mock trial cliff notes law 1 mock trial cliff notes

MOCK TRIAL CLIFF NOTES

LAW 1



THE PLAYERS

• Students will play all of the roles in the trial—lawyers, witnesses, members of the jury, and even “Rusty the Bailiff.”

• Teams should identify individual strengths and weaknesses and assign roles accordingly.

• Students may mix and match lawyer and witness roles.


STEPS IN A TRIAL

• (1) Opening Statements to the Jury by the Prosecution

• (2) Opening Statements to the Jury by the Defense


STEPS IN A TRIAL

• (3) Direct Examination of Witnesses by the Prosecution

• (4) Cross Examination of these Witnesses by the Defense

• (5) Redirect Examination of Witnesses by the Prosecution


STEPS IN A TRIAL

• (6) Direct Examination of Witnesses by the Defense

• (7) Cross Examination of these Witnesses by the Prosecution

• (8) Redirect Examination of Witnesses by the Defense


STEPS IN A TRIAL

• (9) Closing Argument to the Jury by the Prosecution

• (10) Closing Argument to the Jury by the Defense

• (11) Deliberation of the Jury• (12) Verdict of the Jury


WITNESS TESTIMONY

• Each witness is bound by the facts contained in their own witness statement, also known as affidavit.

• Fair extrapolations may be allowed, provided reasonable inference may be made from the witness’ statement.

• Be sure that your testimony is never inconsistent with, nor a material departure from, the facts set forth in your affidavit.


WITNESS TESTIMONY

• A witness is not bound by facts contained in other witness statements.


THE EVIDENCE

• Attorneys are responsible for collecting all of the evidence that supports the side of the case they are representing and for deciding how to present that evidence at the trial.

• In general, there should not be any surprises at the trial if the attorneys are well prepared.


THE EVIDENCE

• This lack of surprises is also due to the fact that the attorneys for the opposite sides must let each other know what evidence they have collected.

• This advance sharing of information is called “discovery.”

• Discovery enables both sides to prepare their cases as well as possible, to ensure that the trial is fair.


THE EVIDENCE

• Where it is appropriate to use visual aids (diagrams, charts, etc.), by all means use them.

• But before using outside evidence and/or visual aids, clear it with Judge W. prior to the trial.


THE BURDEN OF PROOF

• In a civil case, plaintiffs must convince the judge or jury that these facts are correct “by a preponderance of the evidence,” meaning that their evidence is slightly more convincing than the defendants’.

• Some refer to this as meaning that 51 percent or more of the evidence supports the plaintiffs’ side.


THE BURDEN OF PROOF

• In a criminal case, the burden of proof is considered to be much stricter, because the defendant may go to prison if the prosecutor proves the state’s case.

• Therefore, the prosecutor must convince the judge or jury “beyond a reasonable doubt” that the accused committed the crime.


THE BURDEN OF PROOF

• Some state that “beyond a reasonable doubt” means that the trier of fact (judge or jury) must be at least 95 percent sure that the prosecutor is correct.


THE DEFENSE

• As previously described, the complaining or accusing parties usually have the burden of proving their particular version of the facts.

• The job of the defense team is to present evidence which prevents the plaintiff or prosecution from meeting the burden of proof.


THE DEFENSE

• Defense evidence should explain, disprove, or discredit the evidence presented by the other party.


THE OPENING STATEMENT

• The opening statement is the introduction to the case, the very first time the attorneys for each side get to tell the judge and jury about what happened to their clients.

• Opening statements should always start with an opening sentence or two that presents the theme of the case and then be followed by:



• (1) a summary of the facts according to each party;

• (2) a brief overview of the evidence that will be presented at the trial;

• (3) a statement regarding what the party plans to prove from the trial and how it will be proven; and



• (4) a concise synopsis of the burden of proof and applicable law regarding the case.

• At no other time are the jurors most attentive and receptive to know about your case.

• To be effective, the opening statement should be told as a simple story.



• It should be brief, absolutely clear, concise, direct, and explained in plain layman language.

• Begin your statement with a formal address to the judge such as “Your Honor, my name is (full name), representing the plaintiff/defendant in this case.”



• Proper phrasing in an opening statement also includes: “The evidence will indicate that ...”, “The facts will show that ...”, “Witnesses (full names) will be called to tell ...”, and/or “The plaintiff/defendant will testify that ...”



• When organizing the opening statement, make a list of the points you want or need to make; these are your headings.

• Then write the facts that will establish each point.

• The opening statement might be given in either chronological sequence or by a topical outline manner stressing the important key facts to be proved.



• Techniques such as repetition, empathy, analogies, rhetorical questions, and stories may be useful and should be strongly considered.

• Tell the jury about any problems or weaknesses you have with your case rather than to have them unveiled during the trial.



• This can be accomplished by communicating what they should expect to hear from the opposition and then downplaying or justifying these issues.

• Your voice should be well modulated and conversational in tone, while also being firm and persuasive.

• You should maintain good eye contact with the jury and present a relaxed and friendly attitude.



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

• Above all, it must be believable and simple.


DIRECT EXAMINATION

• Each time a witness is called to the stand, the attorney who called the witness asks a series of questions called the “direct examination.”

• These questions are designed to get the witness to tell a story, reciting what he or she saw, heard, experienced or knew about the case.


DIRECT EXAMINATION

• The questions must ask only for facts, not for opinions (unless the witness has been declared to be an “expert” in a particular subject, such as a doctor or a police detective).

• In addition, the attorney may only ask questions and may not make any statements about the facts, even if the witness says something wrong.


DIRECT EXAMINATION

• Leading questions cannot be used on direct examination; in other words, your questions should not suggest a specific response.

• Witnesses should tell their stories clearly with as little hesitation as possible. It’s important for witnesses to know the facts thoroughly.


DIRECT EXAMINATION

• Prepare an outline of the key facts each witness will testify to.

• Isolate exactly what information each witness can contribute to proving your case and prepare a series of brief, clear, and simple questions designed to obtain that information.

• Be sure all items you need to prove your case will be presented through your witnesses.


DIRECT EXAMINATION

• The witness is there to tell a specific story, so use open-ended type questions to allow the witness to freely tell the facts in their own words.

• As to the critical and crucial portions of witness testimony, use closed-type questions to elicit and emphasize the details.


DIRECT EXAMINATION

• When it is appropriate and relevant, bring out any harmful matters on direct examination to downplay its significance.


CROSS EXAMINATION

• The purpose of the cross examination is to show the judge and jury that a given witness should not be believed because that witness:

• (1) cannot remember facts; • (2) did not give all of the facts in the

direct examination; • (3) told a different story at some other

time;


CROSS EXAMINATION

• (4) has a reputation for lying; • (5) has a special relationship to one

of the parties (maybe a relative or close friend) or bears a grudge toward one of the parties.

• Consider the goal to be accomplished by your cross examination.


CROSS EXAMINATION

• Attorneys must know precisely what kind of weaknesses they want to show in the witness, and then design the questions to point them out.

• At all costs, exploit a prior statement(s) available from the witness which is favorable to your case.


CROSS EXAMINATION

• Essentially never ask “Why or How?” It gives a well-prepared witness a chance to clarify from their point of view. Never permit the witness to explain anything.

• Never ask a question to which you don’t know the answer.

• Try to ask leading questions whenever possible.


REDIRECT EXAMINATION

• At the close of cross examination the attorney who conducted the direct exam may do a “redirect.”

• A redirect examination follows the same rules as direct.

• However, the questions are limited to subjects discussed in the cross examination.



• It should not be used simply to restate testimony already brought out, and it is not allowed to be used to present brand-new testimony.

• For this reason, it is optional, and may be quite short.



• Redirect examination is sometimes used to help explain testimony brought out during cross-examination, where the witness was limited to very specific questions.


CLOSING STATEMENT

• The purpose of the closing argument (or “statement”) is to convince the trier of fact (judge or jury) that the evidence presented is sufficient to win the case for whichever side the attorney is representing.


CLOSING STATEMENT

• The closing argument should include: • (1) a summary of the evidence

presented that is favorable to the presenting attorney’s side; and

• (2) a legal argument showing how the law requires the judge or jury to interpret the facts, and why that law requires them to rule in favor of the side for which the attorney is arguing.


CLOSING STATEMENT

• New information may not be introduced in the closing argument.

• It should persuasively resolve any problems that the jurors might have in dealing with the factual or legal issues involved.

• It should create a favorable attitude for your client’s case and also reconcile inconsistencies that might hurt your side.


CLOSING STATEMENT

• A good closing should synthesize what actually happened in court rather than being repackaged.

• The closing statement should also be emotionally charged and strongly appealing, unlike the calm opening statement.


CLOSING STATEMENT

• Since it is meant to be persuasive, the closing argument should be active and forceful without being overwhelming.

• Emphasize the main points of your summation with feeling.


GRADING BREAKDOWN

• Opening Statement: 20%• Direct Examination Questions: 15%• Cross Examination Questions: 10%• Closing Statement: 15%• Trial Performance / Participation:

30%• Professional Dress: 10%


IMPORTANT INSTRUCTIONS

• Up to an additional five points may be earned for going above and beyond when dressing up.

• All submitted documents must be typed and free of spelling and grammatical errors.



• Be sure to include answers for direct examination questions; speculative answers are not necessary for cross examination questions.

• A title page and group roles page are required to precede all other paperwork; every group member’s full name should be properly spelled.



• Document formatting must be consistent throughout and all sections need to be properly labeled; strictly follow the supplied templates for compliance.

• Paperwork to be graded is a representation of the entire group, therefore each member should equally contribute; submission implies that each member fully endorses the final product.



• Individual students may lose pretrial points due to poor attendance and/or substandard group participation.


RULES OF EVIDENCE

• So that each party to a trial can be assured of a fair hearing, certain rules have been developed to govern the types of evidence that may be introduced in a trial.

• Before the judge can apply a rule of evidence, an attorney must ask the judge to do so.


RULES OF EVIDENCE

• Attorneys do this by making “objections” to the evidence or procedure employed by the opposing side.

• When an objection is raised, the attorney who asked the question being objected to will usually be asked by the judge to respond.


RULES OF EVIDENCE

• A response should tell the judge why the question was not in violation of the rules of evidence.


RULE 1LEADING QUESTION

• RULE 1 – LEADING QUESTION: A “leading” question is one which suggests the answer desired by the questioner, usually by stating some facts not previously discussed and then asking the witness to give a “yes” or a “no” answer.

• The question is giving the witness information about what the intended answer ought to be.


RULE 1LEADING QUESTION

• The lawyer essentially puts words in the witness’ mouth.

• Leading questions may not be asked on direct examination.

• Leading questions may be used on cross examination.


RULE 2UNFAIR EXTRAPOLATION• RULE 2 – UNFAIR EXTRAPOLATION: “Unfair extrapolation” occurs when a witness is asked or answers to information outside the scope of the facts on record (mock trial materials).

• All questions and answers must be consistent with the materials and may not significantly affect the witness’ testimony or any substantive issue of the case.


RULE 2UNFAIR EXTRAPOLATION• Both questions and answers that

unfairly extrapolate are objectionable.


RULE 3NARRATION

• RULE 3 – NARRATION: “Narration” occurs when the witness provides more information than the question called for.

• Witnesses’ answers must respond to the questions.

• A narrative answer is objectionable.


RULE 4RELEVANCE

• RULE 4 – RELEVANCE: Questions and answers must relate to the subject matter of the case; this is called “relevance.”

• Questions or answers that do not relate to the case are “irrelevant.”

• Irrelevant questions or answers are objectionable.


RULE 5HEARSAY

• RULE 5 – HEARSAY: “Hearsay” is something the witness has heard someone say outside the courtroom.

• Hearsay evidence is objectionable. • However, there are a number of

exceptions to the hearsay rule and if an exception applies, the court will allow hearsay evidence to be testified to.


RULE 5HEARSAY

• One exception is permitting hearsay evidence when the witness is repeating a statement made by one of the parties in the case.

• Another example of an exception is when the witness who made the statement has died or is otherwise unable to testify.


RULE 6HISTORICAL INACCURACY• RULE 6 – HISTORICAL

INACCURACY: The witness or lawyer states inaccurate historical facts.


RULE 7WITNESS IS NOT AN

EXPERT• RULE 7 – WITNESS IS NOT AN

EXPERT (OPINION): Unless a witness is qualified as an expert in the appropriate field, such as medicine or ballistics, the witness may not give an opinion about matters relating to that field.

• Opinions are objectionable unless given by an expert.


RULE 8COUNSEL IS TESTIFYING

• RULE 8 – COUNSEL IS TESTIFYING: The attorney is making factual statements rather than only asking a question.

• Trial procedures do not permit attorneys to testify.


RULE 9ASKED AND ANSWERED

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


RULE 10BADGERING THE

WITNESS• RULE 10 – BADGERING THE

WITNESS: The lawyer harasses, abuses, and/or insults the witness.


RULE 11COACHING THE WITNESS• RULE 11 – COACHING THE

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


RULE 12OUTSIDE THE SCOPE OF

CROSS• RULE 12 – OUTSIDE THE SCOPE

OF CROSS: Redirect examination is limited to matters brought out during the cross examination of a witness.

• Objections can be made against attorneys who violate this rule.

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