STEPS IN MOCK TRIALS

1. The Opening of the Court

Either the clerk of the court, the judge's sheriff, or the tournament official will ask all in the courtroom to rise and will call the court to order.

When the judge enters, all participants should remain standing until the judge is seated.

The case will be announced...i.e., "The court will now hear the case of (case name)."

The judge will then ask the attorneys for each side if they are ready.

2. Opening Statements

Before proceeding with its opening arguments, each team of attorneys should have one of its members introduce the team to the presiding judge. Witnesses should not be introduced.

"Your Honor. My name is _______. My colleagues are Mr. _______ and Ms. _______."

The presiding judge may interrupt an attorney's opening and closing statements to ask questions.

a. Prosecution/Plaintiff

After introducing her/himself and her/his colleagues to the judge, an attorney for the prosecution/plaintiff summarizes the evidence which will be presented to prove the case. An opening statement blends the pertinent facts of the case into a brief presentation of the legal basis for the prosecution's/plaintiff's case. However, this is not the time to argue or discuss the law. The opening statement also may establish a theme around which the presentation will revolve.

b. Defense

After introducing her/himself and her/his colleagues to the judge, an attorney for the defense summarizes the evidence which will be presented to the court to rebut the charges against the defendant. A theme may also be established. Defense attorneys present their opening statements immediately after the prosecution's/plaintiff's opening statement. If the trial judge allows, the defense may defer its opening statement until later in the trial

Note: In general, the opening statement outlines the case. The case is not argued here.

3. Direct Examination OF WITNESSES

Each side conducts the direct examination (questioning) of each of its witnesses. At this time, testimony and other evidence to establish its case will be presented. The purpose of direct examination is to allow the witness to supply the facts in support of the case. Teams should strive to present their cases in this portion of the trial in as direct and concise a manner as possible. Only those questions which are clearly relevant to the points the team wishes to make should be asked. Avoid extraneous and irrelevant questions.

Note: The attorneys for both sides, on direct, cross, redirect, and recross, should remember that their only function is to ask questions; attorneys themselves may not testify or give evidence, and they must avoid phrasing questions in a way that might violate this rule.

4. Cross examination OF WITNESSES

After an attorney has completed the direct questioning of a witness, the judge allows an opposing attorney to cross examine the witness. The cross examiner seeks to clarify or cast doubt upon the testimony of opposing witnesses. Inconsistency in stories, bias, and other damaging facts may be pointed out to the court through cross examination. Again, teams should strive to make their line of questioning in this portion of the trial as concise and to the point as possible. Don't ask irrelevant questions. 

5. Redirect (Optional)

Redirect provides a chance to repair damage done during cross examination. It is not a time to introduce new evidence or to ask questions that there wasn't time for during direct.

6. Recross (Optional)

The last word, recross permits clarification of a brief but important point that was raised in the redirect.

Note: Redirect and recross are optional and not scored separately from direct/cross.

7. Closing Arguments

Closing arguments must be based on evidence and testimony presented during the trial. They are opportunities to summarize the case and to emphasize evidence that supports one's position and damages the opponent's. Closing statements can be high drama and should not be boring. Asking the judge/jury to put themselves in a client's position, or overt appeals to sympathy and prejudice are improper. Parties should indicate how the evidence does or does not satisfy the elements of the charge or claim as required by law and should ask for a favorable judgment.

SIMPLIFIED RULES OF EVIDENCE AND PROCEDURE

In trials conducted in the United States, elaborate rules are used to regulate the admission of proof (i.e., oral or physical evidence). These rules are designed to insure that both parties receive a fair hearing and to exclude any evidence deemed irrelevant, incompetent, untrustworthy, or unduly prejudicial. If it appears that a rule of evidence is being violated, an attorney may raise an objection to the judge. The judge then decides whether the rule has been violated and whether the evidence must be excluded from the record of the trial. Judges rarely interrupt to rule on evidence or testimony unless clear injustices are being committed: objections are the job of the attorneys. Attorneys develop an intuition for objections and it is common to hear, "Objection," from an attorney, followed by a ruling from the judge ("Sustained," meaning, "You're right; the question may not be asked," or "Overruled," meaning, "It's okay to ask that.") However, in the mock trial, it is critical that the lawyers be able to express the reason for an objection, such as "Objection, your honor, it's hearsay!"

WITNESS EXAMINATION

1. Direct Examination (attorneys call and question witnesses)

a. Leading Questions

Witnesses may not be asked leading questions by the attorney who calls them. A leading question is one that suggests to the witness the answer desired by the examiner, and often suggests a "yes" or "no" answer. Acceptable direct questions are generally phrased to evoke a set of facts from the witness.

Example of a direct question: "Dr. Isaac, what is your background in the study and analysis of alcohol and drug intoxication?"

Example of a leading question: "Detective, did you find the defendant to be a common drunk?"

b. Narration

While the purpose of direct examination is to get the witness to tell a story, the questions must ask for specific information. The questions must not be so broad that the witness is allowed to wander or "narrate" a whole story. Narrative questions and narrative answers are objectionable. At times, a direct question may be appropriate, but the witness' answer may go beyond the facts for which the question asked. Such answers are subject to objection on the ground of narration.

Example of a narrative question: "So, Mr. Witness, what happened in September 1993?"

c. Scope of Witness Examination

Direct examination may cover all facts relevant to the case of which the witness has firsthand knowledge. In addition, expert witnesses who qualify as such are allowed to give opinions about circumstances they have not actually witnessed. Any factual areas examined on direct examination may be subject to cross examination, and expert opinions are also subject to attack.

d. Character

For mock trial purposes, evidence about the character of a party may not be introduced unless the person's character is an issue in the case. For example, whether one spouse has been unfaithful to another is a relevant issue in a civil trial for divorce but might not be in a criminal trial for larceny. Similarly, a person's violent temper may be relevant in a criminal trial for assault but might not be in a civil trial for breach of contract.

e. Refreshing Recollection

If a witness is unable to recall a statement made in the affidavit, or if the witness contradicts the affidavit, the attorney on direct may seek to introduce into evidence that portion of the affidavit that will help the witness to remember. (The same method may be employed on cross examination to attack a witness' ability to remember events.)

f. Redirect Examination

If the witness' credibility or reputation for truthfulness has been attacked on cross examination, the attorney whose witness has been damaged may wish to ask a few more questions. These questions should be limited to the damage the attorney thinks was done by the opposing attorney on cross examination and should be phrased so as to try to save or "rehabilitate" the witness's credibility. Redirect is not the time to try to address matters that have not been raised previously by either side.

2. Cross examination (questioning of the other side's witnesses)

a. Form of Questions

Cross examination of witnesses is a fundamental right that can rarely be abridged. In cross examining a witness, attorneys should use leading questions that are aimed at getting "yes" or "no" responses. [Note: This does not mean that witnesses necessarily are limited to these responses. There are times when witnesses will be permitted to explain their answer, provided they have first answered the question.] In general, attorneys should avoid asking questions to which they do not already know the answers. Examples of the proper phrasing of questions would be, "Isn't it a fact that..." or "On (date), when you made a statement in your attorney's office, you said that...didn't you?"

b. Scope of Witness Cross Examination

The scope of cross examination is fairly broad and may cover the subject matter of the direct examination, matters affecting the credibility of the witness, and additional matters, otherwise admissible, that were not covered on direct examination. The objectives of cross examination fall into two broad categories: 1) reducing the effect of direct examination (for example, by discrediting a witness); and, 2) developing independent evidence on behalf of your side.

Note: Many judges allow a broad interpretation of this rule.

c. Impeachment

During cross examination the attorney may want to show the court that the witness should not be believed. This process is called impeaching the witness and may be accomplished in three ways:

· by asking the witness questions about prior conduct that lessen his or her credibility

Example: "Is it true that the defendant once denied you a promotion?"

· by asking the witness about evidence of certain types of criminal convictions of the witness 

· by introducing the witness' statement, and asking the witness whether s/he has contradicted some portion of it

Example: "Is this your written statement here, the one in which you stated that you were indifferent to people's social conduct?"

Note: These types of questions may be used only when the questioning attorney has information that indicates that the conduct actually happened.

d. Recross Examination

If the opposing attorney has exercised her/his option for redirection of her/his witness, an attorney who has cross examined the witness may chose to recross that witness. The scope of the recross is limited to the area(s) covered during the redirect examination.

ADDITIONAL RULES OF EVIDENCE

1. Hearsay

a. Hearsay is defined as any evidence of an out-of-court statement made by someone other than the witness testifying, which is offered to provide the truth of a fact, to verify the testimony of any witness, or to authenticate a piece of evidence. Simply put, the court does not want to rely on second-hand statements, and hearsay is often a statement where the witness says, "I heard so-and-so say..." Hearsay is not permitted.

Example: Ms. Witness says, "Someone told me that Kevin likes to date older women."

b. Though hearsay is not allowed at a trial, a judge may sometimes allow it if:

· It was said by a party in the case and contains evidence which goes against his side (i.e., in a burglary case, the defendant bragged to someone that he stole the money). This is sometimes called the "admission against interest exception"; it is allowed because people do not usually say things that might be damaging to themselves unless they are true.

· A person's state of mind is an important part of the case and the hearsay consists of evidence which described that particular person's state of mind. This is sometimes called the "state of mind exception".

Example: John said he knew he could push the speedometer past its limit, which substantiates his intention to speed.

2. Opinions of Witnesses

a. As a general rule, witnesses may not give opinions. Certain witnesses who have special knowledge or qualifications may be qualified as "experts". An expert must be qualified by the attorney for the party for which the expert is testifying; this means that before an expert can be asked an expert opinion, the questioning attorney must bring out the expert's qualifications and experience.

Note: For mock trial purposes, opposing counsel may not voire dire the potential expert.

b. All witnesses may offer opinions based on the common experience of lay persons in the community and of which the witnesses have firsthand knowledge.

Example: "I know she partied a lot." (allowed) "I don't think she could handle the liquor." (This is not allowed unless made by an expert in the field of psychology or mental health.)

c. No witness may give an opinion about how the case should be decided. This is called the "ultimate issue" question.

Example: "Ms. Witness, would you say that the defendant was unable to tell the truth?" (Not allowed.)

3. Lack of Personal Knowledge

a. A witness may not testify to any matter of which the witness has no personal knowledge, unless the witness asked for an opinion is an expert who has been qualified as such.

Example: If a teacher never supervised a student, she cannot testify that the student was not well-prepared when she went into school.

4. Relevance of Evidence

a. Generally, only relevant testimony and evidence may be presented. This means that the only physical evidence and testimony allowed is that which tends to make a fact which is important to the case more or less probable than the fact would be without the evidence. However, if the relevant evidence is unfairly prejudicial, may confuse the issues, or is a waste of time, it may be excluded by the court. This may include testimony, pieces of evidence, and demonstrations that have no direct bearing on the issues of the case or have nothing to do with making the issues clearer.

Example: The defense asks, "Mr. Police Officer, to your knowledge, was the defendant dating anyone during the time in question?" (This is irrelevant unless the status of her social life is relevant to the case at issue.)

5. Introduction of Physical Evidence

a. Physical evidence (objects/documents) must be relevant and authentic (shown to be what they appear to be) in order to be admissible. This year, for mock trial purposes, all exhibits contained in the case materials have been stipulated as authentic and should not be altered to give either side an unfair advantage. This means that the document is what it claims to be and need not be authenticated through witness testimony. However, exhibits are generally presented to the court through witness testimony and may be objected to on grounds other than authenticity.

Example:

Attorney: Your Honor, we have marked this one-page document as Prosecution/Plaintiff Exhibit 1 (or Defense Exhibit A). Let the record reflect that I am showing Prosecution's/ Plaintiff's Exhibit 1 (or Defense's Exhibit A) to opposing counsel. (Exhibit is shown to opposing counsel.) Your Honor, may I Approach the witness?

The Court: You may.

Attorney: Witness X, I am showing you what has been marked as Prosecution's/Plaintiff's

Exhibit 1. Do you recognize that exhibit?

Witness: Yes.

Attorney: Could you explain for the court what it is?

Witness: It is a map of the accident scene. (At this point the attorney may ask the witness any

additional relevant questions about the exhibit, and then give it to the judge.)

Note: Generally, no attorney or witness may read from an exhibit until it is identified and admitted into evidence by the court. However, on cross examination only, any document made or prepared by the witness who is being examined may be used for purposes of impeachment or cross examination without having been admitted into evidence. Even here, though, the attorney should solicit identification information from the witness (i.e. "Do you recall making a statement to the police?" "Is this your signature?" "Were you under oath to tell the truth when you made this statement?"). Also show the document to opposing counsel.

OBJECTIONS

1. VIOLATING THE RULES OF EVIDENCE

a. An attorney can object at any time that opposing attorneys have violated the rules of evidence. The attorney wishing to object should stand up and do so at the time of violation, before the witness has a chance to respond.

Note: Timing is important here. You want to allow the opposing attorney to complete her/his question but prevent the witness from responding. It is important to stand as you address the court to make your objection.

b. If a witness responds to an objectionable question, or if the question is appropriate but the response is objectionable, make a motion to "strike the testimony". When an objection is made, the judge sometimes will ask the reason for it. Then the judge will turn to the attorney who asked the question, and that attorney usually will have a chance to explain why the objection should be overruled by the judge. The judge will then decide whether a question or answer must be discarded, because it has violated a rule of evidence ("Objection sustained"), or whether to allow the question or answer to remain on the trial record ("Objection overruled").

2. STANDARD OBJECTIONS

a. Irrelevant evidence: "I object, your Honor. This testimony is irrelevant to the facts of this case."

b. Leading question: "Objection, counsel is leading the witness." (Only on direct examination.)

c. Improper character testimony: "Objection. The witness' character or reputation has not been put at issue." "Objection. Only the witness' reputation/character for truthfulness is at issue."

d. Narration: "I move to strike, your Honor. The witness is responding in a narrative manner."

e. Beyond the scope of direct examination: "Objection. Counsel is asking the witness about matters that did not come up in direct examination." (Remember, judges often broadly interpret this rule.)

f. Hearsay: "Objection. Counsel's question (or the witness' answer) is based on hearsay." (If the witness makes a statement of hearsay, the attorney should also say, "...and I ask that the statement be stricken from the record.")

g. Opinion: "Objection. Counsel is asking the witness to give an opinion."

h. Lack of personal knowledge: "Objection. The witness has no personal knowledge that would enable her/him to answer this question."

i. Non-Responsive Answer: A witness' answer is objectionable if it fails to respond to the question asked. "Your Honor, I move to strike the witness' answer as non-responsive and ask that s/he be instructed to answer the question asked."

j. Assuming Facts Not in Evidence: An attorney shall not ask questions that assume unproved or unentered facts. Remember, just because something is in the Handbook doesn’t mean that it is known to the court or that it is usable as evidence. "Objection. Counsel’s question assumes facts not in evidence."