Before Mock Trial

What are the 11 Basic Steps in a Trial? (11)

1. Court is called to order

2. Opening Statements (FIRST by the Prosecution. THEN by the Defense)

3. Direct Examination of the Prosecution witnesses. 

4. Cross Examination of those witnesses by the Defense.

(NOTE: Direct & Cross examination happens one witness at a time until the Prosecution runs out of witnesses. i.e. direct, cross, direct cross, etc.)

5. Prosecution Rests Their Case

6. Direct Examination of the Defense witnesses. 

7. Cross Examination of those witnesses by the Prosecution.

8. Defense Rests Their Case 

9. Closing Statements (FIRST by the Prosecution. THEN by the Defense. THEN Rebuttal by the Prosecution if desired).

10. Jury Instructions

11. The Verdict is announced

Describe Direct Questions (3)

1) Open-Ended Questions

2) Friendly

3) Your job is to help the witness tell THEIR story

What are examples of Direct Questions? (2)

1) What did you have for breakfast this morning?

2) What’s your favorite subject in school?

Describe Cross Examination Questions (5)

1) Close-Ended questions

2) Not so friendly

3) Your job is to challenge their story and tell YOUR version (AKA the story that best helps your client)

4) Tend to be LEADING questions (a question that LEADS a person to a desired response)

5) NOT ALLOWED ON DIRECT EXAMINATION

What are examples of Cross Examination Questions? (2)

1) You had eggs for breakfast, correct?

2) Isn’t it true that Court Systems is your favorite class?

Define Rules of Evidence (2)

1) The rules and legal principles that govern the proof of facts in a legal proceeding

2) These rules determine what evidence must or must not be considered by trier of fact

What are the 6 steps to introducing evidence/exhibits? (6)

1) Tender (show) to opposing counsel

2) Ask judge for permission to approach the witness

3) Show exhibit to witness

4) Lay foundation/authenticate it

5) Offer exhibit into evidence

6) Ask the witness a question about the evidence

Define Objections

If you feel a witness or opposing counsel are violating the basic rules of evidence, you have the right to let the court know (you do this by objecting)

Define Leading Questions (2)

1) Lawyers CAN and SHOULD asked leading questions on Cross Examination ONLY

2) Leading questions are NOT allowed on Direct Examination

What are examples of Leading Questions?

“You were arrested for speeding, weren’t you?”

“Objection, Your Honor, counsel is asking a leading question.”

Define Narration (2)

1) When the witness provides more info than the question calls for

2) A good rule of thumb is answers should be completed within a sentence

What are examples of Narration?

“What did you do when you reached the front door?"

“I opened it and walked to the kitchen. I was afraid he was there. You know, he had been acting so strangely the day before…”

“Objection, Your Honor, narrative response.”

Define Hearsay (2)

1) Asking a witness about a statement made by someone else

2) Generally, second hand info is inadmissible in court

What are examples of Hearsay?

“Tom heard Gloria tell John that Sandy stole the money.”

“Objection, Your Honor, hearsay.”

Define Relevance

Questions and answers must relate to the subject matter of the case

What are examples of Relevance?

In a traffic accident case: “How many times were you married?”

“Objection, Your Honor, this question is irrelevant to the case.”

Define Badgering the Witness

Using a hostile tone of voice or asking the same question repeatedly

What are examples of Badgering the Witness?

“It was YOU that told him what to do, ADMIT IT!”

“Objection, Your Honor, counsel is badgering the witness.”

Define Opinion/Speculation

Only an expert witness can give opinions on info pertaining to their area expertise (police officers, doctors, engineers, ballistics experts, etc.)

What are examples of Opinion/Speculation?

“The doctor put my cast on wrong, and that’s why I have a limp.”

“Objection, Your Honor, the witness is not a medical expert.”

Define Beyond the Scope (of direct, cross, re-direct, re-cross, or mock trial rules) (4)

1) Only items discussed during direct examination can be addressed on cross

2) Same holds true for re-direct and re-cross

3) In mock trial, if someone embellishes info too far from the story, it might change the case entirely

4) Use this objection to keep the agreed upon info intact

Define Asked and Answered

When opposing counsel asks the same question over and over again (even if it’s in a little bit of a different way)

What are examples of Asked and Answered?

“Marvin told you he was going to do it, didn’t he?

“But he told you he was going to do it.”

“So Marvin was the one that said it?”

“Objection, Your Honor, this question has been asked and answered.”

Define Non-Responsive Answer

When a witness fails to answer the question offered

What are examples of Non-Responsive Answer?

“Were you late to work that day?”

Witness replies, “Oh! That was the day it was raining.”

“Objection, Your Honor, non-responsive.”

Define Compound Question

Asking more than a single question at a time

What are examples of Compound Question?

“Did you drive to her house on Saturday while talking on the phone to Martha?”

“Objection, Your Honor, that’s a compound question.”

Define Counsel Testifying (2)

1) Attorneys may not give testimony or make statements during questioning

2) All evidence must be developed in the form of a question

What are examples of Counsel Testifying?

“Didn’t you state in your affidavit that Jane was going to her mother’s house with Steve instead of the zoo?”

“Objection, Your Honor, counsel is testifying.”

Not every ____ needs a response… sometimes you can just ___ the question or go a different ____.

objection; restate; direction

Attorneys may use numerous additional objection than ones mentioned in class. True or False?

True

What should you do if a witness lies on stand?

You impeach them!

How would you know if a witness is lying?

Because you have their witness affidavit in front of you while they testify

What are steps to impeach a witness? (4)

1) Confirm - reiterate their inaccurate statement

2) Clue - “Do you remember giving a sworn statement? Were you under oath when you gave it? Your Honor, permission to approach the witness?”

3) Credit - “Do you recognize this? Is this your sworn statement? Is that your signature?”

4) Confront - “Let me ask you again…” (repeat your original question and allow the witness to answer correctly)

Your ____ will be the first thing the jury hears from you.

Opening Statements

During direct examination, all of the jury’s focus should be on the ____ and not on the ___.

witness; lawyer

Define Vague Question

Incomprehensible, incomplete, or answer will be ambigious

Define Argumentative Question

Asks the witness to accept the examiner’s summary, inference, or conclusion rather than a fact

Define Assuming Facts Not In Evidence

Contains as a predicate a statement of fact not proven

Define Unfair Prejudice

Probative value is outweighed by the danger of unfair prejudice

Define Improper Character Evidence

Character evidence cannot be used to prove a person acted in conformity with his/her character

Define Lack of Personal Knowledge (3)

1) Witnesses (other than experts) must testify from personal knowledge - sensory perception

2) A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter

3) Evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony

Define Improper Lay Opinion

Lay witnesses cannot testify as to opinions, conclusions or inferences

Define Authenticity

Exhibits must be authenticated before they may be admitted

Define Best Evidence

Copies or secondary evidence of writings cannot be admitted into evidence unless the absence of the original can be explained (duplicates that accurately reproduce the original are acceptable)

Define Privilege

Excludes otherwise admissible evidence because of special relationship (attorney/client, doctor/patient, marital, clergy, etc.)

What are the 3 steps to take when making an objection? (3)

1) Stand

2) State the Grounds (no speaking the objections)

3) Wait for a response from the judge

What are 4 steps to take when responding to an objection?

1) Requesting argument - politely let the judge know argument

2) Limited admissibility - what is the precise purpose of admission

3) Conditional offer - production of additional evidence at a later point

4) No response - rephrase the question

(J) Types of questions allowed during direct examination.

Open-end or non-leading questions

(J) Purpose of direct examination

Using open-ended questions to allow the witness to tell their story

(J) A lawyer should avoid using big words or multiple facts in a single question

Keep testimony clear and understandable for the jury

(J) When the witness forgets to mention a critical fact in testimony.

Listen carefully and circle back to with a follow-up question

(J) Two strategies for addressing weaknesses in a witness’s testimony.

“taking the sting out” during direct and prepping the witness for cross

(J) This objection on direct stops a question that implies the answer.

Leading

(J) When a question asks multiple things at once, you object by saying this.

Compound

(J) This objection is used when an answer is too long and off-topic.

Narrative

(J) When an attorney argues their case within a question.

Argumentative

(J) This objection is used when a witness or question calls for an out of court statement offered for the truth of the matter.

Hearsay

(J) The purpose of an opening statement is to do this, and not to argue.

Preview or tell the story of the case

(J) The one of the three essential parts of an opening in addition to the factual theory, legal theory, and this.

Emotional theme

(J) The plaintiff/prosecution opening should state who is suing/accusing whom and for this reason.

Why we are here today

(J) This party in opening reminds the jury of the opposing party’s burden of proof in the case.

Defense

(J) Each side should ask for this in their opening statement.

Ask for the verdict you are seeking from the jury

(J) Before showing an exhibit to a witness, you must first do this with opposing counsel.

Tender the exhibit

(J) The process of proving that an exhibit is real is called this.

Authentication

(J) After laying foundation, you must do this to officially use the exhibit.

Offer it into evidence

(J) A copy can be used in place of an original only under this rule.

Best Evidence Rule

(J) What is the full six-step process to introduce an exhibit in trial?

Tender, ask to approach, show witness, lay foundation, offer into evidence, question about it

(J) These are the first and last main parts of any trial.

Opening statements and closing arguments

(J) Following direct examination, opposing counsel may do this.

Cross-examination

(J) After the defense closing argument, the prosecution/plaintiff attorney may do this.

Rebuttal

Attorneys must do this in court when addressing the judge or objecting?

Standing to speak, object, or respond

(J) Questions are limited to topics asked by opposing counsel in the immediately preceding examination.

Staying within scope

(J) What kind of questions dominate cross-examination

Leading questions

(J) What must you avoid asking on cross unless you already know the answer?

Open-ended question

(J) What is the four-step process to impeach a witness?

Confrim, clue, credit, confront

(J) The best words to use in a good cross-examination question?

Words taken exactly from the witness’s fact statement

(J) What is the best strategy to control an evasive (avoiding) witness?

Asks short, fact-based questions and repeat them firmly