Wednesday, December 12, 2018

Mock Trial Witness Workshop "Strategies"

 How to be a witness 

Develop a character and always stay in character.
General guidelines in court procedures
Specific rules for witnesses

Develop Your Character    "Think in Character"
When you receive your case booklet

Read your witness statement

Before you can portray a character

(Hand out random witness statements) 

You need to think in character   "Think in Character"
Write a short biography & include. . .
Where were you born?
How old are you?
When is your birthday?
Where do you live/address?
Do you have a job?
Who are your friends?
What are your sports/hobbies?
What's your favorite thing to do?

"Think in Character"

As you write your biography. . .
You begin to think in 3 dimensions
You start thinking as a real person

Spock/Leonard Nimoy:  The more I cloaked myself in the character, the more comfortable I became.

"Think in Character"

Make a list of your likes (5)

Leonard Nimoy -- as he stayed in character more and more, he became the Spock character.   He used his own background and emotions to build the character on.

Make a list of your 5 dislikes (5)

"Think in Character"
Categorize your character

"If I were a movie, what would I be?
"If I were a book, what would I be?"
"If I were a car, what would I be?"
"If I were a pet, what would I be?'
"If I were a song, what would I be?"
"If I were an insect, what would I be?"

 Do you see how this can help? 

  • As your imagination fills in the grey areas. .  A personality will emerge.
  • Next, talk about yourself out loud.  Tell your parents and friends who you are.  Have your friends ask you questions.
  • (Example:   witness named Luna Phoenix -- judge asked her about her unusual name -- she told him her parents' names and that they were flower children -- products of the sixties. 
  • Can pick a person to imitate.  
  • Talking allows you to continue to develop your character.  
  • Present your character in a realistic manner during trial.

 Courtroom Basics 

  • Dress appropriately
  • Sit together in court, sit in order of appearance -- (arrange so you are not climbing over each other to get out)
  • Stand, then introduce yourselves  -- 
  •     Good evening/afternoon/morning, your Honors.  I am (first name, last name, spell last name if it is unclear.  I am the prosecution/defense witness (character name).  
  • Bailiff/Clerk 

 Courtroom Basics
  • When sworn in speak clearly and state "Yes, I do."  
  • Bailiff checks with judge as to how witnesses will be sworn in. 
  • When asked to spell your name "Your honor, I am _________________. . . . "
  • Sit up straight. . . do not rock or swivel.
  • Listen carefully to the questions. . . make sure you understand what was asked. 
  • Answers questions with a yes or not.  (CROSS?)  
  • Witnesses work with your attorneys -- those who will direct and those who will cross. 

 Courtroom Basics  
  • Explanatory answers, look at the judge (so they can see the whites of your eyes) 
    • (yes/no answers at attorney)
  • Always answer the judge with "Yes, Your Honor"  . . . or "No, Your Honor."  
  • Don't panic. . . . 
  • Always stay in character -- never let them see you sweat.
    • I am Spock and Spock is me. 

 Courtroom Basics  Witness #1 Example 

People vs. Markson  --   about 54
confident, quick to respond , competent --  a police officer will tend to keep his answers short and two the point.  (Look at the judge on the bench when giving a narrative.  We watched to 56:41. 

 Courtroom Basics 

During Direct. .. 
know the questions your attorney will be asking
practice with your attorney
appear confident and trustworthy
Be sure your testimony is consistent with your witness statement 

 Courtroom Basics 

If a map or something else that requires you to stand
map (evidence poster) make sure you do not block it from the judge(s) 
No markers -- 
No pointers  -- finger only 
     If the attorney asks permission for you to approach the map/evidence poster. . . . 
Don't block the vision
If asked "do you recognize?"  
Follow the attorney's instruction 

 Courtroom Basics  example    

Expert witness
clarified answers in cross 
calm, collected, professional 
at poster, looked at it first, did not block it, pointing to exactly where you need to post

about 1:02-1:03  -- showing on evidence poster 
No objections as long as the defense is allowed to. . . .

 Courtroom Basics

During cross
  •     Cross can be tough, so. . 
  • Anticipate questions that will be asked and prepare answers
  • Act confident. . 
  • Always speak loud and clear.
  • Be responsive -- listen and think before you respond
  • Give only the facts, as you know them
  • never be defensive 

  Courtroom Basics  example     how use voice and hands 


  Courtroom Basics 
Witness is the expert on his or her statement 
Know it backwards, forwards, sideways
Practice!  Practice!  Practice!  

   Courtroom Basics 
A witness can only testify to his or her own witness statement.
or the fact situation if it would be reasonable for him or her to have knowledge of that

Be sure that your testimony  

you don't want to be impeached 

You made a witness statement
and you were truthful  as you made that. . . 
attention to page, line 
show how it affects the case. . . relevance . . . 

 Courtroom Basics  example   

about 1:23 direct and cross  -- impeachment at about 1:27 plus 

 Rules for Witnesses 
  • Witnesses cannot use notes.
  • All witnesses must be called (5 Pt.)
  • Witnesses cannot waste time (run time)  (running of the time) - 3-6 points
  • [When you walk in, you've got a seven.  Mrs. Dyatt tells the judges that.  Judges go up and down from that.]
  • If forget or get impeached, could lose three points -- three judges 
  • Witness statements are the statements given to the police. 
  • Witnesses may be impeached.
  • Witnesses are not to use costumes, inappropriate attire, or costume makeup.
  • Use our normal speaking voices, not ethnic or unrealistic accents.  
  • Do not use monotone voice.

Courtroom Basics  example  
monotone -- blonde wife  About 1:30 
attorney defended objection -- Your Honor, may I be heard   

Rules for Witnesses

Do not leave the courtroom until trial is over -- recess only
No talking with anyone outside the well until the trial is over 

Most important strategy  -- Practice, practice, practice 

Most important Rule -- have fun!   

Tuesday, December 11, 2018

December Training

Rules of Evidence
Our rules are being adjusted to more closely match what goes on in real courts.
In a trial, do not ask a judge to look at the Guidance.

Try to stop evidence from coming in by making an objection.

This is a process you can go through when deciding whether an objection is needed.
Quick Objection Thought-Checklist 
➽  Is the form of the question proper?
example direct, non-leading questions; cross, leading questions
not ask for narration

repeating same question
compound question -- asking two questions
on page 4 mostly same as previous years

page 5 Beyond the Scope  -- limited to the scope of the examination of the direct
  only applicable in redirect and recross  in Mock Trial 
do NOT use it to cover outside of the witnesses affidavit -- inventing a fact

Real lawyers make these objections all the time.
Judges will be listening for badly worded questions, too.

➽  Is the witness reliable?  
Lack of personal knowledge
Can the witness testify about the what the witness is being asked to testify about?
Witness must have personal knowledge.
"When did the intruder come into your house?"  Already there
"What time do you thing the intruder came into your house?" speculation
This witness does not have personal knowledge of when the intruder came in.
speculation  We're asking this witness to guess about when the intruder came into the house.

Lack of foundation page 11
sufficient basis for the evidence -- we know that the witness had knowledge of it.
defense puts the police report in front of Mama Bear -- Objection -- lack of foundation

Improper Opinions -- 
Lay person can give opinions if relevant, helpful, based on rational perception
"When the mysterious person got up, did you think she was drunk?"
Your Honor, the witness can testify to what she saw.  Swerve, fall down, hick up -- some of the signs that most people would recognize.
Was the figure showing any signs of drunkenness?
It would take an expert to determine if a person were drunk.
Did the perpetrator vomit?  smell of alcohol?
Was there anything about the behavior of this person that was unusual

"In a hit and run -- they tore through the intersection at an outrageous rate of speed.  I thought they were going much too fast for the conditions."   Is it relevant? 

Asking a witnesses opinion is almost always objectionable for a lay witness.
for damages -- "How do you think this affected Baby Bear?"   civil case -- relevant to damages

More, what did you see than what did you think.

Improper expert opinion (page 22) Change in rules. 
Experts get to give their opinions even if they were not there.
Those not expert witnesses called fact witnesses.

reliable applied methods, expertise can be based solely on experience
must be helpful,

Your Honor, I ask that you qualify this witness as an expert in the area of. . .  
(not usually done in real courts)
Instead now, set up expert's qualification, set up methods used, ask expert opinion (at this point an objections could be lodged)

How many times have you. . .
have you had occasion to examine (this type of evidence)
what methods have you used in these . . .
have you had occasion to examine the . . . in this case. . .
What methods did you use in examining?
How did you investigate to determine the source of this hair?

education, training, helpfulness

ultimate issue -- different from real life
An expert cannot give No-one cannot give an answer
Cannot ask anyone if the defendant is guilty or innocent
but can ask the defendant -- did you?
cannot ask whether Goldilocks was guilty of burglary
but can ask whether opinion is that Goldilocks was in that house.

Rule 705
Does not have to testify about all of the facts --in direct -- for questions to be asked in cross.

Reliability -- Objecting to invention of material fact
Invention of Fact -- Use to be unfair extrapolation
How stuck are you to your witness statement?
Rule 614A
If not likely to affect the outcome of the trial
developing character
color of house, had stopped at grocery store
NOT -- night vision glasses
if objections -- cite the rule number 
an improper invention of fact as identified in rule 614A
answer -- will not affect the outcome of the trial 
bound by witness statement 
"went to sleep"  went?  
any time deviate from witness statement, run the risk of getting objection 
most convincing witness, most effective attorney -- win by points 
adding characterization to make witness believable 
Rule 614B 
not ask a question -- about not in statement 
if a cross-examining attorney asks question not in statement 
 -- material -- I don't know, I didn't see that ("It's not in my statement"  not affective 
The opp. attorney is asking a question that is not in the statement, but judges do not like having to go through the statement. 
"It seemed important when I was telling my story today, but didn't seem important at the time when I gave my statement."

expert -- do not make up facts to elevate the witness

refreshing the witnesses memory 

cross -- not object during direct, but can impeach later 

➽  Is the testimony relevant?
Does it matter?  Why does it matter?  Are there bad facts that might influence the case.
"Ms. Bear, isn't it true that you cheat at your neighborhood pinochle games every week?"
Some facts could be prejudicial  -- the Bear's car a Mazerati?

➽ Is the testimony "too" relevant?
Use number by its number -- NEW --  403
probative value
When someone hears this evidence they will be so biased against the person that they won't give the person a fair trial
too much
may be relevant to character evidence
can admit prior crime, but so bad that prejudicial
embezzled from Grandmother's business
OJ's glove

➽  Is the testimony excluded for policy reasons?  
Rules of evidence where we have said, this might be relevant, but we think it's a bad idea to allow a jury to hear it. 
Privileged testimony -- in national rules  501
Certain types of Character Evidence  404

Rules and Exceptions  Hard, hard, hard 
1. cannot use a character trait to prove that the character acted in compliance with that trait
Goldilocks a loser, a jerk -- 
Cannot use a prior crime, prior act -- to prove that she did it again  
burgled before, burgle again 
Not "He did it before, so he'll do it again."  

If a criminal defendant puts that character trait at question -- Never put your character at issue! 
"I'm a very honest person."  Go to town

Impeachment of a witness for bias, motive  -- less likely to be telling the truth 
      crime of dishonesty, or felony  (imprisonment for a year or more)

exception #3 
motive, intent, modus operandi, 
example -- the bears' door was locked. Goldilocks a witness will testify that GL had in her possession two weeks ago and was using lock picks to enter someone else's house 
to show that she possessed lock picks and had the knowledge to use lock picks to break into a house that wasn't her own 

modus operandi -- Goldilocks found in someone else's house wearing a black suit and arrested for trespassing 
to show identity -- that she had a black suit 
Gets bad stuff in 

I am not offering it to show that the witness is acting in conformity with prior acts, but rather 
has the skill to use lock picks, had lock picks, and 
not offering 
offering to show opportunity and knowledge under 404B

Impeachment  608 and 609  undermining the credibility of the witness 
Bias, motive, and witness are always relevant for witnesses 

NEW -- If the declarant is in court, it is still hearsay.  
Not if the person is a party. 
Any statement offered for the truth of the matter asserted .. . 
for the truth of what it is saying  believe that the statement is true

or offer to prove that the manager had been told that there was water on the floor 
does not show that the water was on the floor, just that the manager was told that

to explain a witnesses subsequent course of conduct 
someone told Mama Bear that Goldilocks did it -- she races to Goldilocks house and yells at her -- 

Witness statements are excluded from hearsay, 
Excluded from hearsay;  admission by opposing party  If Mama Bear goes on the stand "I heard Goldilocks say she did it." 

Judicial notice:  facts not subject to reasonable dispute  
"Your honor, I ask that the court take judicial notice that. . . "
example -- that 6 x 3 is . . . 
Use very, very rarely -- usually establish through your witness.


➽  Should I object now?  Because maybe the objection will be overruled, or is the judge made at me because I have objected too much, or because I will cover that with a question later.

example: Mama Bear on stand,  "Your name is Mama Bear, isn't it"  leading, but don't object -- too early --

Assuming a fact not in evidence -- not introduced in the record -- Mama bear on stand, I ask "because you were tired, why didn't you go to the bedroom first."  Mama never said she was tired.
Assuming a fact not in evidence "When did the police come after you called them?"  -- and never introduced as evidence that they called the police.

Evidence received only by attorney asking question and witness giving evidence
Attorney's questions not evidence
If an attorney believes evidence  --
object and state basis of your evidence  4-5 words
may ask to be heard further  "May I be heard further?"
Ex. if in State Vs. GLocks -- investigator on stand
Attorney asks"What GLocks as a person?   improper character evidence,   relevance, 
Stand up, be assertive, have a loud voice.
If objection -- wait until question is fully asked -- before it is answered. 

If witnesses testimony has become objectionable --
interrupt the witness -- for instance, hearsay -- "somebody told me that she was a despicable person"
Address your responses to the court/the judge.  Do not look at the opposing counsel.
After ruling on objection, do not thank the judge.
If objection is overruled, make sure the witness answers the question.
If evidence has already come in and objection has been sustained, ask court to strike the testimony (from the record).

Case - Criminal
Dec. 1 3:30 pm
state prosecuting Gold E. Locks for burglary and destruction of personal property
Papa 40
Mama 35
baby 8 years old female

spoons on right side of bowl -- porridge eaten from smallest bowl empty
smallest chair destroyed
bedroom separate room --
Baby bear "Someone's been sleeping in my bed -- and there she is."

between 5 and 5 !/2 feet dressed in black
bolts through rooms and out the door
no fingerprints
window ajar
1 golden hair -- identified as human
DNA links to Ms. Locks
excluded from testimony -- analyst convicted of falsifying evidence
Ms. Locks is blonde and
4ft 9 inches tall

Examination of Mama Bear
MB cheats at cards every week --
talk LRR  "Goldilocks told me she was in your house the other night."
1995  convicted of poss honey with narc probation  -- too old, just probation
3 days after event -- saw GL  trying to buy can opener
    I'm left handed, and . . .

If allowed to testify this witness will
admission by a .. . party

Practice with bad questions 

over or under objecting --
your job to protect your witness --  if crossing att. hammering your witness