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APPENDIX
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S . S E H S
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CROATIA MOCK TRIAL SHOWCASE 2010
Simon v. Swift
Table of Contents
Page I. The Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Summary of Case Witnesses and Exhibits List Complaint Answer Witness Statements
For the Plaintiff Affidavit of Kelly Simon Affidavit of Morgan Pearce Affidavit of Lynn Roper, Ph.D.
For the Defense Affidavit of Terry Swift Affidavit of Jamie Hagar, Ed.D. Statement of Aubrey Brady
Exhibits
1 OIA Bylaws (Portion of Article 14) 2 OIA Position Statement 3 Oregon Child Fatality Review Data Form 4 Toxicology Report 5 Poster (Girl) 6 Poster (Boy) 7 NFSHSA Brochure 8 Report of Race Times 9 Bank Records 10 Internet Printing Cover Sheet and Article
II. The Form and Substance of a Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. The civil case – Background information on the law 1. A Wrongful Death Cause of Action 2. Defenses Against a Wrongful Death Action 3. Proof by a Preponderance of Evidence
B. Role Descriptions
1. Attorneys a. Opening Statement b. Direct Examination c. Cross Examination e. Closing Arguments 2. Witnesses
a. Witness Bound by Statements b. Unfair Extrapolation
1 1 1 3 5 7 7 7 11 16 22 22 27 33 40 41 42 43 45 46 47 48 50 51 52 55 55 55 55 56 56 56 56 57 58 59 59 59 60
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c. Gender of Witnesses 3. Duties of Clerk and Bailiff a. Duties of the Clerk b. Duties of the Bailiff
C. Sample Trial Sequence and Time Limits III. The Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Supplemental Material, Illustrative Aids, Costuming
B. Standing During Trial
C. Objections
D. Procedure for Introduction of Exhibits
E. Use of Notes
F. Relevancy and Its Limits 1. Definition of “Relevant Evidence”
2. Relevant Evidence Generally Admissible 3. Who May Impeach 4. Testimony by Experts
G. Hearsay
1. Definitions 2. Hearsay Rule
IV. Notes to Judges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Introductory matters
Appendices Team roster form Time sheet form Diagram: Typical Courtroom
60 61 61 61 62 62 62 63 63 64 64 64 64 64 65 65 66 66 67 67 67 69 70 71 72
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OREGON HIGH SCHOOL MOCK TRIAL 2008-2009 Kelly Simon v. Terry Swift and Eastside High School
Summary of Case Jordan Simon was a 17-year old senior in high school who unexpectedly died of a heart attack. Jordan began running as a youngster, and had real promise. Jordan joined Eastside High School’s track team as a freshman, and quickly developed into a star sprinter. At the time of Jordan’s death, Jordan was competing for a track scholarship to a Division 1 university.
The autopsy revealed that Jordan’s bloodstream contained the steroid Erythropoietin (pronounced, ah-rith-ro-poy-tin, and abbreviated, EPO). EPO is used medically to treat certain forms of anemia. Athletes use EPO to improve performance, because it increases the oxygen carrying capacity of blood. EPO also increases the blood viscosity, which can cause the blood to sludge and clog capillaries, resulting in a heart attack. Kelly Simon, Jordan’s surviving parent, has filed a wrongful death lawsuit against Eastside High School and Terry Swift, the track coach. Specifically, Kelly claims that Terry and the school’s athletic department: (i) encouraged Jordan to use steroids; and (ii) should have known that Jordan was using steroids and taken steps to stop Jordan’s steroid use. Terry and Eastside deny Kelly’s claims, and contend that: (i) Jordan assumed the risk of using steroids; and (ii) Kelly was comparatively negligent in not (a) discovering that Jordan was using steroids, and (b) taking steps to stop Jordan’s steroid use. This is a bifurcated trial on the issue of liability only; damages are not at issue. The plaintiff’s witnesses are: (i) Kelly Simon, Jordan’s surviving parent; (ii) Morgan Pearce, another student on the track team and Jordan’s close friend; and (iii) Lynn Roper, Ph.D., an expert on the effects of steroid abuse and the use of steroids by young athletes. The defendants’ witnesses are: (i) Terry Swift, Eastside’s track coach; (ii) Jamie Hagar, Ed.D, Eastside’s assistant principal and athletic director; and (iii) Aubrey Brady, a consultant to coaches and athletic departments. Witnesses and Exhibits Lists
The plaintiff will call the following witnesses:
Kelly Simon Morgan Pearce Lynn Roper, Ph.D.
The defendants will call the following witnesses:
Terry Swift Jamie Hagar, Ed.D. Aubrey Brady
The exhibits that may be used at trial are marked as follows:
Exhibit 1 OIA Bylaws (Portion of Article 14) Exhibit 2 OiA Position Statement Form 14.13
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Exhibit 3 Oregon Child Fatality Review Data Form Exhibit 4 Toxicology Report Exhibit 5 Poster (Girl) Exhibit 6 Poster (Boy) Exhibit 7 NFSHSA Brochure Exhibit 8 Report of Race Times Exhibit 9 Bank Records Exhibit 10 Internet Printing Cover Sheet and Article
Authenticity is stipulated for all exhibits.
All witness affidavits were signed before trial. Each witness has reviewed his/her affidavit for accuracy, and no changes were made.
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PARKER WALTERS, P.C. Eduardo Chavez (No.92440) 2727 North Central Avenue Suite 905 Chinook, OR 97200 Telephone: (503) 555-1212
Attorneys for Plaintiff
IN THE CIRCUIT COURT OF OREGON
DUNIWAY COUNTY
KELLY SIMON, an unmarried individual,
Plaintiff,
v.
TERRY SWIFT, an unmarried individual; EASTSIDE HIGH SCHOOL,
Defendants.
No. CV2008-35789
COMPLAINT
Plaintiff alleges:
COUNT ONE
(Negligence/Wrongful Death)
1. Plaintiff is an unmarried individual who resides in Duniway County, Oregon.
2. Terry Swift (“Swift”) is an unmarried individual who resides in Duniway County,
Oregon. At all relevant times, Swift was the track coach at Eastside High School (“Eastside”).
3. Eastside High School is a private high school with its principal place of business in
Duniway County, Oregon.
4. Jurisdiction and venue are proper in this Court.
5. Plaintiff is the surviving parent of Jordan Simon (“Jordan”), who died unexpectedly of a
heart attack on May 6, 2008.
6. Jordan began competitive sprinting in grade school. Jordan enrolled as a freshman and
joined the track team at Eastside during the 2004-05 school year. At the time of Jordan’s death,
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Jordan was: (i) a 17-year old senior at Eastside; and (ii) a star sprinter on Eastside’s track team.
7. An autopsy and laboratory tests confirmed that Jordan’s bloodstream contained extremely
high levels of a steroid known as Erythropoietin (“EPO”). EPO is a steroid that commonly is
used without a doctor’s prescription and supervision by sprinters and other endurance athletes to
improve their performance.
8. The EPO in Jordan’s system caused Jordan’s fatal heart attack.
9. Jordan never had a doctor’s prescription for EPO.
10. Defendants had a duty to (among other things): (i) monitor Eastside’s student athletes
for the use of illegal performance-enhancing drugs; (ii) warn Eastside’s student athletes regarding
the dangers and risks associated with the use of illegal performance-enhancing drugs; and (iii)
discourage Eastside’s student athletes from using illegal performance-enhancing drugs
(collectively, the “Duties”).
11. Defendants breached their Duties to Jordan, by (among other things): (i) failing to
monitor Jordan for the use of illegal performance-enhancing drugs; (ii) failing to warn Jordan
regarding the dangers and risks associated with the use of illegal performance-enhancing drugs;
and (iii) expressly and/or implicitly encouraging Jordan to use illegal performance-enhancing
drugs.
12. Defendants’ breach of the Duties proximately caused Jordan’s death.
13. Plaintiff has suffered emotionally and physically as a result of Jordan’s death and
Defendants’ breach of the Duties.
WHEREFORE, plaintiff prays for judgment against Defendants for:
A. Damages in an amount to be proven at trial;
B. An award of taxable costs; and
C. Such other relief as the Court deems just and proper.
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DATED: August 27, 2008.
PARKER WALTERS, P.C.
By /s/ Eduardo Chavez Eduardo Chavez Attorneys for Plaintiff
FOSTER & COLLINS, LLP Sarah Cavanaugh (No. 003172) One North Central Avenue Suite 1800 Chinook, OR 97004 Telephone: (503) 555-1000
Attorneys for Defendants
IN THE CIRCUIT COURT OF OREGON
DUNIWAY COUNTY
KELLY SIMON, an unmarried individual,
Plaintiff,
v.
TERRY SWIFT, an unmarried individual; EASTSIDE HIGH SCHOOL,
Defendants.
No. CV2008-35789
ANSWER
Defendants answer plaintiff’s Complaint as follows:
1. Defendants admit the allegations in paragraphs 1 through 4
2. Defendants admit that (i) plaintiff is the surviving parent of Jordan Simon (“Jordan”), and
(ii) Jordan died on May 6, 2008; and are without sufficient information and knowledge to admit
or deny the remaining allegations in paragraph 5.
3. Defendants admit that (i) Jordan enrolled as a freshman and joined the track team at
Eastside High School (“Eastside”) during the 2004-05 school year, and (ii) at the time of Jordan’s
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death, Jordan was a 17-year old senior and a star sprinter on Eastside’s track team; and are
without sufficient information and knowledge to admit or deny the remaining allegations in
paragraph 6.
4. Defendants are without sufficient information and knowledge to admit or deny the
allegations in paragraphs 7 through 9.
5. Defendants deny the allegations in paragraphs 10 through 13.
6. Defendants deny all allegations that have not been admitted expressly in this Answer.
Affirmative Defenses
1. Plaintiff’s claims, if any, are barred by plaintiff’s comparative negligence.
2. Plaintiff’s claims, if any, are barred by Jordan’s assumption of the risk.
3. Defendants may learn of additional affirmative defenses during the course of discovery,
and reserve the right to amend this Answer to assert such affirmative defenses.
WHEREFORE, defendants pray for:
A. Judgment dismissing plaintiff’s claims with prejudice;
B. An award of their taxable costs; and
C. Such other relief as the Court deems just and proper.
DATED: September 12, 2008.
FOSTER & COLLINS, LLP
By /s/ Sarah Cavanaugh Sarah Cavanaugh Attorneys for Defendants
Copy of the foregoing mailed on September 12, 2008, to: Eduardo Chavez PARKER WALTERS, P.C. 2727 North Central Avenue Suite 905 Chinook, OR 97200 Attorneys for Plaintiff /s/ Ruth Smith
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AFFIDAVIT OF KELLY SIMON STATE OF OREGON ) ) ss. County of Duniway )
Kelly Simon, first duly sworn, under oath, states as follows:
1. I live in Chinook, Oregon, and I am the 34-year-old only surviving parent of Jordan
Simon. Jordan is my only child and died on May 6, 2008.
2. My former spouse, Keane, and I found out we were expecting Jordan when I was only 16
years old. Keane and I were both in high school. We were both very successful runners. Keane
ran long distances and I was a sprinter. We were hoping to go to college on track scholarships
when we learned about the pregnancy.
3. Keane died when Jordan was only 2 years old. I worked two, and often three, jobs to
make sure that I could take care of Jordan. I wanted to make sure that Jordan had a good life. I
probably wasn’t home enough, but I had to do what it took to get food on the table and pay for
insurance.
4. Insurance from Keane’s death was set aside in a trust account for Jordan. Until Jordan
was 16 years old, I controlled the trust. I never took money out of the trust. At times, I even
worked 18 hours a day to make sure that we could get by without touching Jordan’s trust money.
According to the terms of the trust, when Jordan turned 16 years old, Jordan could access the
money and withdraw funds without my consent.
5. I knew, even when Jordan was little, that Jordan had serious running talent. Jordan ran a
2-mile race at only six years old and finished before a lot of adults. Jordan and I often ran
together on the weekends and early in the morning – it was our time together. Jordan was a
strong runner.
6. By 6th grade, Jordan could often beat me in sprints. Of course, I was not in great shape,
but Jordan was really fast, particularly in the 100 meters.
7. By 8th grade, Jordan met numerous high school track coaches. Terry Swift from Eastside
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High School, one of the top track coaches in the state, was at Jordan’s middle school for a
meeting during one of Jordan’s track meets. Jordan was very excited about meeting Terry. I
wish Terry had been hit by a car on the way to the middle school; then I wouldn’t be walking past
Jordan’s empty room every night. I blame Terry and Eastside for Jordan taking steroids.
8. In middle school, Jordan set numerous school records. A few kids at other schools were
faster, but Jordan was committed to track.
9. Terry made quite an impression on Jordan. After meeting Terry, Jordan talked all the
time about going to Eastside, because it had one of the best track programs in the state. The
problem was that Eastside is a fancy private school – a school we couldn’t afford without help,
and Jordan’s grades were not nearly good enough to qualify for an academic scholarship. It’s not
that Jordan wasn’t bright, but Jordan was more interested in running than studying. Fortunately,
Terry recommended Jordan for a scholarship. Although Terry never said it, all Jordan had to do
was stay on the track team and keep doing really well, and Jordan would get to stay at Eastside.
10. I know I put a lot of pressure on Jordan. I wanted to make sure that Jordan stayed at
Eastside. It was a good school – one we couldn’t afford. I also wanted Jordan to have the life as
a track star that Keane and I couldn’t, because we made poor decisions when we were young.
11. I remember when Jordan was 15, one day during our run, Jordan told me that Terry was
applying a lot of pressure for Jordan to take it to the next level. Jordan had placed second in the
last meet and Terry was angry. Jordan told me that Terry said that college was on the line and so
was next year’s tuition at Eastside.
12. I told Jordan that Terry was right. I wanted Jordan to get into a good college. I wanted
to make sure that Jordan stayed at Eastside. I remember telling Jordan about the extra training we
were going to do together. Instead, I got a promotion at one of my jobs to manager of the
computer training division, and I ended up working a lot more. I never got to do the extra
training with Jordan. In fact, I ended up putting a lot more responsibility on Jordan to manage the
house. Jordan had to shop for groceries, do all the laundry, run errands and make dinner. Jordan
probably had less time to train after my promotion than before.
13. When Jordan was 16, more college recruiters started coming to the track meets and
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practices. Jordan was getting more and more nervous.
14. Jordan asked me a few times if funds from the trust account were available. I said at 16
the funds were available. I never even thought to check the balance after Jordan turned 16.
15. In Jordan’s senior year, things were coming together – or so it seemed – from a track
standpoint. Jordan won every race. Jordan’s times were getting faster and faster. At home,
Jordan was more and more withdrawn. I figured it was adolescence. Jordan never wanted to go
on morning or weekend runs with me, saying, “they were unnecessary – there were other types of
training for great runners.” Jordan’s comments hurt my feelings, but I figured Jordan was just
angry about all the responsibilities that the other kids didn’t have.
16. During Jordan’s senior year, Jordan was sick a lot. Jordan often stayed home with cold
and flu-like symptoms. It seemed like Jordan caught almost every bug that was going around the
school that year. Jordan also got lots and lots of nosebleeds. I asked if we should go to the
doctor, but I just got an ice-cold stare and Jordan said, “it’s the price of success.” I had no idea
what that meant.
17. I also was worried about Jordan’s acne. Jordan always had perfect skin, but all of a
sudden Jordan’s back was covered with acne. I figured it was hormonal and Jordan was already
angry all the time – I didn’t want to bring up the issue.
18. In April 2008, I decided to buy Jordan a car as an early graduation gift. I had been
saving as much as I could. I thought about asking Jordan to pay for car insurance from the trust.
I decided to check the balance on the account. I saw the account balance was down from around
$50,000 to about $25,000. I blew my top. First, I called the bank and freaked out that money was
fraudulently taken out of Jordan’s trust. The bank e-mailed me the records showing Jordan’s
withdrawals; I couldn’t believe my eyes.
19. I went to Jordan’s track practice and in front of Terry I started yelling at Jordan. I
showed Jordan the bank records and demanded an explanation. Jordan looked at both of us and
said, “You both know where the money is going. You might as well buy it for me. How am I
getting so good? Not from doing dishes. Not from doing laundry.” Jordan looked right at Terry
and said, “You know – you explain it.” Jordan ran off and didn’t talk to me for a couple of weeks.
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I asked Terry what Jordan meant and Terry said, “I’ll take care of it.”
20. I monitored the account and the money kept getting withdrawn, but I couldn’t do
anything to stop it. I wish I had done something – I don’t know what – but I wish I had done
something.
21. On the morning of May 6, 2008, Jordan’s school called and asked why Jordan wasn’t
there. Jordan had a big track meet that day – Jordan always went to school on days of track
meets, because you could only participate if you attended school. I called home, but there was no
answer. I knew something was wrong, so I drove home as fast as I could. When I got home I
found Jordan. Jordan was lying in bed, eyes closed. I touched Jordan and I felt my life was over.
Jordan’s body was cold. I screamed. I called 911.
22. I’ve taken leave from work. I can’t function. I’m heavily medicated most of the time.
My life is gone. Everything I loved is gone. Jordan was my baby. I wanted Jordan to have the
life I never had – now Jordan is dead at 17 years old.
23. About a month ago, I found the strength to go through some of Jordan’s stuff. In a
shoebox in the back of Jordan’s closet I found a bunch of syringes and small bottles containing a
clear liquid. I’m sure it was the steroids. I threw the box against the wall. Eventually, I gathered
everything up and tossed it in the trash.
24. Most days I sit in Jordan’s room or lay on the bed and stare at the track trophies and
medals. I crave one more day with Jordan. One more run. One more breakfast. One more
conversation. I don’t know how I can get through the rest of my life. For now, I’m just trying to
get through each minute with the pain and loss of losing my child to steroids.
/s/ Kelly Simon
SUBSCRIBED AND SWORN to before me, a Notary Public, on January 6, 2008, by Kelly
Simon.
/s/ Quincy Vargas
My Commission Expires:
November 5, 2010
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AFFIDAVIT OF MORGAN PEARCE STATE OF OREGON ) ) ss. County of Duniway )
Morgan Pearce, first duly sworn, under oath, states as follows:
1. I am 18 years old and live in Chinook, Oregon, with my parents. I am a freshman at
Glendale Community College where I am a member of the track team. I graduated from Eastside
High School, where I also was on the track team.
2. I have been running track since my freshman year at Eastside. I was first introduced to
track in my physical education class. My P.E. teacher was Coach Swift, the track coach. Coach
suggested that I try out for the team because I was the fastest person in my class. Coach also told
me that I might qualify to get a scholarship to cover some, if not all, of the tuition for attending
Eastside.
3. On the first day of tryouts, Coach told us about the school’s drug policy. Coach said that
drugs were strictly prohibited. If we were caught with marijuana, cocaine, heroin,
methamphetamine or any other narcotic, we would be kicked off the team and the police would
be called. Then Coach gave us some OIA form to sign saying we wouldn’t use drugs. We went
through the same process every year. Coach never said anything about steroids.
4. I never saw any posters or any other material about steroids in the locker room.
5. I first met Jordan Simon during tryouts. Jordan also was a freshman and had been
running track for several years. Both of us ran the 100 meters. Jordan and I hit it off, because
Jordan was pretty nice and had a funny way about him/her. After tryouts, we both made the team.
I was extremely happy, and so were my parents, because to top it all off I got a scholarship
covering 50% of my tuition. Jordan and I started hanging out a lot. Not just at practice, but
outside too. We were pretty close, despite the fact that Jordan was always a little faster than I was
and usually edged me out at track meets.
6. Our first two years were pretty normal for track runners I guess. During the season we
would pull two-a-days--working out and lifting weights in the morning before class, and running
at track practice after school. We usually would meet at my locker right after our last class and
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head out to the field together.
7. Our junior year Jordan changed a little. Jordan was really busy at home making dinner,
doing the cleaning and laundry, and picking up groceries. I think all the extra work was a little
much and wore Jordan out. Jordan started to skip morning workouts with me. Jordan’s running
suffered. I kept up my workouts, and my times kept improving. Not Jordan. Jordan’s times
started to dip towards the end of the season. We were pretty much tied by the final meet of the
season.
8. Coach noticed Jordan was slacking too, and was not happy. It wasn’t just Jordan’s track
performance--it was Jordan’s school performance as well. Coach started riding Jordan pretty
hard. It got worse at the end of that year. One of the seniors received a full-ride scholarship to
ASU. It’s not that this was unusual or anything, I mean, Eastside almost always finishes in the
top five in state, and every year it seems like someone gets a scholarship. That scholarship came
at a bad time for Jordan. Like I said, Coach already was riding Jordan pretty hard, and we found
out about the scholarship just as Jordan’s times hit their lowest of the year. Coach pretty much
blew a gasket. I remember one day in the locker room I heard yelling coming from Coach’s
office. I looked in the window and could see Coach standing over Jordan screaming and yelling.
I heard Coach tell Jordan “forget about a college scholarship, if you don’t straighten up, I am
going to yank your Eastside scholarship!” Right then, Coach looked up and saw me through the
window. Coach pointed at me and hollered, “I hope you heard that, because the same goes for
you!” Then Coach slammed the door and went back to yelling at Jordan.
9. A week later Coach saw Jordan and me in the hall and told us to be at the end of the year
banquet early so we could talk. We did, and Coach pulled us into a side room one at a time. I
went first. Coach asked if I thought I could get my numbers up so that I could get a scholarship.
I said I was working really hard, and I thought it was possible. Coach then told me “getting a
scholarship for track takes more than just workouts and practice. It’s about what you put into
your body too.” I told Coach I knew that, and that I was on a good diet. “Diet, yeah, that’s
important too,” Coach said. Then Coach said: “You know only the best of the best get
scholarships, right? You have to do whatever it takes.” “Yes,” I responded. Coach then told me
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that some of my competitors no doubt were using “supplements” and that, whether I liked it or
not, they were the ones who were going to get the scholarships. Coach asked me what I thought
about that. I said I didn’t think it was fair. Then Coach said, “It’s not fair, and I certainly won’t
give you anything, but one year is a pretty small price to pay for a scholarship that could have
lifelong benefits.” With that, Coach told me to send Jordan in.
10. About ten minutes later, Jordan sat next to me at the table. I asked about the meeting
with Coach. Jordan wouldn’t look at me, but said “one year is a pretty small price to pay for a
scholarship. Coach is right.”
11. The summer after our junior year Jordan and I didn’t hang out that much. I had gotten a
summer job to try and start saving for college just in case, and Jordan still was pretty busy at
home.
12. When our senior year started, things began to change. Don’t get me wrong, we were
still pretty close, it’s just that Jordan started acting funny. Most of the time Jordan just wanted to
focus on track. We didn’t meet at my locker after class anymore. Jordan went home instead and
met me on the field. It seemed like Jordan didn’t want to hang out; Jordan just wanted to work
out. After practice it was the same thing. Jordan would just go straight home, without even
showering. At the time, I just figured Jordan was embarrassed. Jordan had started to get some
pretty bad body acne.
13. Jordan started getting sick a lot too. It started with the nosebleeds. It seemed like once
a week Jordan would have to duck out of one of the classes we had together to see the school
nurse. Then Jordan started missing school. It happened a lot. When I asked about it, Jordan just
told me it was the flu or a bad cold. I figured it was just stress from trying to get a scholarship
and from the pressure Coach put on Jordan every practice.
14. I was amazed when track season finally started in February 2008. Despite being sick all
the time and missing school and practice, Jordan’s numbers were up. I mean way up. Usually, it
takes a little time to get back into the swing of things. Not for Jordan. Right from the start,
Jordan’s numbers were tenths of a second ahead of the previous year --and that is a lot for the 100
meters.
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15. Coach kept a chart of our best times on a bulletin board in the locker room. It showed
our time at the final meet of the year for every year we had been on the team, and our current best
time. Everyone saw how much Jordan had improved. A lot of the other runners started talking.
16. Right away, I knew something wasn’t right. Jordan idolized Coach. Jordan always had
talked about what a great track career Coach had before becoming a teacher. Jordan wanted to be
just like Coach. And that’s when I remembered our talk with Coach before the banquet. I know
that Jordan would do whatever Coach said. I quickly put two and two together, and that’s when I
realized Jordan was using steroids.
17. I didn’t know what to do, so I decided that I would try and tell Coach. I knew I was
risking my scholarship to Eastside, but I had saved up some money from my summer job. I had
to risk it. Jordan was my friend. Jordan was in trouble. So I went and told Coach. Coach asked
if I had seen Jordan use steroids; if I had seen the steroids; if I had asked Jordan. Of course, I said
no. Coach said: “Then my hands are tied. Besides, whatever you are worried about can’t be that
bad, just look at Jordan’s times.” That must have been toward the end of April, maybe the
beginning of May.
18. A few days later, on May 6, 2008, I went to school like any other day. I didn’t see
Jordan at school that day. I figured Jordan was sick again, but I thought it was odd, because we
had a track meet that afternoon and Jordan never missed school on the day of a meet. Toward the
end of the day, there was a page over the intercom in my classroom. I was asked to go to the
front office. When I got there, there was a bunch of people huddled around talking quietly. One
of them, a school counselor, came over and put his arm around me and took me to his office. I
started getting worried. I asked what was wrong. He said he would tell me in just a moment. I
walked into his office. My heart started beating harder. I sat down. He closed the door. He sat
down next to me. He wouldn’t look at me. I was starting to panic. “What’s going on?”, I asked.
He told me that Jordan died. I thought I heard him wrong. It felt like the wind had been knocked
out of me. He said it happened sometime in the middle of the night. I don’t remember what else
he said.
19. A little while later my mom came to pick me up. When I left the office, I saw Coach in
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the front office. Coach was sitting alone, crying. As I left with my mom, I remember turning and
saying, “I hope you’re happy. You killed my best friend.”
20. I quit the team the next day. I know Coach was put on administrative leave, but I
couldn’t go back to that locker room. I couldn’t be on that field. I couldn’t be where my Coach
slowly killed my best friend.
/s/ Morgan Pearce
SUBSCRIBED AND SWORN to before me, a Notary Public, on January 3, 2008, by
Morgan Pearce.
/s/ Jearl Stanton
My Commission Expires:
November 5, 2010
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AFFIDAVIT OF LYNN ROPER, Ph.D. STATE OF MICHIGAN ) ) ss. County of Wayne )
Lynn Roper, Ph.D., first duly sworn, under oath, states as follows:
1. I obtained my Bachelor of Science degree in physical education and health in 1989 from
the University of Oregon. From 1989 to 1994, I taught high school physical education and health
in Eugene, Oregon. I also was the head track coach at the school.
2. In 1994, my favorite nephew Scott died of a heart attack. It was devastating and a shock
to the whole family, because Scott was only 16 years old, he played sports since he was a young
boy, and he was in great physical shape. Scott always looked up to me and said that he wanted to
follow in my footsteps and become a physical education teacher and coach.
3. I always pushed Scott to be the best athlete he could be in every sport. He always
worked hard and excelled at every sport he played. I was very excited when Scott began playing
linebacker for his high school’s varsity football team. It was amazing how quickly Scott
developed. He was bigger than anyone else on the team in no time at all, and he quickly became
the star linebacker. I was so proud of all of Scott’s hard work.
4. I’ll never forget the fall afternoon in 1994 when I received a call from my sister, Scott’s
mother. I could tell immediately that something bad had happened, but nothing could have
prepared me for what I was about to learn. I was absolutely floored when my sister told me that
Scott collapsed at football practice and was dead. My disbelief turned to anger when the autopsy
report came back several days later and revealed that Scott had been taking steroids. Although I
had no clue that Scott was using steroids, I still feel guilty that I pushed him too hard and set the
level of expectations too high. I decided that I needed to learn more about steroids, and I vowed
to do whatever I could to hold accountable those who are responsible for encouraging steroid
abuse.
5. I couldn’t stand to coach anymore after Scott’s death, so I quit my teaching and coaching
positions and returned to graduate school at Oregon State University. I obtained my Master of
Science degree in applied exercise physiology in 1995, and I obtained my doctorate in applied
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exercise physiology in 1997. My doctoral dissertation was entitled “Juice Isn’t Just For Breakfast
Anymore: The Use Of Anabolic Steroids By Amateur Athletes”. It focused on the use of
stanozolol, which was the steroid found in Scott’s system.
6. In 1997, immediately after obtaining my Ph.D., I took a position as a researcher at the
Human Performance Laboratory (“HPL”) in the Department of Kinesiology and Health Education
in the College of Education at the University of Texas at Austin. Kinesiology is the scientific
study of movement. One of the primary goals of the discipline is to understand the processes that
control movement and the factors that affect the acquisition of motor skills. At the HPL, we
studied oxygen consumption and cardiac output in humans.
7. In 2000, I accepted a position as the executive director of the Midwest Institute for
Exercise Physiology in Michigan. The Institute is a private for-profit organization that studies all
aspects of exercise physiology. Since my arrival, I have focused the Institute’s studies on the use
of steroids by both amateur and professional athletes for two reasons. First, I have a deep
personal interest in the subject. Second, as executive director, my most important responsibility
is the bottom line. As everyone knows, the abuse of steroids is the hot issue in our field. As
such, the Institute’s published studies have become very profitable.
8. One of the conditions of my accepting the Institute’s executive director position is that I
am allowed to do consulting on the side. Since 2000, I have accepted around 10 outside
engagements. I was contacted by the attorneys for Kelly Simon to provide expert testimony in
Kelly’s case against Terry Swift and Eastside High School. I am charging my standard fee of
$500 per hour. I have not been paid yet, but I estimate that my total fee will be approximately
$10,000. I probably will donate half of my fee to the Scott Johnson Foundation, a non-profit
organization that I established in memory of my nephew. The Foundation’s mission is to educate
young amateur athletes about the dangers of steroid abuse and to do whatever possible to hold
those who encourage steroid abuse responsible for the harm that they cause.
9. Steroids are not bad in and of themselves. In fact, steroids are hormones naturally
produced by the human body. Naturally produced steroids help control: (i) the stress of illness
and injury; (ii) immune functions; (iii) development of sexual characteristics; (iv) inflammation;
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(v) metabolism; and (vi) salt and water balance. Synthetic steroids are chemically similar to
natural steroids and duplicate their actions, and they can be prescribed by doctors for various
legitimate medical treatments. Some of the synthetic steroids that are commonly prescribed
include cortisone, hydrocortisone and prednisone. All three of these synthetic steroids often are
used to suppress inflammation, and their use can alleviate the symptoms of inflammatory
conditions such as arthritis and asthma.
10. Even the steroids that are used for legitimate medical purposes have serious side effects,
such as: (i) bone thinning; (ii) high blood pressure; (iii) fluid retention; (iv) mood swings; (v)
weight gain; (vi) muscle weakness and pain; (vii) nerve damage; and (viii) decreased resistance to
infection. Because of the potential severe consequences, it is important that the use of steroids be
monitored closely by a medical doctor.
11. Most people who think of steroid abuse are thinking of anabolic steroids. Anabolic
steroids are chemically related to testosterone. Although anabolic steroids can be prescribed to
treat certain growth and other disorders, they are less commonly prescribed than cortisone,
hydrocortisone and prednisone. Anabolic steroids are commonly used by athletes illegally either
orally or by injection to increase muscle mass and strength by allowing athletes to recover from a
hard workout more quickly. Some athletes also like the aggressive feelings caused by anabolic
steroids.
12. Anabolic steroids have serious side effects, many of which aid in determining whether
somebody is abusing steroids. Males may develop prominent breasts, baldness, a higher voice,
shrunken genitals and infertility. Females may develop a deeper voice, enlarged genitals,
increased body hair, baldness and increased appetite. Both males and females may experience:
(i) severe acne; (ii) liver problems; (iii) increased bad cholesterol and decreased good cholesterol;
(iv) aggressive behavior; (v) depression; (vi) distractibility and irritability; (vii) extreme mood
swings; (viii) paranoid jealousy; and (ix) impaired judgment stemming from feelings of
invincibility. Indeed, there are several documented incidents of anabolic steroid abuse causing
young athletes to commit suicide.
13. Erythropoietin (“EPO”) is a glycoprotein hormone that is naturally produced by the
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kidneys. It stimulates the bone marrow to make red blood cells. The rise in red blood cells
increases the oxygen-carrying capacity of the blood. It is possible for the body to produce too
much EPO on its own.
14. In 1985, EPO was produced synthetically for the first time. Synthetic EPO, which is
very expensive, is injected as a medical treatment for certain types of anemia. It also can be
given prior to surgery to patients who cannot receive a blood transfusion for medical or religious
reasons to counteract expected blood loss during the surgery.
15. Endurance athletes, such as cyclists, long-distance runners, speed skaters and cross-
country skiers, often misuse synthetic EPO to increase their endurance. This often is called
“blood doping”. The abuse of EPO is difficult to detect, however, because the available tests
cannot distinguish between naturally produced EPO and synthetic EPO.
16. Elevated levels of EPO can be extremely dangerous, especially when combined with
vigorous exercise, because it increases the viscosity (or thickness) of the blood. The thicker
blood has trouble passing through the thin capillaries. One common side effect of abusing EPO is
recurring nosebleeds. Another side effect is that a person abusing EPO becomes ill more often,
because the EPO lowers the white blood cell count, resulting in a failure of the immune system.
More significantly, when an athlete who uses EPO sleeps, the athlete’s heart beats very slowly,
increasing the risk for a heart attack or stroke.
17. It is difficult to know precisely how many student athletes are abusing steroids, because
most of the studies rely on surveys of the student athletes themselves. It is clear, however, from
studies by the Centers for Disease Control and Prevention that the abuse of steroids by students is
on the rise--and the age at which student athletes begin to use steroids is going down.
18. The World Anti-Doping Agency (“WADA”) was established in 1999 to promote and
coordinate the international fight against doping in competitive sports. It was set up as a
foundation under the initiative of the International Olympic Committee with the support and
participation of intergovernmental organizations, governments, public authorities and other public
and private bodies fighting against doping in sports. WADA generates a list of prohibited
substances each year. WADA’s list has become the standard in competitive sports. Accordingly,
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I stay familiar with and can testify regarding WADA’s list. EPO is on WADA’s list of prohibited
substances.
19. I always believed that mandatory testing of athletes was an invasion of the right to
privacy guaranteed by the Constitution. When Scott died, however, I realized how wrong I was
and changed my mind. Designating a steroid as a prohibited substance does not do any good
unless the athletes are tested for prohibited substances. Accordingly, I believe that random
testing of high school athletes should be mandatory. Unfortunately, no state has yet adopted
mandatory random testing, but lawmakers in Florida and Michigan are trying to do so.
20. Although no state requires mandatory random testing, I believe that individual school
districts and schools should institute mandatory random testing programs--and several have.
Most school districts, however, do not have random testing programs because of the cost.
Although the initial test is only $80 per student athlete, it costs significantly more to conduct a
second round of tests to confirm a positive initial test.
21. Although mandatory testing programs are a good deterrent, mandatory testing programs
are not 100% effective, primarily because steroid abusers come up with ways to mask steroid
tests. Accordingly, even where mandatory testing programs are used, it is important that athletic
directors and coaches be vigilant in (i) watching their student athletes for signs of steroid abuse,
and (ii) counseling their student athletes against using steroids, especially where signs of steroid
abuse are present. In this regard, I believe that all high school athletic directors and coaches
should attend a six-hour course regarding steroid abuse taught by a certified instructor. In
addition, they should attend an annual refresher course to stay abreast of the constant changes that
occur with respect to steroid abuse by athletes.
22. High school athletes are vulnerable and under a lot of pressure. This is especially so
with athletes who are looking to gain the edge necessary to compete at the next level.
Accordingly, high school coaches need to be careful not to say or do anything that their student
athletes could construe as encouraging the use of steroids.
23. I have reviewed all of the affidavits and all of the exhibits in this case. These are the
type of documents that I typically review in my consulting engagements, depending on the type
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of engagement.
24. The amount of EPO in Jordan Simon’s system at the time of death was extremely high
and in my opinion was the cause of Jordan’s heart attack.
25. If the State of Oregon or Eastside High School had a mandatory random testing program,
then either: (i) Jordan’s steroid abuse could have been discovered; or (ii) the program may have
deterred Jordan from using steroids. Moreover, even without a mandatory testing program, I
believe that it should have been obvious to Terry Swift, Jamie Hagar and others that Jordan was
abusing steroids. Accordingly, Eastside’s coaches and athletic director had a responsibility to
take steps to prevent and stop Jordan’s steroid use. Instead, in the face of clear evidence of
steroid abuse, Coach Swift continued to push Jordan to improve Jordan’s times. I believe that
this led to Jordan’s use of steroids and ultimately caused Jordan’s death.
/s/ Lynn Roper
SUBSCRIBED AND SWORN to before me, a Notary Public, on January 13, 2008, by Lynn
Roper.
/s/ Sean O’Keefe
My Commission Expires:
November 5, 2010
Page 1 of 2
OREGON CHILD FATALITY REVIEW DATA FORM(2004 REVISIONS)
1. Code #05-1729 2. Gender: Male Female Unknown 3. Date of Death: 05/06/2008
4. Place of Death (6a-c on Death Certificate): City/State: Chinook, OR County: Duniway
5. Residence: State: OR County: Duniway City: ChinookCensus Tract: 1036.09Type of residence at time of death: Parent’s home Relative’s home Foster home
Residential/group care Correctional institution Shelter Acquaintance Homeless/runaway Other:
6. Death Certificate Registration No.: 1274315
7. Cause of death as listed on the death certificate:Immediate cause: Heart attackAs a consequence of: Drug overdoseOther significant conditions:
8. Was the death certificate adequately prepared? Yes No.
9. Does the cause of death on the death certificate agree with the medical record? Yes No N/AIf no, specify:
10. Did the team agree with the cause of death? Yes NoIf no, team’s assessment of the underlying cause of death:
11. Were there one or more chronic medical problems(s)? Yes No UnknownIf yes, specify Did they contribute to the cause of death? Yes No Unknown
12. What was the manner of death on the death certificate? Natural Accident Suicide Homicide Undetermined Not answered on death certificate
EXHIBIT 3
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13. Was an autopsy done? Yes No UnknownIf yes: Done by the Medical Examiner’s Office Done elsewhereIf no: Was not necessary Should have been done
14. Was toxicology done? Yes No UnknownIf yes: Positive Findings/Comments: Extremely high level of erythropoietin
Negative UnknownIf no: Should have been done Not indicated
15. Cause of death: Heart attack due to accidental drug overdose
16. Did medical error (such as misdiagnosis, surgical error, medication error) contribute to the death? Yes No Unknown If yes, describe:
17. Did lack of medical care contribute to death? Yes No Unknown If yes, describe:
18. Was this an unexpected death? (No prior knowledge of any medical condition that would have lead to this death) Yes No Unknown
Page 2 of 244
19. Was a law enforcement investigation done? Yes No N/A UnknownIf yes, specify jurisdiction: Chinook Police DepartmentWere charges filed? Yes No N/A Unknown
20. SUPERVISION:Did lack of appropriate supervision contribute to the child’s death?
Yes No N/A Unknown
21. CHILD MALTREATMENT: (Refer to guidelines* at bottom of page).Was this death the result of child maltreatment? Yes No Unknown. If yes, please complete the
22. What was the team’s determination of manner of death? Natural Accident Suicide Homicide Undetermined If undetermined, describe reason for difficulty in determining manner:
23. To what degree was this death preventable? Not at all Probably not Probably Definitely Unknown
24. Person completing this form:Print Name: Dale M. Lucas Date 6/15/2008 Signature /s/ Dale M. Lucas
25. Members in Attendance: Alejandro Martinez, Amy Decker, Richard Matheson and Keshawna Turner
26. Documents Reviewed:
Death Certificate Supplemental Death Certificate Birth Certificate CPS Report Medical Examiner Report Hospital Records Behavioral Health Records Law Enforcement Records Department of Education Public Health Records Probation Records Other: Toxicology Report
27. Signature of Team Chairperson: /s/ Alejandro Martinez
DUNIWAY COUNTY OFFICE OF THE MEDICAL EXAMINERPRELIMINARY TOXICOLOGY REPORT
REPORT NO.: 2008-01030 DATE OF REPORT: May 11, 2008
NAME OF DECEASED: Jordan Simon DATE OF DEATH: May 6, 2008
PREPARED BY:R.C. Snyder, M.D. SPECIMEN TYPE: Blood serum
I tested the specimen for the following substances, and my findings are set forth below:
Suspected Substance Level
CNS Depressents NegativeCNS Stimulants NegativeHallucinogens NegativePCP NegativeNarcotic Analgesics NegativeInhalants NegativeCannabis NegativeAlcohol NegativeErythropoietin 10,000 miu/ml
By comparison, in normal patients, serum levels of erythropoietin range from 10 to30 miu/ml (milliunits per milliliter). These levels may increase 100- to 1000-fold during hypoxia or anemia.
EXHIBIT 4
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EASTSIDE HIGH SCHOOL100m INDIVIDUAL BESTS (Thru April) 2007-2008
___________________________________________________Time YearSimon, Jordan…………………………………………………………………………………………………11.50……………………………………SrPearce, Morgan………………………………………………………………………………………………11.86……………………………………SrHale, Trippe……………………………………………………………………………………………………11.92……………………………………SrGonzales, Giani……………………………………………………………………………………………12.04……………………………………SrPatel, Shar………………………………………………………………………………………………………12.18……………………………………JrHummel, Kia………………………………………………………………………………………………………12.52……………………………………SoYoung, Kris………………………………………………………………………………………………………12.63……………………………………FrLee, Kim………………………………………………………………………………………………………………12.79……………………………………SoJones, Aberon…………………………………………………………………………………………………12.80……………………………………FrSanders, Eli……………………………………………………………………………………………………13.14……………………………………Fr
EASTSIDE HIGH SCHOOL100m FINAL MEET INDIVIDUAL TIMES 2006-2007
___________________________________________________Time YearOswald, Jesse…………………………………………………………………………………………………11.72……………………………………SrRosenstein, Andi…………………………………………………………………………………………11.96……………………………………SrLindros, Sam……………………………………………………………………………………………………12.02……………………………………SrHale, Trippe……………………………………………………………………………………………………12.0 8……………………………………JrSimon, Jordan…………………………………………………………………………………………………12.21……………………………………JrPearce, Morgan………………………………………………………………………………………………12.21……………………………………JrGonzales, Giani……………………………………………………………………………………………12.23……………………………………JrPatel, Shar………………………………………………………………………………………………………12.43……………………………………SoHummel, Kia………………………………………………………………………………………………………12.58……………………………………FrLee, Kim………………………………………………………………………………………………………………12.86……………………………………Fr
EASTSIDE HIGH SCHOOL-2006100m FINAL MEET INDIVIDUAL TIMES 2005
___________________________________________________Time YearRueles, Angel…………………………………………………………………………………………………11.68……………………………………Sr Lewelan, Rory…………………………………………………………………………………………………11.84……………………………………Sr Oswald, Jesse…………………………………………………………………………………………………11.92……………………………………JrRosenstein, Andi…………………………………………………………………………………………12.18……………………………………JrSimon, Jordan…………………………………………………………………………………………………12.19……………………………………SoLindros, Sam……………………………………………………………………………………………………12.28……………………………………JrHale, Trippe……………………………………………………………………………………………………12.25……………………………………SoPearce, Morgan………………………………………………………………………………………………12.32……………………………………SoGonzales, Giani……………………………………………………………………………………………12.57……………………………………SoPatel, Shar………………………………………………………………………………………………………12.84……………………………………Fr
___________________________________________________Time YearAndrews, Pat……………………………………………………………………………………………………11.77……………………………………SrRueles, Angel…………………………………………………………………………………………………11.90……………………………………JrLewelan, Rory…………………………………………………………………………………………………12.08……………………………………Jr Oswald, Jesse…………………………………………………………………………………………………12.09……………………………………SoRosenstein, Andi…………………………………………………………………………………………1 2.34……………………………………SoSimon, Jordan…………………………………………………………………………………………………12.34……………………………………FrLindros, Sam……………………………………………………………………………………………………12.49……………………………………SoHale, Trippe……………………………………………………………………………………………………12.50……………………………………FrPearce, Morgan………………………………………………………………………………………………12.55……………………………………FrGonzales, Giani……………………………………………………………………………………………12.97……………………………………Fr
100m FINAL MEET INDIVIDUAL TIMES 2004-2005EASTSIDE HIGH SCHOOL
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EXHIBIT 8
EXHIBIT 9
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CHINOOK BANKCHINOOK”
CHINOOK BANKCHINOOK”
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CHINOOK BANKCHINOOK”
8
EXHIBIT 10
52
Eastside
10, 2008
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II. THE FORM AND SUBSTANCE OF A TRIAL
A. A Civil Case - Background Information on the Law
In civil law, when someone does something wrong it is known as a tort. In this case the plaintiff, Kelly Simon, alleges that a tort has been committed and is suing under the legal theory of wrongful death.
1. A Wrongful Death Cause of Action
A "wrongful death" occurs when a person is killed due to the negligence or misconduct of another. The plaintiff has the burden of proof. This means that Simon has the obligation to offer evidence that will prove each element of the claim. These elements include: • the death of a human being, • caused by the negligence or misconduct of another (the defendant(s)), • the victim &/or survivor (plaintiff) has suffered loss as a result of the death.
(Note that a negligence action requires proof its own elements some of which overlap with those found in the wrongful death claim:
1. duty - the defendant owed a duty of care to the defendant 2. breach of duty – that duty was violated, or breached, by the defendant’s
conduct, 3. causation – the defendant’s conduct caused the plaintiff’s harm, and 4. damages – the plaintiff suffered actual damages.)
The plaintiff must prove each part. If the plaintiff fails to prove even one of the elements above, the defendant will win.
2. Defenses Against a Wrongful Death Action
For the defendant to prevail, he or she has different options. One is by showing that at least one of the elements above has not been proven. Other defenses in this case could be comparative negligence and assumption of risk.
The defendant will not be held liable if his or her actions are not the proximate cause of the harm. The proximate cause of an injury is the primary cause; it is the cause that produces the injury. (When pedestrian was struck by automobile driven by a drunk driver, for example, the driver’s actions are the obvious proximate cause of injury.) In situations where the defendant’s action plays a substantial part in causing the harm and that harm might have been reasonably anticipated as a natural consequence of the act, then it may also be considered the proximate cause. (Examples: a pedestrian is struck by a runaway car when the car’s emergency breaks failed when parked on a hill, the car’s owner may be liable. What if: the owner knew the car had faulty breaks, or the car was pushed downhill when hit by another speeding car?)
Comparative negligence means dividing the loss according to the degree to which each party is at fault. If the defendant can prove that more than 50% of the fault lies with the plaintiff (Jordan Simon, the deceased), then the plaintiff gets no damages and the defense wins.
Another defense, called assumption of the risk, may be used by the defense when the plaintiff (here, Jordan Simon, the deceased) knew there was a risk but proceeded with the risky behavior anyway. This defense can be used successfully only when the plaintiff had full knowledge of and appreciated the danger, yet voluntarily exposed him or herself to the risk.
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When deciding fault, the jury will consider what is a reasonable standard of care. A child is not held to as high a standard as an adult. A child would be expected to use the degree of care that would be expected of other similar children (age, experience, etc.). An adult is expected to anticipate the ordinary behavior of children, and that children might not exercise the same degree of care for their own safety as adults.
3. Proof by a Preponderance of Evidence
The standard of proof in a civil case is the preponderance of the evidence. This standard requires that more than 50% of the weight of the evidence be in favor of the winning party -- the mere tipping of the scales to one side or the other. This means that the plaintiff only has to show that it is more likely than not that Jordan Simon’s death occurred as a result of either or both defendants’ action or inaction. Likewise, the defendants need only prove that Jordan’s death occurred because of his or her own actions or inactions.
B. Role Descriptions
1. Attorneys
Trial attorneys control the presentation of evidence at trial and argue the merits of their side of the case. They introduce evidence and question witnesses to bring out the facts surrounding the allegations.
Demeanor of counsel is most important. Generally, all attorneys should be sympathetic and supportive of their own witnesses. In the same vein, it is bad manners and unethical to be sarcastic, snide, hostile or contemptuous of the other side. The element of surprise may be a valuable attorney’s tool, but it is best achieved by being friendly and winning over everybody in the courtroom.
The plaintiff’s attorneys present the case for Kelly Simon on behalf of the deceased, Jordan Simon. By questioning witnesses, they will try to convince the jury that the defendants, Terry Swift and Eastside High School are responsible for Jordan Simon’s death.
The defense attorneys present the case for the defendants, Terry Swift and Eastside High School. They will offer their own witnesses to present the defendants' version of the facts. The defense may undermine the plaintiff’s case by showing that their witnesses cannot be depended upon or that their testimony does not make sense or is seriously inconsistent.
Trial attorneys on both sides will: • make opening statements and closing arguments • conduct direct examination, cross examination conduct redirect and re-cross if
necessary • make appropriate objections (note: only the direct and cross-examining attorneys for
a particular witness may make objections during that testimony) • do the necessary research and be prepared to act as a substitute for an other attorneys
a. Opening Statement
The opening statement outlines the case it is intended to present. The plaintiff delivers the first opening statement. A good opening statement should explain what the attorney plans to prove,
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how it will be proven, and mention the burden of proof – the amount of evidence needed to prove a fact (in a civil case, preponderance of the evidence). It should be presented in an orderly sequence that is easy to understand.
Begin your statement with a formal address to the judge: “Your Honor, my name is (full name), representing the plaintiff/defendant in this case” or “You Honor, my name is (full name), counsel for the plaintiff/defendant in this action.”
Proper phrasing in an opening statement includes: “The evidence will indicate that ...” “The facts will show that ...” “Witnesses (full names) will be called to tell ...” “The defendant will testify that ...”
Tips: You should appear confident, make eye contact with the judges, and use the future tense in describing what your side will present. Do not read you notes word for word – use your notes sparingly and only for reference.
b. Direct Examination
Attorneys conduct direct examination of their own witnesses to bring out the facts of the case. Direct examination should:
• call for answers based on information provided in the case materials • reveal all of the facts favorable to your position • ask questions that allow the witness to tell the story. Do not ask leading questions
which call for only “yes” or “no” answers – leading questions are only appropriate during cross-examination
• make the witness seem believable • keep the witness from rambling about unimportant matters
Call for the witness with a formal request: “Your Honor, I would like to call (full name of witness) to the stand.”
The clerk will swear in the witness before you ask your first question.
You may wish to ask some introductory questions of the witness to make him/her feel comfortable. Appropriate introductory questions might include:
• the witness’ name • length of residence or present employment, if this information helps to establish the
witness as an expert
Proper phrasing of questions on direct include: “Could you please tell the court what occurred on (date)?” “Please describe how you know the plaintiff.” “Did anyone do anything while you waited?” Conclude your direct examination with: “Thank you Mr./s. ________. That will be all, your Honor.”
Tips: Isolate exactly what information each witness can contribute to proving your case and prepare a series of clear and simple questions designed to obtain that information. Be sure all
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items you need to prove your case will be presented through your witnesses. Never ask questions when you do not know the answer! Listen to the answers -- if you need a moment to think, it is okay to ask the judge for a moment to collect your thoughts or to discuss a point with co-counsel.
c. Cross Examination
(a) Control by Court. -- The Court shall exercise reasonable control over questioning of witnesses and presenting evidence so as to:
(1) make the questioning and presentation effective for ascertaining the truth, (2) to avoid needless use of time, and (3) protect witnesses from harassment or undue embarrassment.
(b) Scope of cross examination. -- The scope of cross examination shall not be limited to the scope of the direct examination, but may inquire into any relevant facts or matters contained in the witness’ statement, including all reasonable inferences that can be drawn from those facts and matters, and may inquire into any omissions from the witness statement that are otherwise material and admissible.
Explanation: Cross examination follows the opposing attorney’s direct examination of his/her witness. Attorneys conduct cross examination to explore weaknesses in the opponent’s case, test the witness’s credibility, and establish some of the facts of the cross-examiner’s case whenever possible. Cross examination should: • call for answers based on information given in witness statements or fact situation; • use leading questions which are designed to get “yes” or “no” answers; • never give the witness a chance to unpleasantly surprise the attorney; • include questions that show the witness is prejudiced or biased or has a personal
interest in the outcome of the case; • include questions that show an expert witness or even a lay witness who has testified
to an opinion is not competent or qualified due to lack of training or experience;
Examples of proper questions include: “Isn’t it a fact that ...?” “Wouldn’t you agree that ...?” “Don’t you think that ...?”
Cross examination should conclude with: “Thank you Mr./s ______ (last name). That will be all, your Honor.”
Tips: Be relaxed and ready to adapt your prepared questions to the actual testimony given during direct examination; always listen to the witness’s answer; avoid giving the witness an opportunity to re-emphasize the points made against your case during direct examination; don’t harass or attempt to intimidate the witness; and don’t quarrel with the witness. Be brief; ask only questions to which you already know the answer.
(c) Leading questions. -- Leading questions are not permitted on direct examination of a witness (except as may be necessary to develop the witness’ testimony). Leading questions are permitted on cross examination.
Explanation: A “leading” question is one that suggests the answer desired by the questioner, usually by stating some facts not previously discussed and then asking the witness to give a yes or no answer. Example: “So, Mr. Smith, you took Ms. Jones to a movie that night, didn’t you?” This is an appropriate question for cross-examination but not direct or re-direct.
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d. Closing Arguments
Closing arguments must be based on the actual evidence and testimony presented during the trial.
Explanation: a good closing argument summarizes the case in the light most favorable to your position. The plaintiff delivers the first closing argument. The closing argument of the defense concludes the presentation. A good closing should:
• be spontaneous, synthesize what actually happened in court rather than being re-packaged;
• be emotionally charged and strongly appealing (unlike the calm opening statement); • emphasize the facts which support the claims of your side, but not raise any new facts, by
reviewing the witnesses’ testimony and physical evidence; • outline the strengths of your side’s witnesses and the weaknesses of the other side’s
witnesses; • isolate the issues and describe briefly how your presentation addressed these issues • summarize the favorable testimony • attempt to reconcile inconsistencies that might hurt your side • be well-organized, clear and persuasive (start and end with your strongest point); • the plaintiff should emphasize that it has proven liability/negligence by a preponderance
of the evidence; • the defense should raise questions that suggest the continued existence of doubt. • weave legal points of authority with the facts.
Proper phrasing includes: “The evidence has clearly shown that ...” “Based on this testimony, there can be no doubt that ...” “The plaintiff has failed to prove that ...” “The defense would have you believe that ...”
Plaintiff should conclude the closing argument with an appeal to find liability/negligence against the defendant. And the defense should say there is no liability/negligence.
2. Witnesses a. Witness Bound by Statements
Each witness is bound by the facts contained in his/her own witness statement, also known as an affidavit, and/or any necessary documentation relevant to his/her testimony. Fair extrapolations may be allowed, provided reasonable inference may be made from the witness’ statement. If, in direct examination, an attorney asks a question which calls for extrapolated information pivotal to the facts at issue, the information is subject to objection under Rule 4, unfair extrapolation.
If in cross-examination, an attorney asks for unknown information, the witness may respond, “I don’t know,” or may offer a response that is consistent with the witness’ statement or affidavit and does not materially affect the witness/testimony.
A witness is not bound by facts contained in other witness statements.
Explanation: Witnesses will supply the facts in the case. Witnesses may testify only to facts stated in or reasonably implied from his or her own witness statements or fact
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situation. On direct examination, when your side’s attorney is asking you questions you should be prepared to tell your story. Learn the case thoroughly, especially your own witness statement. Know the questions your attorney will ask you and prepare clear and convincing answers that contain the information that your attorney is trying to get you to say. However, do not recite your witness statement verbatim. Be able to put it into your own words. Be sure that your testimony is never inconsistent with, nor a material departure from, the facts in your affidavit.
During cross-examination, anticipate what you will be asked and prepare your answers accordingly. Isolate all the possible weaknesses, inconsistencies, problems in your testimony and be prepared to explain them as best you can. However, be sure that your testimony is never inconsistent with, nor a material departure from, the facts in your statement. Witnesses can be impeached if they contradict the material contained in their witness statements (see FRE 607).
The stipulated facts are a set of indisputable facts from which witnesses and attorneys may draw reasonable inferences. The witness statements contained should be viewed as signed statements made in sworn depositions. If you are asked a question calling for an answer that cannot reasonably be inferred from the materials provided, you must reply, “I don’t know” or “I can’t remember.” It is up to the attorney to make the appropriate objection when witnesses are asked to testify about something which is not generally known, or cannot be reasonably inferred from the fact situation or a signed witness statement.
b. Unfair Extrapolation
Attorneys shall not ask questions calling for information outside the scope of the case materials or requesting unfair extrapolation. Unfair extrapolations are best attacked through impeachment and closing arguments and are to be dealt with in the course of the trial. A fair extrapolation is one that is neutral.
If a witness is asked information not contained in the witness’ statement, the answer must be consistent with the statement and may not materially affect the witness’ testimony or any substantive issue of the case.
Attorneys for the opposing team may refer to Rule 4 for a special objection, such as “unfair extrapolation” or “outside the scope of the mock trial materials.”
Possible rulings a judge may give include: a) no extrapolation has occurred; b) an unfair extrapolation has occurred; c) the extrapolation was fair; or d) ruling taken under advisement.
When an attorney objects to an extrapolation, the judge will rule in open court to clarify the course of further proceedings (see FRE 602 and Rule 3). The decision of the presiding judge regarding extrapolation or evidentiary matters is final. c. Gender of Witnesses
All witnesses are gender neutral. Personal pronouns in witness statements indicating gender of the characters may be made. Any student may portray the role of any witness of either gender. In
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this case, the gender of the student playing the role of witness for the plaintiff Morgan Pearce shall be the same as the deceased, Jordan Simon.
3. Duties of Clerk and Bailiff
a. Duties of the Clerk
When the judge arrives in the courtroom introduce yourself and explain that you will assist as the court clerk. The clerk’s duties are as follows: 1. Roster: The clerk is responsible for bringing a roster of students and their roles to each trial round. You should have enough copies to be able to give a roster to each judge in every round as well as a few extras. Use the roster form in the mock trial packet
2. Swear in the witnesses: Every witness should be sworn in as follows:
“Do you promise that the testimony you are about to give will faithfully and truthfully conform the facts and rules of the Mock Trial?”
Witness responds, “I do.”
Clerk then says, “Please be seated and state your name for the court and spell your last name.”
3. Mark exhibits for attorneys.
An experienced clerk is critical to the success of a trial and points will be given on his/her performance.
b. Duties of the Bailiff
When the judge arrives in the courtroom, introduce yourself and explain that you will assist as the court bailiff. The bailiff’s duties are to call the court to order and to keep time during the trial.
Call to Order: As the judges enter the courtroom, say, “All rise. The mock trial circuit court, the Honorable Judge ______ presiding, is now in session. Please be seated and come to order.”
If the judge calls a recess during the trial, say “all rise” as the judges leave the courtroom and again as they re-enter.
Timekeeping. The bailiff is responsible for bringing a stopwatch to the trial. Be sure to practice with it and know how to use it before the Mock Trial. Follow the time limits set for each segment of the mock trial and keep track of the time used and time left on the time sheet provided in the mock trial materials.
Time should stop when attorneys make objections. Restart once the judge has ruled on the objection and the next question is asked. You should also stop the time if the judge questions a witness or attorney.
After each witness has finished his/her testimony announce the time remaining, e.g., if after direct examination to two witnesses, the plaintiff has used ten minutes, announce “10 minutes remaining” (20 minutes total allowed for direct/redirect, less the ten minutes already used).
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When the time has run out for any segment of the trial, announce “Time!” and hold up the “0” card. After each witness has completed his/her testimony, mark on the time sheet the time to the nearest one-half minute. When three minutes are left, bailiff will hold up “3” minute card, then again at “1” minute and finally at “0” minutes. Be sure time cards are visible to all the judges as well as to the attorneys when you hold them up. Time sheets will be provided. Time cards (3, 1, 0 minute) will be provided in each courtroom. Leave the timecards in the courtroom for the next trial round. An experienced bailiff is critical to the success of a trial and points will be given on his/her performance.
UNOFFICIAL TIMER (optional)
Teams may, at their option, provide an unofficial timer during the trial rounds. The unofficial timer can be a Clerk or a currently performing attorney from plaintiff/prosecution’s attorney side. This unofficial timer must be identified before the trial begins and may check time with the bailiff twice during the trial (once during the plaintiff’s case-in-chief and once during the presentation of the defense’s case). When possible, the unofficial timer should sit next to the official timer.
C. Sample Trial Sequence and Time Limits
Each side will have a maximum of 40 minutes to present its case. The trial sequence and time limits are as follows: 1. Introductory matters 5 minutes total (conducted by judge)* 2. Opening Statement 5 minutes per side 3. Direct 20 minutes per side 4. Cross 10 minutes per side 5. Closing argument 5 minutes per side** 6. Judges’ debrief 15 minutes total (conducted by judges)*
*Not included in 40 minutes allotted for each side of the case ** Plaintiff/prosecution does not need to reserve time for rebuttal; whatever time remains will be allowed for a closing rebuttal arguments.
The plaintiff/prosecution gives the opening statement first. The plaintiff/prosecution gives the closing argument first; whatever time remains may be used for rebuttal. The plaintiff’s rebuttal is limited to the scope of the defense’s closing argument. None of the foregoing may be waived, nor may the order be changed.
The attorneys are not required to use the entire time allotted to each part of the trial. Time remaining in one part of the trial may not be transferred to another part of the trial. III. THE TRIAL
A. Supplemental Material, Illustrative Aids, Costuming
Teams may refer only to materials included in the trial packet. No illustrative aides of any kind may be used, unless provided in the case packet. No enlargements of the case materials will be permitted. Absolutely no props or costumes are permitted unless authorized specifically in the case materials.
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B. Standing During Trial
Attorneys will stand and introduce themselves while giving opening statements and closing arguments, during direct and cross examinations, and for all objections.
C. Objections
Note: This exhibit is provided to assist students with the proper form of objections. It is NOT a comprehensive list of all objections. Permissible objections are those related to a rule in the mock trial material (examples below). Impermissible objections are those not related to mock trial rules (example: hearsay based on business records exception). That is to say, an objection must be based on a rule found in the Mock Trial materials, not additional ones even though they may be commonly used by lawyers in real cases.
The following objections are often heard in Mock Trials but do not represent an exhaustive list.
Note: Objections during the testimony of a witness will be permitted only by the direct examining and cross-examining attorneys for that witness.
1. Outside the Scope of Mock Trial Materials/Rules
Objection: "Objection, Your Honor. The witness is testifying to information not found in the mock trial materials." Response: “The witness is making a reasonable inference.”
2. Leading Question
Objection: "Objection, Your Honor, counsel is leading the witness." (Opposing Attorney) Response: "Your Honor, leading is permissible on cross-examination," or "I'll rephrase the question." For example, the question would not be leading if rephrased as: "Mr. Smith, where did you and Ms. Jones go that night?" (This does not ask for a yes or no answer.)
3. Argumentative Question Objection: "Objection, Your Honor, counsel is being argumentative." Response:
4. Relevance
Objection: "Your Honor, this question is irrelevant to this case." Response: "Your Honor, this series of questions will show that Mrs. Smith's first husband was killed in an auto accident, and this fact has increased her mental suffering in this case."
5. Hearsay
Objection: "Objection, Your Honor, this is hearsay." Response: "Your Honor, this is an exception/exclusion to the hearsay rule.” (Explain applicable provisions.)
6. Asked and Answered
Objection: "Objection, Your Honor, this is repetitive." Response: "Your Honor, the witness has already answered this question."
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The presiding judge may call a bench conference for clarification from both attorneys.
D. Procedure for Introduction of Exhibits
As an example, the following steps may be used to introduce evidence: (Note: Steps 1 - 7 introduce the item for identification.)
1. All evidence will be pre-marked as exhibits. 2. Ask for permission to approach the bench. Show the presiding judge the marked exhibit.
“Your Honor, may I approach the bench to show you what has been marked as Ex. #___?” 3. Show the exhibit to opposing counsel. 4. Ask for permission to approach the witness. Give the exhibit to the witness. 5. “I now hand you what has been marked as Exhibit No. ___ for identification.” 6. Ask the witness to identify the exhibit, “would you identify it, please?” 7. Witness answers with identification only.
(Note: Steps 8 - 12 offer the item into evidence.) 8. Offer the exhibit into evidence. “Your Honor, we offer Exhibit No. ___ into evidence at
this time. The authenticity of the exhibit has been stipulated.” 9. Court, “Is there an objection?” If opposing counsel believes a proper foundation has not
been laid, the attorney should be prepared to object at this time. 10. Opposing Counsel, “no, your Honor,” or “yes, your Honor.” If the response is “yes,” the
objection will be stated on the record. Court, “Is there any response to the objection?” 11. Court, “Exhibit No. ___ is/not admitted.” 12. The attorney may then proceed to ask questions.
E. Use of Notes
Attorneys may use notes in presenting their cases. Witnesses are not permitted to use notes while testifying during the trial. Attorneys may consult with each other at counsel table verbally or through the use of notes.
F. Relevancy and Its Limits 1. Definition of “Relevant Evidence”
“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
2. Relevant Evidence Generally Admissible: Irrelevant Evidence Inadmissible
Relevant evidence is admissible, except as otherwise provided in these Rules. Irrelevant evidence is not admissible.
Explanation: Questions and answers must relate to an issue in the case; this is called “relevance.” Questions or answers that do not relate to an issue in the case are “irrelevant” and inadmissible. Example: (in a traffic accident case) “Mrs. Smith, how many times have you been married?”
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3. Who May Impeach
The credibility of a witness may be attacked or challenged by any party, including the party calling the witness.
Explanation: On cross-examination, an attorney wants to show that the witness should not be believed. This is best accomplished through a process called “impeachment,” which may use one of the following tactics: (1) asking questions about prior conduct of the witness that makes the witness’ truthfulness doubtful (e.g. “isn’t it true that you once lost a job because you falsified expense reports?”); (2) asking about evidence of certain types of criminal convictions (e.g. “you were convicted of shoplifting, weren’t you?); or (3) showing that the witness has contradicted a prior statement, particularly one made by the witness in an affidavit.
Witness statements in the Mock Trial materials are considered to be affidavits.
In order to impeach the witness by comparing information in the affidavit to the witness’ testimony, attorneys should use this procedure: Step 1: Introduce the affidavit for identification (see Rule 38). Step 2: Repeat the statement the witness made on direct or cross-examination that contradicts the affidavit.
Example: “Now, Mrs. Burns, on direct examination you testified that you were out of town on the night in question, didn’t you?” Witness responds, “yes.”
Step 3: Ask the witness to read from his or her affidavit the part that contradicts the statement made on direct examination.
Example: “All right, Mrs. Burns, will you read paragraph three?” Witness reads, “Harry and I decided to stay in town and go to the theater.”
Step 4: Dramatize the conflict in the statements. Remember, the point of this line of questioning is to demonstrate the contradiction in the statements, not to determine whether Mrs. Burns was in town or not.
Example: “So, Mrs. Burns, you testified that you were out of town in the night in question didn’t you?” “Yes.” “Yet in your affidavit you said you were in town, didn’t you?” “Yes.”
5. 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 in the form of an opinion or otherwise.
Note: Attorneys should qualify a witness as an expert by asking questions from the list suggested above. Note: Witnesses, including experts, cannot give opinions on the ultimate issue of the case, that is, whether the plaintiff or defendant was responsible. This is a matter for the judge or jury to decide.
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G. Hearsay
1. Definitions
The following definitions apply under this article: (a) Statement -- A statement is an oral or written assertion or nonverbal conduct of a person, if it is intended by the person as an assertion. (b) Declarant -- A declarant is a person 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.
Explanation: If a witness tries to repeat what someone else has said, the witness is usually stopped from doing so by the hearsay rule. Hearsay is a statement made by someone other than the witness testifying. Because the statement was made outside the courtroom, usually a long time before the trial, it is called an “out-of-court statement.” The hearsay rule also applies to written statements. The person who made the statement is referred to as the “declarant.” Because the declarant is not the one testifying in court under oath, the declarant’s statement is not considered reliable.
Example: Witness testifies in court, “Harry told me the blue car was speeding.” What Harry said is hearsay because he is not the one testifying. He is not under oath, cannot be cross-examined, and his demeanor cannot be assessed by the judge or jury. Further, the witness repeating Harry’s statement might be distorting or misinterpreting what Harry actually said. For these reasons, Harry’s statement, as repeated by the witness, is not reliable and therefore not admissible. The same is true if Harry’s prior written statement was offered.
Only out-of-court statements which are offered to prove what is said in the statements are considered hearsay. For example, a letter that is an out of court statement is not hearsay if it is offered to show that the person who wrote the letter was acquainted with the person who received it. But if the letter was offered to prove that what was said in the letter was true, it would be hearsay.
(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 is
(A) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition or (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification or a person made after perceiving the person; or
Explanation: If any witness testifies at trial, and the testimony is different from what the witness said previously, the cross-examining lawyer can bring out the inconsistency. In the witnesses’ statements in the mock trial materials (considered to be affidavits), prior inconsistent statements may be found (see Impeachment Rule 607).
(2) Admission by a party-opponent -- The statement is offered against a party and is (A)
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the party’s own statement in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a co-conspirator of a party during the course in furtherance of the conspiracy.
Explanation: A statement made previously by a party (either the plaintiff or defendant) is admissible against that party when offered by the other side. Admissions may be found in the plaintiff’s or defendant’s own witness statements. They may also be in the form of spoken statements made to other witnesses.
2. Hearsay Rule
Hearsay is not admissible, except as provided by these rules. IV. NOTES TO JUDGES
1. Students are prohibited from making objections or using trial procedures not listed in the mock trial materials. Students should request a bench conference (to be held in open court from counsel table) if they think the opposing attorneys are using trial procedures outside the rules.
2. Students are limited to the information in the witness statements and fact situation. If a witness invents information, the opposing attorney may object on the grounds that the information is beyond the scope of the mock trial materials. The presiding judge may request a bench conference (to be held in open court from counsel table) and ask the students to find where the information is included in the case materials.
3. Bailiffs are the official timekeepers. The defense team is responsible for providing the bailiff (plaintiff/prosecution provides the clerk). Bailiffs time all phases of the trial.
4. Students have been instructed to address their presentations to the judge.
Introductory Matters
The presiding judge should handle the following introductory matters prior to the beginning of the trial:
1. Ask each side if it is ready for trial. Ask each side to provide each judge with a copy of its Team Roster, and one to opposing counsel. Ask each member of a team to rise and identify himself/herself by name and role. Team rosters will be used by judges for note taking during the round.
2. Remind spectators of the importance of showing respect for the students. Judges may remove spectators who do not adhere to appropriate courtroom decorum.
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3. Remind teams that witnesses are permitted to testify only to the information in the fact situation, their witness statements, and what can be reasonably inferred from the information.
4. Remind teams that they must complete their presentations within the specified time limits. The bailiff will signal you as the time for each segment of presentation runs out (3 and 1 minute warning and then 0 minute cards will be held up). At the end of each segment you will be stopped when your time has run out whether you are finished or not.
5. All witnesses must be called.
6. Only the following items may be offered as evidence at the trial: Exhibit 1 OIA Bylaws (Portion of Article 14) Exhibit 2 OIA Position Statement Form 14.13 Exhibit 3 Oregon Child Fatality Review Data Form Exhibit 4 Toxicology Report Exhibit 5 Poster (Girl) Exhibit 6 Poster (Boy) Exhibit 7 NFSHSA Brochure Exhibit 8 Report of Race Times Exhibit 9 Bank Records Exhibit 10 Internet Printing Cover Sheet and Article
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APPENDICES
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TEAM ROSTER
School Name: Teacher Name:
OPENING
Prosecution/Plaintiff Defense
Direct Witness Cross Kelly Simon
Morgan Pearce
Lynn Roper, Ph.D.
Cross Direct Terry Swift
Jamie Hager, Ed.D
Aubrey Brady
CLOSING Prosecution/Plaintiff Defense
Clerk Bailiff
Coaches (include addresses)
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Time Sheet
Plaintiff/Pros.—School V. Defense—School Opening Statement: 5 minutes per side
P 5 minutes minutes used
D 5 minutes minutes used
Plaintiff/Pros.: Direct—20 minutes total Start 20 minutes Witness #1: time used less minutes
minutes unused
Witness #2: time used less minutes
minutes unused
Witness #3: time used less minutes
minutes unused
Defense: Cross—10 minutes total
Start 10 minutes P witness #1 time used less minutes
minutes unused
P witness #2 time used less minutes
minutes unused
P witness #3 time used less minutes
minutes unused
Defense: Direct—20 minutes total Start 20 minutes D witness #1: time used less minutes
minutes unused
D witness #2: time used less minutes
minutes unused
D witness #3: time used less minutes
minutes unused
Plaintiff/Pros.: Cross—10 minutes total
Start 10 minutes D witness #1 time used less minutes
minutes unused
D witness #2 time used less minutes
minutes unused
D witness #3 time used less minutes
minutes unused
Closing Argument: 5 minutes per side
Plaintiff/Pros. time used less minutes
minutes left for rebuttal
Defense time used less minutes
Judges' Debrief: 15 minutes total minutes used
Diagram of a Typical U.S. Courtroom
JuryBox
CourtClerk
WitnessStand
Judges Bench
Defense Table Prosecution Table
Bailiff EvidenceTable
CourtReporter
Spectator Seating Spectator Seating
Diagram of a Typical Croatian Courtroom
WitnessTable
Judges Bench
Prosection Table Defense Table
CourtReporter
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B
E
ELEMENTS OFDEMOCRACY
Reproduced with permission from the Center for Civic Education
C
A tale in two courts
State/District of Grimm v.
Grethel
The Delaware Law Related Education Center, Inc. 301 N Market Street ● Wilmington DE 19801
Telephone 302-778-0643 ● e-mail [email protected]
This material was developed by the Delaware Law Related Education Center and is a product of CIVITAS: An International Exchange Program administered by the Center for Civic Education and funded through a grant from the United States Department of Education for the Croatian Partnership of Oregon, Maryland and Delaware. The copyright is held by the Center for Civic Education, 5145 Douglas Fir Road, Calabasas, CA 91302-1457. The Delaware Law Related Education Center Wishes to acknowledge the assistance of the following people in developing the materials in this lesson: The Honorable Duro Sessa Judge, Civil Appellate Court, Croatia The Honorable Marin Mrcela Judge, Criminal Court of Zagreb, Croatia Marilyn Cover & Susan Marcus Classroom Law Project Portland, Oregon James Adomanis Maryland Center for the Study of History and Civic Education Arnold, Maryland The Honorable Jane M. Brady Judge, Superior Court of Delaware The Honorable Nan Shuker Judge (ret.), Superior Court of the District of Columbia Nicole Faries Widener University of Law Wilmington, Delaware Eileen Wilkinson St. Marks High School Wilmington, Delaware Chessa Huff Delaware Law Related Education Center David Bostrom Wilmington, Delaware Pat Quann, Executive Director Delaware Law Related Education Center, Inc.
Lesson Title: A Tale in Two Courts: Comparing the Two Major Legal Systems
Lesson Author: The Delaware Law Related Education Center, Inc. Lesson Description: The lesson provides an analysis of the two major
legal systems used in the world today. These two systems are the adversary or common law system which is used in most English speaking countries and the system which is based on civil law and is used in most of Europe, Asia, Africa and Latin America. The lesson provides information about the development of these systems and their key characteristics. It helps students compare the two systems using scripted mock trials of the tale of Hansel and Grethel.
Historical Background of the Hansel and Grethel Mock Trials: The Grimm’s Fairy Tales first appeared in 1815 and were revised several times. In the Mock Trials, we used the year 1816 and refer to it as the “Year without a Summer.” This was an event that actually occurred in northern Europe, as well as other parts of the world. It is thought to have been caused by a volcanic eruption Grade Level: 9 - 12 National Standards for Civics and Government: Content Standard III D2: Judicial protection of the rights of individuals. Students should be able to evaluate, take and defend positions on current issues regarding the judicial protection of individual rights. To achieve this standard, students should be able to describe the adversary system and evaluate its advantages and disadvantages. Delaware Standards: Civic Standards One 9-12a: Students will analyze the ways in which the structure and purpose of different governments around the world reflect differing ideologies, cultures, values and histories. Oregon Standards: SS.CM.CG.04: Understand the role of the Courts and of the law in protecting the rights of U.S. citizens. CCG: Understand how nations interact with each other, how events and issues in other countries can effect citizens in the United States, and how actions and concepts of democracy and individual rights of the United States can affect other people and nations.
Essential Question: What are the differences between the structure of
the adversary and inquisitorial legal systems and the way they each reach a decision?
Assessment: Constructed Response: Multiple Choice, Short Answers
and Fill in the Blanks
I. You are serving as a witness for a friend in a case in Croatia. Your friend is charged with leaving the scene of an accident and you were in the car.
1. Which of the following things are likely to occur during the trial?
a. The defense attorney will object to questions raised by the prosecutor.
b. The judge will function as a referee. c. There will be citizens on the bench with the judge who ask questions. d. The prosecutor will forcefully argue his position to the jury.
Correct response is (c) 2. Who will determine your friend’s guilt? a. The Judge b. The Judge and the citizen (lay) Judges c. The Jury Correct response is (b.)
II.. Which of the following is likely to have an adversary system.
a. France b. Eastern Europe c. Brazil d. Most of Canada Correct answer is (d.)
III. SHORT ANSWER: Why would your choice in II above be likely to have an adversary legal
system?
Correct answer is because most of Canada was colonized by England
IV. FILL IN THE BLANKS: Select one of the following Common Law or Civil Law
1. In the __________________ system, truth is expected to emerge from examination of the evidence and interrogation of the witnesses by the presiding judge.
2. In the _________________ system, truth is expected to emerge from the conflict of opposing view from the defense and the prosecution attorneys.
Correct answers are 1. Civil Law, and 2. Common Law Objectives: Students will:
1. Learn the key characteristics of the common law/adversary systyem and the civil law/inquisitorial legal systems.
2. Discuss how the two systems expanded throughout the world.
3. Analyze and compare the different roles played by participants in a trial in both systems.
4. Identify how each system attempts to insure a fair trial. Prior Knowledge: Some understanding of the American Court system and
legal terms would be helpful. Time to complete: One 90 minute block or two 45 minutes classes Materials Needed. 1. Copies of Role Selection Sheet 2. Copies of Student Handouts One and Two 3. Transparencies of Overheads I. II. and III.
4. Copies of Scripted Mock Trials. You will need copies for each person who has a role.
5. Copies of Assessment
Lesson Procedure Steps: Note to the teacher: A couple of days before the lesson, ask students to pick a role using the Role Selection Sheet. This will give you time to make assignments and give out roles the day before the lesson. You may decide you want to give out the script for the mock trials for students to read. Attached is a diagram of how you should set up the courtroom for each trial. I. Whole Class Reading and Work in Pairs 10 minutes
A. Pass out copies of Student Handout One and the Student Handout One Worksheet. 1. Read the bold portion of the handout to the class 2. Either read the excerpts in Handout One to the class or ask members of the class to read each paragraph. B. Ask students to work with another student to answer the questions on the Worksheet.
C. Review and discuss correct answers. II. Background on the Legal Systems 10 minutes
A. Use Overhead I. See if anyone knows the reason. (ANSWER: it is because they were originally a colony of France which has the Civil Law or Inquisitorial System.) If no one knows, set the question aside until you have completed the Background and ask again. B. Discuss Overhead II. It is important for students to not confuse the use of these terms. Students familiar with the American legal system might find it particularly confusing to have a type of law, (civil law as in torts and contracts) using the same name as the legal system called Civil Law. C. Review Overhead III. Ask if anyone, now, has the answer to Overhead I. If not, explain.
III. Prepare for American Mock Trial. 5 minutes
A. Give out scripts, if students playing roles do not already
have them. Have students take their place in the courtroom (Use the diagram) Witnesses should sit away from the jury. All the remaining students are to serve as jurors. Give the jurors copies of the Student Handout Two. Ask them to fill out the section on the chart for the U.S. as they watch the trial. B. Review the sequence of witnesses and let students locate their parts in the script, if necessary: $ The judge, the bailiff, the counsel for the defense and the prosecutor - most pages $Dad - page 2 - 5 $Snow-white Bird - page 5 - 7 $Duck - page 7 - 8 $Bird’s Spokesperson - page 8 - 10 $Hansel - page 10 - 12 $Grethel - page 13 - 16
IV. Enact the American Trial 20 minutes Have jury take notes on front side of the Student Handout Two. The Jury should turn in notes for use during next class period, if it is a 45 minute class or hold on to them if it is a 90 minuteBlock.
BREAK HERE FOR 45 MINUTE CLASS V. Jury decision:
5 minutes
Ask jury to meet for a few minutes, to elect a foreman and to reach a decision on Grethel’s guilt or innocence. While they are meeting, rearrange the courtroom for the Croatian Trial. (Use the diagram.) Ask the jury to report on their decision, after preparing for Croatian Trial.
VI. Prepare for Croatian Trial 5 minutes
A. Give each of the students with a role a copy of the Croatian Trial script, if they do not have one. B. Review the sequence of witnesses and let students locate their part in the script:
• the Judges and the two counsels - most pages • Grethel - pages 18 -20 and 34 -36 • Dad - pages 21- 24
• Snow-white Bird – pages 24 -26 • Duck – pages 26 - 28 • Bird’s Spokesperson – page 29 - 31 • Hansel – pages 31 - 34
B. All students without a role should be observers and receive a copy of Student Handout Two. They should fill out the front side of the handout while observing the trial.
VII. Enact the Croatian Trial. 20 minutes
After the trial is complete, the presiding judge and the two lay judges should meet away from the rest of the class and decide whether Grethel is guilty. Give them about 3 minutes to reach a decision. They should report the decision to the class.
VIII. Small Groups: Student Handout Two 10 minutes
A. Assign the students to small groups with approximately five students. Each group should have at least one student who participated in the American Trial and one who participated in the Croatian Trial. Also mix up the jurors and observers. B. Return the Student Handout Two to the students from the previous day’s class, if it was taken. C. Ask students to discuss the chart and to complete both U.S. and Croatian sides of the chart on the front side. Go over their answers. D. When students have completed the front part of the chart, ask them to look on the back, to discuss the three questions, and to complete the assignment.
E. Discuss the answers with the students. (See sample responses attached) IX. Collect Handout Two for grading and administer the Assessment.
Assessment: Comparing the Adversary and Inquisitorial Legal Systems
Constructed Response: Multiple Choice, Short Answers and Fill in the
Blanks I. You are serving as a witness for a friend in a case in Croatia. Your friend is charged with leaving the scene of an accident and you were in the car. 1. Which of the following things are likely to occur during the trial? a. The defense attorney will object to questions raised by the prosecutor. b. The judge will function as an impartial referee. c. There will be citizens on the bench with the judge who ask questions. d. The prosecutors will forcefully argue his position to the jury.
2. Who will determine your friend’s guilt? a. The Judge b. The Judge and the citizen Judges c. The Jury II.. Which of the following is likely to have an adversary system? a. France b. Eastern Europe c. Brazil d. Most of Canada III. SHORT ANSWER: Explain your choice in Question II above. Why would it be likely to have an adversary legal system?
VI. FLL IN THE BLANKS (choose either the Common Law or the Civil Law system): 1. In the __________________ system, truth is expected to emerge from examination of the evidence and interrogation of the witnesses by the presiding judge. 2. In the _________________ system, truth is expected to emerge from the conflict of opposing view from the defense and the prosecution attorneys.
Tale of Two Trials: Hansel and Grethel Role Selection Sheet
Student’s Name _______________________________ Please put your 1st and 2nd choices for roles on the sheet. Choose one role in the American Trial and one role in the Croatian Trial. (Pick a 1st and 2nd choice in each trial) American Trial ___ Dad ___Bird’s Spokesperson ___ Snow-white Bird ___ Hansel ___ Duck ___ Grethel ___Bailiff ___ Judge ___ Prosecutor ___ Council for the Defense ___ Member of the Jury Croatian Trial ___ Dad ___ Bird’s Spokesperson ___ Snow-white Bird ___ Hansel ___ Duck ___ Grethel ___ Presiding Judge ___ Professional Judge 2 ___ Citizen Judges 3, 4 and 5 ___ Prosecutor ___Counsel for the Defense
Student Handouts and
Overheads
Student Handout One: The Two Major Court Systems
The legal system used in the United States was developed in Britain. The other major legal system was developed in continental Europe. Both systems are committed to the Rule of Law, and an independent and impartial judiciary. These two systems are frequently described as the “Adversarial” and “Inquisitorial” systems. Many courts in present day Europe would be offended if they were described as “Inquisitorial.” The term reminds them of the Period of the Inquisition, where the rights of many individual were violated. It is important to see these systems as evolving and changing, as they adopt some of the practices used by each other. In Croatia, you might more appropriately refer to the Courts as having a mixed system – a combination of the traditional system used in continental Europe with elements of the British system. The following is an excerpt from Civic Mosaic: Comparing Political Systems Around the World by Margaret S. Branson, Center for Civic Education and is used with her permission. It will help you understand how these two systems are traditionally described. The common law system is described as an adversary system. It assumes that justice will emerge from the conflict of opposing views. Each side or the adversaries in a civil or criminal trial is expected to press its point of view as forcefully and persuasively as it can. Each side is expected to do all it can to refute the opposition’s witnesses, evidence and arguments. An adversary system assumes that judges will . . . act as referees. Truth will emerge from genuine and spirited controversy . . . (T)he jury’s major function is to serve as a trier of fact. Jurors are expected to be impartial. They are to listen to the evidence presented in a case and to decide who is telling the truth and which party deserves to win. Civil law systems use what is called an inquisitorial procedure as opposed to an adversary procedure of the common law. Truth is expected to emerge from inquiry into the facts conducted by a judge rather than from the confrontation between defense and prosecution. In common law the judge plays a more passive role and acts as an impartial referee. In the civil law system, the judge takes the initiative conducting the case. His role is to lead the investigation, examine the evidence and interrogate the witnesses. The right to trial by jury in a criminal case is recognized in both legal systems, but the form and role of the jury differs. In civil law systems, the jury may not consist of 12 persons chosen to represent a cross-section of the community. It may take the form of lay advisors who sit on the bench with the judge, and it may not be required to render a unanimous verdict. The common law system is used only in English speaking countries, while the civil law system has a broader reach. Today it is used in most European countries, as well as in Asia, Africa, and South America. It is also used in the Canadian province of Quebec and the state of Louisiana in the United States.
Student Handout One Worksheet Directions: Review the following statements with an assigned partner. Determine which statements identify characteristics of the Common Law System and which identify characteristics of the Civil Law System. Place a COM on the line if it’s Common Law and a CIV if it’s Civil Law. 1.____ The judge plays a more passive role and acts as a
referee. 2.____ Truth is expected to emerge from inquiry into the facts. 3. ____ The Jury may take the form of lay advisors who sit on the
bench. 4. ____ It assumes justice will emerge from the conflict of
opposing views. 5. ____ This system is used in most of the world. 6. ____ Each side is expected to press its point of view . 7. ____ Juries must listen to the evidence and decide who is
telling the truth. 8. ____ This system is used in most English-speaking countries
such as Britain, America and most of Canada 9. ____ The Judge’s role is to lead the investigation, examine the
evidence and interrogate the witnesses. 10. ___ Truth is expected to emerge from genuine and spirited
controversy.
Student Handout II
Student's Name Directions: You have seen and/or participated in the trial of Grethel. Your group should use the chart below to compare the two trials.
In each trial - who did what?
Croatia U.S. Prosecuting Attorney
Defense Attorney
Judge
Citizen judge ( Croatia only)
Jury( US only)
Witnesses
How was the decision on guilt or innocence reached in each system?
Croatia U.S.
Who Kept Out Unfair Information?
Croatia U.S.
What do you consider to be the advantages and disadvantages of each system?
Croatia U.S.
Overhead I
Question:
Can anyone guess why Quebec and the
State of Louisiana use the Civil Law/
Inquisitorial System?
Overhead II
Don’t be confused by the term “Civil Law”
In the American system, we talk
about criminal laws and civil laws, but we are talking about types of
laws. In the Adversary System, civil laws regulate legal actions between individuals. It includes things like torts, negligence, contracts and
intellectual property.
In this activity, “Civil Law” refers to one of the two prominent legal systems in the world. It has a
different structure and a different set of legal procedures from the American Adversary System.
Overhead III
A Brief History of the Two Legal Systems $ Black’s Law Dictionary describes Civil Law as, “The
civil law of Rome. . . originally administered in the Roman Empire and still in effect in continental Europe and most of the rest of the world.”
$ You might consider this written code of Rome as an
outgrowth of the first legal code written in about 1792 B.C. in Babylon - now Iraq- by Hammurabi.
$ After the fall of the Roman Empire, most of Europe
reverted to a largely unwritten system of “folk law” based on customs and moral law.
$ During the Middle Ages in Europe - beginning in
about the 11th Century- there developed a new written system of both church and government laws, with professional lawyers, judges and law schools.
$ Starting with the Magna Carta in 1215 and other
events in 16th Century, the Kings of England were forced to grant certain rights to citizens which led to the creation of the Common Law or Adversary System. This system was transplanted to America with the colonists.
ANSWER SHEET FOR
Student Handout One Worksheet Directions: Review the following statements with an assigned partner. Determine which statements identify characteristics of the Common Law System and which identify characteristics of the Civil Law System. Place a COM on the line if it’s Common Law and a CIV if it’s Civil Law. 1._COM_ The judge plays a more passive role and acts as a
referee. 2._CIV__ Truth is expected to emerge from inquiry into the facts. 3. _CIV_ The Jury may take the form of lay advisors who sit on the
bench. 4. _COM__ It assumes justice will emerge from the conflict of
opposing views. 5. _ CIV_ This system is used in most of the world 6. _COM_ Each side is expected to press its point of view . 7. __COM_ Juries must listen to the evidence and decide who is
telling the truth. 8. __COM_ This system is used in most English-speaking countries
such as Britain, America and most of Canada 9. __CIV__ The Judge’s role is to lead the investigation, examine the
evidence and interrogate the witnesses. 10. __COM_ Truth is expected to emerge from genuine and
spirited controversy.
ANSWER SHEET: Student Handout II
Student's Name Directions: You have seen and/or participated in the trial of Grethel. Your group should use the chart below to compare the two trials.
In each trial - who did what?
Croatia U.S. Prosecuting Attorney
Burden of proving the states case Presents State’s Case and asks witnesses questions
Burden of proving the states case, Argues State’s Case, tries to prevent unfavorable evidence from being considered,
Defense Attorney
Presents Defendant’s Case and asks witnesses question
Argues Defendant’s Case and tries to prevent unfavorable evidence from being considered, challenges other side
Judge
Decides facts in the case, decides guilt or innocence in case, Initiates questioning of witnesses, examines the evidence, prevents unfair questions,
Acts as referee between two attorneys, insures proper procedures and decorum maintained, determine whether a question or evidence is allowed, instructs the jury on law.
Citizen (lay) judge ( Croatia only)
Asks questions of witnesses, helps Judge decide guilt or innocence in case.
Jury( US only)
Decides facts in the case, decides guilt or innocence in case, usually must be unanimous
Witnesses
Present testimony Present testimony
How was the decision on guilt or innocence reached in each system?
Croatia U.S. Decided by Presiding Judge and (lay) Citizen Judges
Decided by Jury
Who Kept Out Unfair Information?
Croatia U.S. Presiding Judge
Attorneys, through their objections and the rulings of the Judge
What do you consider to be the advantages and disadvantages of
each system? Croatia U.S. EXAMPLES: Advantage: Judge in control of what gets heard as evidence. Judge able to search for what happened Disadvantages: Lay judges not random choice of people and number is fewer. Trial depends on knowledge and skill of the Judge
EXAMPLES: Advantage: Judge seen as referee and inures proper procedures are followed by both sides. Advises Jury on the law Jury of 12 makes decision Disadvantages: Attorneys may not be equally knowledgeable and skillful. If no objections, bad evidence may get in trial. Outcome may depend on ability of attorney to influence the jury.
The two trials
American Mock Trial
State of Grimm v. Grethel
Mock Trial Script I. American Court System Script (Note: Any time a lawyer addresses the judge, or speaks to the judge, as when asking the witness questions or stating an objection, the lawyer should stand to show respect for the court.) Bailiff: All rise, the Court is now in session, the Honorable Judge_________ (say Judge’s last name) presiding. Judge: Please be seated. Today’s case is that of the State of Grimm versus Grethel. Grethel is being prosecuted by the State for the murder of Ms. Sweet-Tooth Witch. It is the prosecution’s burden to establish this crime beyond a reasonable doubt. Now, are there any opening statements? Counsel for the State, Prosecutor: Yes, Your Honor. May it please the court? My name is _______ (enter actor’s name) and I represent the State in this case. We will show that Grethel knew her family was having financial troubles, so she and her brother, Hansel, set out to rob an elderly woman, Ms. Witch. In order to carry out this plan of robbing the elderly woman of her jewels, Grethel shoved the elderly woman into an oven, closed it, and let her burn to death. If you find that Grethel set out with the intent to kill Ms. Witch, or in the alternative, that Grethel set out to steal the jewels from the elderly woman and killed her in the process, then you are obligated to find her guilty of first degree murder. As the judge mentioned, it is our job to establish beyond a reasonable doubt that Grethel did in fact commit this crime, so please listen carefully to the evidence we present during this trial. Thank you for your attention. Judge: Does the attorney for Grethel have an opening statement? Counsel for the Defendant, Grethel: Your Honor, may it please the court? My name is __________ (enter actor’s name) and I represent the Defendant, Grethel, in this case. We intend to show that Grethel and her brother were cast out into the treacherous woods, which lay behind their parent’s house in Deep Famine Woods, by their father and stepmother. Because these woods were so treacherous, they were not able to find their way home. In fact, they were left there to die. While they were attempting to find their way back to their father’s house, they were lead to this old woman’s cottage. The woman was a witch. She caged up Hansel and had Grethel cook him food in order to fatten him up so that the witch could eat him. On the day that her brother was supposed to be cooked, the
witch asked Grethel to climb in the stove to see if it was hot. Grethel, realizing that the witch was trying to kill her too, asked how she was supposed to climb in the oven. When the witch bent over to show her how easy it was to fit in the oven, Grethel pushed her in and rescued her brother from the cage. On their way out of the house, they noticed shiny balls that reminded them of the pebbles they used to find their way home once before, so they took some for good luck. These young children did not know the value of these pearls, so they could not have intended to steal them. We will show you that when Grethel pushed the witch into the oven she was defending the life of her brother, and possibly her own life. The judge will explain to you that not all killings are unlawful, and in fact, a person with a reasonable fear for his or her own safety or the safety of a third person by reason of the conduct of another may take reasonable steps to defend himself or herself, Therefore, if you find that Grethel’s actions were reasonable under the circumstances, then you cannot find her guilty of first degree murder. Judge: The Prosecution may call its first witness. Prosecutor: Your Honor, I call Grethel’s Dad to the stand. Dad: (Walks to the witness chair to be sworn in.) Bailiff: Please raise your right hand. (Dad remains standing and raises his right hand.) Do you swear or affirm that the testimony that you are about to give is the truth, the whole truth, and nothing but the truth? Dad: I do. Judge: Please be seated. (Dad sits down.) Prosecutor: Please state your name. Dad: My name is Mr. Woodcutter, but my children call me Dad. Prosecutor: Where do you live? Dad: I live in Deep Famine Woods. Prosecutor: Please describe these woods for us. Dad: Well, I live in a location called Deep Famine Woods, and the woods that sit behind my house are very dense. Many people characterize these
woods as treacherous because anyone who goes too far into the woods always finds lots of trouble. Prosecutor: You mentioned you have children. Do you see your daughter in the courtroom today? Dad: Yes, I do. Prosecutor: Could you please point her out to the Court? Dad: (While pointing to Grethel) That’s my daughter, Grethel, sitting at that table over there. Prosecutor: I’d like the record to reflect that Mr. Woodcutter has identified the Defendant, Grethel. Let’s move on to March 17, 1816, the date of your first woodcutting trip with your children. Could you tell me what happened that day? Dad: Well, my wife and I took the kids out into the woods with us that day and we left them near a fire while we went to chop wood. When we got back to the fire the children were asleep and would not wake up, so we went home and we were going to return for them later. Prosecutor: Did you return for them later? Dad: Well, . . . you see, we had been suffering a terrible famine, so my wife and I were very tired from chopping wood all day and not having anything to eat when we were finished, and so we fell fast asleep. To our surprise, when we awoke, the children were home. Prosecutor: They made their way through the treacherous woods alone? Counsel for Defendant: (Stand up) Objection, asked and answer, Your Honor. Judge: I’ll allow it. Counsel for Defendant: (Sit down) Dad: Well, they were at our door when we woke, so I guess so. Prosecutor: And just to clarify, during this famine how much food did you have for your family?
Counsel for Defendant: (Stand up) Objection. Your Honor, how is this relevant? Prosecutor: Your Honor, it goes to establishing the motive that the children knew their family needed money. Judge: Overruled. Counsel for Defendant: (Sit down) Prosecutor: Thank you, Your Honor. How much food did your family have? Dad: We had enough food for one slice of bread per person per day on good days. But that wasn’t going to last very long. Prosecutor: No further questions, Your Honor. Judge: Defense counsel would you like to question Mr. Woodcutter? Counsel for Defendant: Yes, Your Honor. Thank you. Why, on March 17, 1816, did you lead your young children out into the woods and leave them there? Dad: It wasn’t my idea. Counsel for Defendant: Who could convince a dad to leave his own children in dangerous and treacherous woods? Dad: Well, my wife said… (Being cut off by the Prosecutor) Prosecutor: Objection, Your Honor. This is hearsay. Counsel for Defendant: Your Honor, Mr. Woodcutter’s wife is deceased. This witness is clearly unavailable and it goes to her state of mind. Judge: Mr. Woodcutter, you may proceed. Please answer the question. Dad: My wife told me that if we didn’t get rid of the children we would all starve to death. I began to realize that she was right. I thought the
children would meet an easy death in the woods. (Looking at Grethel) I’m so sorry, Honey. Counsel for Defendant: Mr. Woodcutter, didn’t you frequently have to stop and wait for your son to catch up with you when you walked into the woods? Dad: Yes, he was saying goodbye to his white cat. Counsel for Defendant: Do you have a white cat? Dad: Well, no we don’t. Counsel for Defense: Was your son trying to remember his way home? Prosecutor: Objection, calls for speculation, Your Honor. He can’t know what his son was thinking. Judge: Sustained. Counsel for Defense: Did your son return home? Dad: They did find their way home on their own. Counsel for Defendant: On April 5, 1816, did you attempt to leave them in the woods a second time? Dad: It seemed like the famine was ending, but then it became much worse, so a few weeks after we left them in the woods, I believe it was April 5, 1816, we led them out into the woods again. Counsel for Defendant: Did they find their way home that time? Dad: It wasn’t until April 19, 1816 when my children returned home. Counsel for Defendant: I have no further questions, Your Honor. Judge: Mr. Woodcutter, you may be excused. Please return to your seat. Prosecutor: For my next witness, the state calls Snow-white Bird to the stand.
Snow-white Bird: (Walks to the Bailiff.) Bailiff: Please raise your right wing. (Snow-white Bird raises right wing.) Do you swear or affirm that the testimony that you give today is the truth and nothing but the truth? Snow-white Bird: I do. (Sits down.) Prosecutor: Please state your name. Snow-white Bird: Snow-white Bird. Prosecutor: Where do you live? Snow-white Bird: I live in the woods that are really treacherous. I think the place is called Deep Famine Woods. Prosecutor: What happened on April 5, 1816, the Year without a Summer? Snow-white Bird: Oh, it was a year without a summer. There was a horrible widespread famine throughout Europe that year. Anyhow, that day in particular, I was flying about when I noticed two children wandering about in the woods. Prosecutor: What happened when you saw these children? Snow-white Bird: Well, they looked very skinny and hungry. I also noticed that they looked like they were lost. Counsel for Defense: Objection, Your Honor. How can Ms. Bird know what state the children were in? Prosecutor: Your Honor, Ms. Bird is just stating what she observed. Judge: Sustained. Let’s stick to your actual observations, Ms. Bird. Prosecutor: After you saw the skinny children what did you do? Snow-white Bird: I didn’t think the children noticed me, so I began to sing them a song. Prosecutor: Why did you do that?
Snow-white Bird: They were very close to Ms. Sweet-Tooth Witch’s house, and she always gave me food, so I thought she would feed the children. Prosecutor: And the children followed you to her house, didn’t they? Counsel for Defense: Objection, he is leading the witness. Prosecutor: I’ll rephrase. What did the children do next? Snow-white Bird: They followed me all the way to Ms. Sweet-Tooth Witch’s house. Prosecutor: Did you see what happened when they arrived? Snow-white Bird: Yes. Ms. Sweet-Tooth Witch took them inside and led them to a table topped with milk, and pancakes with sugar, apples, and nuts. Prosecutor: No further questions, Your Honor. Judge: Does the defense have any questions for this witness? Counsel for Defendant: Yes. Thank you, Your Honor. Ms./ Mr. Bird, is this the first time you led children to Ms. Witch’s house? Prosecutor: Objection, relevance. Counsel for Defendant: I will make the connection, Your Honor. Judge: I’ll allow it, so long as there is a connection. Snow-white Bird: No. Counsel for Defendant: And how many times have you lead children to Ms. Witch’s house? Snow-white Bird: Prior to this time, five times. Counsel for Defendant: You never saw any of those children leave, did you?
Snow-white Bird: No, but I wasn’t there all… (being cut-off by attorney) Counsel for Defendant: Your Honor, would you please direct the witness to limit her/his answer to a simple yes or no is sufficient. Judge: Yes or no, Mr./ Ms. Bird? Snow-white Bird: No. Counsel for Defendant: I have no further questions for this witness, Your Honor. Judge: Snow-white Bird, you may step down and return to your seat. (Snow-white Bird returns to his seat.) Any other witnesses, Mr./ Ms. -________ (insert last name of attorney for the State.) Prosecutor: Yes, one more, Your Honor. I call Mr./Ms. Duck to the stand. Duck: (Raises and walks to the stand.) Bailiff: Please raise your right wing. (Duck raises his right wing.) Do you swear or affirm that the evidence that you are about to give is the truth, the whole truth, and nothing but the truth? Duck: I do. (Sits down.) Prosecutor: Please state your name. Duck: Mr./ Ms. Duck. Prosecutor: Where do you live? Duck: I reside on the river in Deep Famine Woods. Prosecutor: What did you observe on April 19, 1816? Duck: I was approached by two young children who needed help getting across the river. Prosecutor: Do you see one of those children in the courtroom today?
Duck: Yes, she is sitting over there. (Points to Grethel.) Prosecutor: I’d like the record to reflect Mr. Duck has identified the Defendant, Grethel. Mr./ Ms. Duck, did you help the children get across the river? Duck: Yes, I did. Prosecutor: Please tell us about that. Duck: Well, you see, I am just a little duck, so I had to take them one at a time. Prosecutor: And what, if anything, did you see when you carried the children across the river? Duck: I saw their pockets and hands filled with expensive jewels. Counsel for Defendant: Objection, Your Honor. This witness is not an expert on fine jewels. Judge: Mr./ Ms. Duck please limit your response to your actual knowledge. Duck: Very well, Your Honor. I observed both children with pockets full of white jewels. Prosecutor: I have no further questions for this witness. Judge: Mr./Ms. __________ (Enter name of attorney for Defendant), do you have any questions for this witness? Counsel for Defendant: No, Your Honor. We do not. Judge: Thank you, Mr./ Ms. Duck. You may take your seat. Prosecutor: The State rests, Your Honor. Judge: Very well. Mr./Ms. __________ (Enter name of attorney for Defendant), please call your first witness.
Counsel for Defendant: Thank you, Your Honor. I call the spokesperson of the birds to the stand. Birds’ Spokesperson: Rise and walk to the stand. Bailiff: Please raise your right wing. (Birds’ Spokesperson raises his/her right wing.) Do you swear or affirm that the evidence that you are about to give is the truth, the whole truth, and nothing but the truth? Birds’ Spokesperson: I do. (Sit down.) Counsel for Defendant: Please state your name for the record. Birds’ Spokesperson: I am the spokesperson for the group known as The Birds. Counsel for Defendant: Where do you live? Birds’ Spokesperson: We all live in these treacherous woods called Deep Famine Woods. Counsel for Defendant: What happened on April 5, 1816? Birds’ Spokesperson: That day we had a lot of luck. We noticed little white specs on the ground. Counsel for Defendant: What did these white specs turn out to be? Birds’ Spokesperson: They were pieces of white bread, so we ate until our stomachs were full. Counsel for Defendant: Did you leave any bread behind? Birds’ Spokesperson: No, we were quite hungry. We ate all of the bread and didn’t leave a crumb. Counsel of Defendant: At any other time did you find anything on this path? Birds’ Spokesperson: A few weeks before we found the bread, I think it was March 17, 1816, we found pebbles, but they aren’t good for eating.
Counsel for Defendant: No further questions. Judge: Mr./ Ms. ________ (insert last name of attorney for the State), do you have any questions for this witness. Prosecutor: Yes, Your Honor, thank you. Birds’ Spokesperson, did you see who left his bread? Birds’ Spokesperson: No. Prosecutor: Did you find bread on any other day? Counsel for Defendant: Objection, asked and answered. Prosecutor: I’ll rephrase. Other than March 17th and April 5th, the days you saw the pebbles and ate the bread, was there ever any other white specs of any kind on the path? Birds’ Spokesperson: No. Prosecutor: I have no further questions for this witness. Judge: Birds’ Spokesperson, you may step down and take your seats. Mr./Ms. __________ (Enter name of attorney for Defendant), please call your next witness. Counsel for Defendant: We call Hansel to the stand. Hansel: (Walk to the stand.) Bailiff: Please raise your right hand. (Hansel raises his right hand.) Do you swear or affirm that the evidence that you are about to give is the truth, the whole truth, and nothing but the truth? Hansel: I do. (Sits down.) Counsel for Defendant: Please state your name for the record. Hansel: Hansel Woodcutter. Counsel for Defendant: Where do you live?
Hansel: I live in Deep Famine Woods with my dad. Counsel for Defendant: What happened on March 17, 1816, the first time your parents led you into the treacherous woods? Hansel: Grethel and I heard their plan the night before… (Cut-off by Prosecutor) Prosecutor: Objection! Hearsay. Counsel for Defendant: Your Honor, Hansel has not testified as to what he heard only that he did hear something. Judge: (to Hansel) Limit your answer to your own actions, so far your answer is fine. Objection overruled. Counsel for Defendant: Please continue Hansel. Hansel: Well, Grethel was scared and crying so I told her not to cry and that I would help her. I ran off and gathered pebbles that were outside our door. Counsel for Defendant: Why did you do that? Hansel: I took the pebbles so that I could mark our path. That way we could find our way back home. Counsel for Defendant: Did you find your way back home? Hansel: Yes. When the moon came out, we could see the shiny white pebbles and we followed them home. Counsel for Defendant: What happened on April 5, 1816, the next time you were led out into the treacherous woods? Hansel: I couldn’t get any pebbles because the door was locked, so I broke the piece of bread I was given into little pieces in order to mark the path. Counsel for Defendant: Did this plan work? Hansel: No. The birds came and ate all the bread I had left.
Counsel for Defendant: What did you do next? Hansel: Grethel and I were scared. We tried to find our way home, but we were lost. Then we heard this beautiful song being song by a snow-white bird, so we followed it. It led us to a house made of gingerbread. Counsel for Defendant: What happened when you got to the house? Hansel: Well we were so hungry, so we began to eat pieces of the house. Then an old lady came outside and took us in and fed us. Counsel for Defendant: Tell us about this lady. Hansel: She turned out to be a witch. The second day we were there she locked me in a cage and she made my sister, Grethel, help her make meals to feed me so that I would get fat, so that she could eat me! Counsel for Defendant: Did she tell you how fat she wanted you to be? Hansel: No. Counsel for Defendant: How did she determine how fat your were? Hansel: Each day after she fed me, she would check to see how fat I was getting. She made me stick out my finger and she’d feel it. The witch couldn’t see very well, so I started sticking out this chicken bone that my sister and I had saved from one of my meals, so she’d think I was staying skinny. Then she would have to feed me longer, instead of cooking me. Counsel for Defendant: How long were you kept in the cage? Hansel: I was in there for days. Counsel for Defendant: How did you get out? Hansel: On the morning that the witch was preparing to eat me, Grethel ran to the cage and let me out. I think it was April 19, 1816 when we made our escape. Counsel for Defendant: I have no further questions.
Judge: Mr./ Ms. ________ (insert last name of attorney for the State), do you have any questions for this witness. Prosecutor: Yes, thank you. Hansel, you said the witch couldn’t see very well, so why didn’t you sneak out during the day? Hansel: The witch had me locked in a cage and she had my sister by her side all day. She always knew right where we were. We couldn’t run away. Prosecutor: Isn’t it true that you took white jewels with you when you ran out of Ms. Sweet-Tooth Witch’s house? Hansel: Yes. I thought they looked like… (Cut-off by Prosecutor) Prosecutor: Your Honor, please direct the witness to keep answer to a simple yes or no. Judge: Yes or no, Hansel? Hansel: (With is head down.) Yes. Prosecutor: I have no further questions, Your Honor. Judge: Hansel, you may step down and take your seat. Mr./Ms. __________ (Enter name of attorney for Defendant), please call your next witness. Counsel for Defendant: For my final witness, I call Grethel to the stand. Grethel: (Walk to the stand.) Bailiff: Please raise your right hand. (Grethel raises her right hand.) Do you swear or affirm that the evidence that you are about to give is the truth, the whole truth, and nothing but the truth? Grethel: I do. (Sits down.) Counsel for Defendant: Please state your name for the record. Grethel: Grethel Woodcutter.
Counsel for Defendant: Where do you live? Grethel: I live in Deep Famine Woods with my dad. Counsel for Defendant: What happened on April 19, 1816? Grethel: That was the morning my brother and I left the witch’s house. That morning she told me that… (Being cut-off by the Prosecutor) Prosecutor: Objection. Hearsay. Counsel for Defendant: Your Honor, this witness is unavailable and it goes to my client’s state of mind. Judge: Overruled. Grethel, you may answer. Grethel: She told me that she was going to cook and eat my brother, Hansel, and that I had to get her water and help her with the meal. Counsel for Defendant: How did this make you feel? Grethel: I was scared and very sad. I thought if we had never found this old witch at least we would have died together in the woods. Counsel for Defendant: Why did you believe the witch? Grethel: Well, the second day we were at her house she locked my brother in a cage and made him stay there the rest of the time. Counsel for Defendant: Did she do anything else? Grethel: Yes, she told me… Prosecutor: Objection, hearsay. Counsel for Defendant: Your Honor, you have already ruled on this matter. Judge: That’s correct. Overruled. Grethel: She made me help her feed my brother. She said she was fattening him up to eat him. We tried to trick her by holding out a chicken bone instead of his finger.
Counsel for Defendant: Tell us more about the day the witch was preparing to eat your little brother. Grethel: Well after we had the water on the stovetop, the witch turned on the oven. She asked me to climb inside to check the temperature. Counsel for Defendant: Did you climb inside? Grethel: No, I realized that she actually going to kill me too, so I told her I didn’t know how to climb in the oven. Counsel for Defendant: What happened next? Grethel: The witch was mad. She said that the opening was plenty big enough for me to fit inside. She bent down to show me how to get in the oven. Counsel for Defendant: What did you do next? Grethel: When she was bent over, I realized it was either her or me, so I pushed her in and shut the door. Then I ran to let my brother out of the cage. Counsel for Defendant: What happened then? Grethel: My brother and I hugged each other and cried. We realized that we weren’t going to die after all. Counsel for Defendant: Then what happened? Grethel: We wanted to try to find our way home. We knew the witch had white pebbles in buckets all over the house, so we gathered as many of them up as we could and we headed home. Counsel for Defendant: Why did you take the jewels? Grethel: I didn’t know they were jewels. They just looked like the grandest pebbles I ever saw, and the pebbles helped us find our way home the first time, so we thought they’d be good luck for this trip home. Counsel for Defendant: Did you find your way home?
Grethel: Yes, we did. Our dad was so happy. Counsel for Defendant: No further questions, Your Honor. Judge: Mr./ Ms. ________ (insert last name of attorney for the State), do you have any questions for this witness. Prosecutor: Yes, thank you, Your Honor. Grethel, when did you notice these white jewels? Grethel: We saw the jewels as soon as we entered the house. The witch had buckets of them all over. Prosecutor: And these jewels interested you when you first saw them? Grethel: Well, I thought they were pebbles, but yes, they interested me. Prosecutor: Isn’t it true that you knew your family was in financial difficulty? Grethel: Yes, but everyone was. Prosecutor: And in fact, you only had a piece of bread to eat per day. Grethel: That’s correct. Prosecutor: I bet you could buy a lot of bread with those jewels you took. Counsel for Defendant: Objection! Prosecutor: I’ll withdrawal my last question. Judge: (Looking at the jury) The jury will disregard the prosecutor’s last statement. (Turning towards the attorney) Please proceed. Prosecutor: How long were you in Ms. Sweet-Tooth Witch’s house? Grethel: It had to be weeks. Probably close to two weeks. Yes, it was two weeks- April 5th until April 19, 1816. Prosecutor: How long were you in the woods before you found Ms. Sweet-Tooth Witch’s house?
Grethel: We were in the woods for thirteen hours. Prosecutor: So you had plenty of time to think of way to help your family out of the famine, didn’t you? Counsel for Defendant: Objection! Judge: I’ll allow it. Grethel: I was just trying to find my way home. I wasn’t thinking about anything else. Prosecutor: Weren’t you thinking of how hungry you were? Grethel: Well, yes. Prosecutor: I have no further questions. Counsel for Defendant: Our case rests, Your Honor. Judge: Grethel, you may step down and take your seat. Mr./Ms. __________ (Enter name of attorney for Prosecution), are you prepared to give a closing statement? Prosecutor: I am, Your Honor. Judge: You may proceed. Prosecutor: Ladies and gentlemen of the jury, you have just heard evidence that establishes the State’s case. You heard Grethel’s dad testify that their family was suffering from financial difficulties. Grethel had a desire to save her family, and would steal to help her dad. Ms. Snow-white Bird told you that she led the children to Ms. Sweet-Tooth Witch’s house and watched her take good care of the children. Grethel wander in the treacherous woods for thirteen hours. In fact, Grethel, herself, admitted that she was at Ms. Witch’s house for a period of two weeks. That gave Grethel plenty of time to form the intent to steal the jewels. Grethel even stated that she noticed the jewels as soon as she entered the house. Mr./Ms. Duck told you that he saw the children fleeing from the area with the jewels. In order to find Grethel guilty, you do not need to find that she intended to kill Ms. Sweet-Tooth. If you find that Grethel had an intent to
steal the jewels, and in order to accomplish this goal she killed the witch, then you can find her guilty of murder. Thank you for your time and attention. Judge: Mr./Ms. __________ (Enter name of attorney for Defendant), are you prepared to give a closing statement? Counsel for Defendant: Yes, thank you, Your Honor. (Turning to the jury) Good afternoon ladies and gentlemen of the jury. Thank you for your patience and for listening to the evidence. I would like to have your attention for just a few more moments. A person is not guilty of murder if she reasonably fears that her own life is in danger or the life of a third person. Grethel had spent two weeks with a witch who was using Grethel to help her fatten up her own brother. The witch told the children that she intended to cook and eat them. Grethel, for two weeks, watched her brother who was locked in a cage get examined for “thickness” by the witch. Then the day came when the witch asked her to climb in the hot oven to see if it was hot enough. It is a miracle that Grethel didn’t start screaming, but instead kept her cool and decided to save her own life. Grethel did not enter the house with intent to steal jewels. She and Hansel were taken in by the witch and fed. They did not know the value of the jewels they took with them when they left. They took the jewels because they reminded them of the pebbles that led them home the first night they were left in the woods. Grethel should be considered a hero, not a murderer, she not only saved her life, but her brother’s as well. Judge: Members of the jury, thank you for your time and attention. At this time I will restate the law to you. You will then retire into the jury deliberation room. This is where you will remain until you reach a unanimous verdict. If you have questions about the law, you may give them to the bailiff who will direct the questions to me. If you reach a point in which you determine that you cannot make a decision, I will rule that the case is a mistrial. The law states that in order for someone to be found guilty of first degree murder that person must have formed an intent to kill a person before taking such action that led to such person’s death. A person can be found guilty for first degree felony murder, if the person entered the dwelling of another with the intent to steal and killed another in the process of the stealing. A defendant may claim that they were acting in self-defense, as the defendant claims in this case, if a reasonable person would fear that their life was in danger if he or she was in the defendant’s situation. Please take your time when considering all of the evidence. You may now retire to the jury room.
Croatian Mock Trial
District of Grimm v. Grethel
Mock Trial Script II. Croatian Mock Trial Script Because this is a murder trial, there will be five people on the judicial panel: the Presiding Judge, a second professional Judge and three citizen (lay) Judges. Other criminal trials would have only a panel of three with one Presiding Judge and two citizen (lay) Judges. (Note: Any time a lawyer addresses the judge, or speaks to the judge, as when asking the witness questions or stating an objection, the lawyer should stand to show respect for the Court.) Presiding Judge: Good morning. The Prosecution filed the indictment against Grethel Woodcutter for the offense of murder. The panel of judges presiding on this case consists of (lady or gentlemen) judges, (enter name of judges), and a professional judge (enter name). My name is (insert name of the judge). Do the attorneys have any objections to the composition of the bench? Prosecutor: (Stand up) No, Your Honor. (Sit down) Presiding Judge: (To defense counsel) And do you? Counsel for Defendant: (Stand up) No, Your Honor. (Sit down) Presiding Judge: The Court is rendering the ruling that today’s public trial shall be held because all legal prerequisites are fulfilled. We shall also have to determine which persons are here, - so is the defendant is here? Defendant: (Raise hand) Presiding Judge: And Mr. Woodcutter is here? Please raise you hand so I can see you. And Snow-white Bird is here? Thank you. And Mr./ Ms. Duck is here? Thank you. And the Birds’ Spokesperson is here? Thank you. And Hansel Woodcutter is here? Thank you. So everyone is here. So now, we will first have to determine the identity of the accused person, so will the Defendant come and sit here? Thank you. Will you tell us your name and surname? Defendant: Grethel Woodcutter. Presiding Judge: Do you have any nickname?
Grethel: No. Presiding Judge: What is the name of your father? What is your mother’s name? Grethel: Mr. Woodcutter, and I have no mother. Presiding Judge: Date and place of birth? Address? Nationality? Grethel: I was born on March 23, 1810 in Deep Famine Woods. I live in Deep Famine Woods with my dad. I am German. Presiding Judge: What is your occupation? Grethel: I am just a little girl who lives with her dad in Deep Famine Woods. Presiding Judge: Do you have any assets? Grethel: No. Presiding Judge: Are you married? Do you have children? Grethel: No. Presiding Judge: What is your educational background? Grethel: My dad teaches me things at home. Presiding Judge: Do you serve in the army? Grethel: No. Presiding Judge: Do you have any decoration from the military? Grethel: No. Presiding Judge: Thank you, you may sit down. The witnesses shall now be removed from the court room. We will proceed with the trial. The public trial begins with the reading of the indictment. Prosecutor: I’ll be reading the indictment.
Presiding Judge: The Defendant will stand. Proceed. Prosecutor: The indictment v. Grethel Woodcutter. Grethel’s family was having financial troubles, so she sought out an elderly woman so that she could steal her jewels and her family could be rich. On April 19, 1816, while attempting to steal this woman’s jewels, she pushed the elderly women into the stove, killing her. Therefore, she committed the crime of murder as proscribed by Article 90 of the Croatian Criminal Code. Presiding Judge: Thank you, you may sit down. (To Defendant) Do you understand the charge? Grethel: Yes, Your Honor. Presiding Judge: You have heard and understand the charge against you. You will have an opportunity to be heard on all incriminating facts and evidence and to present all facts and evidence favorable to you. You do not need to testify or answer any questions. You have the right to defend yourself in person or to be assisted by a defense counsel. Since you have a defense counsel, I assume you will defend yourself with the presence of defense counsel, is that correct? Grethel: Yes, Your Honor. Presiding Judge: Now we are at the part of the trial where you are to enter your plea. Under Croatian law, there are three types of pleas. First, you can say that you are guilty. Second, you can say that you are not guilty. Or you may remain silent. If you remain silent, we will assume that you are pleading not guilty. Your plea is not evidence. It just determines the course of the trial. If you plead guilty, you will be questioned at the beginning of the trial. If you pleading not guilty, you will be questioned at the end of the trial. Do you understand that? Grethel: Yes, Your Honor. Presiding Judge: What is your plea? Grethel: Not guilty. Presiding Judge: Let the record will show that the Defendant has pleaded not guilty. Thank you.
Presiding Judge: Now we will hear the proposal of the evidence and we will hear first from the Prosecution. So please tell us what evidence you will present and for what purpose this evidence is being presented. Prosecution: The Prosecution will be calling three witnesses: Mr. Woodcutter in order to establish that the Woodcutter’s were having financial difficulties; Snow-white Bird to show that Grethel did arrive at Ms. Sweet-Tooth Witch’s house and that Ms. Witch treated her well; and finally, Mr./Ms. Duck to establish that Grethel was fleeing from the crime scene with the stolen goods. Presiding Judge: Thank you. Will the defense please? Counsel for Defense: Yes, Your Honor. We also have three witnesses: The Bird’s Spokesperson to show that the children took steps to find their way home by leaving bread to mark their path; Hansel will tell us that he tried to find his way home but ended up at the witch’s house and she was going to eat him; and finally, Grethel will tell us that it was not her intent to kill the witch, but the witch was going to kill her so she acted in self-defense in order to save herself and her brother; therefore, she is not guilty of murder. Presiding Judge: Are you opposing any evidence offered by the Prosecution? Counsel for Defense: No, Your Honor. Presiding Judge: (To Prosecutor) Do you agree to the evidence offered by the Defense? Prosecutor: We agree, Your Honor. Presiding Judge: Thank you very much. The Court is ready for ruling the prepared evidence is accepted for presentation. We are now transferring to the presentation of evidence and first we will hear from the Prosecution witness- (To Prosecutor) Who would you like to call? Prosecutor: We would like to call Mr. Woodcutter first. Presiding Judge: (To the witness) Please approach the witness chair. Dad: (Walks up to the table facing the panel of judges and takes a seat.)
Presiding Judge: What is your name and sir name? Dad: Mr. Woodcutter. Presiding Judge: Father’s name? Dad: Mr. Woodcutter, Senior. Presiding Judge: Date, month, and year of birth. Dad: I was born on June 13, 1784 in Chris, Grimm. Presiding Judge: What is your occupation and residence? And relation to the Defendant. Dad: I am a woodcutter. I live in Deep Famine Woods. She is my daughter. Presiding Judge: As a close Relative of the defendant, you are not required to testify. Dou you want to continue? Dad: Yes, your honor. Presiding Judge: You shall be heard as a witness and you have a duty to tell the truth and to present everything known to you relating to the case. Making a false testimony is a criminal offense. You are not under duty to answer particular questions if it is likely that the answer would expose you or your close relatives to serious disgrace, considerable damage or criminal prosecution. Do you understand that? Dad: I understand. Presiding Judge: You may proceed. Prosecutor: Mr. Woodcutter, was your family in financial trouble when your children disappeared? Dad: Yes, the whole area was suffering from the famine. It was known as the year without a summer. Prosecutor: How much food did your children get to eat a day? Dad: On good days, they would each get a slice of bread.
Prosecutor: Why did you leave your children in the woods? Dad: I had no way to feed them. I thought they would be better off. Prosecutor: Did you hope someone would take them in? Presiding Judge: Mr./Ms. ________ (Insert name of the Prosecutor), your questioning, in regards to this witness, should serve only as a means to discover why Miss Woodcutter ended up where she did and why she may have committed the crimes alleged, not to remind the father of his negligence. Mr. Woodcutter, you do not have to answer that question. Prosecutor: Thank you, Mr. Woodcutter. Thank you, Your Honor. I have no further questions. Presiding Judge: Thank you. (Turns to Counsel for Defense) Counsel for Defendant: Thank you, Your Honor. (Turn to witness) How old are your children? Dad: Hansel is four and Grethel is only six. Counsel for Defendant: Did the children know how to fend for themselves? Presiding Judge: Counsel, you are venturing on thin ice. What is your intention with this line of questioning? Counsel for Defendant: I’m trying to establish that the children could not care for themselves. Presiding Judge: Mr. Woodcutter, you may answer the question. Dad: No. They couldn’t even reach the lock our front door. We did everything for them. Counsel for Defendant: Why did you leave your children in the woods? Dad: My wife suggested the idea to me. She made me realize that we would all starve to death. Counsel for Defendant: Did you think you had enough food to feed you and your wife?
Dad: No, we just thought that the children’s death would be less painful in the woods. Counsel for Defense: How so? Dad: Well instead of starving to death over a long period of time, I thought an animal would kill them quickly and without pain. Counsel for Defense: Thank you, Your Honor. I have no further questions. Presiding Judge: Tell me about your daughter? Dad: She is a very good child and has never caused any trouble for me. She is only six years old. Presiding Judge: Does she know what it means to die? Dad: I think she has an idea of what dying means. We have talked about it, because we hardly had enough food to stay alive. Presiding Judge: How did you feel when you left your children in the woods? Dad: I felt horrible. Presiding Judge: Did you ever return for your children? Dad: No. Presiding Judge: Did your children find their way home? Dad: On March 17, 1816, the first time I left them in the woods, they returned home. Presiding Judge: How long was it before you left them in the woods again? Dad: It had to be a few weeks. It seemed as if the famine may go away, but then it became worse, and we hardly had enough food for one person. I think it was April 5, 1816 when we led them into the woods again.
Presiding Judge: What happened this time? Dad: They were gone for two weeks before they returned home on April 19, 1816. Professional Judge 2: I have a question. Did you ask your children to look for food or money for you? Dad: No, my wife just told them to take a nap and that we would be back for them. Presiding Judge: Any other question for the witness? Judges: No, Your Honor. Prosecutor: No, Your Honor. Counsel for Defense: No, Your Honor. Presiding Judge: Do you have anything else to add? Dad: Yes, just that my daughter is a good child, Your Honor. Presiding Judge: Thank you, you may leave. Call your next witness. Prosecutor: Snow-white Bird, please come forward. Snow-white Bird: (Approach the stand.) Presiding Judge: What is your name and surname? Snow-white Bird: Snow-white Bird. Presiding Judge: Father’s name? Snow-white Bird: Winter-white Bird. Presiding Judge: Date, month, and year of birth. Snow-white Bird: I was born on February 27, 1806 in Chris, Grimm. Presiding Judge: What is your occupation and residence? And relation to the Defendant.
Snow-white Bird: I am a musical bird and I live in Deep Famine Woods which are very treacherous. I am not related to the Defendant. Presiding Judge: You shall be heard as a witness and you have a duty to tell the truth and to present everything known to you relating to the case. Making a false testimony is a criminal offense. You are not under any duty to answer particular questions if it is likely that the answer would expose you or your close relatives to serious disgrace, considerable damage or criminal prosecution. Do you understand that? Snow-white Bird: Yes. Presiding Judge: You may proceed. Prosecutor: What did you see in the woods on April 5, 1816? Snow-white Bird: Well, I saw these skinny children roaming about so I began to sing a song so that they would follow me to Ms. Sweet-Tooth’s house. Prosecutor: What happened when they arrived at Ms. Sweet-Tooth’s house? Snow-white Bird: She took them in and fed them a marvelous meal. Prosecutor: I have no further questions. Presiding Judge: Thank you. (Turns to Counsel for Defense) Counsel for Defendant: Thank you, Your Honor. (Turn to witness) Did you lead children to the witch’s house before? Presiding Judge: Counsel, Snow-white Bird is not on trial here. Why are you starting with this question? Counsel for Defendant: I am trying to establish a pattern. To put it bluntly, I believe that Snow-white Bird intentionally led children to the witch’s house to be eaten. It is essential for establishing our self-defense claim. Presiding Judge: You may answer the question. Did you lead children to Ms. Sweet-Tooth’s house on prior occasions? Snow-white Bird: Yes.
Counsel for Defendant: Did any of those children ever leave her house? Snow-white Bird: Well, I don’t know. Counsel for Defendant: Did you ever see any of those children leave her house? Snow-white Bird: No. Counsel for Defendant: I have no further questions. Professional Judge 2: Why did Ms. Sweet-Tooth Witch allow you to eat her roof? Snow-white Bird: I suppose it was because she enjoyed my singing. Presiding Judge: Did she let you feed on her roof before you brought her children? Snow-white Bird: No, but that doesn’t mean anything. She was doing those kids a favor. She was feeding them during the year without a summer, when no one had any food. Presiding Judge: How many times did you lead children to her house? Snow-white Bird: Maybe five times. Presiding Judge: And you never saw any of those children leave her house? Snow-white Bird: No. Professional Judge 2: Did you ever think of waiting to see if they would leave the house? Snow-white Bird: It looked like they were being cared for so I didn’t wait around from them to leave. Presiding Judge: Any other question for the witness? Judges: No, Your Honor.
Prosecutor: No, Your Honor. Counsel for Defense: No, Your Honor. Presiding Judge: Do you have anything else to add? Snow-white Bird: No, Your Honor. Presiding Judge: Thank you, you may leave. Call your next witness. Prosecutor: Mr./ Ms. Duck, please come forward. Mr./ Ms. Duck: (Approach the witness stand.) Presiding Judge: What is your name and surname? Mr./Ms. Duck: Mr./ Ms. Duck Presiding Judge: Father’s name? Mr./Ms. Duck: Mr. Duck, Senior. Presiding Judge: Date, month, and year of birth. Mr./Ms. Duck: I was born on August 22, 1808 in Chris, Grimm. Presiding Judge: What is your occupation and residence? And relation to the Defendant. Mr./ Ms. Duck: I am a swimming bird. I help animals cross the river. I live in Deep Famine Woods which are very treacherous. I am not related to the Defendant. Presiding Judge: You shall be heard as a witness and you have a duty to tell the truth and to present everything known to you relating to the case. Making a false testimony is a criminal offense. You are not under any duty to answer particular questions if it is likely that the answer would expose you or your close relatives to serious disgrace, considerable damage or criminal prosecution. Do you understand that? Mr./ Ms. Duck: Yes. Presiding Judge: You may proceed.
Prosecutor: When did you meet the Defendant? Mr./ Ms. Duck: I met her on April 19, 1816, the day she was trying to cross the river. Prosecutor: What were her mannerisms when the meeting occurred? Mr./ Ms. Duck: She and the boy seemed to be in a hurry, but she waited on the river’s edge while I carried the boy to the other side and then I returned for her. Prosecutor: Was there anything else special about these children? Mr./ Ms. Duck: I did notice that they were carrying spectacular jewels. I had wondered why such young children had so many jewels. Prosecutor: I have no further questions. Presiding Judge: Thank you. (Turns to Counsel for Defense) You may question the witness. Counsel for Defendant: Thank you, Your Honor. (Turn to witness) How long does it take you to cross the river? Mr./ Ms. Duck: About five minutes. Counsel for Defendant: When Grethel waited for you to carry her brother to the other side of the river and then return for her, how long did she have had to wait? Mr./ Ms. Duck: Well, it would take me ten minutes to swim back and forth across the river. Counsel for Defendant: If she was running from something, wouldn’t she have ridden across the river first? Presiding Judge: Counsel, that calls for speculation. That is not a proper question for this witness. Mr/Ms. Duck cannot attest to what Miss Woodcutter would have done. Counsel for Defendant: I have no further questions.
Professional Judge 2: Did the children seem like they were in a hurry? Mr./ Ms. Duck: They ran up to the river quickly, but they seemed composed when they asked me for a ride across the river. So I guess they weren’t in too much of a hurry. Citizen Judge 3: Were the children holding on to the jewels carefully? Mr./ Ms. Duck: Not exactly, they were in a hurry so they were not too concerned about the jewels. Presiding Judge: What makes you think they were not concerned about the jewels? Mr./ Ms. Duck: If those were my jewels, I would leave them at home or hang onto them very tightly if I had to move them. Citizen Judge 4: Had you seen these children before? Mr./ Ms. Duck: No, that was the only time I saw the children. Presiding Judge: Any other question for the witness? Judges: No, Your Honor. Prosecutor: No, Your Honor. Counsel for Defense: No, Your Honor. Presiding Judge: Do you have anything else to add? Snow-white Bird: No, Your Honor. Presiding Judge: Thank you, you may step down. Presiding Judge: Now we will hear the evidence from the Defense. Counsel for Defense: Thank you. The Defense would like to call Birds’ Spokesperson. Presiding Judge: Birds’ Spokesperson, please come forward. Birds’ Spokesperson: (Approach the stand.)
Presiding Judge: What is your name and surname? Birds’ Spokesperson: I am known as the Birds’ Spokesperson. Presiding Judge: Father’s name? Birds’ Spokesperson: Mr. Spokesperson. Presiding Judge: Date, month, and year of birth. Birds’ Spokesperson: I hatched on November 10, 1809 in Chris Grimm. Presiding Judge: What is your occupation and residence? And relation to the Defendant. Birds’ Spokesperson: I speak on behalf of a flock of birds. We live in the treacherous, Deep Famine Woods. We are not related to the Defendant. Presiding Judge: You shall be heard as a witness and you have a duty to tell the truth and to present everything known to you relating to the case. Making a false testimony is a criminal offense. You are not under any duty to answer particular questions if it is likely that the answer would expose you or your close relatives to serious disgrace, considerable damage or criminal prosecution. Do you understand that? Birds’ Spokesperson: Yes. Presiding Judge: You may proceed. Counsel for Defendant: Did you find something on the path in the treacherous part of Deep Famine Woods? Birds’ Spokesperson: Yes Counsel for the Defendant: How many times? Birds’ Spokesperson: Twice. Counsel for Defendant: What did you see the first time?
Birds’ Spokesperson: One night, I think it was March 17, 1816, we saw white shiny things. We swooped down only to discover that they were pebbles. Counsel for Defendant: Did this happen again? Birds’ Spokesperson: Yes, a few weeks later, on April 5, 1816, we saw white shiny things, so we swooped down and discovered tiny pieces of bread! Counsel for Defendant: How much of the bread did you eat? Birds’ Spokesperson: We ate all of it! Counsel for Defendant: No further questions. Presiding Judge: Thank you. (Turns to Prosecutor) Prosecutor: Thank you, Your Honor. (Turn to witness) Did you find food regularly? Birds’ Spokesperson: Yes, we had to search for our food. Prosecutor: Did you regularly find bread along this path? Birds’ Spokesperson: No, this was the only time. Prosecutor: I have no further questions. Presiding Judge: Why did you eat something that wasn’t yours? Birds’ Spokesperson: Every person and every animal was starving. You ate what you could find. You see, you must remember that this was the year without a summer. A widespread famine existed in Europe. Presiding Judge: Did you see what was done with the pebbles? Birds’ Spokesperson: No. Citizen Judge 5: When you swooped down for the bread, on April 5, 1816, were the pebbles still there?
Birds’ Spokesperson: No, it seemed as if someone had moved them, but again a few weeks had passed, so anything could have happened to them. Presiding Judge: Any other question for the witness? Judges: No, Your Honor. Prosecutor: No, Your Honor. Counsel for Defense: No, Your Honor. Presiding Judge: Do you have anything else to add? Birds’ Spokesperson: No, Your Honor. Presiding Judge: Thank you, you may leave. Call your next witness. Counsel for Defendant: Hansel, please come to the stand. Hansel: (Approach the witness stand.) Presiding Judge: What is your name and surname? Hansel: Hansel Woodcutter. Presiding Judge: Father’s name? Hansel: Mr. Woodcutter. Presiding Judge: Date, month, and year of birth. Hansel: I was born on April 5, 1812 in Chris Grimm. Presiding Judge: What is your occupation and residence? And relation to the Defendant. Hansel: I am just a little boy who lives with his dad in Deep Famine Woods. The Defendant is my sister. Presiding Judge: You shall be heard as a witness and you have a duty to tell the truth and to present everything known to you relating to the case. Making a false testimony is a criminal offense. You are not under any duty to answer particular questions if it is likely that the answer would expose
you or your close relatives to serious disgrace, considerable damage or criminal prosecution. Do you understand that? Hansel: Yes. Counsel for the Defendant: What happened on March 17, 1816, on your first trip to the woods. Hansel: My father and stepmother left us alone in the woods. We were there most of the night. Counsel for Defense: How were you able to find your way home? Hansel: I had collected pebbles that I had left to mark the path. When the moon came out we could see the pebbles and we followed them home. Counsel for the Defendant: How did you find you way home on April 19, 1816? Hansel: On April 19, 1816, after leaving the witch’s house, my sister and I had an easy time finding our way home because we had full stomachs so we could concentrate better. Counsel for the Defendant: What happened while you were at the home of Ms Sweet-tooth Witch? Hansel: At first she was very nice to us and fed us, but then she started to threaten us. Counsel for the Defendant: How did she threaten you? Hansel: It started the second day we were in her house. She locked me in a cage and everyday she felt how skinny my figure was. She made Grethel feed me. She repeated this day after day. I just knew she was checking to see if I was fat enough to eat. Counsel for Defense: What did you do? Hansel: Well, my sister and I saved a chicken bone from one of the meals she gave me and I would hold that out when she felt my finger. She couldn’t see well, so she thought I was staying really skinny. This carried on for two weeks.
Counsel for Defense: What happened when she stopped feeling your finger? Hansel: When she didn’t feel my finger, I thought for sure that I would be eaten that day. But instead of the witch coming to my cage, my sister came and let me out and told me that she had beaten the witch and that we were safe. Counsel for Defense: How did you feel? Hansel: I was so relieved and happy. I just wanted to go home and see my dad. Counsel for Defense: I have no further questions. Presiding Judge: Thank you. (Turns to Prosecutor) Prosecutor: Thank you, Your Honor. (Turn to witness) When did you notice the jewels in Ms. Sweet-Tooth’s house? Hansel: I saw the shiny pebbles when we walked in her home. Prosecution: What made you think of them when you left in a hurry? Hansel: Well, they were all over the house, so you could see them in every corner. I spotted them on my way out and I thought they would be good luck. Prosecution: Why would they be good luck? Hansel: Well, pebbles helped me find my way home once before, so I thought that these super pebbles would help me get home again. Prosecution: No further questions. Presiding Judge: Do you know it is wrong to take something that isn’t yours? Hansel: Yes. Presiding Judge: Whose idea was it to go venturing into the woods?
Hansel: It was mainly my stepmother’s idea. I heard her telling my father the plan, and my dad did not want to agree at first, but then he gave in. Presiding Judge: What did you do after hearing the plan? Hansel: Well, my sister, Grethel, was crying but I told her not to worry and I ran outside and collected pebbles to mark our path. That is how we found our way home on March 17, 1816. Professional Judge 2: Why didn’t you get more pebbles before your trip into the woods on April 5, 1816? Hansel: I tried to get more pebbles, but the door was locked and I couldn’t reach the lock so I decided that I would just tear up my bread that my stepmother would give me and mark the path with the bread. Citizen Judge 4: I have a question. Did that plan work? Hansel: I thought it was going to, but the Birds ate all of my bread that was marking the path. Citizen Judge 4: Did Ms. Sweet-Tooth Witch ever let you out of the cage? Hansel: No, as of the second day I was in there day and night. Judge 5: I also have a question. Did your sister try to help you get out before April 19, 1816 when you escaped? Hansel: Yes, everyday we tried to think of a way to escape, but the witch always kept my sister right by her side. Judge 5: Did you try to talk Ms. Sweet-Tooth Witch into letting you go? Hansel: Yes. We pleaded with her to let us go, but she said that we would starve to death if we left, so it was better if she could have us to eat. Presiding Judge: Any other question for the witness? Judges: No, Your Honor. Prosecutor: No, Your Honor. Counsel for Defense: No, Your Honor.
Presiding Judge: Do you have anything else to add? Hansel: No, Your Honor. Presiding Judge: Hansel, you may leave. Is there any other evidence besides the Defendant? Counsel for Defense: No, Your Honor. Presiding Judge: Thank you. So the Court will read the document that is in the case file. We are now transferring to the questioning of the Defendant. Grethel, please approach. Grethel: (Take a seat in the witness chair) Presiding Judge: So you have now heard everything that is favorable to you and not favorable to you and you have a chance to tell us what happened so please you can tell us what happened in your own words. Grethel: My name is Grethel Woodcutter. On April 5, 1816, my father and stepmother led my brother and I out into the woods and left us there to die. We searched for our way home, but we couldn’t find it. Then we heard a lovely bird singing a wonderful song and we began to follow it. It led us to a gingerbread house. We began to eat the house. Then a witch, who seemed nice at the time, invited us in and fed us pancakes with lots of toppings. Then the next day she turned into a true witch. She locked my brother in a cage. She had me help her prepare meals in order to fatten him up so that she could eat him. On April 19, 1816, I woke up and the witch told me that this was the morning she would eat my brother and that I had to go fetch water for her. I brought her the water. I was thinking that it was going to be horrible to watch my brother die and watch this witch eat him. It was then that the witch asked me to climb in the oven to see if it was hot. I realized at this moment that she was going to eat me too! So I told her that I didn’t know how to get in the oven, and when she bent down to show me, I pushed her in. I unlocked my brother’s cage and we ran home. I would like everyone to know that I think what I did was horrible, but I had no other choice. If I didn’t do what I did, I wouldn’t be here to talk about it today. My brother wouldn’t be here to testify. My dad would have no children left. I had to do what I did or else that witch would have done it to me. I am sorry that I ever found her cabin.
Presiding Judge: (To Counsel for Defense) Do you have any questions? Counsel for Defense: Yes. Thank you, Your Honor. What feelings did you have for the witch when you were staying at her house? Grethel: At first, I really liked the witch because she was taking such good care of us. But when she put my brother in the cage and told me she was going to eat him, I became very afraid of the witch. Counsel for Defense: Were you ever mad at the witch? Grethel: I was too afraid. I didn’t have enough energy to be mad. Counsel for Defense: I have no further questions, Your Honor. Presiding Judge: Thank you. (Turns to Prosecutor) Would you like to question this witness? Prosecutor: Thank you, Your Honor. (Turn to witness) When did you notice the white jewels? Grethel: We saw the jewels as soon as we entered the house. Prosecutor: Did you know that your family was having financial troubles? Grethel: Yes, but everyone was. Prosecutor: How much food did you get each day? Grethel: One slice of bread. Prosecutor: I have no further questions. Presiding Judge: Did you believe Ms. Sweet-Tooth Witch was going to kill you? Grethel: Yes. Of course I did. Presiding Judge: What made you sure that she would kill you? Grethel: For two weeks I had seen my brother locked in a caged as she tried to fatten him up.
Presiding Judge: Do you have anything to add? Grethel: No. Presiding Judge: Do we have a proposal to supplement presentation of the evidence? Prosecutor: No. Counsel for Defense: No. Presiding Judge: So presentation of the evidence is concluded. We are now transferring to closing arguments. (To Defendant) You may be seated. Prosecution, you may proceed. Prosecution: Ms. Grethel Woodcutter has violated Article 90 of the Croatian Criminal Code. Murder is the unlawful killing of a human being with malice aforethought. If you consider the motive and the facts you will find Grethel guilty of murder. She saw the valuable jewels when she entered the home. She knew her family needed the jewels in order to buy food. She knew the only way to get the jewels and return home without trouble would be to kill Ms. Sweet-Tooth Witch. And the most important fact is that Grethel admits killing Ms. Witch. Your Honor, based on all of the evidence presented you can and should convict Grethel for the murder of Ms. Witch. Counsel of Defense: The Prosecution’s story is missing a key aspect of the plot. Grethel did not go to Ms. Witch’s house with the intent to steal from her. She was led their by a singing bird. Ms. Witch fed her a nice meal. Then the next day things took a turn for the worst. The witch locked her brother in a cage, and made Grethel help her fatten Hansel up so that the witch could eat me. On April 19, 1816, the witch announced that she would be eating Hansel. When Grethel was asked to climb in the oven to see if it was hot, she was not going to be fooled. Instead, she threw the witch in the oven and she and her brother made their escape. It was not a willful killing, because she had to kill the witch in order to stay alive. This was clearly self defense and defense of her brother. Your Honor, it is the Prosecution’s burden to prove beyond a reasonable doubt and it is your responsibility to see that Grethel did not have the intent of killing the witch, and therefore, the Criminal Code is not met in this case, and she should be found not guilty.
Presiding Judge: The Defendant will please rise. Do you have anything to add? Grethel: No, Your Honor. Presiding Judge: Anyone else would like to give an additional statement? We are finding that no additional evidence needs to be examined. I will now rule that the trial is closed, and the panel will retire for deliberation and will return with its decision. Thank you very much.
D
STATE V. RANDALL
FACTS James and Arlene go to a night club to have a drink. Randall, who has been drinking, comes up to their table, says he knows Arlene, and tries to talk to her. James gets angry and asks Randall to leave. An argument takes place and a fight ensues. The police are called and Randall is arrested for assault on James. Randall claims James caused the fight and that he was only defending himself. EVIDENCE There is no physical or documentary evidence for this trial. WITNESSES For the Prosecution: James Arlene
For the Defense: Randall Phillip (a waiter in the night club)
WITNESS STATEMENTS JAMES: “I was just sitting in the place with Arlene, listening to the music, when this guy came up and started bothering her. I asked her if she knew him, and she said, ‘No.’ So I told him to leave. The man was blind drunk, and he kept bothering my girl. So I stood up and told him to leave before I called the manager. About that time he squared off on me, and when I turned to walk away he hit me.” ARLENE: “I was with my boyfriend, James, when an old friend of mine, Randall, came over to our table. Randall had been drinking, and he grabbed my arm and told me to dance with him. James asked me if I knew him, and I said ‘No,’ because James is very jealous. Then James told Randall to leave before some trouble got started. Randall didn’t leave, and James stood up to argue with him. The next thing I knew, they were fighting.” PHILLIP: “This one guy was sitting with a girl when Randall went over to them. I know Randall because he plays in a band here occasionally. Randall only had two drinks. I know because I was waiting on his table. Randall motioned to the girl to dance, and then he held her arm to help her up. The guy she was with got mad and started yelling. Randall smiled and told him to be cool. The guy jumped up and grabbed Randall. Randall hit him back, and they really went at it. After that, the cops came.” RANDALL: “I was at this club, walking around, checking the place out. I saw Arlene. I had gone out with her for two years, but I hadn’t heard from her in a couple of months. I went over to ask her how she was doing. I’d had a couple of drinks, but I wasn’t even a little drunk. I asked her to dance, and the guy with her looked at me funny. I know Arlene well, and I knew she wanted to dance with me, so I took her by the arm. Then this guy sitting with her confronted me. I told him I didn’t want any trouble. Then he jumped up, and before I knew it, he grabbed me and hit me.”
PROCEDURE After each side has had the opportunity to make an opening statement, examine its own witnesses, cross-examine the opponent’s witnesses and present a closing statement, the judge should instruct the jury as to the appropriate law in the case. The instructions that follow can be shortened and/or simplified for classroom use. Assault and Battery Any intentional and unlawful threat or attempt to commit injury upon the person of another, when coupled with an apparent present ability so to do, and a display of force such as to place the victim in apprehension of immediate bodily harm, is held to constitute an assault. An assault may be committed without actually touching or striking or doing bodily harm to another. Battery is any intentional and unlawful use of force upon the physical person of another. Thus the least touching of the person of another may constitute a battery. “Unlawful,” as used in this definition, means contrary to law or without legal justification. Self-Defense The defendant would be criminally responsible only in the event that the striking of the complainant was unlawful. Not every striking of another person is unlawful. The law recognizes the right of an individual to defend his or her own person. One need not wait to do so at his or her peril (i.e., one need not delay his or her defense until the supposed aggressor has unmistakably and in fact made the first move). The test is reasonableness. A person with a reasonable fear for his or her own safety by reason of the conduct of another may take reasonable steps to defend him or herself. INSTRUCTIONS: Jury Deliberations Once instructed, the jury should deliberate. They must decide from the evidence whether the prosecution has shown Randall to be guilty of assault beyond a reasonable doubt. The jury may deliberate in a separate room as they would in an actual trial. The presiding juror writes the verdict on a slip of paper and hands it to the judge, who reads it in open court. Source: Excerpted with permission from Street Law: A Course in Practical Law, Sixth Edition (Columbus, OH: Glencoe/McGraw-Hill, 1999). Putting on Mock Trials.
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V . H
A civil trial questioning whether the host of a party, where alcohol was served, is responsible
for injuries caused by an auto accident.
Reproduced with permission from the Association of Trial Lawyers in America
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F
COOPERATIVE LEARNING
Introduction Cooperative learning is a successful teaching strategy in which small teams, each with students of different ability levels, use a variety of learning activities to improve their understanding of a subject. Each member of a team is responsible; not only for learning what is taught, but also for helping his or her teammates learn—thus creating an atmosphere of achievement. http://www.teachervision.fen.com/cooperative-learning/teaching-methods/48448.html Cooperative learning is the instructional practice of placing students into small groups and having them work together toward a common goal. Each group member learns new material and helps other group members learn important information. The success of cooperative learning is based on three interrelated factors:
• Group goals. Cooperative learning teams work to earn recognition for the improvement of each member of a group.
• Individual accountability. Each member of a team is assessed individually. Teammates work together, but the learning gains of individuals form the basis of a team score.
• Equal opportunities for success. Individual improvement over prior performance is more important than “winning”. Rehearsals and problem-solving sessions are designed to promote individual success.
However, the ultimate success of cooperative learning is based on a single and very important principle: students must be taught how to participate in a group situation. Teachers cannot assume that students know how to behave in a group setting. What's in It for My Students?
• Student achievement: The effects on student achievement are positive and long-lasting, regardless of grade level or subject matter.
• Student retention: Students are more apt to stay in school and not drop out because their contributions are solicited, respected, and celebrated.
• Improved relations: One of the most positive benefits is that students who cooperate with each other also tend to understand and like each other more.
• Improved critical thinking skills: More opportunities for critical thinking skills are provided, and students show a significant improvement in those thinking skills.
• Oral communication improvement: Students improve in their oral communication skills with members of their peer group.
• Promoted social skills: Students' social skills are enhanced.
• Heightened self-esteem: When students' work is valued by team members, their individual self-esteem and respect escalate dramatically.
• Individual assessment: In cooperative learning, the objective is not the production of a single set of correct answers for the entire group but rather the development and enhancement of each member's achievement. Although members of the team work together to master information, each individual member must be assessed in relation to her or his mastery of the content.
• Positive interdependence: It's important that you structure learning tasks so students come to believe they sink or swim together. Students need to know that each group member's efforts are required for group success and that each group member has a unique contribution to make to the joint effort.
• Heterogeneous groups: Groups should be comprised of three, four, or five members. Mix the membership within a group according to academic abilities, ethnic backgrounds, race, and gender. It's also important that groups not be arranged according to friendships or cliques.
• Clear directions and/or instructions: Be sure to state the directions or instructions in clear, precise terms. Let your students know exactly what they are to do. When appropriate, inform them what they are to generate as evidence of their mastery of the material.
• Equal opportunity for success: Be sure every student knows that she or he has an equal chance of learning the material. Inform every student that she or he can help the group earn rewards for academic success.
• A clear set of learning objectives: You must describe exactly what students are expected to learn. Let students know that cooperative learning groups are a means to an end rather than an end in itself.
• Individual and group accountability: Plan time to observe a group, and record the frequency with which each member contributes to the group's work. Invite students to teach what they learn to someone else. Ask group members to discuss how well they're achieving their goals or how they're maintaining effective working relationships. Help students make decisions about what behaviors to continue, what to change, and what to eliminate.
• Sufficient time: Be sure you have sufficient time to learn the targeted information. Groups should stay together until the designated subject matter is learned.
The effective use of cooperative learning in the classroom is often built upon a four-step process. Consider the following four elements as you begin to design and implement cooperative learning into your teaching routines:
1. Presentation of content Instructional activities must be done prior to any cooperative learning activity. Note: This means that the mock trial case materials would be thoroughly read and analyzed before the students are divided into role groups for the trial.
2. Teamwork This is the time—after you've taught the new material—when students are engaged in a cooperative learning activity. The cooperative learning strategy is selected and explained to the entire class. Students are divided into various teams and provided sufficient time to complete their assigned duties.
Note: Students have their mock trial roles when they get into groups. They will work in pairs or trios to complete the job responsibilities as outlined in the job responsibility handout (Appendix G).
Grouping options include pairs of witness and lawyer who will do the direct examination, pairs of opener and closers; trios of lawyer, witness and cross-examiner of opposing witness, trios of judge bailiff and clerk.
A larger group would include all the witnesses on one side and all the lawyers on one side.
A very large group meeting would include all the role players on one side.
Assigning specific cooperative group roles will help complete the task. Examples of cooperative roles are task organizer, recorder, researcher, etc.
Add expert group: task organizer, recorder, researcher or other cooperative role players meet together after the task is explained to share their ideas on how to be effective.
They can meet again while the groups are working to check to see if their groups are meeting the goals of preparing for the mock trial.
3. Individual assessment In cooperative learning, the objective is not the production of a single set of correct answers for the entire group but rather the development and enhancement of each member's achievement. Although members of the team work together to master information, each individual member must be assessed in relation to her or his mastery of the content. In short, everybody is tested in line with her or his achievement potential.
Note: In mock trial, individuals must be competent and convincing in their own roles but the group must also work as a team to meet the requirements of presenting a mock trial. Group members should be ready and able to “rescue” each other and to provide support for all the members of the team.
4. Team recognition It's most appropriate to recognize and celebrate the efforts of the team as a whole. It's equally important to celebrate the efforts of the team to assist individual members in learning a specific body of knowledge. The reward can be as simple as a classroom cheer or extended series of high fives.
Note: Celebrating the completion of a mock trial includes a very positive debrief where students are given the opportunity to congratulate each other and to think ahead to what changes they might make in a subsequent mock trial experience. Source: Teacher Vision (www.teachervision.fen.com/cooperative-learning/teaching-methods/48448.html)
G
JOB RESPONSIBILITIES
WITNESSES Your responsibility is to answer questions truthfully about the facts of the case. Try to imagine what other facts might go along with the facts provided. Your answers cannot change the story given in your statement. When you testify, you should not read your statement or have notes. You are supposed to know what happened. Your job is to make sure that the judge and the jury hear the most important parts of your statement. Act confident and speak slowly and loudly so that it is easy to hear. If you do not know the answer to a question, say “I do not remember”. If you are an expert witness, be sure to establish your background and experience. On cross-examination ask the attorney to repeat a question if you do not understand it. Take your time before you answer. You may only need to say yes or no. If your lawyer objects, do not give any information until the judge has ruled. Your job is to:
1. Read your witness statement over and over again until it is almost memorized. When you take the stand, act confident and speak clearly. Be sure that you know how to spell your last name. Decide on an age and address and an occupation if that is asked of you.
2. Try to really think of yourself as the person and feel what they are feeling. Stay in role when you testify. Make your face look like what you are saying. {sad, determined, etc.} Pace your responses to the questions asked by the judge or attorney so you do not sound rehearsed.
3. Add as little information as possible to your written statement and make sure that it does not contradict your other statements. Do not guess on any answer that you do not know.
4. If you make a mistake, allow your lawyer to help you correct it by re-asking the question. 5. Answer the questions on direct examination with more than yes or no. But be careful not
to go on and on beyond the scope of the question. Try to emphasize the most important facts out for the Judge or jury to hear.
6. Do not make any comments to other witnesses or attorneys. LAWYERS Determine your theory of the case. Your theory consists of a simple, logical story explaining your version of “what really happened.” It must be consistent with the evidence you have and with the jury’s common-sense notions about how things occur. Get your facts together:
1. Make certain that you bring out the facts that are most helpful to your case and connect the facts to your theory of the case, your burden of proof responsibility and the law.
• What witnesses are most helpful to your side? Why?
• What physical evidence is most helpful to your case and which witness should testify about the exhibit?
List all inconsistencies and potential weaknesses in your witness’ story/testimony. Think of ways your witness can explain these weaknesses to the jurors or judge in a truthful way that will generate empathy for the witness.
2. Determine the facts that weaken the other side’s story.
• The evidence is not reliable • The evidence doesn’t make sense • The evidence doesn’t prove anything • There are facts which make their story less believable
List all inconsistencies and potential weaknesses in the witness’ story/testimony. Write a list of LEADING questions (seeking only yes or no answers) focused on the way you intend to challenge the credibility of the witness. In the right-hand column, write the answer you expect the witness to give, with a reference to the page and line number of the trial packet where you found that information. What is the information you want the jury to hear last in order to make a lasting impression? Write a leading question designed to point out the main thing you want the jury to learn from this witness.
3. Talk with witnesses and make a list of important facts. Prepare for the trial:
• Decide the order of the witnesses you will call. Give this list to the clerk when the trial begins.
• Write questions that ask for facts which are relevant to the case you are building • All witnesses should be asked identifying questions such as: What is your age?
Where do you live? What is your occupation? Where do you work? How are you related to this case? Do you have any expert credentials?
• Make a list of direct questions. In the right-hand column, write the answer you expect the witness to give, with a reference to the page of the trial packet where you found that information. Remember each question should only cover one piece of information at a time. Questions should ask the witness to describe the scene so the judge or jury can visualize the scene or event.
• Write a list of questions about the actions your witness observed. Focus on open-ended questions, beginning with the words who, what, when, where, why, how.
• Start at the beginning. Avoid jumping around in time and instead design questions that get the witness to tell the story chronologically one step at a time.
• What is the information you want the jury to hear at the very end, in order to make a lasting impression? Write a question designed to emphasize the main thing you want the jury to learn from this witness.
• Go over the witness statement with your witness and practice getting the story out.
• Listen carefully when the witness for the other side testifies. Your goal in cross-examination is to get the witness to admit to some fact which will help your side or to show that the witness is lying or unsure or confused about his/her testimony.
• Begin by introducing yourself with your full name and your job in the trial. “Your honors, I am [your full name] for the prosecution/plaintiff and I will be
conducting the direct examination of [witness name].” Always address the judges as “Your Honor[s]”. Always stand when you are speaking to the Judges. Be calm and courteous to everyone. Say “thank you, your honor” after the judge has ruled on an objection. Do not show disappointment or anger.
• Do not address questions or comments to any of the other lawyers. Talk to the judges.
• Listen carefully to the questions of the opposing lawyer. You may object if the lawyers ask questions which do not satisfy the rules of questioning.{leading question for direct examination; irrelevant or has nothing to do with the case; personal knowledge, opinion when not an expert; outside the scope of the mock trial materials; asked and answered}
• If you ask a question, and another lawyer objects, listen to the objection and then tell the judge why your question should be allowed.
• Do not ask questions to which you do not know the answers. PROSECUTION’S LAWYERS In a criminal case, your job is to convince the jury to believe the prosecution’s story and find the defendant guilty beyond a reasonable doubt. Think about the case. You need to prove that:
• a crime occurred • the defendant committed it • the defendant was not justified in his actions
Make an outline of the story you want to prove.
• What facts show that a crime occurred? • What facts show that the defendant committed it? • What facts show that the defendant was not justified in his actions?
DEFENDANT’S LAWYERS Your job is to convince the jury that there is reasonable doubt about the defendant’s guilt.
Think about the case. You need to show that: • the defendant is not guilty or was justified in acting as he did
Show that there is doubt (other possible explanations) in the prosecution’s story. Make an outline of the story you want to prove:
• What facts show that the defendant was not guilty? PLAINTIFF LAWYERS In a civil case you must prove fault or responsibility by a preponderance of the evidence or more likely than not. Think about the case. You need to prove:
• the key parts of the law • stress how the defendant is at fault highlighting the facts that show the fault of the
defendant • the plaintiff did not contribute to the harm caused
Make an outline of the story you want to prove: • What facts show that a harm or injury occurred? • What facts show that the defendant is at fault? • What facts show that the defendant was not justified in his actions?
DEFENDANT’S LAWYERS Your job in a civil case is to show that the plaintiff contributed to the harm or injury and that the defendant was not at fault for the harm. Think about the case. You need to show that:
• the defendant is not responsible or was justified in acting as he did • show that there is doubt (other possible explanations) in the plaintiff’s story
Make an outline of the story you want to prove:
• What facts show that the defendant was not at fault? LAWYERS FOR PROSECUTION/PLAINTIFF AND DEFENSE (who give opening statements and closing arguments) Write opening statements and closing arguments. Make certain that what you assert will be brought out by your side’s attorneys in their direct and cross examinations of the witnesses.
• Opening: Presents the story you hope to prove. • Tell story: List witnesses and their role in the trial • Closing: States what you think you did prove.
Remind jury of witness’ statements that help your side and those which weaken the other side. Rebuttal by prosecution/plaintiff: refer only to statements made by defense closing which are not accurate. JUDGES / BAILIFF / CLERK / JURORS Your jobs are to make the trial work in an efficient and orderly way. Judges
• Will supervise the Bailiff, Clerk, and Jurors. • Will keep the trial in the proper order. (refer to Steps in a Trial handout) • Judge says: “The clerk will swear in the jury.” • Judge says: “The lawyer for the prosecution/plaintiff will please make his/her opening
statement.” • Will make sure that the questioning is proper. • Will rule on objections: overruled and sustained. • Will give clear instructions to the jury before they deliberate.
Bailiff
• Responsible for keeping physical order in the courtroom which includes guarding the jury.
• Will be the official timekeeper.
• Will call the court to order: “All rise. The mock trial ? court, the Honorable Judge ______ presiding, is now in session. Please be seated and come to order.”
Clerk
• In charge of receiving and keeping track of files and papers that come before the court. • Keeps track of any physical evidence and marks exhibits. • Will swear in all the witnesses: “Do you promise that the testimony you are about to give
will faithfully and truthfully conform the facts and rules of the Mock Trial Competition?” Witness responds, “I do.” Clerk then says, “Please be seated and state your name for the court and spell your last name.”
• Will swear in the jurors: “The jury will rise, raise your right hands, and be sworn in. Do you solemnly swear that you will well and truly try the issues now given to you; that you will speak nothing to anyone of the business or matters you have in hand, nor will you let anyone speak to you about the same but in court and when you are agreed upon any verdict, you will keep it secret until you deliver it up in court? Do you all so swear?”
• Clerk will get list of witnesses in order from each side. Jurors
• Learn the order of the trial so you know what the order will be. (refer to Steps in a Trial handout)
• Promise to wait until you have heard all the facts before you make a decision. Do not let your own prejudice or sympathy influence your decision. If you know the students who are playing the mock trial roles do not talk to them about the trial. Do not talk to other jurors about the trial until you are asked for a verdict.
• Take notes while you are listening to the trial so you will remember. • Elect a foreperson to help you make a decision. • Listen carefully to the judges’ instructions and follow them. • Understand that the standard of proof is beyond a reasonable doubt. • Foreperson will announce the verdict by saying: “We, the jury find the defendant
guilty/not guilty or not at fault (in a civil case).” • Be able to explain the main reason why you voted the way you did.
H
LESSONPLANS
DAILY LESSONS
Day 1: Create Excitement Time: 40 minutes Objective:
Introduce students to the story of the trial they will be working on. Materials: journals, story of the trial Simon v. Swift and Eastside High School (Appendix A, page 1) Introductory Activity (10 min):
Brainstorm: Divide the board or large piece of paper in half. On one side have students tell you what they know about the U.S. legal system and how it works. Write it down. (The other side is for closure when students will tell you what they know about the Croatian legal system).
Main Activity: (15 minutes) Tell students the story of the trial. (Appendix A Simon v. Swift and Eastside High
School, page 1) The story should be told with emotion and enthusiasm.
Assignment: Have students write down what they want to learn from their mock trial experience in their journals. . . .
Day 2: Elements of a Mock Trial Time: 50 minutes Objective:
Learn vocabulary pertaining to civil trial Become familiar with elements of a mock trial Become familiar with facts of the case
Materials: copies of Simon v. Swift and Eastside High School (Appendix A) for each student, journals, Steps of a Civil Trial (Handout #3) Introductory Activity (15 minutes):
Write the following vocabulary words and their definitions on the board: o Plaintiff: a person who brings a lawsuit. o Defendant: in a civil case it is the person being sued. o Complaint: a statement of the plaintiff’s claim for relief and the grounds
on which it is based.
o Negligence: the unintentional failure to exercise that care which a reasonable, prudent, and careful person would exercise.
o Civil case: a suit pertaining to rights and remedies involving torts, contracts, or real property.
Have students write them down in their journals using each one in a sentence. Student Activity (10 minutes): Have students write responses to several of the questions on Introductory Questions from Simon Case (Handout #7) and then discuss the answers either as a large group or in small groups. Main Activity (15 minutes):
Hand out case materials to students. Read the facts of the case to the students. Ask students:
o What is the name of this case? o How do you know if it is a civil or criminal case? o Who presents their case first, why?
Walk through the case materials. Assignment: Journal about a fact that you think is most important to the trial. Re-read introduction to trial. Begin reading witness statements. . . .
Day 3: Witness Statements Time: 40 minutes Objective(s):
Become familiar with first 2 witness statements Understand facts the are important
Materials: Simon v. Swift and Eastside High School (Appendix A), journals Introductory Activity (10 minutes): Ask students to tell you what this case is about. Main Activity (20 minutes):
Read Complaint and Answer section of case (read back and forth with emotion) Begin animated reading of witness statements (Kelly Simon & Terry Swift) by
adults and talented student readers. DO NOT read the statements in order. Switch between plaintiff and defense witnesses.
Suggest that students close their books and listen. After each witness statement, ask for facts that are remembered. Have students physically star with their pencils the most important facts of the
witness statements in their case materials. Student Activity: Have students journal their impressions of the witness
statements heard today.
Assignment: Re-read witness statements from today’s class.
. . .
Day 4: Witnesses Statements Continued “It is the spirit not the form of law that keeps justice alive.” – Earl Warren, Chief Justice of the U.S. Supreme Court Time: 40 minutes Objective:
Become familiar with witness statements Understand and identify important facts within a witness statement Understand the importance of evidence in a trial
Materials: Simon v. Swift and Eastside High School (Appendix A), journals Introductory Activity (5 minutes):
Have students identify which witnesses they remember from yesterday? What characteristics did each of the witnesses have?
Main Activity #1 (15 minutes): Continue to read aloud witness statements with plaintiff witness going 1st and then
the defense witness (Lynn Roper and Jamie Hagar). After each witness statement, ask the students what facts they remember. Students should star most important facts in each statement with their pencils. Go back to the facts of the trial. Are there any facts that you would add to the
witness statements? Main Activity #2 (15 minutes):
Go to the evidence section of the case. Discuss the exhibits and determine what each exhibit will help prove. Ask students: Why are exhibits important? Student Activity: Have students journal their impression of the witnesses they
heard about today.
Assignment: Learn the names of all the witnesses and look through the evidence in the case. Go over the procedure for introducing evidence. . . .
Day 5: Witness Statements and Importance of Evidence Time: 40 minutes Objective:
Become familiar with witness statements Understand and identify important facts within a witness statement Understand the importance of evidence in a trial
Materials: Simon v. Swift and Eastside High School (Appendix A), journals and Witness Quiz (Handouts #16-17). Introductory Activity (15 minutes):
Complete the reading of remaining witness statements (Morgan Pearce and Aubrey Brady)
After each witness statement, ask the students what facts they remember. Students should star most important facts in each statement with their pencils. Go back to the facts of the trial. Are there any facts that you would add to the
witness statements?
Main Activity (15 minutes): Read the statements in Witness Quiz (Handout #16) and have students raise their
hands to identify which witness it is. Review evidence again if time permits.
Assignment: In your journal identify which witness is your favorite and why. . . . Day 6: Theory of the Case & Steps in a Civil Trial “It is not enough to know that the men applying the standard are honorable and devoted men. This is a government of laws, not of men… It is not without significance that most of the provisions of the Bill of Rights are procedural. It is procedure that spells much of the difference between rule by law and rule by whim or caprice.” –William O. Douglas, Source: Anti-Fascist Refugee Comm. V. McGrath Time: 45 minutes Objective:
Understand what a theory of the case is. Identify a theory of the case for the defense and plaintiff’s case Place the order of a civil trial into sequence Understand how the Croatian legal system procedurally differs for the U.S.
Materials: Simon v. Swift and Eastside High School (Appendix A), journals, overhead projector, copy Steps of a Civil Trial (Handout #3) onto transparency paper, What’s the Order? (Handout A) Introductory Activity (15 minutes): Theory of the Case
Explain to students that the theory of the case is what each side wants to emphasize or focus on.
Have them finish this sentence: “If I were on the Defense/Plaintiff’s team, I would emphasize… in their journals
Discuss their ideas on the theories for both sides of the case.
Then as a class come up with a defense theory of the case and a plaintiff’s theory of the case and have students write them in their journals.
Main Activity (25 minutes):
Go over the Steps of a Civil Trial (Handout #3) Have students get into groups of 2-3 and fill out What’s the Order? (Handout A) If time remains go over the handout as a class.
Assignment: Finish What’s the Order? (Handout A)and predict in journals the outcome of the case. . . .
Day 7: Preparing Questions for the Witnesses Time: 40 minutes Objective:
Students will play the role of a witness Students will learn to ask probing questions Students will review the sequence of a civil trial
Materials: case materials, journals Introductory Activity (10 minutes):
Go over What’s the Order? (Handout A) from previous lesson and review Steps of a Civil Trial (Handout #3).
Main Activity (25 minutes):
Divide students into pairs to review witness statements. Have one student play the role of “the explainer.” They are to answer the
questions of their partner and play the role of one of the witnesses (their choice). Student should NOT be using witness statements, it should all be done from memory.
The “questioning” student should keep the following questions in mind: o Who they are o What happened o When it happened o Where it happened o Why it happened
The “questioning” student should correct factual errors politely and ask questions which will help “the explainer” remember.
Students should take turns playing “questioner” and “explainer”.
Assignment: Write 5-10 important questions you would ask the witnesses. Do Witness Quiz (Handouts #16-17). . . .
Day 8: Understanding the Facts through a Venn Diagram Time: 55 minutes Objective:
Create a Venn Diagram to understand facts of the case. Fill out an application for a role in the civil trial. Understand who the witnesses for the defense and plaintiff’s side are in the civil
trial. Materials: Where does the Witness Go? (Handout B), copy Venn Diagram (Handout #13) onto a transparency, copies of Handout #13 for each student, Simon v. Swift and Eastside High School (Appendix A), Job Responsibilities (Appendix G), journal. Introductory Activity (10 minutes):
Practice asking direct and cross questions of witnesses in pairs. o Questions should have been prepared previously for homework (Day 7).
Make sure that the questions on cross are leading and that the questions on direct are open ended.
Activity # 1 Venn Diagram (15 minutes):
Have students fill out worksheet #9 and go over the answers together as a class. Now pass out Venn Diagram (Handout #13) and place facts in the appropriate
sections of the Venn Diagram. This creates a visual of the facts which are solidified on each side and those that are debatable.
Now have students create 10 more questions for witnesses based on the “debatable” facts in their journals.
Activity #2 Voices from the Corners of the Room (15 minutes):
Identify 6 “corners” of the room as the 6 witnesses. Have 6 student volunteers play each witness role. The remaining students should be split up into groups that will rotate around the
room. Each student should ask one of their questions to the witnesses until all questions
are answered or the time runs out. Final Activity (10 minutes):
Have students fill out Role in a Mock Trial (Handout #18) and turn in before end of class.
Assignment: Work on questions for witnesses. Go over witness statements again. . . .
Day 9: Objections Time: 35 minutes Objective:
Students will learn the correct manner to object in a civil proceeding. Students will go over objections in a civil proceeding Students will write cross and direct examinations questions.
Materials: Simon v. Swift and Eastside High School (Appendix A), role assignments, journal Introductory Activity (10 minutes):
Announce roles Talk about roles and what is expected.
Main Activity (20 minutes):
Go over objections (case materials provide some aid) Make sure students know to:
o Stand when objecting Types of Objections:
o Asked and answered o Leading question o Irrelevant o Not in the scope of the civil trial
After the objections are understood have students practice using them in groups of two.
Students should write objections in their journals. Assignment: Write in journal a second prediction of how the case will turn out and supporting reasons. . . .
Day 10: Opening and Closing Argument Time: 45 minutes Objective:
Write an opening and closing argument Put case facts in sequence
Materials: Simon v. Swift and Eastside High School (Appendix A), pencil, paper, Timeline for Simon v. Swift and Eastside High School (Handout #10) Introductory Activity (10 minutes):
Brainstorm with students the important facts of the case and write them on board. Have students tell you which came 1st, 2nd and so on.
Talk to students about the importance of conveying a clear picture of the events in an opening statement and how a closing should answer all the questions a judge may have concerning the case.
Activity #1 Sequence (15 minutes):
Have students try to write the facts in order without using case materials in pencil. After everyone has tried to do it without the case materials, split students into
groups of 2-3 and have them work together to put facts in order. Students may use case materials. Compare their notes with Timeline for Simon v. Swift and Eastside High School (Handout #10).
In the alternative, give students 10 of the main facts from Timeline for Simon v. Swift and Eastside High School (Handout #10) out of order and see if they can decide the correct order for the events.
Activity #2 Opening & Closing (15 minutes):
Students should now write a short 2-3 minute opening and a 2-3 minute closing in their journals.
Assignment: read over opening and closing paragraphs and edit them for accuracy and flow. Opening should create a picture of the events that occurred according to the Plaintiff or Defendant. . . .
Day 11: First Practice Trial Croatian Law: “It is based on two important principles: division of power in the government and the rule of law.” –Dunja Kuecking and Millivoje Zugic from http://www.llrx.com/features/croatia.htm Time: 40 minutes Objective:
Practice mock trial as an entire class.
Materials: Simon v. Swift and Eastside High School (Appendix A) Introductory Activity (5 minutes):
Share predictions of case results. Main Activity (30 minutes):
Run through entire trial
Assignment: Work on role and suggestions made by the teacher during the practice run of the mock trial. . . .
Day 12 & 13: Mini Trials Time: 40 minutes Objective:
Students will rehearse civil trial from start to finish in small groups. Materials: students should be working with limited scripts and/or notes Introductory Activity (5 minutes):
As a whole class discuss what they learned about their roles. Main Activity (30 minutes):
Split groups into: o Witnesses (all 6) should work together on their roles and practice with
each other o Judges & Clerk: the three should go over the procedure of the trial and
their roles. • Judges should prepare practice their prepared questions.
o Plaintiff’s Counsel: the group should work on making sure that they have opening, direct/cross of witnesses, and closing
o Defense Counsel: the group should work on making sure that they have opening, direct/cross of witness, and closing
Assignment: Practice your role. Call each other on the telephone and practice. . . .
Day 14 and 15: Dress Rehearsal Time: (40 minutes) Objective:
Rehearse a civil trial from start to finish without a jury
Materials: students should be working with limited scripts and/or notes Main Activity: Run through the trial twice from start to finish. . . .
Day 16 & 17: MOCK TRIAL DAY! “Using a mock trial to link the justice system of Croatia and the United States.”
–by Susan Marcus
There should be one guest judge for each day. This person can be a member of the community, a principal, attorney, parent who is familiar with the case and with the purpose of the lesson.
Remember that judges play a vital role in a Croatian civil trial and thus it is essential that the judges are familiar with their roles.
If a guest is not possible for both days the teacher may substitute. If at all possible the venue for the trial should be somewhere other than the
classroom. Perhaps the school library, auditorium, or even the local courthouse. . . .
Day 18: Debrief “Injustice anywhere is a threat to justice everywhere.” –Martin Luther King, American Civil Rights Leader Time: 40 minutes Objective:
Debrief of trial with a chance for everyone to speak Fill out evaluation of mock trial
Materials: Debrief Mock Trial (Handout #19) Introductory Activity:
Students should take 10minutes to fill out their evaluations forms individually. After students are done a whole class discussion should occur.
o Go over the questions in the evaluation and o Talk about any procedural failures o How they would have made it better o What kind of cases they would like to work on in the future.
Main Activity: What are the similarities and differences b/t the mock trial and the real case?
. . . Where to go from here... After completing your Croatian Mock Trial you may want to continue. These are just some ideas:
You could now do the civil or criminal case Do a U.S. Mock Trial Take the students on a field trip to a local courthouse for a tour Study the advantages and disadvantages of jury trials
HANDOUT A
WHAT’S THE ORDER? My name is: _________________________________________
1. Put the following steps in a civil trial in the correct order. Assume you are in the United
States:
___ Swearing in of Plaintiff’s Witness #1
___ Direct examination of Defense’s Witness #1
___ Case is called to order by bailiff and case is named
___ Judge’s instructions to jury
___ Jury announces decision
___ Cross examination of Defense’s Witness #1
___ Closing argument by Plaintiff
___ Rebuttal by plaintiff
___ Cross examination of Plaintiff Witness #1
___ Opening Statement by Defendant
___ Swearing in of Defense’s Witness #1
___ Direct examination of Plaintiff Witness #1
___ Opening Statement by Plaintiff
___ Closing argument by Defendant
___ Swearing in of jury
2. Please cross out the three steps that do not occur in a civil trial in Croatia.
HANDOUT B
WHERE DOES THE WITNESS GO? My name is: _________________________________________
Please place the witness in the correct column.
1. Kelly Simon 2. Morgan Pearce 3. Lynn Roper 4. Terry Swift 5. Aubrey Brady 6. Jamie Hagar
Witnesses for the Plaintiff Witnesses for the Defendant
I
AMNESTY INTERNATIONAL
FAIR RIGHTS TRIAL ACTIVITY:MOCK TRIAL
FAIR TRIAL RIGHTS ACTIVITY: A MOCK TRIAL 1
FAIR TRIAL RIGHTS
A Mock Trial
Purpose: To allow participants to understand what is meant by a “fair trial” and an “unfair trial.” Through this activity, participants will become aware of a fair trial as a basic human right, and of the various components that make up a fair trial.
Materials: Blackboard or chart paper, chalk or markers, pens and paper. Settings: High school - Adult groups Handouts: Handout 1: Basic International Standards for a Fair Trial Handout 2: Trial Worksheet Time: 1. What are rights? 10 min.
2. What happens in a trial? 15 min. 3. What are the basic international fair trial standards? 20 min. 4. Mock trial 30 min. 5. Discussion and action 15 min.
Total Time: 90 min. (11/2 hours) Questions: Please visit our website at www.amnestyusa.org/international_justice/fair_trials
PART I: WHAT ARE RIGHTS? (10 mn)
Ask participants the following questions. Allow them to answer and write answers on the blackboard. 1. What are rights?
Claims or freedom to be, do or have something. Example: Her rights are protected by law. 2. What are some examples of rights?
Examples: right to life, right to be free and equal, right to be free from discrimination, right to be free of torture, right to a fair trial, etc. For a list of rights, please see the Universal Declaration of Human Rights, http://www.amnestyusa.org/udhr.html
3. How are these rights relevant to someone suspected of having committed a crime or someone on trial
for a crime? ð See AIUSA’s Fair Trial Rights FAQ at
www.amnestyusa.org/international_justice/fair_trials/qa.html
PART II: WHAT HAPPENS IN A TRIAL? (15 mn)
Ask participants to describe what happens at a trial. Ask them for examples they have heard about, seen in movies or on television, or read in books or newspapers. For example: Where does a trial take place? What is the purpose of a trial? What happens at the beginning of a trial and at the conclusion of a trial? Who are the parties at a trial?
Amnesty International USA International Justice and Accountability Program
FAIR TRIAL RIGHTS ACTIVITY: A MOCK TRIAL 2
Go over key vocabulary terms. Ask participants to give an example for each term. Trial: The examination of evidence and law
to decide a case brought to court. Example: The trial is about to begin.
On trial: In the process of being tried, as in a
court of law. Court/Tribunal: A meeting of all persons who are
involved in a situation that needs a legal judgment or decision. This might concern whether someone has committed a crime or to settle a disagreement or to reach a decision about how the law will be carried out in a particular case. A court usually consists of a judge or judges, a jury, lawyers, people who assist them, and sometimes trial observers. A court can be national or international or set up for a particular conflict. Example: The court will continue tomorrow morning.
Law: A set of rules established by custom,
agreement or authority. Fair: Consistent with rules, logic, or justice.
Not in favor for any one more than another.
Unfair: Not fair. Contrary to the rules. Marked
by injustice. Defendant/ the accused: A person against whom a legal action is
brought. Jury: A group of people chosen to listen to
the evidence in a law trial, and then to reach a decision or verdict.
Judge: A public official who hears and decides
cases brought before a court of law. Lawyer: A person whose profession is to give
legal advice and assistance to clients and represent them in court or in other legal matters.
Defense lawyer: The lawyer representing the defendant. Prosecutor: A government attorney who represents the state’s case against the defendant in a criminal trial. Trial observer: An person, whether from a foreign government or a non-governmental organization, who attends legal proceedings and evaluates whether all international fair trial guarantees are respected. Detain: To keep in custody or temporary
confinement. Example: The police detained several suspects for questioning.
Detainment: The condition of being detained .
Example: The man wanted to know why he was kept in detainment.
Arrest: To detain under the authority of law. Innocent: Not guilty of a specific crime or offense;
legally blameless. Example: He was innocent of all charges.
Guilty: To be found to have committed a crime
by a court of law. Prove: To show that something is true or
correct. Example: He was able to prove the man set the fire.
Justice: Being fair and right, especially in the
way decisions are made in applying rules or the law.
Equal: Having the same rights and opportunities as others. Covenant: A binding agreement between states
(also called convention or treaty) Article: A section of a document that deals with
a particular point. Example: There are thirty articles in the Universal Declaration of Human Rights.
FAIR TRIAL RIGHTS ACTIVITY: A MOCK TRIAL 3
PART III: WHAT ARE THE BASIC INTERNATIONAL STANDARDS FOR A FAIR TRIAL? (20 mn)
Handout 1: Basic International Standards for a Fair Trial. Ask participants, “what is a fair trial?” Explain that a fair trial is a basic human right. While distributing Handout 1, clarify that the handout is based on the International Covenant on Civil and Political Rights (ICCPR), but that other documents outline fair trial rights as well, such as the U.S. Constitution, the Universal Declaration of Human Rights, the International Criminal Court Statute and the Geneva Conventions. Ask for each participant to read out loud one standard outlined in the handout. Ask participants what may be meant by each? Ask them to give examples.
ð For more information, please see AIUSA’s Slideshow on Fair Trial Rights at www.amnestyusa.org/international_justice/fair_trials
PART IV: MOCK TRIAL (30 mn)
Handout 2: Trial Worksheet Split the participants into two groups to create a skit of a trial. Hand both groups Handout 2 titled “Trial Worksheet .” Group A will create a scene with an unfair trial that violates the defendant’s rights. Group B will create a trial that is fair and which applies the international standards just covered. They will have 20 minutes to organize and rehearse their skits. Participants will have 10 minutes to perform their skits (five minutes each). Start with the unfair trial and end with the skit that shows a fair trial. Before participants start organizing their skits, remind the group of some important roles at the trial – using handout 2 as a guide. Give the group questions to consider answering before rehearsing their skits, for example:
1. Was the arrest carried out according to procedures established by law? 2. Was s/he detained before trial? If so, for how long? 3. Was s/he informed promptly of the charges against him/her and of his/her rights? 4. Was s/he detained in humane conditions? Did s/he have access to food, bedding, clothing and medical
care? 5. Did s/he have the right to a lawyer during the interrogation and the trial? 6. Was a “confession” made? 7. Was s/he tortured? 8. Was s/he provided with adequate time and facilities to prepare a defense? 9. Did s/he have access to the outside world (family, lawyers, the International Committee of the Red Cross)? 10. Did s/he receive a public trial? Was the trial open to observers? 11. Was s/he present at her/his own trial? 12. Was s/he discriminated against on the basis of race, color, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status? 13. If s/he did not understand the language spoken in court, did s/he have access to an interpreter? 14. Was the trial carried out by a competent, independent and impartial tribunal established by law? Was the
judge impartial, for example? 15. Was s/he presumed innocent, and treated as innocent, until and unless s/he was proved guilty? 16. If convicted, was s/he convicted based on secret evidence? 17. Did s/he have a right to appeal?
FAIR TRIAL RIGHTS ACTIVITY: A MOCK TRIAL 4
Part V: DISCUSSION AND ACTION (15 mn)
At the conclusion of both skits, ask participants why the first trial was unfair. What rights did the unfair trial violate? Then, ask them why the second trial was fair. Ask if and how they could have ensured more fairness in the second trial? Ask participants, “why should we care whether trials are fair or not?” Ideas for further discussion � No Trial
Suppose there were no trial, but that instead the person being tried was found guilty and jailed because someone said: “S/he did it.” “S/he is acting in a strange way.” “S/he is a danger to society.” “His/Her beliefs are wrong.” “S/he deserves it.”
� Fair Trials and Terrorism
Ask participants whether it would be necessary to sacrifice fair trial standards to prosecute cases involving terrorism. The current U.S.-led war on terror has triggered a debate about whether and to what extent the right to a fair trial may be compromised in the name of security. Does the threat of terrorism make the standards we covered today outdated or irrelevant? Is a court up to the challenge of handling such cases? ð For more information, please see AIUSA’s Fair Trials and Terrorism information page at
http://www.amnestyusa.org/international_justice/fair_trials/terrorism/
� Defending the Right to a Fair Trial Who bears responsibility to ensure that fair trial rights are protected and guaranteed? What can ordinary citizens do to protect fair trial rights?
ð Wrap up the activity with an AI action aimed at defending fair trial right rights. Visit our website
for current actions: www.amnestyusa.org/international_justice/fair_trials, or contact us at [email protected]
FAIR TRIAL RIGHTS ACTIVITY: A MOCK TRIAL 5
HANDOUTS
HANDOUT 1: BASIC INTERNATIONAL STANDARDS FOR A FAIR TRIAL
BASIC INTERNATIONAL STANDARDS FOR A FAIR TRIAL International Covenant on Civil and Political Rights (ICCPR)
§ “Everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.” Article 14(1)
§ “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or
detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” Article 9(1)
§ “Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a
court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.” Article 9(4)
§ “Anyone who is arrested shall be informed, at the time of arrest, of the reasons of his arrest and shall be
promptly informed of any charges against him.” Article 9(2)
§ “Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.” Article 14(2)
§ The accused has the right “[n]ot to be compelled to testify against himself or to confess guilt.” Article 14(3)(g)
§ A person shall be entitled “to defend himself in person or through legal assistance of his own choosing; to be
informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.” Article 14(3)(d)
§ The accused shall be entitled “[t]o have adequate time and facilities for the preparation of his defense and to
communicate with counsel of his own choosing.” Article 14(3)(b)
§ The accused has the right “[t]o be tried without undue delay.” Article 14(3)(c)
§ “No one may be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Article 7
§ “All persons shall be equal before the courts and tribunals…” Article 14(1)
§ The accused shall be entitled “[t]o be tried in his presence.” Article 14(3)(d)
§ The accused shall the right “[t]o examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.” Article 14(3)(e)
§ The accused shall “have the free assistance of an interpreter if he cannot understand or speak the language
used in court.” Article 14(3)(f)
§ “…any judgment rendered in a criminal case or in a suit at law sh all be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.” Article 14(1)
§ “Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal
offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.” Article 15(1)
§ “Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher
tribunal according to law.” Article 14(5)
FAIR TRIAL RIGHTS ACTIVITY: A MOCK TRIAL 6
HANDOUT 2: TRIAL WORKSHEET
TRIAL WORKSHEET Fill in the name of the participants who will act out a trial. Judge: _____________________________________ Police officer: _______________________________ Defendant: _________________________________ Victim: _____________________________________ Lawyer (defense): ___________________________ Lawyer (prosecution): _______________________ Witness: ____________________________________ Witness: ____________________________________ Jury: _______________________________________ Jury: _______________________________________ Jury: _______________________________________ Trial observer: ______________________________
J
DAY TO DAY
TEACHING NOTES
DAY TO DAY – TEACHING NOTES Civil Trial Teaching Plan
CALENDAR OF MOCK TRIAL UNIT: 19 days PROGRAM OBJECTIVES: For the students, the mock trial competition will:
1. Increase proficiency in basic skills such as reading, speaking, critical thinking skills such as analyzing and reasoning, and interpersonal skills such as listening and cooperating.
2. Provide the opportunity for interaction with positive adult role models in the legal community.
3. Provide a hands-on experience outside the classroom (or inside) from which students can learn about law, society, and themselves.
For the school, the competition/demonstration will: 1. Promote cooperation and healthy academic competition/demonstration among students of
various abilities and interests. 2. Demonstrate the achievements of middle school students to the community. 3. Provide a challenging and rewarding experience for participating teachers.
Letter to Parents about this unit should include a short description of the case and the objectives. Alert that some language is tough. Offer invitation to come to presentation of the trial and to help. Current Events for Teachers:
• Erythropoietin (www.rice.edu/~jenky/sports/epo.html) • Miguel Tejada (www.click2houston.com/sports/18682627/detail.html) • Lance Armstrong (www.latimes.com/sports/la-sp-newswire11-
2009apr11,0,6832923.story) STUDENT RESPONSIBILITIES: Put all your materials and in a separate notebook/folder which is your mock trial casebook. You will use this during the trial and turn in to your teacher as evidence of your work. Keep a daily journal with reflections on the case and include vocabulary & definitions that are new to you. . . .
DAY ONE: • Create excitement! Tell the story of the trial in a dramatic way. • What is a mock trial? How is it different from a real trial? • Practice with a well-known fairy tale. • What do we know about our trial system? How does it work? Diagrams/visual symbols
in small groups to share. Assignment: What do you want to you learn in this mock trial unit?
DAY TWO: • REVIEW: elements of a mock trial, and story of this trial
Warm-up: Hand raiser
• Have you ever known a student who needed a scholarship in order to stay in school? Should the scholarship include both academic and athletic successes?
• Should a coach be responsible for the behavior of members of his sports team? Why or why not?
• How important to an athlete is the opinion and advice of his/her coach? • Who has the most influence on a 17 year old? His parent? His athletic coach? His
principal? His friends? Role models? Who else? • Have you known someone who would take risks to his/her health to win a competition? • Do all athletes use drugs that would enhance their performance? If so, why? If not, why
not? • How much do signed contracts influence a student’s actions? • If you wanted to prevent substance abuse in a high school setting, what actions would
you take? • How much should a parent know about the drug use of her/his child? How much should
the student know? Why? • Does availability of money encourage students to make bad choices? Why or why not? • What does it take to be a winning competitor? • Do high school students believe that they are invincible (not in danger of dying) because
they are young and bad events only occur to others? If so, why? If not, why not? • Are school administrators responsible for the action or lack of action of coaches/teachers
who work at the school? Why or why not? • Do private schools have more, less or the same responsibility to their students as public
school? Why or why not? • Can a 17 year old make judgments about what is best for him without advice from a
parent or coach? 1. What are the claims in this civil case? This is a civil case where the defendant and an organization are accused of negligence/wrongful death. What does that mean? What is the name of this case? See page 55 and 56 through section 3 for wrongful death definition and defenses. This is a civil case where the defendants and an organization are accused of wrongful death http://en.wikipedia.org/wiki/Wrongful_death. Wrongful death is a claim in common law jurisdictions against a person who can be held liable for a death. The claim is brought in a civil action, usually by close relatives, as enumerated by statute. Under common law, a dead person cannot bring a suit, and this created a legal hole in which activities that resulted in a person's injury would result in civil sanction but activities that resulted in a person's death would not. Unlike most criminal law cases, private parties bring the suit. In principle, the defendant can refuse to testify on the grounds of self-incrimination.
The standard of proof in the United States is typically preponderance of the evidence as opposed to clear and convincing or beyond a reasonable doubt. 2. Read the Summary of Case aloud What is the name of this case? How do you know it is a civil case? Who presents their case first? Why? Walk through of the mock trial booklet. Point out resources following the exhibits so students will know where to go for help. Mini-journal: Pick a fact you think is most important and write about it. Assignment is to re-read the statement of facts, pages 1-6. Invitation to read ahead to witness statements. Vocabulary activity: Part of mock trial notebook assignment which could have a personal vocabulary section or words could be defined and posted in the classroom: negligence, comparatively negligent, wrongful death, plaintiff, affidavit, steroid, liability, duty, breach of duty, affirmative defense, impeach, steroid Erythropoietin, blood viscosity, allegations, exercise physiology, anabolic steroids, glycoprotein hormone, Synthetic EPO, “blood doping”, notoriety, controlled substances, compliance programs, deterrent, Zero Tolerance Policy, paraphernalia. . . . DAY THREE: Warm-up: What is this case about? 1. Read aloud Complaint pages 3-4 (stopping to make sure that it is understandable) Write key points on overhead or poster paper or chalkboard. Consider a visual or list of key words. This is the backbone of the Plaintiff’s case. Ask for most significant claims: underline, star, highlight. 2. Read aloud Answer to Complaint for Wrongful Death pages 5-6 This is the backbone of the Defendant’s case. It helps to have a copy of the Complaint For Wrongful death to look at side by side. Perhaps copy the pages if turning back and forth is awkward. Ask for most significant defense answers: underline, star, highlight 3. Remind students of the difference between standards for proof in civil vs. criminal case Standard proof in a civil case: Preponderance of evidence: more than 50% or more likely than not. See page 56. 4. Begin animated read aloud of witness statements by adults and/or talented student readers Consider suggesting that students close their books and just listen. Use table of witnesses to take notes of words you heard. After each witness statement, ask for facts that are remembered. Star most important facts. Switch from Plaintiff to corresponding Defense witness. Do not go in trial
booklet order. Kelly Simon, Jordan’s surviving parent pages 7-10 P and Terry Swift, Eastside’s track coach pages 22-26 D. Open your booklets and underline facts that are most important. Mini-journal: Write your impressions of the witnesses you heard about today. Assignment: Re-read the witness statements p 7-10 and 22-26. Invitation to read ahead to other witness statements. . . . DAY FOUR: Warm-up: What do you remember from yesterday’s witness statements? 1. Continue animated read aloud of witness statements by adults and talented student readers Consider suggesting that students close their books and just listen. Complete the reading of any witness statements that have not been read aloud. Morgan Pearce, another student on the track team and Jordan’s close friend pages 11-15 P and Jamie Hagar, Ed.D, Eastside’s assistant principal and athletic director pages 27-32 D. 2. Talk about the special role of expert witnesses Lynn Roper, Ph.D., an expert on the effects of steroid abuse and the use of steroids by young athletes pages 16-21 P and Aubrey Brady, a consultant to coaches and athletic departments pages 33-39 D. After each witness statement, ask for facts that are remembered. Open your booklets and underline facts that are most important. Another possible strategy for witness statements:
• Divide into PAIRS to learn witness statements. • Roles in pairs [7-10 minutes]; Switch roles after a few minutes • One is questioner: ask questions that help your partner remember; be kind and gentle;
correct factual errors in a polite way • One is explainer: tell your partner what happened or what did you find out?; summarize
the facts; pretend that your partner did not read the facts • Refer to the facts on paper when you wish
3. Go back to warm-up questions and connect them to the witness statements • Have you ever known a student who needed a scholarship in order to stay in school?
Should the scholarship include both academic and athletic successes? • Should a coach be responsible for the behavior of members of his sports team? Why or
why not?
• How important to an athlete is the opinion and advice of his/her coach? • Who has the most influence on a 17 year old? His parent? His athletic coach? His
principal? His friends? Role models? Who else? • Have you known someone who would take risks to his/her health to win a competition? • Do all athletes use drugs that would enhance their performance? If so, why? If not, why
not? • How much do signed contracts influence a student’s actions? • If you wanted to prevent substance abuse in a high school setting, what actions would
you take? • How much should a parent know about the drug use of her/his child? How much should
the student know? Why? • Does availability of money encourage students to make bad choices? Why or why not? • What does it take to be a winning competitor? • Do high school students believe that they are invincible (not in danger of dying) because
they are young and bad events only occur to others? If so, why? If not, why not? Assignment: Learn the names of the six witnesses. Read through the official exhibits. (What will each exhibit help to prove and which is the most important?) Mini-journal: Write your impressions of the witnesses you heard about today. . . . DAY FIVE: Warm-up: Teacher or student says a fact: Students say the correct name of the witness who said it. 1. Exhibits: pages 40-54 What will each exhibit help to prove and which is the most important? Assign one to each participant to read and report back. Divide into pairs to look at various documents and report back to class. Who will testify using these exhibits? Why are the documents important for this trial? What will each exhibit help to prove and which is the most important? Procedure for introduction is on page 64 or consider a simplified version which allows opposing counsel to object or not. 2. Divide into six witness groups Report the main facts to the class as if you were that witness. Begin to get into character. 3. Witnesses on each side of the case Meet in 3’s and discuss common themes Mini-journal: Write your impressions of the witnesses you heard about today. . . .
DAY SIX: Warm-up: Review of theories of the case for Plaintiff and Defense. “If you were on the Plaintiff team, what would you emphasize?” “If you were on the Defense team, what would you emphasize?” 1. Go over the steps in a civil mock trial Copy Steps in a Civil Trial (Handout #3) onto an overhead.
STEPS IN A CIVIL TRIAL 1) Filing complaint 2) Answer 3) Research by attorneys 4) Call to order by bailiff and naming the case 5) Jury selection 6) Swearing in of jury 7) Opening statement by Plaintiff 8) Opening statement by Defendant 9) Swearing in of witness 10) Direct examination of Plaintiff Witness #1 11) Cross examination of Plaintiff Witness #1 12) Direct examination of Plaintiff Witness #2 13) Cross examination of Plaintiff Witness #2 14) Direct examination of Plaintiff Witness #3 15) Cross examination of Plaintiff Witness #3 16) Direct examination of Defense Witness #1 17) Cross examination of Defense Witness #1 18) Direct examination of Defense Witness #2 19) Cross examination of Defense Witness #2 20) Direct examination of Defense Witness #3 21) Cross examination of Defense Witness #3 22) Closing argument by Plaintiff 23) Closing argument by Defendant 24) Rebuttal by plaintiff 25) Judge’s instructions to jury 26) Choosing jury foreperson 27) Jury deliberations 28) Jury announces decision 29) If verdict is responsible, damages are to be decided later 30) If verdict is not responsible, case dismissed
(Add judge’s announcement of decision either at the end of the trial or at a later date) Activity: Order of a mock trial. Give out parts with numbers and have students put them in the correct order individually by forming a line. What happens during each step?
Assignment: Write down the 5 or more most important things you would testify to as one of the witnesses. Why are they important to the case? Begin work in teams in class. . . . DAY SEVEN: Warm-up: First prediction of how the case will turn out 1. Divide into PAIRS Review/reread witness statements to each other. 2. One half the class is witness 1 and the other half is witness 2 Stand up and be convincing in your role! Or do a raise your hands if it is about you. 3. Direct Examination of witnesses 3 and 4 Remind students that direct examination questions are designed to get the witness to tell his/her story. Who, What, Why, When, Where, How Assignment: Write 5-10 important questions you would ask the witnesses. Be sure to read the entire statements before you decide what to ask . . . DAY EIGHT: Warm-up: Put names of all witnesses on overhead. Which are for the plaintiff and which are for the defense? Or Corners activity with witnesses: Identify six "corners" of the room as the six witnesses and read parts of testimony. Students (they can work as pairs) go to the appropriate corners. 1. Direct examination of witnesses 5 and 6 2. A. Question game to review case See Witness Quiz Simon Case (HANDOUTS #16 & #17)
• I never got to do the extra training with Jordan. KS • Jordan had started to get some pretty bad body acne. MP • Erythropoietin (“EPO”) is a glycoprotein hormone that is naturally produced by the
kidneys. LR • Jordan was an incredible sprinter for a middle school student. TS • We have a rigid Zero Tolerance Policy when it comes to substance abuse JH • I have been consulting full-time for about seven years now. AB
B. Use timeline to reconstruct order of events How does order affect the themes for the two side?
3. Cross Examination of witnesses Purpose of cross-examination. P 58 Second prediction of how the case will turn out and supporting reasons. Write 5 or more good cross examination questions for the witness you are working on. Do not ask questions which will help the other side’s case!!! Do not ask questions for which you do not know the answer!!!! What is the correct form for cross-examination questions? Question is more important than answer. Yes or No is desirable. 4. What are the most important themes for each side? A Venn diagram to list prosecution on the left and defense on the right with facts that could go either way in the middle. Write an outline of the opening statements for plaintiff and defense. See Venn Diagram (HANDOUT #13) Assignment: Work on your opening statements. Develop a chart for which lists all the key elements on the left margin. . . . DAY NINE: Warm-up: List the elements of an opening statement. (Identify yourself, story from your point of view, introduce witnesses on your side with brief description of their role, claims, what you will prove) 1. Practice writing and giving opening statements for prosecution and defense . . . DAY TEN: Warm-up: Discuss the differences between direct and cross-examination. 1. Opening statements See page 56 for hints for both Plaintiff and Defendant. Divide class in two groups P & D and have each group select one or two to present openings. What did you hear? Listen to both sides without making a judgment. Create a visual of the elements which need to be proved or not proved. Take notes on a divided piece of paper. What is the theory of the case from both sides? . . . DAY ELEVEN: Warm-up: Mention one important point from the opening statements for both P and D
1. Practice writing and giving closing arguments for both sides See page 59. How are closing arguments different from opening statements? Hints: mention witnesses from both sides but only testimony that supports your theme and weakens case of your opponent. Look for contradictions on other side. “We have proved with a preponderance of evidence…” Close with specific request to the jury. Improve your closing arguments after hearing some of them aloud. Try a chart with key elements of closing arguments on left margin. 2. Shorten objections to top three Objections on page 63. Study objections and write an example of one of the following objections. Outside the scope of the mock trial materials: how far can we go with logical assumptions?
• Leading question during direct examination: Why is this form objectionable? Do we pay attention to the question or the answer?
• Not being courteous to the witness/rudeness/badgering: How is this objection different from behavior on TV court dramas?
• Irrelevant: Why would we want a person to testify only about the facts which will help us deal with this case?
• Hearsay: Why is it important to be able to cross-examine the witness who actually made the statement? This can be complicated because of exceptions!
What is the correct form for making an objection? Practice!! 3. Review objections and form for objections “OBJECTION, Your Honor” Stand. Do not yell. Always say thank you after ruling. Asked and answered, leading, irrelevant, not in scope of mock trial. Why do we have objections? Which is the most important objection and why? Practice objecting to objectionable questions. Homework: Read through witness statements for possible material that might be objectionable. . . . DAY TWELVE: Warm-up: Teacher asks questions and students decide whether it is objectionable. 1. Fill out applications for roles in the mock trial Describe roles and skills needed but be very encouraging. Consider an in-class “walk around” that affirms skills of classmates prior to filling out applications. “You would be a terrific lawyer because you know how to convince others”. Roles:
• Judge(s) 1 or 2 • Witnesses (6 or 12) including defendant, • Lawyers P and D (8 for each side) • Clerk (1) • Bailiff (1)
Another possible strategy for role selection:
• Put roles in a hat and have students pick. • Teacher may pick students based on knowledge of work ethic.
2. Use chart pack or overhead for this activity Key vocabulary: example of web site for help with legal words.http://www.legal-definitions.com 3. Identify potential issues and problems in testimony Examples include poor parenting of the mother, self-interest of the track coach, ignoring signs of steroid use. Determine how to balance the two expert witnesses. Assignment: Second prediction of how the case will turn out and supporting reasons. . . . DAY THIRTEEN: Warm-up: What are the questions you think a jury or judge might have about this case? 1. Assignment of roles in mock trial Roles are announced. This is a team effort. Every role matters! 2. Go around class Every student talks about his/her role. What will you need to do? A one minute trade time is a possibility before the roles are definite. 3. Get in groups of P and D Agree on theme for your side of the case. Write 5 or more good cross examination questions for one witness. 4. Use Job Responsibilities (Appendix G) Establish smaller working groups. Get into these groups and begin working. . . . DAYS FOURTEEN AND FIFTEEN:
• Preparing for the Trial • Copy all work in case someone is absent on the day of the trial
Warm-up: What did you learn about your role yesterday? Smaller Work groups look like this:
• Form groups of three: Witnesses for both sides
• Form group of 3 or 4: Judge(s) + Clerk + bailiff. • Judges’ decisions: objections and instructions to jury • Writing the judge’s instructions to the jury
Form two large groups:
• Plaintiff in one group. Defense in other group. • Assignment: Practice your role. Talk on the telephone • MAJOR TASK IS TO DEVELOP A THEME. • Another grouping possibility. • Attorneys + 3 witnesses for plaintiff • Attorneys + 3 witnesses for defense
Time limits (some suggestions):
• OS=3 X2=6 minutes • Direct/Cross of witness= 5 minutes X 6= 30 minutes • CA=3 X2=6 minutes • TOTAL = 42 minutes • Jury deliberation: rest of class listens quietly= 20 minutes
Warm-up: Review of case searching for commonalties among witnesses. What do they all agree on?
1) Ask students to generate what skills are needed for being effective in your part and your side of the case? Include skills such as eye contact, strong voices, posture, staying in role.
2) Working groups. Be sure that opening and closing lawyers work together. This is a good time for help from high school mock trial students/adults.
3) End of class: report progress or problems . . . DAY SIXTEEN: 1. First run through of trial Ask for constructive suggestions 2. If time, another practice run or re-do parts that need more practice Jury: use members of your own class or invite students from another class. (Prepare other class by clarifying the juror job) Jury ballots. Note: Remind lawyers doing closing arguments to ask judge(s) for a few minutes following all the testimony to work on closing in partnership with the openers. . . .
DAYS SEVENTEEN AND EIGHTEEN: Mock trial in class! . . . DAY NINETEEN:
• Debrief and celebrate. • Debrief of trial with a chance for everyone to speak • Written debrief of trial: What I learned... See Debrief Mock Trial (Handout #19)
How well did we achieve our goals? Please assign a number to each goal and explain your rating (1 is low and 5 is high). Goals: To use the Mock Trial vehicle in order to... 1. Help students understand more about the legal system ______ What do you understand now that you did not know before? 2. Encourage students to think about elements in the justice system, which relate to their lives such as preponderance of evidence, expert testimony, intent, individual responsibility and the concept of damages as compensation for wrong actions. ______ How did pressure to succeed in a sport and be eligible for a scholarship play a part in this mock trial? 3. Teach some basic skills such as reading, speaking, critical thinking, listening and cooperating. ______ Which of these basic skills did you use? Why did you need them? How important was working with your group? . . . ADDITIONAL CLASSROOM ACTIVITIES: Re-visit mock trial: improvements and strategies for students What modifications would you make to a mock trial to make it successful in your class? What suggestions do you have? What questions and/or concerns do you have?
Classroom activities connected to the mock trial: • Practice suggestions for students: work groups, rehearsals, juror activities • Jury deliberation: rest of class listens quietly • Judges’ decisions: objections and instructions to jury • Rewriting the judge’s instructions to the jury • Juror activities • Choosing roles in the mock trial • Use of resource persons in the classroom • A counselor or expert on EPO/substance abuse expert/medical person would make an
important contribution to this topic. Additional Research options: World Wide Web and other sources Other strategies and resource materials: case studies, take a stand, etc. al. Should drug testing be mandatory for all high school athletes?
