Mock Trial Coaching Materials

Fall 2007 Advanced Mock Trial Problem (PDF)
Photos used in the problem (PDF)

Coaching Packet
Table of Contents - (or you can download this document)

Basics
Structure of the Competition
Irving Younger's Ten Commandments of Cross Examination
Evidence Overview (view Prof. Glenn Roque-Jackson's Powerpoint)
Objections
Objection & Response Examples
Entering Evidence
Motion Examples
Supplemental Procedures
Scoring Sheet for Mock Trial

Basics

Always address the judge as "your Honor." Stand up anytime you have ANYTHING to say to the judge, including announcing you are ready, or that your side rests, etc. When the other side objects to something you did, ask the judge if you may respond before you start explaining why the objection should be overruled. Do not get into an argument with the opposing counselor the judge. Keep your table organized during the trial. When your teammate is opening or closing, you should pay attention to him or her and also to the jury. When the opposing counsel is opening or closing, do not focus on them but rather you should take notes (even if they are unimportant notes). Avoid talking to your co-counsel during the trial. Write each other notes. One way to organize all of the stuff for this competition is to use a 3-ring notebook and tabs. This is only a suggestion. Make sure you get your witness as soon as possible so that you can go over the questions you will be asking that witness. Your team is responsible for qettinq 2 witnesses for each round. Also one team will be responsible for providing a bailiff to track time. After your round, return your room to the same condition it was in when you started.

These competitions require the use of the Federal Rules of Evidence and Procedure. Remember: These competitions are about form OVER substance.

Structure of the Competition

Competition Time Line:

  1. Housekeeping: 2-3 minutes per side
  2. Opening Statement 5 minutes per side
  3. Direct & Cross Examinations: 30 minutes total per side Example time break down [Using the P's case]
    1. Direct of P's Witness # 1: 7 minutes.
    2. Direct of P's Witness # 2: 9 minutes You may also want to redirect your witnesses so keep that in mind when dividing your time.
    3. Cross of Def's Witness # 1: 8 minutes
    4. Cross of Def's Witness # 2: 6 minutes *** PLEASE KEEP IN MIND: THIS IS JUST AN EXAMPLE! ***
  4. Directed verdicts: 2-3 minutes
  5. Closing Argument 15 minutes per side (FYI: the P may reserve 3 minutes for rebuttal).

Housekeeping:

The time when you take care of preliminary issues of the round. (Advanced Competitions: also use this time for your Motions in Limine (NOT to be used in 1L Competitions)) The plaintiff or the prosecution will always have the first chance to make requests. If you are the defense, then do not repeat the requests made by the plaintiff or the prosecution.

Examples of housekeeping items:
  1. Ask the judge if you should address him or her as both judge and jury.
  2. Ask if you may have an arm's length to roam from the podium during your opening & closing.
  3. Ask if you may constructively approach the bench for sidebar conferences.
  4. Ask if you may constructively invoke Rule 615 of the Federal Rules of Evidence (aka as "The Rule"). The Rule requires that all witnesses other than the defendant wait outside the courtroom until called.
  5. Ask if the jury instructions may be constructively read prior to closing arguments.
  6. Ask if you may take a 5-minute recess after the plaintiff closes its case-in-chief. If you ask for something & it is granted, then remember to take advantage of your request.

Opening Statement:

The time when you introduce your side & your case. WARNING: This is not the time to be argumentative. Always begin with "May it please the Court? Counsel? Ladies & Gentlemen of the Jury?"

Hints:
  1. Introduce yourself, your co-counsel, and the party you are representing.
  2. Pick a theme - the theme will describe your case. You should spend some time explaining & analogizing it to the facts in the case. It should be simple so that it will be an attention grabber & make the case easier to understand.
  3. Give the factual background of the case. WARNING: you need to "hedge" your statements with phrases such as:
    • "You will likely hear that..."
    • "We expect the evidence will show..."
  4. Explain the burden of proof & the elements of the crime or cause of action. .. Explain to the jury how they are to weigh the evidence & discuss the burden of proof. .. Examples: Beyond a reasonable doubt, clear & convincing evidence, preponderance of the evidence
  5. Introduce the witness & how you expect they will testify .. If this is a criminal case, then you do NOT introduce the defendant or talk about the expected testimony of the defenda~nt. If you do then you would be violating the defendant's Fifth Amendment rights.
  6. Finally, ask the jury to find for your client. .

Direct Examination:

The time when you make your case. You should prepare your witness before the competition begins & definitely before you question them.

Preparations include:
  1. Make a list of the questions you plan to ask & also the desired responses. WARNING: The witnesses are not allowed to just make up answers. The answers to the questions you ask should come from the information you are given about that witness.
  2. You should divide your questions into subject areas. Your questions should follow in a logical order The witnesses are only allowed to take up the deposition or statement you provide them (which comes from your competition packet), but not any lists of questions. The witness may highlight the deposition or statement but may not write on the copy you provide. You should advise your witness not to be too uncooperative or to lie. This hurts you. They may make reasonable inferences that relate to the information given to all competitors.
  3. You may want to put page numbers next to the questions where the answers may be found in case you need to refresh the witness's recollection during the examination. You may refresh your witness's memory during the examination. You should ask your witness open-ended questions. This will allow your witness to expand on your question. WARNING: you may NOT ask leading questions on direct examinations. Here are some questions to get you started:
    1. "Could you please tell us your name?"
    2. "And where do you live?"
    3. "What is your occupation?"
    4. "How do you know _______?"
    5. "What is your relation to _____?"

Cross Examination:

The time when you examine the opposing counsel's witnesses. You should organize your questions prior to beginning the examination. The goal is make three points with your questions. These question's should be leading that require "yes" or "no" answers. Sometimes a witness will not answer your question with yes or no & will ramble an answer. If that happens, then You may cut off the witness; thank the witness for his or her answer. If you are still unable to get the answer, then you may say, "My question was _______" You may also object to the answer as being unresponsive & ask the judge to instruct the witness to answer the question directly. Sample Question: "You were at the supermarket at 6 p.m. that night, isn't that right?" See additional hints on cross-examination below.

Re-direct:

The time when you fix any bad things that may have happened during the cross examination of your witness. Only ask a few questions. It allows you to elaborate on the answers given in cross. You ask open-ended questions during re-direct.

Directed Verdicts:

A directed verdict gives the defense a chance to explain to the judge that the plaintiff's counsel has not carried its burden. If you're the plaintiff then you need to be prepared to show how you have carried your burden. The defense moves for a directed verdict after the close the plaintiff's case in chief. This is done pursuant to Fed. R. Crim. P. 29 or Fed. R. Civ. P. 50(a)(1). Make sure you ask the judge to excuse the jury before you argue the directed verdict. If the other side starts arguing a directed verdict before the jury is dismissed, then you should ask that the jury be excused & move for a mistrial.

Closing Argument:

Use the same theme that was used in your partner's opening. Talk about what the jury heard from the witnesses & the opposing counsel. WARNING: Don't talk about things that were not brought up in trial. Point out inconsistencies in testimony. Argue from the jury instructions & how the jury has/has not heard information that proves/disproves the elements of the crime or cause of action. Restate the burden of proof for the jury but use a different analogy or example than your co-counsel did in the opening. Again ask the jury to vote for your client. If you are the plaintiff or the prosecution then you will have an opportunity to speak again after the defense has finished its closing argument so remember to reserve some time.

Irving Younger's 10 Commandments of Cross Examination:

  1. Be brief, short, succinct.
  2. Use short questions, plain words.
  3. Never ask anything but a leading question on cross examination.
  4. Never ask a question to which you do not already know the answer.
  5. Listen to the answer.
  6. Don't quarrel with the witness.
  7. Don't give the witness the opportunity to repeathis or her direct testimony.
  8. Never permit the witness to explain anything on cross examination.
  9. Avoid the one question too many.
  10. Save the ultimate point for summation (closing argument).

Younger's Principles of Closing Argument on the Credibility of Witnesses:

  1. Be tactful.
  2. Be simple.
  3. Respect the intelligence of the jury.

Younger's View on the Purpose of Cross Examination on the Credibility of Witnesses:

You cross examine in order to get the ammunition you need to make your summation (closing argument) to the jury. And when you get it, you stop~ Stop~ Stop~

Evidence Overview

Understanding the Law of Evidence

  1. Purposes of Rules of Evidence
    1. To admit only relevant evidence.
    2. To admit only reliable evidence. Ex: The hearsay rules are derived from this principle.
    3. To sometimes exclude evidence that is both relevant and reliable, usually for one of two reasons:
      1. There is a potential to mislead the jury Example: character evidence is highly relevant and often reliable, but may cause the jury to focus on what type of person the party or witness is rathe,rthan on the events underlying this lawsuit.
      2. Public policy requires the exclusion. Example: privileges make certain information inadmissible to protect a relationship valued by society, such as husband-wife, physician-patient, attorney­client.
  2. Whether particular evidence is admissible may depend upon:
    1. For what purpose it is being offered.
    2. By whom it is being offered.
    3. What has already occurred.

Objections

  1. To exclude evidence offered by your opponent:
    1. State the objection as soon as you realize that objectionable evidence is being called for; that may mean objecting to the question without waiting for the answer. Once the objectionable evidence has been heard by the jury, it may be too late, even if you win your objection.
    2. Make the objection specific, e.g. "I object; the question calls for hearsay." You do not have to state a rule number, but you should give the grounds for your objection. Be prepared for the court to ask your opponent for a response to your objection, and be prepared to make your own argument in response to your opponent's response.
    3. Remember that in an adversary system, it is up to you, not to the judge, to keep out inadmissible evidence offered by your opponent. If you fail to object, you have waived your argument.
    4. Use objections strategically. Don't object to everything.
    5. Evidentiary rulings are often very difficult. The party who can make an articulate and well-reasoned objection, with reference to the appropriate rule of evidence, will be more likely to win.
  2. Possible responses to objections include:
    1. Sustained. The court agrees with the objection and the evidence is excluded. Do not get so caught up in your success that you fail to listen to your opponent. He/she may try to get the inadmissible evidence in in another way. If you don't object again when that happens, you have waived your right to object.
    2. Overruled. The court disagrees with the objection. The question can be asked or the witness can continue his/her testimony. If your objection is overruled, you may try to salvage the situation by:
      1. Asking for a limiting instruction
      2. Making a Rule 403 objection: Rule 403 allows the trial court to exclude otherwise admissible evidence if its probative value is substantially outweighed by the danger of unfair prejudice. Note: an objection based on the argument that the evidence is prejudicial is not a good one. 403 requires unfair prejudice and that the unfair prejudice outweighs the probative value.
    3. In rare instances, a court will postpone ruling to see what the witness will say or to see whether the objectionable evidence can be "linked up" to other evidence.
  3. Offer of proof:
    The rule:; reouire that you make an offer of proof to preserve an objection for puroposes of appeal.

Specific Rules

  1. Form and Scope of Examination
    1. Leading questions. A leading question is one that suggests the answer. Ledding questions are allowed on cross-examination, but not usually on direct examination.
    2. Cross-examination. The scope of cross-examination is limited to matters raised in direct examination.
    3. Court's discretion. The court has broad discretion regarding the mode and method of interrogation of witnesses.
  2. Relevance
    1. Only relevant evidence is admissible; irrelevant evidence is inadmissible. Because of the broad definition of relevance in the federal rules--evidence that makes the existence of a fact more or less likely than it would be without the evidence--relevance objections are rarely good ones.
    2. The rules specifically exclude some evidence that is relevant. The most complicated of these exclusions is character evidence (see below.) The others are subsequent remedia measures, existence of liability insurance, settlement offers (including plea bargain discussions), and, in certain cases, previous sexual conduct.
  3. Hearsay
    1. Purpose: Hearsay evidence is inadmissible because it is unreliable. The law of evidence requires three factors to insure reliability and evidence that meets the definition of hearsay is missing all three. They are:
      • witnesses must testify under oath;
      • the fact-finder has an opportunity to observe the demeanor of the witness at the time that he or she makes the statement;
      • and the witness is subject to cross-examination at the time the statement is made.
    2. Definition: Hearsay evidence is an out of court statement that is offered to prove the truth of the matter asserted. The "declarant" is the person who made the out-of-court statement. The rules define as non-hearsay evidence that would otherwise come within the definition. This includes some prior statements by the person testifying admission by party opponent.
    3. Exceptions: There are a number of exceptions to the hearsay rule, under which evidence that is hearsay is admissible anyway. Most of these exceptions are based on something about the circumstances under which the statement was made that makes the evidence reliable even though the traditional guarantees of reliability are not present. They include:
      • present sense impression
      • excited utterance-
      • then existing mental, emotional, or physical condition
      • statements for purposes of medical diagnosis or treatment
      • recorded recollection
      • records of regularly conducted activity (business records)
      • public records and reports
      • learned treatises
      • statement against interest (not to be confused with an admission by a party-opponent)
      • former testimony
      • dying declarations
      • statement of personal or familyhistory
        Note: some of these exceptions apply only if the proponent first shows that the declarant is unavailable to testify.
    4. There are two important things to remember about hearsay evidence:
      1. The exclusion is only to the form of the evidence, but not to the underlying evidence. You may be able to get in the information through another means--a different witness; a document, etc.
      2. The definition of hearsay requires that the statement be offered for the truth of the matter asserted. If it is offered for some other purpose, it is not excluded by the hearsay rules because evidence may be inadmissible for one purpose but admissible for another. Therefore, be creative about other purposes for which the evidence can be offered.
  4. Character Evidence
    1. Definition: Evidence of a person's character or of a person's character trait is not admissible if offered to prove that he/she acted in conformity with that character on the occasion in question. Character evidence is relevant, but is excluded because of a concern that the jury will find against someone of bad character or for someone of good character because of who they are rather than because of proof of the underlying events creating or preventing liability.
    2. Exceptions. The exceptions to the prohibition of character evidence depend upon who is offering the evidence and at what point in the trial the evidence is being offered. They include: a. In criminal cases, evidence of character of the defendant can be offered by the defendant. If it is, then the prosecution can offer character evidence to rebut that offered by the defendant. The prosecution cannot offer such evidence in its case­in-chief, however.
      1. In criminal cases, evidence of a pertinent character trait of a victim of the defendant may be offered by the defendant. If it is, then the prosecution can offer character evidence to rebut that offered by the defendant. The prosecution cannot offer such evidence in its case-in-chief, however.
      2. In a homicide case, if the defendant puts on evidence that the victim was the first aggressor, then the prosecution may put on evidence of the victim's character for peacefulness.
      3. There is a special exception for proving the character for truthfulness or untruthfulness of any witness. 607-609.
    3. Form of evidence. When character evidence is admissible, it may come in in the form of reputation or opinion evidence. Specific instances of conduct cannot be used to prove character but may be used to cross-examine a character witness or to prove character when character is in issue (rare instances).
    4. Other crimes, wrongs,or acts. The rules set out a list of permissible purposes for which character evidence, in the form of specific conduct, may be offered. Those are motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Habit evidence, as opposed to character evidence, is admissible to show actions in conformity.
  5. Privileges
    Certain infoffi1ation is inadmissible under the Federal Rules of Evidence because society values the relationship that is the source of the information. Therefore, for policy reasons, relevant and reliable information is excluded in order to protect the underlying relationship. Particular privileges are not set out in the Federal Rules; if the case is in federal court on diversity, state law determines the applicable privilege. Privileges can be waived by consent of the holder of the privilege or by failure to object.
  6. Opinion Evidence
    1. Lay witnesses:
      Witnesses who are not expert cannot offer opinions except they are rationally based on the perceptions of the witness and are helpful to a clear understanding of his testimony'. (Ex: a lay witness can testify that someone appeared to be intoxicated,) In most instances, lay witnesses are to testify as to facts, based on their personal knowledge, rather than as to opinions about what those facts mean. The fact-finder (judge or jury) is to decide what conclusions should be drawn from the facts.
    2. Expert witnesses:
      Witnesses who are experts by knowledge, skill, experience, , training, or knowledge can offer opinions based on their scientific, technical, or otherwise specialized knowledge, if the expert knowledge will assist the trier of fact to understand the evidence or to make fact-findings. The Supreme Court's decision in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) sets out criteria by which the trial judge can determine the reliability, and therefore the admissibility, of expert evidence. The proponent of the expert evidence will need to qualify the witness as an expert before allov/ing the expert to offer his/her opinion. The expert witness may rely on hearsay evidence as a basis for his/her opinion.
  7. Documents and other Tangible Items
    Documents and other tangible items must be authenticated by proof that they are what they purport to be. Some items are self-authenticating. Note: authentication is not sufficient. The items must meet other rules for admissibility. A tangible item should be marked for identification purposes. After the proper foundation for authenticating the document has been made, the item should be offered into evidence.
  8. Impeachment of Witnesses
    Witnesses can be impeached by one of two methods:
    1. Contradictory evidence--offered through other witnesses or through documentary evidence.
    2. Cross-examination. Questions asked on cross-examination can be used to impeach the witness by attacking his/her credibility. Evidence that is inadmissible for other purposes may be admissible when the purpose is impeachment. Witnesses 'vvhohave been impeached may be rehabilitated through testimony of other witnesses or through re-direct examination.

Enterinq Evidence

Evidence should be used for a reason, It should be used to prove, demonstrate, or explain something. The witness should use the piece of evidence by pointing or explaining.
This is the proper procedure you should use to enter in evidence:

Obiections

When you make an objection, it must be timely and appropriate before the judge will consider granting it. You should object forcefully by standing up and before the witness has finished answering the question. You should always state your legal basis for the objection.

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