MOCK TRIAL PREPARATION
1. RULE OF EVIDENCE
2. OPENING STATEMENT BY PROSECUTOR
The prosecutor (in criminal cases) explains to the trier of fact (the judge or jury) the evidence to be presented as proof of the allegations (unproven statements) in the written papers filed with the court.
The opening statement is the introduction to the case, the very first time the attorneys for each side get to tell the judge and jury about what happened to their clients. The first impression is very important; it "paints a picture" of the case that will be presented for each side. Opening statements should include: (1) a summary of the facs according to each party; (2) a summary of the evidence that will be presented at the trial, including how the witnesses are expected to testify; and (3) a statement regarding what the party hopes to get out of the trial. In an opening statement, an attorney cannot present legal arguments; instead the attorney must limit the opening to what the evidence will show (e.g., Dr. Taylor failed to remove a surgical sponge from the defendant's stomach). Since the prosecutor speaks first, it is very important for the prosecutor's opening statement to include a good summary of the facts, presented in a light most favorable to the prosecutor. If the opening statement presents a very convincing picture of the prosecutor's case, the defense team will have a much more difficult time changing the minds of the judge and jury. |
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3. OPENING STATEMENT BY DEFENSE
The defendant’s attorney explains evidence to be presented to disprove the allegations made by the prosecutor.
The defense team always has the task of showing that the prosecutor's version of the facts is not correct. In preparing an opening statement, the defense attorney will have to guess how much detail and what kind of emphasis the prosecutor will make in the prosecutor's opening statement. The defense attorney must be ready to make adjustments in his or her prepared statement while the prosecutor speaks. The defense attorney should highlight the facts that are in dispute, and emphasize the kinds of evidence the defense will present to show that the prosecutor is wrong.
The defense team always has the task of showing that the prosecutor's version of the facts is not correct. In preparing an opening statement, the defense attorney will have to guess how much detail and what kind of emphasis the prosecutor will make in the prosecutor's opening statement. The defense attorney must be ready to make adjustments in his or her prepared statement while the prosecutor speaks. The defense attorney should highlight the facts that are in dispute, and emphasize the kinds of evidence the defense will present to show that the prosecutor is wrong.
4. DIRECT EXAMINATION BY PROSECUTOR
After the opening statements, the process of witness examinations begins. First, the prosecutor' presents its witnesses, then the defense team. Each time a witness is called to the stand, the attorney who called the witness asks a series of questions called the direct examination. These questions are designed to get the witness to tell a story, reciting what he or she saw, heard, experienced, or knew about the case. The questions must ask only for facts, not for opinions (unless the witness has been declared to be an "expert" in a particular subject, such as a doctor or a police detective). In addition, the attorney may only ask questions and may not make any statements about the facts, even if the witness says something wrong.
Attorneys conducting direct examinations should design questions to get the witness to tell the story in a logical manner. Ask open-ended questions such as questions that begin with why, where, when, and how. Avoid lengthy or comlicated questions. Leading questions cannot be used on direct examination. Be prepared to rephrase questions in case the witness does not understand a question or fails to remember facts accurately, or in case the other side objects to a question. Opposing attorneys should prepare for your cross-examination by anticipating what the witnesses will say on direct examination and preparing questions that will undercut their testimony. At trial, listen carefully to the questions and answers, since the cross-examination must be limited to subjects discussed in the direct examination. Listen for violations of the rules of evidence, and be prepared to make good objections. |
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5. CROSS EXAMINATIONS BY DEFENSE
When the direct examination is completed, an attorney for the other side then asks questions to show weaknesses in the witness's testimony, a process called cross examination. The purpose of cross-examination is to show the judge and jury that a given witness should not be believed because that witness: (1) cannot remember facts; (2) did not give all of the facts in the direct examination; (3) told a different story at some other time; (4) has a reputation for lying; (5) has a special relationship to or bias toward one of the parties [maybe a relative or close friend, or a grudge or feud], and (6) did not have an adequate opportunity to observe (poor lighting, cloudy day, only caught a glimpse, etc.) the events at issue. The cross-examination questions are designed to bring out one or more of the above factors. These questions must be limited to subjects discussed in the direct examination as well as issues pertaining to credibility, or they can be objected to as "outside the scope of direct examination."
Attorneys conducting cross-examinations must know precisely what kind of weaknesses he or she wants to show in the witness, and then design the questions to point them out. Questions should be short. Leading questions are allowed. For example, the attorney may use questions with phrases such as "Isn't it true that...?" Questions should not be long or argumentative, nor should they ask the witness "how," "why," or "could you explain." Questions that call for for a simple "yes" or "no" answer are best. Questions that give the witness a chance to make an explanation will usually not help the cross-examiner's case. As a general rule, do not ask a question that you do not know the asnwer to and always ask leading questions. Opposing attorneys should listen carefully for violations of the rules of evidence, and be prepared to make objections. Listen carefully to the kind of attack the cross-examiner is making; decide whether the attack is successful. After the cross-examination, the opposing attorney may conduct a redirect examination to give the witness a chance to explain or correct some points made in the cross-examination. |
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6. DIRECT EXAMINATION BY DEFENSE
Each defense witness is questioned.
7. CROSS EXAMINATION BY PROSECUTOR
Each defense witness is cross-examined.
8. CLOSING STATEMENT BY PROSECUTOR
The prosecutor reviews all the evidence presented and asks for a finding of guilty (in criminal cases). The prupose of the closing argument is to convince the trier of fact (judge or jury) that the evidence presented is sufficient to win the case for whichever side the attorney is representing. The closing argument should include: (1) a summary of the evidence (i.e., witness testomony, documents, and exhibits) presented that is favorable to the presenting attorney's side; (2) a summary of the case; and (3) a legal argument showing how the law requires the judge or jury to interpret the fats, and why that law requires them to rule in favor of the side for which the attorney is arguing. New information may NOT be introduced in the closing argument.
The prosecutor has the burden of proving the facts beyond a reasonable doubt. Therefore, the prosecutor's summary of the favorable evidence presented is extremely important. Be sure to avoid claiming that evidence that was not, in fact, presented. Similarly, do not emphasize evidence that the defense successfully attaked, except to give a firm response to such an attack. Cite the law clearly and correctly, and make a clear argument regarding how the law requires the judge or jury to rule in the state's favor. |
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9. CLOSING STATEMENT BY DEFENSE
Same as the closing statement by the prosecution. Summarize all of the evidence presented to weaken the prosecution's case. Emphasize the inability of the prosecution to meet the burden of proof (beyond a reasonable doubt), and stress that such inability must clearly lead to a decision in favor of the defendant.
10. REBUTTAL ARGUMENT
The prosecutor may have the right to make additional closing arguments that respond to points made by the defense in its closing statement.
11. JURY INSTRUCTIONS
The judge instructs the jury as to the law that applies in the case.
12. JURY DELIBERATIONS
In most states, a unanimous decision by the jury is required for a verdict. If the jury cannot reach a unanimous decision, it is called a hung jury, and the case may be tried again by a new judge or jury.
13. VERDICT
14. SENTENCING (IF FOUND GUILTY)
Arbetman, Lee, and Edward L. O'Brien. Street Law: A Course in Practical Law. Columbus, OH: McGraw-Hill Education, 2016. Print.
Ashbrook, Alexandra M. Street Law's Classroom Guide to Mock Trials and Moot Courts. New York: Glencoe/McGraw-Hill, 2005. Print.
Ashbrook, Alexandra M. Street Law's Classroom Guide to Mock Trials and Moot Courts. New York: Glencoe/McGraw-Hill, 2005. Print.