Escolar Documentos
Profissional Documentos
Cultura Documentos
The Basics
Prof. Robert T. Sherwin
February 4, 2011
Witness testimony
Witnesses are called to the stand to give
testimony under oath.
Their testimony comes in the form of
answers to questions (an examination)
by the attorneys.
The party who calls the witness to testify
conducts the direct examination of the
witness.
The side against whom the witness
testifies conducts the cross examination.
4
Physical evidence
Witnesses may be asked to testify about
documents, videos, or other physical
objects.
These pieces of physical evidence can
be admitted into evidence as
exhibits and be considered by the jury
to the same extent it considers witness
testimony.
5
Trial in sum
The purpose of the trial is to allow each
side to introduce evidence that the fact
finder can use to answer questions of
fact.
Division of duties
You compete as a team of two.
One teammate delivers the opening
statement; the other delivers the
closing argument.
Each teammate conducts a direct
examination of one of your witnesses
and a cross examination of one of the
other teams witnesses.
8
Formalities
Plaintiff/Prosecution sits at table closest
to jury box (or left if no jury box).
Stand up when the judge enters or calls
the court to order (and any time you
speak).
Judge will ask attorneys to make their
announcements (Plaintiff/Prosecution
goes first).
10
Housekeeping
Opportunity to address preferences of
the judge in how trial will proceed.
Permission to roam about courtroom
during opening/closing?
Arms length from podium during witness
questioning?
Constructive approach/witness swearing?
Reading of jury instructions?
Addressing judge as both judge and jury?
Opening statement
Your opportunity to introduce yourself
and present your theory of the case.
Tell the jury what you expect the
evidence will show.
This is an opening statement, not an
opening argument you are not
supposed to be argumentative or
combative.
Opening statements are NOT evidence!
12
Theme
You should always have a theme to
describe your case a hook the jury
can latch on to and conceptualize the
evidence through.
Examples:
If the glove dont fit
CSI
Desperate Executives
14
15
Objections?
Ending: Ask the jury to carefully weigh
the evidence and find for your client.
16
Direct examination
After each side has opened, the parties
put on their case in chief. You do this
through calling witnesses.
Decide which of your two witnesses you
want to call first.
When the judge asks you to call your
first (or next) witness, stand and say
Your Honor, the Plaintiff calls Witness
McWitnessy to the stand.
17
18
19
21
Cross examination
Your opportunity to question the other
sides witnesses
Goals:
Why so hard?
Three reasons:
Witness is adverse
What we think we know about cross is
wrong
Cant rehearse it
23
24
25
So how do I do it?
Decide the points you need to make through
the examination.
Only ask questions to transition from point to
point.
Mr. Smith, Id like to ask you some
questions about _____. Is that OK?
Eliminate prefixes.
Eliminate suffixes.
Design short statements to move in a logical
progression toward each point you need to
make.
27
28
What NOT to do
The Deal
Cut off witness and thank him/her for
answer
Just answer yes or no
Ask the court for help (except as a last
resort)
29
What TO do
Ask, repeat, repeat.
Or ask, repeat, reverse.
Full, formal name.
Shorten the question.
Im sorry, you must have misunderstood my
question. I wasnt asking about
That didnt answer my question, did it?
Then your answer is yes?
30
31
Re-direct examination
The person who calls the witness
always has the last word. So, after
cross, you can ask additional direct
examination questions of your witness.
Fix any damaging testimony that came
out on cross by letting the witness
explain.
Limited to scope of direct/cross.
32
Re-direct examination
When youre done, say Your Honor, I
have no further questions. May this
witness be excused?
No re-cross examination allowed in our
mock trial competitions.
33
34
Closing argument
Opportunity to be theatrical (and
argumentative!).
Use the same theme that your partner
introduced in opening.
Talk about what the witnesses said. If
a witness didnt say it or it didnt appear
in an admitted exhibit, you cant talk
about it!
Point out inconsistencies in opposing
witnesss statements.
35
Objections
For mock trial, weve eliminated nearly
all evidentiary objections.
The objections you may make:
Ambiguous
Argumentative
Asked and answered
Assumes facts not in evidence
Compound
Leading
Narrative
37
Objections (cont.)
The objections you may make (cont.):
Non-responsive (as to witness testimony)
Relevance
38
Objections (cont.)
When the other side asks a question
that is objectionable, rise and say
Objection, Your Honor, and then state
the grounds of your objection.
The counsel objected to should then
say, May I respond your Honor?
(unless you know youre wrong, in
which case just say, Id be happy to
rephrase, your Honor.)
39
Closing thoughts
Keep counsel table neat and clean.
Consider putting everything in a binder
with tabs.
Other than announcements and
objections, speak from podium (unless
permission to roam in opening/closing).
Stand up straight look like a lawyer!
Dont talk or overly whisper to cocounsel.
40
Mock Trial:
The Basics
Prof. Robert T. Sherwin
February 4, 2011