"Education is a kind of continuing dialogue, and a dialogue assumes, in the nature of the case, different points of view." Robert Hutchin.
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The Structure of a Criminal Mock Trial
The opening of the court
Often the judge will begin the trial by asking if there are any preliminary matters or by requesting stipulations. The barristers would offer stipulations, if any, in response to that question. Stipulations of the parties are issues that both sides have agreed to prior to the trial.
The opening statement
Before proceeding with the opening statement, each team should introduce the team to the presiding judge.
"Judge. My name is ______________. I will be presenting the ___________________and ___________________________. A witness should state his/her role.
Counsel for the prosecution reads the indictment, briefly summarises the facts of the case, outlines the elements of proof, and summarises the evidence that will be presented to prove the case.
Counsel for the defendant's may summarise the evidence that will be presented to rebut the case the prosecution has made at this point or may wait until after the prosecution closes its case.
The purpose of opening statements by each side is to tell jurors something about the case they will be hearing. The opening statements must be confined to facts that will be proved by the evidence, and cannot be argumentative.
The opening is statement is critical. The goal is to map out your case as a story from your perspective (prosecution / defence).
Do not argue
Explain what happened in a story form in a way that is easy to follow and interesting.
Use future tense. "The evidence will show..."
Use strong powerful language. "We will prove..." vs. "We will try to...".
State what witnesses and evidence you will use to prove your story.
State that you will meet your burden of proof if you are the prosecution.
If you are the defence, emphasise that an indictment or accusation does not mean a person is guilty.
In a criminal case, the defendant is innocent until proven guilty beyond a reasonable doubt.
The defence should emphasise the burden the prosecution has in a criminal trial.
Note: In a civil case, the defence should remind the court that the plaintiff has the burden of proof (on the balance of probability) and must tip the scales of justice in their favour.
What makes a good opening statement: Key ideas
GOOD STORY
GIVE THE JUDGE/JURY A ROADMAP
LOGICAL ORDER
EYE CONTACT
MEMORISED
AUTHENTIC
REMEMBER PAINT A PICTURE FOR THE JUDGE
KEEP IT SIMPLE
DO NOT OVERSTATE YOUR CASE
"Judge. My name is ______________. I will be presenting the ___________________and ___________________________. A witness should state his/her role.
Counsel for the prosecution reads the indictment, briefly summarises the facts of the case, outlines the elements of proof, and summarises the evidence that will be presented to prove the case.
Counsel for the defendant's may summarise the evidence that will be presented to rebut the case the prosecution has made at this point or may wait until after the prosecution closes its case.
The purpose of opening statements by each side is to tell jurors something about the case they will be hearing. The opening statements must be confined to facts that will be proved by the evidence, and cannot be argumentative.
The opening is statement is critical. The goal is to map out your case as a story from your perspective (prosecution / defence).
Do not argue
Explain what happened in a story form in a way that is easy to follow and interesting.
Use future tense. "The evidence will show..."
Use strong powerful language. "We will prove..." vs. "We will try to...".
State what witnesses and evidence you will use to prove your story.
State that you will meet your burden of proof if you are the prosecution.
If you are the defence, emphasise that an indictment or accusation does not mean a person is guilty.
In a criminal case, the defendant is innocent until proven guilty beyond a reasonable doubt.
The defence should emphasise the burden the prosecution has in a criminal trial.
Note: In a civil case, the defence should remind the court that the plaintiff has the burden of proof (on the balance of probability) and must tip the scales of justice in their favour.
What makes a good opening statement: Key ideas
GOOD STORY
GIVE THE JUDGE/JURY A ROADMAP
LOGICAL ORDER
EYE CONTACT
MEMORISED
AUTHENTIC
REMEMBER PAINT A PICTURE FOR THE JUDGE
KEEP IT SIMPLE
DO NOT OVERSTATE YOUR CASE
Examples of Mock Trial opening statements
Prosecution's witness # 1: Examination-in-chief (Direct examination)
The witness must take the oath or affirmation administered by the court registrar before being questioned. Counsel for the prosecution then conduct examination-in-chief (questioning) of its first witness. No leading questions are permitted except, after first seeking permission from the judge preliminary questioning as to the name, address and occupation of the witness. The witness may be directed by the prosecuting barrister to speck clearly and to look at the judge when answering questions. The judge any at any stage question the witness or seek clarification. At this time, testimony and other evidence to prove the plaintiff/ prosecution's case will be presented.
What makes examination in chief good?
The goal is tell a story through this witness about important facts about the case.
Ask the witness only open-ended questions: who, what, where, when, how, why?. The words must come from the witness, otherwise the other side will object to leading or putting the words into he witnesses mouth.
The barrister asks questions and puts the focus on the witness.
Make the witness look believable and honest.
The barrister should lay proper foundation. This means asking questions in "baby steps". A particular line of questioning must lead logically and sequentially from one idea to the next.
Keep questions short and to the facts contained within the witness statement. Avoid long-winded narrations.
Do not ask questions that call for improper opinions or state conclusions.
Do not invent information or facts.
Focus on 3 or 4 key concepts and/or evidence you need from the witness.
The barristers role is to ask questions and not testify.
Witnesses must role play their character convincingly.
What makes examination in chief good?
The goal is tell a story through this witness about important facts about the case.
Ask the witness only open-ended questions: who, what, where, when, how, why?. The words must come from the witness, otherwise the other side will object to leading or putting the words into he witnesses mouth.
The barrister asks questions and puts the focus on the witness.
Make the witness look believable and honest.
The barrister should lay proper foundation. This means asking questions in "baby steps". A particular line of questioning must lead logically and sequentially from one idea to the next.
Keep questions short and to the facts contained within the witness statement. Avoid long-winded narrations.
Do not ask questions that call for improper opinions or state conclusions.
Do not invent information or facts.
Focus on 3 or 4 key concepts and/or evidence you need from the witness.
The barristers role is to ask questions and not testify.
Witnesses must role play their character convincingly.
Examples of examination in chief
Cross-examination of the prosecutions witness #1 by counsel for the defence.
After the prosecution has completed questioning a witness they have called, the judge then allows counsel for the defence to cross-examine the witness. The cross-examiner seeks to clarify or cast doubt upon the testimony and or credibility of opposing witnesses.
What makes cross examination good?
The barrister should only ask leading questions - questions that put words in the witnesses mouth and can only be answered by "yes" or "no".
Use the witness statement against the witness by using their exact words against them. Do not allow the witness to change words or add information. Use their statement against them by asking them to show where in the statement it says the inconsistent statement or made up information.
Control the witness in a strong yet polite way.
The of cross examination is to discredit the witnesses testimony. Do this by showing bias,lying, inability to see the situation etc.
Make the witness "wilt" but not in a manner where you as the barrister seems to behave like a bully. Be careful not to offend the judge or jury.
The aim of cross examination is to create doubt. To do this:
Know the witness statement inside and out.
Think about what the weak points are for the witness and focus on those.
Keep your sentences short.
Hit your main points and sit down.
Never ask open-ended questions because a good witness will seize that opportunity and highlight all their positive points.
If you have done a good job at cross-examination the witness should seem less credible when you have finished asking questions.
Cross examination: key ideas
Strong, yet polite
Take the stage
Control the witness
Eye contact
Relaxed
Get to your points
What makes cross examination good?
The barrister should only ask leading questions - questions that put words in the witnesses mouth and can only be answered by "yes" or "no".
Use the witness statement against the witness by using their exact words against them. Do not allow the witness to change words or add information. Use their statement against them by asking them to show where in the statement it says the inconsistent statement or made up information.
Control the witness in a strong yet polite way.
The of cross examination is to discredit the witnesses testimony. Do this by showing bias,lying, inability to see the situation etc.
Make the witness "wilt" but not in a manner where you as the barrister seems to behave like a bully. Be careful not to offend the judge or jury.
The aim of cross examination is to create doubt. To do this:
Know the witness statement inside and out.
Think about what the weak points are for the witness and focus on those.
Keep your sentences short.
Hit your main points and sit down.
Never ask open-ended questions because a good witness will seize that opportunity and highlight all their positive points.
If you have done a good job at cross-examination the witness should seem less credible when you have finished asking questions.
Cross examination: key ideas
Strong, yet polite
Take the stage
Control the witness
Eye contact
Relaxed
Get to your points
Prosecutions re-examination in chief of witness # 1
This is permitted in circumstances where the prosecution seeks to clarify any testimony by their witness that was cast in doubt or impeached during cross-examination. Re examination of the witness is limited to the scope of the examination in chief and the cross examination.
The prosecution rests its case
After all the prosecutions witnesses have been called, the same procedure outline above is followed by the defence.
Before the defence call their witness # 1 they may at this point make their opening statement.
Counsel for the defence may choose to do the opening statement at this point in the trial. If the opening statement was presented at the beginning of the trial, the defense proceeds with their witness #1. The same procedure for cross-examination and re-examination as outlined above for each of the defence witnesses applies.
The defence rests its case
Closing arguments
Prosecution: The closing statement is a review of the evidence presented. It should review the evidence as presented, stress facts favorable to the prosecution and show how the prosecution has met its burden (beyond a reasonable doubt: criminal standard) of proving all the necessary elements of its case. The prosecuting barrister concludes with a request that the court enter judgment on behalf of the prosecution. Defence: Counsel for the defence reviews the evidence as presented, stresses the facts favorable to the defense and shows how the prosecution has failed to prove all the necessary elements of its case. Counsel concludes with a request that the court enter judgment on behalf of the defendant.
What makes a closing argument good?
Be intense and argue the facts that came into evidence. Be careful to omit facts one thought might have been introduced but were not.
The goal is to connect everything together with passion and clarity. Barristers must make sure that they discuss how the elements of the law where proven (prosecution) or where not proven (defence).
Cite the case law associated with the case.
Use strong language. Be convincing. State the evidence proved - not that we think or hope it is.
Focus on the strengths of your case and the weak points of the other sides.
Be sure to state that you met your burden of proof - go through each and every element/ law you needed to prove.
The defence should focus on the weaknesses of the prosecutions case and emphasis the prosecutions burden - beyond a reasonable doubt.
The defence should argue what the prosecution failed to prove.
The defence should remind the court that an indictment is not a conviction and a person is innocent until proven guilty.
What makes a closing argument good?
Be intense and argue the facts that came into evidence. Be careful to omit facts one thought might have been introduced but were not.
The goal is to connect everything together with passion and clarity. Barristers must make sure that they discuss how the elements of the law where proven (prosecution) or where not proven (defence).
Cite the case law associated with the case.
Use strong language. Be convincing. State the evidence proved - not that we think or hope it is.
Focus on the strengths of your case and the weak points of the other sides.
Be sure to state that you met your burden of proof - go through each and every element/ law you needed to prove.
The defence should focus on the weaknesses of the prosecutions case and emphasis the prosecutions burden - beyond a reasonable doubt.
The defence should argue what the prosecution failed to prove.
The defence should remind the court that an indictment is not a conviction and a person is innocent until proven guilty.
Examples of closing arguments
The judge addresses and may direct the Jury before they retire to reach a verdict.
At any stage during the jury's deliberation a request can be made to review a specific piece of evidence or to question / seek clarification from the judge. When the jury has reached a verdict, the court will reconvene. The foreman appointed by the jury members will give the written verdict (guilty of not guilty) to the court registrar to present to the judge.
