Trial Tips For Defense and Prosecution Typical Sequence of Events in a Trial

A number of events typically occur during a trial, and most must happen according to a particular sequence which may vary slightly based on state or local rules of practice. In general however, the following sequence is observed: 1. Judge enters and takes the bench. 2. Clerk calls the case. 3. Prosecutor makes an opening statement. 4. Defense makes an opening statement. 5. Prosecutor presents case: a. Prosecutor calls first witness and conducts direct examination. b. Defense cross examines the witness. c. Prosecutor may conduct redirect examination. d. Steps a, b, & c completed for each Prosecutor witness. 6. Prosecutor rests case. 7. Defense presents case. a. Defense calls first witness and conducts direct examination. b. Prosecutor cross examines the witness. c. Defense may conduct redirect examination. d. Steps a, b, & c completed for each Prosecutor witness. 8. Defense rests. 9. Prosecutor makes closing argument. 10. Defense makes closing argument. 11. Prosecutor offers any rebuttal argument. 12. Jury instructions [if there is a jury]. 13. Jury/Judge deliberations. 14. Verdict/decision/Judgment. 15. Sentence, if defendant was found guilty.

Tips on Presenting Each Phase of the Mock Trial

Opening Statement Explain what you plan to prove and how; present the events of the case; suggest a motive or lack of motive for the crime. Proper phrasing includes: "The facts will show ...." "Witness (full name) will be called to tell ..." "The defendant will testify that ..." Direct Examination Call for answers based on information provided in the case materials; reveal all of the facts favorable to your position; ask the witness to tell the story; make the witness credible. Cross Examination Call for answers based on information given in the case materials; use leading questions to get "yes" or "no" answers; never allow a witness to surprise you. Re-Direct Examination Limit the damage done to witnesses' credibility; enhance their truth-telling image in the eyes of the Court. Closing Statement Synthesize what actually happened in court rather than being rehearsed; emphasize the facts that support the claims of your side. but do not raise any new facts; attempt to reconcile any inconsistencies that might hurt your side; conclude the argument with an appeal to render a verdict in your clients favor (i.e. to convict or to acquit). Proper Phrasing Includes: "The evidence has clearly shown that ..." "The prosecution has failed to prove that ...." "The defense would have you believe that..."

Form of Questions
Direct Examination Use direct questions that let the witness tell their story. To establish their credibility for the Court ask for their: name place of residence length of residence employment professional qualifications - if you wish to qualify the witness as an expert. Properly Phrased Questions: "Could you please tell the court what occurred on (date)?" "What happened after the defendant struck you?" "How long did you see . . . ?" Conclude with: "Thank you, (name of witness)." "That will be all your honor." Cross Examination: Use leading questions and damage the witness's credibility. Properly Phrased Questions: "It is a fact that ?" "Wouldn't you agree that ?" "Don't you think that . . . ?" Conclude with: "Thank you, (name of witness)." "That will be all your honor." Redirect Examination Attorneys conduct redirect examination to clarify now (unexpected) issues or facts brought out in the immediately preceding cross examination only. If an attorney asks questions beyond the issues raised on cross, they may be objected to as "outside the scope of cross examination." Work closely with your attorney advisor on redirect strategies. Impeachment During Cross Examination On cross examination the attorney should try to show the court that the witness cannot be believed. This is called impeaching the witness. It may be done by asking questions about prior conduct that makes the witness's credibility doubtful. Other times, It may be done by asking about evidence of certain types of criminal convictions.

Impeachment may also be done by introducing the witness's statement, and asking the witness whether he/she has contradicted something in the statement (i.e. identifying the specific contradiction between the witnesses statement and oral testimony. Example: Prior Conduct "Is it true you filed false income tax returns?" Example: Past Conviction "Is it true you've been convicted of assault?" Relevance Example 1: A witness says she saw a man jump from a train. This is direct evidence that the man had been on the train. It is circumstantial evidence that the man had just held up the passengers. Example 2: Eyewitness testimony that the defendant shot the victim is direct evidence of the assault by the defendant, while testimony establishing that the defendant was seen leaving the victim's apartment with a smoking gun is circumstantial evidence of the defendant's assault. Laying the Proper Foundation To establish the relevance of circumstantial evidence, you may need to lay a foundation. Laying a proper foundation means that, before a witness can testify to certain facts, it must be shown that the witness can testify to certain facts, it must be shown that the witness was in a position to know about those facts. Example: If an attorney asks a witness if she saw X leave the convenience store after the robbery, opposing counsel may object for lack of proper foundation. The questioning attorney should ask the witness first if she was at or near the scene at the approximate time the convenience store robbery occurred. This lays the foundation that the witness is legally competent to testify to the underlying fact. Sometimes when laying a foundation, the opposing attorney may object to your offer of proof on the ground of relevance, and the judge may ask you to explain how the offered proof relates to the case. Personal Knowledge Example 1: The witness knew the victim and last saw he, on Tuesday. The witness heard on the radio that the victim had been shot on Wednesday evening. The witness lacks personal knowledge of the shooting and cannot testify about it. Example 2: From around a comer, the witness heard a commotion. Upon investigating, the witness found the victim at the foot of the stairs, and saw the defendant on the landing, smirking. The witness cannot testify over the defense attorney's objection that the defendant had pushed the victim down the stairs.

Hearsay Exceptions Permitted during the Mock Trial

Present Sense Impression Statement describing or explaining an event/condition made while the person making the statement was watching the event/condition or immediately thereafter. Excited Utterance Statement relating to a startling event/condition made while the person making the statement was under the stress of excitement caused by the event or condition. Recorded Recollection Memorandum or record concerning the matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately. Must demonstrate to the Court that it was made when the matter was fresh in the witness's memory and reflects the knowledge correctly. Medical Statements Statements made for the purpose of medical diagnosis or treatment. Records of a Regularly Conducted Activity Any type of data in any form if kept in the course of a regularly conducted business activity, offered by a custodian of the records. State of Mind A statement describing the state of mind of the person making the statement, If the state of mind of the person making the statement is an important aspect of the case.

Summary of Allowable Mock Trial Objections Objections Overruled: disagree with objection, question can be answered Objections Sustained: agree with objection, question cannot be answered
1. Outside the scope of the mock trial materials Def.: The facts stated were not provided in the mock trial materials. Phrasing: Objection, Your Honor. The answer is creating a material fact which is not in the mock trial record." 2. Irrelevant to case Def: The facts stated have nothing to do with the charges filed or case. Phrasing: "Objection, Your Honor. This testimony is not relevant to the facts of this case. 3. Lack of foundation Def: There has been no evidence given showing that this witness or evidence has anything to do with this case. Phrasing: "Objection, Your Honor. There is a lack of foundation." 4. Witness lack of knowledge Def: This witness was not there or has no direct knowledge to answer question. Phrasing: "Objection your honor. The witness has no personal knowledge to answer that question." 5. Character Evaluation Def: The Question asks the witness to comment on the character of someone Phrasing: "Objection, Your Honor. Character is not an issue here." 6. Opinion or Speculation Def: The question asks the witness to state an opinion or to give other alternatives Phrasing: "Objection, Your Honor. The question calls for inadmissable opinion testimony [or inadmissible speculation] on the part of the witness. I move that the testimony be stricken from the case." 7. Hearsay Def: The witness is restating what someone else told him/her and that person was not the accused. Rumor, gossip or second hand information.

Phrasing: "Objection, Your Honor. Counsel's question calls for hearsay." 8. Leading the Witness Def: The attorney is asking questions that suggest a Correct answer or gives the witness ideas and puts words in their mouth. Phrasing: "Objection, Your Honor. Counsel is leading the witness." 9. Argumentative Def: The attorney is arguing with the witness Phrasing: "Objection, Your Honor. Counsel is being argumentative," or "Objection, Your Honor. Counsel is badgering the witness. 10. Asked and answered Def: The same question has already been asked and answered of this witness. Phrasing: "Objection, Your Honor. This question has been asked and answered." 11. Compound Question Def: The question has multiple parts. Phrasing: "Objection, Your Honor, on the ground that this is a compound question." 12. Non responsive Def: The witness is not answering the question. Phrasing: "Objection, Your Honor. The witness is being nonresponsive." 13. Exceeding the time limit Def: The attorney has taken too much time Phrasing: "Objection. Counsel is out of time Your Honor." (Note: The presiding judge may allow the team to finish). OBJECTION ONLY DURING REDIRECT 14. Not come up in cross examination Def: The other attorney has asked a question on a topic that was not brought up in Cross examination. Phrasing: "Objection, Your Honor. Counsel is asking the witness about matters that did not come up in cross examination."

Introduction of Physical Evidence STEP 1 "Your honor, I ask that this be marked for identification as Prosecution/Defense Exhibit (Show the document and hand it to the bailiff for marking.) STEP 2 Show the document to opposing counsel, who may make an objection to the offering at this time. STEP 3 Show the document to the witness "(witness name), do you recognize this document which is marked Prosecution (or Defense) Exhibit for identifications?" (The witness should say "yes" and then identify the document.) At this point, the attorney may proceed to ask the witness a series of questions about the exhibit to show its relevance to the case. STEP 4 In order to place the document into evidence say, "Your honor, I offer this document for admission into evidence as Prosecution (or Defense) Exhibit ." STEP 5 Get a ruling from the court on and hand the document to the judge if it is admitted. STEP 6 Ask permission from the judge to show the document to the jury. If permission is granted, then give the members of the jury a copy.