Criminal Trial Advocacy Handbook 2012

LAW & ADVOCACY
NATIONAL STUDENT LEADERSHIP CONFERENCE
Criminal Trial
Advocacy Handbook
National Student Leadership Conference

Law & Advocacy
© 2012 NSLC
Criminal Trial Advocacy Handbook

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LAW & ADVOCACY NATIONAL STUDENT LEADERSHIP CONFERENCE
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.

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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

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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

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The American
Judicial System 1
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.

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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.
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
APPELLATE circuit. There are 12 of these courts.
LEVELS
State Court of Appeals
Exist in 40 states as first court of
appeal (10 only have Supreme).
State Trial Courts U.S. District Courts

County, District or Superior Courts. TRIAL 94. Handle: federal statutes, U.S.
Handle state laws only. LEVELS Constitution, interstate conflicts.
The U.S. District Courts and U.S. Courts of Appeals are listed in detail on the following
three pages.

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United States District Courts

Authorized
State District Judgeships Location
Alabama Northern district 7 Birmingham, AL
Middle district 3 Montgomery, AL
Southern district 3 Mobile, AL
Alaska 3 Anchorage, AK
Arizona 9 Phoenix, AZ
Arkansas Eastern district 5 Little Rock, AR
Western district 3 Fort Smith, AR
California Northern district 14 San Francisco, CA
Eastern district 6 Sacramento, CA
Central district 27 Los Angeles, CA
Southern district 8 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 4 Tallahassee, FL
Middle district 11 Jacksonville, FL
Southern district 17 Miami, FL
Georgia Northern district 11 Atlanta, GA
Middle district 4 Macon, GA
Southern district 3 Savannah, GA
Guam 1 Agana, GU
Hawaii 3 Honolulu, HI
Idaho 2 Boise, ID
Illinois Northern district 22 Chicago, IL
Southern district 3 East St. Louis, IL
Central district 3 Springfield, IL
Indiana Northern district 5 South Bend, IN
Southern district 5 Indianapolis, IN
Iowa Northern district 2 Cedar Rapids, IA
Southern district 3 Des Moines, IA
Kansas 5 Wichita, KS
Kentucky Eastern district 5 Lexington, KY
Western district 4 Louisville, KY
Louisiana Eastern district 13 New Orleans, LA
Middle district 2 Baton Rouge, LA
Western district 7 Shreveport, LA
Maine 3 Portland, ME
Maryland 10 Baltimore, MD
Massachusetts 13 Boston, MA
Michigan Eastern district 15 Detroit, MI
Western district 4 Grand Rapids, MI
Minnesota 7 St. Paul, MN
Mississippi Northern district 3 Oxford, MS
Southern district 6 Jackson, MS
Missouri Eastern district 6 St. Louis, MO
Western district 5 Kansas City, MO

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Authorized
State District Judgeships 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 4 Syracuse, NY
Eastern district 15 Brooklyn, NY
Southern district 28 New York, NY
Western district 4 Buffalo, NY
North Carolina Eastern district 4 Raleigh, NC
Middle district 4 Greensboro, NC
Western district 3 Asheville, NC
North Dakota 2 Bismarck, ND
N. Mariana Islands 1 Saipan, N. Mar. I
Ohio Northern district 11 Cleveland, OH
Southern district 8 Columbus, OH
Oklahoma Northern district 3 Tulsa, OK
Eastern district 1 Muskogee, OK
Western district 6 Oklahoma City, OK
Oregon 6 Portland, OR
Pennsylvania Eastern district 22 Philadelphia, PA
Middle district 6 Scranton, PA
Western district 10 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 5 Knoxville, TN
Middle district 4 Nashville, TN
Western district 5 Memphis, TN
Texas Northern district 12 Dallas, TX
Southern district 19 Houston, TX
Eastern district 7 Tyler, TX
Western district 11 San Antonio, TX
Utah 5 Salt Lake City, UT
Vermont 2 Burlington, VT
Virgin Islands 2 St. Thomas, V.I.
Virginia Eastern district 10 Alexandria, VA
Western district 4 Roanoke, VA
Washington Eastern district 4 Spokane, WA
Western district 7 Seattle, WA
West Virginia Northern district 3 Elkins, WV
Southern district 5 Charleston, WV
Wisconsin Eastern district 5 Milwaukee, WI
Western district 2 Madison, WI
Wyoming 3 Cheyenne, WY

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United States Courts of Appeals
Districts Included Authorized

Court of Appeals In Circuit Judgeships 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

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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.

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Fundamentals
of the Trial 2
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

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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.

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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.

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Layout of the Courtroom
Court Judge’s Witness

Clerk Bench Stand
The Jury
“Well” Box
Lecturn
Defense / Defendant Prosecution / Plaintiff
Observation Area
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.

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Preparing
for Trial 3
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

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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.

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Elements of
Criminal Trial 4
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

23

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

24

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.

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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.

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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.

27


28

Homicide Laws:
Murder and
Manslaughter
5
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

29


30

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

31

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.

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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.

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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.

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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.

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FREDDO V . STATE
127 Tenn. 376, 155 S.W. 170 (1913)
Williams, J. The plaintiff in error, to...Freddo without meaning offense, but

Raymond Freddo,...was found by the jury was requested by the latter to discontinue
guilty of murder in the second degree; his it, as it was not appreciated, but resented.
punishment being fixed at 10 years It was not discontinued, but repeated, and
imprisonment...he claims...the facts Freddo so chafed under it that he again
adduced did not warrant a verdict of guilty warned deceased not to repeat it; and the
of a crime of degree greater than fact of Freddo's sensitiveness being noted
voluntary manslaughter, if guilt of any by the mechanic, J.J. Lynch, under whom
crime be shown. Freddo served as helper, Lynch sought out
deceased in Freddo's behalf and warned to
[I]n the roundhouse department of the desist. On Lynch's telling deceased of the
shops of the Nashville & Chattanooga offense given to plaintiff error, and that
Railway Company from 50 to 60 men "he will hurt you some day," deceased
were employed, among them replied, "The son of a bitch, he won't do
being...Freddo and the deceased, nothing of the kind." Deceased is shown
Higgenbotham. Freddo was at the time to have been habitually foulmouthed,
about 19 years of age; he had overbearing, and "nagging and
been...orphaned...reared thereafter in an tormenting" in language, and at times in
orphanage, and yet later in the family of a conduct.
Nashville lady, with result that he had
been morally well trained. The proof On the afternoon of the tragedy,
shows him to have been a quiet, Higginbotham and Freddo were...
peaceable, high-minded young man of packing... a locomotive cylinder....
somewhat retiring disposition. Due, Deceased, so enraged, was in a squatting
perhaps to the loss of his mother in his posture, holding a pinch bar. It appears
infancy, and to his gratitude to his foster that someone, thought by deceased to
mother, he respected womanhood beyond have been Freddo, had spilled oil on
the average young man, and had a decided deceased's tool box, and as he proceeded
antipathy to obscene language or language with his work the latter, in hearing of the
that reflected on womanhood. crew, remarked: "Freddo, what in the hell
did you want to spill that oil on that box
Deceased, Higginbotham, was about six for? If someone spilled oil on your box,
years older than Freddo, [and you would be raising hell, wouldn't you,
considerably taller and heavier than you son of a bitch?" Freddo asked
Freddo, outweighing him by about 30 Higginbotham if he meant to call the
pounds,] and was one of a coterie of the former a son of a bitch, and was replied to
roundhouse employees...given to the in an angry and harsh tone. "Yes, you are
use...of the expression "son of a bitch" a son of a bitch." The plaintiff in error,
meant to be taken as an expression of standing to the left of and about eight feet
good fellowship or of slight depreciation. away from deceased, seeing deceased
Deceased, prior to the date of the preparing to rise or rising from squatting
difficulty, had applied this epithet posture, seized a steel bar, one yard long

36

and one inch thick, lying immediately at the law proceeds in testing the adequacy
hand, and advancing struck deceased a of the provocation upon the basis of a
blow on the side of his head, above the mind ordinarily constituted of the fair
left ear, and extending slightly to the rear average mind disposition...
of the head, but not shown to have been
delivered from the rear. Deceased in The rule in this state is, as it was at
rising had not gained an erect posture, but common law, that the law regards no mere
is described as stooping at the time the epithet or language, however violent or
blow was delivered. offensive, as sufficient provocation for
taking life...
Plaintiff in error testified that deceased, in
rising, was apparently coming at him; that Affirmed.
deceased made a gesture, that he (Freddo)
believed that Higginbotham was going to In view of the very good character of the
strike; and that he struck because of anger young plaintiff in error, as disclosed in the
at the epithet and to defend himself, but record, and of the peculiar motive and the
would not have struck but for deceased's circumstances under which he acted, we
movement. It appears, however, that feel constrained to and do recommend to
deceased had not gained a position where the governor of the state that his sentence
he could strike the accused, and it does be commuted to such punishment as the
not appear that he had anything in his executive may, in the light of this record
hand with which to attack; and the and opinion, in his discretion think
evidence. proper...
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

37

UNITED STATES v. FLEMING

739 F.2d 945 (1984)
Defendant David Earl Fleming was opposite side of the highway. After
convicted of second degree murder, in striking the curb, Fleming's car
violation of 18 U.S.C. §1111, in the death straightened out and at that moment struck
of Margaret Jacobsen Haley. Mrs. Haley the car driven by Mrs. Haley that was
was the driver of an automobile with coming in the opposite direction.
which an automobile operated by the Fleming's car at the moment of impact
defendant collided when defendant lost was estimated by witnesses to have been
control while traveling at a high rate of traveling 70 to 80 miles per hour; the
speed. speed limit at that point on the Parkway
was 30 miles per hour. Mrs. Haley
Fleming's car was observed at about 3:00 received multiple severe injuries and died
p.m. on June 15, 1983, traveling before she could be extricated from her
southbound on the George Washington car.
Memorial Parkway in northern Virginia at
speeds variously estimated by witnesses Fleming was pulled from the wreckage of
as between 70 and 100 miles per hour. his car and transported to a Washington
The speed limit on the Parkway is, at most hospital for treatment. His blood alcohol
points, 45 miles per hour. Fleming level was there tested at .315 percent.
several times directed his southbound car
into the northbound lanes of the Parkway Fleming was indicted by a grand jury on a
in order to avoid traffic congestion in the charge of second degree murder and a
southbound lanes. Northbound traffic had number of other charges which are not
to move out of his way in order to avoid a relevant to this appeal. He was tried
head-on collision. At one point, a before a jury on the murder charge and
pursuing police officer observed Fleming convicted.
steer his car into the northbound lanes,
which were separated from the Defendant maintains that the facts of the
southbound lanes at that point and for a case cannot support a verdict of murder.
distance of three-tenths of a mile by a Particularly, defendant contends that the
raised concrete median, and drive in the facts are inadequate to establish the
northbound lanes, still at a high rate of existence of malice aforethought, and thus
speed, for the entire length of the median. that he should have been convicted of
At two other points, Fleming traveled in manslaughter at most.
northbound lanes that were separated from
the southbound lanes by medians. Proof of the existence of malice does not
require a showing that the accused
Approximately six miles from where his harbored hatred or ill will against the
car was first observed traveling at victim or others. See United States v.
excessive speed, Fleming lost control of it Celestine, 510 F.2d 457, 459 (9 Cir.
on a sharp curve. The car slid across the 1975). Neither does it require proof of an
northbound lanes, striking the curb on the intent to kill or injure. See, e.g., United

38

States v. Shaw, 701 F.2d 367, 392 n. 20 (5 conviction only for manslaughter, is one
Cir. 1983); United States v. Black Elk, of degree rather than kind. See, e.g.,
579 F.2d 49, 51 (8 Cir. 1978); LaFave & United States v. Dixon, 419 F.2d 288,
Scott, Criminal Law 541 (1972). Malice 292-293 (D.C. Cir. 1969) (Leventhal, J.,
may be established by evidence of concurring) (difference between murder
conduct which is "reckless and wanton and manslaughter lies in the quality of the
and a gross deviation from a reasonable accused's awareness of the risk). See also
standard of care, of such a nature that a Holmes, The Common Law 59 (1881)
jury is warranted in inferring that (The difference between murder and
defendant was aware of a serious risk of manslaughter lies "in the degree of danger
death or serious bodily harm." Black Elk, attaching to the act in the given state of
supra, 579 F.2d at 51, quoting, in the facts.") In the vast majority of vehicular
context of a criminal action under homicides, the accused has not exhibited
§1111(a), United States v. Cox, 509 F.2d such wanton and reckless disregard for
390, 392 (D.C. Cir. 1974). To support a human life as to indicate the presence of
conviction for murder, the government malice on his part. In the present case,
need only have proved that defendant however, the facts show a deviation from
intended to operate his car in the manner established standards of regard for life and
in which he did with a heart that was the safety of others that is markedly
without regard for the life and safety of different in degree from that found in
others. Shaw, supra, 701 F.2d at 392 n. most vehicular homicides. In the average
20 (dicta). drunk driving homicide, there is no proof
that the driver has acted while intoxicated
We conclude that the evidence regarding with the purpose of wantonly and
defendant's conduct was adequate to intentionally putting the lives of others in
sustain a finding by the jury that danger. Rather, his driving abilities were
defendant acted with malice aforethought. so impaired that he recklessly put others
It is urged upon us, however, that a in danger simply by being on the road and
verdict of murder in this case should be attempting to do the things that any driver
precluded by the existence of a statute would do. In the present case, however,
defining and proscribing involuntary danger did not arise only by defendant's
manslaughter, 18 U.S.C. §1112(a). determining to drive while drunk. Rather,
Defendant maintains that vehicular in addition to being intoxicated while
homicide where no purpose on the part of driving, defendant drove in a manner that
the accused to have caused death or injury could be taken to indicate depraved
has been shown should result only in disregard of human life, particularly in
conviction of involuntary manslaughter. light of the fact that because he was drunk
Otherwise, defendant argues, all drunk his reckless behavior was all the more
driving homicides and many reckless dangerous.
driving ones will be prosecutable as
murder. We are not persuaded by the Defendant also challenges his conviction
argument. on the grounds that the district court
committed error in its instructions to the
The difference between malice, which jury. In view of our conclusions with
will support conviction for murder, and regard to the adequacy of wanton and
gross negligence, which will permit reckless behavior to support an inference

39

of malice, we think that the district court's any confusion in this isolated portion of
instructions on this subject were the instructions was not misleading "in the
unexceptionable. Defendant also contends context of the overall charge."
that the district court's response to the
jury's request for re-instruction as to the Defendant also contends that the district
distinction between murder and court erred in admitting into evidence
manslaughter confused the two crimes and defendant's driving record which showed
now requires reversal. After a close previous convictions for driving while
reading of the challenged portion of the intoxicated. The driving record would not
instructions, we are far from convinced have been admissible to show that
that there was any failure of the district defendant had a propensity to drive while
court in its definition of the crimes. In drunk. Fed. R. Evid. 404(b). However,
any event, however, we must read the the driving record was relevant to
district court's instructions as a whole. establish that defendant had grounds to be
See United States v. Park, 421 U.S. 658, aware of the risk his drinking and driving
674, 95 S. Ct. 1903, 1912, 44 L.Ed.2d 489 while intoxicated presented to others. It
(1975). In so doing, we are convinced that 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?

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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

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42

The Federal
Rules of
Evidence
6
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

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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.

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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;

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(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

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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.

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(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

49

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

50

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.

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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.

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(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.

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(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.

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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.

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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.

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Practice
Problems 7
Use this section to test your knowledge on the elements of the trial that you have
learned about. The following scenario is offered:
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.
The following concepts will be tested:
• Theory of the Case

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

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Theory of the Case
What will be the State’s theory?
What will be the Defense’s theory?

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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.

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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:
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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?

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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.
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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?

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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?

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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?

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Use the space below to prepare a three-minute closing argument for the State.
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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?

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Use the space below to prepare a three-minute closing argument for the Defense.
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The NSLC
Mock Trial 8
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:
Case reading tips
read it in its entirety, and read it with no particular
point of view. Even if you know that you will be Read everything.
defending a particular individual, read the
materials with an eye for both sides of the case. Read with no particular bias.
While reading, you should actively seek to
Read the case more than once.
understand both the big picture (order of events
and overall story) and the details (particular events Take notes.
and individual statements). This will help you
prepare your strategy and ultimately prove your Look for inconsistencies.
case. Compare witness statements
to: other statements, the
It will be helpful to take notes while you read.
Make sure to look for both inconsistencies and stipulated facts, and physical
uniformity in the case materials. These may be evidence.
within a single statement, between two or more Understand the big picture as
statements, between the stipulated facts and a
statement or between all types of written text and
well as you understand the
the provided physical evidence. While in the details.
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.

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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.
Example of a witness outline

Officer Bradley
Helps Π Helps Δ
Saw defendant with gun Was standing in a poorly lit
upon arrival at the scene area, limiting his ability to
15 years experience see
Saw blood on the hands of Demoted for false arrests

defendant as he ran away Did not follow proper
from scene police procedure
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:

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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


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Jeffrey May - Δ
Helps Π Helps Δ

Daniel Tanner - 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:
The People v. Steven Cole

Helps Π Helps Δ
Officer Bradley saw Cole Cole’s alibi checks out
running away from the scene Cole has type AB blood,
with blood on his hands and only types A and B
The victim was Cole’s ex- were found at the scene
business partner Cole reported his gun as
Cole owns a .22 caliber gun stolen 7 months ago

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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.
The People v. Daniel Tanner

Helps Π Helps Δ

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.

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The State v. Daniel Tanner

My Theory of the Case
1
2
3
4
5
6
7
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:

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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?

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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 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
List two or three major points that each witness will cover.
Make the fact scenario into one long story, being sure to weave your witnesses and
Story 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.

Witness List Method Story Method


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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.

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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.

My Road Map
1
2
3
4
5
6
7

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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
¾ 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....”
¾ 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.
¾ Be careful not to overstate your case or repeat yourself. You don’t want to bore the
jury before the trial even gets underway.
¾ 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.
¾ 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.
¾ 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.
¾ 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?

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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.

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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.

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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.

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Pitfalls to Avoid
¾ 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.
¾ Don’t assume facts not in evidence. You will face lack of foundation objections.
Every question must have its foundation in the previous answer.
¾ Avoid repeating, “What happened next?” five times in a row.
¾ 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.
¾ 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.
¾ 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.
¾ Do not talk in a monotone. If you want the jury to think the testimony is
interesting, you need to sound interested.
¾ 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.
¾ 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?

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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

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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
d
u
r An easy way to remember evidentiary procedure ...
i
n To judge:
g M Mark • Your honor I have what has been marked for
identification purposes as Defense Exhibit A.
d
e To witness:
l
i
I Identify • I am showing you what has been previously
marked as Defense Exhibit A. Do you
recognize it?
b
To witness:
e
r
a
A Authenticate
• What is it? How do you recognize it? Who
took this photograph? Is Exhibit A a fair and
accurate copy?
t Move
i
o M into
evidence
To judge:
• At this time, I move Defense Exhibit A into
evidence.
n
. To judge:
I Introduce • Your honor, permission to publish Defense
Exhibit A to the jury?

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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.

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Exhibits I will possibly use in court

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

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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

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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
¾ 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.
¾ 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.

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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?
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.

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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.

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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

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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.

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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.

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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.

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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.

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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

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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.

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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
¾ 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.
¾ Don’t be repetitive. Nothing will bore the jury more. You don’t want the jury to
completely tune you out.

105

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.

106

♦ 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.

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108

The Law and

Advocacy Trial 9
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.

109


110

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?

111

4. What will I have to prove?
5. What are the facts that support my opinion?

a. From defense witnesses

112

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

113

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?

114

My Side’s Witnesses
Witness One:____________________________________
Who is he/she?
What facts can he/she testify to that will help prove my case?

115

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?

116

c. damage his/her credibility?
What will the jury think of him/her?
Witness Two:_____________________________________
Who is he/she?

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119

Witness Three:__________________________________
Who is he/she?

120

a. Help their theory?
b. Contradict my other witness?

121

c. Decrease his/her credibility?
Witness Four:________________________________
Who is he/she?

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123

¾

124

Notes:

125

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?

126

Witness Two:___________________________________
Who is he/she?
a. help my theory?

127

Witness Three:__________________________________________
Who is he/she?

128

a. help my theory?

129

Witness Four:_________________________________________
Who is he/she?
a. help my theory?

130

Witness Five:_______________________________________
Who is he/she?
a. help my theory?

131

Notes:

132

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?

133

____________________________________________________________________
a. Foundation
b. Explain

134

____________________________________________________________________
a. Foundation
b. Explain

135

____________________________________________________________________
a. Foundation
b. Explain

136

Why & How I Can Improve My Case
I. FACTS:
II. LAW:
III. THEORY:

137

IV. HOW I WILL PUT THEM TOGETHER:
V. WHY IT MAKES SENSE:

138

Problems with My Case
I. FACTS:
II. LAW:

139

III. HOLES IN LOGIC:

140

Problems with Opposing Side’s Case
I. FACTS:
II. LAW:
¾

141

III. HOLES IN LOGIC:

142

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150

Useful
Documents 10
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

151


152

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

153

Time Cards
Minutes
Remaining
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Time Cards
Minutes
Remaining
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Minutes
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Time Cards
Minute
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Time Cards
Seconds
Remaining

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Time Cards
Seconds
Remaining

162

Witness Selection Form

The State of New Providence vs. Daniel Tanner
Prosecution Π Defense Δ
TA: ____________________ TA: ____________________
Team # 1 Team #1
SELECT THREE WITNESSES Circle Gender SELECT THREE WITNESSES Circle Gender
Charlie Rice M F Daniel Tanner n/a n/a
Mary Kay Boyd n/a n/a Jeffrey May M F
Dr. Pat Thomas M F Glenn Van Wormer M F
Dr. Roy Clyburn M F
Team # 2 Team # 2
Dr. Roy Clyburn M F
Team # 3 Team # 3
Dr. Roy Clyburn M F
Team # 4 Team # 4
Dr. Roy Clyburn M F

163


164

Common Legal Terms
a 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.
b
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.

165

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.
c 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.

166

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.
d
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.

167

e
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.
f
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.

168

g 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
h
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.
i
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.

169

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.
j
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.
l
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.

170

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

171

p
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.

172

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.
r
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.

173

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.
s
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

174

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.
t
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.
u
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.

175

v
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.”
w 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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LAW & ADVOCACY

NATIONAL STUDENT LEADERSHIP CONFERENCE

National Student Leadership Conference

Criminal Trial Advocacy Handbook

Copyright © 2012 by National Student Leadership Conference. All

Criminal Trial Advocacy Handbook

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

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

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

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

Criminal Trial Advocacy Handbook

Chapter 6: The Federal Rules of Evidence .................................................................43

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

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

Chapter 9: The Law & Advocacy Trial Notebook ...................................................109

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

Criminal Trial Advocacy Handbook

• State and Federal Courts

• United States Courts of Appeals

• Criminal and Civil Cases

Criminal Trial Advocacy Handbook

Criminal Trial Advocacy Handbook

State and Federal Courts

Judicial Levels: Trial and Appellate

Criminal Trial Advocacy Handbook

U.S. Supreme Court

State Supreme Court

State Trial Courts U.S. District Courts

Criminal Trial Advocacy Handbook

United States District Courts

Criminal Trial Advocacy Handbook

Criminal Trial Advocacy Handbook

United States Courts of Appeals

Districts Included Authorized

Criminal Trial Advocacy Handbook

Criminal and Civil Cases

Types of Law: Statutory and Case

Criminal Trial Advocacy Handbook

• The Parties of the Case

Criminal Trial Advocacy Handbook

Criminal Trial Advocacy Handbook

The Parties of the Case

The Role of the Attorney

Criminal Trial Advocacy Handbook

The Role of the Jury

It is important to remember the indictment or finding after a preliminary hearing is merely

Criminal Trial Advocacy Handbook

The Burden of Proof

Criminal Trial Advocacy Handbook

Layout of the Courtroom

Court Judge’s Witness

Defense / Defendant Prosecution / Plaintiff

Criminal Trial Advocacy Handbook

Criminal Trial Advocacy Handbook

Criminal Trial Advocacy Handbook

Criminal Trial Advocacy Handbook

Narrowing the Issues

Criminal Trial Advocacy Handbook

Note: Because of the time constraints in the NSLC Mock Trial, we

Criminal Trial Advocacy Handbook

Criminal Trial Advocacy Handbook

Criminal Trial Advocacy Handbook

Prosecution’s Case in Chief