2010 2011 nebraska high school mock trial...

20102011 NEBRASKA HIGH SCHOOL MOCK TRIAL CASE

STATE OF NEBRASKA VS.

ALEX B. TOAKLISS

BF111963

Sponsored by the Nebraska State Bar Foundation and its State Center for Law‐Related Education

www.nebarfnd.org/mock‐trial

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TABLE OF CONTENTS

MEMO TO PARTICIPANTS .................................................................................................................................... ii ACKNOWLEDGEMENTS ....................................................................................................................................... iii GOALS & MOCK TRIAL OATH ............................................................................................................................. v CODE OF ETHICAL CONDUCT ............................................................................................................................ vi COMPETITION TIMELINE AND DATES ....................................................................................................... vii THE PROBLEM Complaint – Charging Document ..........................................................................................................1‐2 Witnesses, Exhibits, and Stipulations .................................................................................................3‐4 Jury Instructions...........................................................................................................................................5‐6 Nebraska Statutes ..................................................................................................................................... 7‐10 WITNESS STATEMENTS For the Prosecution Officer Conner Nelson ............................................................................................................... 11‐15 Drew Coker .................................................................................................................................... 16‐18 Terry/Terri Smith ....................................................................................................................... 19‐21 For the Defense Alex B. Toakliss ............................................................................................................................ 22‐25 Francis (es) Beck ......................................................................................................................... 26‐28 Brook(e) Johnson ........................................................................................................................ 29‐31 EXHIBITS ............................................................................................................................................................. 32‐47 RULES Index to Rules .......................................................................................................................................... 48‐50 Rules of the Competition .................................................................................................................... 51‐58 Rules of Procedure ................................................................................................................................ 58‐60 Federal Rules of Evidence (Mock Trial Version) ...................................................................... 60‐72 FORMS Official Team Roster Form ........................................................................................................................ 73 Trial Scoring & Deduction of Points...................................................................................................... 74 Presiding Judge's Score Sheet .................................................................................................................. 75 Performance Judge's Score Sheet .......................................................................................................... 76 Suggestions for Scoring and Constructive Critiques .............................................................. 77‐79 Dispute Resolution Form ‐‐ Inside the Bar ................................................................................. 80‐81 Dispute Resolution Form ‐‐ Outside the Bar ..................................................................................... 82 COORDINATORS .............................................................................................................................................. 83‐86 FOUNDATION OFFICERS, DIRECTORS AND STAFF ............................................................................. 87

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NEBRASKA STATE BAR FOUNDATION P.O. Box 95103

Lincoln, NE 685095103 402/4751042

MEMO

TO: ALL MOCK TRIAL PARTICIPANTS FROM: DORIS J. HUFFMAN, EXECUTIVE DIRECTOR RE: 20102011 NEBRASKA HIGH SCHOOL MOCK TRIAL COMPETITION DATE: AUGUST 23, 2010 On behalf of the Nebraska State Bar Foundation, I welcome your participation in the 2010‐2011 Mock Trial competition. This year’s criminal case involves the death of a college student at a Halloween party. Students – You will experience what it is like to prepare for and present a case before a judge. Working with your team and coaches, you will learn to evaluate information and respond quickly. As you prepare, you will sharpen public speaking and presentation skills. The greatest benefit is the opportunity to learn how the legal system works. After the competition, you will have gained knowledge that will be helpful as you become an adult. By studying and understanding courtroom procedure, you should become more comfortable with federal and state laws as part of the legal system. Your interaction with some of Nebraska’s finest attorneys and judges will give you a glimpse of the different interpretations of trial procedure and different approaches of individual members of the judiciary. Teacher Coaches, Attorney Coaches and Judges – I strongly encourage you to focus on the goal of participation by students rather than stressing competition while preparing your case. Your contributions of time and talent are making many experiential educational opportunities available annually to over 1,200 Nebraska students. Your participation is an essential element to the success of this program. You can be proud of the impact you have made on the lives of these students. Please note that the Rule 7 has been modified. If you have any questions, please contact me. Good luck and have fun!

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ACKNOWLEDGEMENTS The Mock Trial Project is administered and funded by the Nebraska State Bar Foundation and supported by hundreds of volunteer lawyers each year. The Nebraska State Bar Foundation is a nonprofit corporation that was established in 1963. Its mission is to serve the citizens of Nebraska and the legal profession through the administration and funding of innovative and creative programs directed toward the improvement of justice and the fulfillment of the American vision of equal justice for all. Annually, the NEBRASKA STATE BAR FOUNDATION and the NEBRASKA COUNCIL OF SCHOOL ATTORNEYS help provide financial assistance for the winning Nebraska Mock Trial team to attend the National High School Mock Trial Championship. A special thank you is extended to the Nebraska Council of School Attorneys. Since 1992, this statewide organization has given $1,000 annually to the winning State Champion. The Council’s continued support is a testament of the positive impact Mock Trial has on young Nebraskans. The South Carolina Bar Association’s 2007 Mock Trial Case State of South Carolina vs. Lane Miles provided the inspiration for this year’s case. We would like to extend our gratitude to the South Carolina Bar Association. A special thank you is also extended to the members of the Nebraska State Mock Trial Case Writing Committee:

Thomas E. Keefe, Lincoln (Chair) John L. Jelkin, Lincoln Kristi EggerBrown, Lincoln Joel D. Nelson, Lincoln Michael D. Gooch, Omaha Lory Ann Pasold, Lincoln Stephanie R. Hupp, Lincoln

In addition, the Foundation would like to acknowledge and thank the following organization and individuals, who provided invaluable assistance to the Case Writing Committee:

John E. Ridgway, RPh UNMC College of Pharmacy

Katie Packard, PharmD, MS

Assistant Professor of Pharmacy Practice, Creighton University

Joseph Kelly

Lancaster County Attorney Lincoln, Nebraska

Nebraska Attorney General’s Office

Assistant Attorney General Corey O’Brien Lincoln, Nebraska

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The following organizations endorse the Nebraska High School Mock Trial Project:

Defense Counsel Association of Nebraska Nebraska Association of School Boards Nebraska Association of Trial Attorneys Nebraska Council of School Attorneys Nebraska County Attorneys Association Nebraska County Judges Association

Nebraska Criminal Defense Attorneys Association Nebraska District Judges Association Nebraska State Bar Association

Nebraska State Council for the Social Studies

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NEBRASKA MOCK TRIAL GOALS

• To increase student comprehension of the historical, ethical and philosophical bases of the American system of justice.

• To clarify operation of the law, court procedures and the legal system.

• To help students develop basic life and leadership skills, such as listening, speaking,

writing, reading and analyzing.

• To build bridges of mutual cooperation, respect and support between the community (teachers, students, parents and schools) and the legal profession.

• To heighten appreciation for academic studies and promote positive scholastic

achievements.

• To bring law to life for students through active participation in the project.

• To encourage participation and growth toward understanding the meaning of good citizenship in our democracy through the system of law. All students who participate are winners.

MOCK TRIAL OATH

Do you promise that the testimony you are about to give will truthfully conform to the facts and rules of the Mock Trial

Competition?

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CODE OF ETHICAL CONDUCT The purpose of the Nebraska High School Mock Trial Competition is to stimulate and encourage a deeper understanding and appreciation of the legal system. This is accomplished by providing students the opportunity to participate actively in the learning process. The education of students is the primary goal of the Mock Trial program, and healthy competition helps to achieve this goal. Other important objectives include improving proficiency in speaking, listening, reading, and reasoning skills; promoting effective communication and cooperation between the educational and legal communities; providing an opportunity to compete in an academic setting; and promoting cooperation among young people of diverse interests and abilities. As a means of diligent application of the Nebraska High School Mock Trial Competition Rules, the Nebraska State Bar Foundation encourages all participants to follow the Code of Ethical Conduct:

1. Team members promise to compete with the highest standards of deportment, showing respect for their fellow team members, opponents, judges, evaluators, attorney coaches, teacher coaches and Mock Trial personnel. All competitors will focus on accepting defeat and success with dignity and restraint. Trials will be conducted honestly, fairly, and with the utmost civility. Members will avoid all tactics they know are wrong or in violation of the Rules, including the use of Invention of Facts. Members will not willfully violate the Rules of the competition in spirit or in practice.

2. Teacher Coaches agree to focus attention on the educational value of the Mock Trial

Competition. They shall discourage willful violations of the Rules. Teachers will instruct students as to proper procedure and decorum and will assist their students in understanding and abiding by the competition Rules and this Code of Ethical Conduct.

3. Attorney Coaches agree to uphold the highest standards of the legal profession and will

zealously encourage fair play. They will promote conduct and decorum in accordance with the competition Rules and this Code of Ethical Conduct. Attorney coaches are reminded that they are in a position of authority and thus serve as positive role models for the students.

4. All participants (including observers) are bound by all sections of this Code and agree to

abide by the provisions. Teams are responsible for ensuring that all observers are aware of the Code.

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20102011 MOCK TRIAL COMPETITION TIMELINE AND DATES

Entry deadline ............................................................................................................................ September 13, 2010 Dates and Times Preference Form due to Regional Coordinator ........................ September 24, 2010 Local and regional competition ............................................................................................................. October 4 ‐ (7‐week period in 12 regions) ......................................................................... November 19, 2010 Regional winners announced ............................................................................................... November 22, 2010 State Championships ....................................................................................................... December 6 – 7th, 2010 Lancaster County Courthouse Lincoln, Nebraska Mock Trial Banquet...................................................................................................................... December 6, 2010 Embassy Suites, Lincoln, Nebraska National Championship ................................................................................................................... May 7 ‐ 9, 2011 Phoenix, Arizona

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IN THE DISTRICT COURT OF GOLDENROD COUNTY, NEBRASKA GOLDENROD, NEBRASKA

STATE OF NEBRASKA, PLAINTIFF, VS. ALEX B. TOAKLISS, DEFENDANT.

) ) ) ) ) ) ) ) ) ) ) ) ) )

CASE ID.: BF111963 INFORMATION FOR: MANSLAUGHTER: 28‐305, 28‐416(1) Class III Felony

Doris Huffman, Deputy County Attorney by authority of the State of Nebraska, comes here in person into Court at this, the 2010 term, thereof, and for the State of Nebraska, and gives the Court to understand and be informed that ALEX B. TOAKLISS on or about October 31, 2009, in the County of Goldenrod and State of Nebraska, then and there being, did kill DANA DANE without malice, and did cause the death of DANA DANE unintentionally while said ALEX B. TOAKLISS was in the commission of an unlawful act, to wit: 1) DELIVERY OF A CONTROLLED SUBSTANCE, by knowingly or intentionally distributing, delivering, or dispensing a controlled substance, to wit: flunitrazepam, a schedule IV controlled substance, contrary to the form of the Statutes in such cases made and provided, and against the peace and dignity of the State of Nebraska.

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THE STATE OF NEBRASKA, Plaintiff

BY:_________________________________________ DORIS HUFFMAN COUNTY ATTORNEY SUBSCRIBED in my presence and sworn to before me this Monday, 2nd day of November, 2009. DORIS HUFFMAN, County Attorney, being duly sworn according to law, says the facts stated in her foregoing Information are true as she verily believes. By: ______ _________________________________ RUTGER PETERSEN CLERK/JUDGE OF THE COUNTY COURT SUBSCRIBED in my presence and sworn to before me this Monday, 2nd day of November, 2009. RUTGER PETERSEN, Clerk of the Court being duly sworn according to law, says the facts stated in his foregoing Information are true as he verily believes.

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IN THE DISTRICT COURT OF GOLDENROD COUNTY, NEBRASKA

GOLDENROD, NEBRASKA State of Nebraska BF111963 Plaintiff ) ) Vs. ) Alex B. Toakliss ) Honorable Tom Hupp Defendant. ) Presiding Judge )

WITNESSES, EXHIBITS, AND STIPULATIONS Witnesses for Prosecution Officer Conner Nelson Drew Coker Terry/Terri Smith Witnesses for the Defense Alex B. Toakliss Francis(es) Beck Brook(e) Johnson Exhibits

1. Crime Laboratory Report 2. Autopsy Report 3. Forensic Toxicology Report 4. 911 Transcript 5. Unmarked Pill Bottle 6. Photographs of Grim Reaper Costume 7. Facebook page 8. Halloween Party Invitation 9. Patient Information Leaflet – Rohypnol 10. Crushed plastic cup

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Stipulations Both sides stipulate to the following facts:

1. All exhibits included in the case are authentic and accurate in all respects. No objections to the authenticity of the exhibits will be entertained.

2. The signatures on the witness statements are omitted due to the electronic delivery of the case.

3. The requirements for venue have been met. 4. Whenever a rule of evidence requires that reasonable notice be given, it has been given. 5. Each party is required to accept these facts as true for purposes of this trial. Stipulated

facts may be argued to the fact finder. 6. Exhibits 1, 2 & 3 may be introduced and are admissible into evidence through the

testimony of Officer Nelson. No objections regarding hearsay or confrontation clause issues will be entertained for these three exhibits.

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JURY INSTRUCTIONS

PRESUMPTION OF INNOCENCE; CHARGE NOT EVIDENCE

This is a criminal case in which the State of Nebraska has charged the defendant with manslaughter and delivery of a controlled substance. The fact that the state has brought these charges is not evidence of anything. The charges are simply accusations, nothing more.

The defendant has pleaded not guilty. Defendant is presumed to be innocent. That means you must find Defendant not guilty unless and until you decide that the state has proved Defendant guilty beyond a reasonable doubt.

PROOF BEYOND REASONABLE DOUBT

A reasonable doubt is one based upon reason and common sense after careful and impartial consideration of all the evidence. Proof beyond a reasonable doubt is proof so convincing that you would rely and act upon it without hesitation in the more serious and important transactions of life. However, proof beyond a reasonable doubt does not mean proof beyond all possible doubt.

ELEMENTS AND EFFECT OF FINDINGS

A. ELEMENTS

The elements of MANSLAUGHTER are:

(1) ALEX TOAKLISS caused the death of DANA DANE

(2) Unintentionally while in the commission of an unlawful act, such act being delivery of flunitrazepam

The elements of DELIVERY OF A CONTROLLED SUBSTANCE are:

(1) ALEX TOAKLISS delivered flunitrazepam, a controlled substance, to DANA DANE by dissolving it into an alcoholic beverage and giving it to DANA DANE to ingest

B. EFFECT OF FINDINGS

You must separately consider the two crimes charged. For each crime your task is the same. If you decide that the state proved each element of that particular crime beyond a reasonable doubt, then you must find the defendant guilty of that crime. Otherwise, you must find the defendant not guilty of that crime.

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DIRECT AND CIRCUMSTANTIAL EVIDENCE

There are two kinds of evidence, direct and circumstantial.

Direct evidence is either physical evidence of a fact or testimony by someone who has first‐hand knowledge of a fact by means of his or her senses. Circumstantial evidence is evidence of a fact from which another fact logically can be inferred.

A fact may be proved by direct evidence alone; by circumstantial evidence alone; or by a combination of the two.

EVALUATION OF TESTIMONYCREDIBILITY OF WITNESSES

You are the sole judges of the credibility of the witnesses and the weight to be given to their testimony. In determining this, you may consider the following:

1. The conduct and demeanor of the witness while testifying;

2. The sources of information, including the opportunity for seeing or knowing the things about which the witness testified;

3. The ability of the witness to remember and to communicate accurately;

4. The reasonableness or unreasonableness of the testimony of the witness;

5. The interest or lack of interest of the witness in the result of this case;

6. The apparent fairness or bias of the witness;

7. Any previous statement or conduct of the witness that is consistent or inconsistent with the testimony of the witness at this trial; and

8. Any other evidence that affects the credibility of the witness or that tends to support or contradict the testimony of the witness.

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State of Nebraska BF111963 Plaintiff ) ) Vs. ) Alex B. Toakliss ) Honorable Tom Hupp Defendant. ) Presiding Judge )

NEBRASKA STATUTES 28105. Felonies; classification of penalties; sentences; where served; eligibility for probation.

(1) For purposes of the Nebraska Criminal Code and any statute passed by the Legislature after the date of passage of the code, felonies are divided into nine classes, two are listed below, which are distinguished from one another by the following penalties which are authorized upon conviction:

Class III felony Maximum — twenty years imprisonment, or

twenty‐five thousand dollars fine, or both

Minimum — one year imprisonment

Class IIIA felony Maximum — five years imprisonment, or

ten thousand dollars fine, or both

Minimum — none

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28106. Misdemeanors; classification of penalties; sentences; where served.

(1) For purposes of the Nebraska Criminal Code and any statute passed by the Legislature after the date of passage of the code, misdemeanors are divided into seven classes, three are listed here, which are distinguished from one another by the following penalties which are authorized upon conviction:

Class I misdemeanor Maximum — not more than one year imprisonment, or one thousand dollars fine, or both

Minimum — none

Class II misdemeanor Maximum — six months imprisonment, or one thousand dollars fine, or both

Minimum — none

Class III misdemeanor Maximum — three months imprisonment, or five hundred dollars fine, or both

Minimum — none

28305. Manslaughter; penalty.

(1) A person commits manslaughter if he kills another without malice, either upon a sudden quarrel, or causes the death of another unintentionally while in the commission of an unlawful act.

(2) Manslaughter is a Class III felony.

28405. Controlled substances; schedules; enumerated.

The following are the schedules of controlled substances referred to in the Uniform Controlled Substances Act:

Schedule IV

(a) Any material, compound, mixture, or preparation which contains any quantity of the following substances, including their salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation:

(30) Flunitrazepam.

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28416. Prohibited acts; violations; penalties.

(1) Except as authorized by the Uniform Controlled Substances Act, it shall be unlawful for any person knowingly or intentionally: (a) To manufacture, distribute, deliver, dispense, or possess with intent to manufacture, distribute, deliver, or dispense a controlled substance; or (b) to create, distribute, or possess with intent to distribute a counterfeit controlled substance.

(2) Any person who violates subsection (1) of this section with respect to: (c) a controlled substance classified in Schedule IV or V of section 28‐405 shall be guilty of a Class IIIA felony.

(14) Any person convicted of violating this section, if placed on probation, shall, as a condition of probation, satisfactorily attend and complete appropriate treatment and counseling on drug abuse provided by a program authorized under the Nebraska Behavioral Health Services Act or other licensed drug treatment facility.

(15) Any person convicted of violating this section, if sentenced to the Department of Correctional Services, shall attend appropriate treatment and counseling on drug abuse.

28611. Issuing or passing a bad check or similar order; penalty; collection procedures.

(4) Whoever otherwise issues or passes a check, draft, assignment of funds, or similar signed order for the payment of money, knowing that he or she does not have sufficient funds in or credit with the drawee for the payment of the check, draft, assignment of funds, or order in full upon its presentation, shall be guilty of a Class II misdemeanor.

53180.02. Minor; prohibited acts; exception; governing bodies; powers.

Except as provided in section 53‐168.06, no minor may sell, dispense, consume, or have in his or her possession or physical control any alcoholic liquor in any tavern or in any other place, including public streets, alleys, roads, or highways, upon property owned by the State of Nebraska or any subdivision thereof, or inside any vehicle while in or on any other place, including, but not limited to, the public streets, alleys, roads, or highways, or upon property owned by the State of Nebraska or any subdivision thereof, except that a minor may consume, possess, or have physical control of alcoholic liquor as a part of a bona fide religious rite, ritual, or ceremony or in his or her permanent place of residence.

The governing bodies of counties, cities, and villages shall have the power to, and may by applicable resolution or ordinance, regulate, suppress, and control the transportation, consumption, or knowing possession of or having under his or her control beer or other alcoholic liquor in or transported by any motor vehicle, by any person under twenty‐one years of age, and may provide penalties for violations of such resolution or ordinance.

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53180.05. Minors and incompetents; violations; penalties; false identification; penalty; law enforcement agency; duties.

(1) Any person older than eighteen years of age and under the age of twenty‐one years violating section 53‐180.02 is guilty of a Class III misdemeanor.

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Witness Statement of Officer Conner Nelson At approximately 0015 hours on 11/1/09 I was in my cruiser westbound on Mockingbird 1

Lane when I heard a dispatch call for officer assistance to 7734 Bourbon Street with the report of a 2 young adult subject possibly passed out and unresponsive in the residence at that address. 3 This was not my patrol area, but I responded to the call being within approximately 4 blocks of the 4 subject location and hearing that other responding officers were not in the immediate vicinity. 5

At the time of the call I had been proceeding westbound to BLT/Goldenrod Medical Center 6 to be treated for a blow and laceration to the head from a beer bottle sustained at approximately 7 2352 hours in a separate incident at Rollo T's bar in downtown Goldenrod while subduing a 8 combative and intoxicated suspect. 9

Responding to the call about the unresponsive young adult, I arrived at the residence at 10 7734 Bourbon at approximately 0016. The residence could be described as an older two‐and‐half‐11 story wood frame house, peeling white paint, weed‐infested yard, in the vicinity of Goldenrod 12 University. This officer was familiar with the residence from prior contacts. 13

Determining no other officers were present, I exited the cruiser and approached the 14 premises. Beer cans and plastic cups, some still containing what appeared to be alcoholic drinks, 15 were present in the yard and on the front porch. 16

I proceeded to knock on the front screen door and announce my presence. The main front 17 door was open, and I could observe through the screen door evidence of what appeared to be a 18 party. 19

There were beer cans, beer bottles and plastic cups throughout the front room, which could 20 be described as the living room. A standard sized keg of Milwaukee's Best was visible to the north 21 side of the room, still tapped. The only lighting was from several candles dispersed around the 22 room. Also visible from my vantage point on the porch were several couches with protruding 23 stuffing, a lava lamp, a stereo, and multiple posters on the wall including a Blue Oyster Cult poster. 24 An individual inside the premises indicated I should come in, so I entered the premises, using my 25 flashlight given the low lighting conditions inside the premises. Within a few seconds of entering 26 the front room, the beam of my flashlight revealed a body lying in the southeast quadrant of the 27 front room. It was the body of a young adult, dressed in a scientist‐type costume, later identified 28 as Dana Dane. She was laying on her back, head turned to the right. There were no visible signs of 29 trauma, but there was a bluish tint to her lips and I could not observe any signs of breathing. 30

Also present was house resident F. Beck, sitting on a nearby couch and visibly distraught. 31 Beck was wearing a dark colored coat or cape. S/he informed me that Dane had stopped 32 breathing and Beck did not know what to do. Beck advised that s/he had attempted hands‐only 33

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CPR, which Beck had learned in an outdoor survival skills class, but Dane did not respond. Beck 34 advised Dane had shown no sign of respiration, heartbeat or movement for approximately five 35 minutes. 36

I turned on a nearby floor lamp for better visibility, then attempted to rouse Dane through 37 verbal prompts and touching her shoulder. Receiving no response, I checked for a pulse and 38 breathing, finding none. Dane's skin was cool to the touch. I used my mobile radio unit to call in a 39 code 10‐56 at the location. It was determined that no additional resuscitation efforts were 40 advisable, given Dane's appearance and the lack of any vital signs. 41

It should be noted that the blood found on the front of Dane's lab coat costume was in fact 42 from the wound to my head from the earlier unrelated incident. I did not observe any blood on 43 Dane that appeared to have come from her. 44

I then questioned Beck about what happened. Beck advised that s/he lived in the house 45 along with D. Coker and A. Toakliss. Beck explained that a costume party had been held, with 46 alcohol served or brought by guests. Beck stated that around midnight drinks were handed out to 47 the guests and that one of the drinks was to be spiked with a foreign substance. Beck said s/he 48 and the two roommates all dressed in "Grim Reaper" style outfits. Beck advised that at midnight 49 s/he was drinking a beer, having consumed approximately 4 beers already, and observed one of 50 the roommates in the Reaper outfit with a tray passing out drinks. 51

Beck stated s/he did not know for sure if it was Toakliss or Coker, but that it had been 52 Coker's turn to pass out the drinks. Beck stated that s/he did not receive one of the cups from the 53 tray ‐‐ being a host ‐‐ but watched as those who did counted down from ten seconds until midnight 54 then downed the drinks that had been passed out. 55

Beck reported that the party then resumed and approximately five minutes later, while 56 Beck was involved in a game of beer pong on the dining room table; someone reported a problem 57 with Dane. Beck observed Dane stagger, then fall to the floor in the front room. 58

Beck and two or three other individuals at the party ‐‐ Beck could not remember names ‐‐ 59 went to Dane and observed she seemed to be struggling to breathe and would not respond to 60 verbal prompts. Beck stated that she attempted to rouse Dane and when that did not work, called 61 911 for assistance. Beck continued to attempt to rouse Dane, and then attempted the hands‐only 62 CPR. Beck stated that there was commotion in the house once Dane fell to the floor, and at some 63 point Beck realized everyone had exited the premises except her/him. Beck advised s/he did not 64 know where Coker or Toakliss went. 65

I asked Beck to remain on the premises for additional questioning, and then began a search 66 of the premises. I found a plastic cup with a Big 10 Conference logo, underneath and partially 67 covered by Dane's left leg. The cup was cracked down one side. It appeared to be empty, but 68 there was a trace amount of liquid and residue in the cup. It smelled of grapefruit juice and some 69 type of grain alcohol. 70

I placed the cup on top of the television set until it could be secured in an evidence bag and 71 resumed the search. I recognize Exhibit 10 as a photo of the cup located during my search. I am 72 familiar with Exhibit 1 as being the laboratory report by GPD lab technician Phong containing the 73 results of tests performed on the cup. I am familiar with Exhibit 2 as being the coroner report on 74 Dane, indicating death as a result of cardiopulmonary arrest resulting from the combined effects 75 of Rohypnol, Foxglove, and alcohol. 76

After completing my search of the first floor, I proceeded upstairs to the second floor. 77 Proceeding down the hallway, the first door on my left opened and a subject identified as D. Coker 78

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emerged, appearing startled at my presence. Coker was wearing jeans and a t‐shirt, was barefoot, 79 and had somewhat disheveled appearance in regards to hair. 80

I asked Coker if s/he had been downstairs participating in the party. Coker advised s/he 81 had engaged in party activities earlier in the evening, but at approximately 2330 hours went to 82 her/his room and had not returned downstairs. Coker advised s/he had "not really" worn a 83 costume while at the party. Coker admitted to being aware of a joke played at midnight at prior 84 parties, but denied any knowledge of the joke this year. 85

I inquired why Coker went upstairs; s/he advised s/he just felt like being alone and 86 listening to music. I proceeded to inquire if Coker had been aware of a disturbance downstairs, 87 and s/he admitted to hearing raised voices, but did not go downstairs to investigate. Coker denied 88 being aware of a medical problem with a guest. 89

I proceeded to advise Coker that I was in possession of information indicating Dane had 90 drunk one of the drinks passed out at midnight, and was now deceased on the living room floor. 91 Coker's face took on a pale coloration for several seconds and s/he expressed disbelief at this 92 occurrence. 93

Coker then advised that her/his roommate, Toakliss, had been involved in a verbal 94 altercation with Dane earlier that evening and possibly on prior occasions. Coker stated that 95 earlier that evening Toakliss volunteered to pass out the drinks at midnight, despite it being 96 Coker' turn. Coker stated, "It was just a harmless joke," and advised that there should be a small 97 container of Foxglove in the kitchen of the residence. It should be noted that Officer Stensland did 98 later locate a sandwich‐type baggie containing Foxglove in the kitchen, consistent with Coker's 99 statements. 100

Coker directed me to Toakliss' room across the hallway. The door to the Toakliss room was 101 slightly ajar. Entering the room, I observed a large amount of clothing, books, Pringles cans, and 102 Hostess snack boxes scattered about the room, a bed, dresser, computer desk and chair, and 103 television. A stick of incense was burning on the dresser. There were no lights on in the room. 104 From my position in the doorway I observed an object on the floor under the bed, partially 105 obscured by a blanket. I entered the room and picked up the item, which was a rubber skeleton‐106 style mask. It appeared to have been recently worn, as there was moisture consistent with 107 perspiration on the inside of the mask. 108

Performing a visual search of the room with my flashlight, I then observed a small 109 cylindrical container on the desk, next to the computer monitor. I recognize Exhibit 5 as a picture 110 of the container. There were several pills in the container, later identified as Rohypnol. The lid of 111 the container was next to the bottle. 112

A computer on the desk was on, with a screen saver image of Bob Marley on the monitor. 113 Touching the space bar, the screen saver image disappeared revealing a web page containing 114 information on the medication Rohypnol. A small desk‐top printer was located next to the 115 monitor and keyboard, and this officer was able to successfully print the web page. Exhibit 9 is the 116 pages that were printed, and is a true and correct depiction of what I observed on the monitor. 117 From my position standing at the desk, I could see through the window an individual standing 118 approximately fifty yards away to the south and east, back lit by a light in the neighbor's yard and 119 partially concealed by the branches of a tree in the neighboring yard. 120

Taking the mask, pill container and paper, I went downstairs, exited the premises through 121 the front door, proceeded around the house to the north so as not to be observed by the individual 122 and approached this individual from the side, the individual's possible view of this officer being 123 blocked by the tree. I activated my flashlight and pointed it in the direction of the individual, who 124

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initially turned as though to flee. I issued verbal commands for the individual to stop. The 125 individual took one or two initial steps, and then complied with my request, stating, "Well I guess 126 you caught me." 127

Approaching the individual, I saw a young adult subject with an odor of alcohol about 128 her/him. I also detected an odor I recognized from hundreds of encounters during my 11 years on 129 the GPD as consistent with marijuana use. It should also be noted that the subject was wearing 130 brown sandals which s/he later identified as Birkenstocks. 131

I asked this individual for her/his name, and s/he identified himself/herself as Alex 132 Toakliss. It should be noted that Toakliss' hands were trembling. I showed Toakliss the mask and 133 asked if it was hers/his. Toakliss stated it looked like her/his mask. I showed Toakliss the pill 134 container and asked if that was Toakliss.' Toakliss denied any knowledge of the bottle or its 135 contents. I inquired if Toakliss was doing research on medications, and Toakliss advised that s/he 136 didn't know what this officer was talking about. 137

Determining Toakliss may be a suspect, I advised Toakliss of Miranda rights and asked 138 her/him to accompany me to my cruiser. It should be noted that Toakliss did not waive Miranda 139 rights. By that point Detective Vincennes and multiple other responding officers had arrived. 140 Officer Vincennes remarked that I was bleeding, advised he would assume custody of Toakliss, and 141 directed me to go to the emergency room. It was determined that no additional search of the 142 residence needed to be performed by this officer at that time. 143

I advised Det. Vincennes that I needed to first secure the cup evidence and transport it to 144 the station. Det. Vincennes agreed. I retrieved and put on a pair of latex evidence gloves from my 145 cruiser, re‐entered the residence, secured the cup by removing it from the television and placing it 146 in evidence bag B‐52, transported it, the mask, and the receipt to the station. At the station I 147 logged in all pieces of possible evidence pursuant to department protocol. 148

I then proceeded to the BLT/Goldenrod ER where I was treated for a laceration and mild 149 concussion. I was kept for observation until approximately 1130 on 11/1/09, and released at that 150 time. Chief Smith had left a message on my phone stating I was directed to take one day injury 151 leave, and I complied. 152

On 11/3/09, I returned to my normal shift and as part of the follow up investigation of the 153 7734 Bourbon Street incident proceeded to the residence of T. Smith, which was on the third floor 154 of the Blutosky dormitory at Goldenrod U. Information from other officers' investigation indicated 155 Smith may have been present at the 7734 Bourbon St. location on the night/morning in question. 156 This was approximately 1400 hours on 11/3/09. Obtaining permission to enter the dormitory 157 from the residence hall advisor, I found Smith in her/his room, playing a computer game. 158 Smith invited this officer into the dorm room. I advised Smith of the purpose of my investigation 159 and asked if s/he had been present at the party. Smith stated s/he had, and that approximately 40 160 ‐ 50 individuals were present. I asked if Smith observed what occurred with Dane. Smith advised 161 that at approximately 0000 hours, an individual dressed in a "Grim Reaper" costume handed Dane 162 a cup with a substance in it, Dane drank it, and within a short time period Dane proceeded to 163 collapse to the floor. Smith advised that the individuals present exited the premises. 164

Smith asked this officer if s/he would be charged for any alcohol‐related offense, or leaving 165 the scene of a crime. I advised that was not the primary purpose of the investigation, and Smith 166 stated s/he consumed 7‐8 beers or shots of alcohol over approximately 3 hours during the party. I 167 asked if Smith knew the identity of the individual in the Grim Reaper costume, and Smith advised 168 that Toakliss had been the Grim Reaper. I asked Smith for a physical description of Toakliss, and 169 that description matched my observations of Toakliss in the yard next to the subject residence. 170

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I then asked Smith if s/he was aware of any conflict between Toakliss and Dane. Smith 171 indicated there had been a verbal confrontation between the two at the party. Smith further 172 advised that Dane had posted a negative comment about Toakliss on Smith's Facebook page. I 173 asked if Smith would be willing to show me the Facebook page and comment. Smith complied, 174 pulled up the page on her/his computer, and printed it off on the printer which was also present in 175 the dorm room. I recognize Exhibit 7 as the piece of paper Smith printed out from her/his 176 Facebook page during our interview. 177

I then proceeded to the Niedermeyer dormitory on the G.U. campus to interview Brook(e) 178 Johnson, also indentified by other officers as a possible witness. Johnson was eating soup from a 179 thermos in the dorm lounge when I arrived at approximately 1430 hours, but agreed to answer 180 this officer's questions. Johnson corroborated Smith's account of someone in a Grim Reaper outfit 181 handing Dane a drink, Dane consuming the drink, and within a few minutes collapsing. 182

Johnson stated that the subject in the Grim Reaper costume had a strong odor of marijuana 183 and was wearing flip‐flop style footwear. I asked Johnson if s/he was aware of marijuana being 184 used by any individuals at the party. Johnson advised that Toakliss was known to consume 185 marijuana on a regular basis. Johnson advised that, at a different party last year to which GPD 186 officers were dispatched, Toakliss had asked Johnson to hide a baggie of marijuana in Johnson's 187 underwear. Johnson further advised that on the night of Dane's death, Johnson had earlier seen 188 Toakliss in a Grim Reaper style costume, both with the skeleton‐type mask on and off. 189

This report was prepared on 11/4/09. It should be noted that a prescription pain killer 190 was prescribed at the hospital, and I took that medication on 11/1 at approximately 2200 hours 191 and again on 11/2 at approximately 0500, 1300 and 2300 hours. No other medication was taken, 192 and the medication did not affect my perception or memory during the Smith and Johnson 193 interviews on 11/3. 194 WITNESS ADDENDUM I have reviewed this statement and I have nothing of significance to add. The material facts are true and correct.

Signed, ___________________________________ Conner Nelson SIGNED AND SWORN to before me at 8:00 a.m. on this day of this round of the 2010‐2011 Nebraska State High School Mock Trial Competition. ____________________________________________________ Stephanie Egger Gooch, Notary Public My Commission Expires: December 31, 2010

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Witness Statement of Drew Coker

My name is Drew Coker. I live at 7734 Bourbon Street, Goldenrod, Nebraska. I am 20 years 1 old and roommates with Alex Toakliss and Francis(es) Beck. I also work part time at the local 2 plant nursery, Bluestem Nursery, watering, pruning and propagating the plants. 3

I am an earth sciences/geology major at Goldenrod University. I have been fascinated by 4 agates for years. Did you know that agates are not actually rocks, they are minerals? Very 5 interesting and very beautiful. 6

It is true that last year, when I was younger, I wrote some bad checks. See my student loans 7 were late getting here and I paid for some meals and clothing with checks that bounced. I did not 8 mean to do anything wrong. I was just sure that the student loan would get here in time to cover 9 the checks. Now, I do not write checks, I use a debit card. The prosecutor's office has a bad check 10 program. I had to pay restitution and a fee and the charges were dismissed. And I missed court 11 one time. I received a letter from the prosecutor's office telling me that I had to come to court but I 12 could not miss a final exam. Apparently, a warrant was issued for my arrest. I came in the next day 13 and signed up for warrant court. It all got resolved and I was not actually convicted of anything. 14

I went to the annual Halloween party thrown by the members of my house. 15 Each year at midnight on Halloween, all of the roommates of the house dress as the Grim 16

Reaper. Our outfits look the same although an aficionado could easily tell us apart. However, each 17 year only one of us passes out drinks to everyone at midnight. Since I live there, we have always 18 just switched it around. This year was my year. However, when we were meeting in the kitchen 19 around 11:45, Alex Toakliss said s/he wanted to do it. S/He seemed out of sorts so I said that was 20 fine. This year, we spiked one of the drinks with a little Foxglove which makes the “chosen one” 21 act pretty crazy. Usually it is just harmless fun. No one ever knows who is supposed to get the 22 “special” drink so everyone just goes along with it. 23

This year, when we met in the kitchen to mix midnight shots, Alex suggested we give the 24 drink to Dana Dane. Seemed fitting somehow. Dana was a real jerk. We did not mean for anyone 25 to die. It was just a harmless prank. Well, I guess not harmless. 26

Before midnight, Dana was being rude to Alex and s/he seemed quite upset about it. Alex 27 was dressed as the Grim Reaper and s/he can be Grim if you know what I mean. Dana is a bully, I 28 mean was a bully. Dana got right up into Alex's face. She was whispering but I could hear most of 29 what was said. 30

I heard a rumor that someone is saying that I had an argument with Dana Dane during the 31 party. I saw and heard part of the argument between Dana and Alex. I admit that just after I heard 32 the conversation between Alex and Dana, I spoke to Dana myself. I said, "Alex does not know what 33

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you called her/him. Besides, I said, if you are going to insult someone and if you are going to 34 mention the class, you should go to the trouble of identifying the phylum." I am guessing that Dana 35 wrote the word on a post‐it and carried it around hoping to show off. Well, Dana was pretty 36 unhappy that I knew more about her insult than she did. Dana raised her voice and said I did not 37 know what I was talking about. So I told her, "cnidaria, scyphozoan, cyaneidae, cyanea capillata 38 and you are an idiot. You know, idiotae, idiotarum, idiotis, idiotas, idiotis, idiotae; idiot. Leave Alex 39 alone." That did not go over very well with Dana Dane, but as she was sputtering, I just walked 40 away. And yes, I know that I declined the plural not the singular forms for idiot; as if Dana would 41 know the difference. So you can see that I was not angry enough at Dana to wish her dead. 42

Okay, after the argument between Alex and Dana, I felt glad that we were going to give the 43 Foxglove to Dana. She deserved it. There was some justice that Alex was going to give the drink to 44 her/his bully. 45

At midnight, Alex brought the tray of drinks out of the kitchen. S/He made a beeline for 46 Dana. Then s/he circled the room handing out drinks to everyone else. I remember being close to 47 Dana when she got hers. 48

About 15 minutes later, I remember Dana saying that the room had a blue tinge and she felt 49 light headed. I decided that I did not need to see her puking all over the place so I went upstairs to 50 my room. I heard a commotion about 10 minutes later but I did not come downstairs again. 51

About 15 minutes later, a cop came to my room and started asking questions. 52 S/He was confused and practically incoherent. The cop was also bleeding all over the 53

place. S/he kept suggesting that I had something to do with "it." I denied that I had anything to do 54 with "it." Eventually, the cop told me that Dana Dane had died. I was shocked. There is no way that 55 Foxglove should kill anyone. I told the cop that I went upstairs before Alex passed out the drinks. I 56 am sorry I lied to the cop. 57

I brought the Foxglove from the University greenhouse. I even admit I added a very small 58 bit of it to the drink which was supposed to go to Dana Dane. 59

However, I absolutely deny that I added anything else. I heard that the lab report says there 60 was Rohypnol in the drink. I also know that now someone is saying that I had something to do 61 with it. 62

Everyone knows about it. Who hasn't read an Agatha Christie novel? That’s just crazy. I 63 also heard that Dana's drink contained another drug, flunitrazepam. I do not have access to that or 64 even know anything about it. Oh yeah and one more thing, I do not smoke weed. 65

Well, let me tell you that I did nothing wrong except help organize a prank. 66 I did not spike the drink further than the Foxglove and I did not deliver the drink. I am 67

innocent. That is so rude. Who could possibly think I would do such a thing? The prosecutor 68 offered me a deal which I took. I also had a really good attorney who helped me understand 69 things. I had to plead guilty to a misdemeanor charge of procuring alcohol for minors. There were 70 minors at the party. I did chip in some cash to purchase the keg, although I did not actually buy it 71 because I do not have fake id. I did help move the keg into the house though. 72

I am completely shocked that Alex had the courage to put something else in the drink. This 73 seems out of character for Alex. Still Dana Dane was a bad person, so I am sorry that Alex is in so 74 much trouble. 75

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WITNESS ADDENDUM I have reviewed this statement and I have nothing of significance to add. The material facts are true and correct.

Signed, ___________________________________ Drew Coker SIGNED AND SWORN to before me at 8:00 a.m. on this day of this round of the 2010‐2011 Nebraska State High School Mock Trial Competition. ____________________________________________________ Stephanie Egger Gooch, Notary Public My Commission Expires: December 31, 2010

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Witness Statement of Terry/Terri Smith My name is Terry/Terri Smith. All my friends call me “P. A.” which stands for “Party 1

Animal” because I love to party. I am a fifth year senior at Goldenrod University which is also 2 known as the “Party Place of the Midwest” according to Party Town Magazine. 3

Oh, yeah, I grew up in Blue Stem, which is in western Nebraska about 320 miles from 4 Goldenrod. My parents farm and ranch out in the Sandhills, which was a cool place to party 5 down….out in the middle of nowhere! I have two sisters, Kate and Sandy, and one little brother, 6 Ray. And have this cool German Shepard named Gretchen….man I miss my dog! Now I live at 7 Blutosky dormitory at Goldenrod. 8

We really know how to party in this school. We are Party Hearty and Proud. The best 9 place to party in the whole town is located right across from the campus at 7734 Bourbon Street. 10 That’s where Alex Toakliss, Drew Coker and Francis(es) Beck live. The parties at that place are 11 legendary. 12

One time, it took fifteen cops to break up a party there. All of these cops were standing 13 around Alex Toakliss on the front steps of the house and you know what Alex did? S/he just 14 counted them all. One, two, three, four and when he got to 15, s/he said, “Wow! Who’s watching 15 the police station?” It was classic. 16

My personal favorite is the annual Halloween party. Everyone dresses up in these 17 awesome costumes. Then at the stroke of midnight, Alex makes an appearance, dressed up like 18 Death. You know the Grim Reaper guy with the scythe and everything. 19

The Grim Reaper then passes out drinks to everyone at the party. Everyone knows that 20 one of the drinks will be laced with something “extra.” In the past, the lucky person that got the 21 something “extra” would start to act kind of crazy. I mean it changed with every person, but each 22 of them would either start to dance around, some of them would sing. They tell me that when I got 23 the “something extra” that I actually started doing the chicken dance and organized a conga line. 24

At least that’s what they tell me, I don’t really remember too much from the night. But, I 25 was cool with it. I mean, you’re only young once. Right? 26

Anyway, that’s how it went for all of the other years, until this year. That’s when Dana got 27 the “something extra” and died. That night, the party was smokin’. I mean it was off the hook. I 28 got there about 9:00 p.m. and everyone was dancing, lots to drink and the music was awesome. 29

Around midnight, the lights get turned down low and they put on some Michael Jackson 30 music. Like other years, Death makes an appearance. Alex and her/his roommates all have these 31 cool, hooded, black outfits and masks on so you really can’t see their faces. The only way that you 32 can tell who is behind the mask is to listen to them when they talk. 33

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Other years, whoever was the Grim Reaper would move around the room with this tray full 34 of drinks. Everyone would get one. However, this year the Grim Reaper makes a beeline for Dana. 35 Dana was the first person to get their drink. The Grim Reaper then set down the drinks and 36 disappeared. 37

A short time later, Dana started to act up. She was dancing around, pretends to choke, 38 jumps up and down and then finally collapses. We all think that she is just joking around. None of 39 us rushes to help her because we all think it’s just an act. 40

You know. I know that you’re not supposed to speak ill of the dead, but Dana was not a nice 41 person. She was a mean drunk and would say all kinds of hurtful things when she had too much 42 to drink. 43

For instance, earlier that evening I overheard Alex having an argument with Dana. I don’t 44 know what it was about and I just got in on the last part of it but I did hear Dana tell Alex that s/he 45 had problems. Toakliss replied by saying, “You’re a joke.” Then Toakliss said, “You really hurt my 46 feelings.” 47

Shortly after that Drew and Dana were getting into it. I heard Dana tell Drew, “If you had 48 any class at all you would go off into a hole somewhere and die.” Drew didn’t say a word. S/he 49 just got this weird look on her/his face and walked off. As Drew was walking away, Dana said in a 50 loud voice, “Yeah, walk away Loser.” 51

Like I said, Dana was not a nice person. Anyway, I think the reason that no one went to 52 help Dana was because no one really cared if it was an act or not. 53

At some point in time, I decided that maybe someone should check on Dana. I mean she 54 was just laying there. When I couldn’t get her to respond, I just freaked out and started to yell. It 55 took a while, but eventually the music stopped and everyone started to pay attention. I yelled, 56 “Something is wrong with Dana. I think she might be dead.” 57

Everyone gathered around and (the other roommate) came over and felt for a pulse. 58 Francis(es) said, “Alex, Call 911!” I don’t know if anyone called or not. The party broke up and the 59 place cleared out in a shot. I left too because I didn’t want to explain to my parents what I was 60 doing at a party where there was this kind of trouble. I also suspected that there were some 61 minors at the party and I didn’t want to be accused of providing booze to under age kids, again. 62

Looking back, I should have stayed. It wasn’t cool to run out. I know that now. 63 A couple of days later, Officer Nelson knocked on my door and asked me if I was at the 64

party, and if I knew anything about what happened to Dana. I told her/him all I knew. S/he asked 65 me if I knew what was in Dana’s drink. I said that I didn’t because Alex Toakliss and the 66 roommates always mixed up the drinks in the kitchen before they brought them out. S/he also 67 asked me if I was sure that it was Alex Toakliss that handed out the drinks. I said that I thought so, 68 but with the mask, I couldn’t be certain. The person that passed out the drinks never spoke, so I 69 couldn’t say that I recognized the voice. 70

The officer then asked me if I knew of any bad blood or hard feelings between Toakliss and 71 Dane. I told the officer about the argument that I overheard at the party. I also told the officer 72 about something that Dane had posted about Toakliss on my Facebook page. When the officer 73 asked me if s/he could take a look at my Facebook page and see what was written, I hesitated a 74 moment, but decided to go ahead and get on my computer and show her/him. The officer seemed 75 very interested and asked me to print out a copy which I did and gave to her/him. Officer Nelson 76 thanked me for my cooperation and left. 77

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After the officer left, I wondered if I should have mentioned Dane’s argument with Drew 78 and the problems between the two of them. I eventually decided that if it had been important, 79 Officer Nelson would have asked me about it, so I blew it off and didn’t worry about it. 80

It was just a couple of days later that Alex Toakliss was charged with murder. I couldn’t 81 believe it. I was afraid that it was what I told Officer Nelson that got Alex Toakliss in trouble so I 82 went to see her/him in jail. I asked Alex if s/he had anything to do with Dana’s death. S/he said 83 “No, I was set up.” So I believe her/him. Toakliss is a prankster, but s/he’s no criminal. This must 84 all be some big mistake. 85 WITNESS ADDENDUM I have reviewed this statement and I have nothing of significance to add. The material facts are true and correct.

Signed, ___________________________________ Terry/Terri Smith SIGNED AND SWORN to before me at 8:00 a.m. on this day of this round of the 2010‐2011 Nebraska State High School Mock Trial Competition. ____________________________________________________ Stephanie Egger Gooch, Notary Public My Commission Expires: December 31, 2010

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Witness Statement of Alex B. Toakliss Hey, I have to say this last Halloween was the worst night of my life. Absolutely. Without a 1 doubt, and I’ve had some pretty weird ones, but this was absolutely horrible. Did I say that 2 already? 3

Oh, sorry, my name is Alex, middle initial B. Toakliss, and, dude, I bet my parents never, 4 ever, ever thought that the costume they gave me for Halloween when I was just a kid would end 5 up being a bad omen or anything. I mean, my parents, Bud and Mary Jane Toakliss, are like 6 Rhodes scholars and stuff from the Community Colleges they went to, and they picked cool names 7 for all seven of us kids. There’s Herb, M.J. (after my mom), Budd (after my dad, but a little more 8 distinctive), Mo, Smokey, and Potter. I think they took one look at me when I popped out ‐hey, I 9 was the last of seven kids born, cut me some slack, probably happened just like that – and they 10 just knew I’d like brownies. Like, isn’t that weird? I DO like brownies. Man, do I ever. Without 11 nuts. Nuts just ruin the whole deal. 12

Anyway, I always thought I was “lucky 7” because I was the 7th kid born in my family. Did I 13 tell you that? Hey, so I don’t feel so lucky right now because of this bum rap and weird 14 circumstances. Like, dude, I really think that I’m being judged by who I am and the choices I make. 15 People always judge by names and looks and habits and stuff. I hate that. Another thing I really 16 hate is when people say that I said something that I didn’t say, like that cop. That Conner Nelson. 17 Hey, now THAT’S an appropriate name for a cop. Hey, maybe that’s why h/she’s a cop? I just 18 thought of that. My bad. Hey, anyway, I’ll talk about that more later. Sorry, I kind of jump around. 19 The doctors say it’s my ADHD, but I just think I got a bad memory and there’s really so much to 20 think about, when you really stop and think about it. You know? Like, wow, it just blows my mind 21 sometimes. 22

So, just the facts and only the facts, like they say on some old television show. Oh, I forgot 23 to say before, but I’m a senior at Goldenrod University, majoring in Horticulture. Hey, a good grow 24 operation is, like, real important. Green is what it’s all about, dude. People talk a lot lately about 25 being green, going green, but I think I’ve been green since before I was born. Hey, so anyway, 26 since my sophomore year, I’ve lived at 7734 Bourbon Street with Francis(es) and Drew Coker. 27 We’re roommates. Been roommates a long time. Isn’t that a cool name for a street? Just like in 28 New Orleans, but in Nebraska. Which one do you think came first? I don’t know. Anyway, I really 29 dig Halloween. Have ever since I was a little kid. One year, my parents bought me a “Grim Reaper” 30 costume. New, with a scythe and everything. Not a hand‐me‐down like I usually got. My parents 31 really like Halloween, too. Did I say that? 32

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Hey, so they got me that costume when I was maybe in the 4th grade, and I wore it until it 33 wore out. And then right before I came to college, I bought another one. Hey, I’d heard about 34 college parties, and I for sure didn’t want to miss out on any of the action. And, hey, a great 35 costume like that never goes out of style. No one can tell who you are in it, because you’re all 36 covered up. My neighbors figured it out by the time I was in the 5th grade, though. Maybe that was 37 because I was with my brothers and sisters. Wow, just thinking about that made me figure that 38 out. Cool. Okay. 39

Well, anyway, when I showed my roommates my great costume, they were like all into 40 getting their own Grim Reaper costumes and having a Halloween party. So, we did. My 41 roommates told me about this party they went to where someone comes out at midnight when the 42 clock strikes 12 and hands out drinks and one of them is spiked (the drink is, I mean) and then the 43 person who gets the drink gets all stupid and everyone (except the one acting stupid) gets to 44 watch them act stupid. It’s kind of like when you go to a hypnotist and people act all stupid, like 45 they never would in real life, but then you see them act like that and it’s real funny. We thought 46 that’d be cool, and so we started doing it. Since we all had the costume, we had to figure out who 47 would get to be the Reaper and hand out the drinks, so we all watched “Reefer Madness” (I own it, 48 it you want to borrow it sometime) and whoever didn’t light one up during the movie was the 49 winner. Well, it wasn’t me. 50

Francis(es) Beck got the job the first year in 2007. Then we picked the 2nd year Reaper the 51 same time by flipping a coin. And Drew S. Coker won that for 2008, so I got the third year, 2009. 52 So for the past 3 years we all have been “Grim” as I like to call her/him. Like those fairy tales, plus 53 like the Grim Reaper. So, like every year to announce the party, we post it on Facebook with a 54 picture I put together myself and I’m pretty proud of it. I even had a couple posters made to hang 55 up at the party. Hey, have you heard that song by Blue Öyster Cult? “Don’t Fear the Reaper.” It’s, 56 like, famous and it’s been in a lot of movies and games and a great SNL skit and stuff. Anyway, I 57 put in the song title and, like, crossed out the word “don’t” like with an “X” but you could still read 58 it, like to make people think they SHOULD fear the Reaper, but not really. I never meant to hurt 59 anyone. Really. The other two years, we decided about a month ahead of time what we’d put in 60 the drink to make the person who got it act all stupid. 61

So, hey, the first year we all decided to give the drink to Terry/Terri Smith. Dude, it was 62 really funny. S/he started to do the chicken dance and we all did a Conga line. We all laughed our 63 masks off. Then the next year, like in 2008, we all decided to put ipecac syrup in the drink (we 64 always use those plastic disposable glasses for everybody – not very green, I know, but they’re 65 handy). Anyway, so Drew S. Coker gave the spiked drink to some kid I don’t know. And that kid 66 puked all over Brook(e) Johnson in the sparkly pimp kind of costume. Johnson is kind of stuck on 67 her/himself anyway, and it was really, I mean really, funny to see Johnson get puke all over 68 her/his “prettiness.” Still makes me laugh whenever I think about it. And, believe me, man, I sure 69 need a laugh now and then with this bum rap that’s been put on me. It’s really bringing me down. 70

So, anyway then, the first two years were fun, but this year was not. Drew, Beck and I all 71 decided about the end of September, 2009, that we’d put Foxglove in the drink the “chosen one” 72 would get. Drew got it from the University greenhouse. I was supposed to get it from there, but I 73 forgot, so Drew went and picked it up. The greenhouse is cool. Hey, I love plants. Did I tell you 74 that already? So, then, anyway, Drew and Beck and I are in the kitchen earlier in the evening. I 75 don’t know, maybe around 11 p.m. or so, and we’re getting the “midnight drinks” on a tray, and 76 Drew put some Foxglove in the “special” cup. Honest, I didn’t have anyone picked out by then. 77

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Since it was my year to pass out the drinks, or at least it was supposed to be me, I got to pick who 78 would get the “special drink.” 79

Well, last year’s fiasco seemed funny, so I thought I’d scope out the scene and see who all 80 was messed up drunk already and give them a little extra something to make them extra funny. I 81 didn’t even get to find someone, because as I was walking around checking things out, Dana Dane 82 comes up to me and dissed my costume. Now, I normally wouldn’t care about Dane’s opinion 83 because I’m kind of a mellow, laid back kind of person, and Dane is (or was, sorry) always one of 84 those big‐mouthed know‐it all kind of people, but this night it hurt my feelings. Hey, it was my 85 favorite night of the year and it was my house and my party and it just seemed harsh, and Dane 86 didn’t look that great herself. So, anyway, Dane was being a jerk to me, and I said Dane looked like 87 the Joker and acted like one, too. I probably said it to Dane in a loud voice. My bad, but, hey, I 88 mean, she called me a “pusher” and I would never ever sell any of my home grown stuff. Dane and 89 I already had some bad blood between us because of a comment on Facebook earlier. I mean, 90 dude, you have to be way stupid to think that I’d sell any drugs to anybody. Dane must not have 91 liked the dried oregano I gave her. 92

So, yeah, I was mad at Dane for being mean to me, but that’s no reason to drug her. 93 Anyway, I went outside to pout and to smoke a joint, because it helps me calm down, like 94 medicinal purposes, you know. Man, I wish I lived in California. So, when I get back inside the 95 house, I go to the kitchen and someone already handed out all the drinks we had ready to go at 96 midnight, and that was just harsh, because, dude, that was supposed to be my job. Someone took 97 my job. On my favorite day of the year. 98

So I’m all mad again, took my costume off and I go outside on the back deck and light up a 99 blunt and hang out. I might have walked in the yard under the willow tree – like that whomping 100 willow in that Harry Potter movie, or the willow my grandparents had in their backyard. Anyway, 101 I didn’t run away or anything. Dude, that flashlight was bright. Officer Conner Nelson comes up, 102 and I can see then that s/he’s a police officer. So I said “oh man, you caught me.” I meant that s/he 103 caught me smoking, not that I drugged Dane. Man, I didn’t even know anything happened to Dane, 104 because I was outside. When the cop showed me my Grim Reaper mask, sure, I said it was mine. 105 It sure looked like mine. The officer said they found it under my bed – alls I know is that I didn’t 106 put it there. I mean, anyone could’ve gone into my room – the door was open and unlocked. 107 Everybody knows that. And then the cop shows me a pill bottle and asks me if it’s mine. Man, it 108 wasn’t mine, that’s for sure, and I don’t know where the cops found it. The cop said from my 109 room, and the cop asked if I was doing research on medications. I said no, because I didn’t know 110 what the cop was talking about. The only kind of research I do is by trial and error. I’m my own 111 guinea pig, you could say. Then the cop starts getting all professional‐like and starts to tell me my 112 rights. Man, I may have been high and maybe a tad tipsy, but I’m sure not stupid. No way I was 113 going to waiver my Miranda rights. Hey, I know my rights, and I know how those cops can take 114 what you say and mess it all around and make it look like look like you’re guilty when you’re not. 115 Just like I’m not. 116

I later heard it was roofies in Dane’s drink. Sitting in jail, I’ve had a lot of time to think, and 117 I bet that bottle came from my old roommate from last summer, Dylan, a student from Ireland. 118 Dylan must’ve left it in my room. You know roofies are legal there and they are all, like, into home 119 remedies. Dylan said the pills helped her/him sleep, and Dylan always had a hard time getting to 120 sleep. Not me. I sleep like a rock. So, back to the pills. Dude, I didn’t even know they were in the 121 house, and I sure didn’t put them in any drink. Hey, I don’t mess with pills. Marijuana isn’t a 122 “gateway” drug for me, I’m too smart for that. I don’t mess with other stuff. And, hey, I did not 123

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give Dane any drink. Sure I was mad at her, but not mad enough to kill anybody. All I wanted was 124 to have a nice Halloween and watch someone act crazy like last year and the year before. I never 125 intended Dane or anyone to die. I am not guilty. 126

WITNESS ADDENDUM

I have reviewed this statement and I have nothing of significance to add. The material facts are true and correct.

Signed, ___________________________________ Alex B. Toakliss SIGNED AND SWORN to before me at 8:00 a.m. on this day of this round of the 2010‐2011 Nebraska State High School Mock Trial Competition. ____________________________________________________ Stephanie Egger Gooch, Notary Public My Commission Expires: December 31, 2010

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Witness Statement of Francis(es) Beck

My name is Francis(es) Beck, but everyone calls me Frankie. When I was younger I wanted 1 people to me called Uuo‐‐pronounced “you‐you‐oh” if you couldn’t figure it out. I know it’s a 2 pretty strange nickname. When I was a little kid, my parents, Molly and Jimmy sent me to science 3 camp at the University. They both work there as professors. We were exposed to a lot of different 4 types of science and I fell in love with chemistry. I love mixing things together and blowing things 5 up! Ununoctium is the heaviest element and I thought it was a pretty cool name. See if you can 6 say it fast 8 times! The symbol for Ununoctium on the periodic table is Uuo and I thought it would 7 be great to be referred to as Uuo. The nickname never stuck, though. And can you really blame 8 me for not insisting people call me Francis (es)? So Frankie it is. 9

I know, I know, you are going to say that Uranium is the heaviest element, not Ununoctium. 10 As I see it, even though Uranium has the highest atomic weight for the naturally occurring 11 elements (atomic number 92), Ununoctium has the highest atomic weight of ALL of the elements 12 (atomic number 118). It’s also neat that only a couple of Ununoctium atoms have ever been made. 13 You can’t say that about Uranium! I am also aware that Osmium (Os) is the densest element—14 twice as dense at Lead (Pb). But I said heaviest, not densest. 15

Naturally, when I started at the University, I became Chemistry major. I have a minor in 16 Film Studies. I may be a nerd, but I’m not that much of a nerd! I have a cool side, too. 17

After my freshman year, I decided to move off campus and answered an ad that Alex placed 18 on Craig’s List for a roommate. I knew Alex Toakliss was in the Horticulture program at the 19 University. I think we had some of the same entry‐level science classes together, Biology 101, 20 General Chemistry. Alex had a reputation as a party animal and I had heard her/his own little 21 “horticultural” project going on in the backyard of the house, but I really needed a place to stay 22 even though they wouldn’t let me bring my pet rats, Lucky and Lady. I saved them from one of the 23 labs. The rest is history. Now I live at 7734 Bourbon Street. Even though we come from very 24 different backgrounds and have different study philosophies (like I believe in studying, Alex 25 prefers to be “one with nature” and learn by osmosis), we became fast friends. 26

Drew Coker was our third roommate. I never felt like I knew Drew as well as Alex, but we 27 never had any big problems, either. To be honest, the three of us got along pretty well. We also 28 had a reputation of having some of the best parties at school. Word of our parties always seemed 29 to spread like wildfire and people I didn’t even know would show up. Our Halloween parties were 30 the place to be. 31 The first year we lived together, we all dressed up like the Grim Reaper. I’m not even sure 32 whose idea it was, but we picked out a “target” and spiked that person’s drink with Foxglove. We 33

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took turns each year being the person who actually gave the drink to the target. No one but us 34 knew which of the Grim Reapers had the spiked drink. The target acted like an idiot, sometimes 35 threw up, but always made everyone laugh. It was all in good fun. No harm intended. Most years, 36 the target was even one of our friends. By the way, it was no secret that someone was going to be 37 “it”. It even became kind of a game for people to try and guess who the target was going to be. You 38 should have seen the posts on Facebook. We never revealed our target ahead‐of‐time, though. 39 Wikileaks had nothing on us! There was as much fun in the anticipation of it all. 40

Well, it was fun until this year. It wasn’t supposed to go down like that. Everyone was 41 having fun and the costumes were great. Lady Gaga made an appearance. Two Lindsay Lohans 42 were there‐‐one from the Freaky Friday era and one from cell block B. Dana Dane was dressed up 43 as Einstein. 44

It was Drew’s idea to make Dana the target. Alex, Drew and I had thrown around a lot of 45 names, but Drew insisted on Dana. That was fine by me. Dana was kind of a jerk and I thought it 46 would be funny to see Dana played the fool. We all thought so. 47

The night was going as planned. The three of us dressed up in our Grim Reaper costumes 48 and partied the night away. I’ll admit I had a few beers to drink. Why not? I wasn’t driving 49 anywhere. I told Officer Nelson I had about 4 drinks. That was just a guess, I’m not sure. I can tell 50 you, though, that I clearly remember what happened that night. It was terrible! Shortly before 51 midnight, Alex, Drew, and I gathered in the kitchen to make the vodka and grapefruit drinks we 52 were going to pass out. I left the kitchen to get ready to pass out my tray of drink. Alex and Drew 53 stayed behind to mix up the special drink for Dana. I never went back into the kitchen after that 54 because I got distracted by a game of Guitar Hero on the Wii. 55

Later I saw Alex and Drew come out of the kitchen with the last trays of drinks. I’m sure it 56 was Drew who had the tray with the marked glass. All three of us Grim Reapers had on similar 57 masks, but I could recognize those ratty Birkenstocks anywhere. I knew Drew had the marked 58 glass because we always put the special drink on the orange tray right on top of the Jack‐O‐59 Lantern decal. I thought that Alex was going to pass out the drink this year, since Drew and I had 60 already done it in years past, but I didn’t think too much of it. It really didn’t matter who passed 61 out the drink as it was all in good fun. 62

Everyone said “Trick or treat”, we passed out the drinks, and at the stroke of midnight it 63 was bottoms up. I got involved in a game of beer pong after that‐‐you know, the game where 64 teams try to get ping pong balls into cups filled with beer and the losing team drinks what’s in the 65 cups. I rock at that game! 66

You never knew how long it was going to take for our “target” to feel the effects of the 67 special drink so we all just went back to partying. That was until someone (I don’t remember 68 who) ran up to me and said that Dana looked really sick. I immediately went over to Dana. She 69 was standing there, swaying back and forth. She tried to say something, staggered and then fell to 70 the floor. I knew right away something was wrong! Dana couldn’t breathe and looked really out 71 of it. I yelled for someone to call 911, but everyone just ran. I think people were worried the cops 72 were going to come and bust them for MIP. I tried to get Dana to come to, but nothing worked. At 73 first I even thought it was a gag. Finally, I grabbed a phone myself and called 911. I have reviewed 74 the transcript of that call and it appears to be accurate. I have no idea whose voice that is in the 75 background. 76

I was alone with Dana until the ambulance and cops showed up. No one else was around. I 77 have no idea what happened to Drew and Alex I was really scared. After Officer Nelson told me 78 that Dana was dead, I felt like I was going to throw up. I couldn’t believe it. How could that have 79

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happened???? I mean, all we did was put a little Foxglove in her drink. Nelson told me to stick 80 around so I could answer questions. I was really stressed out. I don’t even know what I said, but if 81 Nelson said I said it, it’s probably true. 82 I do remember a lot of questions about what was in the drink we gave Dana and about who 83 actually handed the drink to her. All I know is that it was Dana’s turn this year and that when I 84 saw the special drink it was on Drew’s tray. I mean I can’t imagine Alex wearing Drew’s stinky 85 Birks! When I heard from the cops that there was a roofie in the drink, I was totally surprised. It 86 was supposed to be Foxglove. That’s what we all agreed on. Being a chemistry major, I know how 87 dangerous Rohyphol (flunitrazepam) can be. 88 Alex knew how dangerous flunitrazepam can be, too. That’s why I know s/he would never 89 intentionally put that in someone’s drink. A couple of semester’s ago we had a student from 90 Dublin University who was studying abroad live with us. Dylan O’Mally was her/his name. S/he 91 and Alex shared a room. O’Mally had a prescription for flunitrazepam that s/he brought from 92 Ireland. O’Mally said it was to help with insomnia. Alex and I talked about how crazy it is that a 93 drug can be legal in one country and illegal in another. We didn’t even want it in the house, but 94 Drew said “who cares? Dylan has a prescription for it.” I suppose Dylan may have left her/his 95 bottle behind when s/he left at the end of the semester. 96 Alex and Dana had their problems, but Alex would never intentionally give someone a drug 97 like that. Alex is too chill. Even if she/he didn’t like someone, he wouldn’t want to hurt them. 98 That Facebook thing has gotten all blown out of proportion. No one cared what Dana said. I know 99 it is not polite to speak ill of the dead, but she was such a blow‐hard. 100 Drew acted strange after this all went down. Like s/he had something to hide. I never 101 talked to her/him about it, but I did hear her/him talking to someone about it on the phone before 102 we all moved out of the house and I heard her/him say that “it wasn’t supposed to go down like 103 that. I just thought I would spice things up this year…” I have no idea who s/he was talking to. To 104 be honest, our friendship has not been the same since Dana died. We don’t talk much anymore. 105 Something about her/his attorney telling her/him not to talk to me about the case. I also think it’s 106 crazy that Alex was charged with manslaughter. This is all Drew’s fault. 107 If you want my opinion, Alex is a truthful person, s/he has never lied to me. 108 WITNESS ADDENDUM I have reviewed this statement and I have nothing of significance to add. The material facts are true and correct.

Signed, ___________________________________ Francis(es) Beck SIGNED AND SWORN to before me at 8:00 a.m. on this day of this round of the 2010‐2011 Nebraska State High School Mock Trial Competition. ____________________________________________________ Stephanie Egger Gooch, Notary Public My Commission Expires: December 31, 2010

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State of Nebraska BF111963 Plaintiff ) ) Vs. ) Alex Toakliss ) Honorable Tom Hupp Defendant. ) Presiding Judge )

Affidavit of Brook(e) Johnson

WHO am I? Who AM I? Who do I think I am? I am not the walrus. Am I a brain, an athlete, a 1 basket case, a princess or a criminal? Actually, I am more of a brain, and not really any of those 2 other people. I am a 4th year Junior at Goldenrod University. I am 21 years old and I major in 3 earth sciences/geology. I met Drew S. Coker our freshman year in biology. We hit it off right 4 away. I was never a roommate of Drew’s, but I used to hang out at their pad all the time. We were 5 in the math club and the physics club together. I live in the Niedermeyer dormitory at Goldenrod, 6 which is fairly close to the university. Oh, and I have a pet boa named Slither. Goldenrod is my 7 hometown, so my family is close to me. My Mom is a Physician’s Assistant at Goldenrod General 8 Hospital and my Dad is a chemist at Greiner Biophysics Lab. My older sister Dee is in law school 9 and my younger sister Michelle is still in high school. 10

I have been going to Drew’s Halloween parties since I was a freshman. You have to hang 11 around until midnight when one of the Grim Reapers hands out the magic drink. The first year I 12 had no idea it was going on. Drew told me to watch Sheldon Cooper. After he took a drink, he 13 started acting all crazy. The next year, Drew kept teasing me all night that I was gonna get it. I 14 believed her/him, so I actually left before midnight. My first junior year, I was in a rockin’ Elton 15 John costume. It worked well because I found some prescription glasses that I could wear, which 16 isn’t easy since my glasses are really thick. I went all out and got the rhinestone shirt, had all the 17 make up on and a big hat. Although Drew was teasing me that I was gonna get it, I decided to hang 18 around to see what would happen. 19

At midnight, when the Reaper came out, I happened to be standing right next to the victim. 20 Instead of acting all goofy like before, Dana immediately got sick and puked all over me and my 21 costume. Everyone laughed, but it wasn’t so funny to me. 22

This year, I went as Justin Bieber, I grew my hair out for 6 months so it would be long 23 enough to be in my eyes all night. I couldn’t pull off being Bieber with my glasses, so I didn’t wear 24 them. I kept singing Baby, baby, baby, OH! Baby, baby, baby, OH! It drove Drew crazy. The house 25 was packed. There were loads of people everywhere. It was off the hook. Drew was dressed like 26 the Reaper during the party. 27

Maybe I irritated Drew a little too much, because after s/he told me to stop singing Baby, 28 I saw Drew get into it with Dana Dane. I don’t really know what it was about to tell you the truth. 29 I don’t know about that. Drew and Dana have never really gotten along. Not sure what that’s 30 about. Anyway, it was no big deal. They had words and Drew stormed off. I told her/him not to 31 worry about that jerk and to go outside to cool off. Last time I saw Drew that night s/he was 32 outside smoking a joint with some people at about 11:30. Toakliss was out there too. I wasn’t. I 33

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pass on grass. I have a good job at Wal‐Mart paying my way through school. I can be drug tested 34 at any time. I’m not gonna risk that job just to get high. I was a little surprised to see Toakliss out 35 there. They are roommates, but Drew and Toakliss don’t really get along. I don’t ever talk to 36 Toakliss. S/he’s not my favorite. 37

I wasn’t in the kitchen when the drinks were getting prepared. They are very secretive 38 about that. It’s always just Drew, Toakliss, and Francis(es) Beck. No one else gets to know what is 39 in the drink or who is delivering the drink. I don’t think they pick out the victim, but Drew does 40 like to tease me about getting it on purpose, so I guess I don’t know. At midnight, I was talking to 41 my friend, Andy White, dressed as a green crayon. It was a hilarious costume. Anyway, the lights 42 in the house were dimmed. Just a few candles were lit. The music was really loud. They always 43 play Thriller at midnight, something about the irony in someone acting goofy with the spiked 44 drink being like the video where Michael Jackson turns into the werewolf. Michael Jackson’s 45 werewolf isn’t nearly as cool as Jacob’s in Twilight, but whatever. Maybe I’ll be Jacob next year... 46 Anyway, Dana Dane was standing right next me. I saw the Reaper hand the drink to Dana. It was 47 weird because the Reaper came straight across the room to Dana to give her the drink. I was 48 afraid this was the year that Drew was gonna’ give it to me, but the Reaper handed the first drink 49 to Dana. Then, the Reaper just kind of set the tray down and everyone else helped themselves. 50 Once Dana started to act goofy, I was afraid that I’d be puked on again, so I moved to the other side 51 of the room. Once, Dana fell to the ground, I hit the door. I had an MIP before and the last thing I 52 needed was to get a procuring ticket, because I knew there were minors there. I mean, I didn’t do 53 anything wrong, but I didn’t want to risk it. So I jetted. 54

Officer Nelson contacted me later. S/he asked me if I knew who was Reaper at the party. I 55 assumed it was Toakliss, I mean it’s her/his costume and s/he was wearing it earlier. I guess 56 everyone was wearing a Grim Reaper costume that night. No, I don’t think it was Drew. I mean 57 s/he’s my friend. S/he couldn’t do anything like that. In fact, I can’t believe I’m not testifying for 58 my friend, Drew. S/he didn’t tease me this year about picking me, so it couldn’t have been Drew. I 59 think it is Toakliss, but how should I know? I mean the Reaper smelled like pot when the drink 60 was passed out, I nearly passed out from the smell. Nelson asked me about the Reaper’s shoes. 61 My mom doesn’t like me to wear other people’s shoes. Nelson also asked how s/he was walking. 62 How should I know, I was looking for a drink, not for who was wearing the Reaper costume? I 63 wasn’t drunk or high. I only had a couple of drinks. It happened so fast. The last thing I expected 64 was for someone to die. It was just a joke. I sure don’t want to be involved, especially to help 65 Toakliss get off. They’re gonna’ have to force me to testify against Drew. 66

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WITNESS ADDENDUM I have reviewed this statement and I have nothing of significance to add. The material facts are true and correct.

Signed, ___________________________________ Brook(e) Johnson SIGNED AND SWORN to before me at 8:00 a.m. on this day of this round of the 2010‐2011 Nebraska State High School Mock Trial Competition. ____________________________________________________ Stephanie Egger Gooch, Notary Public My Commission Expires: December 31, 2010

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EXHIBIT #1: Crime Laboratory Report – Evidence

Official Report

Nebraska State Patrol Crime Laboratory State of Nebraska Requested Service: Test for drugs, fingerprints and/or DNA Agency: Goldenrod Police Department Requested by: Officer Conner Nelson

Evidence:

The lab received the following evidence for analysis from the submitting agency on 11/1/2009:

01 Sealed plastic bag containing crushed clear plastic cup containing residue 02 Sealed plastic bag containing mask and cloak 03 Sealed plastic bag containing unmarked pill bottle and pills

Results and Conclusions:

Submission 01 sample is positive for grapefruit juice, vodka, Foxglove and Rohypnol. Latent fingerprints were lifted from the cup that matched: Decedent Dana Dane Alex B. Toakliss Drew Coker Submission 02 was tested for latent fingerprints and DNA. No usable prints were found on either the mask or the cape. DNA findings from dried perspiration in the mask matched the DNA of: Alex B. Toakliss Submission 03 was tested for drug confirmation and latent fingerprints. Sample tested positive for 30 film coated tablets, Flunitrazepam commonly known as Rohypnol, ie. Date Rape Drug. Fingerprints were lifted from the pill bottle that matched:

Alex B. Toakliss

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EXHIBIT #2 – Autopsy Report ME – 10 – 272 AUTOPSY PERFORMED AT: NAME: DANE, DANA Goldenrod County Morgue AGE: 10/31/1986 (23) AUTOPSY AUTHORIZED BY: Doris Huffman Goldenrod County Attorney Goldenrod, NE TIME OF AUTOPSY: 9:00 a.m., Sunday 11/1/09 PROSECTOR: Verna A. Weber, M.D. CAUSE OF DEATH: Cardiopulmonary Arrest, secondary to a toxic multi-substance

overdose of Digoxin (Digitalis or Foxglove), Flunitrazepam (Rohypnol) & Citric Acid (Grapefruit Juice).

MANNER OF DEATH: Accidental

GROSS ANATOMIC DIAGNOSES:

External and Internal Gross Anatomy: Unremarkable

Presence of Naturally Occurring Disease: Non-existent with the exception of a medically documented history of Sleep Apnea.

Toxicology: Detectable Levels of Flunitrazepam & Digoxin present in urine.

MICROSCOPIC DIAGNOSES:

Microscopic analysis of internal organs is unremarkable.

SUMMARY: Decedent is a 23 old female that according to incident reports was drinking intoxicating liquor(s) mixed with grapefruit juice, at a social gathering, when she suddenly collapsed and lost consciousness. Efforts to resuscitate the decedent on scene and at the hospital were unsuccessful. Gross anatomical analysis, microscopic analysis and review of decedent’s medical history do not reveal the presence of any naturally occurring defects or diseases (other than past treatment for Sleep Apnea), which would have caused or contributed to death. Toxicology testing revealed the presence of Flunitrazepam (Rohypnol) and Digoxin (which is a drug class that is commonly detected in specimens where Foxglove or Digitalis purpurea use is suspected), which appears to be consistent with incident reports indicating that such substances may have been introduced, in some form or combination, into the decedent’s drink without

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ME-10-272 (Page 2 of 2) DANE, DANA (D/O/B: 10/31/1986) her knowledge. A review of recently published medical literature, based on clinical and peer reviewed study, indicates that a combination of Flunitrazepam, Digoxin (Foxglove or Digitalis) and citric acid can cause sudden, unexpected cardiopulmonary arrest, due to the onset of cardiac dysrhythmia (also known as arrhythmia), even when present in small dosages. Based upon these findings and analysis, the cause of decedent’s death is determined to be Cardiopulmonary Arrest, secondary to a toxic multi-substance overdose of Digoxin (Digitalis or Foxglove), Flunitrazepam (Rohypnol) & Citric Acid (Grapefruit Juice). The manner of decedent’s death is determined to be accidental.

______________________________ Verna A. Weber, M.D.

VAW/cam

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EXHIBIT #3 – Forensic Toxicology Report

FORENSIC TOXICOLOGY REPORT

AUTOPSY #: ME 10 – 272 NAME: Dana Dane DATE RECEIVED: 11/1/2009 SPECIMEN RECEIVED: VITREOUS HUMOR, URINE & BLOOD DOCTOR: WEBER COUNTY: GOLDENROD

BLOOD ETHANOL LEVL: 0.021 g/100 mL

DRUG TESTING RESULTS:

The urine immunoassay screen was positive for the following drugs/drug classes:

Flunitrazepam (0.6 ng/mL) Digoxin (0.8 ng/mL) The urine immunoassay screen was negative for the following drugs/drug classes: Amphetamines Cannabinoids Cocaine metabolite Phencyclidine Propoxyphene Benzodiazepines

Methadone Barbiturates Opiates ____________________________________ Lory Lilleoien, M.T. (ASCP), NRCC‐TC Certifying Scientist ____________________________________ Reviewed by: Cindy Bancroft, PhD., DABCC Director of Toxicology

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EXHIBIT #4 – 911 Transcript Dispatcher Erin Kelsey: 911, what’s your emergency? F. Beck: Help!! I need help right away! Send an ambulance, please! EK: What’s your emergency, please? FB: I need help!!! EK: Please calm down. I am trying to help you, but I need some information. What is your name? FB: Frankie Beck. I can’t get Dana to wake up. She just fell down and is not moving. EK: Where are you? FB: At my house, we live at 7734 Bourbon Street. Please come quickly! EK: The police and fire department are on their way. Just stay on the line with me until they get there. FB: Ok….. Unknown person yelling in the background: What’s happening????!!!! FB: I don’t know! Dana just fell down! What did you give her?!! Unknown person: What are you talking about? Where’s Alex? EK: Are you okay? What’s going on? FB: I just need an ambulance, fast! Oh man, I can’t believe this is happening…. EK: Who is hurt? FB: It’s Dana Dane. EK: What happened to Dana? FB: I’m not sure…… Drew gave Dana a drink spiked with Foxglove and next thing I know Dana’s on the floor! EK: What was in the drink? FB: I thought it was Foxglove I don’t know‐‐ I wasn’t there when they spiked the drink. The cops are here now. EK: Ok, you can hang up now. The officer will help you.

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EXHIBIT #5 – Unmarked Pill Bottle

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EXHIBIT #6 – Photographs of Grim Reaper Costume (courtesy of the South Carolina case)

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EXHIBIT #7 – Facebook Page

39a

EXHIBIT #7A – Facebook Page (Addendum)

The enlarged and clarified graphics below from Exhibit 7 are provided by the Goldenrod Police

Department. They are exact replicas of the profile pictures found in Exhibit 7.

Facebook Picture for Dana Dane

Facebook Picture for Terry/Terri Smith

Facebook Picture for Alex Toakliss

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EXHIBIT #8 – Halloween Party Invitation

Don’t fear the Grim Reaper!

At the best party house on campus

7734 Bourbon Street

Stay until MIDNIGHT for you know you. Maybe this year it will be your turn!

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EXHIBIT #9 – Patient Information Leaflet – Rohypnol

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EXHIBIT #10 – Crushed Plastic Cup

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NEBRASKA HIGH SCHOOL MOCK TRIAL RULES I. RULES OF THE COMPETITION

A. THE PROBLEM ............................................................................................................. 5152 1 Rules 2 The Problem 3 Witness Bound by Statements 4 Invention of Facts 5 Gender of Witnesses 6 Voir Dire

B. THE TRIAL ..................................................................................................................... 5256

7 Team Eligibility 8 Team Composition 9 Team Presentation

10 Team Duties 11 Swearing of Witnesses

12 Trial Sequence and Time Limits 13 Timekeeping 14 Time Extensions and Scoring 15 Prohibited Motions 16 Sequestration 17 Bench Conferences 18 Supplemental Material/Illustrative Aids 19 Trial Communication 20 Viewing a Trial 21 Videotaping/Photography

C. JUDGING ......................................................................................................................... 5657

22 Decisions 23 Composition of Panel 24 Score Sheets/Ballots 25 Courtroom Decorum 26 Pre‐Trial Conferences

27‐29 Reserved for future use

D. DISPUTE RESOLUTION .............................................................................................. 5758 30 Reporting a Rule Violation/Inside the Bar

31 Dispute Resolution Procedure 32 Effect of Violation on Score 33 Reporting a Rule Violation/Outside the Bar

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II. RULES OF PROCEDURE A. BEFORE THE TRIAL .......................................................................................................... 58

34 Team Roster 35 Stipulations 36 The Record

B. BEGINNING THE TRIAL ............................................................................................. 5859 37 Jury Trial

38 Standing During Trial 39 Objection During Opening Statement/Closing Argument

C. PRESENTING EVIDENCE ............................................................................................ 5960

40 Argumentative Questions 41 Lack of Proper Predicate/Foundation 42 Procedure for Introduction of Exhibits 43 Use of Notes 44 Redirect/Recross

D. CLOSING ARGUMENTS ..................................................................................................... 60

45 Scope of Closing Arguments

E. DEBRIEFING/CRITIQUE .................................................................................................. 60 46 The Debriefing/Critique III. THE FEDERAL RULES OF EVIDENCE (Mock Trial Version)

ARTICLE I. GENERAL PROVISIONS ............................................................................. 61 101 Scope

102 Purpose and Construction

ARTICLE IV. RELEVANCY AND ITS LIMITS ......................................................... 6163 401 Definition of "Relevant Evidence" 402 Relevant Evidence Generally Admissible;

Irrelevant Evidence Inadmissible 403 Exclusion of Relevant Evidence on Grounds

of Prejudice, Confusion, or Waste of Time 404 Character Evidence Not Admissible to Prove Conduct;

Exceptions; Other Crimes 405 Methods of Proving Character 406 Habit; Routine Practice 407 Subsequent Remedial Measures 408 Compromise and Offers to Compromise 409 Payment of Medical or Similar Expenses 410 Inadmissibility of Pleas, Plea Discussions, and Related Statements 411 Liability Insurance

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ARTICLE V. PRIVILEGES ................................................................................................. 64 501 General Rule

ARTICLE VI. WITNESSES .......................................................................................... 6467 601 General Rule of Competency

602 Lack of Personal Knowledge 607 Who May Impeach 608 Evidence of Character and Conduct of Witness 609 Impeachment by Evidence of Conviction of Crime 610 Religious Beliefs or Opinions 611 Mode and Order of Interrogation and Presentation 612 Writing Used to Refresh Memory 613 Prior Statements of Witnesses

ARTICLE VII. OPINIONS AND EXPERT TESTIMONY ........................................ 6768 701 Opinion Testimony by Lay Witness

702 Testimony by Experts 703 Bases of Opinion Testimony by Experts 704 Opinion on Ultimate Issue 705 Disclosure of Facts or Data Underlying Expert Opinion

ARTICLE VIII. HEARSAY ........................................................................................... 6872

801 Definitions 802 Hearsay Rule 803 Hearsay Exceptions, Availability of Declarant Immaterial 804 Hearsay Exceptions, Declarant Unavailable 805 Hearsay within Hearsay

ARTICLE XI. OTHER ......................................................................................................... 72

1103 Title

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I. RULES OF THE COMPETITION The Rules of the Competition are based on the rules of the National High School Mock Trial Competition. Some additions or modifications have been made for Nebraska. A. THE PROBLEM Rule 1. Rules All trials are governed by the Nebraska High School Mock Trial Rules of the Competition, the Rules of Procedure, and the Federal Rules of Evidence (Mock Trial Version). The Nebraska Code of Criminal Procedure applies to this trial. Questions or interpretations of these rules are within the discretion of the mock trial coordinators, whose decisions are final. Rule 2. The Problem The problem is an original fact pattern, which may contain any or all of the following: statement of facts, indictment, stipulations, witness statements/affidavits, jury charges, exhibits, etc. Stipulations may not be disputed at trial. Witness statements may not be altered. Rule 3. Witness Bound by Statements Each witness is bound by the facts contained in her/his own witness statement, the statement of facts, if present, and/or any necessary documentation relevant to her/his testimony. If, on direct examination, an attorney asks a question which calls for an invention of facts, the

question is subject to objection under Rule 4. If, on cross‐examination, an attorney asks a question which calls for an invention of facts, the

witness may or may not respond, so long as any response is consistent with the witness' statement or affidavit. The question is not subject to objection. See Rule 4 for further clarification.

A witness is not bound by facts contained in other witness statements. Rule 4. Invention of Facts Inventions of facts are best attacked through impeachment and closing arguments and are to be dealt with in the course of the trial. The purpose of this rule is to keep the case as even as possible by not allowing either side to create an advantage for their side by inventing facts. In real trials this rule is not necessary because all of the facts are within the knowledge of the witnesses. Since mock trials use created fact situations, all of the necessary facts may not be within the knowledge of the witnesses. Therefore, for mock trials we need a rule to prevent inventions of facts that are not included in the case materials. When an attorney objects to an invention of facts, the judge will rule in open court to clarify the course of further proceedings. The decision of the presiding judge regarding invention of facts or evidentiary matters is final.

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Direct and Redirect Examination Attorneys shall not ask questions calling for an invention of facts and witnesses shall not provide answers that involve an invention of facts. Attorneys for the opposing team may refer to Rule 4 in a special objection, such as: "Objection, Your Honor. The question calls for an invention of facts."

Cross and Recross Examination

An invention of facts may only be allowed on cross or recross examination and only if the question being asked calls for facts that are not included in the case materials. If a witness is asked a question calling for an invention of facts, the witness may respond: 1. "I do not know the answer to that question because that information is not contained in

the Nebraska Mock Trial case materials." OR 2. With any answer which is consistent with the witness' affidavit and other substantive

issues of the case. An answer that is contrary to the witness’ affidavit may be impeached.

Rule 5. Gender of Witnesses All witnesses are gender neutral. Personal pronoun changes in witness statements indicating gender of the characters may be made. Any student may portray the role of any witness of either gender. In certain years the Nebraska case may have a specific gender witness role. This may be portrayed by any student on the team. Rule 6. Voir Dire Voir dire examination of a witness is not permitted. This is the preliminary questioning of a witness or juror to determine competency, prejudices, biases, or personal knowledge. B. THE TRIAL Rule 7. Team Eligibility Each team competing in the Nebraska High School Mock Trial Project must be composed of students who are registered in grades 9‐12 in a Nebraska public, private or home school. Schools may enter as many teams as they can effectively organize and properly supervise. [Special permission may be granted for two schools to register a combined team. Contact the State Mock Trial Coordinator.] Exceptions on eligibility issues will be considered on a case‐by‐case basis. A team that earns the right to compete at the State Championship shall be composed of the same students (including alternates) that participated at the Regional competition. If any student participant from the Mock Trial team is unable to compete and there are no alternates, another student may substitute for such participant as provided herein. The individual acting as the substitute must be enrolled as a student at the school and not have served on any other Mock Trial team at that school. Participation by an ineligible team member shall result in forfeiture of each trial in which the ineligible team member participated.

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To be a part of the competition, schools must register their teams by completing and mailing the Official Mock Trial Entry Form to the State Coordinator, along with a check for $35 PER TEAM (made payable to the Nebraska State Bar Foundation) no later than September 13, 2010. Also by September 13, 2010, each school should forward to the Regional Coordinator, a school activities calendar for October and November. Rule 8. Team Composition Teams may consist of a minimum of six and a maximum of eight students. Only SIX members may participate in any given trial. The duties of the two alternate team members may be assigned at the discretion of the coaches. Students may only participate on one team per school year. Student timekeepers may be provided, but are not considered "official timekeepers" unless so designated by the trial judge. Rule 9. Team Presentation Teams must be prepared to present both the Prosecution and Defense sides of the case, using SIX team members per trial. For each trial, teams shall use three students as attorneys and three students as witnesses. In the event of an emergency that would cause a team to participate with less than six members, the team must notify the Regional Coordinator as soon as possible. If the Regional Coordinator agrees that an emergency exists, he or she will decide whether the team will forfeit a trial or take appropriate measures to continue a trial round with less than six members. Trials may be rescheduled at the discretion of the Regional Coordinator. If the Regional Coordinator is unavailable, the presiding judge will make these decisions. A team proceeding with fewer than six team members may have points deducted from their point totals at the discretion of the scoring judges. A team that forfeits a trial shall be given zero points, zero judges' ballots and a loss on their trial record. A team that was to have competed against a forfeiting team shall receive a win on their trial record. The starting time of any trial may not be delayed longer than 15 minutes, unless agreed to by both teams and the presiding judge. Rule 10. Team Duties Each of the three attorneys shall conduct one direct examination and one cross examination. In addition, one attorney shall present the opening statement and a different attorney shall present the closing argument. Opening Statements must be given by both sides at the beginning of the trial. The attorney who will cross‐examine a particular witness is the only one permitted to make objections during the direct examination of that witness, and the attorney who questions a particular witness on direct examination is the only person who may make objections during cross‐examination of that witness.

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Each team must call three witnesses. Witnesses shall be called only by their own team. Witnesses shall be examined by both teams. Witnesses may not be recalled by either team. Rule 11. Swearing of Witnesses Witnesses shall be sworn, either individually or as a group, by the presiding judge, using the following oath: "Do you promise that the testimony you are about to give will faithfully and truthfully conform to the facts and rules of the mock trial competition?" Rule 12. Trial Sequence and Time Limits The trial sequence shall be as follows:

1. Prosecution’s opening statement 2. Defense’s opening statement 3. Prosecution’s direct examination and Defense’s cross‐examination of Prosecution’s

three witnesses 4. Defense’s direct examination and Prosecution’s cross‐examination of Defense’s three

witnesses 5. Prosecution's closing argument 6. Defense’s closing argument 7. Prosecution may reserve a portion of its closing argument time for rebuttal if it does so

at the beginning of its closing argument. The Prosecution's rebuttal, if any, is limited to the scope of the Defense’s closing argument.

Time Limits

1. Each team shall have a total of 10 minutes for Opening Statement and Closing Argument. For example, a 3 minute opening and a 7 minute closing.

2. Each team shall have a total of 25 minutes for Direct and Redirect Examination. 3. Each team shall have a total of 20 minutes for Cross and Recross Examination.

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, except as allowed by this rule. Rule 13. Timekeeping Time limits are mandatory and shall be enforced by the presiding judge. Time for objections, extensive questioning from the judge, or administering the oath shall NOT be counted as part of a team's allotted time. Time does not stop for introduction of exhibits. Each team may have its own timekeeper for the benefit of the team. Rule 14. Time Extensions and Scoring The presiding judge has sole discretion to grant time extensions. If time has expired and an attorney continues without permission from the presiding judge, the scoring judges may determine individually whether or not to deduct points in a category because of the overrun in time.

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Rule 15. Prohibited Motions No motions may be made. For example, a motion for directed verdict, acquittal, or dismissal of the case at the end of the Prosecution's case may not be used. A motion for a recess may be used only in the event of an emergency. Should a recess be called, team members are to remain in place and shall not communicate with any observers, timekeepers, coaches, or instructors regarding the trial. Rule 16. Sequestration

Teams may not invoke the rule of sequestration of witnesses (exclusion of witnesses from the courtroom). Rule 17. Bench Conferences Bench conferences may be granted at the discretion of the presiding judge, but should be made from the counsel table in the educational interest of handling all matters in open court. Rule 18. Supplemental Material/Illustrative Aids During the trial teams may refer only to materials included in the mock trial case packet. No physical evidence, illustrative aids, enlargements, props or costumes are permitted unless authorized specifically in the case materials. Rule 19. Trial Communication Teacher sponsors, attorney coaches, non‐participating team members, and observers shall not talk to, signal, communicate with, or coach their teams during trial. This rule remains in force during any recess time that may occur. Team members participating in the trial may, among themselves, communicate during the trial; however, no disruptive communication is allowed. Signaling of time by the teams' timekeepers shall not be considered a violation of this rule. Non‐participating team members, teacher sponsors, attorney coaches, and observers must remain outside the bar in the spectator section of the courtroom. Only team members participating in the particular trial may sit inside the bar. Rule 20. Viewing a Trial Local and Regional Trials Check with the Regional Coordinator for your county regarding persons not associated with the competing teams viewing a trial. Coordinators may choose one of the following options: A. All trials are open to the public. Trials may be videotaped only by the competing schools or

local media, OR B. Only team members, alternates, attorney‐coaches, teacher‐sponsors, observers or other

persons directly associated with the competing teams may view a trial. Videotaping is allowed only by the competing teams IF both teams agree to permit it.

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State and National Championships Team members, alternates, attorney‐coaches, teacher‐sponsors, and any other persons directly associated with a mock trial team, except those authorized by the State Coordinator or the National Board, are not allowed to view other teams in competition, so long as their team remains in the competition. Rule 21. Videotaping/Photography

Local and Regional Trials ‐‐ See Rule 20. State and National Championships ‐‐ Any team has the option to refuse participation in videotaping, tape recording, still photography, or media coverage, except that media coverage will be allowed by the two teams in the championship round. C. JUDGING Rule 22. Decisions All decisions of the judging panel are FINAL. Rule 23. Composition of Panel The judging panel shall consist of one presiding judge and two scoring judges, all of whom shall complete individual score sheets. No mock trial shall proceed without three judges, unless one mock trial judge is unavoidably, unexpectedly absent. [Contact your coordinator if a mock trial judge is absent.] If one mock trial judge is unavoidably, unexpectedly absent, the other two judges may proceed to score the trial and determine a winner by mutual agreement. If the two judges cannot agree on a winner, then the two teams shall retry the case at a mutually agreeable later date. Any mock trial with less than two judges shall be rescheduled by the two participating schools at a mutually agreeable later date. The state championship trial may have a panel of five to twelve jurors (mock trial judges) at the discretion of the State Coordinator. Rule 24. Score Sheets/Ballots The term "ballot" will refer to the decision made by a presiding or scoring judge as to which team made the best presentation in the trial. The term "score sheet" is used in reference to the form on which speaker and team points are recorded. Score sheets are to be completed individually by all three judges. Scoring judges are not bound by the rulings of the presiding judge. The team that earns the highest points on an individual judge's score sheet is the winner of that ballot. The team that receives the majority of the three ballots wins the trial. Whether or not teams receive copies of the score sheets from their trials is up to the discretion of the local coordinators.

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Rule 25. Courtroom Decorum Mock trials are meant to simulate real trials in a courtroom atmosphere. Participants should act and dress accordingly. Check with your local coordinator for guidelines. Rule 26. Pretrial Conferences Each mock trial should begin with a pretrial conference held in open court with all participants, coaches and spectators present. Mock trial attorneys may ask the presiding judge to mark exhibits and clarify rules of procedure or rules of evidence. Roster forms should be presented to all three judges. D. DISPUTE RESOLUTION Rule 30. Reporting a Rule Violation/Inside the Bar Alleged rule violations that involve students competing in a trial and occur during the trial should be brought to the attention of the presiding judge by a student attorney through an objection at the time of the alleged violation. The presiding judge shall rule on the objection and the trial shall continue. Any alleged rule violation known, or through the exercise of reasonable diligence should have been discovered during the trial and which is not brought to the attention of the judge, is waived. If an alleged material rule violation could not reasonably have been discovered until after the trial has concluded, the alleged violation should be brought to the attention of the presiding judge immediately at the conclusion of the trial. The scoring judges will be excused from the courtroom and the presiding judge will provide the student attorney with a dispute form on which the student will record in writing the nature of the alleged rule violation. The student attorney may communicate with co‐counsel and student witnesses before preparing the form. At no time in this process may teacher sponsors, attorney coaches or observers communicate with the students. Rule 31. Dispute Resolution Procedure The presiding judge will review the written dispute form and determine whether the dispute should be heard or denied. If the dispute is denied, the judge will record the reasons for this, announce her/his decision in open court, retire to complete her/his score sheet and turn the dispute form in with the score sheets. If the presiding judge feels the grounds for the dispute merit a hearing, the form will be shown to opposing counsel for their written response. After the team has recorded its response and transmitted it to the judge, the judge will ask each team to designate a spokesperson. After the spokespersons have had time (not to exceed three minutes) to prepare their arguments, the judge will conduct a hearing on the dispute, providing each team's spokesperson three minutes for a presentation. The spokespersons may be questioned by the judge. At no time in this process may teacher sponsors, attorney coaches or observers communicate with the students. After the hearing the presiding judge will adjourn the court and retire to consider her/his ruling on the dispute. That decision will be recorded in writing on the dispute form, with no further announcement.

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Rule 32. Effect of Violation on Score If the presiding judge determines that a material rule violation has occurred, the judge will inform the scoring judges of the dispute and provide a summary of each team's argument. The scoring judges will consider the rule violation before reaching their final decisions. The dispute may or may not affect the final decision, but the matter will be left to the discretion of the scoring judges. Rule 33. Reporting of Alleged Rule Violation /Outside the Bar Disputes that involve people other than student team members and occur outside the bar during a trial round may be brought by teacher sponsors or attorney coaches exclusively. Such disputes must be made promptly to the appropriate local coordinator who will ask the complaining party to complete a dispute form. The form will be taken by the coordinator. The coordinator will (a) notify all pertinent parties; (b) allow time for a response, if appropriate; and (c) rule on the charge. The coordinator will notify all pertinent parties of her/his decision.

II. RULES OF PROCEDURE

The Nebraska Rules of Procedure are based on the Rules of the National High School Mock Trial Competition. A. BEFORE THE TRIAL Local coordinators will schedule trials once the school activities forms are completed by the individual teams. Twelve teams will compete at the state championship – one from each of twelve regions. Rule 34. Team Roster Before beginning a trial the teams must exchange copies of the Team Rosters. The form shall identify the gender of each witness so that references to such parties shall be made in the proper gender. Copies of the Team Rosters shall be made available to all three judges during the pretrial conference. A copy of the team roster shall be provided to the Regional Coordinator at the start of the regional competition. Rule 35. Stipulations The attorney assigned the Prosecution’s opening statement shall offer any stipulations into evidence prior to beginning the opening statement. Rule 36. The Record The stipulations, indictment and charge to the jury shall not be read into the record. B. BEGINNING THE TRIAL Rule 37. Jury Trial The case shall be tried to a jury; arguments are to be made to judge and jury. Teams may address the scoring judges as the jury.

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Rule 38. Standing During Trial Based on the Rule 4.16 of the National High School Mock Trial Competition Rules all attorneys shall stand when addressing the court or the jury, including opening statements, closing arguments, direct and cross‐examination, and for the making of objections. Direct and cross‐examination may be conducted from counsel table, a podium, or with leave of the court, from any place in the well of the court. Counsel shall obtain permission from the court before approaching a witness. Rule 39. Objection During Opening Statement/Closing Argument No objections may be raised during opening statements or closing arguments. If a team believes an objection would have been proper during the opposing team's closing argument, one of its attorneys may, following the closing argument, raise her/his hand to be recognized by the judge and say, "If I had been permitted to object during closing arguments I would have objected to the opposing team's statement that ________." The presiding judge shall not rule on this "objection." Judges shall weigh the "objection" individually for purposes of determining their scores. No rebuttal by opposing team shall be heard. C. PRESENTING EVIDENCE Rule 40. Argumentative Questions An attorney shall not ask argumentative questions. However, the Court may, in its discretion, allow limited use of argumentative questions on cross‐examination. Rule 41. Lack of Proper Predicate/Foundation Attorneys shall lay a proper foundation prior to moving for the admission of evidence. After motion has been made, the exhibits may still be objected to on other grounds. Rule 42. Procedure for Introduction of Exhibits As an example, the following steps effectively introduce evidence.

1. All evidence shall 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 Exhibit No.__?"

3. Show the exhibit to opposing counsel. 4. Ask for permission to approach the witness. Give the exhibit to the witness.

"I now hand you what has been marked as Exhibit No.___ for identification." 5. Ask the witness to identify the exhibit. "Would you identify it please?"

Witness answers with identification only. 6. Offer the exhibit into evidence. "Your Honor, we offer Exhibit No.__ into evidence at this

time. The authenticity of this exhibit has been stipulated." 7. Presiding Judge: "Is there an objection?"

If proper foundation has not been laid, opposing counsel should object at this time. 8. Opposing Counsel: "No, your Honor," or "Yes, your Honor proper foundation has not

been laid for Exhibit No. ." 9. Presiding Judge: "Is there any response to the objection?"

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10. Presiding Judge: "Exhibit No. __ is/is not admitted."

Rule 43. 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. Rule 44. Redirect/Recross Redirect and recross examinations are permitted, provided they conform to the restrictions in Rule 611(b) in the Federal Rules of Evidence (Mock Trial Version). D. CLOSING ARGUMENTS Rule 45. Scope of Closing Arguments Closing arguments must be based on the actual evidence and testimony presented during the trial. E. DEBRIEFING/CRITIQUE Rule 46. Debriefing/Critique The judging panel is allowed 10 minutes for debriefing. Presiding judges shall limit debriefing sessions to the 10 minutes total time allotted.

III. FEDERAL RULES OF EVIDENCE (Mock Trial Version)

In American trials, complex rules are used to govern the admission of proof (i.e., oral or

physical evidence). These rules are designed to ensure that all parties receive a fair hearing and to exclude evidence deemed irrelevant, incompetent, untrustworthy, unduly prejudicial, or otherwise improper. If it appears that a rule of evidence is being violated, an attorney may raise an objection to the judge. The judge then decides whether the rule has been violated and whether the evidence must be excluded from the record of the trial. In the absence of a properly made objection, however, the judge will probably allow the evidence. The burden is on the mock trial team to know the Nebraska High School Mock Trial Rules of Evidence and to be able to use them to protect their client and fairly limit the actions of opposing counsel and their witnesses.

For purposes of mock trial competition, the Rules of Evidence have been modified and

simplified. They are based on the Federal Rules of Evidence and its numbering system. Where rule numbers or letters are skipped, those rules were not deemed applicable to mock trial procedure. Text in italics or underlined represent simplified or modified language.

Not all judges will interpret the Rules of Evidence (or procedure) the same way, and mock

trial attorneys should be prepared to point out specific rules (quoting, if necessary) and to argue persuasively for the interpretation and application of the rule they think appropriate.

The Mock Trial Rules of Competition and these Nebraska High School Mock Trial Rules of

Evidence govern Nebraska High School Mock Trial competition.

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ARTICLE I. GENERAL PROVISIONS Rule 101. Scope

These National High School Mock Trial Rules of Evidence govern the trial proceedings of the National High School Mock Trial Championship.

Rule 102. Purpose and Construction

These Rules are intended to secure fairness in administration of the trials, eliminate unjust delay, and promote the laws of evidence so that the truth may be ascertained.

ARTICLE IV. RELEVANCY AND ITS LIMITS Rule 401. 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.

Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

All relevant evidence is admissible, except as otherwise provided by these Rules. Evidence which is not relevant is not admissible.

Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of

Time

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes

(a) Character evidence generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1) Character of accused ‐ In a criminal case, evidence of a pertinent trait of character

offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2), evidence of the same trait of character of the accused offered by the prosecution;

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(2) Character of alleged victim ‐ In a criminal case evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor;

(3) Character of witness ‐ Evidence of the character of a witness, as provided in Rules

607, 608 and 609.

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Rule 405. Methods of Proving Character

(a) Reputation or opinion. ‐ In all cases where evidence of character or a character trait is admissible, proof may be made by testimony as to reputation or in the form of an opinion. On cross‐examination, questions may be asked regarding relevant, specific conduct.

(b) Specific instances of conduct. ‐ In cases where character or a character trait is an

essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct. Rule 406. Habit, Routine Practice

Evidence of the habit of a person or the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization, on a particular occasion, was in conformity with the habit or routine practice. Rule 407. Subsequent Remedial Measures

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. Rule 408. Compromise and Offers to Compromise

(a) Prohibited uses. Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:

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(1) furnishing or offering or promising to furnish‐‐or accepting or offering or

promising to accept‐‐a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or statements made in compromise negotiations regarding the claim,

except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

(b) Permitted uses. This rule does not require exclusion if the evidence is offered for

purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.

Rule 409. Payment of Medical or Similar Expenses Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury. Rule 410. Inadmissibility of Pleas, Plea Discussions, and Related Statements

Except as otherwise provided in this Rule, evidence of the following is not, in any civil or criminal proceeding, admissible against a defendant who made the plea or was a participant in the plea discussions:

(1) a plea of guilty which was later withdrawn; (2) a plea of nolo contendere; (3) any statement made in the course of any proceeding under Rule 11 of the Federal

Rules of Criminal Procedure or comparable state proceeding regarding either of the foregoing pleas; or

(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which does not result in a plea of guilty or which results in a plea of guilty which is later withdrawn.

However, such a statement is admissible (1) in any proceeding wherein another statement

made in the course of the same plea or plea discussions has been introduced and the statement ought, in fairness, be considered with it, or (2) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.

Rule 411. Liability Insurance (civil case only)

Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

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ARTICLE V. PRIVILEGES Rule 501. General Rule

There are certain admissions and communications excluded from evidence on grounds of public policy. Among these are:

(1) communications between husband and wife; (2) communications between attorney and client; (3) communications among grand jurors; (4) secrets of state; and (5) communications between psychiatrist and patient.

ARTICLE VI. WITNESSES Rule 601. General Rule of Competency

Every person is competent to be a witness. Rule 602. Lack of Personal Knowledge

A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony. This rule is subject to the provisions of Rule 703, related to opinion testimony by expert witnesses. (See Rule 2.2) Rule 607. Who May Impeach

The credibility of a witness may be attacked by any party, including the party calling the witness.

Rule 608. Evidence of Character and Conduct of Witness

(a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

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(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross‐examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross‐examined has testified.

The giving of testimony, whether by an accused or by any other witness, does not operate

as a waiver of the accused or the witness' privilege against self‐incrimination when examined with respect to matters that relate only to character for truthfulness.

Rule 609. Impeachment by Evidence of Conviction of Crime

(a) General rule. For the purpose of attacking the character for truthfulness of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and

(2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.

(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of

more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

(c) Effect of pardon, annulment, or certificate of rehabilitation. Evidence of a

conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime that was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

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(d) Juvenile adjudication. Evidence of juvenile adjudication is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

Rule 610. Religious Beliefs or Opinions

Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness’ credibility is impaired or enhanced. Rule 611. Mode and Order of Interrogation and Presentation

(a) Control by Court. ‐ The Court shall exercise reasonable control over questioning of witnesses and presenting evidence so as to:

1. make the interrogation and presentation effective for ascertaining the truth, 2. avoid needless consumption of time, and 3. protect witnesses from harassment or undue embarrassment.

(b) Scope of cross examination. ‐ The scope of the 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.

(c) Leading questions. ‐ Leading questions should not be used on direct examination of a

witness except as may be necessary to develop the witness’ testimony. Ordinarily leading questions should be permitted on cross‐examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

(d) Redirect/Recross. ‐ After cross examination, additional questions may be asked by the

direct examining attorney, but questions must be limited to matters raised by the attorney on cross examination. Likewise, additional questions may be asked by the cross examining attorney or recross, but such questions must be limited to matters raised on redirect examination and should avoid repetition.

Rule 612. Writing Used to Refresh Memory

If a written statement is used to refresh the memory of a witness either while testifying or before testifying, the Court shall determine that the adverse party is entitled to have the writing produced for inspection. The adverse party may cross examine the witness on the material and introduce into evidence those portions, which relate to the testimony of the witness.

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Rule 613. Prior Statements of Witnesses

(a) Examining Witness Concerning Prior Statement. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.

(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party‐opponent as defined in rule 801(d)(2).

ARTICLE VII. OPINIONS AND EXPERT TESTIMONY Rule 701. Opinion Testimony by Lay Witness

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Rule 702. 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 thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Rule 703. Bases of Opinion Testimony by Experts

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.

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Rule 704. Opinion on Ultimate Issue

(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

(b) No expert witness testifying with respect to the mental state or condition of a defendant

in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

Rule 705. Disclosure of Facts or Data Underlying Expert Opinion

The expert may testify in terms of opinion or inference and give reasons therefore without first testifying to the underlying facts or data, unless the Court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross examination.

ARTICLE VIII. HEARSAY Rule 801. 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. (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 of a person made after perceiving the person; or

(2) Admission by partyopponent. The statement is offered against a party and is (A) the party's own statement in either an individual or a representative

capacity or

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(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 coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).

Rule 802. Hearsay Rule

Hearsay is not admissible except as provided by these Rules.

Rule 803. Hearsay Exceptions, Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(1) Present sense impression. ‐ A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

(2) Excited utterance. ‐ A statement relating to a startling event or condition made while

the declarant was under the stress of excitement caused by the event or condition. (3) Then existing mental, emotional, or physical conditions. ‐ A statement of the

declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.

(4) Statements for purposes of medical diagnosis or treatment. Statements made for

purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

(5) Recorded recollection. ‐ A memorandum or record concerning a matter about which

a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

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(6) Records of regularly conducted activity. ‐ A memorandum, report, record, or data

compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or date compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

(8) Public records and reports. ‐ Records, reports, statements, or data compilations, in

any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

(18) Learned treatises. ‐ To the extent called to the attention of an expert witness upon

cross examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

(21) Reputation as to character. ‐ Reputation of a person’s character among associates or

in the community. (22) Judgment of previous conviction. ‐ Evidence of a final judgment, entered after a trial

or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused.

Rule 804. Hearsay Exceptions, Declarant Unavailable

(a) Definition of unavailability. “Unavailability as a witness” includes situations in which the declarant

(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement; or

(2) persists in refusing to testify concerning the subject matter of the declarant’s

statement despite an order of the court to do so; or

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(3) testifies to a lack of memory of the subject matter of the declarant’s statement; or (4) is unable to be present or to testify at the hearing because of death or then existing

physical or mental illness or infirmity; or (5) is absent from the hearing and the proponent of a statement has been unable to

procure the declarant’s attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant’s attendance or testimony) by process or other reasonable means. A Declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.

(b) Hearsay exceptions: The following are not excluded by the hearsay rule if the

declarant is unavailable as a witness:

(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

(2) Statement under belief or impending death. In a prosecution for homicide or in a

civil action or proceeding, a statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

(3) Statement against interest. A statement which was at the time of its making so far

contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

(4) Statement of personal or family history. (A) A statement concerning the

declarant’s own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other’s family as likely to have accurate information concerning the matter declared.

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(5) Forfeiture by wrongdoing. A statement offered against a party that has engaged

or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

Rule 805. Hearsay within Hearsay

Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statement conforms with an exception to the hearsay rule provided in these rules. ARTICLE XI. OTHER Rule 1103. Title

These rules may be known and cited as the Nebraska High School Mock Trial Federal Rules of Evidence.

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OFFICIAL TEAM ROSTER FORM Before beginning a trial the teams must exchange copies of the Team Rosters. The form shall identify the gender of each witness so that references to such parties shall be made in the proper gender. Copies of the Team Rosters shall also be made available to all three judges during the pretrial conference. At the conclusion of each trial, the presiding judge shall forward a copy of each team's roster to the local coordinator. No changes in a team's roster should be made after the first round of local competition. Contact your local coordinator with questions. NAME OF SCHOOL: Name of Team (if school has more than one team):

During this trial our team (Circle One) will be representing the: Prosecution Defense

STUDENT ATTORNEYS

Name Direct Examination Cross Examination Other 1. 2. 3.

WITNESSES Name (Circle One) Trial Name 1. Male/Female 2. Male/Female 3. Male/Female

NAMES OF ALTERNATES 1. 2. AttorneyCoach: Signature of Teacher:

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TRIAL SCORING & DEDUCTION OF POINTS TRIAL SCORING: Trial winners are determined by which team earns the most judges' ballots. Do NOT add the two performance judges’ team totals together to determine the trial winner. Each of the performance judges should total their scores separately. If an individual judge's team totals are the same for both teams, that judge should indicate on the line If my total scores are tied, the win goes to , which of the teams s/he feels gave the best overall performance. The team which earns the greatest number of points on a judge's score sheet (or receives the judge's vote if the numbers were tied) wins that judge's ballot. TO WIN A TRIAL, A TEAM MUST WIN AT LEAST TWO JUDGES' BALLOTS. In other words, if each of the performance judges has awarded the greatest number of points to the same team, that team is the winner. If the performance judges have made a "split" decision (i.e., each awarded the most points to a different team) then the presiding judge must determine the winner based on which team gave the best overall performance. Example A: Judge Smith's: Team #1 83 points & Judge Jones' Team #1 80 points & score sheet shows: Team #2 76 points score sheet shows: Team #2 78 points In Example A, Team #1 is the clear winner because both performance judges gave them a greater number of points than the judges gave to Team #2 ‐‐ 83 and 80 versus 76 and 78. Example B: Judge Smith's: Team #1 83 points & Judge Jones' Team #1 79 points & score sheet shows Team #2 76 points score sheet shows: Team #2 80 points In Example B, Judge Smith has chosen Team #1 as the winner. Judge Jones has chosen Team #2 as the winner. Even though one team has more total points than the other, it is the number of judges' ballots NOT the total points which determines a trial winner. Therefore, this is a situation in which the performance judges have given a "split" decision. The presiding judge must determine the winner based upon overall team performance. In example B the team which earns the presiding judge's vote/ballot is the trial winner. DEDUCTION OF POINTS: Performance judges may, at their discretion, consider subtracting points from an individual's score because of rule violations. For example, if a team violates its time limits, the performance judges MAY decide to reduce the points given to each of the three attorneys, or reduce the point total of the attorney who appeared to be the greatest cause of the time limit violation. Other rule violations for which performance judges may wish to deduct points may be brought to the judges’ attention during a dispute settlement (see Rules 30‐33). For example, if it is brought to the judges' attention that a team member was improperly coached by a teacher or attorney‐coach during the trial round, the judges may wish to reduce the points given to that particular team member. Whatever rule violations are brought to the attention of the judges, it is entirely within the judges' discretion whether or not they will deduct points from any participant's score. The decision of the judges is final.

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PRESIDING JUDGE'S SCORE SHEET

Date: Round: Prosecution: ____________________ Defense: ___________________ Indicate your decision regarding which team made the best overall performance independent of the decisions of the performance judges. If the decisions of the performance judges are split, your decision as to the best overall performance will be used to decide which team wins the trial. If the two performance judges agree regarding which team gave the better performance, your score sheet will not be used in the calculation of the winner, but at the regional or state championships your score sheet may decide pairings and round advancement. The criteria for BEST OVERALL PERFORMANCE are, among other things, whether ALL team members: ‐‐ complied with all rules of the competition and spirit of fair play; ‐‐ were poised and spoke clearly and distinctly; ‐‐ observed courtroom decorum; ‐‐ used their time effectively and stayed within their allotted time; and ‐‐ were courteous of their opponent. PERFORMANCE EVALUATION In my opinion, the team which gave the BEST OVERALL PERFORMANCE is the: CIRCLE ONE: Prosecution OR Defense COMMENTS (optional): Judge’s Signature Date

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PERFORMANCE JUDGE'S SCORE SHEET

Date: Round: Prosecution: __ Defense: Name of School Name of School Rate the performance of each team member on a scale of 1 to 10, recording one score in each box. Do NOT use fractions. 1‐2= not effective 3‐4= fair 5‐6= good 7‐8= excellent 9‐10= outstanding Ballot Prosecution Defense

Opening statements ( ) ( )

Prosecution first witness Direct Examination ( )

Cross Examination ( )

Witness Performance ( )

Prosecution second witness Direct Examination ( )



Prosecution third witness Direct Examination ( )



Defense first witness Direct Examination ( ) Cross Examination ( )


Defense second witness Direct Examination ( ) Cross Examination ( )


Defense third witness Direct Examination ( ) Cross Examination ( )


Closing Arguments ( ) ( ) TEAM TOTALS (add scores in each column) ( ) ( ) Please deliver ballot to coordinator before critique. Tiebreaker (in case of tie, circle the party that won this round.) (Signature of Judge) PROSECUTION DEFENSE

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SUGGESTIONS FOR SCORING MOCK TRIALS Nebraska High School Mock Trial Competition

POINTS

PERFORMANCE

CRITERIA FOR EVALUATING STUDENT PERFORMANCE

1‐2 Not Effective Unsure of self, illogical, uninformed, not prepared, speaks incoherently, definitely ineffective in communication.

3‐4 Fair Minimally informed and prepared. Performance is passable but lacks depth in terms of knowledge of task and materials. Communications lack clarity and conviction.

5‐ 6 Good Good, solid, but less than spectacular performance. Can perform outside the script but with less confidence than when using script. Logic and organization are adequate, but not outstanding. Grasps major aspects of the case, but does not convey mastery of same. Communications are clear and understandable, but could be stronger in fluency and persuasiveness.

7‐8 Excellent Fluent, persuasive, clear and understandable. Organizes materials and thoughts well and exhibits mastery of the case and materials.

9‐10 Outstanding Superior in qualities listed for "Excellent" rating. Thinks well on feet, is logical, and keeps poise under duress. Can sort out essential from the nonessential and use time effectively to accomplish major objectives. Demonstrates the unique ability to utilize all resources to emphasize vital points of the trial.

Factors to Consider in Scoring

OPENING STATEMENTS Provided a case overview; mentioned the key witnesses; stated the relief requested; and provided a clear and concise description of their case.

DIRECT EXAMINATION

Used properly phrased questions (who, what, where, when, how); used proper courtroom procedure; demonstrated understanding of issues and facts; proper introduction of evidence; defended objections in clear, concise terms; used time effectively; and complied with all rules of the competition and spirit of fair play.

CROSS EXAMINATION

Used leading questions; properly impeached witnesses; raised proper objections and stated reasons clearly; knew Rules of Evidence and did not overuse objections; courteous of opponent; and complied with rules of competition and spirit of fair play.

WITNESSES

Credible; understood facts; responded spontaneously; poised and observed courtroom decorum.

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CLOSING ARGUMENTS Summarized the evidence; emphasized the supporting points of their own case and damaged the opponent's; concentrated on the important, not the trivial; applied the applicable law; and used arguments that followed a logical pattern, in direct and easily understood language.

CONSTRUCTIVE CRITIQUES

An important aspect of the educational process of mock trials is the critique provided by the presiding and performance judges at the conclusion of the trial. The comments and suggestions on this page are meant to assist judges in their roles as educators about the law and our legal system. Please read these comments and try to give students positive suggestions that will help them 1) do better next time, and 2) understand how our justice system works. For many students the critique is the most valuable part of the competition. They learn from hearing specifically what they did wrong, as well as from hearing your approval of what they did well.

Humor is a welcome tension reliever during the critique. Your comments should bear in mind the educational goals of the mock trial project. Remember that you are helping educate, guide and nurture these young people. Treat them with the respect you expect to receive from them. Encourage questions during the critique. Be realistic about the legal system. It is not perfect. Let students see you as a real human being. Share your interests, concerns, and satisfactions. Remember you are a role model for the students and an ambassador for your profession. Maintain eye contact. Keep your critique to the time suggested (15 minutes for the entire panel). Let your personality come across. Let students know that not all attorneys use the same methods and techniques. Differences of opinions regarding style of trial presentations are common.

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POSITIVE APPROACHES FOR SUGGESTIONS TO STUDENTS

"Perhaps an alternative way of handling the questioning of that witness would have been to..."

"Your opening statement was good, but it may have been even better if you had..." "I cannot recall hearing evidence about ..., which would have helped your client's case. If you did include such evidence I suggest that next time you make it somehow stand out stronger by..." DO NOT:

Criticize students about their attire. Expect high school students to understand all that law students or lawyers understand. Talk down to students.

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DISPUTE RESOLUTION FORM INSIDE THE BAR (See Rules 30 & 33)

DATE PLACE OF TRIAL SCHOOLS COMPETING NAME OF STUDENT ATTORNEY FILING DISPUTE SCHOOL OF STUDENT ATTORNEY FILING DISPUTE NATURE OF DISPUTE. Explain briefly why you are filing this dispute. When finished, give this form to the PRESIDING JUDGE.

PRESIDING JUDGE I have read this dispute form and determined that the dispute should be DENIED. My reasons for denying this dispute are

OR

I have read this dispute form and determined that the dispute should be HEARD. I will now present this form to opposing counsel and ask for their written response on the reverse side of this form.

SIGNATURE OF PRESIDING JUDGE DATE & TIME

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DISPUTE RESOLUTION FORM INSIDE THE BAR (Page Two)

Opposing sides' RESPONSE TO DISPUTE. NAME OF STUDENT ATTORNEY RESPONDING SCHOOL OF STUDENT ATTORNEY RESPONSE TO DISPUTE. Write a brief response to the opposing side's dispute claim. When finished, return this form to the presiding judge.

PRESIDING JUDGE (please print): The respective teams have submitted a dispute and a response to the dispute in writing. Both sides have now had an opportunity to argue the dispute in an open hearing in my presence. After reviewing the dispute, the response, the oral arguments, and the relevant mock trial rules, I have reached a decision in this matter. My decision is:

SIGNATURE OF PRESIDING JUDGE DATE AND TIME

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DISPUTE RESOLUTION FORM ‐‐ OUTSIDE THE BAR (See Rule 33)

Date Place of trial Schools Competing Name of TEACHER OR ATTORNEY COACH filing dispute School of Teacher or Attorney Coach filing dispute NATURE OF DISPUTE: Explain briefly why you are filing this dispute. When complete, give this form to the REGIONAL COORDINATOR.

COORDINATOR (please print) I received this Dispute Resolution Form on (date) and have notified all pertinent parties of the nature of the dispute. I DID DID NOT feel that a response was necessary for me to make a decision. (circle one) If received, the response is attached to this form. My decision in the dispute is

I have notified all pertinent parties of my decision. REGIONAL COORDINATOR'S SIGNATURE DATE & TIME

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2010 2011 MOCK TRIAL COORDINATORS & REGIONS

REGION 1 Coordinator: Honorable Derek Weimer

PO Box 217 Sidney, NE 69162 (308) 2542814 Fax: (308) 254‐4292

Counties: Banner, Box Butte, Cheyenne, Dawes, Deuel, Garden, Kimball, Morrill, Scotts Bluff,

Sheridan and Sioux

REGION 2 Coordinators: Angela R. Shute Tim W. Thompson P.O. Box 1669 P.O. Box 1669 North Platte, NE 69103 North Platte, NE 69103 (308) 5327110 (308) 5327110 Fax: (308) 534‐0248 Fax: (308) 534‐0248 [email protected] [email protected] Counties: Arthur, Custer, Dawson, Grant, Hooker, Keith, Lincoln, Logan, McPherson and Thomas

REGION 3 Coordinators: Honorable David W. Urbom Deborah League P.O. Box 847 P.O. Box 378 McCook, NE 69001 Benkelman, NE 69021 (308) 3454539 (308) 4232374 Fax: (308) 345‐7907 Fax: (308) 423‐2325 [email protected] [email protected] Dianna Wheeler

Gosper County Clerk Magistrate PO Box 55 Elmwood, NE 68937 (308) 7852531 Fax: (308) 785‐2036 [email protected]

Counties: Chase, Dundy, Frontier, Furnas, Gosper, Hayes, Hitchcock, Perkins and Red Willow

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REGION 4 Coordinator: Honorable Mark D. Kozisek P.O. Box 225 Ainsworth, NE 69210 (402) 3872162 Fax: (402) 387‐0918 [email protected] Counties: Boyd, Brown, Cherry, Holt, Keya Paha, and Rock Coordinator: Tami K. Schendt

431 South 10th Street Broken Bow, NE 68822 (308) 8726327 Fax: (308) 872‐2811 [email protected]

Counties: Blaine, Garfield, Greeley, Howard, Loup, Sherman, Valley, and Wheeler

REGION 5

Coordinators: Honorable Teresa K. Luther Justin R. Herrmann

111 W. 1st Street P.O. Box 1060 Grand Island, NE 68801 Kearney, NE 68848 (308) 3855666 3082345579 Fax: (308) 385‐5669 Fax: (308) 234‐9305 [email protected] [email protected]

Counties: Buffalo & Hall Coordinator: Julie Gawrych

726 Eastside Blvd. P.O. Box 1288 Hastings, NE 68902‐1288 (402) 4633125 Fax: (402) 463‐3110 [email protected]

Counties: Adams, Clay, Franklin, Harlan, Kearney, Nuckolls, Phelps, and Webster

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REGION 6 Coordinators: Honorable Donna Farrell Taylor

501 Main ‐ Courthouse Neligh, NE 68756 (402) 8874650 Fax: (402) 887‐4160 [email protected] David V. Drew 1555 Washington St. P.O. Box 462 Blair, NE 68008 (402) 4262636 Fax: 402‐426‐2777 [email protected]

Counties: Antelope, Burt, Cedar, Cuming, Dakota, Dixon, Dodge, Knox, Madison, Pierce, Stanton, Thurston, Washington and Wayne

REGION 7

Coordinator: Honorable Robert R. Steinke

P.O. Box 1188 Columbus, NE 68602 (402) 5634956 Fax: (402) 562‐6718

[Kay – (402) 563‐4953] [email protected] Counties: Boone, Colfax, Merrick, Nance and Platte Coordinators: Honorable Michael J. Owens Honorable Linda C. Senff Box 201 PO Box 323 Aurora, NE 68818 Aurora, NE 68818 (402) 6946334 (402) 6946188 Fax: (402) 694‐6619 Fax: (402) 694‐2250 [email protected] [email protected] Counties: Butler, Hamilton and Polk

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REGION 8 Coordinator: Honorable Robert B. O'Neal 1210 Golden Gate Drive, Suite 2165

Papillion, NE 68046 (402) 5935918 Fax: (402) 593‐2158 [email protected]

Counties: Cass, Otoe and Sarpy

REGION 9 Coordinators: Honorable Daniel E. Bryan, Jr. Honorable Vicky L. Johnson 1824 “N” Street P.O. Box 865 Auburn, NE 68305 Wilber, NE 68465

(402) 2745559 (402) 8213240 Fax: (402) 274‐5583 Fax: (402) 821‐3179 [email protected] [email protected]

Counties: Fillmore, Gage, Jefferson, Johnson, Nemaha, Pawnee, Richardson, Saline and Thayer

REGION 10

Coordinators: Honorable John A. Colborn Honorable Laurie J. Yardley 575 South 10th Street 575 South 10th Street Lincoln, NE 68508 Lincoln, NE 68508 (402) 4417303 (402) 4417275 Fax: (402) 441‐3833 Fax: (402) 441‐6055 [email protected] [email protected] Counties: Lancaster, Saunders, Seward and York

REGIONS 11 & 12 Honorary Coordinator: Honorable Lyle E. Strom Coordinator: Doris Huffman

PO Box 95103 635 South 14th Street, Suite 120 Lincoln, NE 68509 (402) 475‐1042

[email protected] County: Douglas

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NEBRASKA STATE BAR FOUNDATION

Officers

Robert H. Berkshire, Omaha, President Kile W. Johnson, Lincoln, Vice President Gary W. Radil, Omaha, Secretary Stanley C. Goodwin, McCook, Treasurer Michael G. Mullin, Omaha, Assistant Treasurer

Board of Directors Jill E. Robb Ackerman, Omaha Robert F. Bartle, Lincoln Hon. C. Arlen Beam, Lincoln Patricia J. Bramhall, Papillion Thomas M. Davies, Lincoln** William G. Dittrick, Omaha Thomas B. Fischer, Omaha Richard G. Folda, Schuyler Keith I. Frederick, Papillion** James E. Gordon, Lincoln Charles F. Gotch, Omaha Deryl F. Hamann, Omaha** Harold W. Kay, North Platte** Michael F. Kinney, Omaha Richard A. Knudsen, Lincoln**

Dean G. Kratz, Omaha** Melany S. Lanagan, Omaha William J. Lindsay Jr., Omaha

Robert D. Mullin Jr., Omaha Jane L. Schoenike, Lincoln Hon. Richard D. Sievers, Lincoln

Bruce I. Smith, Grand Island Susan J. Spahn, Omaha

Galen E. Stehlik, Grand Island Hon. Lyle E. Strom, Omaha George E. Svoboda, Kansas City, MO** Nancy A. Svoboda, Omaha Charles Thone, Lincoln**

Caroline M. Westerhold, Lincoln Charles E. Wright, Lincoln

**Past President and Lifetime Member

Staff Members and Contact Information Doris J. Huffman, Executive Director Verna Weber, Program Assistant Chris Burge, IT Consultant Cindy Lilleoien, Law‐Related Education Consultant Cindy McGroarty, Law‐Related Education Assistant P.O. Box 95103 Lincoln, NE 68509‐5103 Phone: (402) 475‐1042 Fax: (402) 475‐7106 Email: [email protected] Website: www.nebarfnd.org

2010 2011 nebraska high school mock trial...

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