Mock Trial Procedures
You and the Law
There are 2 sides:
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Prosecution
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Responsible for proving beyond a reasonable
doubt that the accused committed the crime.
Defense
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Responsible for finding their client not guilty
for the crime they are being charged with.
Burden of proof!
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Reasonable Doubt
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The prosecution has a burden.
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Their job is harder than the defense.
The burden is called, “Beyond a reasonable doubt.”
Therefore, the defense just has to create doubt!
So how do they do it?
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The trial:
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Opening Statements
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Prosecution goes first.
Defense goes second.
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The trial
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Why do you think the Prosecution gets/has to go first?
Direct examinations
Cross examinations
Closing Statements
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Prosecution, then defense
Rebuttal by Prosecution. (offering a contrary argument)
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Why do they get a rebuttal?
Opening Statements
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Imagine a movie preview.
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Always phrased, “We are going to show you
that…” or “We will prove that” or “You are
going to see…”
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Give the jury an idea of what is coming.
Never phrase it, “We already showed you”, or “This
person did this…”
Why? They haven’t seen the movie yet!
3 minutes long
Examinations
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Prosecution gets to direct examine their witnesses
first.
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Direct Examination:
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Example of what’s right:
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Example of what’s wrong:
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Isn’t it true that you loaded the gun the night before you killed
your husband?
The witness has to tell the entire story.
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Tell us where you were on the night of… or What happened after
you went to your locker? Then what did you do?
The attorney may not “Lead” the witness in any way/shape/form
to the answer.
Rule of thumb: If the answer is yes/no, then you cannot ask the
question in Direct Examination
Examinations
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Cross Examination:
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This is a hostile examination. One side’s attorney
against the other side’s witness.
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They are from opposite teams.
After the direct examination, the witness stays on the
stand, and the cross-examiner approaches.
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Control the witness!!! Always ask them to answer all questions
with a yes/no unless asked otherwise.
Examples of what is okay: almost anything!
As long as you are controlling the witness, leading and nonleading questions are OK.
Examinations
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Re-Direct – If you still have time, then the
direct examiner may re-approach and
clarify anything brought up in the crossexam. Nothing new.
Re-Cross – same as Re-direct…must have
time remaining.
Objections:
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Sometimes an attorney is breaking the rules:
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You need to protect your witness and your case.
Only the attorney responsible for the witness on the
stand may object…nobody else on the attorney teams!!!
Judge can either
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Sustain (says it’s a good objection and doesn’t allow
the question to be answered) or
Overrule (says it’s a bad objection, that question
should be answered.)
Objections
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Leading
Argumentative
Badgering
Speculation
Foundation
Hearsay
First-hand knowledge
Ultimate Issue
Asked and answered
Outside the Scope
Leading
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Can only be used when a direct examination
is happening.
Asking yes/no questions
Stating a question that has the answer built
in to it so the witness just has to confirm the
attorney is correct or incorrect.
Examples
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What did you have for lunch?
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Not leading
You had a chicken ceasar salad for lunch,
didn’t you?
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Leading
Examples
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Isn’t it true, you have no siblings?
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OK in a cross examination
How many siblings do you have?
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This is what you would ask in a direct
examination
Argumentative/Badgering
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Arguing with the witness.
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Did you do this? “No.” Are you sure you didn’t
do this? “Yes.” Positive you didn’t do this?
“Yes.” You did this, why aren’t you
admitting to it?!?
Badgering
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Arguing with attitude.
Speculation & Foundation
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Speculation – Asking the witness to try and guess at what
might have happened if circumstances were different.
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“Let’s say you went home instead…do you think…” or “What do
you think might have happened if…”
Foundation – Only happens on Direct examinations. This is
a big one
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If the attorney has not established foundation for a question, they
cannot ask it.
Example: First question of the direct exam, “So when you were at
the party…who did you see drinking alcohol?
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It hasn’t been established that there was a party, with drinking at it,
and the witness was actually at that party and saw people drinking.
All of that must be established first.
Hearsay/First-hand knowledge
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Asking questions that the witness doesn’t know
from first-hand experience is not allowed.
Was Jeshuan drinking that night?
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“Well, I heard (“Objection! Hearsay.”) that he was
drinking.”
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“Yes.”
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So was he?
How do you know?
“I heard from Susie”
Ultimate Issue
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Cannot ask, straight up, with no foundation,
“Did you commit this crime?” to the
defendant.
That’s the ultimate issue everyone is here
trying to solve.
EX: the defendant’s mental state
Asked and answered
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Sometimes an attorney will ask the same
question over and over again.
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You killed him? Yes
So you really killed him? Yes
Like shot him in the face and he died? Yes
Outside the Scope
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Questions asked that do not pertain to the
packet/trial.
Can also be called an “Irrelevant Question”
Establishing a witness as an expert
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Only one type of witness may actually speculate
and that is an “expert” witness.
But they must be established as an expert during
the direct examination.
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What are your credentials? Witness lists his/her
background/academic credentials.
Your honor, I’d like to establish this witness as an
expert in his/her field.
Judge: “Are there any objections from the
prosecution/defense”?
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If none – the witness is declared an expert by the judge and
they may now speculate on certain things.
The rule of 3
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You want the jury to hear important things
3 times!
But what objection does this sound like?
Closing statements
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Typically written as the trial is progressing.
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The attorney giving the closing will know what
his/her side will be proving and attempting to
prove so they can write some of it before the
trial.
The end
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After the closing, the jury is sent out to
deliberate the verdict.