PEER POTENTIAL MOCK TRIAL

Mock
H
N
D
B
O
O
K
2
0
2
2
Trial

。
i\cdemic 臼H恤•d叭 ”a
Cas巳夺tudying Commup!ty
哩bating －��！！！l���ty
Le�咀叫 ip��

Peer� － Pot iitiil：说：c

宫M�毡民百『ti!i器
Acdemic 芒气＿＿ La阳
M Find your value Leadership

Case Keep Driven! Leadership Find vour ��

C阳 Stud阳g
valuee
巳：：li：：�t：：罚出； A�！！哩mic Pe�r Yn�！�＂
C

Keep t
�tv

Acdemic
.. g .
Deb ngr iV ii甜
f( ! u.:- ：： ：； ：叫
Mock Trial
Case Acde�＿ic
Law
Pee「
Leadershi p
Boundings
Acdemic
Debatin g
_
Case Studying

Val!!,
laW !:'
Debating

KEEP DRIVEN!

ψ 三oi:J！！！票
 Table of Contents

I. Introduction...............................................................................................................2
II. Roles and Duties of Participants ............................................................................3
III. Case Materials ........................................................................................................4
1. PPMT Handbook.................................................................................................................4
2. PPMT Rules of Competition ................................................................................................4
3. Case Packet ..........................................................................................................................5
4. Midland’s Rules of Evidence ................................................................................................6
5. Procedure Guide ..................................................................................................................6
6. Case Material Amendments ..................................................................................................7
IV. Trial Procedures .....................................................................................................7
1. An Overview ........................................................................................................................7
2. Objections and Rules of Evidence........................................................................................8
3. Opening Statement.............................................................................................................14
4. Direct Examination ............................................................................................................17
5. Cross-Examination.............................................................................................................20
6. Closing Argument ..............................................................................................................22
I. Introduction
Peer Potential Mock Trial is a student organization specialized in providing high school
Mock Trial competitions and law-related education programs. The mission of Peer
Potential is to teach students U.S. legal proceedings, judicial reasoning, debate and
presentation ability. It also aids aspiring Chinese students in their extracurricular
activities and to prepare them for their future careers.

This handbook outlines the rules and procedures that will govern all the Peer Potential
Mock Trial competitions, including the winter inter-school competitions and other
national-level competitions held by PPMT or its representatives. In addition, the
handbook offers practical advice and suggestions on the Preparation and Presentation
during a trial. However, as we ourselves acknowledge, this handbook together with
Mock Trial reveals only a small proportion of the legal system and proceedings in the
United States, and therefore a more comprehensive and specialized study is required of
any student who wishes to explore the field.

Mock Trial simulates lower-court trials in the United States. Students play the roles of
attorneys and witnesses in a court presided by a Judge or several Judges and observed
by a Jury. In Mock Trial, students prepare for and present their cases in a competitive
manner with their peers and proceed to learn about the procedures, skills, and merits
through practices. Mock Trial had already enjoyed top popularity at schools of all levels
in the US when Peer Potential first introduced it into China in 2014. By 2017, it has
become the most popular and competitive national Mock Trial competition, which
provides students with rich academic experiences and chance to attend the world final
in the U.S.

2
II. Roles and Duties of Participants
The Team:
The participants may form a team according to their will. A team may include students
from either the same or different schools or cities. Each team must consist of at least 6
members including three attorneys and three witnesses. The distribution of roles within
the team can be freely determined by the team members but one student cannot play
two roles in the same round.

The team will be assigned to the prosecution side or to the defense side in each round.
Therefore, the team must prepare for both sides of the trial before the competition. In a
regular tournament, teams will compete in four rounds, which include two rounds of
prosecution/plaintiff and two rounds of defense.

The Attorneys:
Attorneys are participants who propel the trials forward. The three attorneys will be
responsible for all of the following: conducting the pre-trial, delivering the opening
statement, doing direct and cross-examinations, making and countering objections as
well as concluding the trial with the closing argument.

But you should note, one attorney can only take the responsibility of one cross and one
direct in each round. And no attorney may deliver both the Opening and the Closing in
the same round. Also, the attorney who raises objections in an opposing witness’s direct
examination must be the one who’s going to conduct the cross-examination. No
objection may be raised by his/her co-counsel on his/her behalf. Similarly, the attorney
conducting his/her direct examination is the only one who may respond to objections
raised by the other side.

The Witnesses:
Witnesses are the keystones of the trial. We rely on them for all the information
presented to the court, without whom we will never know the “true story”. Typically
witnesses fall into two kinds: one, the lay witnesses, who talk from their own perceptions
of facts and personal sensations; two, the expert witnesses, who examine the
professional part of the case, providing evidence like autopsy reports, bullet trajectory,
etc.

There are different ways to interpret a character given the case material, just like in drama
plots. Therefore, we often consider this as the “acting” side of Mock Trial.

3
The Bench:
In national-level competitions in China, the bench consists of usually two judges, one
presiding judge, and one scoring judge. They both serve as the imagined jury members
so you can address them during opening and closing as the jury. They will both score
your performance and vote their ballots individually.

The presiding judge typically controls the proceeding of the trial, as he/she rules on
objections, calls witnesses and, when necessary, grant recesses. But you should always
remember his/her role as a passive one because he/she will not rule on anything unless
you raise an objection first.

At the end of each round, they will comment on your performance during the round and
provide the advice you may use in the following rounds. But they will not release the
results until the tournament concludes.

III. Case Materials

Prior to the competition, all participants will receive the case materials from the
organizing committee, which governs all relevant proceedings of this year’s PPMT
competition. The following materials are those you may receive this year, and this section
serves to guide you to properly use them:

1. PPMT Handbook

The handbook refers to this very document, which provides a thorough description of
all in-court procedures, practice guidance, necessary instructions, etc. You may want to
refer to this document from time to time when you are preparing your case or looking
for information to answer your application questions.

But note, you may not base your argument in actual competition on this document,
because it’s not an admitted set of rules in court.

2. PPMT Rules of Competition

You may receive this document along with your case packet after your deposit is received
by the organizing committee. Rules of Competition govern both in-court and out-court
procedures. The first part includes how you should make arguments in court, how to
assign the roles to your team members, how you should communicate with your

4
teammates during the trial, etc. The second part is equally important as it governs the
advance of teams, the championship round, and all conducts between rounds during the
competition.

You may read this document carefully whenever you come up with bold ideas during or
prior to trials. You may not object in court based on this document. However, reports to
the organizing committee representatives on any misbehavior against these rules are all
welcome. Violation of this document should always lead to sanctions.

3. Case Packet

The case packet is the substantial content of this year’s competition which includes all
the information you need about what the case is and how you may practice it. A typical
case packet includes the following parts:
1. Case Summary is a brief description of this year’s case at the beginning of the
case packet. It provides you with some hints before you read the whole packet.
Note they are for YOUR reference only, as it cannot be used in court.
2. Indictment/Complaint is the document given to the jury prior to the trial and
it provides you the central claims of the prosecution/the plaintiff. Reading this
document, you may see what the counts you should pursue/defend against. The
indictment can be tendered to the bench in pre-trial.
3. Response/Answer (Only available in civil cases) is the counter-statement by the
defense in civil cases. It provides you a sense about the standing of the defense,
including what you accept and what you deny. This may be tendered to the
bench in pre-trial.
4. Relevant Statutes and Laws are excerpts of real Federal/State codes which
provide you the legal basis of counts in the indictment. Sometimes, they may
also instruct you further on what elements you will have to prove in the trial.
This document may be tendered to the bench in pre-trial, but you seldom refer
to them.
5. Stipulation is a co-signed agreement by the prosecution/plaintiff and the
defense before the trial begins. Both parties agree not to argue against the
authenticity or correctness of statements/evidence in this document. It cannot
be amended by you or your opposing party. It can be used in objection argument
and can be tendered to the court whenever necessary.
6. Affidavits are witnesses’ statements made prior to the trial. All testimonies by
your witnesses should be properly based on these affidavits as any discrepancy
can lead to impeachment by the opposing counsel. You may only use affidavits
for impeachment or for the refreshment of the witness’s memory during the
trial.

5
 7. Exhibits may take the form of pictures or scripts (occasionally audios or
videos). You may use these to enrich your presentation in direct examinations
or strengthen your point during cross. But you should note exhibits are not
automatically admissible in court unless you follow the proper procedures
introducing them into evidence. You may only tender them to the bench when
they have been admitted by the court.
8. Relevant Case laws are example rulings that you may refer to during the trial.
Sometimes there are precedents that govern the elements of your case, and
sometimes there are precedents explaining more one concerned line of Rules of
Evidence. Get creative using them, and you are always allowed to refer to them
during objection arguments when necessary. They can be tendered to the bench
during pre-trial.
9. Legal Supplements (not always available) are extra instructions provided to
participants. Usually, these documents give a thorough explanation of the merits
of the case and some criteria that you may pursue when trying to meet the
burden of proof. Note these are only for YOUR reference and cannot be used
in court.

4. Midland’s Rules of Evidence

Rules of Evidence govern how you may present your direct examinations, cross-
examinations and most importantly how you should make your objections. Most
objections have their bases in Rules of Evidence, and you may always want to refer to
this document when making objections during trials. This document may be tendered
to the bench in pre-trial, and as one of the most important documents, you can expect
judges have read it well.

5. Procedure Guide

The organizing committee may issue extra procedure guides which help you understand
better some tricky procedures. In most years, extra guidance is available in introducing
expert witnesses, conducting pre-trials, doing captain meetings, impeaching witnesses
and entering evidence. They are for YOUR reference only and cannot be used during
trials.

6
6. Case Material Amendments

Sometimes, the organizing committee may, after realizing problems in this year’s case
material, correct them and thus issue amendments, which include extra guidance, change
of contents and clarifications. These amendments automatically replace the original
concerned texts. We will make sure they reach every participant in this year’s competition
as soon as possible.

IV. Trial Procedures

This part of the handbook provides you an overview of Mock Trial in-court procedures,
and how you should conduct these different sections as well as what you may want to
prepare beforehand.

1. An Overview

The trial starts with the opening of the court, pre-trials by both parties and then proceeds
to Opening Statements. During the opening statement, the prosecution/plaintiff
presents first and then the defense. The middle part of the Mock Trial is composed of
Direct Examinations and Cross-examinations from both parties. The
prosecution/plaintiff starts its Direct first and every direct examination of a witness is
followed by the Cross from the defense side. This part is also called the
prosecution’s/plaintiff’s case-in-chief. After a short recess, the defense conducts its
Direct and encounters the Cross on the prosecution side, which is known as the
defense’s case-in-chief. The trial concludes with closing arguments delivered first by the
prosecution/plaintiff and then by the defense. If necessary, the prosecution/plaintiff
can reserve time from its closing argument for rebuttal after the defense rests.

Following is the diagram of the Mock Trial procedure.

7
2. Objections and Rules of Evidence

Before we get into individual sections of a trial, we always want to first discuss the general
underlying principles, which, in this case, are the Rules of Evidence. You might have
already read from the previous section about this document, so in this part, we will
introduce you how to make objections accordingly.

You may only object in direct and cross-examinations, which is to say, however
outrageous your opposing counsels’ statements are during the opening and closing, you
may only sit and listen, vice versa. For the specific occasions on which one objection
may be used, see the following list. But before that, we want to provide you a format
you can follow when making an objection:

When realizing something from the opposing party is against the rules of evidence, you
should stand up and address the judge, “Objection, your honor, on the ground of (the
name of the objection).”

At this point, the judge may instantly rule on your objection. If he/she says “Sustained,”
it means your objection is considered valid, your opposing counsel’s/witness’s statement
becomes inadmissible and is stricken from the trial. If he/she says “Overruled,” it
means your objection is not valid, opposing party may proceed and you can sit down as
well.

But sometimes, the presiding judge may want to hear extra arguments over the objection
you raise. He/she may ask you to explain more why this specific statement/testimony
by the opposing side is against the Rules of Evidence. And he/she may also ask for
responses from both you and your opposing attorney. Either way, you should always
remember: first, keep your answer succinct and get to the point; second, always look for
concerned lines in the Rules of Evidence; third, always address the judge instead of
quarreling directly with your opposing counsel and speak only when allowed.

Knowing these, we may proceed to all the different grounds of objections, as the
following list will let you know when they can be used, how they can be argued, and (if
possible) some of the merits behind.

a. Leading
When: In Direct Examinations of your opposing party, upon hearing Close-
ended questions.
Why: The court, in general, prohibits “manipulating” your own witnesses to
make them come up with “desired” answers. Counsels may practice questions with
your witnesses beforehand but should not ask close-ended questions.
Example: “You had your breakfast this morning, didn’t you?”

8
b. Asked and Answered
When: In Direct/Cross of your opposing party, upon hearing a question asked
for the second time.
Why: The court, in general, prohibits emphasizing something by asking about
it again and again in front of the jurors. Meanwhile, any subtle discrepancies between
answers may also lead to confusion.
Example: “What’s your relationship with the victim?” *2

c. Argumentative
When: In Cross (rarely Direct) of your opposing party, upon hearing a question
harsh in a manner or inflammatory
Why: The main purpose of an examination is to “examine,” and to “ask
questions and get answers.” Sometimes lawyers may put their own opinions or harsh
arguments in the form of a question. They simply don’t care what the witness should
answer, and thus this is no good an examination.
Example: “You are a bastard, is that true?”

d. Counsel is testifying
When: In Direct/Cross of your opposing party, upon hearing a tedious
question that aims at providing a statement of the counsel him/herself instead of
asking something from the witness.
Why: Again, the examination is about “examining” the witnesses and the
evidence they provide to the court. If the court allows counsels to testify on behalf
of the witness or the party, there is no way to subject him/her to the confrontation
of the other side, which is against the merits of Rules of Evidence.
Example: “You went to the bar that night, where you saw the victim, and
conversed with him. That was the moment you encountered the defendant, is that
correct?”

e. Lack of Foundation
When: This objection can be generally applied when, in Direct/Cross-
examination of the opposing party, something in the testimony makes you or the
jury feel it comes from nowhere and lacks the necessary context that supports its
credibility or explains its “foundation.” Specifically, you can apply it when: 1)
Opposing counsel fails to follow the proper procedures of entering evidence; 2)
Opposing counsel fails to follow the proper procedures of tendering expert
witnesses or fails to build expert’s testimony upon an ROE 702 basis; 3) Opposing
counsel fails to establish the general ground for a witness’s coming testimony.
Why: Now, imagine a real courtroom setting, where the jurors and the judges
know nothing about the case, and they don’t have a “case packet” as you do. Your
job is more like a story-teller, as you will have to push forward your “plot” by

9
 carefully narrating the previous events and laying the proper “Foundation.” If you
want to discuss the death of a goat, then first let me know where it comes from.
Note this is an objection that you may easily neglect in trials because you know too
well what is in the case packet.
Example: 1) Your honor, the defense wants to move Exhibit 2 into evidence.
(without introducing it); 2) “So doctor, can you tell members of the jury what you
found about the murder weapon?” (without first establishing his expertise and
relation with the case); 3) “Ma’am, can you tell how you met Mr. Johnson (without
first introducing Mr. Johnson’s background or the relevance with the case)?”

f. Hearsay
When: In Direct examinations (rarely there’s also “calls for hearsay” in cross)
of your opposing party, upon hearing statements by a person other than the witness
him/herself and is now declared by the witness in the trial to testify to the truth of
the matter asserted.
Why: Hearsay is defined as “statement made out-of-court used to prove the
truth of the matter asserted.” This means A said a statement, but B is now in court
saying A said that, AND that statement is true. The two elements before and after
the AND are both necessary to determine a statement as hearsay. Why the court
prohibits this? Because the person who said that statement can’t be confronted in
the trial, thus making the credibility of the statement unexaminable.
Further Explanation: As is said, “an out-of-court statement” and “used to
prove the truth of the matter asserted” are the two elements needed. Out-of-court
is easy to understand, but what is a statement? You should note that statements are
sentences that contain truth value and are either affirmative or negative assertions.
Questions and commands, as well as some exclamations, don’t count as statements
because they don’t have a truth value. Moreover, regarding the latter, is there any
occasion when a statement is not used to “prove the truth of the matter asserted”?
Yes, there is. For example, when one says he heard a guy saying the cheeseburger
down the street was great, he is not trying to prove that it was great indeed, but he
may be just laying proper context for his later decision to have his lunch at that
restaurant. Being able to clearly distinguish these subtle differences will be of great
importance for you to conquer the most difficult objection in Mock Trial (and in
real trials). Meanwhile, you must also refer to rules starting from 801 in Rules of
Evidence, where the document also sets forward some exceptions where hearsay can
be adopted, or some statements are excluded from the definition of hearsay
(admission by party opponent). Knowing these may help you further to decide
whether to object in trial and what are some possible leeway you may seek when
being objected.

g. (Calls for) Speculation

When: In Direct/Cross of your opposing party, upon hearing answers (or
questions that call for answers) that testify to other people’s states of mind.

10
 Why: The court welcomes no mind-reader nor counsels who want witnesses
to do so.
Example: “Ma’am, can you tell us what he was thinking about at that
moment?”

h. (Calls for) Improper Opinion

When: In Direct/Cross of your opposing party, upon hearing answers (or
questions that call for answers) that elicit “expert-only” professional opinion from a
lay witness.
Why & Example: A butcher can only testify to what he perceives or on the
expertise of how to cut the foreleg of a cow, but he knows nothing about the
trajectory of a gun.

i. Privilege (rarely used)

When: In Direct/Cross of your opposing party, upon hearing any question
that attempts to break an established confidentiality privilege, including those
between couples, doctors and patients, lawyers and clients, as well as some
statements bound by government confidentiality contracts or company covenants.
Why: Privileges are privileges because they are realms traditionally deemed as
“have to be safe or private,” or because they had to be confidential for the “greater
good.”
Example: “Sir, you had a previous conversation with your counsel about
whether to confess. Am I correct?”

j. Opinion on the Ultimate Issue

When: In Direct of the expert witness from your opposing party, upon hearing
questions or answers that try to determine the “verdict” which should be left to the
triers of facts along
Why: We don’t need an expert or anyone to tell the jury that “the defendant is
guilty” or “the defendant is not guilty,” because that something only the jury/the
bench-trial judges can decide. If an expert solves the problem, why we hold a trial?
Example: “Doctor, what’s your conclusion in today’s case?” “The defendant
killed the victim, he’s a murderer.”

k. Lack of Personal Knowledge

When: In Direct of your opposing party, upon hearing questions that call for
testimonies that the witness is not able to know.
Why: The court will always focus on the “competency” of the witness to testify.
If a counsel wants to let his/her witness testify, he/she first will have to prove the
witness should have the ability to testify to the matter asserted. Note this is very
similar to Lack of Foundation, and indeed it can be replaced from time to time.

11
 Example: “Now, sir, as a high school student, can you tell us how this hotel
manager does his work?”

l. Badgering the Witness

When: In Cross of your opposing party, when your opposing counsel
interrupts your witness and tried to impose his/her opinion on your witness.
Why: In this way, the opposing counsel breaks the completeness of your witness’s
testimony and seeks “imposition” instead of “examination,” and your witness is also
feeling bad, save him/her.

m. Ambiguous/Vague (rarely used)

When: In Direct/Cross of your opposing party, when you hear counsels can’t
express themselves (sometimes they intend to do this, trying to mislead).
Why: As is said, it confuses the court and even misleads the jury.
Example: “You had it, right (without explaining what “had” means and what “it”
refers to)?”

n. Out of the scope of Cross/Re-Direct examination

When: In Re-direct/Re-cross of your opposing party, when you hear a topic
not brought up by you in the previous session.
Why: Such going beyond the scope distracts the attention of the jury from the
question discussed before.

o. Relevance
When: In Direct/Cross of your opposing party, when you hear questions or
testimonies that go off the topic of the trial and of no use to prove any related
elements.
Why: It distracts the jury’s attention and is a severe waste of time. But note the
“relevance” standard is extremely low-barred because it is defined as “making some
part of the case less or more probable.” When objected on this ground, counsels can
use numerous ways to establish the connection between the question or the
testimony with the case.
Example: “You have a girlfriend, right (if being single or not is of no
importance in the case)?”

p. (Substantially) More prejudicial than probative

When: In Direct (rarely Cross) of your opposing party, upon hearing
inflammatory, rude, prejudicial, extremely subjective, annoying testimonies or seeing
such actions
Why: The court should hear evidence of various kinds, but not when they bring
to the court more harm then benefit. Introducing prejudicial evidence into the court

12
 will risk the objectiveness of the jury as they may be deceived or falsely made to
believe a pretentious claim.
Example: Your opposing witness cries and yells for five minutes in court.

q. Narrative
When: In Direct of your opposing party, upon hearing a tedious and boring
testimony from the witness.
Why: You are tired, the judge is tired, and the jury is tired. You cannot focus,
the judge cannot focus, and the jury cannot focus. So just stop him/her. But note,
sometimes, the testimony to one question can be long, but well-organized and quite
interesting, so if the judge can focus, he/she may overrule your objection.
Example: (500 words omitted)

r. Misquoting the witness

When: In Cross of your opposing party, when you hear the counsel misquote
your witness’s previous statement in court.
Why: It’s misleading.
Example: “I saw the white cat.” “I see, the white dog was lovely, wasn’t it?”

s. Compound Question
When: In Cross (occasionally Direct) of your opposing party, when you hear
the opposing counsel combine two questions into one.
Why: In this case, the jury may be confused as to which part of the question
the witness is answering. This misleads the jury.
Example: “You woke up at eight and had your breakfast with your family, right?”

t. Assume facts not in evidence

When: In Cross (occasionally Direct) of your opposing party, when you hear
the prerequisite of opposing counsel’s question relies on something never
established previously in the trial.
Why: When the jury has no context of the thing mentioned, they are confused.
Note this is very like the lack of foundation, and in most cases, it can be replaced by
LOF.

u. Improper Character Evidence

When: In Direct/Cross of your opposing party, when they try to prove
something by conformity.
Why: Improper Character Evidence is often defined as “character evidence
used to prove conformity therewith.” Put in a simple way, it is to say because he
killed someone in the past, he is the murderer in today’s case. That is not allowed in

13
 trials. But note, this is the IMPROPER use of Character Evidence, while there are
also allowed uses. See 404, 405, 406, 608, 609 from Rules of Evidence.

v. Non-Responsive
When: In Cross of your own (note this is the only objection you may use when
you are standing), when your witness is simply unwilling to cooperate.
Note: Though you may always use this objection to let the court (the judge)
help your examination by specifically instructing the witness to answer your
question, it also sometimes demonstrates your inability to control your witness on
cross. Perhaps before using this objection, you may try other means to redirect your
opposing witness back to your question.

3. Opening Statement

Description:
In this part of the trial, it is the burden of the attorneys on both sides to inform the Jury
of the nature and the facts of the case. Tactful attorneys use opening statements just like
an exciting preview of a movie which arouses the interest of the Jury and the Judge in
order to keep them attentive during the trial. To achieve this, attorneys are required to
extract the most useful part of the case material and form a straightforward theory of
their own. Meanwhile, they also clearly instruct the Jury about the Burden of Proof and
the Elements of the case, which provides the Jury members a set of practical standards
to judge the evidence they are going to hear. But remember, you have limited time in
opening, so properly organizing your speech will be very important.

Time Limit: 5 minutes (during the opening, no objection may be raised)

Possible Scenarios in a trial:

P for Prosecution/Plaintiff and D for Defense
Judge: Does the prosecution/plaintiff wish to make an opening statement?
P Attorney (Standing): Yes, your honor.
P Attorney begins the opening statement and sits down after (s)he is finished.
Judge: Does the defense wish to make an opening statement?
D Attorney (Standing): Yes, your honor.
D Attorney begins the opening statement and sits down after (s)he is finished.

Preparation and Presentation:

Begin with “may it please the court, the opposing counsel, members of the jury.”
Though having largely been abandoned in real trials, this formal beginning still serves as
a reminder to all participants in the court, to officially declare your proceeding to the

14
opening of your side. Thus, this tradition is kept throughout all high-school level mock
trial competitions.

Have a theme/a theory.

In Direct Examinations, a party calls typically three witnesses to the stand, but the party
can never have them talk together. Therefore, in the opening statement, provide your
way of associating the evidence to be provided. Often, this association is known as your
“case theory” and is placed at the beginning of the opening in a rhetorical way.

For example, the plaintiff whose son died because the jail he stayed abused him and
caused his depression may use a theme: they broke the rules, they broke the standards, they broke
apart a family.

Present an overview of the story.

You can’t put half the case packet into your opening statement because the Jury
members will be overwhelmed by excessive information. However, providing an
abstract of the story on your side is very helpful. It is clear, simple, easy to understand,
and more importantly, it can support your case theory from a practical level.

Emphasize your Burden of Proof.

In real trials, the party who makes the charges/complaints must meet certain “burden”
to win the case. This burden differs in criminal and civil cases.

In a criminal case, the prosecution should prove their counts beyond a reasonable
doubt, which is the highest burden of proof in the U.S. legal system. And the defense
in a criminal case typically shoulders no burden of proof. To prove beyond a reasonable
doubt means that there is no alternative explanations, no inconsistencies of testimonies,
no missing parts from the evidence chain and nothing that generates a “reasonable
doubt.”

However, in a civil case, the plaintiff only needs to prove their case by a preponderance
of evidence, which, in general, means “more than 50 percent.” Thus, if the plaintiff
proves their counts to be more likely than not likely, they win the case. And therefore,
this puts greater pressure on the defense.

For attorneys, it is important to instruct the Jury in their opening statements about the
burden of proof, because this is the “applicable rule” for Jury members to judge the case,
without which, the jury may base their verdict on temperament, the appearance of
witnesses or anything irrational. A good opening statement always explains this point in
a thorough manner but comprehensible to even lay people.

Explain the Elements.

Sometimes, Murder is a word too vague. It does not only mean killing, but there is a
series of standards that determine if it’s manslaughter or murder, first-degree or second-

15
degree. The Jury members usually don’t understand what it takes to prove the count of
Murder or any other charges. That’s why attorneys should point out the Elements in
their case and thus invite the Jury members to examine them carefully in the trial.

Every year we provide a legal supplement to explain the elements of courts we’re using
for the competition. Before you prepare your opening statement, read them carefully
and devise a way to explain them to Jury members.

Introduce your witnesses.

In the opening, attorneys always introduce their witnesses by talking about who they are,
how they are related to the case, what they will be talking about, etc. Usually, this covers
1/4 to 1/3 of your opening.

Attorneys use simple sentences here and don’t introduce too much information because
without the context of the real person testifying, the Jury quickly forgets most of the
information.

An example may be: “Members of the Jury, today you are going to hear from Mr. Calief,
the father of the victim. He’s here to tell you what he saw when he visited his son in jail,
who was increasingly depressed, desperate and helpless. He will also tell you how the
prison officers continuously neglected his petitions for six months, chose to do nothing,
and brutally disregarded his son’s mental health.”

Have a conclusion.
This can be short in nature. You may summarize the story, your burden, and elements.
After this, at the very ending, you may conclude like: “through the trial, we will prove
you beyond a reasonable doubt that the defendant is guilty, and that is why my co-
counsel Mr./Ms. XXX will come before you at the end of the trial and ask for a guilty
verdict (only for reference).”

Don’t argue against anything.

The opening statement is a Statement, not an argument like the closing. Therefore, it’s
more about explaining and presenting things because the court knows nothing yet about the
case. If you try to argue against the other side, this may not only distract the Jury
members but also sometimes leave you in embarrassment, because your opponents don’t
always talk about things you think they will talk about.

Opening can be pre-written.

Because this is the first part of the trial, and you don’t have to argue against each other,
thus opening statement can be 100% prepared beforehand. Take advantage of that, write
your script carefully, amend them and present accordingly.

16
But this is not a recitation competition, so you should not be reading from your script
in trial, as otherwise, your points will be deducted. Act, speech, and persuade. Referring
to notes on cards is allowed to some level.

4. Direct Examination

Description:
After both sides have finished their opening statements, the court will proceed to the
direct examination of the first witness from the prosecution/plaintiff.

Direct examination is about storytelling. The witness comes to the stand, and under the
“direct” of the attorney, they till the court what they know. In this part of the trial,
testifying in court is generally characterized by the asking and answering between the
witness and attorney of the same side. The attorney may only use open-ended questions to
ask for information he/she wants the witness to present. And throughout the process,
the witness is the star and remains as the focus as he/she may “act vividly” the
memory/knowledge out.

Time Limit: 25 minutes in total (for three direct examinations)

This time limit applies to the side that is giving the direct examination. Clocks will stop
when an objection is raised until a decision has been made on the admissibility.
For example, the prosecution is conducting a direct examination, and therefore the timer
would start a 25-minute countdown for the defense team. If the defense attorney raises
an objection, the clock will stop until the judge makes clear whether the objection is
sustained or overruled.

Possible Scenarios in a trial:

A for Attorney and W for Witness
Judge: Is the prosecution ready to its first witness?
A: Yes, your honor. The prosecution calls Mr. Specter (the witness’s character name) to
stand.
A (to W): Good morning, Mr. Specter. Would you please state your name for the record.
W: Harvey Specter, S-P-E-C-T-E-R.
A: Would you like to briefly introduce yourself to members of the jury?
W: I’m a name partner of my law firm, and I have been practicing law for twenty years.
(a series of open-ended questions)
A: Nothing further, your honor.

17
Preparation and Presentation:
Attorneys:
Ask only open-ended questions.
E.g. Would you tell us what happened on Aug 8th? / Were you at the scene at that moment?
Instead of On Aug 8th, you witnessed a murder, correct? / You were at the scene at that moment,
right?

Always establish your witness.

Ask several questions before you get to the content directly related to today’s case.

For Lay Witnesses, these questions may focus on their background, relationship to the
case, their characters, everything may be intriguing for the jury to understand the witness.

For Expert Witnesses, these questions may focus on their education and training
background, job experiences, and if necessary, related experience and other factors
required under ROE 702. These help to establish his/her professional stand.

Note, while these are recommended for lay witnesses, they are required for expert
witnesses. Refer to our procedural guide issued lately for more information
introducing/establishing expert witnesses in a trial.

Carefully design the flow of your question.

Like the opening, we want to reemphasize here that you should consider the purpose of
your witness on the stand. If there’s irrelevant information in the affidavit, simply don’t
provide them in court, as otherwise it wastes time, and distracts the attention of the jury.
Further, the direct examination is about storytelling. ASSUME THE JURY KNOW
NOTHING BEFORE THEY HEAR YOUR TESTIMONIES. Thus, if you want to
narrate things naturally, organize in a proper way. This can be chronological order, causal
order or anything easy for jury members to understand. If you want to change a topic in
your flow, be sure to signal clearly, like “now Mr./Ms. XXX, I would like to talk
about…”

Lay your foundations properly.

This may go two ways.

First, it’s about the proper order we have discussed just above. If you fail to organize
your questions or answers and constantly become jumpy in the direct, the opposing
counsel will definitely grab the chance to object on the ground of “lack of foundation.”

Second, it’s about introducing the exhibits in the case packet into the court. Sometimes,
using exhibits can help to bolster the credibility of the witness, but failing to fulfill the
foundation requirement will also lead to your opposing counsels objecting on the ground
of “lack of foundation.” To avoid so, consult our later issued procedural guide.

18
Anticipate objections to your questions and answers.
This is extremely important for direct attorneys. If the witness is the majesty of the court,
you are his/her knight. After writing the script with your partner, think about parts that
may be objected by the other side, prepare your counter-argument or rewrite these
materials. Otherwise, you risk the completeness of your testimonies in trial.

Witnesses:
Act and talk like a real person.

Lay witnesses always rely on characters to earn their points at trials. Characters bolster
your credibility and make boring evidence come to life.

Expert witnesses should not be afraid of presenting his/her expertise, so always act
confidently and professionally.

Know your scripts and affidavits.

Write them well, read them well, memorize them well. If you go lost once, your attorney
can save you. But from time to time getting lost will sure earn yourself a low score on
ballots for lacking credibility.

Keep your answers short and get to the point.

Usually, an answer including more than five complete long sentences may be considered
narrative if the content is not just as interesting. This can lead to objection, and even if
it doesn’t, it still distracts the jury.

Rehearse but don’t over-rehearse.

As a witness, you know you are sticking to prepared materials, but don’t make yourself
look so. Spending several seconds thinking before answering your attorney’s question
will let jury members know you are an actual person instead of a cold brutal repeating
machine, though this is “the nature of human being.”

Make eye contact with the jury/the judges.

You look at your attorney when you are listening to his/her questions. But you should
always turn to the judges and the jury (in mock trial, they are the same) when you are
answering the questions because they are people who should be persuaded.

Cooperate with your attorney through rephrasing your testimonies.

Mostly, this happens when your attorney, after great efforts, still loses the objection
argument. You may not interrupt the argument nor instruct your attorney. However, if
you understand which part of your testimony it is that leads to the objection and know
how to rephrase it, then you are really helping. So, though as a witness, get to know
some objections.

19
5. Cross-Examination

Description:
After one side in has finished conducting the Direct Examination, the opposing side
would begin the cross-examination of the same witness.

For example, after the prosecution finish directing their witness A, a defense attorney
would come out into the well and start their cross-examination for witness A.

Cross-examination is about attacking, which is easy to understand in the confronting

setting of mock trial. In general, attacks in this session may fall into two different kinds:
1) to undermine the general credibility of the witness, including his/her ability to testify,
his/her rationality, etc.; 2) to undermine the credibility of the content of his/her
testimony, which is also to get the witness to “confess” a different side of the story that
he/she just told. While 1) is especially important for an expert witness, 2) is more
universal for both expert and lay witnesses and thus is usually the standard for evaluating
the well-roundedness of both the crossing attorney and the witness crossed.

Cross attorneys usually ask leading questions in this procedure so that they may limit the
answers of their witnesses to a simple yes or no, effectively dominating the examination.
However, witnesses are also allowed to add a brief explanation or a counter-argument
after the yes or no. After cross-examinations, attorneys may choose to re-direct the
witnesses in order to clarify something not explained well enough in the cross
examination (sometimes to “save your witness”), but they may not introduce any new
information (see objection out of scope). After re-direct, the crossing attorney may
choose to re-cross, but usually, a re-cross is unnecessary given that there is a time limit
and such tedious questioning distracts the jury’s attention.

Time limit: 25 minutes in total (for three cross-examinations)

This time limit applies to the side that is giving the cross-examination. Clocks will stop
when an objection is raised until a decision has been made on the admissibility.

For example, the defense is conducting a cross-examination on a prosecution witness,

and therefore the timer would start a 25 minutes countdown for the defense team. If the
prosecution attorney raises an objection, the clock will stop until the judge makes clear
whether the objection is sustained or overruled.

Possible Scenarios in a trial:

P for Prosecution/Plaintiff and D for Defense
(After direct examination) P Attorney: No further questions. / Nothing further.
Judge: Does the defense wish to cross?
D Attorney: Yes, your honor.

20
D Attorney: (leading question)
P Witness: Yes, (reasonable explanation), but yes.
D Attorney: No further questions. / Nothing further.

Preparation and Presentation:

Attorneys:
Use concise and precise language to formulate leading questions.
E.g. You are a member of the association, is it correct?
Instead of Are you aware of the fact that you are involved in an association and could you please tell
us the name of the association?

Anticipate responses and pre-write follow-up questions to crack possible explanations from the witness.
Know what the witness is supposed to say. Read their affidavits and list the possibilities
for their justifications.

Listen to the direct examination very carefully and take notes. Look for points that are
not well-explained and thus could be used to your advantage.

Know your flow. Do not overly rely on your pre-written script. Be ready to improvise
based on the witness’s response.

Be selective with your emphasis. Do not try to argue with the witness on every little
detail. Dig deep on the big points that are absolutely crucial to your case and be prepared
to let the others go. Remember, there is a time limit. You can’t always win everything.

Emphasize important facts by properly framing your questions.

E.g. - You are very familiar with the place, is that true?
- You went there countless times, yes?
- Not just once?
- Not just twice?
- But time after time for 15 years until you know every detail of that structure, is
that correct?

Be very familiar with the Rules of Evidence. Know what it takes for a witness to be credible
and objective.

Control the witness. Always remember that there is a time limit and the witnesses are
wasting your time if they over-talk.

Witnesses:
Know your own affidavit and avoid inconsistencies at any cost.

21
Create background stories for your character and use your character to justify or explain
your actions (for lay witnesses usually).

Use concise and precise language to formulate your responses.

“Yes Sandwich”: Yes/No, (reasonable response), but yes/no.
E.g. Yes, I do have really bad eyesight. But over the years I have learned to identify
people by their gestures and sound even if I can’t see very clearly. But yes.

Anticipate questions and use the yes sandwich to answer before asked to avoid emphasis
on your weakness.
E.g. Yes, I do have really bad eyesight. I also have really bad hearing too, but I’ve learned
how to cope with them throughout the years.

Don’t be afraid to backfire the question to the attorney.

Especially for expert witnesses when the opposing side is questioning your knowledge.
Remember, you are the expert with a degree or some levels of certification, and what
you say cannot be easily questioned if it is not logically flawed. There could always be an
explanation for things.
E.g. (sample answer) Counsel, I don’t think you understand what I’m talking about. Do
you know anything about how blood samples work?

Communicate with your direct attorneys.

Give signals when you need help so that he/she can object.

6. Closing Argument

Description:
In the Closing Argument, both the prosecution and the defense will provide a clear
summary of their testimonies and evidence in order to prove their case and rail at the
weaknesses of their opponents’ case. The content of the closing argument is restricted
to the facts and evidence already raised by the attorneys on both sides; no new facts or
evidence are admissible during closing argument.

The prosecution side will deliver its closing argument first and can choose whether to
reserve time from the total of 9 minutes for rebuttal. After the prosecution finishes its
closing argument, the defense side will proceed. Thereafter, if the prosecution has
previously chosen to leave time for rebuttal, the prosecution attorney will be permitted
to rebut the points made in the defense’s closing argument. The content of the rebuttal,
however, is also strictly limited to what has been presented and should not contain new
facts or evidence.

Time Limit: 9 minutes

22
Possible Scenarios in a trial:
P for Prosecution/Plaintiff and D for Defense
Judge: Is the prosecution/plaintiff ready for a closing argument?
P Attorney: Yes, your honor, and the prosecution/plaintiff reserves all time remaining
for rebuttal.
(The prosecution proceeds)
Judge: Thank you, attorney. Is the defense ready?
D Attorney: Yes, your honor.
(The defense proceeds)
Judge: Prosecution/plaintiff, rebuttal?
P Attorney: Yes, your honor. We would like to have a rebuttal.
(The prosecution/plaintiff proceeds with its rebuttal)
Judge: Thank you, counsels from both sides. The court is adjourned for today.

Preparation and Presentation:

Begin with “May it please the court, the opposing counsels, members of the jury.”

Be sure to base your closing on things actually happened in the trial.

Don’t include materials from the case packet not discussed in the trial, as this misleads
the jury and sometimes results in unfair advantages. And when you are referring to errors
the opposing side has made in the trial, make sure they did make the mistake and never
fabricate an assertion.

Reemphasize the Burden and Elements:

Remember in the opening we provided jury members with thorough instructions on
Burden of Proof and the Elements. At that moment, we were hoping the jury would
judge accordingly. Therefore, in closing, you may remind the jury members of the
essence of the case and in a brief summary demonstrate that you have met the burden
your side introduced.

Stylistic delivery is encouraged.

This is an argument where you can use more emotional language than the opening. Some
accusations are allowed and performance like “getting to the defendant, putting hands
on the desk and addressing him/her directly about the charges” are actually permitted.
But don’t get to the extreme, because staying logical remains the top priority to keep
your persuasion credible.

Balance emphasis on both your side’s case and the other’s.

Don’t trade one with another because they all help the jury to understand why they
should vote in your favor. Centering the argument only around yourself makes you
sound weaker in the battle, while referring too little to your own witnesses also leaves
your argument not well-grounded.

23
Stay organized and list your points before you speak.
Because we are addressing “points” that happened throughout the whole trial in the
closing, our argument falls apart easily and have the jury lose tracking our thoughts. So,
tie the points to some large pictures. The most affordable at hand is to stick with the
burden and counts, like in the opening statement. About every single element, you raise
what your side has proved what the other side has failed to do so.

24