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Chapter
28
Mock Trial The training of lawyers
is a training in logic.
After completing this chapter debaters will be able to:
~Oliver Wendell
1. Explain what a mock trial is.
2. Identify and describe the basic general rules of evidence and trial Holmes, Jr.
procedure.
3. Demonstrate how to conduct a mock trial.
Introduction
The role of public speaking and debate in courts of law can’t be overem-
phasized. Virtually every skill and strategy used in competitive debate is
applicable to a trial. As a result, many students interested in competitive
debate and the law also participate in mock trial competitions. Many
states have such competitions, often associated with Law Day activities.
In 1985, an annual national Mock Trial Tournament began and is held in
May each year. Mock trial cases for students of all ages are available.
exhibits related to the case. A statute related to The purpose of this chapter is to provide an
the dispute is also part of the case. overview of mock trial competition proce-
Occasionally decisions about related court dures. The first step is to develop an
cases are included. Cases for elementary understanding of the unique vocabulary and
students are based on fairy tales with charac- basic concepts used in a trial.
ters such as “Golden Locks” being sued by the
three bears for bad manners. Who Are the Participants?
Most mock trials rely on basic rules of Rather than the affirmative and negative, the
evidence and procedure. One important feature two sides arguing against each other in a civil
of mock trial is that when you arrive at the mock trial are called the plaintiff and the
actual stage of competition, only the materials defendant. The plaintiff is the person
you are given to start with will be used in the bringing the action or filing the lawsuit; the
trial. Unlike policy or Lincoln-Douglas debate, defendant is the person being sued. Both are
mock trials force you to concentrate on the frequently referred to as the litigants. In a
specific facts of a case and the given legal criminal trial, the government, represented by
precedents. It is from these sources alone that a prosecutor, brings the action against a
you must make your case. defendant, who has been accused of a crime.
Each side in a mock trial is composed of a
Students compose opening statements and team of attorneys and a set number of
closing arguments and prepare for direct exam- witnesses (usually three on each side). The
ination and cross-examination of witnesses. teams present their arguments to a judge or a
Participants learn the procedures for objecting panel of judges. A sample judging form is
to questions or testimony that violate the stan- included in Appendix C. Judges may be
dards for a fair trial. Judges offer decisions asked to render two decisions: one on the
based on performance. Teachers, law students, merits of the case, declaring a winning side;
lawyers, or actual judges serve as judges for the other on the way the cases were argued by
mock trials. Just as with other forms of debate, declaring a winning team.
there are time limits for the competition. The
following is one example of a format that takes Civil and Criminal Cases
approximately two hours. A mock trial case can be either civil or crim-
Opening Statements . . 4 min. for each side inal. There is an important difference
between the two. In civil cases, a plaintiff
Direct & Redirect Examinations . . 30 min. wins by convincing a judge or by a “prepon-
for three witnesses derance of evidence.” If the jury or judge is
Cross-Examinations . . . . 15 min. for 51% sure the plaintiff’s claim is true, the
three witnesses plaintiff wins. In a criminal case, the prose-
Re-cross is allowed cution must prove a defendant’s guilt
“beyond a reasonable doubt.”
Closing Arguments . . 6 min. for each side
fied as “experts” or unless the opinion is based It is important to treat witnesses in ways that
on the common experience of laypersons in the will build on your case and diminish the other
community. A witness must have personal side’s. To build credibility, always be sure to
knowledge about all to which he or she testifies. make the court understand how qualified a
For mock trial purposes, evidence about a witness is and therefore how solid their testi-
witness’s character may not be introduced unless mony is. Use formal titles to build
the person’s character is an issue in the case. credibility—if you have a highly qualified
expert, such as a scientist or a doctor, address
If a witness is unable to recall a statement them as such. Ross notes that if you wish to
made in the affidavit, the attorney may intro- make a colder, factual witness seem friendlier
duce the portion of the affidavit into evidence or accessible, you may want to downplay their
that will help the witness remember. Any credentials and use first names or even nick-
factual areas covered in direct examination names (Getting Down to Cases 9).
may be subject to cross-examination.
There are some important things to take into Introducing Exhibits and
account when considering your witnesses. Physical Evidence
Ross puts witnesses into three categories Exhibits are the tangible objects that are
(listed from most to least important) (Ross, presented to establish your case. The physical
Who Goes Where 17): evidence must be relevant to the case, and you
must be able to defend its use on that basis.
1. Big Yahoo (that’s the defendant or Procedurally, follow these steps:
respondent on defense and the key
witness or plaintiff on the other side). A. “Your honor, I ask that this knife be
marked for identification as Plaintiff’s
2. Big Mouth (that’s the expert witness or at Exhibit A.” Show the article and hand it
least the one that seems to know it all). to the bailiff for marking.
3. Little Sidekick (that’s often a character B. Show the knife to the opposing counsel,
witness and many times may be a who may object to its offering.
liability to the side he’s supposed to be C. Show the knife to the witness and
testifying for). proceed to have the witness identify it.
While being cast as a witness may not seem to D. If you wish to place it into evidence,
be as interesting or as challenging as being an say, “Your honor, I offer this knife for
attorney, witnesses play a crucial role in the admission into evidence as Plaintiff’s
mock trial. Ross and others point out that since Exhibit A, and ask the court to so
most of your judges will themselves be actual admit it.”
attorneys, “they tend to be overly impressed
E. The judge then rules on its admissibility.
with good witnesses—probably because they
Hand the knife to the judge.
are burdened by their own clients’ lack of
acceptable looks and speech” (Who Goes
Where 17).
It is important to return to the “tease” method It is important to object promptly, but don’t
mentioned in the section on opening remarks. argue the merits of the objection. An objection
Instead of forecasting what will happen, now can be sustained (upheld) or overruled
you are summarizing what has happened. In the (denied). If the objection is sustained, ask the
very same way the rebuttals in a policy debate judge to strike improper evidence.
round are used for summarizing and succinctly
shutting off issues, your closing remarks are the The two most common objections are:
final opportunity you have to cast arguments 1. Objections to the form of question. Is it
and witnesses as you want them to be remem- leading and thus improper? Is it vague
bered by the judges. Your closing statement or argumentative?
should also lay out any of the burden you want
the other side to meet. Depending upon the type 2. Objections to the content of testimony.
of trial you are in, civil or criminal, the stan- Regardless of the question, this objec-
dards you apply will be different. In a criminal tion argues that the testimony is
trial, both sides will try to contend that either improper. It may be improper because
their client is innocent beyond reasonable doubt of a lack of a witness’s personal knowl-
or that, in the prosecution’s case, the defendant edge or requires speculation on the part
is guilty beyond reasonable doubt. In a civil of the witness. It may also be objection-
case, both sides will rely on the preponderance able because it is irrelevant or is
of evidence to prove their sides. Just as in a hearsay. Hearsay is any evidence of a
policy round you must give the judge(s) in a statement made by someone who is not
mock trial tools with which to evaluate the key present in the court and is offered to
issues at stake. Don’t count on good memories. prove a fact, piece of evidence, or a
Instead, use the tease method and, as always, witness’s testimony. Hearsay evidence is
remember KISS. Keep whatever you say not permitted.
simple to make it understandable.
Resources
Objections The Internet has numerous resources to assist
It is the attorney’s responsibility to object to students and coaches in learning more about
important inadmissible evidence or statements. this activity. The American Mock Trial
An objection should be made anytime you Association’s site at www.collegemocktrial.org
believe that the opposing attorney has violated has valuable information that underscores and
the rules of evidence. The judge may consider enhances the material in this chapter. The Web
anything you don’t object to. Use the following site for high school competitions also includes
procedures when making an objection. access to a newsletter (www.nationalmock-
trial.org). It provides valuable information on
1. Stand up to make the objection. how to get started including state coordinator
2. Speak only to the judge. contact information. A source of practice cases
is found at www.andersonkill.com/titanic/
3. State your objection succinctly and facts.htm. Street Law, an organization of law
explain the reason for the objection. teachers and students, has long supported the
mock trial movement by preparing scenarios It follows the pattern of an actual trial but with
for competition and practice. Their Web site at simplified rules of evidence and procedure.
www.streetlaw.org/mockt2.html is an excellent Many of the same strategies employed in
source of material. policy and Lincoln-Douglas debate are also
effective in a mock trial. Scenarios are
Summary provided to students who play the roles of
A mock trial provides an opportunity to gain attorneys and witnesses. At the conclusion, a
useful knowledge about the law and to hone judge renders a decision.
argumentation and communication skills.
Notes
Ross, M. Donna, “Mock Trial Part V, An Open and Shut Case, That is — How to Open and How
to Shut,” The Rostrum, (January, 1998), p. 13. (debate.uvm.edu/NFL/rostrumlibmocktrial.html).
Ross, M. Donna, “Try Mock Trial: Part III – Who Goes Where?” The Rostrum, (June, 1997),
p. 17. (debate.uvm.edu/NFL/rostrumlibmocktrial.html).
Ross, M. Donna, “Try Mock Trial: Part IV – Getting Down to Cases,” The Rostrum, (October,
1997), p. 9. (debate.uvm.edu/NFL/rostrumlibmocktrial.html).
Activities
Starting Out
1. Review the mock trial scenarios available from the American Bar Association and select
a trial suggested for elementary students. Use this trial as a way of learning the proce-
dures in a mock trial before preparing for a more realistic case.
2. Reenact a famous local trial. Using facts researched by examining the court transcripts
in the public record at the courthouse, prepare your own scenario for the trial. While
each side may get ideas from the way the trial was actually conducted, develop your
own strategies.
3. Using the Midland v. Pence, et al. case scenario on pages 229–231, conduct a mock trial
as a class. Have class members participate as jurors and complete the observation form
found in appendix C.
4. Attend a trial in a city, county, state, or federal court. Observe how the attorneys
approach each stage of the trial. What did you learn that can benefit you? What prac-
tices did you see that were not successful?
continued
Activities continued
Experience Counts
1. With a partner, review the comment sheets you receive from a competition and work on
the areas most in need of improvement. Assist one another through drills, revising
opening statements, or reviewing your questioning techniques.
Web Savvy
1. Go to the college division mock trial Web site at www.collegemocktrial.org and select
some of the old cases to use for practice.
2. Hone your skills online by going to British online mock trial site at
www.abc.net.au/mocktrial/default.htm. How do trial procedures in Britain differ from
American procedures? How are they similar?
They immediately began to march around his block, chanting phrases such as: “The
Superintendent must go, snake Umbard also”; “We are going to the home of the snake, the
snakepit is down the street”; “Hey, hey, what do you know, John Sharp must go.” They
carried signs which read, “Umbard Fire Sharp!” and “Sharp Must Go—Now.” They also
sang civil rights songs such as “We Shall Overcome” and “We Shall Not Be Moved.”
During this time, protest leader Jim Pence instructed everyone to keep marching, but not to
“answer anyone back.” He also told them, “Don’t worry about anything that is going to be
said to you. Just keep marching. If anyone hits you or anything, try to remember what they
look like, but above all, do not hit them back. Keep the lines straight and keep them tight.”
As the marchers continued around the block, neighbors began coming out of their homes.
Some of them placed lawn sprinklers onto the sidewalk, forcing the demonstrators to walk
into the streets. Others yelled out of their windows and doorways. By 9:00 p.m., 100 to 150
spectators had formed a line of march ahead of the demonstrators, and by 9:20 p.m., a group
of over 1,000 people had gathered.
There were shouts and threats, such as: “Get the hell out of here”; “Get the hell out of here
or we’ll break your ___ head open.” Rocks and eggs were thrown at the marchers from the
crowd, and there were numerous attempts by members of the crowd to break out from
behind police lines which were protecting the demonstrators. Despite Jim Pence’s instruc-
tions, there was evidence of some demonstrators shouting back to counter-demonstrators,
and there were reports of several fights.
About 9:30 p.m., Police Lieutenant Tom Judson told Pence that the situation was dangerous
and becoming riotous. He offered a police escort for any who wished to leave. Three of the
marchers did so, but the remaining demonstrators refused. After a number of unsuccessful
attempts to persuade them to leave, the police arrested the demonstrators and took them
away in police vans. They were charged with violating a Midland disorderly conduct ordi-
nance which read:
All persons who shall make, aid, countenance, or assist in making any improper noise, riot,
disturbance, breach of peace, or division tending to a breach of the peace, within the limits
of the city, and all persons who shall collect in bodies or crowds for unlawful purposes to
the annoyance or disturbance of other persons...shall be deemed guilty of disorderly
conduct, and upon conviction shall be fined not less than $1.00 or more than $200.00 for
each offense.
Congress shall make no law...abridging the freedom of speech...or the right of the people
peacefully to assemble...
Judson: From the outset, we knew there would be trouble. That is why we had 45 policemen
as well as attorneys on the scene. Generally speaking, the demonstrators were peaceful.
However, by about 9:15 p.m., the situation was getting pretty tense. I felt that the demon-
strators had had more than ample time to voice their protest. The crowd was getting larger,
darkness had descended, and there was only so much that my men could do to keep the situ-
ation under control. When the demonstrators repeatedly refused to be escorted out of the
area, they left me no choice but to arrest them.
Conway: Ours is a quiet neighborhood. When the scores of demonstrators started marching
and chanting, not to mention the many police with them, it was like an invasion. Naturally,
there was no way for me to relax with all this going on and I was really in fear for my
personal safety and the safety of my family. I could see what was going on from my window,
and it looked like everyone was yelling at each other, there was some pushing and shoving,
and all sorts of chaos. The police were doing their best to keep the two groups separated and
I was sure glad when the police finally rounded up the demonstrators and took them away.
Some ugly things could have happened if they hadn’t acted as they did.
Pence: Throughout the march, the demonstrators had been peaceful and orderly. We were
very careful to avoid confrontation, but we wanted to state our opinion as clearly and effec-
tively as possible. It was the Mayor’s neighbors who were violating the ordinance—they
were shouting profanities, hurling rocks and eggs, and trying to break through police lines—
they’re the ones who should have been arrested. It was our right to refuse the police
escort...we had not done anything unlawful.
Robinson: Sure I was scared—it was like walking into the lion’s den. But we believed that
Sharp was not carrying out the law, and that Umbard could do something about getting him
to act. At no time did I see or hear any of us egging Umbard’s neighbors on. Jim had told us
to turn the other cheek and we were doing that. Yes, the police protected us, but that’s what
they’re supposed to do. We were just exercising our freedom of speech. It was the others who
were unruly and causing trouble.
JUDGE’S INSTRUCTIONS
“The questions posed by this case are by no means simple. On the one hand, we have the
precious right to freedom of speech, an absolute necessity in our open and democratic form
of government. On the other hand, we have the need to maintain public order and insure the
safety and general welfare of our citizens. Your difficult task, members of the jury, will be to
determine whether the defendants did in fact violate the ordinance in question beyond a
reasonable doubt. I want to emphasize that under our law, the police do not have the right to
stop a peaceful demonstration merely because a hostile crowd may not agree with the views
of the demonstrators. However, if you decide that the police made all reasonable efforts to
control the situation, then an arrest for an otherwise lawful demonstration may be made. You
have heard the arguments of both the prosecution and defense in this case. You may now
adjourn to consider the arguments presented and return to the court once a verdict is reached.”
This scenario was reprinted with permission from the Kansas Bar Association.