Handout 6A: Trial Preparation

Note: Refer to Mock Trial Lesson 2, Handout 2A: Steps in a Trial to help youprepare for the trial. .

Witnesses and Alternates (P1 and D2)Goals1. To.learn the facts in your witness statement

2. To practice acting like your witnessInstructions Take turns questioning each other to uncover all the informa-tion-favorable and unfavorable to your side-contained in your witnessstatements.Witness #1 is the first to be questioned. Starting with "State your name, please"

and proceeding through the witness statement, Witness #1 is asked every conceiv-able question by the other students in the group. Witness #2 and then the alter-nates follow suit.The questioning drill continues around the circle until each student can answer

the questions without looking at his or her statement.Once you have learned your role, the group should focus on style and charac-

terization. Going around the circle again, you should help each other try todevelop a specific type of character and responses to fit the role.

Direct Examination Attorneys (P2 and D2)Goals1. To develop questioning strategy for direct examination of the witnesses

2. To practice the proper form of direct examinationInstructions Start with Witness #1, and, as a group, outline the basic series ofdirect examination questions needed for that witness. Think about how that wit-ness's testimony should link to the theory of your case. Remember that in a directexamination, the witness should be able to tell his or her story thanks to yourbeautifully crafted open-ended questions. Then do the same for Witness #2.

Cross- Examination Attorneys (P3 and D3):Goals1. To develop questioning strategy for cross-examination of the witnesses

2. To practice the proper form of cross-examination questioningInstructions Think about the facts in the opposing witness statements that sup-port your case and how to weaken (i.e., cast doubt on the accuracy of) the witnessfacts that support the other side's case. Assist each other in trying to project whattestimony might be given on direct examination of each witness for the other side,thus showing what material might be appropriate for cross-examination. Plot out a

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Handout 6A continued

series of possible cross-examination questions and ask each other the questions tosee how they will work. Make sure that their questions are written as leading ques-tions. A leading question is one that calls for a yes or no answer and does not allowthe witness a chance to explain his or her answer. For example, "Isn't it true thatRay is your best friend who you would do anything for?" (Remember that you willhave to alter your prepared material, to some extent, based on what happens in thedirect examination during the actual trial.) .

Opening Statement or Closing Argument Attorneys(P4 and D4):Goals1. To refine the opening statement previously prepared

2. To brainstorm the principal points to be included in the closing argumentInstructions Attorneys conducting the opening statements should present themto the group and receive feedback. (Note: If your teammates wrote sample open-ing statements for homework, collect these as well and critique them.) Create anopening statement that incorporates the best points of the draft statements.Then brainstorm the main points of the closing argument, including how you

intend to refute what the other side is contending. Collaborate to write the closingarguments. Then reconvene to hear and critique each other's closing arguments .

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Handout 7A: The Rules of Evidence

So that each party to a trial can be assured of a fair hearing, certain rules have beendeveloped to govern the types of evidence that may be introduced in a trial, as well asthe manner in which evidence may be presented. These rules are called the "rules ofevidence."The attorneys and the judge are responsible for enforcing these rules.Before the judge can apply a rule of evidence, an attorney must ask the judge to do so.Attorneys do this by making "objections" to the evidence or procedure employed bythe opposing side.When an objection is raised, the attorney who asked the questionbeing objected to will usually be asked by the judge to respond. A response should tellthe judge why the question was not in violation of the rules of evidence.The rules of evidence used in real trials can be very complicated. A few of the

most important rules of evidence have been adapted for mock trial purposes, andthese are presented below.

Rule 1-Leading QuestionsA "leading" question is one which suggests the answer desired by the ques-

tioner, usually by stating some facts not previously discussed and then asking thewitness to give a "yes" or a "no" answer.Example: On direct examination, plaintiff's attorney asks the plaintiff, Mr.

Smith, the following:"So, Mr. Smith, you took Ms. Jones to a movie that night didn't you?"Leading questions may not be asked on direct examination. However, leading

questions are permissible on cross-examination, and a good lawyer should useleading questions on cross-examination.

Objection: "Objection, Your Honor, counsel is leading the witness." (OpposingAttorney)Possible Response: "Your Honor, please give me some latitude to set the scene,"

or "I'll rephrase the question." For example, the above question would not beleading if rephrased as "Mr. Smith, where did you and Ms. Jones go that night?"(This would not ask for a "yes" or "no" answer.) Remember that if this werecross-examination, this question would be allowed and the attorney wouldrespond to an objection, "Your Honor, leading questions are permissible oncross-examination."

Rule 2-Narration"Narration" occurs when the witness provides more information than the ques-

tion called for.Example: Question, "What did you do when you reached the front door of

the house?" Witness, "I opened the door and walked into the kitchen. I was afraidthat he was in the house-you know he had been acting quite strangely theday before."Witnesses' answers must respond to the questions. A narrative answer is

objectionable.

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7Handout 7A continued

Objection: "Objection, Your Honor, the witness is narrating."Response: "Your Honor, the witness is telling us a complete sequence

of events."

Rule 3-RelevanceQuestions and answers must relate to the subject matter ofthe case; this is

called "relevance/'Questions or answers that do not relate to the case are"irrelevant."Example: (In a traffic accident case) "Mrs. Smith, how many times have you

been married?"Irrelevant questions or answers are objectionable.Objection: "Your Honor, this question is irrelevant to this case."Response: "Your Honor, this series of questions will show that Mrs. Smith's

first husband was killed in an auto .accident, and this fact has increased her mentalsuffering in this case."

Rule 4-Hearsay"Hearsay" is something the witness has heard someone say outside the

courtroom.Example: "Harry told me that he was going to visit Mr. Brown."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 tobe testified to. One exception is permitting hearsay evidence when the witness isrepeating a statement made by one of the parties in the case. (For mock trials, otherexceptions to the hearsay rule usually are not used.) Another example of an exceptionis when the witness who made the statement has died or is otherwise unable to testify.Objection: "Objection, Your Honor, this is hearsay."Response: "Your Honor, since Harry is the defendant, the witness can testify to

a statement he -heard Harry make."

Rule S-Firsthand KnowledgeWitnesses must have directly seen, heard, or experienced whatever it is they are

testifying about.Example: "I know Harry well enough to know that two beers usually make himdrunk, so I'm sure he was drunk that night, too."A lack of firsthand· knowledge is objectionable.Objection: "Your Honor, the witness has no firsthand knowledge of Harry's

condition that night."Response: "The witness is just generally describing her usual experience with

Harry."

Rule 6-0pinionsUnless a witness is qualified as an expert in the appropriate field, such as medi-

cine or ballistics, the witness may not give an opinion about matters relating tothat field.

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Handout 78: Mock Trial Special Procedures

Procedure l-Introduction of Documents or PhysicalEvidenceStep 1: Introducing the Item for Identification

a. The attorney says to the judge, "Your Honor, I wish to have this (letter,document, item) marked for identification as (Plaintiff's Exhibit A,Defense Exhibit I, etc.)."

b. Attorney takes the item to the clerk, who makes the appropriate marking.c. Attorney shows the item to the opposing counsel.d. Attorney shows the item to the witness and says, "Do you recognize thisitem marked as Plaintiff's Exhibit A?"Witness: "Yes."Attorney: "Could you please identify this item?"Witness: "This is a letter I wrote to Delonte Doe on September I." (Orwitness gives other appropriate identification.)

e. Attorney may then proceed to ask the witness questions about the docu-ment or item.

Step 2:Moving the Document or Item into EvidenceIf the attorney wishes the judge or jury to consider the document or item itself

as part of the evidence, and not just the testimony about it, the attorney must askto move the item into evidence at the end of the witness examination. The attor-ney proceeds as follows:

a. Attorney says, "Your Honor, I offer this (document/item) into evidence asPlaintiff's Exhibit A, and ask that the Court so admit it."

b. Opposing counsel may look at the evidence and make objections at thistime.

c. Judge rules on whether the item may be admitted into evidence.

Procedure 2-ImpeachmentOn cross-examination, the attorney wants to show that the witness should not

be believed. This is best accomplished through a process called "impeachment"which may use one of the following tactics: (1) asking questions about prior con-duct/criminal convictions of the witness that makes the witness's truth-tellingability doubtful; (2) pointing out that the witness is biased; (3) showing thatthe witness did not have an adequate opportunity to observe the acts in question;(4) showing that the witness has contradicted a prior statement, particularly onemade by the witness in an affidavit.In order to impeach the witness by comparing information in the affidavit to

the witness's testimony, attorneys should use this procedure:Step 1: Introduce the affidavit for identification, using the procedure describedin Procedure 1.

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Ial Less 7Handout 7A continued

Example: (Said by a witness who is not a doctor) "The doctor put my cast onwrong. That's why I have a limp now."Opinions are objectionable unless given by an expert. As an exception to this

rule, a lay witness may give an opinion about something in common experience,e.g., "He seemed to be driving pretty fast for a residential street."Objection: "Objection, Your Honor, the witness is giving an opinion."Response: "Your Honor, the witness may answer the question because ordinary

persons can judge if a car is speeding."

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L 7Handout 7B continued

Step 2: Repeat the statement the witness made on direct examination that con-tradicts the affidavit.Example: "Now, Mrs. Burke, on direct examination you testified that you wereout of town on the night in question, didn't you?" (Witness responds, "Yes.")

Step 3: Ask the witness to read from his or her affidavit that part that contradictsthe statement made on direct.Example: "All right, Mrs. Burke, could you read paragraph 3?"(Witness reads, "Harry and I decided to stay in town and go to the theatre.")

Step 4: Dramatize the conflict in the statements.Example: "So, Mrs. Burke, you testified that you were out of town on the nightin question. And you were under oath, correct? Yet, in your affidavit you saidyou were in town, didn't you? And you were also under oath in your affidavit,correct? There seems to be a conflict here, doesn't there? If you can't remem-ber that fact correctly, it's possible you can't remember the others, isn't it?"

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