Criminal Trial Advocacy Handbook...

LAW & ADVOCACY NATIONAL STUDENT LEADERSHIP CONFERENCE

Criminal Trial Advocacy Handbook i

Criminal Trial Advocacy Handbook

National Student Leadership Conference Law & Advocacy

© 2012 NSLC


Criminal Trial Advocacy Handbook ii

Copyright © 2012 by National Student Leadership Conference. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or any information storage and retrieval system, without permission in writing from the publisher. Printed in the United States of America.


Criminal Trial Advocacy Handbook 1

Table of Contents

Chapter 1: The American Judicial System .................................................................. 3 State and Federal Courts .......................................................................................... 5 Judicial Levels: Trial and Appellate ........................................................................ 5 United States District Courts ................................................................................... 7 United States Courts of Appeals .............................................................................. 9 Criminal and Civil Cases ....................................................................................... 10 Types of Law: Statutory and Case ......................................................................... 10

Chapter 2: Fundamentals of the Trial ........................................................................ 11

The “Parties” of the Case ....................................................................................... 13 The Role of the Attorney ....................................................................................... 13 The Role of the Jury .............................................................................................. 14 The Judge ............................................................................................................... 14 The Charges ........................................................................................................... 14 Motions .................................................................................................................. 14 The Burden of Proof .............................................................................................. 15 Layout of the Courtroom ....................................................................................... 16

Chapter 3: Preparing for Trial .................................................................................... 17

Discovery ............................................................................................................... 19 Narrowing the Issues ............................................................................................. 19

Chapter 4: Elements of Criminal Trial Procedure .................................................... 21

Pre-Trial Motions ................................................................................................... 23 Jury Selections ....................................................................................................... 23 Opening Statements ............................................................................................... 24 Prosecution’s Case in Chief ................................................................................... 24 Directed Verdict ..................................................................................................... 25 Defense’s Case in Chief ......................................................................................... 25 Jury Instruction Conference ................................................................................... 26 Closing Argument .................................................................................................. 26 Jury Deliberations & Returning the Verdict .......................................................... 26 Sentencing Phase ................................................................................................... 27 Appeal .................................................................................................................... 27

Chapter 5: Homicide Laws: Murder and Manslaughter .......................................... 29

Understanding the Statutes .................................................................................... 31 Defenses ................................................................................................................. 32 Homicide Statutes .................................................................................................. 33 Legal Briefs ........................................................................................................... 36

Freddo v. State ........................................................................................... 36 United States v. Fleming ............................................................................ 38

Homicide Problems ............................................................................................... 40



Chapter 6: The Federal Rules of Evidence .................................................................43 General Provisions .................................................................................................45 Presumptions in Civil Actions and Proceedings ....................................................46 Relevancy and Its Limits .......................................................................................46 Witnesses ...............................................................................................................48 Opinions and Expert Testimony ............................................................................51 Hearsay ..................................................................................................................52 Authentication and Identification ..........................................................................55 Contents of Writings, Recordings, Photographs ....................................................56

Chapter 7: Practice Problems ......................................................................................57

Theory of the Case .................................................................................................59 Opening Argument.................................................................................................60 Introduction of Physical Evidence .........................................................................62 Direct Examinations ...............................................................................................64 Cross-Examinations ...............................................................................................67 Closing Arguments ................................................................................................69

Chapter 8: The NSLC Mock Trial Handbook ...........................................................73

Preparing Your Case ..............................................................................................75 The Opening Statement..........................................................................................82 Direct Examinations ...............................................................................................86 Entering and Using Physical Evidence ..................................................................90 Cross-Examinations ...............................................................................................94 Offers of Proof .......................................................................................................96 Impeaching a Witness on Cross-Examination .......................................................97 Objections and Offers of Proof ..............................................................................99 The Closing Argument .........................................................................................103 Courtroom Decorum ............................................................................................106

Chapter 9: The Law & Advocacy Trial Notebook ...................................................109 Theory/Theme ......................................................................................................111 My Side’s Witnesses ............................................................................................115 Opposing Side’s Witnesses ..................................................................................126 Physical Evidence and Stipulated Facts ...............................................................133 Why and How I Can Improve My Case ...............................................................137 Problems with My Case .......................................................................................139 Problems with Opposing Side’s Case ..................................................................141 Notes ....................................................................................................................143

Chapter 10: Useful Documents ..................................................................................151

Mock Trial Time Limits .......................................................................................153 Time Cards ...........................................................................................................154 Witness Selection Form .......................................................................................163 Common Legal Terms .........................................................................................165



The American Judicial System There isn’t one single court system in America; instead, each state has its own court system to handle cases involving disputes or crimes within that state. The federal government also has a court system that is responsible for handling cases involving disputes governed by federal laws or the Constitution. Within the state and federal judicial branches, the two basic categories are trial and appellate courts. There are also different types of law, as well as a system of judicial ethics that all attorneys and judges are expected to follow. This chapter describes in detail the intricacies of the American judicial system.

• State and Federal Courts • Judicial Levels: Trial and Appellate

• United States District Courts • United States Courts of Appeals

• Criminal and Civil Cases • Judicial Ethics • Types of Law: Statutory and Common Law

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State and Federal Courts Every state has its own judicial branch. These courts handle 95% of court cases in the United States – those involving disputes arising under state laws. While every state court system is unique (states differ widely in how they organize their courts), the basic fundamental rules and principles apply in all courts. Some states have as many as fifty different types of courts; some as few as two. The federal court system, which handles cases addressing a violation of the Constitution, federal laws, or disputes over interstate contracts with damages over $75,000, accounts for only 5% of all the cases tried in the United States. Included in the federal court level are: U.S. District Courts (see page 30), the Court of International Trade, Claims Court, the Circuit Courts of Appeal (see page 32), the Court of Appeals for the Federal Circuit and the Supreme Court.

Judicial Levels: Trial and Appellate

There are two levels in the judicial system: trial courts and appellate courts. The trial court is sometimes called a “lower court” but it would be a mistake to downplay its importance. It is in the trial court where the facts are heard by either a judge (bench trial) or a jury. It is here that witnesses testify, exhibits are introduced and credibility is judged. The trial courts are where cases begin. In the federal system, they are called district courts. In individual states, they are referred to as circuit courts or superior courts. Trial judges make rulings on what evidence will be admitted and what laws will apply. It is at the trial level where the parties present facts to either a judge or a jury to determine their rights, guilt, liability or responsibility. The judge and jury determine what the facts are, who they are going to believe and the damages to be assessed. In most criminal cases it is the judge who determines a convicted defendant’s sentence. In capital cases it may be the jury who determines the sentence. There are two special trial courts: the Court of International Trade, which handles cases involving international trade and customs disputes, and the United States Court of Federal Claims, which addresses money damages against the U.S. and disputes over federal contracts. If a party feels that justice was not served by the trial court’s decision, they may appeal the ruling; they do so by petitioning to the appellate court to review their case. It is important to note that a trial court decision cannot be appealed simply because the losing side is dissatisfied with the ruling; the petitioner must prove that the ruling was somehow biased, unjust or unconstitutional. Appellate courts usually include a panel of at least three judges (most often more). In a court of appeals, there is no presentation of witnesses or physical evidence. The final judgment is determined by a majority of the panel of appellate judges; juries are never called upon at the appellate level.



Most states and the federal courts have two levels of appellate courts: an intermediate court of appeals and the Supreme Court. An intermediate court of appeals handles all or most of the appeals from the trial courts in the state or federal system. A Supreme Court is the final court of appeal. In total, there are 94 federal judicial districts; each is organized into one of 12 regional circuit courts, which handle appeals within that circuit. The following flow chart shows the progression of cases from the trial to the appellate level.

The U.S. District Courts and U.S. Courts of Appeals are listed in detail on the following three pages.

State Trial Courts County, District or Superior Courts.

Handle state laws only.

U.S. District Courts 94. Handle: federal statutes, U.S. Constitution, interstate conflicts.

TRIAL LEVELS

APPELLATE LEVELS

U.S. Supreme Court Highest court in the land. Power of judicial review.

State Supreme Court Final court of appeals for cases

addressing only state laws. U.S. Circuit Court of Appeals Each state and district belongs to a

circuit. There are 12 of these courts.

State Court of Appeals Exist in 40 states as first court of appeal (10 only have Supreme).



United States District Courts

State

District

Authorized Judgeships

Location

Alabama Northern district Middle district Southern district

7 3 3

Birmingham, AL Montgomery, AL Mobile, AL

Alaska 3 Anchorage, AK Arizona 9 Phoenix, AZ Arkansas Eastern district

Western district 5 3

Little Rock, AR Fort Smith, AR

California Northern district Eastern district Central district Southern district

14 6

27 8

San Francisco, CA Sacramento, CA Los Angeles, CA San Diego, CA

Colorado 7 Denver, CO Connecticut 8 New Haven, CT Delaware 4 Wilmington, DE District of Columbia

15

Washington, DC

Florida Northern district Middle district Southern district

4 11 17

Tallahassee, FL Jacksonville, FL Miami, FL

Georgia Northern district Middle district Southern district

11 4 3

Atlanta, GA Macon, GA Savannah, GA

Guam 1 Agana, GU Hawaii 3 Honolulu, HI Idaho 2 Boise, ID Illinois Northern district

Southern district Central district

22 3 3

Chicago, IL East St. Louis, IL Springfield, IL

Indiana Northern district Southern district

5 5

South Bend, IN Indianapolis, IN

Iowa Northern district Southern district

2 3

Cedar Rapids, IA Des Moines, IA

Kansas 5 Wichita, KS Kentucky Eastern district


Lexington, KY Louisville, KY

Louisiana Eastern district Middle district Western district

13 2 7

New Orleans, LA Baton Rouge, LA Shreveport, LA

Maine 3 Portland, ME Maryland 10 Baltimore, MD Massachusetts 13 Boston, MA Michigan Eastern district


Detroit, MI Grand Rapids, MI

Minnesota 7 St. Paul, MN Mississippi Northern district

Southern district 3 6

Oxford, MS Jackson, MS

Missouri Eastern district Western district

6 5

St. Louis, MO Kansas City, MO



State

District


Location

Montana 3 Billings, MO Nebraska 3 Omaha, NE Nevada 5 Las Vegas, NV New Hampshire 3 Concord, NH New Jersey 17 Newark, NJ New Mexico 6 Albuquerque, NM New York Northern district

Eastern district Southern district Western district

4 15 28 4

Syracuse, NY Brooklyn, NY New York, NY Buffalo, NY

North Carolina Eastern district Middle district Western district

4 4 3

Raleigh, NC Greensboro, NC Asheville, NC

North Dakota 2 Bismarck, ND N. Mariana Islands 1 Saipan, N. Mar. I Ohio Northern district

Southern district 11 8

Cleveland, OH Columbus, OH

Oklahoma Northern district Eastern district Western district

3 1 6

Tulsa, OK Muskogee, OK Oklahoma City, OK

Oregon 6 Portland, OR Pennsylvania Eastern district

Middle district Western district

22 6

10

Philadelphia, PA Scranton, PA Pittsburgh, PA

Puerto Rico 7 Hato Rey, PR Rhode Island 3 Providence, RI South Carolina 10 Columbia, SC South Dakota 3 Sioux Falls, SD Tennessee Eastern district

Middle district Western district

5 4 5

Knoxville, TN Nashville, TN Memphis, TN

Texas Northern district Southern district Eastern district Western district

12 19 7

11

Dallas, TX Houston, TX Tyler, TX San Antonio, TX

Utah 5 Salt Lake City, UT Vermont 2 Burlington, VT Virgin Islands 2 St. Thomas, V.I. Virginia Eastern district


Alexandria, VA Roanoke, VA

Washington Eastern district Western district

4 7

Spokane, WA Seattle, WA

West Virginia Northern district Southern district

3 5

Elkins, WV Charleston, WV

Wisconsin Eastern district Western district

5 2

Milwaukee, WI Madison, WI

Wyoming 3 Cheyenne, WY



United States Courts of Appeals

Court of Appeals

Districts Included In Circuit


Location

Federal Circuit United States 12 Washington, DC District of Columbia Circuit

District of Columbia

12

Washington, DC

First Circuit Maine Rhode Island Massachusetts Puerto Rico New Hampshire

6

Boston, MA

Second Circuit Connecticut New York Vermont

13

New York, NY

Third Circuit Delaware Pennsylvania New Jersey Virgin Islands

14

Philadelphia, PA

Fourth Circuit Maryland Virginia North Carolina West Virginia South Carolina

15

Richmond, VA

Fifth Circuit Louisiana Mississippi Texas

17

New Orleans, LA

Sixth Circuit Ohio Michigan Kentucky Tennessee

16

Cincinnati, OH

Seventh Circuit Illinois Indiana Wisconsin

11

Chicago, IL

Eighth Circuit Arkansas Nebraska Iowa North Dakota Minnesota South Dakota Missouri

11

St. Louis, MO

Ninth Circuit Alaska Nevada Arizona Oregon California Washington Hawaii Guam Idaho Montana N. Mariana Islands

28

San Francisco, CA

Tenth Circuit Colorado Oklahoma Kansas Utah New Mexico Wyoming

12

Denver, CO

Eleventh Circuit Alabama Florida Georgia

12

Atlanta, GA



Criminal and Civil Cases There are two basic types of cases that are brought to trial: criminal cases and civil cases. While there are similarities in the manner in which both criminal and civil trials are conducted, there are some very distinct differences. When there is a violation of a statute, a law which imposes a penalty of either a fine or the potential of going to jail, a crime has been committed: any charges brought of this nature are done so in a criminal trial. There are three types of crimes: traffic crimes, which are violations of the road; misdemeanors, which are crimes in which you may be sentenced to supervision, probation or up to a year in jail; and felonies, which are crimes in which you may be sentenced to probation or more than a year in jail. Congress and state legislatures are responsible for determining what constitutes a crime. Many states have established juvenile courts which hear cases involving individuals under a certain age who are charged with a crime. These courts have been established with the belief that juveniles need different services, and to have them intermingled with adult offenders is not in their best interest. Civil cases, on the other hand, are suits where a disagreement has arisen, and at least one party is seeking some type of relief from the court.

Types of Law: Statutory and Case There are two types of law: statutory law and case law. Statutory laws are those written by state legislatures and by Congress. Case law is the law that has developed through the years by court opinions by appellate and supreme courts in deciding certain cases. It is binding law until it is changed by either the legislature or a later court opinion. Only appellate courts and the Supreme Court have the ability to establish case law. Trial judges are bound by case law already handed down by appellate and supreme courts; case law is also referred to as precedent.



Fundamentals of the Trial

In order to be an effective trial attorney it is essential to learn the fundamentals of trial advocacy. This chapter will outline how a trial is conducted, what a courtroom looks like, the difference between a criminal and civil trial, as well as the roles of people essential to conducting a fair trial.

• The Parties of the Case • The Role of the Attorney • The Role of the Jury • The Judge • The Charges • Motions • The Burden of Proof • Layout of the Courtroom

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The Parties of the Case Once a determination is made that either a crime has been committed or an individual wants to be compensated for a wrong, the matter has to be brought to the court. It is done formally with the filing of papers. This is called the Complaint. Lawsuits are brought by individual citizens; in civil cases they are called plaintiffs. In a criminal case, the case or charge may only be brought by the prosecution, which is the office of the federal, state or local government which is bringing charges against an individual or individuals for committing a crime. The government’s attorney is called the District Attorney, State’s Attorney, U.S. Attorney, or Attorney General. Anyone charged with a crime is the defendant. They are represented either by an attorney they hire to represent them; if they are unable to afford counsel, an attorney (usually called the Public Defender) will be appointed to represent them.

The Role of the Attorney The American judicial system is one of advocacy: the act of advancing a specific position. The role of an attorney is to protect the interests and rights of their clients. In order to practice law, one must be certified as an attorney. Attorneys must graduate from law school, where they receive their Juris Doctor (JD) degree; they must also pass the bar exam in the state where they will be trying the case.

At the trial court level, attorneys prepare and file motions, present witnesses and argue before juries. At the appellate level, they prepare and file written briefs and argue the case to the justices hearing the appeal. It is important that attorneys are knowledgeable on both statutory and case law, and have a complete understanding not only of the case, but also the applicable statutes and precedent that may affect the court’s ruling. In many instances, their work begins long before a case is argued in the courthouse. The decision whether to file a case, what to file and how to proceed are all decisions made by lawyers. The gathering of evidence, organizing of witnesses and researching the law are



done outside of the courthouse. The research and organization of a case before the filing or arguing begins is crucial for success in the courtroom.

The Role of the Jury

Juries are present in both civil and criminal cases. They are comprised of a group of American citizens summoned to appear in court. While state laws dictate the number of jurors that serve, there are typically between 6 and 12 people. As instructed by the judge, it is the jury’s job to determine the guilt of the parties, the weight of evidence, the credibility of witnesses and often the sentencing of the convicted.

The Judge

The judge is responsible for ensuring that justice is served in his/her courtroom. Judges wield extensive authority and discretion in the cases over which they preside, and should be treated with the utmost respect in their courtroom. Anyone addressing the judge (or the Court) is expected to stand while speaking and to ask permission before proceeding on questioning or approaching the bench or a witness.

The Charges

Charges are brought by either an indictment or after a preliminary hearing. An indictment is the name given a formal charge after the prosecution brings evidence before a grand jury. Grand juries are citizens who will hear a very short summary of the evidence presented by the prosecution in a private proceeding. Their job is to determine if there is sufficient evidence to make the defendant appear before a court for trial. A preliminary hearing occurs before a judge: the prosecution presents an abbreviated form of the evidence they have, and the defendant is presented. Attorneys for the defense are able to question any witnesses presented by the prosecution, and if they so choose, present evidence. The prosecution only has to show the court there is sufficient evidence to charge the defendant, not necessarily sufficient evidence to convict someone. It is important to remember the indictment or finding after a preliminary hearing is merely the way a defendant is formally charged with committing a crime, and is not evidence that a crime was committed.

Motions A motion is a request by one party that the court order the other side to do something; not do something; or have the court rule on certain evidence.



The Burden of Proof How much evidence is a party required to present so they will win their case? What are the standards the jury or the judge sitting without a jury use in determining who should prevail? This is referred to as the burden of proof. The party who brought the suit will have the burden. In civil cases, the plaintiff has the burden; in criminal cases, the prosecution has the burden. The scales of justice are often used as a visual aid to describe what is needed to meet the burden. At the beginning of a case the scales are even on both sides. Determining whether or not a burden has been met is viewed after the introduction of evidence and is shown by whether the scales are tipped in favor of one side or another. In a civil case, the plaintiff must prove his case by a preponderance of the evidence; that is, it is more likely than not that the defendant is at fault. To visualize what this burden means, think of the scales of justice as having to be tipped in favor of the plaintiff by a feather, but not necessarily all the way to one side. In criminal cases, the prosecution must prove beyond a reasonable doubt that the defendant is guilty of the crimes for which he is being tried. To visualize what this burden means, think of the scales of justice as having been tipped in favor of the prosecution by a brick, to the point of touching the base on which the scales rest. If one small bit of the defendant’s evidence has any reasonable merit, the prosecution has not met its burden. This is an outgrowth of the constitutional presumption of innocence that every defendant has until a verdict is rendered. The burden of proof must always be kept in mind by all parties, whether it is a criminal or civil case. The prosecution and plaintiff must take every step possible to show that there is enough evidence to meet the burden, and the defense must fight with equal fervor to show that there is insufficient evidence; the defense may also wish to show there is information that actually vindicates the defendant. Remember, in a criminal trial the defendant DOES NOT HAVE A BURDEN to prove his innocence; he must only show that there exists some reasonable doubt. It is because of this burden that the plaintiff and the prosecution go first in presenting evidence, and as you will learn later, have the last word in closing arguments.



Layout of the Courtroom

Observation Area

Prosecution / Plaintiff Defense / Defendant

Jury Box

Court Clerk

Judge’s Bench

Witness Stand

Lecturn

The “Well”

Attorneys and judges alike treat the courtroom with reverence. There are several rules, written and unwritten, which attorneys must follow if they hope to remain in the good graces of the judge. Among these are the importance of the layout and the areas of the court that an attorney can enter. Contrary to what television courtroom dramas imply, the area of the court in front of the counsel table (the well) is an area that lawyers may only enter with permission from the judge. In reality, the witness’s space is to be well-respected and rarely entered. Good attorneys know how to use the layout of a courtroom to their advantage and understand the individual judge’s preferences about where attorneys should be during various elements of trial.



Preparing for Trial

It is often said that one of the best ways to avoid going to trial is to get ready for trial: the more prepared you are, the better you will know your case and the better position you will be in to try to settle the matter outside of the courtroom. Often, your level of preparation can have a psychological effect on the other side. The Trial Notebook provided to you by the NSLC will be extremely helpful in organizing your case and preparing your witnesses (for further preparation and organization, refer to Chapter 9 of this text: NSLC Mock Trial Guide). In addition to organization and preparation, there are also some court formalities which this chapter explains.

• Discovery • Narrowing the Issues

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Discovery Once the case proceeds to court, you do not go to trial immediately. Attorneys start a process called discovery: the process in which information is given to the other side about the evidence you have to support your case. Discovery is very different in civil and criminal cases.

Civil Discovery In civil cases, both parties have the right to request that the other answer written questions under oath; these are called interrogatories. They will ask what documents exist; who their witnesses are; what damages they claim; as well as background information. The interrogatories usually request the names and addresses of witnesses, background information of the plaintiff or defendant, names and addresses of treating physicians, what type of damages are claimed, what it is the plaintiff thinks the defendant did wrong or what affirmative defenses the defendant is going to claim. Each party may then question the opposing party and their witnesses at a deposition: a questioning by a party or a witness by an attorney in front of a court reporter and the attorney for the opposing party. The purpose is to find out what that witness will say at trial and may even lead to other evidence. Information and questions may be asked at a deposition that would not be allowed at trial. Another aspect of discovery is document production. A party may request the opposing party to produce medical reports, lost wage statements, letters, repair estimates and any document that is relevant to the case. This includes information stored on computers. It is the discovery process that can cause delays before a case is ready to go to trial. This happens when there are experts retained by a party who needs to review the material or examine the plaintiff or the place of the accident before they can render an opinion. An expert is an individual who because of special training or experience in a certain field is able to render an opinion as to some fact in issue in the case. A physician may testify that the way the plaintiff fell on a slippery floor caused the injuries; a medical examiner can testify as to the cause of death in a murder case. After the expert’s opinion is given to the opposing party, the opposing party is given a chance to take the expert’s deposition and then retain its own expert. If a party does not comply with discovery requests, motions may be brought before the judge to order compliance or sanction the non-complying party. Sanctions can include fines, payment of the other side’s attorney’s fees, exclusion of certain evidence, or, in extreme cases, being precluded from introducing any evidence. Judges prefer attorneys to work out their discovery differences between themselves.

Criminal Discovery In criminal cases the discovery requirements are not the same for both parties. The requirements for the prosecution are much greater since the prosecution has the burden of proof. As the defendant has a presumption of innocence and cannot be made to testify



against herself, she does not have to give the prosecution information that will help convict her. The prosecution has to tender the names and addresses of their witnesses, along with reports, statements, physical evidence and information concerning expert testimony. The prosecution may obtain the name and address of all defense witnesses, as well as any experts’ reports and may only request information concerning an affirmative defense, such as an alibi or insanity. Then the defendant would have to disclose information concerning where she is claiming to have been at the time of the incident or the nature of her mental disease or defect. Usually there are no depositions in criminal cases. This is changing somewhat in capital cases, where depositions are being allowed under certain circumstances. Criminal attorneys do have the right to interview witnesses to learn what their testimony will assert, but they cannot require the witness to talk to them as civil attorneys can through a deposition.

Narrowing the Issues When an attorney is first presented a case, she must review the law and outline the elements of the criminal charge or the cause of action. In analyzing the case the attorney needs to focus on what issues are being contested. In a murder case, are you contesting that someone died? How they died? Who caused the death? In an auto accident are you contesting there was an accident? Who caused the accident? The injuries claimed by the plaintiff? Judges want you to do this so they and the jury can focus on what is really at issue and not waste time hearing evidence about which both sides agree. This is also important for the attorney to develop a theory of the case, which we will discuss later. Once you narrow the issues, you can then concentrate on organizing your evidence for proving or disproving. It will also allow the attorney to determine if it is possible to enter into settlement negotiations. Negotiations are important in both criminal and civil cases. Trials are expensive, both financially and emotionally, for those involved. There are times when it is in the best interest of everyone to reach a settlement. Settlements by definition are compromises, meaning that neither side is declared the winner or the loser. There are instances in which settlement is not possible due to the nature of the case or the position of the parties. When that occurs, it is necessary to proceed to trial. In criminal cases the defendant has the right to a jury until it is waived. While in most states the prosecution may not request a jury, in federal criminal cases the prosecution does retain this right.



Elements of Criminal Trial Procedure This chapter details the basic elements of a criminal trial. Depending on the type of crime committed and the jurisdiction in which the case is being tried, many more elements may be added. Note: Because of the time constraints in the NSLC Mock Trial, we will not be engaging in pre-trial motions, jury selection or jury instruction. However, a real criminal trial will include all of these elements.

• Pretrial Motions • Jury Selection • Opening Statements • Prosecution’s Case in Chief • Directed Verdict • Defense’s Case in Chief • Jury Instruction Conference • Closing Arguments • Jury Deliberations and Returning the Verdict • Sentencing Phase • Appeal

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Pretrial Motions

Pretrial motions may be called by either side before the jury is called into the courtroom and questioned as prospective jurors. Many of these motions can be made before the case is even set for trial. Some pretrial motions are routine and some are very specific as to the facts in the particular case. The most common is a Motion for Discovery, where the prosecution is required to disclose certain information they have, as to who their witnesses are, the physical evidence, any statements, any expert reports, and any evidence which might exculpate the defendant. The defense may be required to disclose their potential witnesses, any expert witness reports, affirmative defenses they may introduce and physical evidence they may introduce. Motions to Suppress are filed by the defense, which claims a violation of the defendant’s rights in obtaining either physical evidence or statements. They may require a hearing so the judge may hear evidence to make a determination as to whether or not the prosecution may use the contested evidence. Motions to Determine the Fitness of the Defendant to Stand Trial may be filed by either party if there is a question as to whether or not the defendant understands the charges and is capable of aiding his attorney in preparing the case. This would require an evaluation by an expert and a hearing to determine if the defendant may stand trial. Motions in Limine may be filed by both sides, usually on the eve of trial. The purpose is to have the trial judge rule as to whether or not the opposing side may mention facts, or permit a witness to mention certain facts. The facts which are subject to a Motion in Limine are often highly prejudicial and of questionable admissibility. They may contain information that is extremely damaging to the moving party’s case. An example is a prior criminal conviction or evidence not relevant to guilt or innocence in this case but potentially inflammatory (such as child pornography found in the car of a defendant who is charged with the murder of his wife). The moving attorney’s objective is to prevent the information from being brought before the jury. Any mention of evidence excluded in a motion in limine is cause for an immediate mistrial. This is a common mistake among new lawyers and have a devastating effect on not only a case, but a career.

Jury Selection Juries are composed of citizens who live in the jurisdiction in which the trial is being heard. How a jury is selected (including the questions asked of potential jurors) is called Voir Dire , which comes from the French phrase “to see to speak. A group of prospective jurors is brought to the courtroom, and they are sworn in to answer all questions honestly. The judge will usually ask the jurors general questions: do they know any of the people involved; do they have any pending lawsuits; have they served as jurors before? Then, each attorney will be able to ask certain questions. The attorney for the burden bearer (prosecution, or plaintiff) will have an opportunity to question each juror first, then the attorney for the



defendant. Their questions are designed to elicit any biases and/or prejudices that the individual may have which would affect their ability to be fair and impartial. For example, if the case at hand deals with driving while under the influence of alcohol, both sides would ask how each prospective juror feels toward that issue. If one of the prospective jurors feels the law is too stringent as to what constitutes driving under the influence, the prosecution may want that individual excused. If another of the prospective jurors had a family member killed by a drunk driver, the defense may want that individual excused. Jurors are excused from serving on a jury by either a challenge for cause or a peremptory challenge. A challenge for cause occurs when there is an obvious bias/ prejudice that would prevent that individual from being fair and impartial. It may also occur for medical reasons. There is no limit on the number of challenges for cause either side may make. Each attorney is given a limited number of peremptory challenges, which is a challenge they may make without giving a reason. As with most rules there is an exception to this. If it appears that either side is excusing potential jurors due to the jurors’ race, religion, gender or national origin, they may be required to give a basis for excusing the jurors.

Opening Statements Once the jury is selected, the trial is ready to proceed. The opening statement is the attorney’s opportunity to tell the jury the story of the case as he sees it. In this statement, the attorney discusses the issues in dispute and tells the jury who will testify and what they can expect to hear and see during the trial. Since the prosecution has the burden of proof, they give their opening statement first. Please note that the prosecution must limit their statements to what evidence they will be presenting during trial, as the presumption of innocence does not require the defendant to put on a defense. The defense has an opportunity to give an opening statement at this time; in some jurisdictions, they may wait until the start of their case in chief. Remember, this is an opening statement not an argument, an argument is not appropriate at this stage in the game.

Prosecution’s Case in Chief Following the opening statements, the prosecution has the opportunity to present its evidence to the jury. They will call individuals to the witness stand who will describe facts of the case that are favorable to the prosecution’s theories and explain physical evidence. This is called direct examination. The facts that the prosecution presents at this stage of the trial must establish evidence of each element of the crime that is charged. It is called establishing a prima facie case. This means that by the end of the prosecution’s case, a jury of reasonable people could find the defendant guilty beyond a reasonable doubt. After each witness is questioned by the prosecution on direct examination, the defense is given the opportunity to question the witness; this is called cross-examination. The defense attorney will use this opportunity to bring out information favorable to the defense, show



bias of a witness, or inconsistencies of the witnesses’ statements. This is called impeaching, or discrediting, a witness. After the prosecution has called all of their witnesses and introduced all of their exhibits, they will rest their case.

Directed Verdict After the prosecution rests, the defense will usually move for what is called a directed verdict. This, in essence, is an appeal by the defense to the judge during which the defense argues that the prosecution has not presented evidence to establish each element of the cause of action. The defense argues that the prosecution did not present a prima facie case (a case which presents evidence that a reasonable person could find establishes each element). If the judge agrees with the defense, he/she grants the motion for a directed verdict and finds the defendant not guilty. That is the end of the trial. In most cases, the motion for a directed verdict is denied and the defense proceeds with its case in chief. One of the quickest ways to insure a directed verdict is for the prosecution to fail to have any of its witnesses identify the defendant. If the defendant is never identified by anyone, the prosecution may have provided evidence of a crime, but they have provided no evidence that establishes that it was the defendant who committed the crime. The jury can only deliberate on the evidence presented in court. It would be a waste of time for the defense to present its entire case if the prosecution had not presented any evidence of the defendant’s involvement in the crime.

Defense’s Case in Chief Because the burden of proof lies with the prosecution, the defense is not required to put forth any evidence or call any witnesses. Unless a directed verdict is granted, however, it is generally wise for the defense to present its version of the facts to the jury. The defense will call witnesses to the stand who will present evidence rebutting or contradicting the evidence presented by the prosecution. These witnesses may also present evidence of what is called an affirmative defense. Self-defense is an example of an affirmative defense. When the defense chooses to assert an affirmative defense, the burden of proof then shifts to the defense. In some jurisdictions, it becomes the defense’s responsibility to prove the affirmative defense beyond a reasonable doubt; in others they just need to present sufficient evidence to raise the issue. In those jurisdictions the state must then prove the affirmative defense did not exist beyond a reasonable doubt. Similar to the prosecution’s case in chief, each witness’s testimony is presented through direct examination by the defense. The prosecution is then given the opportunity to cross-examine the witness in order to discredit him or elicit favorable testimony. Once the defense has called all of its witnesses, it will rest.



Jury Instruction Conference Once both sides have rested, the judge will meet outside the presence of the jury to discuss what instructions of law will be given to the jury to guide them in making their findings of fact. The instructions are written statements of the law the judge will read to the jury prior to their beginning deliberations. The jury instructions include general statements as to the law and specific statements as to the elements of the crime being charged. For example, the judge will instruct the jury that the defendant is presumed innocent until proven guilty; that the jury will determine the credibility of the witnesses; and that to find the defendant guilty they must find certain facts beyond a reasonable doubt. The jury will also be given verdict forms. These are forms which state what the jury’s verdict is, and it has places for the signatures of all twelve jurors. The prosecution and defense will present to the judge their versions of what instructions should be given to the jury. It is at this conference that the judge rules on which instructions will be given. This is done prior to closing argument so the attorneys may refer to the instructions in their closing argument. The jury is given a copy of the instructions to take into the jury room during deliberations.

Closing Arguments This is the attorneys’ final opportunity to speak with the members of the jury before they go to deliberate. This is the time for the attorney to tell the jurors what they have seen and heard throughout the course of the trial. It is the attorneys’ opportunity to argue how the facts and evidence presented during the trial support their version of what happened and prove or do not prove the elements of the crime as set forth in the jury instructions. The prosecution, as the party bringing the action before the court, is permitted to go first. The defense is then permitted to argue. Since the prosecution has the burden of proof, they are given the opportunity to rebut the argument presented by the defense and briefly restate why they have met their burden.

Jury Deliberations and Returning the Verdict This means just what it says. Once the closing arguments are complete, the jury goes back to the deliberating room with all of the evidence that has been admitted during the course of the trial and attempts to reach a verdict. In all criminal cases, the verdict must be unanimous. Once a verdict is reached, the jury returns and the foreperson reads the verdict to the court for the record. If a unanimous verdict cannot be reached after a reasonable amount of time has been spent in deliberation, the jury is declared to be “hung.” This does not mean that the defendant goes free; it means the prosecution has the option of retrying the case with a new jury that may be more successful in reaching a decision.



Sentencing Phase If the defendant is found guilty of any crime, the trial proceeds to the sentencing phase. Prior to that, the defense will file any post-trial motions in which they allege any errors they feel were committed during the trial by either the introduction of certain evidence, refusal to allow certain evidence or that new evidence has come to light. If after a hearing these motions are denied, the defendant will be sentenced. In most cases sentencing is done by the judge. In death penalty cases sentencing may be by judge or jury. If a jury hears the sentencing phase, this hearing is usually done separately from what is called the guilt phase (determination if defendant is guilty or not). This is called a bifurcated trial.

Appeal In a criminal case, if the defendant is found guilty, she may file a notice of appeal to the appellate court to have a review of the findings by the trial court. In civil cases, either side may appeal.



Homicide Laws: Murder and Manslaughter The NSLC mock trial is a murder trial. The first step in preparing for court is developing an understanding of relevant laws. Crimes are statute specific, which means each crime is defined by statute. Thus, to be convicted, the defendant must have done what is stated in the law, not something similar or close to what is stated. This chapter will help you understand the appropriate homicide statutes for your mock trial; the homicide problems will help you develop your legal reasoning skills.

• Understanding the Statutes • Defenses • Homicide Statutes • Legal Briefs

• Freddo v. State (1913) • United States v. Fleming (1984)

• Homicide Problems

5



Understanding the Statutes

HOMICIDE is the killing of one human being by another human being. JUSTIFIABLE or EXCUSABLE HOMICIDES are those which are authorized by law (imposition of the death penalty), or those in which the circumstances do not justify infliction of full punishment (self-defense, accident). MURDER is the killing of a human being without lawful justification.

FIRST DEGREE MURDER or CAPITAL MURDER A person who kills an individual without lawful justification commits first degree murder if in performing the acts which cause the death:

(a) he either intends to kill the individual or another, or knows that such acts will cause death to that individual or another; or (b) he knows that such acts create a strong probability of death or great bodily harm to that individual or another; or

(c) he is attempting or committing a forcible felony.

First degree murder includes intent to kill, intent to commit a forcible felony, or an awareness of a high risk of death. It is this intent which causes the sentence to be more severe. If certain conditions are met after a conviction for first degree murder, a defendant may be subject to the death penalty, natural life in prison without possibility of parole, an extensive parole or an extensive prison term. Many states have minimum sentences a defendant must serve if convicted of first degree murder.

Forcible felonies include: armed robbery; robbery; burglary; rape; kidnapping; arson; escape; and aggravated battery.

SECOND DEGREE MURDER or VOLUNTARY MANSLAUGHTER A person commits the offense of second degree murder when he commits the offense of first degree murder as defined in paragraphs (a) or (b) above, and either of the following mitigating factors are present:

(1) At the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by the individual killed, or by another whom the offender endeavors to kill, but negligently or accidentally causes the death of the individual killed; or (2) At the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing, but his belief is unreasonable.

Statutes may define what constitutes serious provocation. There is also the issue of burden of proof. The statute may require the defendant to show some evidence by preponderance. The burden would then be on the prosecutor to show beyond a reasonable doubt the elements of first degree murder and then the absence of mitigating circumstances in order to have a first degree murder conviction. To prove



a second degree murder conviction, the prosecutor would still need to prove beyond a reasonable doubt the elements of first degree murder, and then the jury, or a judge sitting without a jury, may find mitigating circumstances, and so may find the defendant guilty of second degree murder. Sentences for second degree murder are less severe.

INVOLUNTARY MANSLAUGHTER and RECKLESS HOMICIDE A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts, whether lawful or unlawful, that cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly, except in cases in which the death consists of the driving of a motor vehicle or operating a snowmobile, all-terrain vehicle, or watercraft, in which the person commits reckless homicide.

In cases involving reckless homicide, being under the influence of alcohol or any other drug or drugs will be considered an aggravation for purposes of sentencing. In many states a defendant may receive a sentence of probation after being convicted of either involuntary manslaughter or reckless homicide. It would depend on the facts of the case and the defendant’s prior criminal background.

Defenses

There are always certain defenses which may apply to a case. Mentioned earlier were self-defense and provocation. The defendant is usually required to introduce evidence of the defense before the prosecution needs to disprove the existence of the defense. This means the prosecution does not have to show there was no threat to the defendant which was reasonable if the defendant has not shown fear for his life or great bodily harm.

SELF-DEFENSE For an individual to assert self-defense, he must show he acted because he had a reasonable fear of death or great bodily harm.

USE OF FORCE IN DEFENSE OF DWELLING To assert this defense, a defendant must show that his acts were necessary to prevent or terminate another person’s entry into his dwelling. To use deadly force the defendant must show entry was in a violent manner and that such force was necessary to prevent an assault upon him.

INSANITY Each state has its own definition, but in general it means the lack of substantial capacity to appreciate the criminality of one’s conduct as a result of mental disease or mental defect.



Homicide Statutes 782.02.1.1 Justifiable Use of Deadly Force

The use of deadly force is justifiable when a person is resisting any attempt to murder such person or to commit any felony upon him or upon or in any dwelling house in which such person shall be.

782.03 Excusable Homicide Homicide is excusable when committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution, and without any unlawful intent, or by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, without using any dangerous weapon and not done in a cruel or unusual manner.

782.04 Murder

1.A. The unlawful killing of a human being when:

(1) Perpetrated from a premeditated design to effect the death of the person killed or any human being; or

(2) Committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any of the following crimes:

(a) Trafficking offense prohibited by §893.135(1), (b) Arson, (c) Sexual battery, (d) Robbery, (e) Burglary, (f) Kidnapping, (g) Escape, (h) Aggravated child abuse, (i) Aircraft piracy,

(j) Unlawful throwing, placing or discharging of a destructive device or bomb, or

(k) Which resulted from the unlawful distribution of any substance controlled under §893.03(1), cocaine as described in §893.03(2)(a)4., or opium or any synthetic or natural salt, compound, derivative, or preparation of opium by a person 18 years of age or older, when such drug is proven to be the proximate cause of the death of the user, is murder in the first degree and constitutes a capital felony, punishable as provided in §775.082.



1.B. In all cases under this section, the procedure set forth in §921.141 shall be followed in order to determine sentence of death or life imprisonment.

2. The unlawful killing of a human being, when perpetrated by any act

imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree and constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in §775.082, §775.083, or §775.084.

3. The unlawful killing of a human being, when perpetrated without any design

to effect death, by a person engaged in the perpetration of, or in the attempt to perpetrate, any felony other than any:

(a) Trafficking offense prohibited by §893.135(1), (b) Arson, (c) Sexual battery, (d) Robbery, (e) Burglary, (f) Kidnapping, (g) Escape, (h) Aggravated child abuse, (I) Aircraft piracy, or

(j) Unlawful throwing, placing or discharging of a destructive device or bomb, or (k) Unlawful distribution of any substance controlled under §893.03(1),

cocaine as describe in §893.03(2)(a)4, or opium or any synthetic or natural salt, compound, derivative, or preparation of opium by a person 18 years of age or older, when such drug is proven to be the proximate cause of the death of the user, is murder in the third degree and constitutes a felony of the second degree, punishable as provided in §775.082, §775.083, or §775.084.

782.07 Manslaughter

The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of Chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provision of this chapter, shall be deemed manslaughter and shall constitute a felony of the second, punishable as provided in §775.082, §775.083, or §775.084.

782.08 Assisting Self- Murder

Every person deliberately assisting another in the commission of self-murder shall be guilty of manslaughter, a felony of the second degree, punishable as provided in §775.082, §775.083, or §775.084.



782.11 Unnecessary Killing to Prevent Unlawful Act Whoever shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any other unlawful act, or after such attempt shall have failed, shall be deemed guilty of manslaughter, a felony of the second degree, punishable as provided in §775.082, §775.083, or §775.084.

782.071 Vehicular Homicide (1) "Vehicular homicide" is the killing of a human being by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another. Vehicular homicide is a felony of the third degree, punishable as provided in §775.082, §775.083, or §775.084.

782.072 Vessel Homicide (1) "Vessel homicide" is the killing of a human being by the operation of a vessel as defined in §327.02 by another in a reckless manner likely to cause the death of, or great bodily harm to, another. Vessel homicide is a felony of the third degree, punishable as provided in §775.082, §775.083, or §775.084. (2) Any person who commits vessel homicide and willfully fails to stop or comply with the requirements of §327.30(4) is guilty of a felony of the second degree, punishable as provided in §775.082, §775.083, or §775.084.



FREDDO V. STATE 127 Tenn. 376, 155 S.W. 170 (1913)

Williams, J. The plaintiff in error, Raymond Freddo,...was found by the jury guilty of murder in the second degree; his punishment being fixed at 10 years imprisonment...he claims...the facts adduced did not warrant a verdict of guilty of a crime of degree greater than voluntary manslaughter, if guilt of any crime be shown. [I]n the roundhouse department of the shops of the Nashville & Chattanooga Railway Company from 50 to 60 men were employed, among them being...Freddo and the deceased, Higgenbotham. Freddo was at the time about 19 years of age; he had been...orphaned...reared thereafter in an orphanage, and yet later in the family of a Nashville lady, with result that he had been morally well trained. The proof shows him to have been a quiet, peaceable, high-minded young man of somewhat retiring disposition. Due, perhaps to the loss of his mother in his infancy, and to his gratitude to his foster mother, he respected womanhood beyond the average young man, and had a decided antipathy to obscene language or language that reflected on womanhood. Deceased, Higginbotham, was about six years older than Freddo, [and considerably taller and heavier than Freddo, outweighing him by about 30 pounds,] and was one of a coterie of the roundhouse employees...given to the use...of the expression "son of a bitch" meant to be taken as an expression of good fellowship or of slight depreciation. Deceased, prior to the date of the difficulty, had applied this epithet

to...Freddo without meaning offense, but was requested by the latter to discontinue it, as it was not appreciated, but resented. It was not discontinued, but repeated, and Freddo so chafed under it that he again warned deceased not to repeat it; and the fact of Freddo's sensitiveness being noted by the mechanic, J.J. Lynch, under whom Freddo served as helper, Lynch sought out deceased in Freddo's behalf and warned to desist. On Lynch's telling deceased of the offense given to plaintiff error, and that "he will hurt you some day," deceased replied, "The son of a bitch, he won't do nothing of the kind." Deceased is shown to have been habitually foulmouthed, overbearing, and "nagging and tormenting" in language, and at times in conduct. On the afternoon of the tragedy, Higginbotham and Freddo were... packing... a locomotive cylinder.... Deceased, so enraged, was in a squatting posture, holding a pinch bar. It appears that someone, thought by deceased to have been Freddo, had spilled oil on deceased's tool box, and as he proceeded with his work the latter, in hearing of the crew, remarked: "Freddo, what in the hell did you want to spill that oil on that box for? If someone spilled oil on your box, you would be raising hell, wouldn't you, you son of a bitch?" Freddo asked Higginbotham if he meant to call the former a son of a bitch, and was replied to in an angry and harsh tone. "Yes, you are a son of a bitch." The plaintiff in error, standing to the left of and about eight feet away from deceased, seeing deceased preparing to rise or rising from squatting posture, seized a steel bar, one yard long



and one inch thick, lying immediately at hand, and advancing struck deceased a blow on the side of his head, above the left ear, and extending slightly to the rear of the head, but not shown to have been delivered from the rear. Deceased in rising had not gained an erect posture, but is described as stooping at the time the blow was delivered. Plaintiff in error testified that deceased, in rising, was apparently coming at him; that deceased made a gesture, that he (Freddo) believed that Higginbotham was going to strike; and that he struck because of anger at the epithet and to defend himself, but would not have struck but for deceased's movement. It appears, however, that deceased had not gained a position where he could strike the accused, and it does not appear that he had anything in his hand with which to attack; and the evidence. We deem the facts sufficient to show that plaintiff in error killed deceased under the impulse of sudden heat of passion; but, no matter how strong his passionate resentment was, it did not suffice to reduce the grade of the crime from murder to voluntary manslaughter, unless that passion was due to a provocation such as the law deemed reasonable and adequate - that is, a provocation of such a character as would, in the mind of an average reasonable man, stir resentment likely to cause violence, obscuring the reason, and leading to action from passion rather than judgment. While the testimony indicates that plaintiff in error was particularly sensitive in respect of the use by another, as applied to him, of the opprobrious epithet used by deceased, yet we believe the rule to be firmly fixed on authority to the effect that

the law proceeds in testing the adequacy of the provocation upon the basis of a mind ordinarily constituted of the fair average mind disposition... The rule in this state is, as it was at common law, that the law regards no mere epithet or language, however violent or offensive, as sufficient provocation for taking life... Affirmed. In view of the very good character of the young plaintiff in error, as disclosed in the record, and of the peculiar motive and the circumstances under which he acted, we feel constrained to and do recommend to the governor of the state that his sentence be commuted to such punishment as the executive may, in the light of this record and opinion, in his discretion think proper...



UNITED STATES v. FLEMING 739 F.2d 945 (1984)

Defendant David Earl Fleming was convicted of second degree murder, in violation of 18 U.S.C. §1111, in the death of Margaret Jacobsen Haley. Mrs. Haley was the driver of an automobile with which an automobile operated by the defendant collided when defendant lost control while traveling at a high rate of speed. Fleming's car was observed at about 3:00 p.m. on June 15, 1983, traveling southbound on the George Washington Memorial Parkway in northern Virginia at speeds variously estimated by witnesses as between 70 and 100 miles per hour. The speed limit on the Parkway is, at most points, 45 miles per hour. Fleming several times directed his southbound car into the northbound lanes of the Parkway in order to avoid traffic congestion in the southbound lanes. Northbound traffic had to move out of his way in order to avoid a head-on collision. At one point, a pursuing police officer observed Fleming steer his car into the northbound lanes, which were separated from the southbound lanes at that point and for a distance of three-tenths of a mile by a raised concrete median, and drive in the northbound lanes, still at a high rate of speed, for the entire length of the median. At two other points, Fleming traveled in northbound lanes that were separated from the southbound lanes by medians.

Approximately six miles from where his car was first observed traveling at excessive speed, Fleming lost control of it on a sharp curve. The car slid across the northbound lanes, striking the curb on the

opposite side of the highway. After striking the curb, Fleming's car straightened out and at that moment struck the car driven by Mrs. Haley that was coming in the opposite direction. Fleming's car at the moment of impact was estimated by witnesses to have been traveling 70 to 80 miles per hour; the speed limit at that point on the Parkway was 30 miles per hour. Mrs. Haley received multiple severe injuries and died before she could be extricated from her car. Fleming was pulled from the wreckage of his car and transported to a Washington hospital for treatment. His blood alcohol level was there tested at .315 percent. Fleming was indicted by a grand jury on a charge of second degree murder and a number of other charges which are not relevant to this appeal. He was tried before a jury on the murder charge and convicted. Defendant maintains that the facts of the case cannot support a verdict of murder. Particularly, defendant contends that the facts are inadequate to establish the existence of malice aforethought, and thus that he should have been convicted of manslaughter at most. Proof of the existence of malice does not require a showing that the accused harbored hatred or ill will against the victim or others. See United States v. Celestine, 510 F.2d 457, 459 (9 Cir. 1975). Neither does it require proof of an intent to kill or injure. See, e.g., United



States v. Shaw, 701 F.2d 367, 392 n. 20 (5 Cir. 1983); United States v. Black Elk, 579 F.2d 49, 51 (8 Cir. 1978); LaFave & Scott, Criminal Law 541 (1972). Malice may be established by evidence of conduct which is "reckless and wanton and a gross deviation from a reasonable standard of care, of such a nature that a jury is warranted in inferring that defendant was aware of a serious risk of death or serious bodily harm." Black Elk, supra, 579 F.2d at 51, quoting, in the context of a criminal action under §1111(a), United States v. Cox, 509 F.2d 390, 392 (D.C. Cir. 1974). To support a conviction for murder, the government need only have proved that defendant intended to operate his car in the manner in which he did with a heart that was without regard for the life and safety of others. Shaw, supra, 701 F.2d at 392 n. 20 (dicta). We conclude that the evidence regarding defendant's conduct was adequate to sustain a finding by the jury that defendant acted with malice aforethought. It is urged upon us, however, that a verdict of murder in this case should be precluded by the existence of a statute defining and proscribing involuntary manslaughter, 18 U.S.C. §1112(a). Defendant maintains that vehicular homicide where no purpose on the part of the accused to have caused death or injury has been shown should result only in conviction of involuntary manslaughter. Otherwise, defendant argues, all drunk driving homicides and many reckless driving ones will be prosecutable as murder. We are not persuaded by the argument. The difference between malice, which will support conviction for murder, and gross negligence, which will permit

conviction only for manslaughter, is one of degree rather than kind. See, e.g., United States v. Dixon, 419 F.2d 288, 292-293 (D.C. Cir. 1969) (Leventhal, J., concurring) (difference between murder and manslaughter lies in the quality of the accused's awareness of the risk). See also Holmes, The Common Law 59 (1881) (The difference between murder and manslaughter lies "in the degree of danger attaching to the act in the given state of facts.") In the vast majority of vehicular homicides, the accused has not exhibited such wanton and reckless disregard for human life as to indicate the presence of malice on his part. In the present case, however, the facts show a deviation from established standards of regard for life and the safety of others that is markedly different in degree from that found in most vehicular homicides. In the average drunk driving homicide, there is no proof that the driver has acted while intoxicated with the purpose of wantonly and intentionally putting the lives of others in danger. Rather, his driving abilities were so impaired that he recklessly put others in danger simply by being on the road and attempting to do the things that any driver would do. In the present case, however, danger did not arise only by defendant's determining to drive while drunk. Rather, in addition to being intoxicated while driving, defendant drove in a manner that could be taken to indicate depraved disregard of human life, particularly in light of the fact that because he was drunk his reckless behavior was all the more dangerous.

Defendant also challenges his conviction on the grounds that the district court committed error in its instructions to the jury. In view of our conclusions with regard to the adequacy of wanton and reckless behavior to support an inference



of malice, we think that the district court's instructions on this subject were unexceptionable. Defendant also contends that the district court's response to the jury's request for re-instruction as to the distinction between murder and manslaughter confused the two crimes and now requires reversal. After a close reading of the challenged portion of the instructions, we are far from convinced that there was any failure of the district court in its definition of the crimes. In any event, however, we must read the district court's instructions as a whole. See United States v. Park, 421 U.S. 658, 674, 95 S. Ct. 1903, 1912, 44 L.Ed.2d 489 (1975). In so doing, we are convinced that

any confusion in this isolated portion of the instructions was not misleading "in the context of the overall charge." Defendant also contends that the district court erred in admitting into evidence defendant's driving record which showed previous convictions for driving while intoxicated. The driving record would not have been admissible to show that defendant had a propensity to drive while drunk. Fed. R. Evid. 404(b). However, the driving record was relevant to establish that defendant had grounds to be aware of the risk his drinking and driving while intoxicated presented to others. It thus was properly admitted.

Homicide Problems

1. High Anxiety

Mel is pushed by Brooks from the top floor of a tall office building. As Mel is falling, Lisa takes aim and shoots Mel, killing him before he hits the ground. Has Lisa committed a crime?

2. Wise Guy Moe, Larry and Curly are standing in line at the school cafeteria. Moe, a real wise guy, decides to push Larry into Curly as part of a prank. He does so, and Curly falls down, hitting his head. Curly later dies from his head injury. Can Moe or Larry be charged with commission of any crime?

3. Asleep at the Wheel Lester regularly drives one hundred miles a day to and from work. One late night in October, a tired Lester falls asleep at the wheel, which results in his car running over Suzannah, killing her. Has Lester committed a crime?

4. "Bob-Bob" Joe Bob, Billy Bob, and Ray Bob decide to rob the nearby Little General convenience store. Unbeknownst to Joe Bob and Billy Bob, Ray Bob is an undercover police officer. The three men drive to the convenience store and Joe Bob waits outside in the car. Billy Bob and Ray Bob enter the store. Ray Bob approaches the store proprietor, Bobbie Sue, and tells her that this is a robbery and that she should hand over all the money in the cash register. Bobbie Sue complies with Ray Bob's request, but also takes out a gun and fires at Billy Bob. The shot misses Billy Bob but strikes a customer entering the store, T. Bob Jones. Billy Bob then takes out a gun and, in return, fires at Bobbie Sue, killing her. What crimes, if any, did the parties commit?



5. The Miami Dolphins The Miami Dolphins were playing the Jets. A fan of the Jets, Gaston Snow, decided to put Dan Marino out of action. Gaston fired his Saturday night special revolver at Marino during the second half intending to hit him in the thigh. Instead, Gaston struck Josephine Namath, who was at the game as a spectator, killing her. Gaston has committed:

A. Murder C. Manslaughter B. Assault D. No Crime

6. Sarah Sure Shot Sarah was given a new rifle for her 24th birthday. She decided to try it out by shooting out some of the windows in planes about to take off. She does not miss a single window from a distance of a hundred yards. In the process, she kills ten people. Sarah has committed:

A. Intent to Kill Murder B. Depraved Heart Murder C. Felony Murder D. Manslaughter

E. None of the Above

7. Fatal Attraction Jim and Jane have been married for 11 years. Unbeknownst to Jim, Jane has been having an affair with Englebert for 10½ of those years. Jim returns home unexpectedly one morning to find Jane and Englebert in bed together in his own bedroom. As Englebert attempted to climb out of the bedroom window, Jim took out his gun and shot and killed him. Jim is guilty of which of the following:

A. First Degree Murder B. Voluntary Manslaughter C. Depraved Heart Murder D. Involuntary Manslaughter

E. Assault and Battery 8. Fatal Attraction II

Jane, having recently read a Reader's Digest article on holding marriages together, was interested in saving her marriage. After the death of Englebert, she helped Jim dispose of Englebert's body. Then she went with Jim to Lester's for a cup of coffee. Jane can be convicted of which of the following:

A. Murder B. Manslaughter C. Accessory after the fact D. Assault and battery

E. Homicide under accomplice liability 9. Fatal Attraction III

Ten years later, Jim and Jane are still married. Jim learns that Jane is having an affair with Maurice. Jim becomes furious, hops in his car, and vows to kill Maurice. As he is driving to Maurice's house, a man darts out between two cars into the street. Jim, driving in a non-negligent fashion, tries to avoid hitting the man. The man is killed instantly. Jim learns after he gets out of the car that the man is in fact Maurice. Which crime has Jim committed?

A. Intent to Kill Murder B. Manslaughter C. Depraved Heart Murder D. No Crime



The Federal Rules of Evidence

As the previous chapters indicate, the criminal justice system follows a very strict procedure with regard to how trials are conducted. In any situation where there are procedures, there are rules that must be followed; criminal trials are no exception. Each state has its own set of rules governing what evidence is admissible at trial and what evidence is inadmissible. It is the attorney’s job to make sure that the opposing attorney follows the rules. Each jurisdiction has a set of Rules of Evidence that dictate what is admissible. Learning these rules will help you determine which evidence to build your case around, and will help you keep out inadmissible evidence the opposing side offers at trial. The New Providence Rules of Evidence shown in this chapter are a simplified version of the Federal Rules of Evidence.

• General Provisions • Presumptions in Civil Actions and Proceedings • Relevancy and its Limits • Witnesses • Opinions and Expert Testimony • Hearsay • Authentication and Identification • Contents of Writings, Recordings, Photographs

6



General Provisions Rule 101. Scope These rules govern proceedings in the courts of all criminal and civil proceedings in the state of New Providence. Rule 103. Rulings on Evidence

(a) Objections Evidence or testimony offered during the course of a trial shall be considered part of the record unless a timely objection is sustained, and a motion to strike the offending evidence or testimony is granted. Nothing in this rule precludes taking notice of plain errors affecting substantial rights, although they were not brought to the attention of the court. (b) Offer of proof If the court rules to exclude evidence from the record, the party wishing to bring forth the evidence may do so through an offer of proof conducted outside the presence of the jury. An offer of proof creates a record of the evidence that would have been provided but for the court’s ruling. Although this evidence cannot be considered by the trier of fact, offers of proof are useful for two reasons: (i) they preserve a record of the evidence for appeal, and (ii) the court may reconsider its ruling in light of the evidence or testimony elicited during the offer of proof. At the court’s discretion, offers of proof may be provided by a narrative statement on the part of an attorney or through testimony elicited through questions and answers.

Rule 105. Limited Admissibility When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. Rule 106. Remainder of Related Writings or Recorded Statements When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.



Presumptions in Civil Actions and Proceedings Rule 301. Presumptions regarding the Burden of Proof

(a) Civil cases In all civil cases the plaintiff shall have the burden of proof, which shall be by a preponderance of the evidence.

(b) Criminal cases

In all criminal trials, the prosecution shall have the burden of proof, which shall be beyond a reasonable doubt.

Relevancy and its Limits

Rule 401. Definition of "Relevant Evidence" "Relevant evidence" means evidence which makes the existence of a fact pertinent to the outcome of the trial more or less likely. Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes

(a) Character evidence generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1) Character of accused. Evidence of a pertinent trait of character offered by accused, or by the prosecution to rebut same;



(2) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor; (3) Character of witness. Evidence of the character of a witness, as provided in Rules 607, 608, and 609.

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

Rule 405. Methods of Proving Character

(a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

(b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct.

Rule 406. Habit; Routine Practice Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. Rule 407. Subsequent Remedial Measures When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a



product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeached. Rule 410. Inadmissibility of Pleas, Plea Discussions, and Related Statements Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

(a) a plea of guilty or no contest which was later withdrawn;

(b) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

Witnesses

Rule 602. Lack of Personal Knowledge 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. Evidence to prove personal knowledge may, but need not, consist of the witness's own testimony. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses. Rule 604. Interpreters An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation. Rule 607. Who May Impeach The credibility of a witness may be attacked by any party, including the party calling the witness. Rule 608. Evidence of Character and Conduct of Witness

(a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.



(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness's character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness's privilege against self-incrimination when examined with respect to matters which relate only to credibility.

Rule 609. Impeachment by Evidence of Conviction of Crime

(a) General rule. For the purpose of attacking the credibility of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and (2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.

(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

(c) Effect of pardon, annulment, or certificate of rehabilitation. Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that



person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

(d) Juvenile adjudications. Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission into evidence is necessary for a fair determination of the issue of guilt or innocence.

(e) Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.

Rule 610. Religious Beliefs or Opinions Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness's credibility is impaired or enhanced. Rule 611. Mode and Order of Interrogation and Presentation

(a) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

(b) Scope of cross-examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

(c) Scope of re-examination. Re-direct or re-cross examinations must be within the scope of the examinations immediately preceding them. (d) Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness's testimony. Ordinarily, leading questions



should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

(e) Narrative testimony. Testimony which goes beyond the scope of the question is narrative and may be objected to. If the objection is sustained, the objecting attorney may ask that the testimony be stricken from the record.

(f) Unresponsive witness. If a witness is not responding to the question put forth by an attorney, the attorney may ask the court to instruct the witness to respond. If a witness responds beyond the scope of a cross-examination question, the attorney may also object that a witness is unresponsive and object to the portion of the answer that was not in response to the question.

Rule 612. Writing Used to Refresh Memory Except as otherwise provided in criminal proceedings by Section 3500 of Title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either—

(1) while testifying, or (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce into evidence those portions which relate to the testimony of the witness. Rule 613. Prior Statements of Witnesses In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.

Opinions and Expert Testimony

Rule 701. Opinion Testimony by Lay Witnesses If the witness is not testifying as an expert, the witness's testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue.



Rule 702. Testimony by Experts If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. Rule 703. Bases of Opinion Testimony by Experts The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. Rule 704. Opinion on Ultimate Issue

(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

Rule 705. Disclosure of Facts or Data Underlying Expert Opinion The expert may testify in terms of opinion or inference and give reasons therefore without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

Hearsay

Rule 801. Hearsay Definitions The following definitions apply under this article:

(a) Statement. A "statement" is:

(1) an oral or written assertion, or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.



(b) Declarant. A "declarant" is a person, other than the witness offering testimony concerning it, who makes a statement.

(c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

(d) Statements which are not hearsay. A statement is not hearsay if—

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.

(2) Admission by party-opponent. The statement is offered against a party and

was (a) the party's own statement,

(b) a statement by a person authorized by the party to make a statement concerning the subject, or (c) a statement by the party's agent or servant concerning a matter within the scope of employment, made during the existence of the relationship, or (d) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.

The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (b), the agency or employment relationship and scope thereof under subdivision (c), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (d).

Rule 802. Hearsay Rule Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress. Rule 803. Hearsay Exceptions The following types of statements, although hearsay, are admissible due to the likelihood of the statement’s truthfulness.



(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. (2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. (3) Mental state. A statement of the declarant's then-existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the declarant's will. (4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. (5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now cannot remember fully and accurately, shown to have been made by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. (6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, made at or near the time from information transmitted by a person with knowledge, if kept in the course of a regularly conducted business activity. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. (7) Absence of entry in records kept in accordance with the provisions of paragraph (6). Evidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter. (8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth the activities of that agency, vital statistics regarding marriage, birth, baptism and death, or from a published treatise or periodical established as a reliable authority. (9) Reputation as to character. Reputation of a person's character among associates or in the community.



Rule 805. Hearsay Within Hearsay Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules. Rule 806. Attacking and Supporting Credibility of Declarant When a hearsay statement has been admitted into evidence, the credibility of the declarant may be attacked, and if attacked, may be supported by any evidence which would be admissible for those purposes if declarant had testified as a witness.

Authentication and Identification

Rule 901. Requirement of Authentication or Identification

(a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. (b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.

(2) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

(3) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.

(4) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.

(5) Methods provided by statute or rule. Any method of authentication or identification provided by Act of Congress or by other rules prescribed by the Supreme Court pursuant to statutory authority.



Contents of Writings, Recordings, Photographs Rule 1001. Original or Fair and Accurate Copy Required If the content of any writing, recording, sketch, or photograph is to be used during trial, the original item, or a fair and accurate copy of that original item, must be used.



Practice Problems

Use this section to test your knowledge on the elements of the trial that you have learned about. The following scenario is offered:

The following concepts will be tested:

• Theory of the Case • Opening Argument • Introduction of Physical Evidence • Direct Examination • Cross-Examination • Closing Argument

Davey Jones is going to the store to buy supplies for a sailing trip. It is early morning when he is leaving the store. Davey is 5’9’’ and is approached from behind by someone about his height or a couple of inches taller. The individual puts a cold object into Davey’s waist and takes Davey’s wallet and a Nike bag containing Davey’s sailing gloves and jacket. The individual turns and runs away. Davey never sees his full face and can only describe his clothing as jeans and a dark T-shirt. Davey immediately flags down the police. After five minutes the police bring Jack Sparrow to where Davey is standing. Davey identifies Sparrow as the individual who robbed him. Sparrow is wearing jeans and a blue T-shirt. Sparrow has an empty Nike bag with him. Jack Sparrow is 5’7’’ tall.

The wallet, sailing gloves and jacket are not recovered. Sparrow denies any involvement in a crime.

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Theory of the Case

What will be the State’s theory? What will be the Defense’s theory?



Opening Argument What facts would the State want to include?

- - -

What facts would the defense wish to include?

- - -

Write a two-minute opening statement for each side. ________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________



________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________



Introduction of Physical Evidence Determine if the State should introduce the empty Nike bag into evidence. What would be the purpose of introducing it? Can it be introduced during the direct of Davey Jones? Where in the direct would it be introduced? Would the defense object to its introduction?

Why?

Why not? Write out how you would introduce the bag into evidence: ________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________________________________________________________________________________



________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________



Direct Examination

What facts would the State need to include in the direct examination of Davey Jones? What information would be helpful to the jury as to the surroundings? Could the State ask Davey to demonstrate how the robbery occurred? Could the State ask Davey what the police told him? Could the State ask Davey what Sparrow was doing when the police arrested him? How would the State organize the direct? Does the State need to have Davey identify Sparrow in the courtroom?



What facts would the defense wish to include in the direct of Jack Sparrow? Would they want to put Jack Sparrow on the witness stand?

Would it matter if Jack Sparrow has a prior conviction for battery from a fight that occurred during a basketball game?

Would it be important if there was a public laundry twenty feet from where Jack Sparrow was arrested? Prepare a direct examination for both Davey Jones and Jack Sparrow. ________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________________________________________________________________________________



________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________



Cross Examination

What facts would the defense want to bring out in the cross-examination of Davey Jones? How important is the time of day?

How important is the height difference?

What about the cold object? What about the lost sailing gloves and jacket? What about the Nike bag? What about the way the identification took place? How will you organize the cross of Davey Jones?



For the State, what facts would you what to bring out in cross-examination of Jack Sparrow? How important is the time of day? How important is the similarity of height? How important is the clothing Sparrow was wearing? What about the Nike bag? What about battery conviction? What about the time between the robbery and the arrest? How will you organize the cross?



Closing Arguments

For the State:

What facts will the State want to include?

Why should the jury find Jack Sparrow guilty? How will the State present its theory in relationship to the facts? Will it use the Nike bag? What will be highlighted? How will it be organized?



Use the space below to prepare a three-minute closing argument for the State. ________________________________________________________________________________________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________________________________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________



The Defense: What facts will the Defense want to include? Why has the State failed to prove Jack Sparrow guilty beyond a reasonable doubt? How will the Defense present its theory in relationship to the facts? Will it use the Nike bag? What will be highlighted? How will the Defense be organized?



Use the space below to prepare a three-minute closing argument for the Defense. ________________________________________________________________________________________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________________________ ________________________________________________________



The NSLC Mock Trial Handbook As you can see, the criminal justice system follows a very specific trial procedure. As an attorney you are held responsible for not only knowing the rules of evidence for your own case but also ensuring that your opposing counsel follows the same rules. Thus far, this text has provided the background knowledge necessary to compete in a mock trial. The following chapter will take you step by step through the trial preparation process, providing tips and tricks along the way that will help you win your case.

• Preparing for Your Case • The Opening Statement • Direct Examinations • Entering and Using Physical Evidence • Cross-Examinations • Offers of Proof • Impeaching a Witness on Cross-Examination • Objections and Offers of Proof • The Closing Argument • Courtroom Decorum

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Preparing for Your Case

There is much work that must be done before an attorney can present his case in a court of law. The first step in case building, before any courtroom preparation can be done, is to prepare a strategy that is cohesive and well reasoned. Crafting a case for trial is a lot like constructing a building: you can own all of the proper tools, possess all of the technical know-how, and have all of the building materials necessary-but without plans or blueprints, all your labor and hard work will be wasted. This section of your text will walk you through some preliminary steps to ensure a solid case strategy. Reading the Case The obvious first step in preparation is reading the entire case. It is important that you read everything: the indictment, the statutes, the stipulated facts, the witness statements, and the physical evidence. Each of these is a piece to the puzzle that will, with time, become your case. There is value in every page and every word of your case packet; make every effort to know the material well. The first time you read the case, follow two hints: read it in its entirety, and read it with no particular point of view. Even if you know that you will be defending a particular individual, read the materials with an eye for both sides of the case. While reading, you should actively seek to understand both the big picture (order of events and overall story) and the details (particular events and individual statements). This will help you prepare your strategy and ultimately prove your case. It will be helpful to take notes while you read. Make sure to look for both inconsistencies and uniformity in the case materials. These may be within a single statement, between two or more statements, between the stipulated facts and a statement or between all types of written text and the provided physical evidence. While in the world of mock trial many of these incongruities are intentional, even the ones that are not can be used to your advantage. Almost all cases (both mock trial and real-world) contain dozens of inconsistencies that will help determine the verdict. As mentioned previously, a similarity between affidavits in regard to times, facts, statements or beliefs can prove to be equally helpful. When two witnesses either agree or disagree on a set of facts, it can help to increase the credibility of their testimony.

Case reading tips

Read everything. Read with no particular bias. Read the case more than once. Take notes. Look for inconsistencies. Compare witness statements

to: other statements, the stipulated facts, and physical evidence.

Understand the big picture as well as you understand the details.



Outlining a Witness After your initial read of the case, you should begin outlining the witnesses. If you take notes while reading, make sure to note which portions of the statement help the prosecution and which help the defense. For ease, use the Greek letter Π (pi) to represent the prosecution and Δ (delta) to stand for the defense. Make sure to read the case for both the prosecution and the defense; by understanding a witness’s strengths and weaknesses, you can not only better organize your case, but can be more prepared for the case that the opposition will argue. When outlining a witness, try creating a chart like the one below; this should be easy if you took notes while reading.

There are two things a witness must accomplish to be useful to your case. First, the judge and the jury must view the witness as believable and credible. Second, the testimony the witness provides must lend itself to a particular theory of the case. For example, a police detective on the stand must convince the jury that the evidence he gathered is useful in determining who committed a crime, but he also must convince the jury that he is a trustworthy person who should be taken seriously. Notice that, in the outline above, we listed not only the evidence that Officer Bradley brings to the case but facts that assist in establishing (or diminishing) his credibility. When outlining your witnesses, be sure to list all the evidence that either helps or hurts your case, and all the things about his character and circumstances that either credits or discredits him. Use the space on the following two pages for your own outlines:

Example of a witness outline Officer Bradley

Helps Π Helps Δ

Saw defendant with gun upon arrival at the scene

15 years experience Saw blood on the hands of

defendant as he ran away from scene

Was standing in a poorly lit area, limiting his ability to see

Demoted for false arrests Did not follow proper

police procedure



Detective Charlie Rice - Π Helps Π Helps Δ

Mary Kay Boyd - Π

Helps Π Helps Δ

Pat Thomas - Π Helps Π Helps Δ

Glen Van Wormer - Δ Helps Π Helps Δ

Roy Clyburn - Δ Helps Π Helps Δ



Outlining the Entire Case Once you have your witness outlines finished, you must determine which facts are the most relevant and useful, and which facts are not important enough to bring up in trial. A way to facilitate this process is to create a case outline. In your outline, you should list every fact that will be established in trial. Be sure to exclude facts that are blatantly inadmissible, irrelevant or do not prove anything. Because you will not be able to count on them in court, you should not consider them now. Below is an example of a case outline:

Jeffrey May - Δ Helps Π Helps Δ

Daniel Tanner - Δ Helps Π Helps Δ

The People v. Steven Cole Helps Π Helps Δ

Officer Bradley saw Cole running away from the scene with blood on his hands

The victim was Cole’s ex- business partner

Cole owns a .22 caliber gun

Cole’s alibi checks out Cole has type AB blood,

and only types A and B were found at the scene

Cole reported his gun as stolen 7 months ago



Once you have outlined your entire case you can step back, look at all the information that may be brought up in trial and begin to formulate a theory and a theme for the case. This list can also be useful in preparing for possible objections that will occur in competition, and for anticipating the opponent’s strategy. Use the space below to outline your case.

Developing a Theory The theory of your case is your version of what happened on the night(s) in question. This should be the backbone of all the testimony and evidence you bring up in trial. Take some time analyzing each witness outline and your case outline before settling on a final theory. Be creative, and try to think of new and interesting ways to present your version of the story that will set you apart from the opposition. Do not get too stuck on one particular theory; as time passes and your understanding of the facts in the case increases, you may see that your original idea does not work. Your theory should not only be compelling and interesting, it must also be credible and believable. Your theory should be true to the facts presented in the case materials. Invention of fact is not DIRECTLY against the rules of NSLC or collegiate mock trial. There is no “invention of fact” objection that can be made, but a good opposition attorney can turn your invention of fact into her strongest weapon. Remember, if you invent too much your entire case’s credibility is at stake. From your theory comes every other aspect of your case, so do not underestimate its importance. While preparing openings, directs, cross-examinations and closings you will from this point forward always ask yourself, “Does this help my theory of the case?” Make sure the question is a significant one and that your theory is meaningful. Use the space below to outline your theory of the case – that is, your version of what happened the night that Hillbilly was killed.

The People v. Daniel Tanner Helps Π Helps Δ



The State v. Daniel Tanner My Theory of the Case

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8 Developing a Theme The theme of a case is a simple phrase that reminds the jury, in a catchy way, of your theory. Possible themes can be “A cycle of violence” or “A rush to judgment.” Themes should be quick and forensically powerful. Be wary of themes that are “too cute.” If your opponent turns your theme against your case, it is very difficult to overcome with a jury. Use the space below to brainstorm possible themes for your case:



Case preparation checklist In your preparation did you …

Thoroughly read the case?

Outline all witnesses?

Outline the entire case?

Develop a case theory?

Develop a case theme?



The Opening Statement

When a trial begins, the attorneys for both parties have a chance to address the jury by presenting an opening statement. This time is for the attorneys to introduce themselves and their clients, explain their theories of the case, and give a brief overview of the evidence that will be presented at trial. Effective litigators use the opening to give the jury a “heads up” on important evidence and begin to shape the jury’s feelings about that evidence before it is even presented. It is important to note that unlike closing arguments, opening statements are not argumentative; instead, openings are merely a preview of upcoming evidence. Not only is the opening a jury’s first opportunity to hear about the case, it is also the time where first impressions are made. First impressions about you, your client and your case are all established during these first few moments. Opening statements can make or break a case: follow the guidelines below for an effective start to your trial. Organization While much of the opening statement depends on the style of the individual delivering it, the following are two popular ways to organize an opening statement:

Two ways to organize an opening

Witness List

Spend the first minute or so telling a brief story about what happened to acquaint the jury with the fact scenario. Then spend the rest of the time describing who will testify and two or three major points that each witness will cover.

Story Make the fact scenario into one long story, being sure to weave your witnesses and evidence into the story so that you are providing that essential road map to the jury. Dramatic telling of the story is effective with this style of organization.

Use the space below to outline both methods for your case, then decide between the two which you would rather use in court.

The State v. Daniel Tanner Witness List Method Story Method



Hooks A successful trial attorney will use a “hook” at the beginning of her opening statement. A hook is a one-line summation of the case specifically phrased to get the jury’s attention. Jurors can and will allow their minds to drift away to a more interesting topic if the trial attorney does not keep their attention. An example of a hook is: “This is a case about sex, lies, and videotape.” A more famous hook that you may recognize is: “If the glove doesn’t fit, you must acquit.” The most effective co-counsel will echo that same theme in the closing argument. Use the space below to brainstorm some possible hooks for your case:

Word Choice You should always tell your story in the active, present tense. Instead of saying that John Doe was hit by a car while standing on the corner of First and Second Streets, bring the story to life with a statement like: “Imagine: It is the intersection of First and Second Streets and John Doe is walking east toward the corner, unaware of the disaster that lurks ahead.” This phrasing makes the story real and gives the jury an opportunity to understand exactly what happened; furthermore, it will keep their attention. Another important strategy is to always use words that are expressive, dramatic and descriptive. Consider the following:

Average Attorney’s Word Choice Good Attorney’s Word Choice She ran She darted He braked He slammed on his brakes He stopped He skidded to a stop The sun shone in his eyes He was blinded as he turned toward the sun

As you can see, the second phrase in each scenario creates a much more vivid picture of what is happening and will help the jury better imagine the picture you are trying to paint for them.



Drama and Energy In many ways, the opening statement is a speech to the jury; a boring speaker will quickly lose the jury’s attention and, in turn, establish a bad first impression. Tell your story with energy and passion, and show the jury by your actions and words that you deeply believe in your client and your case. State Your Theory and Theme Remember: every element of your case should be built around both your theory and your theme. Be sure to clearly state your theory of the case and your theme in your opening statement. If your theme is “A Cycle of Violence,” make sure that you state this clearly in your opening (but don’t be too redundant!) Then, every direct and cross-examination should touch upon the “cycle.” By the time you get to your closing, incorporating the theme and theory should not be difficult. Road Map The opening statement is the time to tell the jury who and what they will hear and see during the trial. You need to tell the jury about each witness that you will call to the stand. Also, tell them what physical evidence you will present and how it connects to the story of what happened. This way, jurors will be looking for the evidence that you have promised and will feel satisfied when the case unfolds the way you predicted it would. An excellent phrase commonly found in openings is “the evidence will show;” skillfully wielding this phrase will enable you to direct the jury’s attention while also assertively outlining the facts as you see them. Use the space below to outline your road map for your case so you can be sure not to forget any part of it.

The State v. Daniel Tanner My Road Map

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Primacy and Recency

The rule of primacy states that first impressions are lasting impressions. What we hear first, we believe more intensely, retain more strongly, and resist changing most forcefully.

The rule of recency is that the last message heard is the easiest one to remember. Don’t forget to finish strong in your statement, because the jury will remember that last piece of information.

Pitfalls to Avoid

DO NOT ARGUE...This is the most common mistake that attorneys make in crafting an opening statement. Argument should be saved for your closing statement. One way to check yourself is to look at how you have phrased the statements in your opening. Many of your sentences should begin with things like: “The evidence will show...”; “John Doe will take the stand and testify that...”; “Next you will hear from John Doe, who will describe....”

Don’t waste your time on what the other side will say. You will have plenty of time to deal with them during your closing argument. Use this time to tell your own story.

Be careful not to overstate your case or repeat yourself. You don’t want to bore the jury before the trial even gets underway.

Don’t promise the jury any witnesses or evidence that you cannot produce for them. They will lose faith in you if you tell them that you will present them with a fact and then fail to do so.

Watch your nervous habits. Make sure that you speak clearly and don’t speak too quickly. Also, don’t write out the statement and read from it like a script.

Don’t slip into “legalese” in your statement. Remember the jury is comprised of regular people who don’t know all the legal terms. You want them to understand you, not be confused by you. Keep your language simple.

Be careful not to give away your entire case in your opening statement. Remember…the other side is listening too.

Opening statement checklist In your opening did you …

State your theory?

State your theme?

Introduce your witnesses?

Refrain from arguing?

Tell the jury what you want them to do?



Direct Examinations Following opening statements, the party with the burden of proof begins what is called their case in chief. This is when the prosecution/plaintiff shows the jury all of the relevant evidence it has collected. The only way to bring up testimony and evidence during a trial is to call witnesses, and the process of eliciting information from a witness while he is on the stand is called direct examination. Through a series of questions (asked by an attorney) and answers (provided by a witness on the stand), the jury hears testimony, one witness at a time, that is meant to reveal a particular theory of the case. Direct examinations are the most important part of a trial. All other elements of the trial are derived from these question-and-answer periods: openings give a preview of directs, cross-examinations are in response to directs, and closing arguments offer information brought out during direct. In order to be a successful litigator, understanding the rules, limitations, and uses of direct examination is crucial. Focus on the Witness During direct examination, the witness is the star; the focus should be on her and her story. The attorney’s role is that of a facilitator, guide, or director. One way to insure that the focus remains on the witness is to stand removed from the witness when asking questions. If you choose to do this, be sure to stand somewhere where the witness can look at you and the finder of fact (be it judge or jury) at the same time. Another hint to make the witness the center of attention comes in the way you phrase your questions. It is often helpful to ask a witness to “explain to the court” or “describe for the jury” a bit of evidence. This way the witness knows to address the judge or jury directly while answering the question. Other simple yet effective questions to prompt your witness (particularly if she is interrupted by an objection or gets off track) are “what happened next?” or “then what did you do?” Characterization It is important to bring the character of each witness to life during the direct examination. Each witness needs to be developed as a likeable, trustworthy person in the eyes of the judge and jury. As an attorney, you can do this by adjusting your tone of voice according to the impression you want the jury to get of the witness. For example, for a widow be reverent, solemn and serious. For a charming young man be conversational, interested, and polite. Use Your Witness Outline Nothing is more confusing to a jury than a poorly planned direct examination. Use your witness outline to pick the few major points you want to address in the direct, and then go after them. Do not waste your time, or even more importantly, the judge’s time on pointless testimony.



Open-Ended Questions Throughout the direct examination, the directing attorney should ask open-ended questions that begin with “who, what, why, when, where, and how.” These questions elicit information instead of providing an answer. The opposite of an open-ended question, is, of course, a closed-ended question called a leading question. Leading questions provide an answer and more often than not can only be answered with a yes or no. For example, “You went to the bar after dinner, didn’t you?” is leading and improper for direct examination. The proper version of the previous question would be, “After dinner, where, if anywhere, did you go?” The easiest way to correct a potentially leading question is to use the phrase “if any;” by using these two words, the answer is not suggested and thus the question is not leading. The test that is the most effective is to ask yourself, “Does this question provide an answer?” The question we are considering in this example does not. Be sure to keep the questions short and simple. The seed for the next question should always lie in the previous answer. By training ourselves to listen to the answers, the next logical question becomes apparent and the direct examination flows smoothly.

Sample direct examination Q: What, if anything, were you doing on the night of April 17, 2002? A: I was out celebrating my birthday with friends.

Q: Where were you celebrating? A: Tony’s Pizza. Q: Where is Tony’s Pizza located? A: On the corner of 19th and Bell.

Stealing Thunder A strategic point that you may want to consider is “stealing thunder.” Every witness has faults and weak points; you should have already established these in your witness outlines. Sometimes, attorneys choose to address and explain these weaknesses during direct examination so they are not as damaging when the other side brings them up on cross-examination. Be careful not to bring up anything during your direct that you want to object to on cross. Once you bring it up, you have “opened the door” and the other side is allowed to ask questions about that topic.



Expert Witnesses An expert witness is someone who has specialized knowledge and training in a particular field that the court allows to analyze information and render an expert opinion. As you know from the Federal Rules of Evidence, not everyone can offer an opinion in trial. Before anyone can tell a jury what they found over the course of an investigation, the attorney must “lay a foundation” for the witness’s expertise. Simply put, questions must be asked and answered that prove the witness knows what he is talking about. Use open-ended questions to introduce the witness’s education, experience, and training in the relevant field before asking any opinion questions. When questioning an expert about his/her opinions, preface the question with credentials. For example, “Doctor, based on your years of training and experience in the field of cardiology, can you state with a reasonable degree of medical certainty what the defendant’s prognosis is?” This will help avoid objections from the other side arguing that your witness is not qualified to give such an opinion. Make sure your expert witness knows what his/her role is in trial. An expert witness is on the stand not only impressing onlookers with technical understanding, but more importantly to simplify and explain scientific or technical evidence to a jury filled with lay people. When conducting the direct examination of an expert witness, be certain that you listen for specialized terms or words that may not be understood by the jury. Asking questions like “Could you please simplify the concept of ballistic analysis for the members of the jury?” keeps an expert from getting too confusing, and assures that the jury will understand their testimony. Drama The attorney conducting the direct examination should respond to the emotions of the witness so as to further convince the jury of the validity of the testimony. In addition to developing character, changes in tone or dramatic pauses may enhance the testimony, but be careful not to be melodramatic. Re-Direct Examination Oftentimes, you will be given an opportunity to re-direct your witnesses after the other side has cross-examined the witness. This gives you a chance to rehabilitate those areas of your witness’s testimony that were damaged the most on cross-examination. The same rules apply to re-direct examination as applied to direct examination. In addition to these rules, the scope of re-direct is limited to the subject matter covered in cross-examination. You are not permitted to bring up new material at this time. Do NOT ask questions on re-direct that are repetitive or unnecessary. Only use re-directs if you feel the witness needs rehabilitating. DO NOT FORGET: Even on re-direct, you are not permitted to ask leading questions.



Pitfalls to Avoid

Beware of leading questions. They are objectionable on direct. Also try to avoid questions beginning with “Did” as they take focus away from the witness.

Don’t assume facts not in evidence. You will face lack of foundation objections. Every question must have its foundation in the previous answer.

Avoid repeating, “What happened next?” five times in a row.

Don’t start every question with “And...” This can become very annoying to those listening to you. Jurors may begin to pay more attention to your repetition of the word “and” than they do to your questions.

Be careful not to narrate. The answers given by the witness should only address the question asked. If more information is needed, ask an additional question.

Do not write and stick solely to a script. If the witness forgets part of the script and you don’t pick up on it, you may ask a question that makes no sense.

Do not talk in a monotone. If you want the jury to think the testimony is interesting, you need to sound interested.

Do not stop listening to your witness. A misstatement of fact can be corrected immediately if you catch it and avoid the other side from “impeaching” (discrediting) your witness.

Ask expert witnesses to simply confusing terms. Testimony filled with complex jargon can be wasted if the jury does not comprehend what is being stated.

Direct examination checklist

In your direct did you …

Ensure that the witness was the center of attention?

Ask open-ended questions?

Stay organized?

Make the witness likeable and believable?

Help prove your theory of the case?

Have each question come from the previous answer?

Clarify confusing expert testimony?



Entering and Using Physical Evidence

Evidentiary Procedure For a jury to see any physical evidence, attorneys must follow a specific procedure to “enter it into evidence.” Anything other than witness testimony is considered physical evidence. This includes reports, photographs, written statements, weapons, diagrams, maps, models, etc. It is important to remember that, nine times out of ten, physical evidence will be introduced through witness testimony on direct examination. Before this can be done, a foundation for the evidence needs to be established. The witness must be able to authenticate the item (i.e., prove the article is what the proponent claims it to be). The following is a description of the procedure used to introduce any physical evidence:

(1) Before an item can be shown to a witness, it must be marked for identification. It is a good idea to pre-mark your exhibits so they will be organized. Once marked, the attorney will state, without showing the exhibit to the jury: “I have what has been marked as Prosecution Exhibit A for identification.” If it is a defense exhibit, it will be marked Defendant’s Exhibit A. Try to organize your exhibits so they may be marked in the order in which they are presented.

(2) Once the exhibit is marked the attorney walks to opposing counsel’s table, hands them

the exhibit, and states: “May the record reflect that I am showing counsel what has been marked as Prosecution Exhibit A for identification.”

(3) The Judge will state: “The record may so reflect.” (4) Once opposing counsel has reviewed the exhibit, if there is no objection, they will hand

it back to the attorney. The attorney will then request permission to approach the witness: “Permission to approach, your honor.” (In many jurisdictions and in federal court, counsel must first ask the judge’s permission to approach the bench or a witness).

(5) The Judge will state: “Permission is granted.” At this point, the attorney walks up to

the witness, being careful not to show the jury the exhibit. Until an exhibit has been entered into evidence, the jury is not permitted to see it. At this point you are showing the witness the exhibit so you may question the witness to obtain information which will lay a foundation so it will be admitted.

(6) After the attorney shows the article to the witness they state: “I am now showing you

what has been premarked as Prosecution Exhibit A for indentification; do you recognize it?”

(7) If the witness does recognize the item, the attorney then proceeds to question them to

establish the authenticity and relevance of the article. Authenticity goes to the item being what you say it is: proving the authorship of a letter; the photograph truly and accurately depicts the scene; the gun was the same gun taken from the defendant. Once the witness states they recognize the exhibit, questions may include: How do you recognize it? How



are you familiar with it? Are there any identifying marks? Who authored/created it? What was the purpose/circumstance surrounding its creation? Is Prosecution Exhibit A a true and accurate copy? The foundation necessary will depend on the exhibit. Remember to only use exhibits with witnesses who have information concerning them.

(8) Once the foundation for authenticity and relevance has been established the attorney

turns to the judge and states: “At this time I offer what has been previously marked as Prosecution Exhibit A into evidence.”

(9) At this time if the other side has any objections to the exhibit being admitted into

evidence, they will make them. (10) The judge will rule. If the exhibit is admitted, the attorney may then question the

witness about the substance of it and may request that it be “published to the jury” Publishing an exhibit is showing it to the jury. This is important because if the item is a letter, the judge may not want to disrupt the direct with the item being passed from juror to juror. If the exhibit is a photograph, you will want the jury to see it immediately.

(11) Keep track of which items have been admitted into evidence, so when the jury

deliberates, you may present to the judge those items you wish to go into the jury room during deliberation.

An easy way to remember evidentiary procedure ...

M Mark

To judge: • Your honor I have what has been marked for

identification purposes as Defense Exhibit A.

I Identify

To witness: • I am showing you what has been previously

marked as Defense Exhibit A. Do you recognize it?

A AuthenticateTo witness: • What is it? How do you recognize it? Who

took this photograph? Is Exhibit A a fair and accurate copy?

M

Move into

evidence

To judge: • At this time, I move Defense Exhibit A into

evidence.

I Introduce

To judge: • Your honor, permission to publish Defense

Exhibit A to the jury?



Types of Exhibits There are two different classes of exhibits used during a trial:

Substantive Exhibits: Substantive exhibits constitute the evidence of the case. They depict the actual scene, or are items found at the scene. The most common types of substantive exhibits are photographs, physical items, and documents signed by one of the parties. In order for substantive exhibits to be admissible, it must be established that the witness has firsthand knowledge of the exhibit. The witness must be able to verify the exhibit’s relevance. A photograph may be both substantive and demonstrative. Only substantive exhibits may go to the jury room during deliberations. Demonstrative Exhibits: Demonstrative exhibits are exhibits that assist a witness in the giving of testimony. They are used to clarify the testimony or aid the witness in explaining their testimony. Typical demonstrative exhibits are diagrams, charts, and graphs.

Objections to Exhibits Most objections to exhibits fall into two categories:

Foundation objections may be argued if the attorney can state no witness gave the information necessary to establish a sufficient foundation. Or, counsel may ask leave to ask the witness additional questions. If the objection goes to its accuracy, then the proponent of the exhibit may need to have the exhibit used for demonstrative purposes only. Relevance objections go to what the exhibit is. Some exhibits may be objected to because their probative value is outweighed by the danger of prejudice, confusion of the issues or misleading the jury. An example would be a gruesome photograph of the victim which would not aid the jury in deciding if the defendant inflicted the injuries.

Once an exhibit has been admitted, the opponent may still cross-examine and discredit its reliability, relevance and importance. NOTE: One of the quickest ways to destroy the admissibility of evidence is for the attorney to write on it. Always have an “unmarked” copy of your exhibits for trial. “Unmarked” means there is no underlining, notes or scribbling by an attorney - an identification marking is fine, and should be placed in one of the document’s corners. Use the space on the next page to outline all the exhibits you plan on using in court. Make sure that you have unmarked copies of each when you enter the courtroom.



Exhibits I will possibly use in court

# Description of physical evidence – what should the court get from it?



Cross-Examinations

The Purpose of Cross-Examination There are three main goals that you should keep in mind when conducting a cross-examination. The first goal is always to maintain control over the witness. During cross-examination, the focus should be on the attorney asking the questions. The witness has already had the opportunity to tell his/her story. Now, it is your turn. If you lose control over the witness and allow him/her to ramble on, the witness has the chance to reinforce his/her story to the jury. One way to keep the focus on you is to stand where you are in the center of the jury box, drawing the jurors’ attention away from the witness but not blocking any of the jurors. Short questions, leading questions and tone also help control. The second goal of cross-examination is to establish facts that are favorable to your case through the other side’s witnesses. You wish to elicit facts from the witness that support the fact scenario that you are telling the jury. After all, if a witness that the other side is claiming to be credible supports your version of the facts, that makes your theories that much more persuasive. The third goal may be to discredit the witness by showing they could not have seen what they claimed; they are not believable; they gave prior inconsistent statements; or they have a bias or prejudice that shades their testimony. Leading Questions Always use leading questions on cross-examination. These are typically questions that call for a yes or no answer. A leading question contains the answer in the question. You are leading the witness to the answer you want to hear. Typical phrasing of leading questions include: “Isn’t it true that….”; “It is true that….”; “You did… didn’t you?”; “Isn’t it a fact that ….” It is helpful to vary the format of the questions you ask. Ask each question firmly, indicating you know the answer already and are merely affirming it for the jury. It is a form of non-verbal communication to the witness and the jury that you are knowledgeable of the facts. A good leading question is short and simple. Leave out any unnecessary adjectives or adverbs. This will corner the witness and prevent them from challenging your question and will prevent the opposing counsel from objecting. Adjectives and adverbs allow for interpretation and give the witness the opportunity to disagree with your characterization and argue with you, causing you to lose control of the witness. It may allow your opponent to object to the characterization, causing you to lose the flow of your cross-examination. An example is: “You grabbed your razor-sharp switchblade knife and jabbed him numerous times in the stomach, didn’t you?” Better questions would be: “You have a knife, don’t you?” “The knife is sharp, isn’t it?” “You grabbed your knife, didn’t you?” “You stabbed Mr. Sandors with the knife, didn’t you?” The differences are: in the first question you are asking about four different things: 1) whether the witness had a knife; 2) the type of knife; 3) how sharp the knife was and 4) what was done with the knife; when framing the question like this, the witness can disagree with whether or not the knife was razor sharp or just sharp; whether it was a switchblade or



other type of knife; whether it was a jabbing or a stab; and how many times. The second series of questions is short, quick and potentially devastating to the witness. Note: On cross-examination, it is likely that your witness will not give you the answers you seek (i.e., admit to the crime). Don’t let this shake you. If your questions are delivered properly and paint a picture for the jury, the witness’s feeble yes or no answers become irrelevant. Another suggestion for both direct and cross examinations is to use names and avoid pronouns. It makes it easier for the jury to follow the action without trying to diagram your sentences and decide who did what to whom. Two Major Pitfalls to Avoid

Never ask a question to which you do not know the answer This is the most important way to maintain control over your witness. It is one of the cardinal rules of cross-examination. There should be no surprises. Know your witness. If you have statements that a witness has made, use that witness’s wording. You know that they are bound to their previous testimony. Use that to your advantage.

Don’t ask the one question too many

Remember, cross-examination is not the time to argue. That should be saved for closing arguments. If you are cross-examining an alleged murderer in a case where the murder occurred at 12 a.m., here are some questions that you may want to ask: “Isn’t it true that you left your house at 11:30 p.m.?” “And correct me if I am wrong, but isn’t it true that you arrived at the party at 12:30 a.m.?” “So you were alone between 11:30 p.m. and 12:30 a.m.?” Thus far, you have asked short, simple, leading questions to which you know the answers. These are not questions that allow the witness to speak a lot. You are in control. The question too many would be “So this gave you the perfect opportunity to go to your neighbor’s house and stab Mrs. Smith, didn’t it?” Now the witness will say no and explain (as he/she already has on direct) that she did not commit this crime. That was one question too many. It was a point that should have been saved for argument in closing, and you have hurt your case.



Offers of Proof

An offer of proof is a statement for the record of the substance of a witness’s testimony that would have been given but for the ruling of the judge to exclude such testimony. This is necessary for the record on appeal. In order to be granted an appeal, the moving party must show that an error was made on the trial level that may have affected the outcome of the case. It would be impossible for the appellate court to determine whether certain evidence may have affected the outcome of a trial if they do not know what that evidence would have shown. That is why an offer of proof is so crucial for the record on appeal. If an attorney is attempting to present evidence to the jury that he/she deems crucial to his/her case and the judge does not allow that evidence to be presented, that attorney may then proffer to the court for the record on appeal. Once the objection is sustained, the attorney will state, “Your honor, at this time I would request that I be permitted to make an offer of proof for the record on appeal.” The judge will then remove the jury from the room and the attorney will state, “Had this witness been permitted to answer my question, he/she would have stated. . .” or “Had this piece of evidence been admitted into evidence, it would have shown. . .” With the court’s permission, the offer of proof maybe conducted by questioning the witness about the objectionable evidence. At the conclusion of the offer of proof, the attorney should ask the court to reconsider its ruling in light of the testimony elicited.

Cross-examination checklist In your cross did you …

Control the witness with leading questions?

Refrain from asking a question that you did not know the answer to?

Keep from asking the question too many?

Stay organized, focused and clear -- resisting the temptation to beat the witness on every little point?

Help prove your theory of the case?



Impeaching a Witness on Cross-Examination A trial is a battle for credibility. The process of showing that the other side’s witness is not credible is called impeachment. New attorneys often mistakenly believe that impeachment requires a statement or action. One memorable example: during a mock trial competition, an attorney from a California university proved that a witness was making statements counter to her affidavit. The attorney, quite pleased with himself, turned to the judge and, with much fervor and passion, proclaimed, “Your Honor, I have impeached the witness.” The judge could not resist and started laughing at the attorney. When a witness is impeached, nothing happens. A lack of credibility is established; this is victory enough for the attorney. There are five ways to impeach (discredit) a witness:

1. Show that the witness has a bias, prejudice, or interest in the case that would affect his/her testimony. Examples are: if the witness has some sort of relationship with the defendant or complaining witness, if the witness is being paid by one party for his/her testimony, if the witness is testifying for an employer who could give the witness a promotion, or if the witness is being granted immunity for their testimony.

2. Introduce evidence about the bad character of the witness. Keep in mind that there are

two instances where evidence of a witness’s conviction of a crime is admissible: if the crime was punishable by imprisonment in excess of one year, and the probative value of admitting the evidence outweighs its prejudicial effect. It is also admissible if the crime involved dishonesty or false statement. In both cases, the evidence is not admissible if more than 10 years have elapsed.

3. Show that the capacity of the witness to testify was impaired in some way. For

example, if the witness wears glasses and wasn’t wearing them that day, if the witness was drinking or half asleep at the time of the observation, if the witness’s angle of view was poor or obstructed, etc.

4. Use a prior inconsistent statement to show contradictions in the witness’s testimony.

Any written statement made by a witness prior to trial is binding upon that witness during trial. If a witness indicates in his/her statement that the defendant was wearing a green shirt that day and then the witness tries to say in court that it was blue, you can use that prior statement to show that the witness is being inconsistent in his/her recollection of the facts. See the section below for details on how to do this.

5. Show the witness a report or letter where information to which they testified did not

appear. You would need to show this is information which should have been included and was not. It makes it look like the witness is embellishing their testimony and questions their credibility. An example is a police officer who testifies in court the defendant told the victim he was sorry and the police report does not mention any statement.



Impeachment by Prior Statement: Procedure Let’s assume a scenario already mentioned: the witness has just stated that the defendant was wearing a blue shirt and you have the statement in front of you where that same witness said that the shirt was green. When deciding whether or not to impeach, make sure you can lock the witness into the statement. Also, determine whether the witness can be truly impeached. If an issue is ambiguous, going through an impeachment may cost you more credibility than it does the witness. Finally, decide whether the issue is worth the time and effort of impeachment. If it does not significantly affect an issue of the case, it may not be. As the attorney you need to answer several questions: 1) is this an inconsistent statement? 2) does the inconsistency matter? 3) is the inconsistency clear or obvious or is it merely ambiguous? Using the blue/green shirt example, the two statements are inconsistent; the description matters because your client was not wearing a green shirt the night of the incident and the color difference is clear. Since this affects an issue of the case, whether or not your client was the offender it is important to point the inconsistency out to the jury. The following is the proper procedure:

1. Lock in the current statement a second time. “Today, while you were under oath you testified that the shirt was blue, correct?” 2. Take and mark as an exhibit the witness’s complete statement. Show it to opposing counsel stating: “May the record reflect I am showing counsel what has been previously marked as Defense Exhibit 1 for identification?” 3. The judge will say: “The record may so reflect.” 4. Ask the judge for permission to approach the witness. 5. Hand the statement to the witness and say: “Showing you what has been marked as Defense Exhibit 1 for identification, that is a copy of your statement, is it not?” 6. Once the witness says yes, ask some (or all) of the following:

• “When you made the statement you were as accurate as possible, weren’t you?”

• “When you made that statement you reviewed it prior to signing it?” • “When you made the statement it was closer in time to the incident than today,

wasn’t it?” • “You did sign and swear to the facts in the statement as being true and accurate,

did you not?”

7. Direct the witness’s attention to the area where he/she indicated that the shirt was green and state: “Isn’t it true that in your statement, in the third paragraph, second sentence… (read it exactly as written)?” It is usually better for you to read from the statement rather than letting the witness read from it. That way you can use your own intonation and



phrasing to make sure the jury hears the statement and its meaning. It also prevents the witness from going on and reading other parts of the statement that may be damaging to your case.

Once you have finished, take the statement back to your table and move on with your questioning. There is no need to ask anything else. In fact, it may mean that you are going too far, and may cause you to lose the moment. People are often tempted to say “So which is it, green or blue?” This gives the witness the opportunity to explain that it was turquoise. (You do not want to give the witness a chance to explain his answer.) You will not be leading and will have lost control. Save that part for closing argument, where you can emphasize its importance. Impeachment by Omission: Procedure It is also possible to impeach by omission. When a witness has given a statement prior to trial and then mentions an important piece of evidence at trial that was not in the statement, it is possible to discredit the witness for not having mentioned such an important fact before. The procedure that you would follow is the same as the first six steps above. Step seven is different. Instead of reading a particular line, you would ask the witness the following questions:

1. “When you made this statement, you were told to include all important facts, correct?” 2. “You in fact did include all the important facts, didn’t you?

3. “And nowhere in this statement do you state (insert new fact here), do you?”

Objections and Offers of Proof The Purpose of Objections If an attorney attempts to present evidence that is inadmissible according to the rules, the opposing attorney must bring it to the court’s attention through an objection. Once an objection is made, it is the judge’s responsibility to rule on that objection. The judge may sustain the objection, meaning that the evidence is inadmissible and may not be presented to the jury, or the judge may overrule the objection, allowing the evidence to be presented. Even if an objection is overruled, it is valuable because it allows the objecting party to appeal. If a piece of evidence is presented to the jury without objection, it is automatically admissible. How to Make an Objection When an objection is being made, the attorney should stand, say “Objection” and then state the grounds for the objection very succinctly. If the objection requires additional explanation, the attorney should ask to be heard further. After the objection, the judge will generally give the opposing attorney a chance to respond before making a ruling. The attorney can explain why the current question is not objectionable, or rephrase it so that it is no longer objectionable. If an objection is sustained, but the objectionable testimony was already said, and thus entered into the record, the attorney who made the objection should ask that the testimony be stricken from the record.



Examples of Objections Objections can be made to any evidence or testimony that does not meet the standards provided in the Rules of Evidence. Objections are a tricky business: if you object too often, you run the risk of annoying a jury and convincing them that you have something to hide; if you don’t object often enough, evidence will get in to the record that will hurt your case that a simple objection could have prevented. Understanding objections, their purpose, and how to apply them to trial will set you apart from 80% of mock trial competitors. The following are some of the most common objections and brief explanations.

Relevance In order for a piece of evidence to be admissible, it must be relevant to the case at hand. Evidence is relevant if it has any tendency to establish a fact that is material to the case. Objection: “Objection, relevance.” Response: “This evidence is probative on the issue of . . .” Possible issues include motive, opportunity, or credibility. Objections can also be made to relevant evidence if it is confusing, a waste of time, or if the prejudicial impact of the evidence outweighs its probative value. Leading Questions A leading question is one that suggests the desired answer, thereby putting such answer in the witness’s mouth. For example: “The car was blue;” or “You weren’t speeding, were you?” These questions can easily be rephrased so they are not leading: “What color was the car?” or “How fast were you going?” Leading questions are not allowed on direct examination unless they are just for laying a foundation. The best indication a question may be leading is if it can be answered with a yes or no.

Bear in mind that leading questions are allowed, and, in fact, preferred during cross-examination. Compound Question A question that asks for two or more items of information at the same time such that it is impossible to understand the meaning of the answer to the question is considered a compound question. If one of your questions is objected to as being compound, simply break it up into different parts. Ambiguous Question An ambiguous question is one that is susceptible to at least two interpretations, or is so vague as to make it likely to confuse the jury or witness. This type of question is inadmissible and should be rephrased so that it is clearer.



Narrative The purpose of direct examination is to get the witness to tell the relevant facts. The question must not seek such a broad range of information that the witness is allowed to narrate the entire story with one or two answers. Nor can the witness go beyond the question asked on direct examination and begin to narrate an entire story. Objection: “Objection, the witness is narrating,” or “Objection, this question calls for narration.” Lack of Personal Knowledge A witness may only testify as to matters about which she has personal knowledge, meaning matters that the witness has perceived through one of the senses. In order to establish that a witness has personal knowledge, it is necessary for the questioning attorney to lay a foundation indicating that the witness was in a position to perceive the subject matter of his/her testimony firsthand. Much of this is common sense. John Doe cannot testify that he saw someone in a room until it has been established that he was in the room. Expert witnesses, however, can testify about matters they did not observe firsthand, provided their expertise in the area has been established. Lack of Foundation Both physical evidence and testimony can be objectionable due to a lack of foundation. An exhibit might not have proper foundation laid if it has not been identified, if it has not been shown to be an accurate copy, or if it has not been shown how the witness is familiar with it. A question might be objectionable if it assumes facts not in evidence. For example, “What time was it when John assaulted you?” assumes an assault has taken place when that is what a trial will determine. Another example would be, “How fast was the blue car going?” before eliciting from the witness that the car was blue. Opinion Testimony Generally, lay witnesses may only testify with regard to perceptions and not characterizations or opinions. A lay witness may testify in the form of an opinion or inference where such opinion or inference is rationally based on the perception of that witness and is helpful in understanding the witness’ testimony or in determining a fact at issue. For example, a witness can testify if a person appeared happy, sad, nervous, excited, etc., but could not state that someone was clinically depressed. Other opinions of lay witnesses that are typically allowed are opinions with regard to intoxication, speed of moving objects, value of property, size, weight, time, and distance.

Hearsay Hearsay is an out-of-court statement being offered “for the truth of the matter asserted,” meaning the statement is being offered to prove that the content of the statement is true.



The reason for excluding such statements is that the person making them was not under oath at the time. Objection: “Objection, counsel’s question calls for hearsay” or “Objection, the witness’s testimony is hearsay." Possible reasons include the statement is not offered for the truth of the matter asserted, but for another limited purpose, the statement is a prior statement under oath by the witness, or it is an admission by a party opponent. (Beware: In criminal cases, the defendant is the only party since the state cannot speak.) Certain statements that are hearsay are still admissible because there is another reason (other than being under oath) which makes them likely to be true. Response: “This is an exception to hearsay because. . .” Possible reasons include: the statement is a present sense impression, it goes to the declarant’s state of mind, it is an excited utterance, it is a statement for the purposes of medical treatment, it is a recorded recollection, or it is part of a record created as part of a regularly conducted business activity. Speculation A witness may not testify as to the reasons behind the actions of another or guess as to the meaning to be ascribed to the actions of another. Additionally, lay witnesses can only testify as to what actually happened; they cannot guess as to what might have happened if circumstance had been different.

Objection: “Objection, calls for speculation.” Character Evidence Evidence that the witness has been convicted of a crime involving dishonesty or false statement is admissible unless more than 10 years time has elapsed since conviction. Other evidence of criminal conviction shall be admitted if the crime was punishable by death or imprisonment in excess of 1 year and the conviction occurred less than 10 years ago. Unresponsive If a witness responds with something other than an answer to a question, or embellishes on cross-examination and goes beyond the question asked, the questioning attorney can “move to strike” the extemporaneous testimony from the record. Remember, however, that it is better to control a witness on your own than to ask a judge for help.



Objection: “Your honor, at this time I would move to strike everything after _______ as unresponsive to my question.” Asked and Answered A question may be objected to as asked and answered when it calls for the repetition of testimony from a witness who has previously given the same testimony in response to a question asked by examining counsel. Be careful: attorneys are given a great deal of latitude with regard to repetition on cross-examination. They are also allowed to delve deeper into issues that were already brought up on direct.

The Closing Argument

The Purpose of a Closing Argument This is the time for you to make your argument and sum up the case. Remember that in order to be persuasive, you must sound like you mean what you are saying, make eye contact, and be prepared and organized in your presentation. If you don’t care enough about your client’s interests to be well-prepared, why should the jury care? Jurors make up their minds using logic, emotion, the facts, and (more often than not) a commitment to follow the instructions the judge has given them. They take their responsibility very seriously. A good closing argument aids the jurors to do that and to do it in your favor. The Goals of Closing There are various goals of a closing argument. They include:

(1) Explain and narrow down what the issues are that the jurors need to decide. (2) Explain how the evidence supports your theory of the case. (3) Highlight the facts which support your theory of the case. (4) Explain the law and how the facts support your case theory and how they prove or do

not prove the legal elements necessary for the crime. (5) Discuss the credibility of the witnesses and exhibits and why they should or should not

be believed. (6) Highlight the sympathetic aspects of your client if you are the defense or the

complaining witness/victim if you are the prosecution. A masterful closing attorney incorporates all the elements of trial, including your closing, into your final argument. Emphasize the key facts and evidence. If you entered physical evidence during the trial, it is generally a good idea to use it in your closing argument. It reminds the jurors of the testimony surrounding that piece of evidence and brings it to life. You should always point out the weaknesses in the other side’s theories and suggest rhetorical questions that you challenge the other side to answer. This approach sometimes causes the other side to abandon a planned closing argument in order to react to your challenge. Be



careful if you are the prosecution; you have the burden of proof in the case. You should spend more time proving the elements of the crime than you do focusing on the defense. Don’t forget to appeal to the jurors’ emotion. In most criminal cases, there is a victim. If you are the prosecution, use that victim’s plight to win sympathy points with the jury. Make them want to place blame. If you are the defense, acknowledge the victim. Don’t ignore him/her. Give the jury someone else to blame. In the last minute or so of your closing, be sure to tell the jury what verdict you want them to make. Remember, the rule of recency says that the juror will remember the last few things that you say. Structure of the Argument You should always begin your closing argument with a theme. Your theme should connect in some way to your opening statement. It provides the jurors with a sense of unity between how your case started and ended. Every closing argument will be unique to the case in which it is being given. There are certain components that will be used in every closing argument regardless of the type of case or which side you represent. They are:

Introduction: Re-introduce your theme to the jury; review your theory and why they are here. Issues: State what they are and do it in a way so the answer is obvious. What really happened and proof: This is where you organize the facts in a manner which is most favorable to you, and state the facts that support your theory. You then state what these facts mean. Things to include are: client or complaining witness’s testimony; other corroborating witnesses, exhibits, admissions from opponent’s witnesses; common sense and human nature; probabilities and improbabilities. If physical evidence was entered in the trial, it is generally a good idea to use it in your closing argument. Basis of liability/non-liability or guilt/innocence: As soon as you conclude that aspect of your argument on what happened and why the facts compel that conclusion of what occurred, you then argue why this proves that the defendant is liable/not liable/guilty/not guilty. Instructions: Tell the jurors what the judge will instruct them and how it supports your case concerning burden of proof; elements of claims, damages and defenses; definitions of important legal terms; credibility of witnesses; using common sense and experiences in life; sympathy should not be considered. This is where you will be incorporating the law into your argument.



Refuting the other side: For plaintiffs or prosecutors to mention and refute the defense in your closing argument allows you to dismiss their theory prior to their argument. Psychological research has shown that persons are more resistant to counterarguments if they have been given a reason to resist them beforehand. However, do not spend the majority of your argument refuting the other side if you have facts that support your theory. Do not forget to argue your case. Conclusion: The end of your argument should appeal to the jury’s sense of fairness and justice. It should remind the jury of a theme or other important part. It must tell the jury what verdict you are requesting.

The Prosecution’s Rebuttal Since the prosecution holds the burden of proof, they are given the courtesy of being the final voice the jury hears. The rebuttal is an opportunity to respond to the claims defense counsel has made in their closing argument, and reassert the prosecution’s claims. It is nearly impossible to prepare for a rebuttal before trial, so it is the closing attorney’s responsibility to pay especially close attention to defense’s closing. Remember to incorporate your theme into your rebuttal. While the prosecution can waive their right to a rebuttal, it is not recommended. To waive would give up the right to be the last one to address the jury. It may also suggest to the jury you cannot rebut the defense argument. Checklist for Closing Argument

1. Is your first statement going to make an impact? 2. Does your argument develop your theory? 3. Did you give the jury clear, forceful explanations of why the facts prove your theory? 4. Have your refuted your opponent’s case? (Secondary to proving yours) 5. Are you using exhibits where appropriate? 6. Have you used rhetorical devices? 7. Do you have a strong ending requesting a verdict in your favor?

Two Major Pitfalls to Avoid

Don’t use a scripted closing. Not only does it make your argument less persuasive, it also limits you. A trial can never be completely predictable. It is essential for the closing attorney to pay attention to all facets of the trial. Oftentimes, the trial judge does not allow evidence that you thought would be admitted. When that happens, you have to take that evidence out of your argument. There is nothing worse than an attorney who stands up to give an argument and reminds the jury of testimony that they never heard. The attorney looks ridiculous and loses a great deal of credibility in the eyes of the jurors. In some cases, witnesses or even opposing attorneys will say things that are extremely beneficial to your case during the trial. Make a note of those statements and add them to your closing. It shows the jury that you were paying attention to what happened.

Don’t be repetitive. Nothing will bore the jury more. You don’t want the jury to

completely tune you out.



Courtroom Decorum ♦ Don’t forget to dress and act professionally from the second that you enter the

courtroom until the second that you leave. The judge, jury, and opposing side will begin to sum you up from the moment they see you, even if it is before the formal proceedings begin.

♦ While you are sitting at counsel’s table, do not speak to your co-counsel during

trial. There is nothing more annoying to a judge or jury than hearing constant chattering or whispering coming from your table. Try to pass notes if you need to speak to one another. Remember… you need to be listening at all times for objectionable material that the other side is attempting to present.

♦ Please remember that your co-counsel is there to work with you. Listen to each

other when it comes to objections. For the purposes of our competition, only the attorney who conducts the direct examination of a witness may object on cross-examination and vice versa; this does not mean that you shouldn’t help one another.

♦ Whenever the judge talks, you should listen. If the judge cuts you off, stop

talking mid-sentence. DO NOT ARGUE WITH A JUDGE. Remember, the judge can make life very difficult for you and has the power to throw you in jail for contempt.

♦ Whenever you speak in court, be it for an objection, questioning, or any

statement, you should always stand. You need to show deference to the judge and the court at all times. Whenever speaking to a judge, you need to use a polite tone. Do not give any flip attitude. You will only be hurting yourself and your case if you do.

♦ Don’t be cocky...you will annoy the judge and the jury. ♦ Do not show any emotion if things do not go your way. You need to have a

complete “poker face” during trial as if everything that is happening is what you expect and want to happen.

♦ Know the material as well as possible. It gives you more of an opportunity to

pay attention to what is going on in the courtroom if you are not thinking about what your next question will be.

♦ Watch the number of papers that you keep at counsel’s table. Just as chattering

and whispering can get on people’s nerves, so can paper shuffling. ♦ Don’t argue with opposing counsel about objections. All arguments should be

addressed to the court. Speak to and look at the judge, not the other side.



♦ Always have any potential exhibits that you will need during questioning ready for you before you begin. There is nothing worse than looking for a document and making the judge and jury wait as you frantically sift through papers. You look sloppy and you lose the momentum of your questioning. This is one area where your co-counsel can be extremely helpful. Have them get your statements, evidence, etc. ready before you question the witness. That way, whenever you need something, they can inconspicuously hand it to you.

♦ Be careful of zoning out during trial. It is necessary to be paying attention at all

times so that something important doesn’t slip by you. ♦ Don’t say “thank you” every time the judge rules on an objection, especially

when he/she rules against you. Why should you thank judge? Some judges get extremely annoyed by this.

♦ Be aware of your nervous habits and keep them in check. The easiest way to

find out what your nervous habits are is to speak in front of a mirror. ♦ Watch your volume, diction, and speed when speaking. It is natural when

people get nervous for them to speak more quickly and slur their words together. Slow yourself down and make sure that the jury understands you.

♦ Make eye contact with the jury and appear confident. If you seem as though

you believe in yourself, they will be more likely to believe in you as well. ♦ Watch your “ums,” “ahs,” “wells,” and “yeahs.” Try to practice enough that

you don’t find the need to rely on these. It is better to pause than to stutter. ♦ Don’t be afraid to confer with co-counsel. If you run into a problem at any

point during the trial and you want to discuss something with your colleagues, just ask the judge for a moment to confer with co-counsel. There is nothing wrong with doing this once or twice. Just don’t make a habit out of it.

♦ Remember that the first person from your team to address the court (usually the

individual giving the opening statement) should greet the judge, introduce him/herself, and introduce his/her co-counsel. This personalizes things and makes a good first impression on the jury.

♦ Have fun with this and don’t get too stressed out. It is all a learning experience.

There is no question that you will do something wrong, just as you will do many things right.



The Law and Advocacy Trial Notebook

Introduction to your Trial Notebook

Many trial attorneys, if not all, prepare a trial notebook as trial approaches. Every attorney has his or her own format. The notebook will probably include the pleadings, motions and copies of some case law on specific evidentiary issues. What follows is an abbreviated form of a trial notebook for use in your Trial Sections and in preparation of the mock trial on the tenth day of your NSLC program. Your goal is simple: organization. The following organization is a suggestion as to how you should review the file. It will be helpful if you work on each section in conjunction with the lectures and review of the NSLC Criminal Trial Advocacy Handbook – make sure to fill in the blank spaces and take thorough notes as you proceed through the program. This notebook is provided to help you think more carefully about the case you will be presenting. The notebook is the work of the attorney and will never be shown to the opposing side because it is considered “work product” – your private notes are between you and your client. You will, however, want to share it with co-counsel because you are working as a team. The key to trial advocacy is preparation and organization. Use this notebook to help you achieve that.

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Theory/Theme 1. What is this case really about?

2. Why do I think Mr. Tanner is guilty/innocent?

3. What could the other side claim were his reasons and motivations?



4. What will I have to prove?

5. What are the facts that support my opinion? a. From defense witnesses



b. From prosecution witnesses

6. What theories (belonging to the other side) will I have to contend with?



7. What parts of my case are logical and believable?

8. What facts in the case are problematic or contradictory?

9. Can anything be done about it?

10. Is there a memorable word or phrase I can use?



My Side’s Witnesses Witness One:____________________________________

Who is he/she?

What facts can he/she testify to that will help prove my case?



What exhibits can he/she identify?

What facts can the opposing side bring out that will:

a. help their theory?

b. contradict my other witness?



c. damage his/her credibility?

What will the jury think of him/her?

Witness Two:_____________________________________

Who is he/she?




Witness Three:__________________________________

Who is he/she?






a. Help their theory?

b. Contradict my other witness?



c. Decrease his/her credibility?


Witness Four:________________________________

Who is he/she?




Notes:



Opposing Side’s Witnesses

Witness One:________________________________

Who is he/she?

What facts can he/she testify to that will hurt my case?

What facts can I bring out that will:

a. help my theory?

b. contradict their other witness?




Witness Two:___________________________________

Who is he/she?



a. help my theory?





Witness Three:__________________________________________

Who is he/she?





a. help my theory?





Witness Four:_________________________________________

Who is he/she?



a. help my theory?





Witness Five:_______________________________________

Who is he/she?



a. help my theory?





Notes:



Physical Evidence & Stipulated Facts

I. Physical evidence I wish to introduce: ___________________________________

II. What witness will I need to introduce this item? ___________________________________________________________________

a. Foundation

b. Explain

III. How will this item help me prove my theory of the case? IV. Once in evidence, how will I use this item?




II. What witness will I need to introduce this item? ____________________________________________________________________

a. Foundation

b. Explain






a. Foundation

b. Explain

III. How will this item help me prove my theory of the case?

IV. Once in evidence, how will I use this item?





a. Foundation

b. Explain




Why & How I Can Improve My Case

I. FACTS:

II. LAW:

III. THEORY:



IV. HOW I WILL PUT THEM TOGETHER:

V. WHY IT MAKES SENSE:



Problems with My Case

I. FACTS:

II. LAW:



III. HOLES IN LOGIC:



Problems with Opposing Side’s Case

I. FACTS:

II. LAW:



III. HOLES IN LOGIC:



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Useful Documents

Each of the following documents will assist you in your Mock Trial simulation and in your study of the law. Best of luck in the courtroom, and in the future!

• Mock Trial Time Limits • Time Cards • Witness Selection Form • Common Legal Terms • United States Constitution

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Mock Trial Time Limits

Although real criminal trials can last for days, weeks, or months, we only have a limited time available to us in the courtroom. Therefore, we will be imposing certain time limits on the simulation. You will try the case twice. One time, you and three teammates will be attorneys. Another time, you and the same teammates will serve as the three witnesses for your side, and a timekeeper. The timekeeper will note on the table below the time each component takes, and, using time cards, will inform the attorneys how much time they have left. Stop time when objections are being argued.

Element Time Limit Time Taken Time Remaining

Π Opening Statement 5 min.

Δ Opening Statements 5 min.

Π Direct Examinations (1) 20 mins. (for all 3)

Π (2) 20 mins. (for all 3)


Δ Cross Examinations (1) 20 mins. (for all 3)

Δ (2) 20 mins. (for all 3)


Δ Direct Examinations (1) 20 mins. (for all 3)



Π Cross Examinations (1) 20 mins. (for all 3)



Π Closing Arguments 7 mins.

Δ Closing Arguments 7 mins.

Π Rebuttal Remaining Π time



Time Cards

Minutes Remaining



Time Cards

Minute Remaining



Time Cards

Seconds Remaining



Witness Selection Form

The State of New Providence vs. Daniel Tanner

Prosecution Π

TA: ____________________

Team # 1

SELECT THREE WITNESSES Circle Gender Charlie Rice M F Mary Kay Boyd n/a n/a Dr. Pat Thomas M F

Team # 2


Team # 3


Team # 4


Defense Δ

TA: ____________________

Team #1

SELECT THREE WITNESSES Circle Gender Daniel Tanner n/a n/a Jeffrey May M F Glenn Van Wormer M F Dr. Roy Clyburn M F

Team # 2 SELECT THREE WITNESSES Circle Gender

Daniel Tanner n/a n/a Jeffrey May M F Glenn Van Wormer M F Dr. Roy Clyburn M F

Team # 3


Team # 4




Common Legal Terms

acquittal Judgment that a criminal defendant has not been proved guilty beyond a reasonable doubt; a verdict of “not guilty.” affidavit A written statement of facts confirmed or given under oath, before a notary or officer having the authority to administer these oaths. affirmed In the tradition of an appellate court, the court of appeals concludes that the lower court decision is correct and will stand as the correct judgment. answer The formal written statement by a defendant responding to a civil complaint and setting forth the grounds for his defense. appeal A request made after a trial by a party that has lost on one or more issues that a higher court (appellate court) review the trial court’s decision to determine if it was correct. To make such a request is “to appeal” or “to take an appeal.” One who submits an appeal is called the “appellant”; the other party is called the “appellee.” appellate Regarding appeals, an appellate court has the power to review the judgment of a lower court (trial court) or tribunal. For example, the U.S. circuit courts of appeal have the power to review the decisions of the U.S. district courts. arraignment A proceeding in which an individual who is accused of committing a crime is brought into court, told of the charges, and asked to plead guilty or not guilty.

bail Security given (usually in the form of money) for the release of a criminal defendant or witness from legal custody; used to secure said person’s appearance on a day and time set by the court. bailiff A court officer charged with keeping order in the court and helping the jury. The bailiff may also oversee custody of prisoners while in court during criminal proceedings.

a

b



bankruptcy A legal process by which persons or businesses that cannot pay their debts may seek the assistance of the court in starting fresh. Under the protection of the bankruptcy court, debtors may discharge their debts, usually by paying a portion of each debt. Bankruptcy judges preside over these proceedings. bench trial A trial without a jury in which a judge decides which party prevails. brief A written statement submitted by each party in a case that explains why the court should decide the case, or particular issues in a case, in that party’s favor.

capital offense A crime punishable by death. case law The law as reflected in the written decisions of cases coming before the courts. chambers A judge’s office, typically including work space for the judge’s law clerks and secretary. Judges often meet “in chambers” with the attorneys from both sides to discuss important trial issues. chief judge The judge who has primary responsibility for the administration of a given court; chief judges are determined by seniority. clerk of court An officer appointed by the judges of the court to assist in managing the flow of cases through the court, maintain court records, handle financial matters, and provide other administrative support to the court and judges. common law The legal system that originated in England and is now in use in the United States; relies on the articulation of legal principles in a historical succession of judicial decisions. Common law principles can be changed by legislation. complaint A written statement filed by the plaintiff that initiates a civil case, stating the wrongs allegedly committed by the defendant and requesting relief from the court. contract An agreement between two or more persons that creates an obligation to do or not to do a particular thing.

c



conviction A judgment of guilt against a criminal defendant. counsel Legal advice; a term also used to refer to the lawyers in a case. court Government entity authorized to resolve legal disputes. Judges sometimes use “court” to refer to themselves in the third person, as in “the court has found the defendant guilty.” court reporter A person who makes a word-for-word record of what is said in court, generally by using a stenographic machine, shorthand or audio recording, and then produces a transcript of the proceedings upon request.

damages Money paid by defendants to successful plaintiffs in civil cases to compensate the plaintiffs for their injuries. default judgment A judgment rendered in favor of the plaintiff because of the defendant’s failure to answer or appear to contest the plaintiff’s claim. defendant In a civil case, the person or organization against whom the plaintiff brings suit; in a criminal case, the person accused of the crime. deposition An oral statement made before an officer authorized by law to administer oaths. Such statements are often taken to examine potential witnesses, to obtain discovery, or to be used later in trial. See also discovery. discovery The process by which lawyers learn about their opponent’s case in preparation for trial. Typical tools of discovery include depositions, interrogatories, requests for admissions, and requests for documents. All of these devices help the lawyer learn the relevant facts and collect and examine any relevant documents or other materials. docket A log containing the complete history of each case in the form of brief chronological entries summarizing the court proceedings.

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en banc “In the bench” or “as a full bench.” Refers to court sessions with the entire membership of a court participating rather than the usual number. U.S. circuit courts of appeals usually sit in panels of three judges, but all the judges in the court may decide certain matters together. They are then said to be sitting “en banc” (occasionally spelled “in banc”). equitable Pertaining to civil suits in “equity” rather than in “law.” In English legal history, the courts of “law” could order the payment of damages and could afford no other remedy. See also damages. A separate court of “equity” could order someone to do something or to cease to do something. See, for example, injunction. In American jurisprudence, the federal courts have both legal and equitable power, but the distinction is still an important one. For example, a trial by jury is normally available in “law” cases but not in “equity” cases. evidence Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case in favor of one side or the other. expert witness A witness called to testify about certain events because of their knowledge of that area of study; an expert witness may not know the specific facts in the case, but may use their specialized knowledge to help the jury understand complex evidence. Before questioning occurs, they must be recognized by the court as an expert in their field.

federal public defender An attorney employed by the federal courts on a full-time basis to provide legal defense to defendants who are unable to afford counsel. The judiciary administers the federal defender program pursuant to the Criminal Justice Act. federal question jurisdiction Jurisdiction given to federal courts in cases involving the interpretation and application of the U.S. Constitution, acts of Congress, and treaties. felony A serious crime carrying a penalty of more than a year in prison. See also misdemeanor. file To place a paper in the official custody of the clerk of court to enter into the files or records of a case.

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grand jury A body of 16-23 citizens who listen to evidence of criminal allegations, which is presented by the prosecutors, and determine whether there is probable cause to believe an individual committed an offense. See also indictment and U.S. attorney.

habeas corpus A writ (court order) that is usually used to bring a prisoner before the court to determine the legality of his imprisonment. Someone imprisoned in state court proceedings can file a petition in federal court for a “writ of habeas corpus,” seeking to have the federal court review whether the state has violated his or her rights under the U.S. Constitution. Federal prisoners can file habeas petitions as well. A writ of habeas corpus may also be used to bring a person in custody before the court to give testimony or to be prosecuted. hearsay Statements by a witness who did not see or hear the incident in question but heard about it from someone else. Hearsay is usually not admissible as evidence in court. hung jury If less than the required number of jurors agree with the verdict, the jury is said to be “hung,” and unable to reach a decision. In this case, the case can be tried again.

impeachment 1. The process of calling a witness’s testimony into doubt. For example, if the attorney can show that the witness may have fabricated portions of his testimony, the witness is said to be “impeached”; 2. The constitutional process whereby the House of Representatives may “impeach” (accuse of misconduct) high officers of the federal government, who are then tried by the Senate. indictment The formal charge issued by a grand jury stating that there is enough evidence that the defendant committed the crime to justify having a trial; it is used primarily for felonies. See also information. in forma pauperis “In the manner of a pauper.” Permission given by the court to a person to file a case without payment of the required court fees because the person cannot pay them. information A formal accusation by a government attorney that the defendant committed a misdemeanor. See also indictment.

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injunction A court order prohibiting a defendant from performing a specific act, or compelling a defendant to perform a specific act. interrogatories Written questions sent by one party in a lawsuit to an opposing party as part of pretrial discovery in civil cases. The party receiving the interrogatories is required to answer them in writing under oath. issue 1. The disputed point between parties in a lawsuit; 2. To send out officially, as in a court issuing an order.

judge An official of the judicial branch with authority to decide lawsuits brought before courts. Used generically, the term judge may also refer to all judicial officers, including Supreme Court justices. The judge decides which evidence may be presented to the jury, and instructs the jury as to the applicable law and punishments. judgment The official decision of a court finally resolving the dispute between the parties to the lawsuit. jurisdiction 1. The legal authority of a court to hear and decide a case; 2. The geographic area over which the court has authority to decide cases. jurisprudence The study of law and the structure of the legal system. jury The group of ordinary citizens selected to hear the evidence in a trial and render a verdict on matters of fact. Usually a group of six or 12 individuals, depending on state law. In most states, the jury must reach a unanimous verdict. See also grand jury. jury instructions A judge’s directions to the jury before it begins deliberations regarding the factual questions it must answer and the legal rules that it must apply.

lawsuit A legal action started by a plaintiff against a defendant based on a complaint that the defendant failed to perform a legal duty which resulted in harm to the plaintiff.

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litigation A case, controversy, or lawsuit. Participants (plaintiffs and defendants) in lawsuits are called litigants.

magistrate judge A judicial officer of a district court who conducts initial proceedings in criminal cases, decides criminal misdemeanor cases, conducts many pretrial civil and criminal matters on behalf of district judges, and decides civil cases with the consent of the parties. misdemeanor An offense punishable by one year of imprisonment or less. See also felony. mistrial An invalid trial, caused by fundamental error. When a mistrial is declared, the trial must start again with the selection of a new jury. motion A request by a litigant to a judge for a decision on an issue relating to the case.

nolo contendere “No contest.” A plea of nolo contendere has the same effect as a plea of guilty, as far as the criminal sentence is concerned, but may not be considered as an admission of guilt for any other purpose.

opinion A judge’s written explanation of the decision of the court. Because a case may be heard by three or more judges in the court of appeals, the opinion in appellate decisions can take several forms. If all the judges completely agree on the result, one judge will write the opinion for all. If the judges do not agree, the formal decision will be based upon the view of the majority, and one member of the majority will write the opinion. The judges who did not agree with the majority may write separately in dissenting or concurring opinions to present their views. A dissenting opinion disagrees with the majority opinion because of the reasoning and/or the principles of law the majority used to decide the case. A concurring opinion agrees with the decision of the majority opinion, but offers further comment or clarification or even an entirely different reason for reaching the same result. Only the majority opinion can serve as binding precedent in future cases. See also precedent. oral argument An opportunity for lawyers to summarize their position before the court and also to answer the judge’s questions.

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panel 1. In appellate cases, a group of judges (usually three) assigned to decide the case; 2. In the jury selection process, the group of potential jurors; 3. The list of attorneys who are both available and qualified to serve as court-

appointed counsel for criminal defendants who cannot afford their own counsel. party One of the litigants. At the trial level, the parties are typically referred to as the plaintiff and defendant. On appeal, they are known as the appellant and appellee, or in some cases involving administrative agencies, as the petitioner and respondent. petit jury Trial jury. A group of citizens who hear the evidence presented by both sides at trial and determine the facts in dispute. Federal criminal juries consist of 12 persons. Federal civil juries consist of at least six persons. See also jury and grand jury. petty offense A federal misdemeanor punishable by six months or less in prison. plaintiff The person who files the complaint in a civil lawsuit. The plaintiff alleges that they were injured in some way by the conduct of another. plea In a criminal case, the defendant’s pleading “guilty” or “not guilty” in answer to the charges. See also nolo contendere. pleadings Written statements filed with the court which describe a party’s legal or factual assertions about the case. precedent A court decision in an earlier case with facts and legal issues similar to a dispute currently before a court. Judges will generally “follow precedent” – meaning that they use the principles established in earlier cases to decide new cases that have similar facts and raise similar legal issues. A judge will disregard precedent if a party can show that the earlier case was wrongly decided, or that it differed in some significant way from the current case. pre-sentence report A report prepared by a court’s probation officer, after a person has been convicted of an offense, summarizing for the court the background information needed to determine the appropriate sentence.

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pretrial conference A meeting of the judge and lawyers to plan the trial, to discuss which matters should be presented to the jury, to review proposed evidence and witnesses, and to set a trial schedule. Typically, the judge and the parties also discuss the possibility of settlement of the case. pretrial services A department of the district court that conducts an investigation of a criminal defendant’s background in order to help a judge decide whether to release the defendant into the community before trial. probation 1. A sentencing alternative to imprisonment in which the court releases convicted defendants under supervision of a probation officer, who makes certain that the defendant follows certain rules (e.g., gets a job, gets drug counseling, etc.); 2. A department of the court that prepares a pre-sentence report. probation officer Officers of the probation office of a court. Probation officer duties include conducting pre-sentence investigations, preparing pre-sentence reports on convicted defendants, and supervising released defendants. procedure The rules for conducting a lawsuit; there are rules of civil procedure, criminal procedure evidence, bankruptcy, and appellate procedure. pro per A slang expression sometimes used to refer to a pro se litigant. It is a corruption of the Latin phrase “in propria persona.” pro se A Latin term meaning “on one’s own behalf”; in courts, it refers to the persons who present their own case without lawyers. prosecute To charge someone with a crime. A prosecutor tries a criminal case on behalf of the government.

record A written account of the proceedings in a case, including all pleadings, evidence, and exhibits submitted in the course of the case. remand The act of an appellate court sending a case to a lower court for further proceedings.

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reverse The act of an appellate court setting aside the decision of a trial court. A reversal is often accompanied by a remand to the lower court for further proceedings.

sentence The punishment ordered by a court for a defendant convicted of a crime. sentencing guidelines A set of rules and principles established by the United States Sentencing Commission that trial judges use to determine the sentence for a convicted defendant. sequester To separate. Sometimes juries are sequestered from outside influence during their deliberations. service of process The delivery of writs or summonses to the appropriate party. settlement A resolution by parties to a lawsuit of their dispute with a trial. Settlements often involve the payment or compensation by one party in at least partial satisfaction of the other party’s claims, but usually do not include the admission of fault. statute A law passed by a legislature. statute of limitations A law that sets the deadline by which parties must file suit to enforce their rights. For example, if a state has a five-year statute of limitation for breaches of contract, and Jon breached a contract with Susan on January 1, 1995, Susan must file her lawsuit by January 1, 2000. If the deadline passes, the “statute of limitations has run” and the party may be prohibited from bringing a lawsuit; i.e., the claim is “time-barred.” Sometimes a party’s attempt to assert his or her rights will “toll” the statute of limitations, giving the party additional time to file suit. subpoena A command, issued under authority of a court or other authorized government entity, to a witness to appear and give testimony. subpoena duces tecum A command to a witness to appear and produce documents. summary judgment A decision made on the basis of statements and evidence presented for the record without a trial. It is used when it is not necessary to resolve any factual disputes in

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the case. Summary judgment is granted when – on the undisputed facts in the record – one party is entitled to judgment as a matter of law.

temporary restraining order Prohibits a person from taking an action that is likely to cause irreparable harm. This differs from an injunction in that it may be granted immediately, without notice to the opposing party, and without a hearing. It is intended to last only until a hearing can be held. Sometimes referred to as a “T.R.O.” testimony Evidence presented orally by witnesses during trials or before grand juries. toll See statute of limitations. tort A civil wrong or breach of a duty to another person. The “victim” of a tort may be entitled to sue for the harm suffered. Victims of crimes may also sue in tort for the wrongs done to them. Most tort cases are handled in state court, except when the tort occurs on federal property (e.g., a military base), when the government is the defendant, or when there is diversity of citizenship between the parties. transcript A written, word-for-word record of what was said, either in a proceeding such as a trial, or during some other formal conversation, such as a hearing or oral deposition. trustee In a bankruptcy case, a person appointed to represent the interests of the bankruptcy estate and the unsecured creditors. The trustee’s responsibilities may include liquidating the property of the estate, making distributions to creditors, and bringing actions against creditors or the debtor to recover property of the bankruptcy estate.

uphold The appellate court agrees with the lower court decision and allows it to stand. See also affirmed. U.S. Attorney A lawyer appointed by the President in each judicial district to prosecute and defend cases for the federal government. The U.S. Attorney employs a staff of Assistant U.S. Attorneys who appear as the government’s attorneys in individual cases.

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venue The geographical location in which a case is tried. verdict The decision of a trial jury or a judge that determines the guilt or innocence of a criminal defendant, or that determines the final outcome of a civil case. voir dire The process by which judges and lawyers select a trial jury from among those eligible to serve, by questioning them to make certain that they would fairly decide the case. “Voir dire” is a phrase meaning “to speak the truth.”

warrant A written order authorizing official action by law enforcement officials, usually directing them to arrest the individual named in the warrant. A search warrant orders that a specific location be searched for items, which if found, can be used in court as evidence. witness A person called upon by either side in a lawsuit to give testimony before the court or jury. A witness must have specific knowledge of what happened; witnesses are generally not allowed to present hearsay, opinions, or speculation about events to which they testify. writ A formal written command or order, issued by the court, requesting the performance of a specific act. writ of certiorari An order issued by the U.S. Supreme Court directing the lower court to transmit records for a case which it will hear on appeal.

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