Order of Trial

• Opening Statement

• Direct Examination of Witness #1

• Cross Examination of Witness #1

• Direct Examination of Witness #2

• Cross Examination of Witness #2

• Direct Examination of Witness #3

• Cross Examination of Witness #3

• Closing Argument (Including Rebuttal)

High School Mock Trial Program

Instructional Resources

Trial Procedure Guidelines

(Adapted from the Georgia State Bar Mock Trial Website)

OPENING STATEMENTS—general purpose:

Prosecution—

• explaining steps in a criminal trial and the jury’s role therein

• outlining the charge against the defendant, which may include reading the indictment

• outlining the case to be presented, not overstating a case or claiming to prove what cannot be proven

• creating a positive first impression on the judge/jury

• acquainting the jury with something personal about the case favorable to your side (i.e., sympathy for the victim; paint the victim as a "good person," impersonalize the defendant by referring to that person as "the defendant")

• downplaying the "burden of proof"

Defense—

• casting the jury’s role in the trial in terms involving the fundamental principles of American justice:

• indictment is NOT evidence

• presumption of innocence; stress the "burden of proof"

• rule of reasonable doubt

• effect of circumstantial evidence

• character of defendant

• outlining the case to be presented, not overstating a case or claiming to prove what cannot be proven

• creating a positive first impression on the judge/jury

• acquainting the jury with something personal about the case favorable to your side (i.e., sympathy for the defendant; paint the defendant as a "good person"; stress the defendant’s belief in the American system of justice to acquit him in open court—"But for the grace of God," any juror could be in the defendant’s shoes; refer to the defendant by name)

Key Rules on Content of Opening Statements—

• Remember the proper decorum for court behavior:

• stand to address the court

• refer to the judge as "Your Honor."

• never talk directly to the opposing attorney

• direct your comments to the jury only in opening and closing statements

In all statements and questioning:

• "paint a clear picture"

• "keep it simple"

• "never promise what you can’t prove"

WITNESS EXAMINATIONS BY ATTORNEYS

Direct Examination

• Before you write your questions for direct examination, list the objectives you wish to obtain from each of your witnesses.

• You should make at least one major point for your case from each witness during direct examination.

• The purpose of the direct examination is to have your witness give testimony relating directly to what he perceived through the use of his senses.

• The witness may not give opinions conclusions or speculations. Only a qualified expert may offer opinions and conclusions where the subject of the testimony is in his area of expertise.

• Procedural restrictions upon methods of receiving testimony are designed to insure that objectionable material is not received by the jury.

• If physical evidence is to be produced, it must have a witness to identify it, testify to its relevancy.

• Physical evidence is introduced during the course of regular testimony and is subject to the judge’s approval as to its admissibility.

• Watch where you stand: Don’t position yourself between the witness and the jury.

Cross Examination

• Attempt to establish that a witness is lying (or at the least, not telling the "whole truth").

• Attempt to show prejudice on the part of the witness.

• Attempt to show that the testimony was improbable.

• Get the witness to admit certain prejudicial facts.

• Show that the witness gave questionable opinions because of inability to see, hear, etc.

• Show the incompetence of expert witness.

• Attempt to uncover contrary statements which may have been made.

Notes on Conduct:

• use the natural fear of the witness as an ally

• be fair to the witness

• hold the eye of the witness (study his/her gestures for any clues)

• roll with the punches (keep your composure)

• do not beat a dead horse (this will arouse sympathy)

• make sure the jury keeps up with your questions

• don’t resort to making unnecessary objections when the cross examination of your witness is going poorly

CLOSING ARGUMENTS BY ATTORNEYS

• Outline your summation first: you shouldn’t presume that the testimony has stuck in the minds of the jury.

• Show appreciation to the jury for listening to the presentation of facts and evidence, but don’t be too flowery.

• Review previous representations: review facts where no discord concerning them makes it possible for you to say the evidence has established facts you said you would prove.

• Issues—P should narrow-down the issues completely; defense should create as many issues as possible so that the jury will tend to feel that the P failed to prove them all.

• Cover the law in as favorable a manner as possible for your case.

• Look at any special problems (any poison) in your case and try to cover them up (i.e., your client has a horrible personality); remind the jury of the voir dire promises they made.

• Look at problems in your opponent’s case, especially a failure to produce a key witness or present key evidence (both of which are usually controlled in mock trial cases, but still worthy of mention).

• Should be natural and convincing; dramatics should be within the range of the attorney’s ability to perform convincingly and effectively, and not look silly.

GUIDELINES FOR STUDENT WITNESSES IN MOCK TRIAL PROJECT

This memo outlines various techniques and tips for preparing students to be witnesses in mock trials. Included are suggestions for both the preparation before trial and the presentation at trial of the opening statement, direct examination, cross-examination, and the closing statement.

GENERAL SUGGESTIONS

• If you are going to testify about records, familiarize yourself with them before coming to trial.

• Do not try to memorize what you will say in court, but try to recall what you observed at the time of the incident.

• If you have been summoned by a subpoena, bring it to court with you. The subpoena will provide information on when and where to appear.

• When you are called to the stand, don’t be nervous, there is no reason to be.

• You will be asked to take an oath to tell the truth. Remember the seriousness of this oath during the entire time you are testifying. If you willfully fall to tell the truth while testifying, you will be subject to penalties for perjury.

• If asked whether you have discussed the case with anyone, you should indicate any occasion that you have talked with the prosecutor, the defense attorney, or anyone else.

• When answering questions, speak clearly so you will be heard. The judge must hear and record your answer; therefore, do not respond by shaking your head.

• Listen carefully to the questions. Before you answer, make sure you understand what was asked. If you do not understand, ask that the question be repeated.

• Do not give your personal opinions or conclusions when answering questions unless specifically asked. Give only the facts as you know them, without guessing or speculating. If you do not know, say you do not know.

• If you realize you have answered a question incorrectly, ask the judge if you may correct your mistake.

• If the judge interrupts or an attorney objects to your answer, stop answering immediately. Likewise, if an attorney objects to a question, do not begin your answer until the judge tells you to continue.

• Be polite while answering the question. Do not lose your temper with the attorney questioning you.

• Always be courteous to witnesses, other attorneys, and the judge.

• Always stand when the judge enters or leaves the room.

• Dress appropriately (this may mean coat and tie for males and dresses or equivalent for females).

• Always say, "Yes, Your Honor" or "No, Your Honor" when answering a judge’s question.

• If the judge rules against you in the case, take the defeat gracefully and be cordial to the judge and the other side.

(Portions of these suggestions were adopted from The Alabama Victim and Witness Handbook, Office of Administrative Office of Courts, Montgomery, Alabama.)