Mock Trial ProceduresMock Trial Procedures

You and the LawYou and the Law

There are 2 sides:There are 2 sides:

• ProsecutionProsecution• Responsible for proving beyond a reasonable Responsible for proving beyond a reasonable

doubt that the accused committed the crime.doubt that the accused committed the crime.

• Defense Defense • Responsible for finding their client not guilty Responsible for finding their client not guilty

for the crime they are being charged with.for the crime they are being charged with.

Burden of proof!Burden of proof!

• Reasonable DoubtReasonable Doubt• The prosecution has a burden.The prosecution has a burden.

• Their job is harder than the defense.Their job is harder than the defense.• The burden is called, The burden is called, ““Beyond a reasonable doubt.Beyond a reasonable doubt.””

• Therefore, the defense just has to create doubt!Therefore, the defense just has to create doubt!

So how do they do it?So how do they do it?

• The trial:The trial:• Opening StatementsOpening Statements

• Prosecution goes first.Prosecution goes first.• Defense goes second.Defense goes second.

• Why do you think the Prosecution gets/has to go first?Why do you think the Prosecution gets/has to go first?

• The trialThe trial• Direct examinationsDirect examinations• Cross examinationsCross examinations

• Closing StatementsClosing Statements• Prosecution, then defenseProsecution, then defense• Rebuttal by Prosecution. (offering a contrary argument)Rebuttal by Prosecution. (offering a contrary argument)

• Why do they get a rebuttal?Why do they get a rebuttal?

Opening StatementsOpening Statements

• Imagine a movie preview.Imagine a movie preview.• Always phrased, Always phrased, ““We are going to show you We are going to show you

that…that…”” or or ““We will prove thatWe will prove that”” or or ““You are going You are going to see…to see…””

• Give the jury an idea of what is coming.Give the jury an idea of what is coming.• Never phrase it, Never phrase it, ““We already showed youWe already showed you””, or , or ““This This

person did this…person did this…””• Why? They havenWhy? They haven’’t seen the movie yet!t seen the movie yet!

• 3 minutes long3 minutes long

ExaminationsExaminations• Prosecution gets to direct examine their witnesses Prosecution gets to direct examine their witnesses

first.first.• Direct Examination:Direct Examination:

• Example of whatExample of what’’s right:s right:• Tell us where you were on the night of… or What happened after Tell us where you were on the night of… or What happened after

you went to your locker? Then what did you do?you went to your locker? Then what did you do?• Example of whatExample of what’’s wrong:s wrong:

• IsnIsn’’t it true that you loaded the gun the night before you killed t it true that you loaded the gun the night before you killed your husband? your husband?

• The witness has to tell the entire story.The witness has to tell the entire story.• The attorney may not The attorney may not ““LeadLead”” the witness in any way/shape/form the witness in any way/shape/form

to the answer.to the answer.• Rule of thumb: If the answer is yes/no, then you cannot ask the Rule of thumb: If the answer is yes/no, then you cannot ask the

question in Direct Examinationquestion in Direct Examination

ExaminationsExaminations

• Cross Examination: Cross Examination: • This is a hostile examination. One sideThis is a hostile examination. One side’’s attorney s attorney

against the other sideagainst the other side’’s witness.s witness.• They are from opposite teams.They are from opposite teams.

• After the direct examination, the witness stays on the After the direct examination, the witness stays on the stand, and the cross-examiner approaches. stand, and the cross-examiner approaches.

• Control the witness!!! Always ask them to answer all questions Control the witness!!! Always ask them to answer all questions with a yes/no unless asked otherwise.with a yes/no unless asked otherwise.

• Examples of what is okay: almost anything!Examples of what is okay: almost anything!

As long as you are controlling the witness, leading and non-As long as you are controlling the witness, leading and non-leading questions are OK.leading questions are OK.

ExaminationsExaminations

• Re-Direct – If you still have time, then the Re-Direct – If you still have time, then the direct examiner may re-approach and direct examiner may re-approach and clarify anything brought up in the cross-clarify anything brought up in the cross-exam. Nothing new.exam. Nothing new.

• Re-Cross – same as Re-direct…must have Re-Cross – same as Re-direct…must have time remaining.time remaining.

Objections:Objections:

• Sometimes an attorney is breaking the rules:Sometimes an attorney is breaking the rules:• You need to protect your witness and your case.You need to protect your witness and your case.• OnlyOnly the attorney responsible for the witness on the the attorney responsible for the witness on the

stand may object…nobody else on the attorney teams!!!stand may object…nobody else on the attorney teams!!!

• Judge can either Judge can either • SustainSustain (says it (says it’’s a good objection and doesns a good objection and doesn’’t allow the t allow the

question to be answered) or question to be answered) or • Overrule Overrule (says it(says it’’s a bad objection, that question s a bad objection, that question

should be answered.)should be answered.)

ObjectionsObjections• LeadingLeading• ArgumentativeArgumentative• BadgeringBadgering• SpeculationSpeculation• FoundationFoundation• HearsayHearsay• First-hand knowledgeFirst-hand knowledge• Ultimate IssueUltimate Issue• Asked and answeredAsked and answered• Outside the ScopeOutside the Scope

LeadingLeading

• Can only be used when a direct examination Can only be used when a direct examination is happening.is happening.

• Asking yes/no questionsAsking yes/no questions

• Stating a question that has the answer built Stating a question that has the answer built in to it so the witness just has to confirm the in to it so the witness just has to confirm the attorney is correct or incorrect.attorney is correct or incorrect.

ExamplesExamples

n What did you have for lunch?What did you have for lunch?n Not leadingNot leading

n You had a chicken ceasar salad for lunch, You had a chicken ceasar salad for lunch, didndidn’’t you?t you?n LeadingLeading

ExamplesExamples

n IsnIsn’’t it true, you have no siblings?t it true, you have no siblings?n OK in a cross examinationOK in a cross examination

n How many siblings do you have?How many siblings do you have?n This is what you would ask in a direct This is what you would ask in a direct

examinationexamination

Argumentative/BadgeringArgumentative/Badgering

• Arguing with the witness.Arguing with the witness.• Did you do this? Did you do this? ““No.No.”” Are you sure you didn Are you sure you didn’’t t

do this? do this? ““Yes.Yes.”” Positive you didn Positive you didn’’t do this? t do this? ““Yes.Yes.”” You did this, why arenYou did this, why aren’’t you admitting to t you admitting to it?!?it?!?

• BadgeringBadgering• Arguing with attitude.Arguing with attitude.

Speculation & FoundationSpeculation & Foundation• Speculation – Asking the witness to try and guess at what Speculation – Asking the witness to try and guess at what

might have happened if circumstances were different.might have happened if circumstances were different.• ““LetLet’’s say you went home instead…do you think…s say you went home instead…do you think…”” or or ““What do you What do you

think might have happened if…think might have happened if…””

• Foundation – Only happens on Direct examinations. This Foundation – Only happens on Direct examinations. This is a big oneis a big one

• If the attorney has not established foundation for a question, they If the attorney has not established foundation for a question, they cannot ask it.cannot ask it.

• Example: First question of the direct exam, Example: First question of the direct exam, ““So when you were at So when you were at the party…who did you see drinking alcohol?the party…who did you see drinking alcohol?

• It hasnIt hasn’’t been established that there was a party, with drinking at it, t been established that there was a party, with drinking at it, and the witness was actually at that party and saw people drinking. and the witness was actually at that party and saw people drinking. All of that must be established first.All of that must be established first.

Hearsay/First-hand knowledgeHearsay/First-hand knowledge

• Asking questions that the witness doesnAsking questions that the witness doesn’’t know t know from first-hand experience is not allowed.from first-hand experience is not allowed.

• Was Jeshuan drinking that night?Was Jeshuan drinking that night?• ““Well, I heard (Well, I heard (““Objection! Hearsay.Objection! Hearsay.””) that he was ) that he was

drinking.drinking.””• So was he?So was he?

• ““Yes.Yes.””• How do you know?How do you know?

• ““I I heard heard from Susiefrom Susie””

Ultimate IssueUltimate Issue

• Cannot ask, straight up, with no foundation, Cannot ask, straight up, with no foundation, ““Did you commit this crime?Did you commit this crime?”” to the to the defendant. defendant.

• ThatThat’’s the s the ultimate issueultimate issue everyone is here everyone is here trying to solve.trying to solve.

• EX: the defendantEX: the defendant’’s mental states mental state

Asked and answeredAsked and answered

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

Outside the ScopeOutside the Scope

• Questions asked that do not pertain to the Questions asked that do not pertain to the packet/trial.packet/trial.

• Can also be called an Can also be called an ““Irrelevant QuestionIrrelevant Question””

Establishing a witness as an expertEstablishing a witness as an expert

• Only one type of witness may actually speculate Only one type of witness may actually speculate and that is an and that is an ““expertexpert”” witness. witness.

• But they must be established as an expert during But they must be established as an expert during the direct examination.the direct examination.

• What are your credentials? Witness lists his/her What are your credentials? Witness lists his/her background/academic credentials.background/academic credentials.

• Your honor, IYour honor, I’’d like to establish this witness as an d like to establish this witness as an expert in his/her field.expert in his/her field.

• Judge: Judge: ““Are there any objections from the Are there any objections from the prosecution/defenseprosecution/defense””??

• If none – the witness is declared an expert by the judge and If none – the witness is declared an expert by the judge and they may now speculate on certain things.they may now speculate on certain things.

The rule of 3The rule of 3

• You want the jury to hear important things You want the jury to hear important things 3 times! 3 times!

• But what objection does this sound like?But what objection does this sound like?

Closing statementsClosing statements

• Typically written as the trial is progressing.Typically written as the trial is progressing.• The attorney giving the closing will know what The attorney giving the closing will know what

his/her side will be proving and attempting to his/her side will be proving and attempting to prove so they can write some of it before the prove so they can write some of it before the trial.trial.

The endThe end

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