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ED 441 710 AUTHOR TITLE INSTITUTION PUB DATE NOTE AVAILABLE FROM PUB TYPE EDRS PRICE DESCRIPTORS IDENTIFIERS ABSTRACT DOCUMENT RESUME SO 031 292 Hart, Diane; Alderson, Jan, Ed. Justice by the People. Teacher's Guide. Foundation of the American Board of Trial Advocates, Dallas, TX. 1998-00-00 86p.; Accompanying videotape and CD-ROM are not available from ERIC. Foundation of the American Board of Trial Advocates, 5307 East Mockingbird Lane, Suite 1060, Dallas, TX 75206-5109. Tel: 800-779-5879 (Toll Free). Guides Classroom Teacher (052) MF01/PC04 Plus Postage. *Citizen Participation; *Citizenship Education; Concept Formation; *Court Litigation; Critical Thinking; Decision Making; *Juries; *Justice; Middle Schools; Role Playing; Simulation; Social Studies; United States Government (Course) *Mock Trials This interactive curriculum has been developed to teach students about one of their most important rights as citizens, trial by jury. Knowledge about this right is critical since most of today's students will be called to serve on juries at some point in their lives. The curriculum's goal is to help students understand the history and value of their constitutional right to trial by jury. The week-long curriculum, for use in grades 5-9, contains a teacher's guide with complete lesson plans, a mock trial on videotape, and a CD-ROM trial simulation game. Each interactive lesson in the curriculum challenges students to apply critical thinking and decision-making skills as they experience and explore the roles of attorneys, judges, and jurors in the U.S. justice system. The curriculum begins with five classroom lessons which involve students in such varied hands-on activities as a group decision-making game developed by NASA, a trial by ordeal, a trial by combat, and a video trial of "Gold E. Locks and the Three Bears." Each lesson ends with an individual assignment designed to reinforce what students have learned and to assist teachers in assessing students' understanding of key concepts. The culminating activity in the curriculum is a multimedia computer game called "Make Your Case" in which students match wits as opposing attorneys in a simulated movie-like trial. Members of the legal community should be encouraged to visit the classroom, and the teacher's guide includes suggestions and guidelines designed to help volunteers make their visit an integral part of the curriculum. (BT) Reproductions supplied by EDRS are the best that can be made from the original document.

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ED 441 710

AUTHORTITLEINSTITUTION

PUB DATENOTE

AVAILABLE FROM

PUB TYPEEDRS PRICEDESCRIPTORS

IDENTIFIERS

ABSTRACT

DOCUMENT RESUME

SO 031 292

Hart, Diane; Alderson, Jan, Ed.Justice by the People. Teacher's Guide.Foundation of the American Board of Trial Advocates, Dallas,TX.

1998-00-0086p.; Accompanying videotape and CD-ROM are not availablefrom ERIC.Foundation of the American Board of Trial Advocates, 5307East Mockingbird Lane, Suite 1060, Dallas, TX 75206-5109.Tel: 800-779-5879 (Toll Free).Guides Classroom Teacher (052)MF01/PC04 Plus Postage.*Citizen Participation; *Citizenship Education; ConceptFormation; *Court Litigation; Critical Thinking; DecisionMaking; *Juries; *Justice; Middle Schools; Role Playing;Simulation; Social Studies; United States Government(Course)*Mock Trials

This interactive curriculum has been developed to teachstudents about one of their most important rights as citizens, trial by jury.Knowledge about this right is critical since most of today's students will becalled to serve on juries at some point in their lives. The curriculum's goalis to help students understand the history and value of their constitutionalright to trial by jury. The week-long curriculum, for use in grades 5-9,contains a teacher's guide with complete lesson plans, a mock trial onvideotape, and a CD-ROM trial simulation game. Each interactive lesson in thecurriculum challenges students to apply critical thinking and decision-makingskills as they experience and explore the roles of attorneys, judges, andjurors in the U.S. justice system. The curriculum begins with five classroomlessons which involve students in such varied hands-on activities as a groupdecision-making game developed by NASA, a trial by ordeal, a trial by combat,and a video trial of "Gold E. Locks and the Three Bears." Each lesson endswith an individual assignment designed to reinforce what students havelearned and to assist teachers in assessing students' understanding of keyconcepts. The culminating activity in the curriculum is a multimedia computergame called "Make Your Case" in which students match wits as opposingattorneys in a simulated movie-like trial. Members of the legal communityshould be encouraged to visit the classroom, and the teacher's guide includessuggestions and guidelines designed to help volunteers make their visit anintegral part of the curriculum. (BT)

Reproductions supplied by EDRS are the best that can be madefrom the original document.

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Teacher'sGuide

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This document has been reproduced asreceived from the person or organizationoriginating it.

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3

The Justice by the People Development Team

Ronald Rouda, President of ABOTA, 1998Justice by the People was initially conceived

by Ronald Rouda in 1995. He envisioned anengaging and interactive curriculum thatwould utilize the power of technology to pro-vide a fun way for children to learn about ourjustice system. Since then, Ron has workedclosely with the development team to turn hisvision into a reality.

Allen Kimbrough, Director of theFoundation of the American Boardof Trial AdvocatesAlong with his many other duties as director ofthe ABOTA foundation, Allen Kimbrough tookresponsibility for the funding, management,and oversight of the Justice by the People pro-

ject. He also served as a valued consultant onboth the classroom curriculum and the simu-lated trial game.

Darrell Benatar, Multimedia Producer,Programmer and Instructional DesignerAs the former director of business develop-ment at CLE Group, producers of theInteractive Courtroom series, Darrell Benatarwas a natural choice to head the Justice by thePeople project. In his role as project leaderhe has worn many hats including curriculumdesigner, lesson plan writer, game designer,game producer and programmer, and overallproject coordinator.

David Simon, Multimedia Producerand ProgrammerDavid Simon has put his experience asa former trial attorney to good use as theproducer of a number of multimediatrial advocacy programs including Cross-Examination: Evidence and Tactics and You Be

the Judge. In this project he collaborated onthe design and assisted with the developmentof Make Your Case.

4

Diane Hart, Education Writerand ConsultantDiane Hart has authored a number of socialstudies textbooks as well as resource books forteachers. She collaborated closely with Darrellon the curriculum design for Justice by thePeople and on the development and designof the teacher's guide.

Jan Alderson, Editor andContent DeveloperJan Alderson brought her years of experienceas a social studies content editor for educa-tional publishers to the task of putting togetherthe teacher's guide for Justice by the People.

Mike Maystead, Graphic ArtistMike Maystead has created hundreds of legalexhibits for trials including the O. J. Simpsoncase. He created the case file and exhibits inMake Your Case as well as much of the graphi-cal interface design. He also did significantwork on the teacher's guide.

Ingbritt Christensen, Graphic DesignerIngbritt Christensen has designed packagingand collateral materials for numerous SiliconValley companies. She worked on the finallayout of the teacher's guide and designedthe packaging and brochure for Justice bythe People.

Acknowledgments

Portions of this teacher's guide are from When justice Is Up to You, written anddeveloped by the American Association of Trial Lawyers and the National Institute forCitizen Education in the Law.

Readings on pages 54-56 were adapted from materials provided by Carolyn Pereira and theConstitutional Rights Foundation-Chicago.

"The Trial of Gold E. Locks" video was produced by the Indianapolis Bar Association.

Lost on the Moon, a group decision making game, was adapted from a game created byNASA (National Aeronautics and Space Administration). The idea to include this game camefrom Tim Hallahan, founder of the Harvard Law School Interactive Video Project.

Special thanks to the following educators and their students: Pam Meuser, Dennis Dobbs,Joyce Standing, Claudia King, Robin Schreiber, and Barbara Mindell.

Copyright © 1998 Foundation of the American Board of Trial Advocates. All rights reserved.Printed in the U.S.A.

Limited reproduction permission: The publisher grants permission to individual teachers toreproduce the handouts in this book as needed for use with their own students. Reproductionfor commercial use is prohibited.

Contents

Introduction

Why Learn About Trial by Jury?

Overview of Justice by the People

Fitting Justice by the People into the Middle School Curriculum

About ABOTA

Lesson 1: The Value of Group Decision Making

1

1

2

3

Lesson Overview 4

Teaching Lesson 1 5

Handout 1-1: Lunar Landing Items 7

Handout 1-2: Lunar Landing Scoring Sheet 8

Handout 1-3: Lunar Landing Expert Rankings and Explanations 9

Handout 1-4: Playground Contest Letter 10

Lesson 2: A History of Conflict Resolution and the Jury System

Lesson Overview 11

Teaching Lesson 2 12

Handout 2-1: Conflict Resolution Chart 16

Handout 2-2: Choose Your Trial 17

Lessons 3-5: The Short Version

Lesson Overview 18

Lesson 3: jury Selection

Lesson Overview 19

Teaching Lesson 3 20

Handout 3-1: Juror Number Cards 23

Handout 3-2: Jury Duty Interviews 24

6

Lesson 4: The Trial of Gold E. Locks

Lesson Overview

Teaching Lesson 4

Volunteer Guidelines: Teaching the Trial of Gold E. Locks

Handout 4-1: Rules of Evidence

Handout 4-2: Raising Objections

Handout 4-3: Order in the Court

Lesson 5: Jury Deliberation

Lesson Overview

Teaching Lesson 5

Handout 5-1: Jury Deliberation Form

Handout 5-2: Reporting on the Trial

CD-ROM Game: Make Your Case

Game Overview

Using Make Your Case

Answer Key

Trial Exhibits AG

Resources for the Teacher

25

26

27

29

30

31

32

33

35

36

37

40

43

48

Working with Volunteers from the Legal Community 54

Volunteer Guidelines: Making the Most of Your Visit 56

Reading 1: The History of Conflict Resolution and Trial by Jury 57

Reading 2: The Jury System 60

Reading 3: The Jury Trial 62

Reading 4: Rules of Evidence 64

Reading 5: Reaching a Verdict 67

Organizations Supporting Law-Related Education 69

Bibliography 70

I

1

Why Learn About Trial by Jury?

Many of today's students will somedayserve on juries. For most, it will be theirprincipal way, other than by voting, ofdirectly participating in the democraticprocess. Their education and life ex-periences will guide them in makingdecisions that are just and fair. As jurorsthey will cull the facts from diversetestimony and apply the law to thosefacts. It will be an opportunity to offergreat service, but it is also an awesomeresponsibility. The more jurors under-stand their role, the better they will beable to fulfill this responsibility.

The right to trial by jury is deeplyrooted in both our history and ourlegal system. All citizens hold the rightto have their cases at law, civil andcriminal, decided not by governmentofficials but by their peers within thecommunity. This basic principle issecured by most state constitutions andby the Sixth and Seventh Amendmentsto the U.S. Constitution. In contrast toother countries, where judges aloneoften decide issues, juries help balancethe scales of justice. Juries also keep

law in the United States from driftingtoo far from the will and conscience ofthe people. When juries speak, WinstonChurchill once wrote, "law flows fromthe people."

The more than five million Americanscalled for jury duty each year deter-mine guilt and innocence, safety andsecurity, life and death. Jurors from allwalks of lifefactory workers, teachers,business executives, homemakerscanand do, through their prudent deliber-ations, consider whether the mostpowerful corporation or influential citi-zen has acted justly. Are these jurorsreally capable of sorting out the diffi-cult and contentious issues that comebefore them? In an effort to answer

that question, the Federal JudicialCenter, an agency of the federal courts,conducted a survey of complex casesand found that, without exception,judges and lawyers agreed that jurors"made the correct decision or that thejury had no difficulty applying the legalstandards to the facts." A jury's deci-sion can be overturned by the courtsor annulled by a legislature, but thatrarely happens.

The jury concept has been a powerfulforce for justice for over 2,000 years. Incolonial America, courageous jurors inthe Zenger trial delivered the verdict thatfirst established Americans' right to a freepress. Thomas Jefferson believed the jury

process to be the best of all possiblesafeguards for the person, property, and

reputation of every citizen. Americanjurist George Boldt has written that "Juryservice honorably performed is as impor-tant in defense of our country, itsConstitution and laws, and the idealsand standards for which they stand, asthe service rendered by soldiers in thefield of battle in time of war."

Justice by the People is designed to

bring this proud American heritagedirectly to your classroom.

Overview ofJustice by the People

This course will help you to teachstudents about the history and value ofthe right to trial by jury. Students willalso learn how a trial by jury is con-ducted. The five class sessions in this

manual utilize interactive and coopera-tive learning that will help you engagestudents in the material.

This guide begins with a problem solv-ing game, which students attempt firstindividually and then in groups. The

game is based on a NASA lunar expedi-tion, and ultimately students canmatch their efforts with the opinionsof NASA experts. This exercise helps

students understand the benefits of thegroup decision making process.

Next, your class will settle a disputeusing various historical methods ofresolving legal conflicts. Students willlearn the benefits and drawbacks ofthese methods, which will give thema context for understanding the jurysystem as we practice it in our coun-try today.

In the final three class sessions,students will have an opportunity toparticipate in a trial. The class will gothrough a jury selection process, andstudents will serve as jurors at the trialof Gold E. Locks. The 15-minute mocktrial on videotape will give students achance to see how a trial proceeds andexperience as jurors the process ofdeliberating and delivering a verdict.

In the event that you do not wish totake three class periods to cover thematerial in the final three sessions(3-5), we provide you with an alter-nate lesson that merges these threesessions into one.

This course culminates with the MakeYour Case multimedia computer game.

Students will be able to play the role oflawyer in a trial simulation on CD-ROM.This interactive multimedia game letsstudents control a movie-like trial,questioning witnesses and makingobjections.

The course also offers an opportunityto bring members of the legal com-munity into the classroom. ABOTAencourages its members to share theirtime and expertise to help studentslearn about our jury system.

Fitting Justice by the People intothe Middle School Curriculum

Justice by the People has been designed

for use as either a stand-alone intro-duction to the jury system or as anintegral part of the middle school socialstudies curriculum. The themes it dealswithdecision making, conflict resolu-tion, guilt and innocence, law andorder, the rights and responsibilities ofcitizens, and equal justice for allareboth timeless and universal. The follow-ing list of opportunities for integratingthese lessons into the curriculum ismeant to be suggestive, not inclusive.

United States History: Colonial gov-ernment, Salem witch trials, Zengertrial, British efforts to curtail right totrial by jury in colonies, Declarationof Independence, U.S. Constitution,Bill of Rights, development of judi-cial branch of government, civilrights movement, citizenship today

Ancient and Modern World History:

Ancient Babylon and the Code ofHammurabi, ancient Greece andAthenian jury system, ancient Romeand the Twelve Tables, Byzantiumand the Justinian Code, medievalEurope and trials by oath and ordeal,Magna Carta and the right to trial bya jury of one's peers, GloriousRevolution and English Bill of Rights,Enlightenment and natural rights,American Revolution and Declarationof Independence, UniversalDeclaration of Human Rights andhuman rights concerns today

1-1

2

, , 11; ., A ,''!Iv WA 9 , ,5j1'

Civics, American Government, Law-

Related Education Courses: Magna

Carta, Declaration of Independence,U.S. Constitution, Bill of Rights,rights and responsibilities ofAmerican citizens, judicial branch ofgovernment, law and the legal sys-tem, human rights concerns today

Exploratories, Electives, Advisory,

Community Service: The lessons in

Justice by the People can be adapted

for use in advisory classes or as partof an elective or exploratory courseon such topics as citizenship, law andthe legal system, and careers in law.This curriculum can also be taught inconjunction with service learning andcommunity service projects focusingon the court system, juvenile justiceissues, peer or teen jury programs,and conflict resolution.

Wherever you choose to use thismaterial, you will be serving thebroad goals of expanding students'understanding of their rights andresponsibilities as citizens and enhanc-ing their appreciation of the heritageand value of the American jury system.

1 0

About ABOTA

The American Board of Trial Advocates(ABOTA) was created in 1958 as anot-for-profit organization dedicatedto defending the American civiljustice system.

With a membership comprising experi-enced attorneys representing bothplaintiffs and defendants in civil cases,ABOTA is uniquely qualified to speakfrom a consensus perspective of lawyers

who know how the American jurysystem operatesand who know thatthe jury's constitutionally mandatedrole is as the protector of the rights ofperson and property.

The Foundation of the American Boardof Trial Advocates was established in1993. The goals of the Foundation areto provide education to the Americanpublic concerning the history and valueof the right to trial by jury and to pro-mote professional education designedto elevate standards of legal profession-alism, integrity, honor, and courtesy.

The Value of Group Decision Making

Lesson Overview

Summary

This lesson is based on a game developed by the National Aeronautics and SpaceAdministration (NASA) to demonstrate the value of group decision making.Students are asked to prioritize a list of items individually and then as a group.Next they compare their lists with the expert rankings provided by NASA. In theend, the class will discuss the dynamics and value of group decision making.As an assessment activity, students will write a letter suggesting that groupdecision making be used in designing a new playground.

Lesson Objectives

As a result of this lesson students should be able to:

describe group decision making;

identify situations in which group decision making may be useful;

give reasons why groups may make better decisions than individuals.

Preparation/Materials Required

Handout 1-1: Lunar Landing Items (p. 7)one copy per student or a transparency for the class

Handout 1-2: Lunar Landing Scoring Sheet (p. 8)one copy per student

Handout 1-3: Lunar Landing Expert Rankings and Explanations (p. 9)one copy per group or a transparency for the class

Handout 1-4: Playground Contest Letter (p. 10)one copy per student

Scissors to cut Lunar Landing Items handout into cards for ranking

Lesson 1

i 4

5

Teaching Lesson 1

A. Introducing the Lesson

Tell students that they are going toplay a game created by the NationalAeronautics and Space Administration(NASA) called Lost on the Moon.The game is based on the followingscenario:

You are one of three astronauts on a

flight to the moon. After entering themoon's orbit you and another astronauttake the lunar landing vehicle down tothe moon's surface. The third astronaut

orbits the moon in the mother ship. Youare supposed to land next to the lunarbase on the lighted side of the moon.There you will find the supplies that you

need to survive on the hot and airlesssurface of the moon. When you try toland on the moon, you have mechanicaldifficulties. You are forced to make a

crash landing at a spot some 200 milesfrom the lunar base, still on the lightedside of the moon. Many of the items onboard the lunar lander are damaged inthe crash, but some items survive. Nowyou have to choose which of those items

you will take with you as you try to makeyour way on foot to the safety of thelunar base.

Read the above scenario to the class.Then pass out Handout 1-1: LunarLanding Items and Handout 1-2: LunarLanding Scoring Sheet to your stu-dents. Explain that the 15 items listedon these sheets survived the crashundamaged but that there is too muchhere to carry by foot to the lunar base.Students will have to choose what totake and what to leave behind.

B. Developing the Lesson

1 Have students cut the Lunar LandingItems handout into 15 cards. Askthem to work individually at arrang-ing their cards in order from themost important items to take withthem to the least important. Whenthey are finished, students shouldrecord their rankings in the first col-umn of their Lunar Landing ScoringSheets, with 1 being the mostimportant item to take, 15 the least.

2. Have students repeat the exercise,this time working in small groupsof 4 or 5 students. Give them alimited amount of time to discusstheir choices and come up with agroup ranking of the same items,recording the group consensus incolumn two of their Lunar LandingScoring Sheets.

3. When the groups have completedthe rankings, display the LunarLanding Expert Rankings andExplanations on an overhead projec-tor or pass out copies of therankings to each group. Discuss eachof the rankings, clarifying the expla-nations as necessary. Then have

students record the expert rankingsin column three of the scoring sheet.

4. Guide students through the scoringprocess as described on the LunarLanding Scoring Sheet.

C. Concluding the Lesson

1. When students have completed thescoring process, poll the class to find

out how many students have an indi-vidual error point total that is lessthan their group error point total and

12

how many have an individual totalthat is greater. Have students offerreasons why they think their individ-ual totals are less than or greater thantheir group totals.

2. Discuss with the class how groupdecision making works. Ask studentsto reflect on their experience of dis-cussing the rankings with otherstudents.

Did you change your mind abouta ranking? What changed yourmind?

Did anyone say something thatgave you an idea or started youthinking about changing yourrankings?

Did anyone in your group con-tribute something you didn'tknow that helped the group makea better decision?

3. Ask students to consider some disad-vantages of group decision making.

What part of the group work wasfrustrating?

What decisions would you notwant to make in a group?

When is group decision making agood idea?

4. Conclude the discussion by askingstudents to summarize advantagesand disadvantages of groupdecision making, listing their con-clusions in two columns on thechalkboard. Reasons might includethat the members of a group cancombine all their different experi-ences and knowledge. Groupdecision making lets people thinkout loud and try out differentideas. On the other hand, groupdecision making may not always

work for personal decisions, andoften takes longer. Working ingroups can also be frustrating.

D. Assessing the Lesson

Using Handout 1-4: PlaygroundContest Letter, students complete a let-ter to the school principal about howa playground design contest shouldbe conducted. Students are asked totake the view that designs generatedthrough group decision making will bestronger than designs generated indi-vidually. The activity may be completedin class or assigned as homework.

1 Give students Handout 1-4. You maywant to go over the instructionsand, if necessary, help studentsshape the statement of opinion.Suggest they list as many reasons asthey can to support their view thatgroup ideas for the playgrounddesign would be better than individ-ual ideas. Encourage them to backup their reasons with stories, exam-ples, or quotes from other people.Remind students that they can usetheir experiences with the NASAgame as supporting evidence.

2. To evaluate the students' letters,look for the following:

The opening statement clearlyexpresses the idea that in somecircumstances groups can makebetter decisions than individuals.

One or two reasons that back upthe opening statement. For exam-ple, two people can have twiceas many ideas as one student, orone person can build on anotherperson's ideas.

13 6

Handout 1-1

7

Lunar Landing Items

Matches

1 box

Food concentrate

mix with water tomake food

Nylon rope

50 feet long

Parachute Portable heater

battery operated

Handgun

.45 caliber

Dehydrated milk

1 case, mix withwater to make milk

Oxygen

2 tanks,

100 pounds each

Moon map

shows positions ofgroups of stars tohelp people findtheir way aroundthe moon

Life raft

self-inflating, comeswith a high pressureCO2 cartridge (con-tainer of carbondioxide) to inflate it

Compass

magnetic

Water

5 gallons

Flares

self-igniting

First aid kit

includes vitaminsand medicines thatcan be given using aspecial hypodermicneedle that insertsinto a spacesuit

Communicationdevice

solar powered

Copyright © Foundation of the American Board of Trial Advocates

14

Handout 1-2

Lunar Landing Scoring Sheet

Instructions

1. Record your rankings in the first column by placing the number 1 by themost important item, the number 2 by the second most important, and soon through number 15, the least important.

2. Record your group's rankings in the same way in the second column.

3. Record the expert rankings in the third column.

4. Find your error points by calculating the difference between your rankingand the expert ranking for each item. Subtract the smaller number from thelarger number and write the difference in column four. When finished, addall your error points and write the result at the bottom of the column.

5. To find your group's error points, calculate the difference between the groupranking and the expert ranking for each item. Subtract the smaller numberfrom the larger number and write the difference in column five. Add all thegroup error points and record the total at the bottom of the column.

The smaller the score, the better you or your group did at matching wits withNASA's experts.

Item YourRanking

GroupRanking

ExpertRanking

YourError Points

GroupError Points

Matches

Food concentrate

Nylon rope

Parachute

Portable heater

Handgun

Dehydrated milk

Oxygen

Moon map

Life raft

Compass

Water

Flares

First aid kit

Communication device

Totals

Copyright © Foundation of the American Board of Trial Advocates

15

Handout 1-3

9

Lunar Landing Expert Rankings and Explanations

1. Oxygen: Oxygen is the most important thing for survival because themoon has no air.

2. Water: Water is necessary to replace the body fluids you would loseworking in the heat of the moon's lighted side.

3. Moon map: The map is important for figuring out how to find themoon base.

4. Food concentrate: Food will be vital in surviving the journey.

5. Communication device: This device may be necessary for contacting themother ship.

6. Nylon rope: Rope may be useful in scaling cliffs or in case of injury,perhaps for making a splint.

7. First aid kit: Vitamins and medicines may be necessary for survival.

8. Parachute: A parachute may be used as a shield from the sun's rays, whichcan be very intense on the moon.

9. Life raft: The force of the CO, squirting from the container could be usedto propel you across the moon's surface.

10. Flares: Flares may be useful for signaling the mother ship when the lunarbase is sighted.

11. Handgun: The force of a bullet shot from a gun kicks the gun back. Thisforce could be used to help people move across the moon.

12. Dehydrated milk: Milk is not as efficient a food source as the foodconcentrate.

13. Portable heater: A heater is not necessary on the lighted side of the moon.

14. Compass: The compass is useless because the moon has no magneticnorth and south poles.

15. Matches: Matches are useless because they need oxygen in order to burn,and the moon has no air.

16

Copyright © Foundation of the American Board of Trial Advocates

Playground Contest Letter

Your school has just received money to redesign the outdoor play area. Theprincipal is holding a contest and has asked each student to submit a plan fora new playground. You think it would be better if students worked in groupsto come up with plans for the playground. Write a letter to the principal tryingto persuade him or her to allow students to enter the contest in groups.

(Date)

Dear

I am writing to you about the playground design contest.

(Statement of opinion)

(Reasons)

Sincerely,

(Your name)

17

Copyright © Foundation of the American Board of Trial Advocates

Handout 1-4

10

11

A History of Conflict Resolution and the Jury System

Lesson Overview

Summary

This lesson begins with a staged conflict between students that provides them withan opportunity to explore methods that societies have used to resolve legal con-flicts. The teacher suggests resolving the dispute by a kind of "trial by ordeal"using jawbreakers. Students also role-play resolving the case using other historicalmeans of conflict resolutiontrial by combat and trial by oath. Students will thenwatch a short video that traces the early guarantees of trial by jury in the UnitedStates. In the assessment activity, students are presented with a scenario in whichthey are falsely accused of shoplifting. They must then choose a method of trial toresolve the accusation and justify their choice.

To learn more about this topic see Reading 1, "The History of Conflict Resolutionand Trial by jury," on pages 57-59.

Lesson Objectives

As a result of this lesson students should be able to:

understand that methods for resolving legal disputes have evolved and improvedover time;

identify advantages and disadvantages of different conflict resolution methods;

understand that a trial by jury involves group decision making.

Preparation/Materials Required

Handout 2-1: Conflict Resolution Chart (p. 16)one copy per student

Handout 2-2: Choose Your Trial (p. 17)one copy per student

Colored jawbreakers or other candy that will temporarily stain students'tonguesat least two candies plus one that does not stain

Cane or towel (optional)

1V and VCR

"Justice by the People" video

18

Teaching Lesson 2

A. Introducing the Lesson

Explain that in the United States weare guaranteed the right to trial by juryin both civil and criminal cases. Civilcases involve individuals arguing overprivate matters, such as agreements,money owed, and property. Criminalcases involve a crime against society,

such as theft and drunk driving.

As a jumping-off point for exploringseveral historic methods of conflictresolution, stage a conflict in class.Enlist the aid of four studentsone toact as the accuser and three to standaccused. The accuser should accusethe other three students of breaking aschool rule, such as swearing or eatingin class. The accused students shoulddeny the charge.

B. Developing the Lesson

Trial by Ordeal

1 Explain that you are putting theaccused on trial. But instead of try-ing the case in front of a jury, youare relying on a trial by ordeal. Givethe accused students a piece of hardcandy and tell them to place it intheir mouths for one or two minuteswithout biting on it. Ensure thatall of the candies will leave thestudents' mouths brightly coloredexcept one.

2. During the time the students are sub-jected to this "ordeal," explain to therest of the class that at the end of afew minutes, the accused students willstick out their tongues. Any studentwhose tongue is brightly coloredwill be considered guilty because a

colored tongue is evidence that evilwords (lies) have passed through the

person's lips. A tongue that is notcolored is proof of innocence.

Explain that people have alwaysneeded ways to resolve legal con-flicts, and that trial by ordeal wasa common method used in Europeduring the Middle Ages. Accusedpersons were forced to undergodangerous tests, even torture,because the people believed thatthe innocent would not be hurt orthat their wounds would heal mirac-ulously. For example, a personmight be made to walk a certainnumber of steps carrying a piece ofred-hot iron. After a certain numberof days, if the wound had begunto heal, the person was said to beinnocent. If the wound had becomeinfected or was not healing, the per-son was judged guilty. Ask studentsif they can think of examples oftrial by ordeal in colonial America.Students might suggest the Salemwitch trials.

3. Have the students stick out theirtongues, and then write the "ver-dicts" in the trial by ordeal on thechalkboard. Ask the students if theythink a colored tongue is enough toprove guilt or innocence. They willprobably say no. Try the case again,this time in a trial by oath.

Trial by Oath

1. Explain that in a trial by oath peopleaccused of a crime only had toswear, or take an oath, that theywere innocentunless others sworeagainst them. The community wascounting on people of good reputa-tion to tell the truth when theyspoke under oath. To lie under oathwould be to risk being ostracized bythe community.

Lesson 2

12

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2. Have each of the accused studentsswear to his or her innocence beforea council of "nobles," which mightbe a small group of students or allmembers of the class who do nothave another role. Then have eachof the accused students choose twosupporters to testify under oathabout the student's good character.But before the witnesses testify, tellthem that if the nobles find one ofthe accused parties guilty, they willpunish any witness who supportedthat person.

3. When the witnesses have testified,have the nobles vote and rendertheir verdict for the accused. Writethat verdict on the chalkboard.

Trial by Combat

1. Try the case again, this time by com-bat. Explain that in Europe duringthe Middle Ages, trial by combat wasnot a free-for-all but a structuredaffair, sometimes involving a duelwith spears, swords, or daggers. Thedisputing parties could either fighttheir own battles or choose a cham-pion to fight for them. They thoughtthat winning was proof of innocencebecause God would provide a justoutcome.

According to the "Song of Roland,"in one such ordeal the championof Charlemagne smote his foe"through the nasal of the helmet ...and therewith the brain of Pinabelwent gushing from his head." Suchduels did not always end in death,however. The court established theterms of the combat.

2. Have a student who represents "thelocal lord of the classroom" chooseone champion for the class, and thethree accused students choose

another champion to compete on theirbehalf in a contest such as balance

wrestling, sometimes called Indian arm

wrestling, or boundary tug.

In balance wrestling, two contestantsstand with their right feet bracedagainst each other, outer edgestouching. For balance the left foot iswell to the back. The contestantsgrasp right hands. The object is tomake the opponent move one orboth feet or touch the ground withany part of the body except the feet.

For boundary tug, draw two lines onthe floor, about five apart. Betweenthe lines the two contestants faceeach other, with right toes touchingand left feet firmly planted to theback for balance. The contestantsgrasp a cane or a towel, and eachtries to pull the other across one ofthe lines.

3. After the trial by combat, write theverdict on the chalkboard. Havestudents compare the verdicts. Werethey the same under each method?Pass out Handout 2-1: ConflictResolution Chart. Have students fillout the chart as class discussion pro-ceeds. Tell them they will need thecompleted chart for a later assign-ment. See the completed chart onthe opposite page.

4. Discuss with the class the advan-tages and disadvantages of eachtype of trial.

Why did people think these weregood kinds of trials?

Do you think any of these meth-ods would be a good way todecide someone's guilt or inno-cence today?

Would you like to be tried any ofthese ways? Why or why not?

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C. Concluding the Lesson

1. Ask students what trials are like inour country today, listing charac-teristics of the jury trial on thechalkboard.

Who decides whether theaccused person is guilty orinnocent?

Where does the jury come from?

2. Show the video "Justice by thePeople," which traces the earlyguarantees of trial by jury in theUnited States. Before students viewthe video, you may wish to intro-duce the terms "jurisdiction" and"common law." As students watch

Conflict Resolution Chart

the video, have them look for evi-dence that the people who foundedthe United States thought that trialby jury was an important right.

3. Conclude by asking students to con-sider the advantages of a jury trial.

Why do you think Americansthought the right to a trial by jurywas so important?

How is a trial by jury differentfrom trial by ordeal, combat,or oath?

What does a jury have in com-mon with the group you werepart of during the NASA game?

How does a jury reach its verdict?

Type of Trial Advantages Disadvantages

Trial by Ordeal Trial was quick.The verdict was clear.

Guilt or innocence couldbe determined solely bychance, not facts.Innocent people couldbe badly hurt or killed.

Trial by Oath People who knew theaccused helped to decidethe case.

Witnesses might lie ortestify to things they knownothing about.People deciding case may bebiased because they knowthe accused.

Trial by Combat Trial was quick.The verdict was clear.

Seems unfair to peoplewho are old, weak, orunskilled in combat.Outcome is determined bysomething that has nothingto do with the dispute.

Trial by Jury A jury is more likelyto reach a fair verdict.Based on evidence,not strength or luck.

Jury trials take time.Jurors have to taketime off work.Sometimes juries cannotagree on a verdict.

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7/

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D. Assessing the Lesson

1. In Handout 2-2: Choose Your Trial,students are presented with ascenario in which they are accusedof shoplifting. Students fill out aform in which they declare howthey wish to be tried for theiralleged offense: by ordeal, by com-bat, by oath, or by jury. They mustthen give reasons for their choice.Remind students to refer to theirConflict Resolution Chart as theyexplain their choices. This activitymay be completed in class orassigned as homework.

2. There is no correct answer in thisassignment. In evaluating studentresponses, look to see that studentshave explained their choiceswith reasons that are realistic andconvincing.

3. When students have completedthe assignment, ask for a show ofhands to see how many studentschose each kind of trial. Reviewwith students the advantages ofa trial by jury.

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Conflict Resolution Chart

Type of Trial Advantages Disadvantages

Trial by Ordeal

Trial by Oath

Trial by Combat

Trial by Jury

23Copyright 0 Foundation of the American Board of Trial Advocates

Handout 2-1

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Handout 2-2

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Choose Your Trial

You are in a store with some friends. One of them takes an item off the shelfand puts it into your backpack without you knowing it. A little later you areaccused of shoplifting by a security guard. He searches your backpack and findsthe item. He accuses you of breaking the law. You say that you did not breakthe law. The dispute must be settled in a trial of your choosing. Which type oftrial do you choose and why?

Trial Information Form

Date

Your name

Nature of the alleged crime

Your side of the story

Trial preference (Circle one)

Trial by ordeal Trial by combat Trial by oath Trial by jury

Reasons for your choice

Signature 24

Copyright © Foundation of the American Board of Trial Advocates

The Short Version

Lesson Overview

Summary

Lessons 3-5

Lessons 3, 4, and 5 each take at least one full period of class time to teach. Youcan, however, cover these three lessons in from one to one-and-a-half class periods

by following the suggestions below.

Lesson 3: Jury Selection

See Introducing the Lesson. Ensure that students are familiar with the story of

Goldilocks.

Omit the jury selection process. Assign students to juries of 6 to 12 students each.

Omit the jury interview and move on to Lesson 4.

Lesson 4: The Trial of Gold E. Locks

Conduct Lesson 4 without a visiting member of the legal community.

You may wish to prepare students for the video "The Trial of Gold E. Locks" byintroducing the different roles that people (and bears) play in the trial and thecustomary sequence of events. (See Volunteer Guidelines: Teaching the Trial of

Gold E. Locks.)

The video prompts you to stop the tape each time an attorney raises an objec-tion. These stops allow for class discussion based on Handout 4-1: Rules ofEvidence. Instead, give brief explanations of the objections, perhaps readingfrom the handout to help students understand the objections and see whattestimony they as jurors must discount.

Omit the Raising Objections activity and move on to jury deliberation.

Lesson 5: Jury Deliberation

Appoint a foreperson for each jury.

Have the juries deliberate and return their verdicts.

Conclude by asking students to compare the jury deliberation process to thegroup decision making process they experienced in the NASA game.

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19

Jury Selection

Lesson Overview

Summary

In this classroom simulation of the jury selection process, the teacher plays therole of the judge and conducts the jury selection. To keep things simple, this willnot be an adversarial process as is often the case in trials. Instead, the judgewill select a jury. Those students who are not selected will form a jury of alternates.Those students who are disqualified for some reason will form a shadow jury. As anassessment activity, students play the role of newspaper reporters and interviewtwo adults about their experiences with jury duty.

To learn more about jury selection, see Reading 2: "The Jury System" on page 60.

Lesson Objectives

As a result of this lesson, students should be able to:

explain how juries are selected;

give reasons why people might not be chosen for jury duty.

Preparation/Materials Required

Handout 3-1: Juror Number Cards (p. 23)

photocopy; cut the copy to provide at least one number per student andplace in a container

Handout 3-2: Jury Duty Interviews (p. 24)one copy per student and one transparency

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Teaching Lesson 3

A. Introducing the Lesson

1. Tell students that a jury trial beginswith the selection of jurors, but oftenlong before a case goes to trial people

may hear about it from newspapersand TV stories and by word of mouth.Explain that the case of Gold E. Locks

and the Three Bears is about to go tocourt, but you know that people havealready talked about it. Ask studentswhat they know about the story ofGoldilocks.

What have you heard about thecase? What happened?

Who was involved?

What do you suppose the conflictis all about?

2. If students are not familiar with thestory, you may wish to retell it or read

it to the class. (See the bibliography.)Explain that later the case will be triedbefore a jury made up of members ofthe class. Tell the class that you willbe the judge when the case of GoldE. Locks comes to trial. The first thingyou must do is select a jury.

B. Developing the Lesson

1 Explain that as the judge in the case,your job is to select a jury that willbe fair to both sides. To do that youwill be questioning members of thejury poolthe large group fromwhich the jurors are chosen, in thiscase, the class. You will be askingthem questions both as a groupand individually. You may want toexplain that the process of question-ing prospective jurors is called voirdire, a French phrase meaning "tospeak the truth."

2. Tell the class that you will be callingprospective jurors by number. Haveeach student draw a number fromthe container of Juror Number Cards.Have students fold a sheet of paperin half and on the bottom half writethe number they have drawn. Askthem to make the number bigenough so that you can read it eas-ily from across the room. Studentscan then stand the paper on thedesk or table in front of them, likea tent, with the number facing you.

3. Introduce yourself as the judge andthank the jury pool for attending.Explain that for this proceeding, youwill be questioning the prospectivejurors in order to select the jury forthe trial of Gold E. Locks. Tell themthat it is important that prospectivejurors give truthful answers. Explainthat potential jurors may be dis-missed if you have a reason to thinkthey might not be able to make afair decision. Reasons for dismissal

might include being good friendswith, or related to, any parties in thecase. Ask the students to stand, raisetheir right hands, and take theprospective jurors' oath.

Oath for Prospective Jurors

"Do you, and each of you, solemnlyswear or affirm that you will truthfullyanswer all questions asked of you by

the Court?"

4. Call numbers 1 through 6, 8, 10,or 12, according to the customarysize of juries in your state. Ask theprospective jurors to take seats inthe front of the classroom. Questionthe group as a whole first, then indi-vidually, dismissing students withobvious biases. Then call additionalprospective jurors one by one, innumerical order, questioning them

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Lesson 3

20

and continuing to dismiss potentiallybiased jurors until you have selecteda complete jury.

Following are some suggestions forgroup and individual questions. Youdo not need to ask each prospectivejuror all of the questions.

Suggested GeneralVoir Dire Questions

Does anyone know either of thelawyers representing the parties inthis case?

Does anyone know the defendantGold E. Locks personally?

Is anyone here related to theThree Bears?

Is anyone here a close friend ofa bear of any kind, including ateddy bear or panda bear?

Has anyone here ever enteredsomeone else's house withouttheir permission? Explain.

Have you ever had someone enteryour house without your permis-sion? Explain.

Does anyone here believe that itis ever legal to enter someone'shome without permission?Explain.

Suggested IndividualVoir Dire Questions

What is your name?

What is your occupation?

Have you, any member of yourfamily, or a close friend ever beenon trial? What happened? Howdid this affect your opinion of thelegal system?

Have you, members of yourfamily, or close friends had legaltraining or experience? Have you

21

ever worked around lawyers,judges, or police officers?

How do you feel about the legalsystem in general?

Do you know of any reason at allwhy you would not be able toconsider the evidence fairly?

Do you think that a person who isarrested for a crime is probablyguilty?

Do you know of any reason whyyou would not be able to followthe judge's instructions?

Do you know of any reason whyyou could not make a fair deci-sion in the case?

5. Ideally, the judge should questionthe remaining members of the juryas well to see if they qualify as alter-nates, but you can question thembriefly as a group or simply desig-nate them as alternates withoutquestioning, if time is short.

6. Once the questioning is completed,read the list of jurors and the list ofalternates aloud. Tell the alternatesthat they will form an alternate, orsecond, jury in the trial of Gold E.Locks. However, explain that in realtrials one or two people are chosento be alternates. They hear the casealong with the regular jurors so thatthey can be ready to replace anyjuror that drops out during the trial.If none of the regular jurors dropsout, the alternate does not partici-pate in jury deliberations. Tellstudents who were disqualified thatthey will form a third jury, perhapsstanding for public opinion.

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C. Concluding the Lesson

Once the jury has been selected, dis-cuss the process with your students.You might explain that in somecourts, as students might have seenon TV, attorneys for each side mayquestion and dismiss potential jurorsin a similar way.

Why did the judge ask the potentialjurors if they knew Gold E. Locks?

Why did the judge ask if the poten-tial jurors were related to the ThreeBears?

Why did the judge ask aboutpeople's previous experiences withtrials? With lawyers?

What difference might it make iflawyers were conducting the juryselection?

Considering the kinds of questionsused in the jury selection, what doyou think the judge was looking for?

D. Assessing the Lesson

1. In Handout 3-2: Jury DutyInterviews, students interview twoadults to learn more about the juryselection process. The handout isa questionnaire that students willcomplete as they conduct theirinterviews. When you introduce theinterview questionnaire, point outthat if someone answers no toquestions 1, 2, and 3, they mightstill have something to say about therest of the questions. Tell studentsthat they will use the completedquestionnaires in a class discussion.

2. For the discussion, display a copy ofthe questionnaire as a transparency.Then ask students to respond tothe following questions with ashow of handsone hand for oneinterviewee, two hands for bothinterviewees. Tally the responses inone of the yes/no columns on thetransparency.

How many of the people youinterviewed had ever receiveda jury duty summons?

How many had reported for juryduty?

How many were questioned bya judge or lawyers in the case?

How many had served on a jury?

How many would be willing toserve on a jury in the future?

3. Discuss any experiences the inter-viewees shared with the students,especially those that might helpstudents understand more abouthow juries are chosen. Ask:

Do you think this is a fair wayto select a jury?

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Handout 3-1

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Juror Number Cards

Juror 1 Juror 2 Juror 3 Juror 4 Juror 5 Juror 6

Juror 7 Juror 8 Juror 9 Juror 10 Juror 11 Juror 12

Juror 13 Juror 14 Juror 15 Juror 16 Juror 17 Juror 18

Juror 19 Juror 20 Juror 21 Juror 22 Juror 23 Juror 24

Juror 25 Juror 26 Juror 27 Juror 28 Juror 29 Juror 30

Juror 31 Juror 32 Juror 33 Juror 34

q (1

Juror 35 Juror 36

Copyright © Foundation of the American Board of Trial Advocates

Jury Duty Interviews

Imagine that you are a reporter for a big newspaper. Your job is to find out aboutpeople's experiences with jury duty. You will put your information together withinformation that other reporters gather to create a survey on jury duty.

For this assignment, interview two people. Check off their yes and no answersin the boxes below. If a person has been called for jury duty or has served on ajury, ask if they will tell you what it was like. Where did they have to go? Whatquestions did they have to answer? Who questioned them? Write their repliesin the space below and on the back of this handout.

Jury Interview Questionnaire

Questions Person 1

Yes NoPerson 2Yes No

1. Have you ever received a jury duty summons?

2. Did you ever have to report to a court to seeif you would be chosen?

3. Were you questioned to be on a jury?

4. Did you ever serve on a jury? CI

5. Whether or not you have been on a jury in thepast, would you be willing to do it in the future?

6. Additional comments:

Copyright Foundation of the American Board of Trial Advocates 31

Handout 3-2

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The Trial of Gold E. Locks

Lesson Overview

Summary

In Lesson 4, students will view the trial of Gold E. Locks on videotape. You or avisiting member of the legal community will introduce information about howa trial works. During the videotaped trial, you will stop the tape at key points sothat the class can discuss the rules of evidence in a jury trial. As an assessmentactivity, students review the roles of attorneys, judges, and juries during a trial.

For more information on trials, see Reading 3: "The Jury Trial" and Reading 4: "Rulesof Evidence" on pages 62-66. For help in finding and working with a volunteerlawyer, see "Working with Volunteers from the Legal Community" on pages 54-55.

Lesson Objectives

As a result of this lesson students should be able to:

explain why a trial has rules that guide how and what evidence is presented toa jury;

understand that the judge makes sure these rules are followed and instructs thejury on what the law is and how to apply it in the case;

understand that a jury decides whether the law has been broken.

Preparation/Materials Required

Handout 4-1: Rules of Evidence (p. 29)one copy per student and one for visitor

Handout 4-2: Raising Objections (p. 30)one copy per student and one for visitor

Handout 4-3: Order in the Court (p. 31)one copy per student and one transparency

Volunteer Guidelines: Teaching the Trial of Gold E. Locks (p. 27-28)one copy for visitor

Volunteer Guidelines: Making the Most of Your Visit (p. 56)one copy for visitor

TV/VCR and "The Trial of Gold E. Locks" video

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Teaching Lesson 4

A. Introducing the Lesson

Explain that students will view the trialin the case of Gold E. Locks and theThree Bears. Tell them to listen to theinstructions the judge gives the jurybecause in the next lesson they will actas the jury and decide the case. If youhave a volunteer from the legal com-munity in the classroom, introduce thevolunteer, explaining that he or she willhelp the students understand whathappens during a trial.

B. Developing the Lesson

1. The volunteer prepares the studentsfor the video by describing the rolesdifferent people play in a trialthejudge, the jury, the lawyersand atrial's usual sequence of events. Youmight want to list the sequence ofevents on the chalkboard. If you areconducting the lesson without amember of the legal community, seeVolunteer Guidelines: Teaching theTrial of Gold E. Locks.

2. After you or an attorney explains theroles and the sequence of events in atrial, remind students that as the jury,they must decide the case based onthe evidence, not on anything thatthey heard outside the trial.

3. Introduce the rules of evidence,which regulate the form of questionsand answers in a trial. Give studentsHandout 4-1: Rules of Evidence. Tellstudents they will use the handoutduring the tape and also for a laterassignment.

4. Play the videotape. "The Trial ofGold E. Locks" follows the "Justiceby the People" segment. The videowill prompt you to stop the tapewhenever an attorney in the trial ofGold E. Locks raises an objection,but before the judge rules. The stopsgive the volunteer an opportunity todiscuss the rules of evidence withthe class, and students can refer tothe handout during the discussion.

C. Concluding the Lesson

1. When the tape is finished, have thevolunteer review the various rolespeople played in the trial, thesequence of events, and the objec-tions the lawyers raised.

2. Pass out Handout 4-2: RaisingObjections. Have students considereach statement and why it mightprovoke an objection. Then go overthe handout as a class to clarify anymisunderstandings.

D. Assessing the Lesson

1. In Handout 4-3: Order in the Courtstudents are asked to identify whodoes what in the courtroom. Theactivity might be assigned to groupsof students to work on in class or itmight be assigned as homework forindividuals.

2. When students have completed theassignment, review with the classthe actions of people in the court-room. During the discussion youmay find it helpful to the studentsto mark the correct answers on thetransparency.

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Lesson 4

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VolunteerGuidelines

27

Teaching the Trial of Gold E. Locks

Students will be familiar with the story of Goldilocks and the Three Bears from thebears' point of view, and they will have studied the advantages of trial by jury andhow a jury is chosen. In the lesson following this one, students will assume the roleof jury members and will render a decision in the case.

Case Summary

Gold E. Locks was home on the evening of October 31 (Halloween). Babe E. Bearwas trick-or-treating at Gold E. Locks' house. Babe was dressed up as Babe Ruth andhit a ball that broke a window in Gold's house. Gold said she would come by thenext morning to talk to Babe's parents. When she arrived, they were not home butthe door was open and she smelled porridge. She entered to wait for them. Whenshe sat down in the living room, the chair she sat in broke. She then ate someporridge and went upstairs to lie down. The Bear family came home, found Gold E.Locks in one of their beds, and had her arrested for trespassing.

Introducing the Video

Explain the roles of the people (and bears) that students will see in the trial.Bailiff Defense AttorneyJudge WitnessesJury Court ReporterProsecuting Attorney

Explain that the trial of Gold E. Locks follows the customary sequence of events.

1. Pretrial: Discovery and attempts at a settlement

2. The judge issues preliminary instructions to let the jury know what the issues are.

3. Attorneys make opening statements to tell the jury what they expect to prove.

4. Witnesses are sworn in and testify, prosecution witnesses first, then defensewitnesses.

5. The attorneys make final statements to the jury, arguing what they think theverdict should be.

6. The judge gives the jury final instructions explaining the law and how the jury isto apply it.

7. The jury deliberates and delivers a verdict.

Tell students that in the video they will see rules of evidence at work. When an attor-ney thinks the testimony is not following those rules, he or she objects, and thejudge decides whether or not the objection is well founded. Introduce the followingterms before viewing the video or as they come up during the trial:

burden of proof overruledsustained withdraw the questionreasonable doubt

34

Also point out to students the difference between direct examination and cross-examination as they watch the trial. These terms are not used in the video.

Viewing the Video

Explain that the video will be stopped whenever an attorney raises an objection, butbefore the judge rules. Give students Handout 4-1: Rules of Evidence, which theymay use to help them predict how the judge will rule. At each objection call onstudents to suggest what the ruling should be based on the rules of evidence.Comment on their suggestions and provide additional examples of testimony thatmight and might not be permitted.

Stop 1: Mom E. Bear is testifying about the condition of the bowls of porridge.The defense attorney objects that her testimony is not relevant.

Stop 2: Mom E. Bear is explaining what Pop A. Bear saw when he went upstairs.The defense attorney objects that her testimony is hearsay.

Stop 3: Pop A. Bear is explaining how he likes his porridge. The defense attorneyobjects that he is expressing opinion, not sticking with the facts.

Stop 4: Pop A. Bear is describing what was unusual when the Bear family camehome from their walk. The defense attorney objects that he has drawn aconclusion (speculation).

Stop 5: Gold E. Locks is asked a question that suggests an answer. The plaintiffattorney objects that this is a leading question.

Reviewing the Video

Review with the class the roles different people (and bears) played in the trial, as wellas the steps in the trial.

Pass out Handout 4-2: Raising Objections, which lists possible exchanges betweenattorneys and witnesses in the case of Gold E. Locks. Some of the exchanges aretaken from the video. Others are inventions. For each exchange, ask students todecide on what grounds an attorney might challenge the testimony. Have studentsrefer to the Rules of Evidence handout to help them decide. Give the class severalminutes to circle their responses, then go over the items with the class. Studentsshould understand not only which rule of evidence applies to each exchange, butalso why the exchange might detract from the discovery of truth and a fair trial.

The following are reasonable answers:

Question 1. Hearsay

Question 2. Speculation

Question 3. Relevance

Question 4. Hearsay

Question 5. Relevance

Question 6. Speculation

35,

VolunteerGuidelines

28

Handout 4-1

29

Rules of Evidence

During a trial, both sides in the case may present evidence. The testimonyof witnesses is important evidence. To guarantee that a trial is fair and helpthe jury find the truth, courts have rules about the how witnesses can giveevidence and what evidence they can give. The judge sees to it that everyonefollows these rules of evidence.

1. Relevance: Evidence must be relevant. It must have something to do withproving the case.

Example: In a trial over stolen baseball caps, a lawyer asks a witness abouther favorite kind of pizza. The opposing lawyer objects that thequestion is not relevant.

2. Hearsay: Hearsay is usually not allowed as evidence. Hearsay is somethinga witness may have heard about, but did not hear or see firsthand.

Example: In a case about missing bananas, a witness testifies, "A neighbor

told me that Kim's monkey was hanging around the banana tree."The opposing lawyer objects that the statement is hearsay. Thewitness did not actually see the monkey near the tree.

3. Opinion: Opinions are generally not allowed as evidence. Witnesses are tostick to the facts. Unless witnesses qualify as experts, their opinions, or whatthey think about those facts, are not acceptable as evidence.

Example: The witness's first statement in this exchange is a fact. The secondstatement is an opinion and would not be allowed as evidence.

Lawyer: "Did the ticket taker tell you what his name is?"

Witness: "He told me his name is Robert. I don't think he was tellingthe truth."

4. Speculation, Conclusions: Speculation, or someone's idea about whatmight have happened, is not allowed. A witness cannot jump to conclusionsthat are not based on what the witness experienced.

Example: A witness is asked if he saw his friend Kelly on Saturday. He answers:"No, but she was probably playing soccer. She always plays soccer onSaturday." The other lawyer objects that the answer is speculation.The witness didn't see where Kelly was for himself.

36

Copyright 0 Foundation of the American Board of Trial Advocates

Raising Objections

The following exchanges took place in the Gold E. Locks trial. You saw someof them in the video of the trial. Read each exchange and then circle thereason or reasons a lawyer might object either to the question or the answer.

1. Question: What happened next?

Answer: Pop A. Bear heard something and went upstairs and yelled out that

he saw . . .

Relevance Hearsay Opinion Speculation

2. Question: What happened next?

Answer: Gold E. Locks broke the chair. It must have been Gold E. Locks,because everyone else in the neighborhood had gone to work.

Relevance Hearsay Opinion Speculation

3. Question: What happened on the morning of November 1?

Answer: She fixed her delicious porridge. She makes the best porridge.I like mine with cinnamon, brown sugar, and two paws full of raisins.

Relevance Hearsay Opinion Speculation

4. Question: Do you know Gold E. Locks?

Answer: No. I've never seen her before, but the baker says that she

works hard.

Relevance Hearsay Opinion Speculation

5. Question: Did you notice anything unusual?

Answer: The chair was broken. I liked that chair because it was red. Red ismy favorite color. Maybe I'll buy a blue one.

Relevance Hearsay Opinion Speculation

6. Question: What happened next?

Answer: She ran out of the house. I think she felt guilty about breakingthe chair.

Relevance Hearsay Opinion Speculation

37Copyright 0 Foundation of the American Board of Trial Advocates

Handout 4-2

30

Handout 4-3

Order in the Court

The list below describes actions in a courtroom. For each action, put a checkmark in the box that indicates who carries out the action. You can check morethan one box.

Jury Judge ProsecutingAttorney

DefenseAttorney

Bailiff

U

Courtroom Action,

Asks the witnesses

questions

Explains to the jurywhat the law is inthe case

Makes objectionswhen the otherattorney questionswitnesses

Gives a closing

argument forthe defense

Rules on objectionsmade by the attorneys

Swears in witnesses

Decides whether thedefendant is guiltyor innocent

Decides whether thewitnesses are tellingthe truth

Gives an openingstatement on behalfof the prosecution

31

38

Copyright © Foundation of the American Board of Trial Advocates

Jury Deliberation

Lesson Overview

Summary

In Lesson 5, the student juries deliberate and attempt to reach decisions onGold E. Locks' guilt or innocence. The reading of the verdicts leads to a classdiscussion on how each verdict was reached. In the assessment activity, studentsplay the role of magazine journalists reporting on their experiences as jurors inthe Gold E. Locks trial.

To learn more about jury deliberations, see Reading 5: "Reaching a Verdict"on pages 67-68.

Lesson Objectives

As a result of this lesson students should be able to:

describe how a jury deliberates;

understand that it takes a unanimous decision to reach a verdict ina criminal case;

understand the jury process as a group decision making process.

Preparation/Materials Required

Handout 5-1: Jury Deliberation Form (p. 35)one copy per jury (cut the handout along the dashed line)

Handout 5-2: Reporting on the Trial (p. 36)one copy per student or one per pair of students

35

Lesson 5

32

33

Teaching Lesson 5

A. Introducing the Lesson

Divide the class into the juries that youset up earlier: the selected jury, a juryof alternates, and the shadow jurymade up of disqualified jurors. Youmay wish to subdivide any group thathas more than 12 members. Assigneach jury a number and give eachgroup a form cut from Handout 5-1:Jury Deliberation Form.

B. Developing the Lesson

1. Once students are assembled in theirjuries, explain that jury deliberationsproceed somewhat like a meeting,following these steps:

Jurors choose a foreperson to runthe meeting and to speak for thejury when it returns to the court-room.

The foreperson polls the jurors tosee where they stand. It is reason-able for jurors to be undecidedat this point. Whether or notthe jurors agree, the forepersoncalls on each juror to explain thereasons behind his or her vote.

The foreperson polls the juryagain. If the jurors agree on a ver-dict, they help the foreperson fillout the Jury Deliberation Form.If not, discussion continues.

2. Tell the juries how long they haveto reach a verdict, and then repeatJudge Wanda Wisdom's instructionsto the jury before they begin theirdeliberations.

Judge Wanda Wisdom'sJury Instructions

"Ladies and gentlemen of the jury, you

have now heard all of the evidence.

I instruct you that if you find that thestate has proven beyond a reasonable

doubt that the defendant Gold E. Locks

entered upon the premises of the Three

Bears without having permission or with-

out a legally justified reason, you should

find the defendant guilty of the offense of

trespassing. On the other hand, if you find

that the prosecution has failed to prove,

beyond a reasonable doubt, any elements

of this crime, you should find the defen-

dant not guilty. You may now retire and

commence your deliberations. When you

reach a unanimous decision, please return

to the courtroom with your verdict "

C. Concluding the Lesson

At the end of the deliberation period,have each foreperson deliver his or herjury's verdict, or lack of verdict, andexplain how the group came to its con-clusion. Ask:

Did the jurors pretty much agreeon which facts were important andwhich witnesses to believe in thiscase? If not, where did they differ?

Were some people undecided atfirst? What helped them make uptheir minds?

Did anyone say something thathelped another juror look at thecase in a new way or change hisor her vote?

How did the jury process comparewith the group decision making pro-cess you used in the NASA game?

40

Did the shadow jury reach the sameconclusion as the other juries? Doyou think that the reasons thesejurors were disqualified affected theirability to reach a fair verdict?

Do you think that having a jurydecide was a fair way to reach averdict in this case?

What do you see as the advantagesand disadvantages of trial by jury?

D. Assessing the Lesson

Using Handout 5-2: Reporting on theTrial, students write a magazine articleon the trial of Gold E. Locks. Studentsmay do the assignment individuallyor work in pairs. The activity canbe completed in class or assignedas homework.

Students should address all theelements listed in the writing prompt:the issues in the trial, what the jurydecided and why, and advice tofuture jurors.

4134

':', /, ","7,,

Handout 5-1

35

Jury Deliberation Form

Jury Number

Members of the Jury (signatures)

1. 7.

2. 8.

3. 9.

4. 10.

5. 11.

6. 12.

Verdict (check one):

Guilty Not guilty

Jury Deliberation Form

Jury Number

Members of the Jury (signatures)

1. 7.

2. 8.

3. 9.

4. 10.

5. 11.

6. 12.

Verdict (check one):

Guilty Not guilty

42

Copyright C Foundation of the American Board of Trial Advocates

Reporting on the Trial

Create a magazine article about your experience as a juror in the case of GoldE. Locks and the Three Bears. Include the following information in your story:

Who was on trial? Why?

What did jurors agree about? What did they disagree about?

What verdict did the jury reach? Why?

If it was a hung jury, how were the jurors split?

If you knew someone who was going to be on a jury, what advice wouldyou give that person?

Write a headline for your story. In the box, print all or part of a quote aboutthe jury process. For example, a juror in your story might say, "The jury processis a good example of group decision making." Then you might print in thebox, "good group decision making." Write your story in the space below andon the back of this handout.

(Headline)

Handout 5-2

(Story)

43Copyright © Foundation of the American Board of Trial Advocates

36

CD-ROMGame

37

Make Your Case

Game Overview

Summary

Make Your Case is a courtroom trial simulation in which students control the actionin a television-like trial. Students play the role of attorneys in a civil case involvinga traffic accident between a bicyclist and a driver. The game has been designed tobe played by two players or two teams of players. As the game begins, studentsare challenged to decide what pieces of evidence will be most helpful to their case.Once the trial is underway, they choose what questions to ask witnesses and makeobjections whenever they spot violations of the rules of evidence during testimony.The trial concludes with the delivery of a verdict and an opportunity for studentsto interview jurors. Finally, students receive certificates of completion that providefeedback on how they performed as attorneys.

Game Objectives

After playing Make Your Case students should be able to:

contrast the purposes of opening statements and closing arguments;

explain the differences between direct examination and cross-examination;

identify and apply the rules of evidence;

characterize the roles of the attorneys, the judge, and the jury;

distinguish between the burden of proof in a civil case and a criminal case;

describe the skills that characterize an effective trial attorney.

Class Time

One to two class periods (depending on preparation of students)

44

Preparation/Materials Required

ComputerMonitor: SVGA displaying at least 256 colors at 640 x 480 pixelsPC (minimum configuration)

CPU: 486 running at 66 megahertz (recommended: Pentium)CD-ROM drive: Double speed or faster (recommended: Quad speed or faster)

Sound card: 16 bit or betterRAM: 8 megabytesHard drive space: 10 megabytes of free spaceOperating system: Windows 3.1 or later

Macintosh (minimum configuration)CPU: Quadra or better (recommended: Power PC)

CD-ROM drive: Double speed or faster (recommended: Quad speed or faster)

RAM: 8 megabytesHard drive space: 10 megabytes of free spaceOperating system: System 7.0 or later

Trial Exhibits

one per player/teamExhibit A: Diagram of Accident (p. 47)Exhibit B: Police Report (p. 48)Exhibit C: Deposition: Suzanne Winters (p. 49)Exhibit D: Deposition: Mario Ramirez (p. 50)Exhibit E: Deposition: Lisa Oshima (p. 51)Exhibit F: What Is a Deposition? (p. 52)Exhibit G: When to Object (p. 53)

Installing the Software

Windows

1. In Windows 3.1x, select FILE/RUN from the File Manager. In Windows 95, click the"Start" button and select "Run." Type "D:\SETUP.EXE" (where "D" is the letter ofyour CD drive). The installer will copy the necessary files to your hard drive andcreate a "Make Your Case" program group with an icon for this program.

2. The installer installs Apple's Quick Time for Windows? This software enables yourcomputer to play digital video.

3. To start the program, either let the installer start it for you or double-click the"Make Your Case" icon. The next time you want to run the program, double-click the "MYC" icon in the Program Manager (Win 3.1x) or select it from the"Programs" or "Documents" menus accessible from the "Start" button (Win 95).You do not need to run the installer again, but you do need to have the "MakeYour Case" CD in the CD drive.

Macintosh

1. Insert the CD into your CD drive (printed side up). Double-click the "Install'Make Your Case' icon to install Quick Time, if needed, and copy a few filesto your hard disk.

4538

' I

39

2. Depending on what files were installed, you may need to restart your computer.If so, and if your CD drive is the kind that ejects the CD upon restart, reinsertthe CD after restarting. To begin the program, open the "Make Your Case"folder on your hard drive, then double-click the "Make Your Case" icon.

3. If restart is not required, the installer will launch the program from your hard driveautomatically. The next time you want to run the program, you'll find it in the"Make Your Case" folder on your hard drive. You do not need to run the installeragain, but you do need to have the "Make Your Case" CD in the CD drive.

Optimizing Your Computer for Multimedia

Windows

1. Use a non-networked PC with all unnecessary applications closed.

2. In Windows 3.1x be sure the swap file is set to "Permanent" and is therecommended size. To check, double-click on the "386 Enhanced" icon in theCONTROL PANEL; click "Virtual Memory" to see your current settings, and thenclick "Change" to see the recommended settings. If available, check "Use 32-BitDisk Access" for better performance. In Windows 95, open the "System" controlpanel and select the "Performance" tab. Click the "Virtual Memory" button andcheck the "Let Windows manage my virtual memory settings" option if it is notalready checked. Restart Windows for any changes to take effect.

3. The color depth of your monitor (the number of colors it can display) dependson the capabilities of the video card installed in your computer. You can checkthe color depth in the Windows Setup program (Win 3.1x) or in the "Display"control panel under the "Settings" tab (Win 95). If your monitor is not alreadyset to at least 256 colors (8-bit) at 640 x 480 pixels, set it accordingly andrestart Windows. If your video card supports thousands or millions of colors,the video in the program will look appreciably better at those settings.

4. If you have CD-ROM caching turned on, turning it off will greatly increaseperformance. To disable caching in Windows 3.1x, edit the AUTOEXEC.BAT file so

that SMARTDRV.EXE loads before MSCDEX.EXE. To disable caching in Windows95, open the "System" control panel, select the "Performance" tab, and click the"File System" button under "Advanced Settings." Then select the "CD-ROM" taband in the "Optimize access pattern for:" dialog use the "No read-ahead" option.

Macintosh

1. If your computer is networked, make sure that file-sharing and program linkingare turned off in the SHARING SETUP control panel. Close all unnecessaryapplications.

2. Be sure that virtual memory is turned off in the MEMORY control panel.

3. In the MONITORS control panel, set your monitor to a resolution of 640 x 480pixels. If your computer supports thousands or millions of colors at this resolution,the video in the programs.will look appreciably better than it will at 256 colors.

4. If you use a CD driver that allows you to enable or disable caching (e.g., CD-ROMToolkir), open the control panel for that driver and turn CD-ROM caching off.

46

Using Make Your Case

Introducing the Game

1. Make Your Case is designed to be

used as a culminating activity withthe Justice by the People curriculum.The game is based on a fictional civilcase in which a bicyclist is suing adriver for damages that occurredwhen the two collided at an intersec-tion. The bicyclist claims that thedriver was speeding and not payingattention to the road. The driverclaims that the bicyclist ran a stopsign and failed to make herselfvisible given the lack of light at thetime of the accident. Players take onthe role of either the plaintiff or thedefense attorney as the case goes

to trial. Make Your Case is structured

as a two-player or two-team game.If you choose to use it with theentire class, you may want to divide

students into three groupstwoteams of attorneys and a jury. If you

choose to use the game this way,you may want to turn off the displayof scores and feedback. This can be

done at the beginning of the pro-gram by selecting the options button.

2. The game may take from 45 to 90minutes to complete. Selecting the"Quit" button during the gameallows users to resume their gameat a later time. To decrease theplaying time, encourage students tofamiliarize themselves with the trialexhibits before they begin play.These trial exhibits are included inthe game as the "case file."

3. Students will be better prepared toplay Make Your Case if they have

covered the content in Lesson 4: TheTrial of Gold E. Locks. You may want

to review Handouts 4-1: Rules ofEvidence and 4-2: Raising Objectionswith the class before play begins.Doing so will help students raiseappropriate objections duringtrial testimony, which is the mostchallenging part of the game.

Playing the Game

1. Students can dive right into MakeYour Case and start playing, learningas they go. The game begins withan introductory piece in which theyare given the case by an attorneywho is called away. Players thenregister their names as representingeither the plaintiff (bicyclist) or thedefendant (driver). Multiple playerscan register as teams, after which thegame will specify which team mem-ber's turn it is to enter the group'snext decision into the computer.

To facilitate play by multiple students,the game is designed so that oneteam can enter its decisions usingthe keyboard, the other using themouse. To select an option usingthe keyboard, players press the keythat corresponds to their selection.For example, to select option "A" inopening statements, students pressthe letter "A" on the keyboard. Toselect the same option using themouse, students click on any partof the text in item "A" or on the"A" itself.

2. Following registration, the judgegreets the jury and explains whatopening statements are. The attorneysthen select evidence that would begood to mention in their openingstatements. The statements that fol-low will vary depending on theirchoices. Note that during the open-ing statements and throughout the

47

41

trial, players never see the attorneys.They are the attorneys. As openingstatements are delivered, players

receive feedback and earn points

depending on how well they openedtheir cases. As the trial proceeds, stu-

dents will continue to receive points

for making good decisions on behalfof their client. The point totals foreach side are displayed on screen

throughout the game. These scoresreflect the proficiency of the attor-neys, not the merits of their respectivecases. If you are playing this game inclass with a jury, you have the option

of turning the scoring display off sothe jurors will not be influenced bythe scores.

3. After opening statements, two wit-nesses for the plaintiff (the bicyclistand the police officer) and two forthe defendant (the driver and theeyewitness) are called to the standand questioned. Each witness beginsby answering some introductoryquestions. Players are then givenoptions as to which questions theywill ask during both direct examina-tion and cross-examination. Eachoption moves the witness's testi-mony down a different path. Oncestudents make their choice betweenoption "A" and "B," questioning ofthe witness proceeds.

If players are uncertain as to howa witness might answer a given ques-tion, they can select option "C,"which allows them to review the casefile before making a final choice. Thecase file contains summaries of thewitness's depositions as well as adiagram of the accident, a policereport, and a tip sheet titled "WhenDo I Object?" The items in the casefile have tabs, and students can navi-gate by clicking on the tabs with themouse or by keying the letter on the

tab. To return to the trial, studentsclick on the eyeglasses that say

"Trial" or press "T" on the keyboard.

4. A player may object to an attorney'squestion or a witness's answer at any

time during the trial. This can bedone by clicking the objection buttonor typing "0" on the keyboard. Afterobjecting, students have severaloptions, including replaying the lastquestion and checking the case filefor a list of appropriate objections.

Whenever players raise an objection,

they will be prompted to specify whatrule of evidence is at issue (relevance,

speculation, or hearsay). The judge

rules on all objections. If the objectionis sustained, or accepted, the player

earns 4 points. If it is overruled, or

rejected, the player loses 1 point.

During the first witness's testimony,

the game automatically stops when-ever an objectionable question isasked and the opposing attorney isprompted to consider taking action.Players can then review the case file

description of objections and decidewhether they should object or let tes-timony continue. Later on, players areleft on their own to raise objections.

5. Once all four witnesses have under-gone direct and cross-examination,

the judge gives instructions to thejury on how to apply the law in thecase. The trial then ends with closingarguments. Players are given optionsas to what to emphasize in their

closing statements. Each closingargument will only mention itemsthat were introduced as evidenceduring the trial. Hence, the betterplayers were at introducing evidencein support of their case, the stronger

their closing arguments will be andthe more points they will earn.

48

6. Following closing arguments, the jurydeliberates the following questions:To what degree, if any, did the defen-dant cause the plaintiff to sufferdamages in the accident? Dependingon the defendant's responsibility, howmuch should he pay the plaintiff?(This amount is calculated by multi-plying the defendant's percentageresponsibility by the amount ofdamages suffered by the plaintiff.)Finally, the jury returns its verdict.This verdict is based on how an aver-age jury would be likely to respondto the evidence presented during thetrial, and not on the scores achieved

by either attorney.

If you are playing the game with astudent jury, you will want to stopthe game after closing argumentsand allow your jurors to reach theirown decision. Their verdict can thenbe compared with that of thegame's jury.

7. After the verdict is delivered,students have the option of inter-viewing three of the jurors to getsome feedback on the trial. Thejurors' responses will depend uponthe evidence presented during thetrial. Finally, players can print outcertificates of completion that showhow well they did at selecting evi-dence, choosing lines of questioning,and raising appropriate objections.

Concluding the Lesson

After students have played the game,you may want to discuss some of thefollowing questions with the class:

What are opening statements andclosing arguments? How do theydiffer?

What is the difference betweendirect examination andcross-examination?

Who raises objections in a trial andwhy? Who rules on objections?

What did the jury have to decide inthis case? What burden of proof didthe jurors have to apply in reachingtheir verdict?

What skills does an attorney need intrying a case such as this one?

4942

I ' I

Answer Key

Opening Statements

The correct selections are 2, 3, 5 andB, D, F.

Trial

Correct answers are underlined.

Bicyclist Questioned byPlaintiff Attorney

A) Was your neighbor looking at youwhen you waved to her?

"If you hadn't waved at her, doyou think she would have wavedto you?"

Objection relevance/speculation

(witness can't know what wouldhave happened)

ID Was Mr. Ramirez looking at theroad?

"When you first saw Mr. Ramirez,was he concentrating on hisdriving?"

Objection speculation (witness

can't know what was going oninside driver's head)

A) Have you ever been injured in a bikeaccident before?

"Ms. Winters, have you ever beeninjured in a bike accident before?"

Objection relevance

111 What injuries did you suffer in thisaccident?

"Did your boyfriend seem upsetabout what happened?"

Objection relevance

A) What was the damage to your bike?

"Why did you buy a touring bikeinstead of a mountain bike?"

Objection relevance

B) How did you get your bike homeafter the accident?

"After the accident, how did you getyour bike home?"

Objection relevance

Bicyclist Questioned byDefense Attorney

A) Do you need to wear glasses?

No objections

11) Did you have a light, reflectors, or

reflective clothing?

"Ms. Winters, isn't it true that thiswhole accident could have beenavoided if you had taken some basicsafety precautions?"

Objection speculation (witnesscan't guess what might havehappened)

43 50

A)Were you in a hurry to get home?

No objections

B) Have you taken other routes fromwork to home?

"Do you think you would havegotten into an accident if you hadtaken one of these other routes onMarch 3rd?"

Objection speculation/relevance

Was your bike really worth $650?

"Why did you buy such an expen-sive bike?"

Objection relevance

B) Do you own any other bikes?

"Ms. Winters, do you own any otherbikes?"

Objection relevance

8).What did you say when you wereaccused of not following the rules ofthe road?

"So then, he was concerned thatyou might be hurt?"

Objection speculation/relevance

B) Did you tell the defendant that youwere okay?

"So then, he was concerned thatyou might be hurt?"

Objection speculation/relevance

Police Office Questioned byPlaintiff Attorney

A) Did you measure the skid marks atthe intersection?

"Do you think that the defendantwas driving faster than the speedlimit?"

Objection speculation

B) Did you measure the length of thescratch on the defendant's vehicle?

"Have you ever seen a scratch thislong in any other accident you'veinvestigated?"

Objection relevance

A) Did you give the driver a ticket?

No objection

II) Did you give the bicyclist a ticket?

No objection

Police Office Questioned byDefense Attorney

A& How do you know that the skid markswere made by the defendant's car?

No objection

B) How do you know that the scratchon the car was caused by thisaccident?

"Do you own a car?"

"What kind of car do you own?"

Objection relevance

A) Was it dark at the time of theaccident?

"Officer Harrison, given that it wasdusk, do you think this accidentcould have been avoided if the plain-tiff had used a light and reflectors?"

Objection speculation

B) Was it dark when you arrived at thescene?

No objection

Driver Questioned byDefense Attorney

A) How did the plaintiff respond whenyou asked if she was okay?

No objection

Li) How did the plaintiff respond whenyou accused her of running the stopsign?

"Was she angry at you?"

Objection speculation (witness

can't know what the bicyclist wasfeeling)

A) Had you driven through this inter-section before?

No objection

ID Did you talk with anyone whowitnessed the accident?

"What did she say?"

Objection hearsay

Driver Questioned byPlaintiff Attorney

Al Were you in a hurry?

"What movie were you going tosee?"

Objection relevance

B) Were you hungry?

"Prior to the accident, when did youlast eat?"

Objection relevance

"What did you have for lunch?"

Objection relevance

5144

I ' I

45

"At the time of the accident, wereyou hungry?"

Objection relevance

Al Were you talking on a car phone atthe time of the accident?

"Are you usually late for your dateswith her?"

Objection relevance

"So are you late for things in generalor just for dates with your girl-friend?"

Objection relevance

B) Do you usually talk on the phonewhen you drive?

"Don't you think it would be safer ifyou didn't talk on the phone whileyou drive?"

Objection speculation/relevance

A)Was the construction project adistraction?

"In fact, sir, if you hadn't looked atyour building, you would have seenMs. Winters sooner and avoided theaccident, isn't that true?"

Objection speculation

B) Was the construction project run-ning on schedule?

"Do your projects usually run onschedule?"

Objection relevance

A)Had you checked yourspeedometer?

No objection

B) Had you had your vision checkedrecently?

"Were you wearing sunglasses at thetime of the accident?"

Objection relevance

"Do you ever where sunglasses?"

Objection relevance

Eyewitness Questioned byDefense Attorney

Al Did the plaintiff come to a completestop at the stop sign?

No objection

B) Did you also have a stop sign for thedirection you were coming from?

"Ms. Oshima, did you also havea stop sign for the traffic in yourdirection?"

Objection relevance

A) Did the other woman say why shecouldn't wait for the police to come?

"What, if anything, did the womansay about why she couldn't wait forthe police?"

Objection hearsay

1.3) Did the other woman say that thedefendant ran the stop sign?

"What, if anything, did the womansay about who might have causedthe accident?"

Objection hearsay

Eyewitness Questioned byPlaintiff Attorney

What did you hear as the defen-dant's car approached theintersection?

No objection

B) Do you ever ride your bike onHomer crossing Main?

"Do you ride a bicycle, Ms. Chen?"

Objection relevance

"Have you ever ridden your bicycleacross the intersection of Main andHomer?"

Objection relevance

52

A) Did you talk to the police officer?

No objection

11) Did the other witness say the car

was speeding?

"What, if anything, did she say aboutthe speed of the defendant's car?"

Objection hearsay

Closing Arguments

Both selections for each player are valid.The option that yields the most pointsis the one that is best supported by theevidence introduced during the trial.

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57

B C D E F G

A B

r53

IIn

dex

Suz

anne

Win

ters

'D

epos

ition

Sum

ma

(Bic

yclis

tP

lain

tiL

ate

on th

e af

tern

oon

of M

arch

3,

Ms.

Win

ters

was

rid

ing

her

bike

hom

e fr

om w

ork.

She

for

got t

o fe

edhe

r do

g th

at m

orni

ng a

nd w

as in

ahu

rry

to g

et h

ome.

Her

bik

e di

dno

t hav

e a

light

or

refl

ecto

rs, a

ndsh

e w

as w

eari

ng d

ark

clot

hing

. She

wen

t dow

n H

omer

Str

eet a

ndst

oppe

d at

the

stop

sig

n at

Mai

nSt

reet

. She

saw

her

fri

end,

Lis

aO

shim

a, a

cros

s th

e st

reet

and

wav

ed to

her

. The

n sh

e ch

ecke

d fo

ron

com

ing

traf

fic

befo

re s

tart

ing

out i

nto

the

inte

rsec

tion.

As

she

was

rid

ing

acro

ss th

ein

ters

ectio

n he

r bi

cycl

e w

as h

it by

Mr.

Ram

irez

's c

ar. S

he w

askn

ocke

d to

the

grou

nd a

nd in

jure

d

her

wri

st. M

r. R

amir

ez c

ame

over

and

told

her

that

she

sho

uld

have

stop

ped

at th

e st

op s

ign,

and

she

did

not a

nsw

er.

Ms.

Win

ters

bel

ieve

s th

at M

r.R

amir

ez w

as d

rivi

ng f

aste

r th

an th

esp

eed

limit.

Jus

t bef

ore

the

acci

dent

, she

saw

him

look

ing

at a

near

by c

onst

ruct

ion

proj

ect.

Ms.

Win

ters

has

per

fect

vis

ion.

Ms.

Win

ters

' bic

ycle

, whi

ch s

heha

d bo

ught

for

$57

5 tw

o w

eeks

befo

re th

e ac

cide

nt, w

as d

amag

edbe

yond

rep

air.

Sev

eral

acc

esso

ries

that

cos

t an

addi

tiona

l $75

,in

clud

ing

a tir

e pu

mp

and

wat

erbo

ttle,

wer

e no

t dam

aged

in th

eac

cide

nt. T

he m

edic

al b

ill f

ortr

eatin

g he

r sp

rain

ed w

rist

and

abra

sion

s w

as $

150.

BE

ST

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AIL

AB

LE

C D ^AA

F G

59

I Ind

ex

Mar

io R

amire

z's

Dep

ositi

on S

umm

ary

(Driv

er-

Def

enda

nt)

Mr.

Ram

irez

left

wor

k at

6:1

5 p.

m.

to p

ick

up h

is g

irlf

rien

d an

d ta

kehe

r to

a m

ovie

. He

turn

ed o

n hi

she

adlig

hts

beca

use

it w

as g

ettin

gda

rk. J

ust b

efor

e 6:

30, h

e ca

lled

his

girl

frie

nd o

n hi

s ca

r ph

one

to te

llhe

r th

at h

e w

as r

unni

ng h

alf

anho

ur la

te. A

s he

was

dri

ving

dow

nM

ain

Stre

et to

war

d H

omer

, abi

cycl

ist (

Suza

nne

Win

ters

) da

rted

out i

n fr

ont o

f hi

s ca

r. H

e sl

amm

edon

the

brak

es, a

nd th

e ca

rsk

idde

dto

a s

top.

Ms.

Win

ters

' bic

ycle

hit

his

car,

cau

sing

a lo

ng s

crat

ch in

the

fend

er. M

r. R

amir

ez b

elie

ves

that

he

was

dri

ving

at t

he s

peed

lim

itbu

the

doe

s no

t rec

all c

heck

ing

his

spee

dom

eter

.

He

got o

ut o

f hi

s ca

r an

d w

ent o

ver

to M

s. W

inte

rs to

see

if s

he w

as a

llri

ght.

He

told

her

she

sho

uld

have

stop

ped

at th

e st

op s

ign,

and

she

did

not r

espo

nd. H

e al

so s

poke

to a

wom

an a

t the

sce

ne w

hosa

id M

s.W

inte

rs h

ad f

aile

d to

sto

p at

the

stop

sig

n. H

e di

d no

t get

that

wom

an's

nam

e or

add

ress

and

has

not b

een

able

to lo

cate

her

.

Mr.

Ram

irez

des

igne

d an

d ov

ersa

wth

e co

nstr

uctio

n of

a b

uild

ing

onth

e co

rner

of

Hom

er a

nd M

ain.

The

build

ing

was

und

er c

onst

ruct

ion

atth

e tim

e of

the

acci

dent

. Mr.

Ram

irez

look

ed a

t the

bui

ldin

gbr

iefl

y as

he

appr

oach

ed th

ein

ters

ectio

n.

Mr.

Ram

irez

has

per

fect

vis

ion.

60B

EST

CO

PYA

VA

ILA

BL

E61

F

I Ind

ex

Lisa

Osh

ima'

sD

epos

ition

Sum

mar

y(E

yew

itnes

s)A

t the

tim

e of

the

acci

dent

, Ms.

Osh

ima

was

wal

king

dow

n H

omer

Stre

et to

war

d M

ain.

She

saw

the

APl

aint

iff,

who

is h

erne

ighb

or, o

nhe

r bi

cycl

eon

the

othe

r si

de o

f th

eB

stre

et. S

he s

aw th

ePl

aint

iff

com

eto

the

stop

sig

n, b

utsh

e is

not

sure

whe

ther

the

Plai

ntif

fca

me

to a

Cco

mpl

ete

stop

. The

Plai

ntif

f di

dno

t tak

e he

r fe

et o

ffth

e pe

dals

,D

acco

rdin

g to

Ms.

Osh

ima.

As

the

Plai

ntif

f st

arte

dac

ross

the

inte

rsec

tion,

Ms.

Osh

ima

hear

d th

esc

reec

hing

tire

s of

an a

ppro

achi

ngca

r. S

he th

en s

aw th

ePl

aint

iff

get

hit b

y th

e D

efen

dant

'sca

r. S

hew

ent o

ver

to, s

ee if

the

Plai

ntif

f was

inju

red.

62

4,

Shor

tly a

fter

the

acci

dent

, Ms.

Osh

ima

talk

ed to

an

unid

entif

ied

wom

an w

ho a

lso

saw

the

acci

dent

Tha

t witn

ess

said

that

the

Plai

ntif

fsh

ould

hav

e st

oppe

d at

the

stop

sign

. The

uni

dent

ifie

d w

itnes

s al

sosa

id th

at th

e dr

iver

was

goi

ng "

way

too

fast

."

BE

ST

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PY

AV

AIL

AB

LE63

mo C O 5

I Ind

ex 64

Wha

t Is

a "D

epos

ition

"?

Bef

ore

a ca

se g

oes

to tr

ial,

the

atto

rney

s m

ay q

uest

ion

witn

esse

s. T

he w

itnes

ses

test

ify

unde

r oa

th a

nd th

eir

test

imon

yis

type

d up

. The

res

ultin

g"d

epos

ition

s" a

re m

ade

avai

labl

eto

bot

h si

des

in th

e ca

se.

Dep

ositi

ons

are

one

of s

ever

alm

etho

ds a

ttorn

eys

use

to g

athe

rfa

cts

and

evid

ence

bef

ore

a ca

sepr

ocee

ds to

tria

l. T

his

fact

-ga

ther

ing

proc

ess

is k

now

n in

the

law

as

"dis

cove

ry."

BE

ST C

OPY

AV

AIL

AB

LE

65

66

A B C D E F

Iin

dex

Whe

n T

o O

bjec

t

Atto

rney

s m

ust f

ollo

w c

erta

in"r

ules

of

evid

ence

" w

hen

they

ques

tion

witn

esse

s an

d pr

esen

tdo

cum

ents

at a

tria

l. T

hese

rul

esar

e in

tend

ed to

giv

e th

e ju

ryac

cura

te a

nd r

elia

ble

info

rmat

ion.

If a

n at

torn

ey a

sks

an im

prop

erqu

estio

n, th

e ot

her

atto

rney

may

obje

ct. T

here

are

thre

e ob

ject

ions

that

you

nee

d to

kno

w a

nd u

nder

-st

and

for

purp

oses

of

this

tria

l:

Rel

evan

ce: A

n at

torn

ey m

ay o

nly

ask

a w

itnes

s fo

r in

form

atio

n th

atha

s to

do

with

the

bike

acc

iden

t.E

xam

ples

:"W

hy d

id y

ou r

ide

your

bik

e in

stea

dof

taki

ng th

e bu

s?"

"Aft

er th

e ac

cide

nt, h

ow d

id y

ou g

etyo

ur b

ike

hom

e?"

Spec

ulat

ion:

It i

s im

prop

er f

or a

nat

torn

ey to

ask

the

witn

ess

to g

uess

wha

t mig

ht h

ave

happ

ened

.E

xam

ple:

"Do

you

thin

k th

ings

wou

ld h

ave

been

dif

fere

nt if

...?

"

It is

als

o im

prop

er to

ask

a w

itnes

sw

hat s

omeo

ne e

lse

was

thin

king

or

feel

ing.

Exa

mpl

es:

"Was

he

conc

entr

atin

g?"

"Was

he

conc

erne

d?"

"Was

he

upse

t?"

Hea

rsay

: In

mos

t cas

es, a

witn

ess

is n

ot a

llow

ed to

test

ify

abou

tw

hat t

hey

hear

d so

meo

ne e

lse

say.

Exa

mpl

e:"W

hat d

id s

he s

ay a

bout

...?

"

BE

ST

CO

PY

AV

AIL

AB

LE

Resources for the Teacher

Working with Volunteers from the Legal Community

Many members of the legal community are willing and eager to visit classroomsand help teach students about the legal system.

A visiting volunteer can:

help make the lesson come alive;

provide expertise and experience;

serve as a role model.

Finding Volunteers

To find a volunteer, you might try the following:

Contact the Foundation of the American Board of Trial Advocates.

See whether your school or school district keeps a list of volunteers from thelegal community who are willing to visit classrooms.

Ask other teachers who have taught similar projects for recommendations.

Check with your local bar association.

Call your local Council for the Social Studies.

Making Arrangements for a Classroom Visit

Once you have found a resource person, give your volunteer plenty of advancenotice as,to your preferred time for the visit. Calling two or three weeks before thelesson is a good idea. Before calling, check to see that your plans do not conflictwith other school activities and that you will have access to any equipment you willneed (e.g. TV and VCR). Also, be sure to mail your volunteer a copy of each of thehandouts and guidelines listed in Lesson 4 a week before he or she visits the class.

When you call:

introduce yourself, describe the unit you are teaching, and explain how the

person can help;

be specific about detailsthe date and time you would like the resource personto visit and the length of the class period;

describe the location of school parking;

tell the visitor where to report;

explain school rules about visitors on campus and any security arrangements.

68

Resources

54

To avoid misunderstandings, put thearrangements in writing immediatelyby sending a letter of confirmation tothe resource person. Include the dateand time that you have agreed on andthe length of time you expect the vol-unteer to visit. Send a copy to yourprincipal and other appropriate schoolstaff members.

Preparing the Visitorfor Your Class

About a week before the visit, contactyour volunteer again by phone or mail.In the communication, you will want to:

describe the classthe ages ofthe students, the grade level, andthe size;

briefly outline the topics addressedin the lesson the volunteer will beteaching;

describe the resource person's role inthe lesson and the kind of knowl-edge he or she will be expected tobring to the classroom.

Preparing Your Classfor the Visit

Before the visitor arrives, explain to theclass who is coming and a little aboutthe person's background. Be sure theclass learns the visitor's name.

Have the class think of one or twoquestions they would like to askthe visitor.

55

Assign one or two students to meetthe visitor in the school office andbring him or her to the classroom.

Remind the class that unexpectedevents sometimes keep thingsfrom working out the way youhave planned.

After the Visit

After the visit take time to review withthe class what they learned from theresource person. In what ways didhaving a volunteer from the legal com-munity in the classroom help thembetter understand how a trial works?

Then ask your students to write thank-you notes to the visitor, thanking thatperson for taking time to meet withthe class. Enclose these notes with yourthank-you letter.

69

Making the Most of Your Visit

1. Before you meet the class, explain your background to the teacher so that heor she will not have unrealistic expectations. Be frank about your specialty andyour experiences.

2. Let the students know that attorneys and other members of the legal commu-nity have different specialties, and that although you want to answer as manyof their questions as possible, if a question is outside your area of expertise, youwould rather not answer it than give the wrong answer.

3. Be friendly and relaxed. Use humor to put the class at ease.

4. Treat the students with respect. Your visit is important to them and may con-tribute to their lasting impression of the law and the legal community.

5. The students will be interested in you and your work. To begin, you might tellthem a little about how and why you became interested in the law and in yourparticular area of specialization.

6. Part of your role in the classroom is to help students understand how thelegal system works. But to do this, you will need to speak in common terms,not legalese.

7. Avoid lecturing. Encourage students to ask questions and share experiencesand observations.

8. When possible, give students concrete examples drawn from personal experi-ence to illustrate important points or legal concepts.

9. Watch students' facial expressions to see whether they understand what youare telling them. Occasionally stop to ask if what you have said is clear and ifstudents have any questions.

10. Expect the teacher to play a major role during your visit by helping to guidethe class through the lesson sequence, to clarify questions and answers, and tokeep order.

11. You do not need to defend every aspect of the legal system. If students raisequestions or express doubts, you can defend strong points, admit weak ones,suggest solutions, and offer differing viewpoints. Let students know that peopleoften view aspects of the legal system differently.

12. Remember that the students are studying a particular topic. Make your infor-mation relevant. Don't let other topics take too much of your time.

13. Have fun. Enjoy the students. Help them see how the information that youbring touches their lives.

Copyright 0 Foundation of the American Board of Trial Advocates

70

VolunteerGuidelines

56

Reading 1

57

The History ofConflict Resolution andTrial by Jury

The U.S. jury system has its source inEnglish history. Before there werejuries, there were three general meth-ods of "trial" in England.

Trial by Oath

The first simply required the accusedperson to take an oath, swearing toa fact. In those days, a person's oath

carried great weight. In fact, the word"jury" derives from the term "jurare,"which means to swear, to take an oath.Those with good reputations who wereaccused of crimes had only to swearthat they were innocent to be acquitted.

If others swore against the accused,howeverin effect challenging thetruth of the accused's oatha corn-purgation was necessary. The accusedhad to bring in 11 supporters calledcompurgators, making 12 people inall who would be willing to take anoath on behalf of the accused. Thecompurgators did not swear thatwhat the accused said was true. Theyserved more as character witnesses,swearing that the accused was consid-ered a credible person. If the accusedwas found guilty, the compurgatorsmight also be punished because theywere then implicated in the defen-dant's guilt.

These kinds of trials had no juries, andoften citizens did not want to be cho-sen for "jury duty" as compurgatorsbecause they faced the possibility ofpunishment for "incorrect" verdicts. Astrial by jury began to develop, the situ-ation for the jurors did not improve

much. When the courts were underroyal control, the jurors were oftenpunished if they decided against theking. Often, "incorrect" jurors had theirproperty seized, were imprisoned, orwere separated from their families aspunishment for not "properly" fulfillingtheir duties as jurors. And since thejurors were still considered witnesses,they were also subject to punishmentfor perjury.

Trial by Ordeal

An accused who was a repeat offender,or who was unable to find enough com-purgators willing to swear to goodcharacter, would be subjected to a trialby ordeal, some sort of physical test, theresults of which were supposed to indi-cate guilt or innocence. Unfortunately,the trials were usually designed so that,in proving innocence, the physicalordeal often resulted in bodily harmor even death to the accused.

For instance, in a trial by hot water,a ring might be suspended by a stringin a cauldron of boiling water, eitherwrist-deep or elbow-deep, dependingupon the severity of the crime. Theaccused was first "cleansed" by prayerand fasting and then was instructed toreach into the boiling water to grab thering. If the accused's hand and armwere burned, that was considered a signof guilt. If they were not burned, theobvious miracle was treated as a sign ofinnocence.

In a trial by cold water, used in theAmerican colonies at the time of theSalem witch trials, the accused wasbound and placed in a body of waterthat had been purified by prayer. Anaccused who sank was considered inno-cent because the water would "accept"

71

one who was pure; floating indicatedthat the accused's body was pollutedby sin and the water was rejecting it.Apparently the object of this ordeal wasnot always to drown the innocent or theguiltythe accused might be removedfrom the water after sinking or floatingfor a while.

There were various types of trial by fire.Some entailed having the accused showinnocence by either walking across hotcoals or holding a white-hot iron rod.In these trials, the accused was guilty ifburned and innocent if not burned.

Sometimes the test was not whetherthe person was burned, but how theburn healed after a certain period oftime. For instance, if the burn healedwell after a few days, it was a signof innocence because the body was"clean." But if the wound showed signsof infection, it was considered a signthat the body was defiled by evil.

Not all trials by ordeal were so dra-matic. For example, one trial consistedonly of taking a large piece of breadfrom an altar and eating it. An accusedwho could eat the bread withoutdifficulty was considered innocent;choking or gagging was thought toshow an evil presence in the bodyrejecting the bread. Another less dra-matic trial required the accused towear a blindfold and choose betweentwo pieces of wood, one of which hada cross drawn on it. If an accusedselected the one with the cross, it wasconsidered that divine interventionhad proved innocence.

One common aspect of all of the trialsby ordeal was that the outcomes wereoften a matter of chance or placed theaccused in a "no-win" situation. Toprove innocence, an accused had to risk

death or serious bodily injury. Yet, sincesurvival was often considered a sign ofguilt, an accused lucky enough to sur-vive the ordeal was often immediatelyjudged guilty and put to death.

Most of these trials had a religious con-text and were conducted by clergymenor other church officials. Most were pre-ceded by purifying prayer for either theaccused or the object used in the trialwater, bread, etc. If the trial requiredpurification of the body beforethe ordeal, the accused was oftensequestered and forced to fast and prayfor up to three days prior to the trial.

Trial by Jury

Trial by jury did not fully come intobeing until the trial by ordeal was abol-ished. The move to jury trial took longerfor criminal matters than for civil cases,since trials by ordeal were used mainlyto resolve common crimes or offensesagainst the king, the state, or thechurch. Corrupt rulers were known to"plant" witnesses or jurors to manipu-late the outcomes of trials.

To guard against this, the church beganto support the principle that jurorsshould have no interest in the case atissue. With the church's influence, thecourts began to insist on impartiality injurors. The separation of the roles ofwitness and juror, and the desire forprotection against royal manipulation,combined to spark the evolution of thesystem of trial with an impartial andunbiased jury.

New developments brought additionalchanges to the nature of the jury. Forinstance, when attorneys began tobring in witnesses to corroborate factsin a case, it was no longer necessary for

72

Reading 'I

58

Reading 1

59

the jurors to know the accused. Andwitnesses began to testify before thejudge as well as the jury, not before thejury alone.

Since both the judge and the jury wereto hear the facts, it became more desir-able for all persons to be at the sameplace, hear the same facts, and basetheir decisions solely upon the informa-tion presented in open court, insteadof having some persons on the jurywho knew more about the case thanothers. Gradually, juries came to decideonly questions of fact, while judgesruled on questions of law.

By the time the colonists were settledin America, the right to trial by jurywas considered essential. British rulersattempted to deny the colonists thisright but were met by strong resis-tance. The importance and value thecolonists placed on this right wasclearly evidenced in the Declaration ofIndependence and in the Sixth andSeventh Amendments to the U.S.Constitution. Today the jury is a main-stay of America's legal system.

73

The Jury System

Overview

Adult U.S. citizens representing all races,religions, occupations, and tempera-ments can become jurors, and morethan five million Americans are calledfor jury duty every year.

To build a jury, a jury commission ortown official randomly selects namesfrom such sources as voter lists, tax rolls,

telephone directories, driver's licenseregistrations, and utility lists. In somestates, jurors can volunteer for service.Those selected receive a summons toreport for jury duty on a specific date.

When they arrive in court, potentialjurors are questioned by a judge, alawyer, or both, through a processcalled voir dire, a French phrase trans-lated as "to speak the truth." The voirdire process gives the judge and attor-neys a chance to choose jurors whoare not prejudiced. It is important thatjurors not know the lawyers or eachother. It is also important that theynot have strong opinions about theissuesor premature views about thedefendant's guilt or innocence.

The number of jurors selected tended tobe 12 for at least 800 years, since thetime of England's Henry II. However, inrecent years, the number of jurors hasbeen 6, 8, or 10 in some states.

Once the jury is selected, the judgeexplains the jury process. After that, thefloor belongs to the lawyers. There aregenerally twoone for each side. Eachresearches the facts, builds a case, and

brings in witnesses and evidence so thejury can determine the facts.

The judge presides over the trial, ensur-ing that it unfolds properly and fairly,sometimes stopping the action to makesure the process is clear and just. Jurorsthen convene in the jury room todeliberate. After considering the factscarefully, they reach a "determination,"or verdict. If the jury cannot reacha verdict, the trial may have to berepeated.

In most criminal cases, jury verdictsmust be unanimous. While unanimousverdicts may not be required in civilcases, at least 75 percent of the jurorsare usually expected to agree.

The Jury List

Potential jurors are selected from a mas-ter list, compiled by the state from voterregistration lists, driver's licenses, andother sources. The ideal master listshould include all persons in the com-munity who are eligible for jury duty. Inpractice, however, some eligible persons,for instance those who do not vote ordrive, are not on the list. From the mas-ter list, communities often prepare aqualified list from questionnaires filled inby those on the master list. Potentialjurors are summoned for jury duty.

A jury summons is a legal documentrequiring a person to report to the courtat a particular time and place. It is animportant document that requires care-ful reading and timely response.

Term of Service

Jurors serve for a specified time frame.In some places, prospective jurors reportto the court for one or two weeks. Fromthis group, known as the jury pool,

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some are selected to be interviewedfor jury panels, from which jurors areselected to serve for a particular case.

A person summoned must reporteach day for the specified periodwhether selected for a trial or not; aperson selected may serve on severaltrials. If a trial continues beyond thespecified period, jurors must serveuntil the trial ends.

The more modern trend is to requirejurors to serve for "one day or onetrial." This practice spreads jury serviceamong more persons and lessens thetime period for those who are selectedto serve on juries.

Selecting the Jury

Voir direthe process of selecting thejuryis critical to the jury's impact onthe case. Through voir dire each partyhas a chance to make sure the jurorswill be fair. Potential jurors are usuallyquestioned in the presence of thejudge by attorneys representing eachparty. The purpose is to determineimpartiality, bias or prejudice, andobjectivity. In some jurisdictions thejudge asks the questions.

Obviously, the parties each want a jurythat will be most likely to decide intheir favor. Each tries to identify thoseindividuals who would be beneficial tothe other party, then tries to removeas many of them as possible by theuse of two types of challenges, alsocalled strikes.

The first is a challenge for cause, madewhen there is a valid reason for nothaving someone serve on a particularjury. The person, for example, mayknow one of the parties, or may have

some experience or belief that tends tofavor one side, or may not have beentruthful in answering a question. Aperson who lies can be charged withperjury, since voir dire hearings are offi-cial judicial proceedings, which occurunder oath.

The second is a peremptory challenge,used by an attorney to remove apotential juror without having to givea reason. Both sides are given a certainnumber of peremptory challenges.Both sides use their peremptory chal-lenges to eliminate persons who maybe detrimental to their own cases. Thegoal is to select a fairly neutral jury.

Although peremptory challenges givethe attorneys great latitude, there arelimitations on their use. For instance,some criminal defendants have allegedthat prosecutors improperly used theirperemptory challenges in a discrimina-tory manner to remove potential jurorsbased upon such personal characteris-tics as race, age, sex, or religion.

Where relevant, personal characteristics

may be a legitimate reason for a person'sremoval. For instance, a potential jurorwho believed for religious reasons thatno one should ever take a dispute tocourt could be challenged for cause. Butremoval becomes discriminatoryandunconstitutionalwhen the characteris-tic that is the basis for removal is notrelevant. The race and sex of potentialjurors can never be relevant.

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The Jury Trial

Role of the judge

The role of the judge is to determinethe law that applies to a particular case.For example, "defamation," or harm toa person's reputation, occurs "when aperson makes a false statement that iscommunicated to a third party, causingharm to the plaintiff." The judge, in thejury instructions, would state the lawand define the aspects of it that pertainto the case at hand. The judge mightnote that the defamatory communica-tion must be made to someone otherthan the plaintiff. The judge mightexplain that the harm consists not ofoffending the plaintiff but of hurting theplaintiffs reputation in the eyes of theother person. The judge would alsoinstruct the jury that truth is a defenseto defamation. The statement must befalse. A true statement, even if harmful,is not defamatory.

Role of the Jury

The role of the jury is to determine thefacts in dispute and apply them to thelaw. Suppose a garage owner sues Justin

Smith for defamation after Justin bringsa car to the garage and tells the owner"Your mechanics ruined my motor" infront of other customers. During thetrial, the garage owner brings in factsto refute the motorist's story, and thedefendant insists that the motor isruined. For the garage owner to win,the jury must find that the statementwas made, that it was false, that per-sons other than the garage ownerheard it, and that as a result the garageowner's reputation suffered a loss.

Steps in a Trial

The following summarizes the steps inboth civil and criminal trials. Note thatthe opening statements and closingarguments are not evidence. They arethe attorneys' presentations of evidencethat they want the jury to consider fromthe witnesses, documents, and otherexhibits brought out during direct andcross-examinations.

1. Opening Statements

Opening Statement by Plaintiff orProsecutor Plaintiffs attorney in civilcases, or prosecutor in criminal cases,describes the evidence to be presentedas proof of the allegationsunprovedstatementsin the complaint or indict-ment. This often involves a summary orchronological overview of the importantfacts and a brief statement of what wit-nesses or documents will show to proveor disprove disputed facts.

Opening Statement by Defense

Defendant's attorney similarly explainsevidence to be presented to deny theallegations made by the plaintiff orprosecutor.

2. Presenting the Evidence

Direct Examination by Plaintiff or

Prosecutor Each witness for the plaintiffor prosecution is questioned. Otherevidence, such as documents or physi-cal evidence supporting the plaintiff orthe prosecution, is presented. Skilledattorneys let the witness be the focusof attention while they remain in thebackground.

Cross-examination by Defense The

defense has the opportunity to questioneach plaintiff or prosecution witness.Because cross-examination is an attempt

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to break down the story or to discreditthe witness in the eyes of the jury, itsresults can be quite dramatic.

Motions If the prosecution's or plain-tiff's basic case has not been establishedfrom the evidence introduced, thejudge can end the case by granting thedefendant's motion to dismiss in civilcases or by entering a directed verdictof acquittal in criminal cases.

Direct Examination by Defense Each

defense witness is questioned by lawyers

for the defense, similar to the directexamination by plaintiff or prosecutor.

Cross-examination by Plaintiff Each

defense witness is cross-examined bythe plaintiff's attorney or prosecutor,similar to the cross-examination bydefense.

3. Jury Instructions

The judge explains rules of law to con-sider in weighing the evidence. Theprosecution, or the plaintiff in a civilcase, must meet the burden of proof inorder to prevail. In a criminal case thisburden is very high. The prosecutionmust set out such a convincing caseagainst the defendant that the jurorsbelieve beyond a reasonable doubtthat the defendant is guilty. In a civilcase, the plaintiff must prove the caseby a preponderance, or greater part, ofthe evidence.

In some courts all or part of the juryinstructions are given before the clos-ing statements of the lawyers, so thatthe jury will know the law that must beapplied to the facts and argumentsmade by counsel. In other courts theinstructions are given directly beforejury deliberations begin.

4. Closing Arguments

Closing Argument by Plaintiff or

Prosecutor The prosecutor or plaintiff'sattorney reviews all the evidence pre-sented, notes uncontradicted facts,states how the evidence has satisfied

the elements of the charge, and asks fora finding of guilty in criminal cases or averdict for the plaintiff in civil cases.

Closing Argument by Defense As withthe closing statement by prosecutionor plaintiff, the defense asks for a find-ing of not guilty in criminal cases or averdict for the defendant in civil cases.

Rebuttal Argument The prosecutor orplaintiff can usually reserve part of thetime allowed for the closing statementto make additional remarks to counter-act the closing statement of thedefense.

5. The Verdict

In most states, the jury's decisionmust be unanimous in criminal cases,

although the U.S. Supreme Court per-mits 9-3 verdicts in some cases in whichthe death penalty cannot be given.

Not all states require unanimous ver-dicts in cases involving misdemeanors,actions punishable by less than oneyear in prison. At least 75 percent ofthe jurors are usually expected to agreein civil cases.

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Rules of Evidence

There are two purposes for rules of evi-dence: to make it possible to ascertainthe truth and to ensure that the trial isconducted fairly and economically. Rule102 of the Federal Rules of Evidence,

used in the federal district courts, statesthat "These rules shall be construed tosecure fairness in administration, elimi-

nation of unjustifiable expense anddelay, and promotion of growth anddevelopment of the law of evidenceto the end that the truth may beascertained and proceedings justlydetermined."

Of course, people differ in their opinionsas to how truth should be measured orjudged, and what are fair and economi-cal proceedings.

Truthfulness

Truthfulness of documents and testi-mony is a matter primarily of accuracy,credibility, and completeness. Whatcharacteristics make a witness morebelievable or less? How accurate is adocument, and what does it prove?

Written rules of evidence codify somegenerally accurate indicators of truthful-ness. For example, a witness's in-persontestimony gives the judge or jury thechance to assess the demeanor of thewitness. Out-of-court statements, evenif written and sworn to in detail, may beless trustworthy.

And the judge or jury is interested inwhat the witness has to say based onpersonal experience, not on rumors thewitness has heard from someone else orfrom suggestions the witness picks up in

court. Therefore, leading questions ondirect examination, hearsay, secondhandinformation, and opinions from thosewho are not experts are generallybanned as untrustworthy.

Fairness and Economy

Concepts of fairness and economy areimportant because they help keep thetruth in perspective. These conceptsinclude such characteristics as relevanceand prejudice.

For example, it may be that a defen-dant's relative is under indictment forworking for "the mob," but unless thatfact is shown to be related or importantto the case, it should be excluded fromevidence as irrelevant. Similarly, a plain-tiff may be divorced and may have lostcustody of children because of abuse.But such a fact, even if somewhatrelevant to the issues in a case, mightbe excluded at trial so that it will notcreate unfair prejudice.

In American courtrooms, elaborate rulesregulate the admission of evidence.These rules are designed to ensure thatthe truth is found and that both partiesreceive a fair hearing. Accordingly, therules allow evidence for which the wit-ness has firsthand knowledge andexclude evidence that is irrelevant,untrustworthy, or unfairly prejudicial.

Form of Questions

A leading question is one that suggestsan answer. Leading questions are notpermitted during direct examinationbecause the person asking the questionis not permitted to suggest the answer

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to it. Direct questions are generallyphrased to evoke the story or facts inthe witness's own words on the basisof actual experience or observations.

Example of a direct question: Mr.Bryant, can you please tell us whathappened to you on the night ofJuly 23rd?

Example of a leading question: Mr.Bryant, isn't it true that you weredrinking on the night of July 23rd?

Firsthand Knowledge

Witnesses generally must have directlyseen, heard, or experienced whateverit is they are testifying about.

Witness Opinions

As a general rule, witnesses may notgive their opinions. They should con-fine their testimony to telling thefactswhat they did, saw, heard,smelled, etc.

However, witnesses who have specialknowledge or experience may be quali-fied as "expert witnesses." Expertwitnesses are allowed to express opin-ions about their areas of expertise.

Hearsay

Hearsay is an out-of-court statementoffered to prove the truth of what isasserted in the statement. For exam-ple, suppose a witness says, "I heardthat Darryl Bryant has a criminalrecord." This is hearsay if offered to

prove that Darryl Bryant has a crimi-nal record. "I was told . . . ," "I heard. ," and "I was informed . . ." areexamples of typical hearsay statements.

As a general rule, hearsay is not permit-ted as evidence in a trial. However,there are many exceptions, and hearsay

is sometimes permitted in an actual trialwhen it is shown to be reliable. Forinstance, a "dying declaration," madeby a person who believed death wasnear, is considered to be more reliablethan ordinary hearsay and may beadmitted as evidence.

Relevance

Only relevant testimony and evidencemay be presented. Irrelevant evidence isthat which has nothing to do with theissues in the case. For example, to askwitnesses to an alleged crime if theyhave read any good books lately would,in most cases, disclose facts worthlessfor a jury or judge to consider.

Introduction ofPhysical Evidence

Any physical evidence, such as docu-ments or photographs that either sidewishes to have considered by the judgeor jury, may be introduced by

asking the judge to have the itemmarked for identification (for exam-ple, "Your Honor, I ask that thisletter be marked for identificationas 'Defendant's Exhibit A');

showing the item to opposingcounsel, who may object;

79

asking the witness on the stand toidentify the item and relate it to theissues at trial (for example, "Mr. Kay,I show you what has been marked'Defendant's Exhibit A.' Could youplease tell us what it is?");

offering the item into evidence (forexample, "Your Honor, I offer this let-ter for admission into evidence").

Contradictory Testimony

If testimony contradicts facts statedin previous testimony or statements,a lawyer can impeach the witness bycomparing the present and priorstatements and pointing out thecontradictions. The attorney does notprove that one statement is closer tothe truth than the other, but rather thatthe witness has told two different storiesand should not be believed. Thus,impeachment calls into question thetruthfulness of the witness.

An attorney on cross-examination canalso impeach a witness by pointing outbias. For example, when cross-examin-ing a defense witness who in directtestimony has contradicted the plain-tiffs story, the plaintiffs attorney asks,"Isn't it true that you have been angrywith the plaintiff and that the two ofyou haven't spoken for 10 years?"

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Reaching a Verdict

In general, the party bringing theclaim, or charging someone with acrime, has the burden of prooftheobligation of proving the facts onwhich the lawsuit or criminal prosecu-tion is based.

Burden of Proof

In a civil case, the burden of proof isusually the preponderance of the evi-dence. Preponderance means thegreater part, or at least slightly morethan half. In other words, in order tofind for the plaintiff, the jury mustbelieve that the facts are more in favorof the plaintiff than the defendant. Ifthe jury cannot decide whom the factsfavor (i.e., the facts favor each sideequally), or if the jury finds the factsfavorable to the defendant, the defen-dant wins.

In a criminal case, the prosecutionmust prove its case beyond a reason-able doubt. This does not mean thatthe jury must be 100 percent certainthat the defendant is guilty but thatany doubts that jurors have about guiltmust be unreasonable. For teachingpurposes, an unreasonable doubt maybe defined as a doubt for which youcan't give any reason.

Jury Deliberations

Jury deliberations are critical guaranteesof our justice system and our demo-cratic system of government. Onceinstructed by the judge, juries are lefton their own to determine the facts ofthe case, to apply these facts to thelaw, and to make decisions about the

liability, guilt, or innocence of theparties. Juries, realizing both their inde-pendence and their high responsibility,take their work seriously.

Few jurors come to court knowing howto deliberate and reach a verdict. Forthat reason, judges instruct them onhow to decide the facts of the case.The judge usually reads the instructionsto the jury. If the jurors later want clari-fication about any instruction, part orall of the instructions are repeated.

A typical jury begins its work by elect-ing a foreperson to orchestrate thejury's deliberations. The foreperson willoften start by polling the jurors on theirpreliminary ideas about liability or theguilt or innocence of the parties. Thismay be done either by secret ballot orby asking the jurors in turn to givetheir views.

Next, the jury will examine the facts todetermine whether the elements of thecase have been proved or disproved.Jurors will discuss their recollectionsand review documents and physicalevidence presented during the trial. Insome jurisdictions, jurors are not per-mitted to take notes during trial on thetheory that a written observation maygain undue weight. This is becausejurors are instructed to rely on theirrecollections of the evidence duringtheir deliberations. Other jurisdictions,however, do allow note taking.

The jurors' recollections must be setout, compared, and reconciled. Jurorscontinue to vote and discuss the evi-dence until a verdict is reached orthere is a hung jury, a jury that cannotagree on a verdict. Often the judge willsend an undecided jury back for furtherdeliberation.

81

If the jury cannot reach a verdict, thejudge declares a mistrial. The plaintiff orprosecutor may then choose to retry thecase, seek a settlement or plea agree-

ment, or drop or dismiss the case.

It is common for judges, after the jury'sverdict has been rendered, to thankjurors for their service to the commu-nity. Also, some jurisdictions mail jurorsa letter or certificate of appreciation.

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Organizations

OrganizationsSupporting Law-RelatedEducation

Foundation of the American Boardof Trial Advocates

5307 East Mockingbird Lane, Suite 1060Dallas, TX 75206-5109Tel: 800-779-5879Fax: 214-827-2012

The Foundation of the American Board of

Trial Advocates provides education con-

cerning the history and value of the rightto trial by jury.

American Bar Association Divisionfor Public Education:National Law-Related EducationResource Center (NLRC)

541 North Fairbanks Court, 15th FloorChicago, IL 60611-3314Tel: 312-988-5735The Bar Association has helped to

develop a number of school programs

about the legal process.

Association of Trial Lawyersof America (ATLA)

1050 31st Street NWWashington, DC 20007Tel: 800-424-2725Tel: 202-965-3500This organization safeguards victims'

rights and strengthens the civil justice

system through education.

Center for Civic Education

5146 Douglas Fir RoadCalabasas, CA 91302

Tel: 800-350-4223Teachers find the Center for Civic

Education to be an invaluable source of

interactive classroom materials and refer-

ences on all aspects of citizenship.

69

Citizenship and Law-RelatedEducation Center

9738 Lincoln Village DriveSacramento, CA 95827Tel: 916-228-2322Fax: 916-228-2493This nonprofit organization works with

schools and communities to teach K-12students the skills, knowledge, and atti-tudes needed to become responsible and

productive citizens.

Constitutional Rights Foundation

601 South Kingsley DriveLos Angeles, CA 90005Tel: 800-488-4273The Constitutional Rights Foundation

produces a variety of law-related educa-

tional publications and sponsors thenational Mock Trial competition.

National Institute for CitizenEducation in the Law (NICEL)

711 G Street SE

Washington, DC 20003Tel: 202-546-6644This national institute is noted for itsdedication to fostering understanding ofthe law and the legal system. It develops

curriculum and trains teachers in facilitat-ing effective student-centered, law-related

education classes.

Phi Alpha Delta Law FraternityInternational Public Service Center

1511 K Street NW, Suite 611Washington, DC 20005Tel: 202-638-2898Phi Alpha Delta's public service center

has prepared drug manuals for each

state, the District of Columbia, andPuerto Rico. It provides outside resource

people to work with teachers in teachinglaw-related education and publishes a"Lesson Plan of the Month."

83

Arbetman, Lee P., Edward T. McMahon,and Edward L. O'Brien, Street Law: A

Course in Practical Law. Minneapolis/St.Paul: West Publishing Company, 1994.

Atherton, Herbert M., ed., The Bill ofRights and Beyond. Washington, D.C.:Commission on the Bicentennial of theUnited States Constitution, 1991.

Black, Sheila, "Goldi locks and the Three

Bears," in A Treasury of Children'sLiterature, Armand Eisen, ed. Boston:Houghton Mifflin Company, 1992.

Carroll, Sidney B., You Be the Judge.

New York: Lathrop, Lee & ShepardBooks, 1971.

Clapp, Patricia, Witches' Children: A Storyof Salem. New York: Lathrop, Lee &Shepard Books, 1982.

Creeden, Sharon, Fair Is Fair: World

Folktales of Justice. Little Rock: August

House, 1994.

David, Andrew, Famous Criminal Trials.

Minneapolis: Lerner Publications, 1979.

Emert, Phyllis Raybin, Top Lawyers and

Their Famous Cases. Minneapolis: Oliver

Press, 1996.

Fitzgerald, John, The Great Brain

Reforms. New York: Dial Press, 1973.

Metzger, Lois, Ellen's Case. New York:

Puffin Books, 1997.

Miller, Marvin, You Be the Jury.

New York: Scholastic, 1987.

Miller, Marvin, You Be the Jury:

Courtroom II, Ill, IV. New York:Scholastic, 1992.

Miller, Marvin, You Be the Jury:Courtroom V. New York: Scholastic,

1996.

Rappaport, Doreen, The Lizzie BordenTrial (Be the JudgeBe the Jury series).New York: HarperCollins Publishers,1992.

Rappaport, Doreen, The Alger Hiss Trial

(Be the JudgeBe the Jury series). NewYork: HarperCollins Publishers, 1993.

Rappaport, Doreen, The Sacco-Vanzetti

Trial (Be the JudgeBe the Jury series).New York: HarperCollins Publishers,

1994.

Rappaport, Doreen, Tinker vs. Des

Moines: Student Rights on Trial (Be the

JudgeBe the Jury series). New York:HarperCollins Publishers, 1994.

Southey, Robert, "Goldilocks and theThree Bears," in A Treasury of Bedtime

Stories. New York: Simon & Schuster,

1981.

Spear, Elizabeth George, The Witch ofBlackbird Pond. New York: Bantam

Doubleday Dell, 1986.

Starkey, Marion, The Visionary Girls:

Witchcraft in Salem Village. Boston: Little,

Brown, 1973.

Van der Linde, Laurel, The Devil in SalemVillage: The Story of the Salem Witchcraft

Trials. Brookfield, Conn.: MillbrookPress, 1992.

Voake, Charlotte, "Goldilocks and theThree Bears," in The Candlewick Book

of Bear Stories. Cambridge, Mass.:Candlewick Press, 1995.

84

Bibliography

70

FinancialSupport The Foundation gratefully acknowledges the financial support

of its Partners in Youth Education.

ABOTA Chapters

Arkansas

Austin

CAL-ABOTA

Colorado

ConnecticutDallas

East Texas

Fort Worth

Illinois

Iowa

Kansas

Los Angeles

Individuals and Firms

Minnesota

New Hampshire

Northern New Jersey

Pennsylvania

San Diego

San Francisco

South Dakota

Tampa Bay

TEX-ABOTA

Tucson

Vermont

Washington

Albert R. Abramson

Lisa A. Blue/Baron & Budd

Joel W. Collins, Jr.

In memory of Joseph H. Cummins

Thomas V. Girardi

Donald W. Griffis

Walter J. Lack

La Follette, Johnson, De Haas, Fes ler & Ames

S. Rex and Joan T. Lewis Foundation

Ray Mattison

John A. Mc Guinn

Ronald H. Rouda

Lewis R. Sifford

Sidney A. Stutz

Funding for this Project was provided in part by grants from the following:

Texas Bar Foundation

Georgia Civil Justice Foundation

Kentucky Bar Foundation

Michigan State Bar Foundation

Interest on Lawyers Trust Account Program ofThe Mississippi Bar Foundation, Inc.

85

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