Mock Trial Procedures

1. Mock Trial Procedures You and the Law

2. There are 2 sides: • Prosecution • Responsible for proving beyond a reasonable doubt that the accused committed the crime. • Defense • Responsible for finding their client not guilty for the crime they are being charged with.

3. Burden of proof! • Reasonable Doubt • The prosecution has a burden. • Their job is harder than the defense. • The burden is called, “Beyond a reasonable doubt.” • Therefore, the defense just has to create doubt!

4. So how do they do it? • The trial: • Opening Statements • Prosecution goes first. • Defense goes second. • Why do you think the Prosecution gets/has to go first? • The trial • Direct examinations • Cross examinations • Closing Statements • Prosecution, then defense • Rebuttal by Prosecution. (offering a contrary argument) • Why do they get a rebuttal?

5. Opening Statements • Imagine a movie preview. • Always phrased, “We are going to show you that…” or “We will prove that” or “You are going to see…” • Give the jury an idea of what is coming. • Never phrase it, “We already showed you”, or “This person did this…” • Why? They haven’t seen the movie yet! • 3 minutes long

6. Examinations • Prosecution gets to direct examine their witnesses first. • Direct Examination: • Example of what’s right: • Tell us where you were on the night of… or What happened after you went to your locker? Then what did you do? • Example of what’s wrong: • Isn’t it true that you loaded the gun the night before you killed your husband? • The witness has to tell the entire story. • The attorney may not “Lead” the witness in any way/shape/form to the answer. • Rule of thumb: If the answer is yes/no, then you cannot ask the question in Direct Examination

7. Examinations • Cross Examination: • This is a hostile examination. One side’s attorney against the other side’s witness. • They are from opposite teams. • After the direct examination, the witness stays on the stand, and the cross-examiner approaches. • Control the witness!!! Always ask them to answer all questions with a yes/no unless asked otherwise. • Examples of what is okay: almost anything! As long as you are controlling the witness, leading and non-leading questions are OK.

8. Examinations • Re-Direct – If you still have time, then the direct examiner may re-approach and clarify anything brought up in the cross-exam. Nothing new. • Re-Cross – same as Re-direct…must have time remaining.

9. Objections: • Sometimes an attorney is breaking the rules: • You need to protect your witness and your case. • Only the attorney responsible for the witness on the stand may object…nobody else on the attorney teams!!! • Judge can either • Sustain (says it’s a good objection and doesn’t allow the question to be answered) or • Overrule (says it’s a bad objection, that question should be answered.)

10. Objections • Leading • Argumentative • Badgering • Speculation • Foundation • Hearsay • First-hand knowledge • Ultimate Issue • Asked and answered • Outside the Scope

11. Leading • Can only be used when a direct examination is happening. • Asking yes/no questions • Stating a question that has the answer built in to it so the witness just has to confirm the attorney is correct or incorrect.

12. Examples • What did you have for lunch? • Not leading • You had a chicken ceasar salad for lunch, didn’t you? • Leading

13. Examples • Isn’t it true, you have no siblings? • OK in a cross examination • How many siblings do you have? • This is what you would ask in a direct examination

14. Argumentative/Badgering • Arguing with the witness. • Did you do this? “No.” Are you sure you didn’t do this? “Yes.” Positive you didn’t do this? “Yes.”You did this, why aren’t you admitting to it?!? • Badgering • Arguing with attitude.

15. Speculation & Foundation • Speculation – Asking the witness to try and guess at what might have happened if circumstances were different. • “Let’s say you went home instead…do you think…” or “What do you think might have happened if…” • Foundation – Only happens on Direct examinations. This is a big one • If the attorney has not established foundation for a question, they cannot ask it. • Example: First question of the direct exam, “So when you were at the party…who did you see drinking alcohol? • It hasn’t been established that there was a party, with drinking at it, and the witness was actually at that party and saw people drinking. All of that must be established first.

16. Hearsay/First-hand knowledge • Asking questions that the witness doesn’t know from first-hand experience is not allowed. • Was Jeshuan drinking that night? • “Well, I heard (“Objection! Hearsay.”) that he was drinking.” • So was he? • “Yes.” • How do you know? • “I heard from Susie”

17. Ultimate Issue • Cannot ask, straight up, with no foundation, “Did you commit this crime?” to the defendant. • That’s the ultimate issue everyone is here trying to solve. • EX: the defendant’s mental state

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

19. Outside the Scope • Questions asked that do not pertain to the packet/trial. • Can also be called an “Irrelevant Question”

20. Establishing a witness as an expert • Only one type of witness may actually speculate and that is an “expert” witness. • But they must be established as an expert during the direct examination. • What are your credentials? Witness lists his/her background/academic credentials. • Your honor, I’d like to establish this witness as an expert in his/her field. • Judge: “Are there any objections from the prosecution/defense”? • If none – the witness is declared an expert by the judge and they may now speculate on certain things.

21. The rule of 3 • You want the jury to hear important things 3 times! • But what objection does this sound like?

22. Closing statements • Typically written as the trial is progressing. • The attorney giving the closing will know what his/her side will be proving and attempting to prove so they can write some of it before the trial.

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