So you are the DEFENCE LAWYER
Duties: The Defence lawyer’s job is to protect the rights of the accused. The
Defence does not have to prove anything, so generally you would not have to call
any witnesses. (It is the right of the accused to remain silent.) However, in this
mock trial, all witnesses must be called.
Strategy notes: How to be a Defence Lawyer in a mock trial:
1.
a)
Before you begin, you will need to think about the following ideas:
Who are you?
• When you play one of the roles in a mock trial, you need to know as
much as you can about WHO that character is. Imagine what it feels like
to be a Defence lawyer. What would a Defence lawyer wear to court? How
would s/he walk into the courtroom? How would s/he speak? What kind of
language would s/he use?
• There are many ways to study your role. You may find someone who is
a defence lawyer to tell you what it's like. Practice your role. Try to BE that
role.
b)
What is important in a trial?
• An accused is innocent until proven guilty. Think about this idea. Talk
about it with your classmates and teacher. What does it really mean?
How would a trial be different if we didn’t believe in this idea? Keep
this idea in mind throughout the trial.
c)
What happens in a trial?
• A trial is a formal event. Your teacher has the materials, which outline the
correct steps for holding a trial. Make sure you know what the steps are
and why they happen before you begin trial.
2.
a)
Know the law and the case.
Read the indictment. It will tell you what crime the police believe has been
committed as well as when and where they believe it was
committed. It will also tell you who has been accused of committing the
crime. Finally the indictment lists the witnesses the Crown intends to call.
Read the indictment lists the witnesses the Crown intends to call.
b)
Read the applicable law. Pick out all the elements so you know what the
Crown must prove about the law.
c)
Talk to the witnesses and find out the following information:
ƒ What happened?
ƒ Where?
ƒ When (date and time)?
ƒ Who was at the scene of the crime?
ƒ
Did the act show any other qualities necessary to fulfill the
elements of the crime: for example, intention?
Remember that the Crown has to prove these facts as well as all the
elements of the crime set out in the law.
d)
When you interview your witnesses, practice asking questions so that they
relax and are able to tell their accounts of the crime. Remember that you
may not ask them any leading questions in direct examination during the
trial.
3.
a)
Anticipate your opposition:
Your first task in protecting the rights of the accused during the trial is to
be prepared to question witnesses that the Crown calls. Place yourself in
the Crown prosecutor’s shoes and ask yourself what points he will try to
make. Be ready to question the witnesses on points where they disagree
with each other. This questioning is called cross-examination.
• Your job in cross-examination is to show any disagreements
among the witnesses and to bring out any further evidence
concerning the case. Therefore, you will ask questions to
pinpoint the information, which you want made clear. For
this, you may use questions like:
Was the traffic light red?
Did the thief have curly hair?
Could the falling snow have impaired your vision?
• Be careful not to harass the witness because that will only
confuse the witness and may influence the judge against you
or your case.
b)
Never ask a question unless you know what the answer is. You
may receive a statement that defeats your case.
c)
Each lawyer has a responsibility to see that the evidence is presented
correctly. Thus, if you think the Crown prosecutor is not following the rules
of evidence you should object to the questions. For example, you may
make the following objections:
“Objection, your Honour. The question is irrelevant” (It has
no meaning in regards to thematter.)
“Objection, your Honour. That evidence is hearsay.”
(Recounting of someone else’s experiences.)
“Objection, your Honour. Counsel is asking for an opinion
this witness is not qualified to give.”
“Objection, your Honour. Counsel is leading his witness.”
(Asking questions improperly.)
“Objection, your Honour. Counsel is harassing the witness.”
(Pursuing a point unnecessarily in cross-examination.)
Once Counsel objects to a question, the judge stops the examination and
may ask the examining Counsel to explain why he is pursuing that line of
questioning. The judge then makes a decision as to whether the objection
is to be overruled or sustained. If the objection is overruled, the examining
lawyer may continue; if it is sustained, he must withdraw the question. At
the trial the judge’s word is final. The ruling on an objection may be
grounds for an appeal to a higher court.
c)
If the Crown enters exhibits you should check to be sure they are entered.
Exhibits must be entered according to the following procedure:
ƒ A witness must identify them.
ƒ The witness must tell the court what his/her connection with
the item is.
ƒ Then the witness must account for how the exhibit has been
handled since it was found. (If more than one person has
handled it, they all must testify.)
ƒ Once the witness has shown these things, the lawyer asks
that the item be entered as an exhibit (number 1, 2, 3).
ƒ The judge asks if there are any objections.
ƒ If there are no objections, the item is given to the clerk.
ƒ The clerk puts a level on the item. The date and ‘Exhibit 1’
(2, 3, etc) are put on the label.
ƒ The clerk then shows the item to the judge.
ƒ The clerk keeps the item on the table.
NOTE: to establish the chain of control of the item all the witnesses who
handled the exhibit must testify.
4.
a)
PLAN HOW TO GET YOUR INFORMATION INTO COURT
Opening statement (Defence Counsel)
i) Purpose: to deny that the Crown has a valid cause; and, in a
general way, to outline the facts from the standpoint of the
defendant. Objections by Crown are not permitted.
ii) Give: your name and your colleague’s name. General theory of
defence. Facts that tend to weaken the Crown’s case.
iii) Avoid: repetition of facts that are not in dispute. A run-down of
what each witness will testify to. Exaggeration and argument.
Strong points of the Crown’s case. Walking or pacing – it distracts
and irritates the judges.
b)
After you have planned your strategy for cross-examination, you must
call witnesses. Although the accused normally has the right to remain
silent, all Defence witnesses are to be called for the purposes of this
mock trial enactment. Since you will be calling the accused, you will
probably want to call him/her as the first defence witness.
c)
Lawyers must follow rules of evidence so that a fair trial ensues. You must
plan your strategy within these rules.
•
No leading questions of witnesses during direct examination.
A witness must tell what happened without any prompting. You may
ask what happened, but you may not ask questions, which give away
what answer you want.
Correct: Tell us what you saw.
Incorrect: Did you see the green truck hit the red car?
Correct: What happened next?
Incorrect: Did he hit him then?
Correct: How fast was the car travelling?
Incorrect: Would you say that the car was travelling at 100
km/hour?
•
No hearsay:
You may only ask your witness about those things which s/he saw or
experienced. A witness may not talk about things s/he has been told
by someone else.
Correct: I saw five cats in Mrs. Smith’s kitchen.
Incorrect: Joan told me Mrs. Smith has five cats.
•
No opinion:
You may not ask your witness’ opinion about things other than
common knowledge unless s/he is an expert in the field. For
example, an average citizen can give an opinion about the speed of a
car, or the height of a person. However, only an expert, an auto
mechanic for example, could give an opinion about the condition of
the brake linings in a car.
5.
a)
PREPARE YOUR SUMMATION
Be sure you tell the judge how you have proven your case. The Crown
must prove:
The date
The place
That the crime was committed
That the accused is the culprit
That all the elements of the crime have been fulfilled
NOTE: The ‘elements’ of the crime are all the little acts that go to make up the
final complete transaction or crime. The Crown must prove all these things to a
certainty beyond a reasonable doubt. If the Crown has failed to prove any of
these things you should point that out to the judge.
b)
If the Crown has failed to prove any of these things you should point that
out to the judge.