guarantees that the government cannot prevent or punish speech itself. Public colleges and universities are government institutions and must abide by the First Amendment in protecting free speech. But what if college students anticipate that speech on campus will do them harm? Does the government have a role in determining what can or cannot be said on college and university campuses?

Campus Diversity and Hate Speech The Supreme Court has held that diversity is a compelling interest for public colleges. (The terms “college” and “university” will be used interchangeably in this article.) For example, colleges may allow incoming students’ race, ethnicity, gender, disability, or sexual orientation to play a part in their admission to the college.

But the Supreme Court has also held that hate speech is not an exception to the First Amendment. Hate speech is speech that shows hostility to people based upon the same factors that make up diversity (race, ethnicity, gender, etc.). It is protected speech unless it incites violence or provokes a fight. But should free speech on college campuses ever allow any hate speech?

Diversity advocates argue that public and private colleges have an interest in creating a safe environment for all kinds of students. Presumably no student wants to go to a university where he or she is made to feel like an outsider. Nor does anyone want to fear being called racist names as he or she studies.

Advocates also claim that diversity in colleges is important both for the sake of individual students and for the sake of our collective pursuit of knowledge. Individual students of all backgrounds, races, sexual orientations, and genders should be present at our universities since the Constitution guarantees equal access to education to all.

Diversity is also important for our collective pursuit of knowledge. The more varied perspectives and different points of view that are represented in our universities, the more likely we are to arrive at truth.

Many people worry that unrestricted free speech on college campuses creates tension between free speech and creating a welcoming, diverse campus community. On the one hand, college is supposed to be the place where freedom of speech will allow us to examine even unpopular opinions – possibly even racist, sexist, or homophobic opinions – in the light of day. But on the other hand, it is important that no one is left out of the conversation.

Trigger Warnings To protect potential student sensitivities, professors often issue “trigger warnings.” These can be verbal or written warnings that some of the


content of the course may upset or disturb specific students. For example, if a novel in a literature class involves a character using racist language, the professor can warn students about it before they have to read it.

Proponents of “trigger warnings” say that trigger warnings are just a “heads up” that some material presented in class or presented by a speaker could potentially set off a trauma for some students. Advanced warning, they claim, can help students prepare for the coming emotional impact. For example, suppose a student has been a victim of sexual assault. If she reads a description of sexual assault in a literature class, it could be very upsetting, even traumatic. It might be helpful for her to have a warning that this is coming in order to mentally prepare.

Critics of trigger warnings argue that there is little evidence that they are actually helpful to students. The American Association of University Professors worries that trigger warnings treat adult students like children. Excessive warnings, they argue, may dissuade students from dealing with challenging ideas – which is critical to the intellectual development of college students. If students demand trigger warnings, faculty just may start to avoid using potentially offensive materials. Critics also worry that trigger warnings can undermine educational goals by “spoiling” literary works in a way that would undermine their force.

Safe Spaces A “safe space” is an area on a campus where students can meet and share experiences of feeling victimized or marginalized by racism, sexism, anti-Semitism, homophobia, or some other discriminatory practice. Students in a safe space do not want to hear any potential hate speech while they are within the safe space. Safe spaces can be formal, such as an office of multicultural affairs, or informal, such as part of some open area often called the “commons.”

Proponents of campus safe spaces argue that the idea has historic origins. Underrepresented groups, such as black students, women, and LGBT students, have not always been allowed on U.S. college campuses, let alone welcomed in them. Campuses have at times been overtly hostile to members of these groups. Therefore, members of underrepresented groups developed clubs and places to retreat from a hostile campus community and to support one another. Black student unions, Hillel houses (for Jewish students), women’s resource centers, and LGBT centers are examples of more formal “safe spaces” that have existed for a long time.

Historically, safe spaces have also functioned as incubators for new ideas. Cameron Okeke, a recent black University of Chicago graduate, argues that safe spaces are still important. “As a first generation black student, I needed safe spaces… not to ‘hide from perspectives at odds with my own,’ but to heal from relentless hate and ignorance, to hear and be heard. My ideas were challenged, but never my humanity. I mattered.”

Some commentators claim that a university’s primary purpose is to provide a challenging, rigorous intellectual environment, not safe spaces. They worry that a focus on creating a welcoming environment for all


students too often overshadows the university’s true academic mission.

Critics of safe spaces are also often concerned that they do not allow students to deal with conflict in a mature way. In November 2014, Wendy McElroy gave a lecture at Brown University. McElroy is a libertarian political thinker who is known for being critical of the idea of “rape culture,” which is the idea that American society tends to excuse young men for raping young women. Many students were prepared to be “triggered” by McElroy’s talk. As part of the preparation, student volunteers created a “safe space” available during McElroy’s lecture.

According to one description, the room for the safe space “was equipped with cookies, coloring books, bubbles, Play-Doh, calming music, pillows, blankets and a video of frolicking puppies. . . .” Critics argued that this safe space was more appropriate for preschool-aged children than for adult students engaged in a courageous pursuit of truth.

Controversial Campus Speakers As we saw in the case of Wendy McElroy, campus groups’ choice of speakers can sometimes be a source of conflict. Audience members might continually interrupt or heckle controversial speakers. Students might protest. College officials might revoke invitations. And in some cases, violence has even broken out. According to the Foundation for Individual Rights in Education, in 2016 alone there were 42 attempts to disinvite speakers from U.S. college campuses. Twenty-four of those attempts did ultimately result in the speaker being disinvited. Of those 42 attempts to disinvite a speaker, Milo Yiannopoulos was targeted more than any other individual speaker. Milo Yiannopoulos is a writer and former editor of Breitbart News. He refers to himself as a political provocateur who likes to stir up arguments for their own sake. He is known for making incendiary claims such as “feminism is a cancer,” and he calls the Black Lives Matter movement a “hate group.” Twitter banned him for encouraging his followers to harass actress Leslie Jones, who is black. Yiannopoulos’s talks have often inspired protests and even violent incidents. In December 2016 at the University of Wisconsin at Milwaukee, he displayed the photo and “birth name” of a transgender student on an overhead projector. He criticized the student for filing complaints against the university in order to be permitted to use the women’s locker rooms. He used LGBT slurs against the student. In January 2017, at the University of Washington, many students protested a speech he was giving. An apparent supporter of his shot a protester. Yiannopoulos remarked, “If we don’t continue, then they have won.” The audience cheered. In February 2017, the College Republicans at the University of California at Berkeley (a public university) asked him to speak at their school. Over 100 faculty members signed a letter in an attempt to have this event cancelled.

Chancellor Nicholas Dirks responded in an open letter to the campus community. He argued that since the College Republicans are a separate legal entity from the UC Berkeley, the university had no legal path to


cancel the event. Dirks’s position was that even though Yiannopoulos’s speaking style is at odds with the broad values of the UC Berkeley community, Yiannopoulos has the right to speak.

As the lecture time drew near, protests became violent, and the UC Berkeley administration eventually cancelled the event. President Donald Trump took to Twitter to condemn the cancellation, going so far as to threaten to cut off federal funding to UC Berkeley for abridging Yiannopoulos’s right of free speech.

Protesters at both the University of Washington and UC Berkeley cited concerns about Yiannopoulos singling out students, as he did in Milwaukee, which could endanger those students’ safety on their own campuses.

Those who defended Yiannopoulos’s right to speak, however, argued that we cannot preemptively strip him of his right to speak in all cases because he may have crossed the line into unprotected speech on one occasion. Defenders argue that disinviting controversial or possibly incendiary speakers, or shutting down those speakers during their talks, is censorship. When it occurs at a public university like UC Berkeley, it is government censorship.


CIVIL CONVERSATION GUIDE

Name: Class:

Title of Reading:

A. Read through the entire selection without stopping to think about any particular section. Pay attention to your first impression as to what the reading is about.

B. Re-read the selection and annotate (“talk to”) the text: • Underline the main/most important points. You can comment on

these points in the margins. • Circle words or phrases that are unknown or confusing to you. • Write down any questions you have in the margin labeling them

with a “?”. • Draw an in the margin next to text that connects to something

else you know outside the text. Note what the connection is, such as a news item or personal experience.

A. This reading is about… B. The MAIN POINTS are:

C. In the reading, I agree with: D. In the reading, I disagree with:

Step 1: Read.

Step 2: Think about the reading to prepare for the Civil Conversation.


RULES FOR CIVIL CONVERSATION 1. Everyone in your group should participate in the conversation.

2. Listen carefully to what others are saying.

3. Ask clarifying questions if you do not understand a point raised.

4. Be respectful of what others are saying.

5. Refer to the text to support your ideas.

You will have minutes to discuss. Your goal is to engage with each other and the text to gain insight about your own point of view while finding a shared understanding of issues.

At the end of the reading, you will likely find at least one discussion question. Use that question to get your discussion started. If time permits, you can also discuss questions you came up with in Step 2.

If the reading does not provide discussion questions, choose questions to discuss from Section E above.

A. Compared to others in my group, I spoke: less than, about

the same as, more than others

B. Some of the ways I added to the discussion:

C. What evidence did you use from the text to add to the discussion? Why was this evidence helpful?

D. What did you learn about the topic from the civil conversation?

(Be sure to reference the text!)

E. What are two questions about this reading that you think could be discussed? (The best questions for discussion are ones that have no simple answer and that can use the text as evidence.)

1.

2.

Step 3: Discuss and listen.

Step 4: After your conversation…


INTRODUCTION TO 2017–2018 MOCK TRIAL COMPETITION

This packet contains the official materials required by student teams to prepare for the 37th Annual California Mock Trial Competition. In preparation for their trials, participants will use information included in the People v. Davidson case packet (except for the classroom discussion materials). The competition is sponsored and administered by Constitutional Rights Foundation. The program is co-sponsored by the Daily Journal Corporation and American Board of Trial Advocates.

Each participating county will sponsor a local competition and declare a winning team from the competing high schools. The winning team from each county will be invited to compete in the state finals in Orange County March 16-18, 2018. The winning team from the state competition will be eligible to represent California at the National High School Mock Trial Championship in Reno, Nevada, May 10–12, 2018.

The Mock Trial is designed to clarify the workings of our legal institutions for young people. As student teams study a hypothetical case, conduct legal research, and receive guidance from volunteer attorneys in courtroom procedure and trial preparation, they learn about our judicial system. During Mock Trials, students portray each of the principals in the cast of courtroom characters, including counsel, witnesses, court clerks, and bailiffs. Students also argue a pretrial motion. The motion has a direct bearing on the evidence that can be used at trial.

During all Mock Trials, students present their cases in courtrooms before actual judges and attorneys. As teams represent the prosecution and defense arguments over the course of the competition, the students must prepare a case for both sides, thereby gaining a comprehensive understanding of the pertinent legal and factual issues.

Because of the differences that exist in human perception, a subjective quality is present in the scoring of the Mock Trial, as with all legal proceedings. Even with rules and evaluation criteria for guidance, no judge or attorney scorer will evaluate the same performance in the same way. While we do everything possible to maintain consistency in scoring, every trial will be conducted differently, and we encourage all participants to be prepared to adjust their presentations accordingly. Remember that the judging and scoring results in each trial are final.

IMPORTANT

Visit our Facebook page (CRF California Mock Trial) andTwitter (https://twitter.com/camocktrial @camocktrial) for all

program and case updates www.crf-usa.org

http://www.crf-usa.org/


1 CALIFORNIA MOCK TRIAL FACT SITUATION 2 3 Acorn is a small town of about 20,000 people. Over the last five 4 years, about 30 families from the country of Tanterra have 5 arrived as refugees in Acorn. The Tanterran population in Acorn 6 is growing, and they have largely been accepted into the 7 community. 8 9 Casey Davidson is a resident of Acorn who is a part of the

10 Equality For All (EFA) group, which is a political activist group 11 that favors liberal policies, including liberal immigration policies. 12 Davidson has regularly attended rallies and demonstrations since 13 first joining the EFA two years ago. A core of about 35 Acorn 14 residents are active in EFA, but many residents from nearby 15 towns join them when there is a public protest or assembly. EFA 16 has its own page on BLAB (an online social network) with 300 17 “likes.” 18 19 While most people in Acorn welcome the Tanterran refugees, 20 there are some who oppose their presence. One is Alex 21 Thompson, a young person who is a member of Our America 22 (OA). OA is conservative group that seeks to limit immigration 23 to the United States. OA has an online group page on BLAB with 24 170 “likes.” OA has attracted about 20 followers from Acorn who 25 meet infrequently with others from nearby areas. 26 27 Davidson and Thompson have publicly argued with each other at 28 city council meetings over the presence of Tanterran refugees. 29 Both have written letters to the editor of the local Acorn Tribune 30 newspaper. At a few political rallies over the last two years, 31 Davidson and Thompson confronted each other and argued over 32 their differing beliefs. Both EFA and OA are nonviolent groups. 33 At previous political rallies in Acorn extreme groups who 34 advocate violence or violent tactics have shown up seeking to 35 cause a disruption. Ultra Nats are a right-wing nationalist group 36 that has more extreme political and tactical views than OA. Rads 37 are an anarchist group with more extreme views on tactics than 38 the EFA. Acorn police are aware of both extreme groups. 39 40 Among the posts deleted from OA's BLAB page are posts 41 authored by Ultra Nats advocating immediate violent action 42 against Tanterrans to intimidate them into leaving the United 43 States. 44 45 In summer 2017, the OA invited Mitch O’Cannity to speak in 46 Acorn. O’Cannity is a national radio political commentator who 47 is an outspoken critic of progressive immigration policy. 48 Members of OA secured all the necessary permits from the City 49 of Acorn for O’Cannity’s appearance at a rally in front of Acorn


1 Town Hall, which leads into Acorn Park, scheduled for 2 September 14, 2017, at 10:00 a.m. 3 4 As a show of national pride, Tanterrans love to prominently 5 display their flag. In solidarity, Acorn residents who support 6 Tanterrans have taken to wearing black hoodies with the 7 Tanterran flag on the back around town. Davidson and the other 8 EFA members learned about the September 14 demonstration on 9 BLAB and planned to attend the speech wearing black hoodies

10 with the Tanterran flag to protest O’Cannity. 11 12 On September 10, Davidson and Thompson encountered each 13 other at the Acorn Farmers Market. Thompson tripped Davidson 14 and when Davidson got back up, they pushed, shoved, and 15 argued with each other until Thompson’s friend Morgan 16 Bonderman and others separated them. 17 18 By 9:30 a.m. on September 14, 2017, a few hundred people 19 assembled in Acorn Park and on the steps of Acorn Town Hall 20 for O’Cannity’s speech. Many of the EFA members at the rally 21 wore black hoodies with the Tanterran flag. Davidson attended 22 and brought a bullhorn and a walking stick to the event. 23 24 The crowd also included Alex Thompson, members of OA and 25 EFA, and many curious onlookers both from Acorn and nearby 26 areas. Some began pushing and elbowing each other. Several 27 people attending the speech brought sticks, poles, bricks, and 28 tree branches as rudimentary weapons. Due to the fact that they 29 were heavily outnumbered by the protesters, Acorn police did 30 not try to confiscate the rudimentary weapons. Instead they 31 formed a line of officers between the OA and Ultra Nats on one 32 side (supporting the speaker), and the EFA and the Rads on the 33 other side (opposing the speaker) to keep them separated. 34 35 O’Cannity was scheduled to speak at 10:00 a.m., but he was 36 running late. An announcer from the Acorn mayor’s office told 37 the crowd around 9:40 a.m. that the speech was going to start at 38 approximately 10:20 a.m. After hearing about the delay, the two 39 assembled political groups became restless, and many individuals 40 from the Rads and the Ultra Nats began to cross the police line 41 and scuffle with each other. 42 43 At approximately 9:50 a.m., Thompson crossed the police line 44 and started throwing eggs at people wearing the Tanterran 45 hoodies. Thompson hit four people with eggs. Davidson saw this, 46 and Thompson and Davidson argued. During the argument, 47 Thompson attempted to gain possession of Davidson’s walking 48 stick. At that moment, someone snuck behind Thompson and 49 punched Thompson in the face, causing a bloody nose. The 50 person fled and was never identified. 51


1 Thompson immediately retreated to the OA side of the police line 2 before heading toward the nearby public restroom in Acorn Park. 3 Pushing, shoving, and some fighting continued between the Rads 4 and Ultra Nats as the Acorn Police tried to maintain control. 5 About twenty minutes after Thompson left the scene, the 6 announcer from the mayor’s office told the crowd that 7 O’Cannity’s speech was cancelled out of concern for the safety of 8 O’Cannity and those in attendance. The police immediately told 9 the crowd to disperse and that anyone remaining after 10

10 minutes would be considered part of an unlawful assembly and 11 subject to arrest. 12 13 At 10:20 a.m., most of the crowd began to leave or had left the 14 area. Davidson used the bullhorn to address those remaining, 15 declaring “There aren’t enough police to stop us! Let’s get these 16 Tanterran haters now! We stopped this stupid speech! No 17 O’Cannity!” More fights broke out between the Ultra Nats and 18 Rads. Members of EFA and OA were drawn into the fray and 19 forced to defend themselves. A police officer near Davidson 20 warned Davidson to stop using the bullhorn. 21 22 A few minutes later, as the crowd continued to disperse, a 23 gruesome discovery was made. At approximately 10:25 a.m., 24 Morgan Bonderman found Thompson’s body underneath a 25 cluster of trees at the back of Acorn Park. Thompson’s face and 26 the side of Thompson's head were covered in blood. Thompson 27 had wounds on the hands and wrists, and the screen on the 28 fitness tracker Thompson was wearing was broken. Davidson’s 29 walking stick was found 10 feet from Thompson’s body, and a 30 tree branch was found 15 feet away. Both had blood on them. 31 32 Detective Adrian Carroll interviewed several attendees and 33 examined the walking stick. Detective Carroll, who was present at 34 the rally and in uniform, learned that the walking stick matched 35 the description of a walking stick belonging to Davidson. Over the 36 next several days, Carroll learned that Davidson told Thompson: 37 “Get back on your side of the line, or you’ll get what’s coming to 38 you!” [Carroll also further learned from GPS data in Davidson’s car 39 that, late at night four times over the past two weeks, it was at the 40 warehouse on the outskirts of town where Thompson lived.] Based 41 on Detective Carroll’s investigation, Carroll arrested Davidson for 42 the murder of Alex Thompson. Davidson was charged with first- 43 degree murder. 44 45 46 47 48 49 50 51


1 SOURCES FOR THE TRIAL 2 The sources for the mock trial are a “closed library,” which 3 means that Mock Trial participants may only use the materials 4 provided in this case packet. The materials for the trial itself 5 include Statement of Charges, Physical Evidence, Stipulations, 6 excerpts from the California Penal Code, CALCRIM Jury 7 Instructions, Fact Situation, Witness Statements, and the Mock 8 Trial Simplified Rules of Evidence. 9

10 STATEMENT OF CHARGES 11 The prosecution charges Davidson with First Degree Murder 12 (California Penal Code §§ 187, 189). 13 14 PHYSICAL EVIDENCE 15 Only the following physical evidence may be introduced at trial. 16 The prosecution is responsible for bringing: 17 1. Exhibit A, Diagram of the Acorn Park 18 2. Exhibit B, Diagram of where Thompson's body was found. 19 3. Exhibit C, Photograph of Davidson's Shirt 20 4. Exhibit D, Photograph of Davidson’s Pants 21 5. Exhibit E, Photograph of Davidson’s Shoes 22 6. Exhibit F, Photograph of Davidson’s Walking Stick 23 7. Exhibit G, Photograph of the Tree Branch 24 8. Exhibit H, Davidson's Receipt From Acorn Tech Shop 25 9. Exhibit I, Autopsy Report 26 10. Exhibit J, GPS Map of Davidson’s Car Locations. 27 *ALL reproductions must be the same size as the original 28 document or up to 8 x 11 inches. Any other size enlargements 29 will not be allowed. Exhibits may be printed in color from the 30 mock trial website or in black and white as provided in this 31 case packet. 32 STIPULATIONS 33 Stipulations shall be considered part of the record. Prosecution 34 and defense stipulate to the following: 35 36 1. Other than the Fourth Amendment pretrial issue, there are no 37 issues with the seizure of evidence or the arrest of the defendant. 38 2. There are no Miranda issues related to Davidson arrest. 39 3. Thompson and Davidson are about the same age, height, weight, 40 and build. 41 4. There was no blood on the bullhorn, and no possibility it was 42 the murder weapon. 43 5. Acorn is in the Northern Judicial District of California. 44 6. No arguments made about the validity of any business records 45 are permitted. 46 7. Detective Carroll is to be considered an expert related to GPS 47 testimony. 48 8. All physical evidence and witnesses found in this case, but not 49 made physically available for trial, are unavailable and their 50 availability may not be questioned.


1 9. Beyond what's stated in the fact situation and witness 2 statements, no other evidence was found in this case. 3 10. All witness statements were taken in a timely manner. 4 11. Devon Morrison and Tory Lee are qualified expert witnesses 5 and can testify to each other’s statements and relevant 6 information they would have reasonable knowledge of from the 7 fact situation, witness statements and stipulations. 8 12. Tanterra is a fictional country created for purposes of the 9 Mock Trial with no specific geographical location. Any similarity 10 to a real country is coincidental. 11 13. The gender of the victim is the same as the gender of the 12 defendant. The fact that the gender is listed as NA on Autopsy 13 Report cannot be questioned. 14 14. The walking stick (Exhibit F) and the tree branch (Exhibit G) 15 are roughly the same size and weight. 16 15. If found admissible in trial, Exhibit J is a business record that 17 was properly kept, and its validity cannot be questioned. The 18 map in Exhibit J was created by Detective Adrian Carroll. The GPS 19 data in Exhibit J was received by Adrian Carroll from a private 20 GPS provider pursuant to a court order. 21 16. The Acorn Tech Shop receipt was found during the search of 22 Davidson’s home and belongs to Casey Davidson. 23 17. The car was manufactured with a built-in GPS system that 24 cannot be manually turned on or off. 25 18. There were two threatening messages written on Thompson’s 26 BLAB page, “O’Cannity followers like Thompson don’t deserve to 27 live.” and “Someone should kill idiots like you.” Detective Carroll 28 questioned Davidson about these. Davidson admitted to writing the 29 second threat, after the altercation at the farmers market with 30 Thompson. Davidson claimed to not have written the first message, 31 and that it was likely that someone else wrote the message when 32 Davidson’s BLAB page was left open. 33 19. The DNA of the skin cells found under Thompson’s fingernails 34 Matched the DNA of Casey Davidson. 35 20. The experts do not dispute that the blood found on the walking 36 stick, branch, Davidson’s pants, grey t-shirt, and left shoe was 37 Thompson’s blood. 38 39 Pre Trial Stipulations 40 Prosecution and defense must adhere to these pretrial stipulations 41 and any relevant stipulations in the preceding section for the 42 pretrial. 43 1. The prosecution obtained the GPS location information for 44 Davidson’s car directly from the GPS provider under a court 45 order secured by Detective Carroll. 46 2. This GPS information was automatically collected by the GPS 47 provider during the ordinary course of business in order to assist 48 and improve the operation of their GPS product (i.e., the 49 government did not place a GPS tracker on Davidson’s car). 50 3. The business records were properly kept and their validity 51 cannot be challenged.


1 4. The court order was insufficient to constitute a warrant for 2 purposes of the Fourth Amendment. 3 5. California state law does not offer additional privacy 4 protections beyond what is required by the U.S. Constitution, 5 federal statutes, and federal case law. 6 7 LEGAL AUTHORITIES AND PRETRIAL MATERIALS 8 (Middle school students do not argue the pretrial motion and 9 therefore the bracketed information in the fact situation and 10 witness statements may be used at trial.) 11 12 This section of the mock trial contains materials and procedures 13 for the preparation of the trial and a pretrial motion on an 14 important legal issue. The judge’s ruling on the pretrial motion 15 will have a direct bearing on the admissibility of certain pieces of 16 evidence and the possible outcome of the trial. The pretrial 17 motion is designed to help students learn about the legal process 18 and legal reasoning. Students will learn how to draw analogies, 19 distinguish a variety of factual situations, and analyze and debate 20 constitutional issues. These materials can be used as a classroom

21 activity or incorporated into a local mock trial competition. The 22 pretrial motion is the only allowable motion for the purposes of 23 this competition. 24 25 In the area of criminal due process, the Fourth Amendment 26 protects individuals from federal government intrusions on their 27 privacy by prohibiting unreasonable searches and seizures. These 28 rights are extended to the states by the due process clause of the 29 14th Amendment. Law enforcement officers often must search or 30 seize persons or their property when investigating crimes or 31 apprehending suspects. The tension between personal freedom 32 and governmental power has created numerous debates and 33 court decisions over the years. 34 35 The outcome of the pretrial motion will have a direct bearing on 36 the admissibility of the GPS information. If the presider rules in 37 favor of the defense, the information is excluded and the 38 attorneys and witnesses may not refer to or discuss the bracketed 39 information during the subsequent trial. 40 41 The text affected by this motion can be found in the witness 42 statements of Officer Carroll and Casey Davidson as well as in 43 the Fact Situation, within brackets, e.g., [text]. 44 45 PRETRIAL ARGUMENTS 46 The pretrial issue in this case focuses on whether it is a search 47 under the Fourth Amendment for the government to obtain 48 routinely collected GPS location data from a third-party GPS 49 provider. 50 51 The prosecution will argue that obtaining the routinely collected


1 GPS location data from a third-party GPS provider is not a search 2 under the Fourth Amendment. The content of communication is 3 protected under the Fourth Amendment, but the means of 4 communication is not. 5 6 Under 18 U.S.C. 2703, the Stored Communication Act (SCA), all 7 the government needs is “reasonable grounds to believe that the 8 records . . . are relevant and material to an ongoing criminal 9 investigation.” The defendant had no Fourth Amendment interest 10 in business records voluntarily obtained and stored as part of 11 usual business practices by the car GPS company. The Fourth 12 Amendment does not prohibit the government from obtaining 13 records voluntarily submitted to a third party; the defendant 14 assumed the risk by transmitting information to a third party GPS 15 company. Defendant has no reasonable expectation of privacy in 16 GPS records maintained as part of usual business by the car GPS 17 provider, and had no expectation of privacy on the street when 18 driving around. The defense will argue that obtaining the routinely 19 collected GPS location data from a third-party GPS provider is a 20 search under the Fourth Amendment. The Court cannot rely on old 21 cases cited by government, because they are from the 1970s, when 22 such sophisticated technology was not commonplace in society. 23 Technology has changed immensely since then, now nearly 24 everyone has some sort of GPS or smartphone. 25 26 The third party doctrine does not apply here, because the 27 defendant did not voluntarily turn over information to the car 28 GPS company. Applying the third party doctrine to modern era 29 GPS location or cell-site location information cases and saying 30 that customers turn over the information voluntarily would give 31 the government broad authority to track almost every aspect of 32 people’s lives, especially their location without a warrant. (i.e., 33 cell location data, personal emails, purchases from Amazon, and 34 cloud-based storage information). 35 The court should not apply the third party doctrine to modern 36 technology cases. People have a subjective expectation of privacy 37 related to modern technology, and that is a reasonable 38 expectation that society should be willing to accept. If not, and 39 the ruling is for the prosecution, that would mean that the court 40 expects people to be forced to choose between the technological 41 conveniences of modern life or retaining their privacy. 42 43 SOURCES FOR PRETRIAL HEARING 44 The sources for the pretrial motion arguments are a “closed 45 library,” which means that Mock Trial participants may only use 46 the materials provided in this case packet. These materials 47 include: bracketed information in the fact situation and witness 48 statements and any relevant testimony to be found in the fact 49 situation and witness statements of Adrian Carroll, Morgan 50 Bonderman, and Avery Williams, excerpts from the U.S. 51 Constitution, the California Constitution, the California Penal Code,


1 and edited court opinions. 2 3 The U.S. Constitution, U.S. Supreme Court holdings, and 4 California Supreme Court and California Appellate Court holdings 5 are all binding and must be followed by California trial courts. 6 All other cases are not binding but are persuasive authority. In 7 developing arguments for this Mock Trial, both sides should 8 compare or distinguish the facts in the cited cases from one 9 another and from the facts in People v. Davidson. 10 11 LEGAL AUTHORITIES 12 13 U.S. Constitution 14 Amendment IV 15 The right of the people to be secure in their persons, houses, 16 papers, and effects, against unreasonable searches and seizures, shall 17 not be violated, and no Warrants shall issue, but upon 18 probable cause, supported by Oath or affirmation, and 19 particularly describing the place to be searched, and the persons 20 or things to be seized. 21 22 Amendment XIV 23 Section 1. All persons born or naturalized in the United States, 24 and subject to the jurisdiction thereof, are citizens of the United 25 States and of the States wherein they reside. No State shall make 26 or enforce any law which shall abridge the privileges or 27 immunities of citizens of the United States; nor shall any State 28 deprive any person of life, liberty, or property, without due 29 process of law; nor deny to any person within its jurisdiction the 30 equal protection of the laws. 31 32 California Constitution 33 Article I, Section 13 34 The right of the people to be secure in their persons, houses, 35 papers, and effects against unreasonable seizures and searches 36 may not be violated; and a warrant may not issue except on 37 probable cause, supported by oath or affirmation, particularly 38 describing the place to be searched and the persons and things to 39 be seized. 40 41 STATUTORY 42 43 California Penal Code §187–§189 (2009) 44 §187 Murder Defined 45 (a) Murder is the unlawful killing of a human being, or a fetus, 46 with malice aforethought. 47 48 §188 Malice Defined 49 Such malice may be express or implied. It is express when there 50 is manifested a deliberate intention unlawfully to take away the 51 life of a fellow creature. It is implied, when no considerable


1 provocation appears, or when the circumstances attending the 2 killing show an abandoned and malignant heart. 3 4 §189 Degrees of Murder 5 All murder which is perpetrated by means of . . . lying in wait, 6 torture, or by any other kind of willful, deliberate, and 7 premeditated killing . . . is murder of the first degree. All other 8 kinds of murders are of the second degree. 9 10 Stored Communications Act 11 18 U.S.C.A. § 2703: Required disclosure of customer 12 communications or records 13 (c) Records concerning electronic communication service or 14 remote computing service. (1) A governmental entity may 15 require a provider of electronic communication service or remote 16 computing service to disclose a record or other information 17 pertaining to a subscriber to or customer of such service (not 18 including the contents of communications) only when the 19 governmental entity . . . obtains a court order for such disclosure 20 under subsection (d) of this section . . . . 21 22 (d) Requirements for court order. A court order for disclosure 23 under subsection (b) or (c) may be issued by any court that is a 24 court of competent jurisdiction and shall issue only if the 25 governmental entity offers specific and articulable facts showing 26 that there are reasonable grounds to believe that the contents of 27 a wire or electronic communication, or the records or other 28 information sought, are relevant and material to an ongoing 29 criminal investigation. In the case of a State governmental 30 authority, such a court order shall not issue if prohibited by the 31 law of such State. A court issuing an order pursuant to this 32 section, on a motion made promptly by the service provider, may 33 quash or modify such order, if the information or records 34 requested are unusually voluminous in nature or compliance 35 with such order otherwise would cause an undue burden on such 36 provider. *The Stored Communications Act was enacted as Title II 37 of the Electronic Communications Privacy Act of 1986 (ECPA). 38 39 JURY INSTRUCTIONS 40 California Criminal Jury Instructions 41 42 CALCRIM 223 (Direct and Circumstantial Evidence) 43 Facts may be proved by direct or circumstantial evidence or by a 44 combination of both. Direct evidence can prove a fact by itself. 45 For example, if a witness testifies he saw it raining outside before 46 he came into the courthouse, that testimony is direct evidence 47 that it was raining. Circumstantial evidence also may be called 48 indirect evidence. Circumstantial evidence does not directly 49 prove the fact to be decided, but is evidence of another fact or 50 group of facts from which you may logically and reasonably


1 conclude the truth of the fact in question. For example, if a 2 witness testifies that he saw someone come inside wearing a 3 raincoat covered with drops of water, that testimony is 4 circumstantial evidence because it may support a conclusion that 5 it was raining outside. 6 7 Both direct and circumstantial evidence are acceptable types of 8 evidence to prove or disprove the elements of a charge, including 9 intent and mental state and acts necessary to a conviction, and 10 neither is necessarily more reliable than the other. Neither is 11 entitled to any greater weight than the other. You must decide 12 whether a fact in issue has been proved based on all the 13 evidence. 14 15 CALCRIM 224 (Circumstantial Evidence: Sufficiency of 16 Evidence) 17 Before you may rely on circumstantial evidence to conclude that 18 a fact necessary to find the defendant guilty has been proved,

19 you must be convinced that the People have proved each fact 20 essential to that conclusion beyond a reasonable doubt. 21 22 Also, before you may rely on circumstantial evidence to find the 23 defendant guilty, you must be convinced that the only reasonable 24 conclusion supported by the circumstantial evidence is that the 25 defendant is guilty. If you can draw two or more reasonable 26 conclusions from the circumstantial evidence and one of those 27 reasonable conclusions points to innocence and another to guilt, 28 you must accept the one that points to innocence. However, 29 when considering circumstantial evidence, you must accept only 30 reasonable conclusions and reject any that are unreasonable. 31 32 CALCRIM 520 (Murder With Malice Aforethought) 33 The defendant is charged with murder. To prove that the 34 defendant is guilty of this crime, the People must prove that: 35 1. The defendant committed an act that caused the death of 36 another person; and 37 2. When the defendant acted, (he/she) had a state of mind called 38 malice aforethought; and 39 3. (He/She) killed without lawful (excuse/[or] justification). 40 41 There are two kinds of malice aforethought, express malice and 42 implied malice. Proof of either is sufficient to establish the state 43 of mind required for murder. 44 The defendant acted with express malice if (he/she) unlawfully 45 intended to kill. 46 The defendant acted with implied malice if: 47 1. (He/She) intentionally committed an act; 48 2. The natural consequences of the act were dangerous to human 49 life; 50 3. At the time (he/she) acted, (he/she) knew (his/her) act was 51 dangerous to human life; and


1 4. (He/She) deliberately acted with conscious disregard for 2 human life. 3 Malice aforethought does not require hatred or ill will toward the 4 victim. It is a mental state that must be formed before the act 5 that causes death is committed. It does not require deliberation 6 or the passage of any particular period of time. 7 8 CALCRIM 521 First Degree Murder (Pen. Code, § 189) 9 The defendant has been prosecuted for first degree murder under 10 the theory that the murder was willful, deliberate, and 11 premeditated. 12 13 The defendant is guilty of first degree murder if the People have 14 proved that (he/she) acted willfully, deliberately, and with 15 premeditation. The defendant acted willfully if (he/she) intended 16 to kill. The defendant acted deliberately if (he/she) carefully 17 weighed the considerations for and against (his/her) choice and, 18 knowing the consequences, decided to kill. The defendant acted 19 with premeditation if (he/she) decided to kill before committing 20 the act that caused death. 21 22 The length of time the person spends considering whether to kill 23 does not alone determine whether the killing is deliberate and 24 premeditated. The amount of time required for deliberation and 25 premeditation may vary from person to person and according to 26 the circumstances. A decision to kill made rashly, impulsively, or 27 without careful consideration is not deliberate and premeditated. 28 On the other hand, a cold, calculated decision to kill can be 29 reached quickly. The test is the extent of the reflection, not the 30 length of time. 31 32 33 CASES 34 Smith v. Maryland (1979) 442 U.S. 735 35 Facts: Police, without getting a warrant, installed a pen register 36 system at the phone company’s central offices with the 37 permission of the phone company. The pen register system 38 tracked the phone numbers dialed by the defendant, who was 39 suspected in a robbery. The defendant moved to have numbers 40 captured by the pen register excluded from evidence. 41 42 Issue: Was the tracking of phone numbers the defendant dialed 43 on a home phone without a warrant a search under the Fourth 44 Amendment? 45 46 Holding: No. It was not a search because the defendant could 47 not reasonably expect the numbers he dialed to remain private. 48 Because “Smith ‘voluntarily conveyed numerical information to 49 the telephone company and exposed that information to its 50 equipment in the ordinary course of business,” the “numerical 51 information was not protected under the Fourth Amendment.”


1 “A person has no legitimate expectation of privacy in information 2 he voluntarily turns over to third parties,” under the third party 3 doctrine. 4 5 United States v. Jones (2012) 565 U.S. 400 6 Facts: The FBI obtained a warrant to place a GPS tracking device 7 on the defendant’s SUV. The FBI suspected the defendant of 8 being a drug trafficker. The tracking device was placed on the 9 defendant’s SUV in a public parking lot and outside of the scope 10 of the warrant. The tracking device remained on the defendant’s 11 SUV for 28 days, generating over 2,000 pages of data on the 12 defendant’s movements. The defendant moved to have tracking 13 data captured by the GPS device excluded from evidence. 14 15 Issue: Does placing a GPS tracking device on a person’s vehicle 16 constitute a search under the Fourth Amendment? 17 18 Holding: Yes. The Fourth Amendment protects people, not 19 places, and a vehicle is encompassed by “effect” in Fourth 20 Amendment. The government physically intruded into an area 21 protected by the Fourth Amendment, so it was a search under 22 the Fourth Amendment. The government physically intruded into 23 an area protected by the Fourth Amendment, so it was a search 24 regardless of whether a reasonable expectation of privacy 25 existed. 26 27 United States v. Miller (1976) 425 U.S. 435 28 Facts: The ATF, without a warrant, obtained copies of checks 29 and other banking records from the two banks where the 30 defendant had accounts. The defendant was suspected of illegally 31 producing alcohol and avoiding the whiskey tax. The banks 32 maintained the records in accordance with the Bank Secrecy Act 33 of 1970. The defendant moved to have the banking records 34 excluded from evidence. 35 36 Issue: Was the ATF’s obtaining of individual banking records 37 from a bank a search under the Fourth Amendment? 38 39 Holding: No. The defendant had no reasonable expectation of 40 privacy and no interest in the documents. Defendant had neither 41 ownership nor possession of the documents, but had voluntarily 42 given the information to the bank in the normal course of 43 business. “This Court has held repeatedly that the Fourth 44 Amendment does not prohibit the obtaining of information 45 revealed to a third party and conveyed by him to Government 46 authorities, even if the information is revealed on the assumption 47 that it will be used only for a limited purpose and the confidence 48 placed in the third party will not be betrayed.” The defendant 49 assumed the risk that the documents could be turned over to the 50 government, when he gave his information to the bank. 51


1 Katz v. United States (1967) 389 U.S. 347 2 Facts: Police, without getting a warrant, wiretapped a public 3 phone booth to listen to defendant’s calls. Defendant placed bets 4 from the phone in violation of federal law. The defendant moved 5 to have the recorded conversations excluded from evidence. 6 7 Issue: Was the police recording of defendant’s calls a search? 8 9 Holding: Yes. The court defined a search as any governmental 10 intrusion into something in which a person has a reasonable 11 expectation of privacy. Justice Harlan’s concurrence stated that 12 the reasonable expectation of privacy occurred when “first . . . a 13 person [has] exhibited an actual (subjective) expectation of 14 privacy and, second, that the expectation be one that society is 15 prepared to recognize as ‘reasonable.’ ” Here, the defendant had 16 a reasonable expectation of privacy in the booth. The officer’s 17 recording of his conversation constituted a search under the Fourth 18 Amendment. The police did not have any legal justification for the 19 search. Therefore, the search was unconstitutional. 20 21 United States v. Knotts (1983) 460 U.S. 276 22 Facts: Police believed that the defendant was purchasing 23 chloroform to manufacture drugs. Police got the seller of the 24 chloroform to agree to let law enforcement place a tracking 25 beeper in one of the containers of chloroform. Police used the 26 beeper to track the car carrying the chloroform from its place of 27 purchase to the defendant’s secluded cabin. The defendant 28 moved to have the tracking data excluded from evidence, since 29 the police had not obtained a warrant. 30 31 Issue: Was the placing of a tracking beeper in a container of 32 chloroform before it was sold to the defendant a search under the 33 Fourth Amendment? 34 35 Holding: No. It was not a search under the Fourth Amendment, 36 because visual surveillance by police would have given police the 37 same information. “The governmental surveillance conducted by 38 means of the beeper in this case amounted principally to the 39 following of an automobile on public streets and highways,” and 40 since people have no reasonable expectation of privacy on public 41 roads, this was not a search under the Fourth Amendment. 42 43 Riley v. California (2014) 573 US 44 Facts: Riley was pulled over for an expired registration. During 45 the stop it was found that Riley also had a suspended drivers 46 license. Riley’s car was impounded, and a search of Riley’s car 47 turned up a gun. Riley was arrested on gun charges. Police 48 searched Riley’s phone incident to the arrest. Based on photos 49 and videos from the phone Riley was charged in connection with 50 a shooting that took place a few weeks earlier. 51


1 Issue: Can police without a warrant search digital information on 2 a cell phone seized from someone who has been arrested? 3 4 Holding: No. The unanimous Supreme Court ruled police 5 generally may not, without a warrant, search digital information 6 on a cell phone seized from a person who has been arrested. The 7 interest in protecting officers safety or in preventing the 8 destruction of evidence do not dispense with the warrant 9 requirement. Digital data itself cannot be used as a weapon. Not 10 every search is acceptable solely because a person is in custody. 11 When “privacy related concerns are weighty enough” a “search 12 may require a warrant.” Before cell phones, “a search of a person 13 was limited by physical realities and tended as a general matter 14 to constitute only a narrow intrusion on privacy.” Today over 15 90% of people own cell phones, and these devices create a 16 “digital record of nearly every aspect of their lives.” The search of a 17 cell phone “would typically expose to the government far 18 more than the most extensive search of a house,” so generally a 19 warrant is required. 20 21 In re Application for Telephone Information Needed for a 22 Criminal Investigation (D.C.ND Cal. 2015) 119 F.Supp.3d 1011 23 Facts: The government sought access to sixty days of petitioner’s 24 historical cell-site location information, including the physical 25 locations of the cellular tower and identification of the particular 26 sector of the tower that the phone was connected to. The judge 27 in the case denied the court order for the cell-site location 28 information. 29 30 Issue: Is the use of cell-site location information a search under 31 the Fourth Amendment? 32 33 Holding: Yes. The use of cell-site location information is a search 34 under the Fourth Amendment. These requests fall outside of the 35 third party doctrine, because consumers do not voluntarily share 36 information with cell phone tower/companies. The information is 37 shared anytime a cell phone is on, whether or not a consumer is 38 actively using the phone. Consumers have a reasonable 39 expectation of privacy in historical cell site location data. 40 41 United States v. Graham (4th Cir. 2016) 824 F.3d 421 42 Facts: Graham and a co-defendant were arrested for a series of 43 armed robberies of gas stations, convenience stores, fast food 44 restaurants, and other retail establishments. As part of the 45 investigation, the government obtained a court order pursuant to 46 the Stored Communication Act for the defendants’ historical cell- 47 site location information. The court order allowed the 48 government to collect historical cell-site location data from the 49 defendants for a 221-day period, including location data for 50 30,000 calls and texts. 51 52


1 Issue: Is the government’s acquisition of cell-site location 2 information over a 221-day period a search under the Fourth 3 Amendment, and thus requires a warrant? 4 5 Holding: No. A person has no reasonable expectation of privacy 6 in cell-site location information. Under the third party doctrine, 7 the defendant voluntarily exposed location information to the cell 8 phone company by using the phone, and assumed the risk that 9 the cell phone company would give up the information to the 10 government. Under the third party doctrine there is no limit to 11 the amount of data that can be collected. 12 13 United States v. Davis (11th Cir. 2015) 785 F.3d 498 14 Facts: Davis was arrested for seven robberies over a two-month 15 period. Davis robbed a pizzeria, a gas station, a drug store, an 16 auto parts store, a beauty salon, a fast food restaurant, and a jewelry 17 store. The government got a court order to obtain location data 18 pursuant to Stored Communication Act for cell-site location 19 information for a 67-day period. The government used 20 the cell-site location information to link Davis to the robberies. 21 22 Issue: Is the government’s acquisition of cell-site location 23 information over a 67-day period a search under the Fourth 24 Amendment, thus requiring a warrant? 25 26 Holding: No. The defendant did not have ownership of 27 possession of the cell-site location information in question. The 28 data was created and stored by the cell phone company, and 29 subject to the cell phone company’s control. The defendant had 30 no subjective or objective expectation of privacy in the phone 31 company’s business records. The third party doctrine controls the 32 outcome of this case. A reasonable expectation of privacy does 33 not change because of the amount of information collected. 34 35 In re Application of the United States for Historical Cell Site 36 Data (5th Cir. 2013) 724 F.3d 600 37 Facts: The government filed applications for court orders 38 pursuant to the Stored Communication Act (SCA) seeking the 39 subscriber information and cell-site location information. 40 information as part of three investigations for a 60-day period. 41 The magistrate judge granted a court order for subscriber 42 information only citing the SCA standard of “specific and 43 articulable facts showing that there are reasonable grounds to 44 believe that the contents of a wire or electronic communication, 45 or the records or other information sought, are relevant and 46 material to an ongoing criminal investigation,” was met. 47 However, the magistrate judge denied the court order for the cell- 48 site location information, stating that a warrant was needed 49 because it was a Fourth Amendment search. 50 Issue: Are court orders pursuant to the SCA that compel cell 51 phone companies to provide historical cell site location data


1 unconstitutional? 2 3 Holding: No. The word “shall,” which is used in the SCA, “is 4 ordinarily language of a command.” The “shall directs the court 5 to issue the order if all necessary conditions in the statute are 6 met,” as they were in this case. As long as these conditions are 7 met, the court does not have discretion to deny issuing a court 8 order. It is the phone company, not the government, who 9 creates, maintains, and possesses the cell-site location 10 information, and the companies do so as part of their regular 11 business practices. Customers voluntarily transmit the 12 information to cell phone companies, because the use of the cell 13 phone is voluntary, and customers know that data is being 14 transmitted to the cell phone company. Once the information is 15 conveyed to the third party (cell phone companies) it can be 16 used for any purpose. 17 18 In re Application of U.S. for an Order Directing a Provider of 19 Electronic Communication Service to Disclose Records to the 20 Government (3rd Cir. 2010) 620 F.3d 304 21 Facts: The government applied for a court order pursuant to 22 Stored Communications Act (SCA) to make cell phone providers 23 turn over cell-site location information. The application for the 24 court order sought this information as part of an ongoing 25 investigation into large-scale narcotics trafficking and various 26 other crimes. The magistrate judge denied the application for a 27 court order pursuant to the SCA, and instead insisted a warrant is 28 needed. 29 30 Issue: Is a judge required to approve the application for a court 31 order for cell-site location information under the SCA? 32 Holding: No. The government has a lower burden than probable 33 cause needed for a warrant to access cell-site location 34 information. The government must show, “specific and 35 articulable facts showing that there are reasonable grounds to 36 believe that the contents of a wire or electronic communication, 37 or the records or other information sought, are relevant and 38 material to an ongoing criminal investigation.” However, the 39 court has “discretion to require a warrant prior to ordering a 40 provider to produce customer cell-site location information.” 41 The language of the SCA says a court order “may be issued.” 42 This is language of permission (the order is optional) rather than 43 a mandate (the order is required). Additionally, a cell phone 44 customer has not voluntarily shared their information with a cell 45 phone company in any meaningful way.


1 WITNESS STATEMENTS 2 3 Prosecution Witnesses: Adrian Carroll (Arresting and 4 Investigating Detective) 5 My name is Adrian Carroll. I earned my bachelor's degree in 6 criminology from Peak City University in 2001. After graduating, 7 I moved to Washington, D.C., where I worked for the FBI as a 8 technical analyst and agent from 2001-2013. I left that job four 9 years ago and returned to my hometown of Acorn where I have

10 been on the Acorn Police force as a detective since 2013. I’ve 11 completed all the necessary requirements to become a detective 12 and I receive bi-annual education and training from the Acorn 13 Police Department to stay up to date on law enforcement 14 Techniques and protocols. Normally, I am not on the street beat, 15 but with Mitch O’Cannity coming to Acorn to give a speech, it was 16 all hands on deck. 17 18 Our America (OA) was there in support of O’Cannity; and 19 Equality for All (EFA) was there to protest O’Cannity’s speech. I 20 was familiar with OA as a nationalistic type of group. I also knew 21 of EFA as a group that favored the rights of immigrants. In my 22 limited interactions with these groups at rallies over the last 23 couple of years, I knew them to be nonviolent groups but 24 passionately at odds with each other. I was familiar with Casey 25 Davidson and Alex Thompson as particularly active and vocal 26 members of EFA and OA, respectively, and had seen them shout 27 at each other at a couple of small rallies I was assigned to 28 monitor. 28 29 Before the rally on September 14, other officers and I were 30 briefed that the rally could turn violent. We were told that there 31 was a fear that extremists would try to take over the rally with 32 violence. The Ultra Nats are a right-wing group that has more 33 extreme political and tactical views than OA. Some Ultra Nats 34 have been arrested in the past for violence against people at 35 rallies. Rads are an anarchistic group with more extreme views 36 on tactics than the EFA. Rads oppose all forms of government, 37 including laws either the OA or EFA would support. Rads do not 38 have the same history of arrests for violence against people at 39 rallies, but they do have a history of property destruction at past 40 rallies. Thompson was identified as an Ultra Nat. We now 41 believe that Davidson was part of Rads. We were briefed that the 42 September 14 rally could turn violent, so our goal was to keep 43 the two opposing groups apart. Other Acorn police officers had 44 also encountered both Davidson and Thompson at previous 45 rallies. 46 47 On the morning of September 14, Mitch O’Cannity was scheduled 48 to speak at 10:00 a.m. in front of Acorn Town Hall. Police had 49 been there since 8:00 a.m. to get ready, and attendees started to 50 show up around 9:00 a.m. By 9:30 a.m. there was already a large 51 crowd with a couple hundred people supporting both sides. We


1 formed a police line in the middle of the crowd to try to keep the 2 two opposing sides separated. This worked at first, but there 3 were so many people on both sides that our police line became 4 ragged. A number of people from each side crossed the police 5 line. There were a number of fights. 6 7 At 9:40 a.m., there was an announcement that the speech would 8 be delayed until 10:20 a.m. During the delay, members of the 9 crowd who belonged to the Rads and the Ultra Nats became

10 more rowdy. At 10:10 a.m., there was an announcement that 11 O’Cannity’s speech was cancelled out of concern for public 12 safety. A police officer announced to the crowd that the gathering 13 was now an unlawful assembly and ordered everyone to disperse 14 within 10 minutes or we would make arrests. 15 16 At 10:20 a.m., Davidson climbed the steps of town hall and stood 17 right in front of the podium there. Davidson used a bullhorn and 18 yelled, “There aren’t enough police to stop us! Let’s get these 19 Tanterran haters now! We stopped this stupid speech! No 20 O’Cannity!” A riot then broke out between the two sides. 21 22 I was positioned at the front of the police line, closest to the 23 podium. After Davidson’s statement, I instructed Davidson to 24 stop using the bullhorn and leave the area immediately, or be 25 arrested. Davidson complied and left the area. We made a few 26 arrests, and Acorn Park quickly emptied. 27 28 About five minutes after Davidson left the area, I heard over my 29 police radio that a body had been discovered in Acorn Park. I went 30 to the scene to investigate. 31 32 I arrived at the scene and saw the victim Alex Thompson. 33 Thompson’s face and the side of Thompson’s head were covered 34 in blood. There was blood on Thompson’s clothes. There were 35 two items near the scene that looked like potential weapons. One 36 was a stick about four feet in length that looked like a walking 37 stick. The letters C and D were carved on one end of it. The other 38 was a blue oak tree branch about three and a half feet in length. 39 The tree branch was about the thickness of the barrel of a 40 baseball bat at its thickest point. It looked like it had all of the 41 needles stripped off. The branch had a sharp jagged edge on one 42 side that looked rotten, indicating that the branch had probably 43 fallen off a tree or had been pulled off. The tree branch had some 44 blood drops on it. The tree branch and walking stick were 45 collected for blood and DNA analysis. 46 47 I saw quite a few people at the rally with rudimentary weapons 48 like the tree branch. I thought it was possible someone dropped 49 the tree branch there going to or leaving the speech. The walking 50 stick with “CD” carved into the handle had significantly more


1 blood on it on one end. I believed it was likely the murder 2 weapon. 3 4 I first interviewed Morgan Bonderman, who had discovered the 5 body and self-identified as a friend of Thompson. Bonderman 6 told me of an earlier confrontation that morning when Davidson 7 shoved a walking stick toward Thompson, and an unidentified 8 person punched Thompson in the nose. Around 10:15 a.m., 9 Bonderman had gone looking for Thompson, since Thompson

10 had not returned from tending to the bloody nose, and that is 11 when Bonderman found Thompson’s body. I later searched the 12 bathroom in Acorn Park but did not find any evidence of blood 13 there. 14 15 I asked Bonderman about the tree branch and walking stick. 16 Bonderman told us that Bonderman did not recognize the tree 17 branch. However, Bonderman said that Bonderman had seen 18 Davidson holding a walking stick at a public demonstration 19 before, and this one looked like the walking stick Davidson had 20 earlier that same morning. Bonderman also believed Bonderman 21 had seen Davidson’s car at least twice parked outside of the 22 empty warehouse where Thompson lived, late at night, in the 23 two weeks prior to the murder. The warehouse is located on the 24 outskirts of town. 25 26 At this point, Davidson became a person of interest in the 27 investigation because of Bonderman’s statement, the walking 28 stick, and because I knew of the contentious history between 29 Thompson and Davidson. I conducted additional interviews, but 30 I found no one who could identify the tree branch’s owner, or 31 who could identify the person who punched Thompson. As part 32 of the investigation we also collected all of the makeshift 33 weapons abandoned in Acorn Park after the rally. 34 35 Over the next several days, I interviewed others who attended 36 the rally. I spoke to Hayden Rodriguez who confirmed 37 Bonderman’s statements that Thompson and Davidson had 38 argued just before Thompson was punched. 39 40 In a follow up interview, Bonderman also told me about a 41 previous altercation between Davidson and Thompson on 42 September 10, 2017. Additionally, as part of the investigation I 43 searched Thompson’s social media and found two threatening 44 messages that Davidson had posted on Thompson’s BLAB page. 45 The first threatening message was three months ago when OA 46 had announced O’Cannity’s speech. It said “O’Cannity followers 47 like Thompson don’t deserve to live.” The second threatening 48 message was posted on Thompson’s page on September 10 and 49 read, “Someone should kill idiots like you.” I also found a post 50 that Thompson made the night before the speech. It read: “Going 51 to O’Cannity’s speech tomorrow. Rads better not show up if they


1 know what's good for them.” I also found evidence on social 2 media that the Rad members planned to wear shirts that were 3 grey on the day of the rally, so that they could be identified by 4 other Rad members. 5 6 As part of the investigation, I walked from the steps of Acorn 7 Town Hall to where Thompson’s body was found to determine 8 how long it takes. I completed the walk in six minutes. I also 9 walked from the murder scene to the Acorn Tech shop. That

10 walk took me five minutes. Finally, I walked from the Acorn 11 Tech Shop to the steps of town hall. That walk took seven 12 minutes. I walked at an average pace, but of course I did not 13 have to contend with crowds like those on the day of O’Cannity’s 14 speech. 15 16 [Also, based on Bonderman’s testimony about seeing Davidson’s 17 car at Thompson’s warehouse I got a court order pursuant to the 18 Stored Communication Act to obtain GPS location data from 19 Davidson’s car GPS company. The information obtained from the 20 car GPS company showed that the defendant’s car had been near 21 the location of Thompson’s warehouse, late at night, four times 22 over the last two weeks. The warehouse on the outskirts of town 23 where Thompson lives is the only building in the area. There was 24 also car GPS location data that placed Davidson at the location 25 where the Rads were known to meet eight different times over the 26 past month. 27 28 The way car GPS or really any GPS works is by communicating 29 location and other information, such as real time traffic 30 information to satellites in space. With this information the 31 location of the car GPS can be tracked within 50-100 feet of its 32 precise location. GPS and satellite companies keep and retain this 33 location data in the normal operation of their business to help 34 them improve features of their products such as real time traffic, 35 and to track customer usage patterns.] 36 37 Also as part of the investigation we searched Davidson's house. 38 During the search we discovered a grey shirt with Thompson’s 39 blood on it. We also found Davidson's jeans and shoes, which 40 both had Thompson's blood on them, but we did not find a black 41 hoodie with the Tanterran flag on it. We did not find blood on 42 any other items of Davidson’s clothes. The next day I returned to 43 Davidson’s home and arrested Davidson for the murder of Alex 44 Thompson.


1 Prosecution Witness: Devon Morrison (Medical Examiner) 2 My name is Devon Morrison. I earned my bachelor’s degree in 3 biology from East California University in 1997. I attended 4 medical school at Northern California State where I earned a 5 medical degree in 2002. After that, I moved to Acorn where I 6 have worked as a medical examiner for the last 15 years. I have 7 conducted over 100 autopsies during my career. I attend the 8 National Forensic Pathology Conference every year to keep up 9 with the latest advances in forensics. For the sake of

10 transparency both Alex Thompson and I were members of the 11 Acorn Country Club, but we did not know each other and this 12 coincidence had no effect on my investigation. 13 14 I performed the autopsy on Alex Thompson. The cause of death 15 was two depressed skull fractures and subdural hematoma. The 16 death occurred instantly after the second blow. There was bruising 17 and blood on the front of the victim's face, which was consistent 18 with getting punched in the face, but the fatal wounds were on the 19 left side of Thompson’s head above the ear and around the temple 20 area. I can say definitively that the injury to the front of the 21 victim's face was not the cause of death for the victim. 22 23 Thompson had wounds and scratches on the arms. Some of these 24 wounds were fresh and others appeared to be about three to four 25 days old. I recovered skin cell DNA evidence from underneath 26 Thompson’s fingernails. The DNA skin cell evidence was a match 27 to Davidson, indicating that Thompson had scratched or been in 28 a struggle with Davidson. 29 30 The victim was wearing a fitness tracker at the time of death. During the 31 morning of the incident, the victim’s tracker recorded heart rate levels 32 ranging from 60-110. At 10:03 a.m. the victim’s fitness tracker registered a 33 heart rate of 164. A normal heart rate of someone walking would be about 34 100-110. One minute later at 10:04 a.m., the fitness tracker registered no 35 heart rate. In my professional opinion, this indicates that Thompson 36 experienced physical stress between 10:03 a.m. and 10:04 a.m., and that 37 the victim’s time of death may have been 10:04 a.m., or shortly 38 afterwards, if the fitness tracker was broken before the victim died. This 39 data was obtained from the fitness tracker company though a court order. 40 41 The defensive wounds to the victim's hands and arms are 42 consistent with Thompson defending against a frontal attack. 43 Assuming Thompson was defending against a frontal attack, and 44 given the placement of Thompson's head wounds, the attacker 45 would have been right-handed. 46 47 It is difficult to match weapons to blunt-force head injuries based 48 only on the shape of the wounds, but the large quantity of blood 49 on the walking stick is consistent with the large amount of blood 50 that would have issued from head wounds such as the two that 51 appear on the victim. There were about 25 different blood spatter 52 marks of various sizes on the walking stick. Additionally, there


1 was blood smearing, indicating that someone wiped blood off the 2 walking stick. It is highly unlikely that the victim’s bloody nose 3 would leave a similar amount of blood on the walking stick. 4 5 I examined the clothes that were recovered from the search of 6 Davidson’s house that Davidson was wearing on the day of the rally. 7 Davidson’s jeans, grey t-shirt, and left shoe contained Thompson’s 8 blood. Davidson's grey shirt had five medium sized blood spatter 9 droplets on the left side at the bottom. This is consistent with blood

10 dripping from Thompson’s wound onto Davidson. On the bottom of the 11 right side of Davidson’s grey shirt was a thin long blood transfer smear 12 about five inches in length. In my professional opinion this kind of blood 13 transfer smear is consistent with wiping a long, bloody item, such as a 14 stick, on the grey shirt. Davidson’s jeans had a small amount of fine 15 blood spatter on the left pant leg. This is consistent with Davidson being 16 in the vicinity of where Thompson was struck in the head. Finally, 17 Davidson’s left shoe had two medium-to-large blood spatter droplets. 18 This is consistent with blood dripping from Thompson’s head wound. In 19 my professional opinion, the amount and type of blood evidence on 20 Davidson’s clothes was too great to have come from Thompson’s bloody 21 nose, so the blood transfer occurred when Thompson was killed. 22 23 In examining the walking stick, I found skin cells embedded in 24 the blood that contained the victim's DNA. This caused me to 25 have even higher confidence that the walking stick was the 26 murder weapon. There is little chance that Thompson’s skin cells 27 got embedded in blood on the walking stick when the victim 28 tried to grab it from Davidson. 29 30 I recovered 14 individual fingerprints from Davidson’s walking 31 stick that belonged to the defendant. There was an additional set of 32 fingerprints (from a right hand) on the walking stick that did not 33 belong to the defendant. I was unable to determine to whom the 34 additional set of fingerprints belonged. 34 35 I analyzed the tree branch found at the scene. It was from a blue 36 oak tree and was the same dimensions as a baseball bat. It had a 37 jagged edge on one end that looked rotten, as if it had fallen from 38 a tree. There were castoff blood spatter drops on the tree branch 39 that were consistent with the stick being near the scene of the 40 murder. I recovered no skin cells from the branch. The blood on 41 the tree branch matched the victim's blood. It is my professional 42 opinion that the relatively small amount of blood and lack of skin 43 cells on the tree branch are not consistent with the depth and 44 size of the head wound on the victim, and are only consistent 45 with blood spatter. The tree branch did have partial prints in 46 several places, but because the wood had bark on it and was not 47 smooth like the walking stick, I was not able to get any complete 48 fingerprints or identify to whom the partial prints belonged. I 49 also examined all other weapons recovered from the scene by 50 police. None of them contained any blood, or any skin cell DNA 51 from Thompson or Davidson.


1 Prosecution Witness: Hayden Rodriguez (Acorn Resident) 2 My name is Hayden Rodriguez. I am 45 years old and have lived 3 in Acorn my whole life. I am a reporter for the Acorn Herald. I 4 cover politics and community events. There is not a lot going on 5 in Acorn, since is a small town. I went to O’Cannity’s speech 6 because of the controversy that his speech was causing in Acorn 7 and because I was looking into the relationship between some of 8 the more radical groups attending the speech. I had been 9 investigating the Rads for a story and stumbled upon threats

10 Casey Davidson made towards Alex Thompson, so I was 11 including that as part of my story. It’s well known around town 12 they don’t like each other. 13 14 I arrived at about 9:15 a.m. I ended up near the front of the 15 crowd on the side of the police line that was protesting 16 O’Cannity. It seemed that O’Cannity’s appearance created more 17 controversy than any previous rallies or speakers caused. 18 19 A lot of the people on my side of the police line were wearing 20 black hoodies with the Tanterran flag on the back. I don't know 21 Davidson personally, but I knew of Davidson. Davidson is well 22 known around town for having passionate positions and 23 frequently participating in rallies. During the September 14 rally, 24 I saw Davidson screaming at people who were just standing 25 around and even shoving people who ignored Davidson or who 26 yelled back at Davidson. 27 28 At 9:50 a.m., a scuffle broke out right next to me, and Davidson 29 was involved. I saw Thompson, who was also well known 30 throughout town, cross the police line and start throwing eggs at 31 people wearing the Tanterran hoodies. I saw Davidson go up to 32 Thompson with a walking stick in one hand and a bullhorn in 33 the other. I heard Davidson yell into the bullhorn, “Stop that!” 34 35 Thompson responded, “Here we go again!” From my research, I 36 know that the two of them knew each other from previous rallies 37 and had seen the two threats Davidson had posted on 38 Thompson’s BLAB page. I was just a few feet away from 39 Davidson when I saw Thompson grab Davidson’s walking stick 40 and appear to try to take it from Davidson. The two of them were 41 pulling and tugging on the stick. It seemed like this made 42 Davidson mad because I heard Davidson yell, “Get back on your 43 side of the [police] line, or you’ll get what’s coming to you!” 44 Thompson did not retreat and instead stayed on the EFA side of 45 the police line. 46 47 Immediately after that, someone came up from behind 48 Thompson and “sucker-punched” Thompson in the face and then 49 ran away. The punch must have been bad because I saw blood 50 almost immediately gushing from both Thompson's nostrils.


1 When I returned home I discovered that I had a couple of large 2 drops of blood on the shoes I wore to the rally. 3 4 After getting punched, I saw Thompson hold Thompson’s nose 5 and run to the OA side of the police line. I saw Thompson talk to 6 someone for a few seconds and rush towards the back of the 7 crowd in the direction of the restroom in Acorn Park. A couple of 8 minutes later I heard Davidson say, “Here’s my chance.” Then 9 Davidson headed towards the back of the crowd in the exact

10 same direction that the victim had walked. I saw the walking 11 stick in one of Davidson’s hands, but I do not remember if 12 Davidson had a bullhorn in the other hand. Based on the threats 13 Davidson had made towards Thompson on BLAB, the fact that 14 they had just gotten into an altercation, and Davidson’s 15 statement of “Here’s my chance,” I had some good material for 16 my story. After I learned that Alex Thompson had been killed I 17 shared this information with police. 18 19 Prosecution Witness: Morgan Bonderman (Friend of 20 Thompson) 21 My name is Morgan Bonderman. I have been a resident of Acorn 22 for the last eight years, and have been friends with Alex 23 Thompson for the last five years. I met Davidson twice, one time 24 about a year before the incident at the O’Cannity rally, and the 25 other time at the farmers market on September 10, 2017. I knew 26 Davidson was at the O’Cannity event, but I did not directly 27 encounter Davidson there. 28 29 Thompson had invited me to the speech, but I was not a member 30 of OA. Thompson had encouraged me to join OA, but I did not 31 because I don’t like to be a follower. I helped Thompson get 32 prepared for O’Cannity’s speech as a favor because some OA 33 members were out of town and were unable to help with the 34 planning. 35 36 I attended a rally about a year ago with Thompson, and that was 37 where I first became aware of Casey Davidson. During that rally, 38 I saw Thompson and Davidson get into a heated argument. I 39 couldn't hear what they were arguing about. Thompson got right 40 in Davidson's face and started yelling. Then, Davidson started 41 waving a walking stick around in the air. Thompson just turned 42 and walked away. It was pretty well known throughout town 43 that Thompson and Davidson hated each other. 44 45 On September 10, 2017, four days before the rally, Thompson 46 and I ran into Davidson when we visited the Acorn farmers 47 market. Davidson saw Thompson and yelled, “You better cancel 48 that stupid speech!” In response Thompson tripped Davidson 49 and said, “Shut up jerk.” Davidson then got up and grabbed 50 Thompson and the two of them struggled and pushed and 51 shoved back and forth for a few seconds before some other


1 people and I broke it up. By the time they were separated, it 2 appeared that both Davidson and Thompson had a few small 3 cuts and scratches. 4 5 Thompson and I talked about O’Cannity’s upcoming speech. I 6 could tell that Thompson was excited about getting a well known 7 celebrity to speak in our little town. We also talked about how 8 Davidson would most likely attend O’Cannity’s speech to protest. 9 Thompson said something like “I am sure that idiot will be there

10 again this time!” 11 12 I helped Thompson with a lot of the work in preparing for 13 O’Cannity’s speech. This included many late nights. We did the 14 work at the warehouse where Thompson lived on the outskirts of 15 town. On two separate occasions over the past two weeks, I 16 thought I saw Davidson sitting in a silver sedan on the street 17 outside of Thompson’s warehouse. Davidson’s car has a 18 Tanterran flag painted on the hood, so it was easily recognizable. 19 20 At O’Cannity’s rally I pretty much minded my own business. 21 Thompson was much more active and willing to engage the 22 opposing side. Around 9:50 a.m., Thompson crossed the police 23 line and I saw Thompson arguing with Davidson. I saw what 24 looked like Davidson shoving the walking stick in Thompson’s 25 direction, and Thompson grabbed it to stop Davidson from doing 26 that. Then, a few moments later, I looked back over at them, and 27 someone came out of nowhere and punched Thompson in the 28 face. I only got a quick look, I do not know who punched 29 Thompson but I know it was not Davidson. Thompson then told 30 me that Thompson was going to go to the bathroom to deal with 31 it, and would return soon. After Thompson left, I looked at the 32 ground and noticed several large blood drops on the grass where 33 Thompson was standing. Thompson seemed to be bleeding quite a 34 bit. 35 36 At about 10:15 a.m., I was surprised that it had been about half 37 an hour and Thompson had not returned, so I went looking for 38 Thompson. As I headed in the direction of the bathroom, and 39 towards the back of where the crowd had been, I saw someone 40 lying on the ground under a cluster of trees. As I approached I 41 realized that it was my friend Alex Thompson. I ran to check and 42 see if Thompson was okay, but Thompson was unresponsive. I 43 immediately found a police officer. I was in total shock. I can’t 44 believe my friend is dead.


1 Defense Witnesses 2 Defense Witness: Casey Davidson (Defendant) 3 My name is Casey Davidson. I am from Acorn and have lived 4 here my whole life. I am right-handed. I am a member of 5 Equality of All (EFA) group in Acorn. The EFA is a peaceful pro- 6 immigrant group that seeks to confront backwards-thinking 7 nativist and nationalist people and groups. I consider myself a 8 nonviolent person and do not believe in the use of violence. 9

10 The EFA was encouraging people to attend Mitch O’Cannity’s 11 speech at Acorn Town Hall on September 14, 2017. O’Cannity 12 was going to speak about immigration and how the United States 13 should not allow immigrants into the country anymore. I strongly 14 disagreed with O’Cannity’s stance, so I decided to attend his 15 speech. 16 17 Our group arrived that morning right around 9:30 a.m. There 18 were already a lot of people there. I was wearing jeans, an 19 untucked grey t-shirt, a pullover black hoodie with the Tanterran 20 flag on the back to show my support for the Tanterrans in Acorn. I 21 was not part of the Rads because they always ruin peaceful protests 22 with their violent ways. I’m for strong speech, not destroying 23 things. When they take their frustrations out by damaging property, 24 it gives peaceful groups like ours a bad name. Let me be very clear, 25 I am not a Rad and I don't believe in violent tactics. It was just a 26 coincidence that I wore a grey shirt that day. I did not know that 27 Rads coordinated to wear shirts that were grey that day, so that 28 they would be recognizable to each other. Many other people 29 associated with the EFA were wearing the hoodies with the 30 Tanterran flag, like me. I also had my bullhorn. 31 32 I had my walking stick with me that I carved from the branch of 33 a fallen redwood tree. I carved my initials into it years ago. I am 34 a hiker, and I always take it with me whenever I’ll be standing or 35 walking for long periods because my legs get sore. With my 36 bullhorn, I thought I could drown out O’Cannity’s backwards 37 views and force the City of Acorn to cancel the speech. My 38 bullhorn batteries died during the event, so I had to go to the 39 Acorn Tech Shop for new batteries for my bullhorn. 40 41 I knew the victim Alex Thompson. We had attended several 42 political rallies over the past couple of years. It’s not a secret that 43 I did not like Thompson and Thompson’s views. I argued with 44 Thompson at a couple of rallies, but they were just arguments. 45 46 Additionally, I happened upon Thompson at the Acorn Tech 47 Shop several months ago. As I was walking into the store I saw 48 Thompson swing Thompson’s own fist at the store owner, my 49 friend Avery Williams. Thankfully Thompson missed and Avery 50 was fine. The two of them seemed to be arguing over a printer 51 that was on layaway. I did my best to mediate the situation and


1 prevent any further violence, since I am anti-violence. Thompson 2 must have been in a good mood that day because Thompson said 3 something like “I won’t be spending my hard earned money in 4 this dump anymore” and left the store without further incident. 5 6 I also happened to run into Thompson on September 10 at the 7 farmer's market and encouraged Thompson to cancel O’Cannity’s 8 speech because O’Cannity’s views are backwards. Thompson 9 then tripped me, called me a jerk, and then grabbed me when I

10 got back on my feet. I tried to break away, and we struggled and 11 pushed each other for few seconds, but that was all. Neither of 12 us was hurt as a result of the pushing, other than some small 13 scratches and bruises. I probably had more scratches, since I had 14 fallen to the ground. 15 16 I did not post the first threat on Thompson's BLAB. I left my 17 BLAB page open on a computer while working with other EFA 18 members. One of the other members wrote that message while I 19 was away from my computer. I don’t know who wrote it, and I 20 did not delete it because I didn’t want O’Cannity coming to 21 Acorn. I did write the second message, but that was in response 22 to Thompson tripping me, calling me a jerk, and starting a fight 23 with me at the farmers market. I wrote it in anger and meant to 24 delete it when I cooled off but forgot. 25 26 Around 9:40 a.m. the announcer from the mayor's office 27 announced that O’Cannity’s speech was delayed until 10:20 a.m. 28 About ten minutes later, I was minding my own business and 29 saw Alex Thompson cross the police line and throw eggs at 30 people wearing the Tanterran hoodies. At first I just yelled, “Stop 31 that!” I heard Thompson respond, “Here we go again.” Then 32 Thompson grabbed my walking stick, tried to take it from me, 33 and I pulled it back. I yelled, “Get back on your side of the line, 34 or you’ll get what’s coming to you!” I just meant that I wanted 35 Thompson to stop attacking people and throwing eggs. 36 37 At this point someone came up behind Thompson, grabbed 38 Thompson by the shoulder, and punched Thompson in the face. 39 I was next to Thompson when it happened. I was standing to the 40 right of Thompson, still struggling with Thompson for my 41 walking stick, when Thompson was punched. Thompson bled 42 heavily from the nose and held onto my walking stick to keep 43 from falling over. Right then, a lot of people started yelling and 44 pushing and shoving. I was getting shoved back and forth. I lost 45 my walking stick in the chaos and never saw it again. I had my 46 bullhorn with me the whole time I was there. Also, I do not 47 support whomever punched Thompson. It was probably a Rad 48 who did it. 49 50 I tried to find people in the crowd to help me shut down 51 O’Cannity’s speech. A few minutes later, I saw a teacher from


1 Acorn High School whom I recognized from previous rallies. I 2 did not know this person well, or even by name, but the teacher 3 encouraged me to use my bullhorn to get some sort of a chant 4 going to drown out O’Cannity. About 10 minutes or so after this 5 conversation I took off my hoodie because I was hot. I tied it 6 around my waist. But as I was making my way through the 7 crowd it fell off at some point. I searched for it, but was unable 8 to find it. 9

10 I continued to make my way through the crowd and was about 11 to make my own announcement, but my bullhorn batteries died. 12 I rushed over to the Acorn Tech Store to get new batteries for my 13 bullhorn. Then I went back across the street to the rally and 14 made my way to the front of the crowd. 15 16 At 10:20 a.m., I was feeling energized by the cancellation, but 17 the OA people were still hanging around, trying to look tough. I 18 decided to take action to get OA to leave. I started to climb the 19 stairs of town hall in front of the podium and said into my 20 bullhorn, “There aren’t enough police to stop us! Let’s get these 21 Tanterran haters now! We stopped this stupid speech! No 22 O’Cannity!” I just wanted to start a chant of “No O’Cannity!” But 23 before I could start the chant, a police officer grabbed me and 24 told me to stop using the bullhorn immediately and leave the 25 area or I would be arrested. I stopped using the bullhorn and left. 26 27 About two days later, the same officer approached me on the sidewalk 28 in front of my home. The officer self-identified as Detective Adrian 29 Carroll and said I should get an attorney for some questions the officer 30 had to ask me. I said I didn’t need an attorney. Detective Carroll then 31 told me that they had found Alex Thompson dead and that my walking 32 stick was found close to Thompson’s body. It had blood on it. The 33 detective asked if I knew anything about that. I tried to explain to the 34 detective that the blood was probably from when I was standing next to 35 Thompson when Thompson was punched and that I lost my walking 36 stick right then. The detective didn't seem to care about my answer. 37 38 A few hours later, the detective came back with a search warrant 39 for my house. I saw the police remove some clothes from my 40 house. First thing the next morning, the detective again came 41 back, and this time had a warrant for my arrest. I was arrested at 42 my own front door. 43 44 [I don’t remember ever being near a warehouse on the outskirts of 45 town. Nor have I ever attended a Rad meeting. The GPS from my 46 car may show that my car was located at those places, but I was 47 not there. I regularly loan my car out to Avery Williams. We have 48 sort of an informal car-sharing arrangement where we each have 49 a key to the car and can just take it whenever. We do not have a 50 formal schedule, which has yet to be a problem. I did not drive the 51 car on the dates and times in question.]


1 Defense Witness: Tory Lee (Forensic Expert Witness) 2 My name is Tory Lee. I am an independent forensic pathologist. I 3 received a medical degree from the Peaksville State University in 4 1995. I was a medical examiner in San Francisco for 14 years 5 from 1995-2009. Since leaving there eight years ago, I started a 6 forensics consulting firm. My firm often works with law 7 enforcement on investigations and offers expert analysis of 8 forensic evidence at trials. I have testified as an expert in over 50 9 trials. In reaching my conclusions in this case, I reviewed all 10 police and medical reports including photographs of wounds and 11 physical evidence with the exception of the victim’s body. 12 13 I agree with the prosecution expert that Thompson died from two 14 depressed skull fractures and subdural hematoma. The death 15 occurred within seconds of the blows. I understand the analysis 16 by the Acorn Medical Examiner that the walking stick was 17 definitively the weapon that struck Thompson, but I disagree 18 with that conclusion. The injuries are consistent with a number 19 of different weapons, and it is very difficult to match a particular 20 weapon to blunt-force injuries. In my professional opinion, 21 Thompson’s skin cells and blood were transferred to Davidson’s 22 walking stick when Thompson grabbed the stick and after 23 Thompson was punched in the earlier confrontation. There were 24 around 24 blood spatter spots of differing sizes on the walking 25 stick. 26 27 This is consistent with bleeding from a heavy nosebleed. The 28 different size spatter marks indicate that the blood fell a different 29 distance before landing on the stick. This is consistent with the 30 way the stick looks with smaller blood-spatter spots near the top 31 of the walking stick and larger blood spatter drops lower on the 32 walking stick. The bloody nose caused significant blood flow that 33 was enough to leave the walking stick covered in blood and it is 34 consistent with the amount of blood found on Davidson’s shirt, 35 jeans, and shoes. 36 37 Davidson’s shirt had five medium-sized blood spatter droplets on 38 the bottom left-hand front area. This is consistent with blood 39 dripping from Thompson’s nose after Thompson was punched. 40 The shirt also had a narrow five-inch blood transfer smear on the 41 bottom right. This is consistent with wiping the walking stick on 42 the shirt. The fine spatter on Davidson’s left pant leg is consistent 43 with Davidson standing to the right of Thompson when 44 Thompson was punched, and in my professional opinion does 45 not show that Davidson was near Thompson when Thompson 46 received the fatal wounds. Finally, the two medium to large 47 blood spatter droplets on Davidson’s left shoe are consistent with 48 blood dripping from Thompson’s nose onto Davidson's shoe. 49 Davidson had no new cuts or scratches on Davidson’s hands and 50 arms. Davidson did have a few small scratches on Davidson’s 51 hands and forearms that appeared to be several days old. There


1 were only a few skin cells found under Thompson’s fingernails. 2 In my professional opinion, these few skin cells could have 3 survived from the September 10 fight at the farmers market. Even 4 with four days and Thompson washing Thompson’s hands, 5 scientific studies show that recovering skin cells from underneath 6 fingernails is possible. Since Davidson did not have any fresh 7 wounds, and since so few of Davidson’s skin cells were found 8 under Thompson’s fingernails, there was no conclusive evidence 9 that the cells were from a struggle with each other at the rally, 10 except perhaps when Thompson touched Davidson’s walking 11 stick. 12 13 In my professional opinion, the tree branch found near the victim 14 was consistent with Thompson’s blunt-force trauma head 15 injuries. The size and width of the tree branch were consistent 16 with the two penetrating blunt force trauma head injuries 17 sustained by Thompson. While I did not find Thompson’s skin 18 cells on the tree branch, it did contain Thompson’s blood, and in 19 my professional opinion the tree branch had enough blood on it 20 that it could have been the murder weapon. I also examined the 21 partial fingerprints on the tree branch but could not get a match 22 with the identity of a person based on the fingerprints. I cannot 23 say for certain, nor can anyone else, what caused the blunt-force 24 trauma head injuries to the victim. 25 26 Even if the walking stick was the weapon, there were multiple 27 sets of fingerprints on it. There were 14 individual fingerprints on 28 the walking stick that belonged to the defendant. There was an 29 additional set of fingerprints (from a right hand) on the walking 30 stick that did not belong to the defendant. This additional set of 31 prints was in a location near the end of the walking stick, 32 consistent with someone holding the walking stick in such a way 33 that they could swing the stick like a baseball bat. If the walking 34 stick was the weapon, the murder could have been committed by 35 the defendant, the person with the unknown fingerprints, or a 36 person wearing gloves. 37 38 Also, I disagree with the conclusion of the Acorn Medical 39 Examiner that Thompson’s injuries are consistent with being 40 inflicted by a right-handed person during a face-to-face 41 confrontation. In my professional opinion, Thompson’s injuries 42 to the left side of the head were just as consistent with being 43 attacked from behind by a left-handed person. This would also 44 be consistent with the defensive wounds on the victim’s hands 45 and wrists. The high heart rate the victim had at 10:03 a.m. 46 could have been caused by Thompson running. The fitness 47 tracker not registering a heart rate at 10:04 a.m. does not show


1 that Thompson died at 10:04 a.m. It could be that the first strike 2 from an attacker from the front or back broke the fitness tracker 3 and the victim was alive for some time after that. A struggle 4 between the victim and someone else is just one of many 5 possible explanations for the accelerated heart rate at that time.

6

7 Defense Witness: Fabian Moreno (Acquaintance of Defendant) 8 My name is Fabian Moreno. I moved to Acorn nine years ago, 9 after getting my B.A. and then M.A. in history from Sunnyland 10 State College in 2008. I teach history at Acorn High School. I 11 follow politics and current events closely and often attend 12 political speeches and rallies in Acorn. I am a member of EFA, 13 because I believe in the causes they support. I was arrested for 14 trespass while protesting the Iraq War during my time at 15 Sunnyland State College. 16 17 I decided to attend O’Cannity’s speech to protest his backwards 18 immigration positions. I was about two-thirds of the way back in 19 the crowd. I wanted to stay pretty far back, because I thought it 20 was likely that there would be fighting and figured those were 21 more likely to happen up near the front of the audience where 22 some of the more aggressive people were likely to be. 23 24 I arrived at about 9:20 a.m. on September 14. Within a few 25 minutes I saw Davidson arrive and said hello. I have met 26 Davidson about a half dozen times at previous rallies and saw 27 Davidson several times during this rally. Davidson had a walking 28 stick, which Davidson had once proudly told me that Davidson 29 had carved out of an old tree branch, and Davidson showed me 30 how Davidson had carved the initials CD into the handle of the 31 walking stick. Davidson always had the walking stick when I saw 32 Davidson at these types of events. Davidson also had a bullhorn. 33 34 I saw Davidson again about at about 9:50 a.m. At this point 35 Davidson thanked me for coming to the rally and for supporting 36 the Tanterrans, and told me that Davidson was going to try to get 37 a chant started to drown out O’Cannity. Davidson had the 38 bullhorn, but I do not remember if Davidson had the walking 39 stick at this time. Davidson was wearing jeans, and a black 40 hoodie with the Tanterran flag on the back and the hood up. This 41 was the same thing that many of the people on the EFA side of 42 the rally were wearing. 43 44 After talking for a few seconds, Davidson left to go talk to others 45 in the crowd and I began talking to some of the people around 46 me. Three or four times over the next 15 minutes, I saw someone 47 in the crowd who I believed was Davidson, holding but not 48 speaking into the bullhorn. That person was holding the bullhorn 49 up and resting it on their shoulder. The person’s side or back


1 was facing me, so I did not see the person’s face. I only saw the 2 side or back of the person’s head covered by the black hoodie. I 3 assumed that it was Davidson, because Davidson was the only 4 one I saw with a bullhorn that day other than police, and the 5 person I saw was the same size as Davidson. 6 7 At 10:20 a.m. I saw Davidson climb the steps of the Acorn Town 8 Hall. Davidson was no longer wearing the black hoodie with the 9 Tanterran flag on it. Davidson yelled into the bullhorn. This was 10 the only time that morning that Davidson was not wearing the 11 black hoodie. As that was happening, a riot was breaking out. 12 13 Defense Witness: Avery Williams 14 My name is Avery Williams. I earned my degree in computer 15 science from Western California Technical College in 2000. After 16 I graduated, I worked as a consultant for various tech companies 17 for a few years. Since then, and for the last ten years, I have 18 owned a small electronics store in Acorn. My store, Acorn Tech 19 Shop, is located across from Acorn Park and near Acorn Town 20 Hall. I specialize in cell phones and GPS technology but have a 21 wide variety of other products. 22 23 I know Casey Davidson. I am friends with Davidson and sold 24 Davidson a bullhorn. Davidson always seemed like a good 25 person. Davidson was a bit of a techie, so Davidson was often in 26 my store. Davidson and I would often make small talk about our 27 shared interest in electronics. I don’t own a car because Acorn is 28 a small town, so I ride my bicycle everywhere. I have my own 29 key to Davidson’s car and can take it whenever I need it. I don’t 30 have to let Davidson know, since I don’t think Davidson uses the 31 car much. I probably drive the car two to three times a month. I 32 pay Davidson about $20 to $50 a month to cover gas and 33 maintenance. I don’t remember having the car on any of the 34 nights in question. 35 36 I also know the victim Alex Thompson. Thompson has bought a 37 few products from my store over the years. Thompson bought a 38 smartphone on layaway, but did not keep up with the payments. 39 Because of this, I had an expensive smartphone on reserve for 40 Thompson that I could not sell to anyone else. Also, about nine 41 months ago, Thompson was in my store about a printer 42 Thompson had purchased on layaway. Thompson was behind on 43 the payments and was yelling at me since I would not give the 44 printer to Thompson until it was paid in full. Thompson ended 45 up taking a swing at my face. Right at that time Davidson entered 46 my store. I was really upset and started yelling at Thompson and 47 thought Thompson and I might fight. Instead, Davidson 48 intervened and peacefully deescalated the situation. Davidson did 49 not like violence. Thompson walked out of my store saying 50 something about not shopping there anymore. That’s fine by me.


1 I need customers who can pay their bills. I’m thankful Davidson 2 showed up just in time. If it weren’t for Davidson, I’m sure 3 things would have turned physical. 4 5 Davidson was in my store around 10:10 a.m. on the morning of 6 O’Cannity’s speech, and after buying batteries, I of course gave 7 Davidson a receipt. My cash register prints a receipt for every 8 transaction at the time of the transaction, and I give customers a copy 9 of the receipt. I regularly check at least once a month that the cash 10 register prints the correct information on receipts, including date and 11 time. I had just checked the register a few days before my last 12 encounter with Davidson, and it was working properly. While I was 13 ringing Davidson up, I made small talk with Davidson about the 14 rally. I knew Davidson was interested in political causes and asked 15 why Davidson had brought the bullhorn to the rally. Davidson told 16 me that Davidson wanted to create some kind of disruption. I 17 asked Davidson about the blood on the bottom of the shirt 18 Davidson was wearing. It looked like a light grey shirt. Davidson 19 told me that someone standing next to Davidson had been 20 punched, started bleeding a lot, and had bled on the shirt. There 21 was no blood that I could see on the bullhorn. Davidson appeared 22 to be in a hurry and told me Davidson was anxious to get the 23 bullhorn working. Nothing about Davidson’s behavior seemed 24 unusual to me. Davidson was in my store for at most five minutes.


EXHIBIT A

Map of Acorn Park


EX

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IT B

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EXHIBIT C

Photograph of Davidson's Shirt


EXHIBIT D

Photograph of Davidson’s Pants


EX

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IT E

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of D

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EXHIBIT F

Photograph of Davidson’s Walking Stick


EXHIBIT G

Photograph of the Tree Branch


EXHIBIT H

Davidson's Receipt from Acorn Tech Shop


EXHIBIT I

Autopsy Report

Lourdes

Rectangle

Lourdes

Rectangle


EXHIBIT J

GPS Map of Davidson’s Car Locations.

Defendant’s Car Located at Warehouse (1-4) 1. 9/02/17 —10:33 p.m. —11:14 p.m. 2. 9/07/17 —11:19 p.m. —12:05 a.m. 3. 9/09/17 —11:37 p.m. —11:51 p.m. 4. 9/12/17 —10:47 p.m. —11:11 p.m.

Defendant’s Car at Known Rad’s Meeting Place

5. 8/16/17 —2:05 p.m. —4:11 p.m. 6. 8/22/17 —11:23 a.m. —12:11 p.m. 7. 8/26/17 —5:15 p.m. —5:23 p.m. 8. 9/02/17 —1:13 p.m. —3:33 p.m. 9. 9/06/17 —5:21 p.m. —7:35 p.m. 10. 9/10/17 —9:15 a.m. —10:08 a.m. 11. 9/11/17 —3:30 p.m. —3:49 p.m. 12. 9/13/17 —6:12 p.m. —8:36 p.m.


FORM AND SUBSTANCE OF A TRIAL

The Elements of a Criminal Offense The penal (or criminal) code generally defines two aspects of every crime: the physical aspect and the mental aspect. Most crimes specify some physical act, such as firing a gun in a crowded room, and a guilty, or culpable, mental state. The intent to commit a crime and a reckless disregard for the consequences of one’s actions are examples of a culpable mental state. Bad thoughts alone, though, are not enough. A crime requires the union of thought and action.

The mental state requirement prevents the conviction of an insane person. Such a person cannot form criminal intent and should receive psychological treatment rather than punishment. Also, a defendant may justify his or her actions by showing a lack of criminal intent. For instance, the crime of burglary has two elements: (1) entering a dwelling or structure (2) with the intent to steal or commit a felony. A person breaking into a burning house to rescue a baby has not committed a burglary.

The Presumption of Innocence Our criminal justice system is based on the premise that allowing a guilty person to go free is better than putting an innocent person behind bars. For this reason, defendants are presumed innocent. This means that the prosecution bears a heavy burden of proof; the prosecution must convince the judge or jury of guilt beyond a reasonable doubt.

The Concept of Reasonable Doubt Despite its use in every criminal trial, the term “reasonable doubt” is hard to define. The concept of reasonable doubt lies somewhere between probability of guilt and a lingering possible doubt of guilt. A defendant may be found guilty “beyond a reasonable doubt” even though a possible doubt remains in the mind of the judge or juror. Conversely, triers of fact might return a verdict of not guilty while still believing that the defendant probably committed the crime. Reasonable doubt exists unless the triers of fact can say that they have a firm conviction of the truth of the charge.

Jurors must often reach verdicts despite contradictory evidence. Two witnesses might give different accounts of the same event. Sometimes a single witness will give a different account of the same event at different times. Such inconsistencies often result from human fallibility rather than intentional lying. The trier of fact (in the Mock Trial competition, the judge) must apply his or her own best judgment when evaluating inconsistent testimony.

A guilty verdict may be based upon circumstantial (indirect) evidence. However, if there are two reasonable interpretations of a piece of circumstantial evidence, one pointing toward guilt of the defendant and another pointing toward innocence of the defendant, the trier of fact is


required to accept the interpretation that points toward the defendant’s innocence. On the other hand, if a piece of circumstantial evidence is subject to two interpretations, one reasonable and one unreasonable, the trier of fact must accept the reasonable interpretation even if it points toward the defendant’s guilt. It is up to the trier of fact to decide whether an interpretation is reasonable or unreasonable.

Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt.

TEAM ROLE DESCRIPTIONS ATTORNEYS The pretrial-motion attorney presents the oral argument for (or against) the motion brought by the defense. You will present your position, answer questions by the judge, and try to refute the opposing attorney’s arguments in your rebuttal.

Trial attorneys control the presentation of evidence at trial and argue the merits of their side of the case. They do not themselves supply information about the alleged criminal activity. Instead, they introduce evidence and question witnesses to bring out the full story.

The prosecutor presents the case for the state against the defendant(s). By questioning witnesses, you will try to convince the judge or jury (juries are not used at state finals) that the defendant(s) is guilty beyond a reasonable doubt. You will want to suggest a motive for the crime and try to refute any defense alibis.

The defense attorney presents the case for the defendant(s). You will offer your own witnesses to present your client’s version of the facts. You may undermine the prosecution’s case by showing that the prosecution’s witnesses are not dependable or that their testimony makes no sense or is seriously inconsistent.

Trial attorneys will:

• Conduct direct examination. • Conduct cross-examination. • Conduct redirect examination, if necessary. • Make appropriate objections: Only the direct and cross-

examination attorneys for a particular witness may make objections during that testimony.

• Conduct the necessary research and be prepared to act as a substitute for any other attorneys.

• Make opening statements and closing arguments.

Each student attorney should take an active role in some part of the trial.


WITNESSES You will supply the facts in the case. As a witness, the official source of your testimony, or record, is composed of your witness statement, and any portion of the fact situation, stipulations and exhibits, of which you reasonably would have knowledge. The fact situation is a set of indisputable facts that witnesses and attorneys may refer to and draw reasonable inferences from. The witness statements contained in the packet should be viewed as signed statements made to the police by the witnesses.

You may testify to facts stated in or reasonably inferred from your record. If an attorney asks you a question, and there is no answer to it in your official testimony, you can choose how to answer it. You can either reply, “I don’t know” or “I can’t remember,” or you can infer an answer from the facts you do officially know. Inferences are only allowed if they are reasonable. Your inference cannot contradict your official testimony, or else you can be impeached using the procedures outlined in this packet. Practicing your testimony with your attorney coach and your team will help you to fill in any gaps in the official materials (see Unfair Extrapolation" on p. 67.)

It is the responsibility of the attorneys to make the appropriate objections when witnesses are asked to testify about something that is not generally known or that cannot be reasonably inferred from the Fact Situation or a Witness Statement.

COURT CLERK, COURT BAILIFF, UNOFFICIAL TIMER We recommend that you provide two separate people for the roles of clerk and bailiff, but if you assign only one, then that person must be prepared to perform as clerk or bailiff in any given trial.

The unofficial timer may be any member of the team presenting the defense. However, it is advised the unofficial timer not have a substantial role, if any during the trial so they may concentrate on timing. The ideal unofficial timer would be the defense team’s clerk.

The clerk and bailiff have individual scores to reflect their contributions to the trial proceedings. This does NOT mean that clerks and bailiffs should try to attract attention to themselves; rather, scoring will be based on how professionally and responsibly they perform their respective duties as officers of the court.

In a real trial, the court clerk and the bailiff aid the judge in conducting the trial. The court clerk calls the court to order and swears in the witnesses to tell the truth. The bailiff watches over the defendant to protect the security of the courtroom.

In the mock trial, the clerk and bailiff have different duties. For the purpose of the competition, the duties described below are assigned to the roles of clerk and bailiff. (Prosecution teams will be expected to provide the clerk for the trial; defense teams are to provide the bailiff.)


Duties of the Court Clerk When the judge and scoring attorneys arrive in the courtroom, introduce yourself, explain that you will assist as the court clerk and distribute team roster forms to the opposing team, each scoring attorney and the judge.

In the Mock Trial competition, the court clerk’s major duty is to time the trial. You are responsible for bringing a stopwatch to the trial. Please be sure to practice with it and know how to use it when you come to the trials.

An experienced timer (clerk) is critical to the success of a trial.

Interruptions in the presentations do not count as time. For direct, cross, and redirect examination, record only time spent by attorneys asking questions and witnesses answering them.

Do not include time when:

witnesses are called to the stand. attorneys are making objections. judges are questioning attorneys or witnesses or offering their observations.

When a team has two minutes remaining in a category, Hold up the two- minute sign; when one minute remains, hold up the one minute sign; when 30 seconds remains, hold up the 30 second sign; and when time for a category has run out, hold up the stop sign and announce “Stop!” The only verbal warning during the trial should be “Stop!” Remember to speak loud enough for everyone to hear you.

Time Allocations: Two Minutes, One Minute, 30 Seconds, Stop

There is to be no allowance for overtime under any circumstance. This will be the procedure adhered to at the state finals. After each witness has completed his or her testimony, mark down the exact time on the time sheet. Do not round off the time.

Duties of the Bailiff When the judge arrives in the courtroom, introduce yourself, explain that you will assist as the court bailiff and distribute team roster forms to the opposing team, each scoring attorney and the judge.

In the Mock Trial competition, the bailiff’s major duties are to call the court to order and to swear in witnesses. Please use the language below. When the judge has announced that the trial is beginning, say:

“All rise, Superior Court of the State of California, County of , Department , is now in session. Judge presiding, please be seated and come to order.” Please turn off all cell phones and refrain from talking.


When a witness is called to testify, you must swear in the witness as follows:

“Do you solemnly affirm that the testimony you are about to give will faithfully and truthfully conform to the facts and rules of the Mock Trial competition?”

In addition, the bailiff is responsible for bringing to trial a copy of the “Rules of Competition.” In the event that a question arises and the judge needs further clarification, the bailiff is to provide this copy to the judge.

Duties of the Unofficial Timer Any official member of the team presenting defense may serve as an unofficial timer. This unofficial timer must be identified before the trial begins and sit next to the official timer (clerk).

If timing variations of 15 seconds or more occur at the completion of any task during the trial, the timers will notify the judge immediately that a time discrepancy has occurred. Any time discrepancies less than 15 seconds are not considered a violation. NO time discrepancies will be entertained after the trial concludes.

Any objections to the clerk’s official time must be made by this unofficial timer during the trial, before the verdict is rendered. The judge shall determine whether to accept the clerk’s time or make a time adjustment.

If the times differ significantly, notify the judge and ask for a ruling as to the time remaining. You may use the following sample questions and statements:

“Your honor, before bringing the next witness, may I bring to the court’s attention there is a time discrepancy.

“Your honor, there is a discrepancy between my records and those of the official timekeeper.”

Be prepared to show your records and defend your requests.

TEAM MANAGER Your team may also select a member to serve as team manager. Any team member, regardless of his or her official Mock Trial role, may serve as team manager. The manager is responsible for keeping a list of phone numbers of all team members and ensuring that everyone is informed of the schedule of meetings. In case of illness or absence, the manager should also keep a record of all witness testimony and a copy of all attorney notes so that another team member may fill in if necessary.


PROCEDURES FOR PRESENTING A MOCK TRIAL CASE

Introduction of Physical Evidence Attorneys may introduce physical exhibits, if any are listed under the heading “Evidence,” provided that the objects correspond to the description given in the case materials. Below are the steps to follow when introducing physical evidence (maps, diagrams, etc.). All items are presented prior to trial.

1. Present the item to an attorney for the opposing team prior to trial. If

that attorney objects to use of the item, the judge will rule whether the evidence is appropriate or not.

2. Before beginning the trial, mark all exhibits for identification. Address

the judge as follows: “Your honor, I ask that this item be marked for identification as Exhibit # .”

3. When a witness is on the stand testifying about the exhibit, show the item to the witness and ask the witness if he/she recognizes the item. If the witness does, ask him or her to explain it or answer questions about it. This shows how the exhibit is relevant to the trial.

Moving the Item Into Evidence Exhibits must be introduced into evidence if attorneys wish the court to consider the items themselves as evidence, not just the testimony about the exhibits. Attorneys must ask to move the item into evidence during the witness examination or before they finish presenting their case.

1. “Your honor, I ask that this item (describe) be moved into evidence

as People’s (or Defendant’s) Exhibit # and request that the court so admit it.”

2. At this point, opposing counsel may make any proper objections.

3. The judge will then rule on whether the item may be admitted into

evidence.

The Opening Statement The opening statement outlines the case as you intend to present it. The prosecution delivers the first opening statement. A defense attorney may follow immediately or delay the opening statement until the prosecution has finished presenting its witnesses. A good opening statement should:

• Explain what you plan to prove and how you will prove it. • Present the events of the case in an orderly sequence that is easy

to understand. • Suggest a motive or emphasize a lack of motive for the crime.


Begin your statement with a formal address to the judge:

“Your honor, my name is (full name), the prosecutor representing the people of the state of California in this action,” or

“Your honor, my name is (full name), counsel for _, the defendant in this action.”

Proper phrasing includes: • “The evidence will indicate that . . .” • “The facts will show. . . ” • “Witness (full name) will be called to tell . . .” • “The defendant will testify that . . .”

Direct Examination Attorneys conduct direct examination of their own witnesses to bring out the facts of the case. Direct examination should:

• Call for answers based on information provided in the case materials.

• Reveal all of the facts favorable to your position. • Ask the witness to tell the story rather than using leading

questions, which call for “yes” or “no” answers. (An opposing attorney may object to the use of leading questions on direct examination)

• Make the witness seem believable. • Keep the witness from rambling about unimportant matters.

Call for the witness with a formal request:

“Your honor, I would like to call (name of witness) to the stand.”

The witness will then be sworn in before testifying.

After the witness swears to tell the truth, you may wish to ask some introductory questions to make the witness feel comfortable. Appropriate inquiries include:

• The witness’s name. • Length of residence or present employment, if this

information helps to establish the witness’s credibility. • Further questions about professional qualifications, if you wish

to qualify the witness as an expert.

Examples of proper questions on direct examination: • “Could you please tell the court what occurred on (date)?” • “What happened after the defendant slapped you?” • “How long did you see . . .?” • “Did anyone do anything while you waited?” • “How long did you remain in that spot?”


Conclude your direct examination with:

“Thank you, Mr./Ms. (name of witness). That will be all, your honor.” (The witness remains on the stand for cross-examination.)

Cross-Examination Cross-examination follows the opposing attorney’s direct examination of the witness. Attorneys conduct cross-examination to explore weaknesses in the opponent’s case, test the witness’s credibility, and establish some of the facts of the cross-examiner’s case whenever possible. Cross- examination should:

• Call for answers based on information given in Witness

Statements or the Fact Situation. • Use leading questions, which are designed to get “yes” and

“no” answers. • Never give the witness a chance to unpleasantly surprise

the attorney.

In an actual trial, cross-examination is restricted to the scope of issues raised on direct examination. Because Mock Trial attorneys are not permitted to call opposing witnesses as their own, the scope of cross- examination in a Mock Trial is not limited in this way.

Examples of proper questions on cross-examinations: • “Isn’t it a fact that . . .?” • “Wouldn’t you agree that . . .?” • “Don’t you think that . . .?” • “When you spoke with your neighbor on the night of the

murder, weren’t you wearing a red shirt?”

Cross-examination should conclude with:

“Thank you, Mr./Ms. (name of witness). That will be all, your honor.”

Impeachment During cross-examination During cross-examination, the attorney may want to show the court that the witness on the stand should not be believed. This is called impeaching the witness. It may be done by asking questions about prior conduct that makes the witness’s credibility (believability) doubtful. Other times, it may be done by asking about evidence of criminal convictions.

A witness also may be impeached by introducing the witness’s statement and asking the witness whether he or she has contradicted something in the statement (i.e., identifying the specific contradiction between the witness’s statement and oral testimony).

The attorney does not need to tell the court that he or she is impeaching the witness, unless in response to an objection from the opposing side. The attorney needs only to point out during closing


argument that the witness was impeached, and therefore should not be believed.

Example: (Using signed witness statement to impeach) In the witness statement, Mr. Jones stated the suspect was wearing a pink shirt. In answering a question on direct examination, however, Mr. Jones stated that the suspect wore a red shirt.

On cross-examination ask, “Mr. Jones, you testified that the suspect was wearing a red shirt, correct?”

Mr. Jones responds “Yes.”

Show Mr. Jones the case packet opened up to Mr. Jones’s statement. Ask Mr. Jones, “Is this your witness statement, Mr. Jones?” (Mr. Jones has no choice but to answer “Yes.”)

Then ask Mr. Jones, “Do you recognize the statement on page , line of the case packet?”

Read the statement aloud to the court and ask the witness: “Does this not directly contradict what you said on direct examination?”

After you receive your answer (no matter what that answer is) move on with the remainder of your argument and remember to bring up the inconsistency in closing arguments.

Redirect Examination Following cross-examination, the counsel who called the witness may conduct redirect examination. Attorneys conduct redirect examination to clarify new (unexpected) issues or facts brought out in the immediately preceding cross-examination only. They may not bring up any issue brought out during direct examination. Attorneys may or may not want to conduct redirect examination. If an attorney asks questions beyond the issues raised on cross, they may be objected to as “outside the scope of cross-examination.” It is sometimes more beneficial not to conduct redirect for a particular witness. To properly decide whether it is necessary to conduct re-direct examination, the attorneys must pay close attention to what is said during the cross-examination of their witnesses.

If the credibility or reputation for truthfulness of a witness has been attacked on cross-examination, the attorney whose witness has been damaged may wish to “save” the witness through re-direct. These questions should be limited to the damage the attorney thinks has been done and should enhance the witness’s truth-telling image in the eyes of the court.

Work closely with your attorney coach on redirect strategies.

Closing Arguments A good closing argument summarizes the case in the light most favorable to your position. The prosecution delivers the first closing argument. The closing argument of the defense attorney concludes the presentations. A good closing argument should:


• Be spontaneous, synthesizing what actually happened in court rather than being “prepackaged.” NOTE: Points will be deducted from the closing argument score if concluding remarks do not actually reflect statements and evidence presented during the trial.

• Be emotionally charged and strongly appealing (unlike the calm opening statement).

• Emphasize the facts that support the claims of your side, but not raise any new facts.

• Summarize the favorable testimony. • Attempt to reconcile inconsistencies that might hurt your side. • Be well-organized. (Starting and ending with your strongest

point helps to structure the presentation and gives you a good introduction and conclusion.)

• The prosecution should emphasize that the state has proven guilt beyond a reasonable doubt.

• The defense should raise questions that suggest the continued existence of a reasonable doubt.

Proper phrasing includes: •“The evidence has clearly shown that . . . ” •“Based on this testimony, there can be no doubt that . . . ” •“The prosecution has failed to prove that . . . ” •“The defense would have you believe that . . . ”

Conclude the closing argument with an appeal to convict or acquit the defendant.

An attorney has one minute for rebuttal. Only issues that were addressed in an opponent’s closing argument may be raised during rebuttal.

DIAGRAM OF A TYPICAL COURTROOM


MOCK TRIAL SIMPLIFIED RULES OF EVIDENCE

Criminal trials are conducted using strict rules of evidence to promote fairness. To participate in a Mock Trial, you need to know its rules of evidence. The California Mock Trial program bases its Mock Trial Simplified Rules of Evidence on the California Evidence Code. Studying the rules will prepare you to make timely objections, avoid pitfalls in your own presentations, and understand some of the difficulties that arise in actual court trials. The purpose of using rules of evidence in the competition is to structure the presentation of testimony to resemble a real trial.

Almost every fact stated in the materials will be admissible under the rules of evidence. All evidence will be admitted unless an attorney objects. To promote the educational objectives of this program, students are restricted to the use of a select number of evidentiary rules in conducting the trial.

Objections It is the responsibility of the party opposing the evidence to prevent its admission by a timely and specific objection. Objections not raised in a timely manner are waived, or given up. An effective objection is designed to keep inadmissible testimony, or testimony harmful to your case, from being admitted. A single objection may be more effective than several objections. Attorneys can, and should, pay attention to objections that need to be made to questions and those that need to be made to answers. Remember, the quality of an attorney’s objections is always more important than the quantity of the objections.

For the purposes of this competition, teams will be permitted to use only certain types of objections. The allowable objections are found in this case packet. Other objections may not be raised at trial. As with all objections, the judge will decide whether to allow the testimony, strike it, or simply note the objection for later consideration. The rulings of the trial judge are final. You must continue the presentation even if you disagree. A proper objection includes the following elements. The attorney:

(1) addresses the judge, (2) indicates that he or she is raising an objection, (3) specifies what he or she is objecting to, i.e., the particular word,

phrase, or question, and (4) specifies the legal grounds for the objection.

Example: “(1) Your honor, (2) I object (3) to that question (4) because it is a compound question.”

Throughout this packet, you will find sections titled “Usage Comments.” These comments further explain the rule and often provide examples of how to use the rule at trial.


ALLOWABLE EVIDENTIARY OBJECTIONS

1. Unfair Extrapolation (UE)

This objection is specific to California Mock Trial and is not an ordinary rule of evidence.

Each witness is bound by the facts contained in his or her own official record, which, unless otherwise noted, includes his or her own witness statement, the Fact Situation (those facts of which the witness would reasonably have knowledge), and/or any exhibit relevant to his or her testimony. The unfair extrapolation (UE) objection applies if a witness creates a material fact not included in his or her official record. A material fact is one that would likely impact the outcome of the case.

Witnesses may, however, make fair extrapolations from the materials. A fair extrapolation is one in which a witness makes a reasonable inference based on his or her official record. A fair extrapolation does not alter the material facts of the case.

If a witness is asked information not contained in the witness’s statement, the answer must be consistent with the statement and may not materially affect the witness’s testimony or any substantive issue of the case.

Unfair extrapolations are best attacked through impeachment and closing argument. They should be dealt with by attorneys during the course of the trial. (See page 63 on how to impeach a witness)

When making a UE objection, students should be able to explain to the court what facts are being unfairly extrapolated and why the extrapolation is material to the case. Possible rulings by a presiding judge include:

a) No extrapolation has occurred; b) An unfair extrapolation has occurred; c) The extrapolation was fair.

The decision of the presiding judge regarding extrapolations or evidentiary matters is final.

Usage Comments— The most common example of an unfair extrapolation would be if an expert witness or police officer is questioned about research and procedures that require them to have specialized knowledge outside what is contained in their official records. This type of unfair extrapolation is illustrated in Example #1 below. Example #2 provides a set of facts and an example of fair and unfair extrapolation based on a same sample fact scenario.

Example #1: A defense expert witness testifies about using fluorescent light when collecting fingerprints, which is described in her witness statement. On cross-examination, the prosecutor asks, “Did you use also use a superglue processing technique to collect fingerprints?” While a superglue processing technique is an actual way to collect fingerprints, the procedure was not mentioned anywhere in the case materials. The defense could object that the question calls for an unfair extrapolation.


Example #2: Sample Fact Scenario John Doe, who is being charged with buying stolen goods on a particular night, states the following in his witness statement: “On the night in question, I pulled into the parking lot of the Acme Grocery Store and parked my car. I walked into the store with the other customers, picked up some items, went to the checkout stand, and left the store with my shopping bag.”

Fair Extrapolation: At trial, John Doe testifies to the following: “On the night in question, around 9:00 p.m., I went to the Acme Grocery Store, parked my car, went into the store and purchased milk and a box of cereal.” The fact that John Doe said he “purchased milk and a box of cereal” is a fair extrapolation. Even though there is no mention of what John purchased in his witness statement, it can be reasonably inferred from the context of his witness statement that he entered the store and purchased groceries. Furthermore, the items he purchased (milk and cereal) do not impact any substantive issue in the case.

Unfair Extrapolation: At trial, John Doe testifies to the following: “I pulled into the parking lot of the Acme Grocery Store and parked my car. I walked into the store, purchased some groceries, and withdrew $200 from the ATM.” The fact that John Doe withdrew cash is an unfair extrapolation because the fact John withdrew $200 on the night of the crime is material to the charge of buying stolen goods since because it impacts the substantive issues of his motive and means to later buy stolen goods.

Form of Objection: “Objection, your honor. This is an unfair extrapolation,” or “That question calls for information beyond the scope of Mr. Doe’s witness statement.”

NOTE: The Unfair Extrapolation objection replaces the Creation of a Material Fact objection used in previous years in California Mock Trial.

2. Relevance Unless prohibited by a pretrial motion ruling or by some other rule of evidence listed in these Simplified Rules of Evidence, all relevant evidence is admissible. Evidence is relevant if it has any tendency to make a fact that is important to the case more or less probable than the fact would be without the evidence. Both direct and circumstantial evidence may be relevant and admissible in court.

Example: Eyewitness testimony that the defendant shot the victim is direct evidence of the defendant’s assault. The testimony of a witness establishing that the witness saw the defendant leaving the victim’s apartment with a smoking gun, is circumstantial evidence of the defendant’s assault.

Usage Comments—When an opposing attorney objects on the ground of relevance, the judge may ask you to explain how the proposed evidence relates to the case. You can then make an “offer of proof” (explain what the witness will


testify to and how it is relevant). The judge will then decide whether or not to let you question the witness on the subject.

Form of Objection: “Objection, your honor. This testimony is not relevant,” or “Objection, your honor. Counsel’s question calls for irrelevant testimony.”

3. More Prejudicial Than Probative The court in its discretion may exclude relevant evidence if its probative value (its value as proof of some fact) is substantially outweighed by the probability that its admission creates substantial danger of undue prejudice, confuses the issues, wastes time, or misleads the trier of fact (judge).

Usage Comments—This objection should be used sparingly in trial. It applies only in rare instances. Undue prejudice does not mean “damaging.” Indeed, the best trial evidence is always to some degree damaging to the opposing side’s case. Undue prejudice instead is prejudice that would affect the impartiality of the judge, usually through provoking emotional reactions. To warrant exclusion on that ground, the weighing process requires a finding of clear lopsidedness such that relevance is minimal and prejudice to the opposing side is maximal.

Example: A criminal defendant is charged with embezzling money from his employer. At trial, the prosecutor elicits testimony that, several years earlier, the defendant suffered an animal cruelty conviction for harming a family pet.

The prosecution could potentially argue that the animal cruelty conviction has some probative value as to defendant’s credibility as a witness. However, the defense would counter that the circumstances of the conviction have very little probative value. By contrast, this fact creates a significant danger of affecting the judge’s impartiality by provoking a strong emotional dislike for the defendant (undue prejudice).

Form of Objection: “Objection, your honor. The probative value of this evidence is substantially outweighed by the danger of undue prejudice (or confusing the issues, or misleading the trier of fact).”

4. Laying a Proper Foundation To establish the relevance of direct or circumstantial evidence, you may need to lay a proper foundation. Laying a proper foundation means that before a witness can testify about his or her personal knowledge or opinion of certain facts, it must be shown that the witness was in a position to know those facts in order to have personal knowledge of those facts or to form an admissible opinion. (See “Opinion Testimony” below.)

Usage Comments— Example: A prosecution attorney calls a witness to the stand and begins questioning with “Did you see the defendant leave the


scene of the crime?” The defense attorney may object based upon a lack of foundation. If the judge sustains the objection, then the prosecution attorney should lay a foundation by first asking the witness if he was in the area at the approximate time the crime occurred. This lays the foundation that the witness was at the scene of the crime at the time that the defendant was allegedly there in order to answer the prosecution attorney’s question.

Form of Objection: “Objection, your honor. There is a lack of foundation.”

5. Personal Knowledge/Speculation A witness may not testify about any matter of which the witness has no personal knowledge. Only if the witness has directly observed an event may the witness testify about it. Personal knowledge must be shown before a witness may testify concerning a matter.

Usage Comments— Witnesses will sometimes make inferences from what they actually did observe. An attorney may properly object to this type of testimony because the witness has no personal knowledge of the inferred fact.

Example: From around a corner, the witness heard a commotion. The witness immediately walked towards the sound of the commotion, found the victim at the foot of the stairs, and saw the defendant on the landing, smirking. The witness then testifies that the defendant pushed the victim down the stairs. Even though this inference may seem obvious to the witness, the witness did not personally observe the defendant push the victim. So the defense attorney can object based upon the witness’s lack of personal knowledge that the defendant pushed the victim.

Form of Objection: “Objection, your honor. The witness has no personal knowledge to answer that question.” Or “Objection, your honor, speculation.”

6. Opinion Testimony (Testimony from Non-Experts) Opinion testimony includes inferences and other subjective statements of a witness. In general, opinion testimony is inadmissible because the witness is not testifying to facts. Opinion testimony is admissible only when it is (a) rationally based upon the perception of the witness (five senses) and (b) helpful to a clear understanding of his or her testimony. Opinions based on a common experience are admissible. Some examples of admissible witness opinions are speed of a moving object, source of an odor, appearance of a person, state of emotion, or identity of a voice or handwriting.

Usage Comments— As long as there is personal knowledge and a proper foundation, a witness could testify, “I saw the defendant who was crying, looked tired, and smelled of alcohol.” All of this is proper lay witness (non-expert) opinion.


Form of Objection: “Objection, your honor. Improper lay witness opinion,” or “Objection, your honor. The question calls for speculation on the part of the witness.”

7. Expert Witness A person may be qualified as an expert witness if he or she has special knowledge, skill, experience, training, or education in a subject sufficiently beyond common experience. An expert witness may give an opinion based on professional experience if the expert’s opinion would assist the trier of fact (judge) in resolving an issue relevant to the case. Experts must be qualified before testifying to a professional opinion. Qualified experts may give an opinion based upon their personal observations as well as facts made known to them at, or before, the trial. The facts need not be admissible evidence if they are the type reasonably relied upon by experts in the field. Experts may give opinions on ultimate issues in controversy at trial. In a criminal case, an expert may not state an opinion as to whether the defendant did or did not have the mental state in issue.

Usage Comments— Examples:

1. A handwriting comparison expert testifies that police investigators

presented her with a sample of the defendant’s handwriting and a threatening letter prepared by an anonymous author. She personally conducted an examination of both documents. Based on her training, her professional experience, and her careful examination of the documents, she concluded that, in her opinion, the handwriting in the anonymous letter matches the handwriting in the sample of the defendant’s handwriting. This would be an admissible expert opinion.

2. A doctor testifies that she based her opinion upon (1) an examination of the patient and (2) medically relevant statements of the patient’s relatives. Personal examination is admissible because it is relevant and based on personal knowledge. The statements of the relatives are inadmissible hearsay (hearsay is defined in section 9 below) but are proper basis for opinion testimony because they are reasonably relevant to a doctor’s diagnosis. A judge could, in her discretion, allow the expert to describe what the relatives told her and explain how that information supports her opinion. Although those statements would not be admissible to prove the statements are true, they can be used to explain how the statements support the doctor’s opinion.

Form of Objection: “Objection, your honor. There is a lack of foundation for this opinion testimony,” or “Objection, your honor. Improper opinion.”

8. Character Evidence “Character evidence” is evidence of a person’s personal traits or personality tendencies (e.g., honest, violent, greedy, dependable, etc.). As a general rule, character evidence is inadmissible when offered to prove


that a person acted in accordance with his or her character trait(s) on a specific occasion. The Simplified Rules of Evidence recognize three exceptions to this rule:

1. Defendant’s own character The defense may offer evidence of the defendant’s own character (in the form of opinion or evidence of reputation) to prove that the defendant acted in accordance with his or her character on a specific occasion (where the defendant’s character is inconsistent with the acts of which he or she is accused). The prosecution can rebut the evidence. (See Usage Comments below.)

2. Victim’s character The defense may offer evidence of the victim’s character (in the form of opinion, evidence of reputation, or specific instances of conduct) to prove the victim acted in accordance with his or her character on a specific occasion (where the victim’s character would tend to prove the innocence of the defendant). The prosecution can rebut the evidence. (See usage comments below.)

3. Witness’s character Evidence of a witness’s character for dishonesty (in the form of opinion, evidence of reputation, or specific instances of conduct) is admissible to attack the witness’s credibility. If a witness’s character for honesty has been attacked by the admission of bad character evidence, then the opposing party may rebut by presenting good character evidence (in the form of opinion, evidence of reputation, or specific instances of conduct) of the witness’s truthfulness.

Admission of Prior Acts for Limited Non-Character Evidence

Purposes Habit or Custom to Prove Specific Behavior Evidence of the habit or routine practice of a person or an organization is admissible to prove conduct on a specific occasion in conformity with the habit or routine practice. Habit or custom evidence is not character evidence.

Prior Act to Prove Motive, Intent, Knowledge, Identity, or Absence of Mistake Nothing in this section prohibits the admission of evidence that the defendant committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, intent, knowledge, identity, or absence of mistake or accident) other than his or her disposition to commit such an act.

Usage Comments— If any prosecution witness testifies to the defendant’s or victim’s character, the defense may object. But the prosecution may then request to make an offer of proof, or an explanation to the judge, that the prosecution (a) anticipates the defense will introduce evidence of defendant’s or victim’s character, and (b) Mock Trial rules do not allow for rebuttal witnesses or recalling witnesses. If the judge allows, the prosecution may present evidence in


the form of opinion, evidence of reputation, or specific instances of conduct to rebut the defense’s anticipated use of character evidence. If this evidence does not come in during the defense, the defense attorney can move to strike the previous character evidence.

Examples: Admissible character evidence 1. The defendant is charged with embezzlement (a theft offense). The

defendant’s pastor testifies that the defendant attends church every week and has a reputation in the community as an honest and trustworthy person. This would be admissible character evidence.

Inadmissible character evidence 2. The defendant is charged with assault. The prosecutor calls the

owner of the defendant’s apartment to testify in the prosecution’s case-in-chief. She testifies that the defendant often paid his rent late and was very unreliable. This would likely not be admissible character evidence for two reasons: (1) This character evidence violates the general rule that character evidence is inadmissible (and it does not qualify under one of the three recognized exceptions above), and (2) the character trait of “reliability” is not relevant to an assault charge (by contrast, propensity for violence or non-violence would be relevant character traits in an assault case).

Form of Objection: “Objection, your honor. Inadmissible character evidence,” or “Objection, your honor. The question calls for inadmissible character evidence.”

9. Hearsay Hearsay evidence is evidence of a statement that was made other than by a witness while testifying at trial and that is offered to prove the truth of the matter stated. (This means the person who is testifying to another person’s statement is offering the statement to prove it is true.) Hearsay is considered untrustworthy because the declarant (aka speaker) of the out- of-court statement did not make the statement under oath and is not present in court to be cross-examined. Because these statements are unreliable, they ordinarily are not admissible.

Usage Comments—Testimony not offered to prove the truth of the matter stated is, by definition, not hearsay. For example, testimony to show that a statement was said and heard, or to show that a declarant could speak in a certain language, or to show the subsequent actions of a listener, is admissible.

Examples: 1. Joe is being tried for murdering Henry. The witness testifies, “Ellen

told me that Joe killed Henry.” If offered to prove that Joe killed Henry, this statement is hearsay and would likely not be admitted over an objection.

2. A witness testifies, “I went looking for Eric because Sally told me that Eric did not come home last night.” Sally’s comment is an out- of-court statement. However, the statement could be admissible if


it is not offered for the truth of its contents (that Eric did not come home) but instead is offered to show why the witness went looking for Eric.

Form of Objection: “Objection, your honor. Counsel’s question calls for hearsay.” Or “Objection, your honor. This testimony is hearsay. I move that it be stricken from the record.”

Hearsay Exceptions Out of practical necessity, the law recognizes certain types of hearsay that may be admissible. Exceptions have been allowed for out-of-court statements made under circumstances that promote greater reliability, provided that a proper foundation has been laid for the statements. The Simplified Rules of Evidence recognize only the following exceptions to the hearsay rule:

a. Declaration against interest is a statement which, when made, was contrary to the declarant's own economic interest, or subjected the declarant to the risk of civil or criminal liability, or created a risk of making the declarant an object of hatred, ridicule, or social disgrace in the community. A reasonable person in the declarant’s position would not have made the statement unless the person believed it to be true.

b. Excited utterance is a statement that describes or explains an event perceived by the declarant, made during or shortly after a startling event, while the declarant is still under the stress of excitement caused by the event.

c. State of mind refers to a statement that shows the declarant’s then-existing state of mind, emotion, or physical condition (including a statement of intent, plan, motive, mental state, pain, or bodily health).

d. Records made in the regular course of business (including medical records) are writings made as a record of an act or event by a business or governmental agency (Mock Trial does not require the custodian of the records to testify). To qualify as a business record , the following conditions must be established: (1) The writing was made in the regular course of a business; (2) The writing was made at or near the time of the act or event; and (3) The sources of information and method of preparation are trustworthy.

e. Official records by public employees are writing made by a public employee as a record of an act or event. The writing must be made within the scope of duty of a public employee.

f. Prior inconsistent statement is a prior statement made by a witness that is inconsistent with the witness’s trial testimony.

g. Prior consistent statement is a prior statement made by a witness that is consistent with the witness’s trial testimony. Evidence of a prior consistent statement can only be offered after evidence of a prior inconsistent statement has been admitted for the purpose of attacking the witness’s credibility. To be admissible, the consistent statement must have been made before the alleged inconsistent statement.

h. Statements for the purpose of medical diagnosis or treatment


are statements made for purposes of medical diagnosis or treatment and describing medical history, past or present symptoms, pain, or sensations.

i. Reputation of a person’s character in the community is evidence of a person's general reputation with reference to his or her character or a trait of his or her character at a relevant time in the community in which the person then resided or in a group with which the person habitually associated.

j. Dying declaration is a statement made by a dying person about the cause and circumstances of his or her death, if the statement was made on that person’s personal knowledge and under a sense of immediately impending death.

k. Co-conspirator’s statements are statements made by the declarant while participating in a conspiracy to commit a crime or civil wrong. To be admissible the following must be established: (a) The statement was made in furtherance of the objective of that conspiracy; (b) the statement was made prior to or during the time that the declarant was participating in that conspiracy; and (c) the evidence is offered either after admission of evidence sufficient to sustain a finding of the facts specified in (a) and (b) or, in the court’s discretion as to the order of proof, subject to the admission of this evidence.

l. Adoptive admission is a statement offered against a party, that the party, with knowledge of the content of that statement, has by words or other conduct adopted as true.

m. Admission by a party opponent is any statement by a party in an action when it is offered against that party by an opposing party. The statement does not have to be against the declarant’s interest at the time the statement was made.

Objections for inappropriately phrased questions: 10. Leading Questions Attorneys may not ask witnesses leading questions during direct examination or re-direct examination. A leading question is one that suggests the answer desired. Leading questions are permitted on cross- examination.

Usage Comments— Example: During direct examination, the prosecutor asks the witness, “During the conversation on March 8, didn’t the defendant make a threatening gesture?” Counsel could rephrase the question, “What, if anything, did the defendant do during your conversation on March 8?”

Form of Objection: “Objection, your honor. Counsel is leading the witness.”

11. Compound Question A compound question joins two alternatives with “and” or “or,” preventing the interrogation of a witness from being as rapid, distinct, or effective for finding the truth as is reasonably possible.


Example: “Did you determine the point of impact from conversations with witnesses and from physical marks, such as debris in the road?” If an objection to the compound question is sustained, the attorney may state “Your honor, I will rephrase the question,” and then break down the question into two separate questions:

Q1:“Did you determine the point of impact from conversations with witnesses?” Q2:“Did you also determine the point of impact from physical marks in the road?”

Remember that there may be another way to make your point.

Form of Objection: “Objection, your honor, on the ground that this is a compound question.”

12. Narrative A narrative question is too general and calls for the witness in essence to “tell a story” or give a broad and unspecific response. The objection is based on the belief that the question seriously inhibits the successful operation of a trial and the ultimate search for the truth.

Usage Comments—Examples: The attorney asks A, “Please describe all of the conversations you had with X before X started the job.” This question calls for the witness to give a long narrative answer. It is therefore, objectionable.

Form of Objection: “Objection, your honor. Counsel’s question calls for a narrative.” Or, “Objection, your honor. The witness is providing a narrative answer.”

13. Argumentative Question An argumentative question challenges the witness about an inference from the facts in the case. The cross-examiner may not harass a witness, become accusatory toward a witness, unnecessarily interrupt the witness’s answer, or make unnecessary comments on the witness’s responses. These behaviors are also known as “badgering the witness.” (If a witness is non-responsive to a question, see the non-responsive objection (#16) below.)

Usage Comments—Example: Questions such as “How can you expect the judge to believe that?” are argumentative and objectionable. The attorney may argue the inferences during summation or closing argument, but the attorney must ordinarily restrict his or her questions to those calculated to elicit relevant facts.

Form of Objection: “Objection, your honor. Counsel is being argumentative.” Or “Objection, your honor. Counsel is badgering the witness.”

14. Asked and Answered Witnesses should not be asked a question that has previously been asked and answered. This can seriously inhibit the effectiveness of a trial.


Usage Comments—Examples: On direct examination, the prosecution attorney asks, “Did the defendant stop at the stop sign?” Witness answers, “No, he did not.” Then, because it is a helpful fact, the direct examining attorney asks again, "So the defendant didn't stop at the stop sign?” Defense counsel could object on asked-and-answered grounds.

On cross-examination, the defense attorney asks, “Didn’t you tell a police officer after the accident that you weren’t sure whether X failed to stop for the stop sign?” Witness answers, “I don’t remember.” Defense attorney then asks, “Do you deny telling the officer that?” If the prosecution attorney makes an asked-and-answered objection, it should be overruled. Why? In this example, defense counsel rephrased the question based upon the witness’s answer.

Form of Objection: “Objection, your honor. This question has been asked and answered.”

15. Vague and Ambiguous Questions Questions should be clear, understandable, and as concise as possible. The objection is based on the notion that witnesses cannot answer questions properly if they do not understand the questions.

Usage Comments—Example: “Does it all happen at once?”

Form of Objection: “Objection, your honor. This question is vague and ambiguous as to “what happened at once.”

16. Non-responsive Witness A witness has a responsibility to answer the attorney’s questions. Sometimes a witness’s reply is vague or the witness purposely does not answer the attorney’s question. Counsel may object to the witness’s nonresponsive answer.

Usage Comments—Example: The attorney asks “Did you see the defendant’s car in the driveway last night? The witness answers, “Well, when I got home from work I hurried inside to make dinner. Then I decided to watch TV and then I went to bed." This answer is nonresponsive as the question is specifically asking if the witness saw the defendant’s car on the night in question.

Form of Objection: “Objection, your honor. The witness is being nonresponsive.”

17. Outside the Scope of cross-examination Redirect examination is limited to issues raised by the opposing attorney on cross-examination. If an attorney asks questions beyond the issues raised on cross-examination, opposing counsel may object to them.

Form of objection: “Objection, your honor. Counsel is asking the witness about matters beyond the scope of cross-examination.”


Summary of Allowable Evidentiary Objections for the California Mock Trial

1. Unfair Extrapolation: “Objection your honor. This question is an “unfair extrapolation,” or “This information is beyond the scope of the statement of facts.”

2. Relevance: “Objection, your honor. This testimony is not relevant,” or “Objection, your honor. Counsel’s question calls for irrelevant testimony.”

3. More Prejudicial Than Probative: “Objection, your honor. The probative value of this evidence is substantially outweighed by the danger of undue prejudice (or confusing the issues, wasting time, or misleading the trier of fact).”

4. Foundation: Objection, your honor. There is a lack of foundation.”

5. Personal Knowledge/Speculation: “Objection, your honor. The witness has no personal knowledge to answer that question.” Or “Objection, your honor, speculation.”

6. Opinion Testimony (Testimony from Non-Experts): “Objection, your honor. Improper lay witness opinion,” or “Objection, your honor. The question calls for speculation on the part of the witness.”

7. Expert Opinion: “Objection, your honor. There is a lack of foundation for this opinion testimony,” or “Objection, your honor. Improper Opinion.”

8. Character Evidence: “Objection, your honor. Inadmissible character evidence,” or “Objection, your honor. The question calls for inadmissible character evidence.”

9. Hearsay: “Objection, your honor. Counsel’s question calls for hearsay,” or “Objection, your honor. This testimony is hearsay. I move that it be stricken from the record.”

10. Leading Question: “Objection, your honor. Counsel is leading the witness.”

11. Compound Question: “Objection, your honor. This is a compound question.”

12. Narrative: “Objection, your honor. Counsel’s question calls for a narrative.” Or, “Objection, your honor. The witness has lapsed into a narrative answer.”

13. Argumentative Question: “Objection, your honor. Counsel is being argumentative,” or “Objection, your honor. Counsel is badgering the witness.”

14. Asked and Answered: “Objection, your honor. This question has been asked and answered.”

15. Vague and Ambiguous: “Objection, your honor. This question is vague and ambiguous as to .”

16. Non-Responsive: “Objection, your honor. The witness is being nonresponsive.”

17. Outside Scope of Cross-examination: “Objection, your honor. Counsel is

asking the witness about matters beyond the scope of cross examination.”


Participating California Counties for 2017–2018

Alameda Los Angeles Napa San Francisco Sonoma

Butte Madera Nevada San Joaquin Stanislaus

Contra Costa Marin Orange San Luis Obispo Tulare

El Dorado Mariposa Placer San Mateo Tuolumne

Fresno Mendocino Riverside Santa Barbara Ventura

Imperial Merced Sacramento Santa Clara Yolo

Kern Mono San Bernardino Santa Cruz Lake Monterey San Diego Shasta

2017-2018 California Mock Trial Advisory Committee

Sharon J. Matsumoto Chair

Los Angeles County District Attorney’s Office, Ret.

Robert C. Aronoff Law Offices of Robert C. Aronoff

David A. Carrillo California Constitution Center,

University of California, Berkeley, School of Law

Linda Dunn San Luis Obispo County District Attorney’s Office

Dennis Franks Twentieth Century Fox

Hon. Holly Fujie Los Angeles County Superior Court

Justice Steven Z. Perren California Courts of Appeal, Ventura

Hon. Ron H. Rose Los Angeles Superior Court, Ret.

Hon. Marjorie Steinberg Los Angeles Superior Court, Ret.

Jodi Taksar Los Angeles County District Attorney’s Office

CONSTITUTIONAL RIGHTS FOUNDATION MAJOR DONORS 2017

August, 2017

American Board of Trial Advocates Morrison & Foerster LLP

Analysis Group MUFG Union Bank, N.A.

Avery Dennison Corporation NBCUniversal

Barat Education Fund Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Barnes & Thornburg LLP O'Melveny & Myers LLP

Blue Shield of California Participant Media

Bryan Cave LLP Pillsbury Winthrop Shaw Pittman LLP

Crowell & Moring LLP Jay J. Plotkin Esq.

Drinker Biddle & Reath LLP Proskauer Rose LLP

Kimberly A. Dunne Esq. Patrick G. Rogan

Edison International Sempra Energy/ Southern California Gas Company

Garden City Group, LLC Sheppard Mullin Richter & Hampton LLP

Gibson, Dunn & Crutcher LLP K. Eugene Shutler Esq.

GlassRatner Advisory & Capital Group Sidley Austin LLP Greenberg

Gross LLP Sidney Stern Memorial Trust

Houlihan Lokey Snapchat, Inc

Jackson Lewis P.C. Sony Entertainment

T. Warren Jackson Gregory P. Stone Esq.

Jenner & Block LLP Stroz Friedberg LLC

Katten Muchin Rosenman LLP Sullivan & Cromwell LLP

Kirkland & Ellis LLP Technicolor

Latham & Watkins LLP The Aerospace Corporation

Jason Lo The Claro Group, LLC

Manatt, Phelps & Phillips, LLP The Morrison & Foerster Foundation

Sharon J. Matsumoto University of Central Florida

Maxwell H. Gluck Foundation Walmart US

McGuire Woods LLP Willenken Wilson Loh & Delgado LLP

Meylan Davitt Jain Arevian & Kim LLP Winston & Strawn LLP

Morgan, Lewis & Bockius LLP

CRF California Mock Trial twitter.com/@crfusa

601 South Kingsley Dr. Los Angeles, CA 90005 www.crf-usa.org

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