IalLess 2

Handout 2A: Steps in a Trial

Basic Sequence of Events

1. Preliminary motions are addressed by the judge (e.g., Is certain evidenceadmissible? Should there be a change of venue?).

2. Voir dire (questioning by the attorneys and judge) is conducted of jury pool(ifjury trial).

3. Jury is selected (ifjury trial).

4. Judge enters and takes the bench.

5. Clerk calls the case.

6. Plaintiff (prosecutor in criminal case) makes an opening statement.

7. Defense makes an opening statement.

8. Plaintiff presents case:

a. Plaintiff calls first witness and conducts direct examination.b. Defense cross-examines the witness.c. Plaintiff conducts redirect examination, if desired.d. Steps a., b., and c. are completed for each of the plaintiff's otherwitnesses.

9. Plaintiff rests case.

10. Defense presents case in same manner as plaintiff, with plaintiff cross-examining each witness.

11. Defense rests.

12. Plaintiff makes closing argument.

13. Defense makes closing argument.

14. Plaintiff offers any rebuttal argument.

15. Jury is given instructions (ifjury trial).

16. Jury/judge conducts deliberations.

17. Verdict/decision/judgment is rendered.

18. Order (civil trial) is issued! sentence (if found guilty in a criminal trial) isimposed.

The main steps in the trial sequence above-before the judge or jurystart deliberating-can be summarized as (1) opening statement by plaintiff;(2) opening statement by defense; (3) direct examination of plaintiff's witnesses;

THE MOCK TRIALS 29

2Handout 2A continued

(4) cross-examination of plaintiff's witnesses by the defense; (5) direct examinationof defense witnesses; (6) cross-examination of defense witnesses by plaintiff;(7) closing argument by plaintiff; and (8) closing argument by defense. Note howthe sides take turns.

Critical Stages of the TrialThe following sections include descriptions and diagrams of the four most criti-

cal ~tages of the trial.

The Opening Statement The opening statement is the introduction to thecase, the very first time the attorneys for each side get to tell the judge and juryabout what happened to their clients. The first impression is very important; it"paints a picture" of the case that will be presented for each side. Opening state-ments should include: (1) a summary of the facts according to each party; (2) asummary of the evidence that will be presented at the trial, including how the wit-nesses are expected to testify; and (3) a statement regarding what the party hopesto get out of the trial. In an opening statement, an attorney cannot present legalarguments; instead the attorney must limit the opening to what the evidence willshow (e.g., in this case the facts will prove that Dr. Taylor failed to remove a surgi-cal sponge from the defendant's stomach).

JUDGE

ClERK WITNESS

DEFENSETEAM

/

O' :\\.'...,,\~

2nd 1st

PLAINTIFF TEAM

Style points for the parties involved in the opening statement include:

1. Plaintiff's Attorney: Since this attorney speaks first, it is very important forthe plaintiff's opening statement to include a good summary of the facts, pre-sented in a light most favorable to the plaintiff. If the opening statement pre-sents a very convincing picture of the plaintiff's case, the defense team willhave a much more difficult time changing the minds of the judge and jury.

2. Defense Attorney: The defense team always has the task of showing that theplaintiff's version of the facts is not correct. In preparing an opening state-ment, the defense attorney will have to guess how much detail and what

30 THE MOCK TRIALS

Mocl(.Trial Less 2Handout 2A continued

kind of emphasis the plaintiffs attorney will make in the plaintiff's openingstatement. The defense attorney should be ready to make adjustments in hisor her prepared statement while the plaintiff's attorney speaks. The defenseattorney should highlight the facts that are in dispute, and emphasize thekinds of evidence the defense will present to show that the plaintiff is wrong.

3. Both attorneys should practice making eye-to-eye contact with the judge orjury (if a jury trial) while speaking, be confident in their presentations, speakclearly, and engage the trier of fact.

The Direct Examination After the opening statements, the process of wit-ness examinations begins. First, the plaintiff's team presents its witnesses, then thedefense team. Each time a witness is called to the stand, the attorney who calledthe witness asks a series of questions called the direct examination. These questionsare designed to get the witness to tell a story, reciting what he or she saw, heard,experienced, or knew about the case. The questions must ask only for facts, notfor opinions (unless the witness has been declared to be an "expert" in a particularsubject, such as a doctor or a police detective). In addition, the attorney may onlyask questions and may not make any statements about the facts, even if thewitness says something wrong. When the direct examination is completed, anattorney for the other side then asks questions to show weaknesses in the wit-ness's testimony, a process called cross-examination.

JUDGE

ClERK WITNESS

"W?~. ~ ,Swears Witpess In

JURY(if jury trial)

DEFENSE TEAM

iiObjections

Style points for the parties involved in the direct examination include:

1. Attorney Conducting Direct Examination: Questions should be designed toget the witness to tell the story in a logical manner. Ask open-ended ques-tions such as questions that begin with why, where, when, and how. Avoidlengthy or complicated questions. Leading questions cannot be used ondirect examination. Be prepared to rephrase questions in case the witnessdoes not understand a question or fails to remember facts accurately, or in

THE MOCK TRIALS 31

2Handout 2A continued

case the other side objects to a question. (For more information on the rulesof evidence, refer to Mock Trial Lesson 7: The Rules of Evidence.)

2. Opposing Attorney: Prepare for your cross-examination by anticipatingwhat the witnesses will say on direct examination and preparing questionsthat will undercut their testimony. At trial, listen carefully to the questionsand answers, since cross-examination must be limited to subjects discussedin the direct examination. Listen for violations of the rules of evidence, andbe prepared to make good objections.

3. Witnesses: The most important factor in the trial is the believability-oftencalled credibility-of the witnesses. Witnesses should tell their stories clearlywith as little hesitation as possible. It's important for witnesses to know thefacts thoroughly and to stick to the facts in their witness statement. Avoidbody language-such as fidgeting or averting your eyes-that could be con-strued as hiding the truth.

For purposes of the mock trial, the witness statements should be treated assworn testimony. Witnesses are bound by the testimony in the witnessstatement. If a witness testifies in the mock trial contrary to a fact in thewitness statement, then the attorney for the other side can use the witnessstatement to impeach the witness on cross-examination. Witnesses must stickto the facts in their witness statements and cannot invent additional facts.

The Cross-Examination The purpose of the cross-examination is to show thejudge and jury that a given witness should not be believed because that witness:(1) cannot remember facts; (2) did not give all of the facts in the direct examina-tion; (3) told a different story at some other time; (4) has a reputation for lying;(5) has a special relationship to or bias toward one of the parties (maybe a relativeor close friend, or a grudge or feud); and (6) did not have an adequate opportunityto observe (poor lighting, cloudy day, only caught a glimpse, etc.) the events atissue. The cross-examination questions are designed to bring out one or more of

JUDGE

CLERK WITNESS

JURY(if jury trial)

.(

DEFENSE TEAM PLAINTIFFTEAM

~Objections

32 THE MOCK TRIALS

MoHandout 2A continued

the above factors. These questions must be limited to subjects discussed in thedirect examination as well as issues pertaining to credibility, or they can beobjected to as "outside the scope of direct examination."Style points for the parties involved in the cross-examination include:

1. Attorney Conducting Cross-Examinations: This attorney must know pre-cisely what kind of weaknesses he or she wants to show in the witness, andthen design the questions to point them out. Questions should be short.Leading questions, as discussed in Lesson 7: The Rules of Evidence, areallowed. For example, the attorney may use questions with phrases such as"Isn't it true that ... 7" Questions should not be long or argumentative, norshould they ask the witness "how," "why" or "could you explain." Questionsthat call for a simple "yes" or "no" answer are best. Questions that give the

\ witness a chance to make an explanation will usually not help the cross-examiner's case. As a general rule, do not ask a question that you do notknow the answer to and always ask leading questions.

2. Opposing Attorney: Listen carefully for violations of the rules of evidence,and be prepared to make objections. Listen carefully to the kind of attackthe cross-examiner is making; decide whether the attack is successful. Afterthe cross-examination, the opposing attorney may conduct a redirectexamination to give the witness a chance to explain or correct some pointsmade in the cross-examination.

3. Witness: Witnesses should try to give explanations whenever possible.Witnesses must pay close attention during cross-examination, since the attor-ney may try to confuse the witness. They should try to stick to the facts theyrecited on direct examination. They should also try to keep their cool and avoidgetting flustered.

Note: At the close of cross-examination, the attorney who conducted the directexamination may do a redirect examination. This follows the same rules as adirect examination. However, the questions are limited to subjects discussed inthe cross-examination. Typically, the redirect is very brief, giving the plaintiff thechance to undo any damage in the cross-examination.

The Closing Arguments The purpose of the closing argument is to convincethe trier of fact (judge or jury) that the evidence presented is sufficient to win thecase for whichever side the attorney is representing. The closing argument shouldinclude: (1) a summary of the evidence (i.e., witness testimony, documents, andexhibits) presented that is favorable to the presenting attorney's side; (2) a summaryof the case; and (3) a legal argument showing how the law requires the judge orjury to interpret the facts, and why that law requires them to rule in favor of theside for which the attorney is arguing. New information may not be introduced inthe closing argument.Style points for the parties involved in the closing arguments include:

1. Plaintiff's Attorney: Remember that the plaintiff has the burden of prov-ing the facts in a civil case by a preponderance of the evidence. Therefore,the plaintiff's summary of the favorable evidence presented is extremely

THE MOCK TRIALS 33

Handout 2A continued

JURY<lfjury tri~l)

important. Be sure to avoid claiming evidence that was not, in fact, pre-sented. Similarly, do not emphasize evidence that the defense successfullyattacked, except to give a firm response to such an attack. Cite the lawclearly and correctly, and make a clear argument regarding how the lawrequires the judge or jury to rule in the plaintiff's favor.

2. Defense Attorney: Summarize all of the evidence presented to weaken theplaintiff's case. Emphasize the inability of the plaintiff to meet the burden ofproof, and stress that such inability must clearly lead to a decision in favor ofthe defendant.

3. Both attorneys should practice making eye-to-eye contact with the judge orjury (if a jury trial) while speaking, be confident in their presentations, speakclearly, and engage the trier of fact.

34 THE MOCK TRIALS

Handout 28: Trial Process and Steps in a Trial

Part One: Trial TermsDirections: Match each definition in Column A on the left with the appro-

priate term in Column B on the right.

COLUMNA1. trier of fact2. the burden of proof in a civil case3. process of sharing informationbefore trial

4. adversary processs. written statement made by witness6. one type of defense in acriminal case

7. final step in the trial beforethe judge's decision

8. person who represents thegovernment in a criminal case

9. what each party needs to presentto prove their facts

__ 10. one way to settle a dispute withoutgoing to trial

COLUMNBa. prosecutorb. closing argumentc. juryd. evidencee. direct examinationf. negotiation. g. plaintiffh. civil casei. alibij. discoveryk. affidavitI. defendantm. trialn. preponderance of the evidence

Part Two: Steps in a TrialDirections: List in order the main steps in a trial after the jury is selected

and preliminary matters are finished, and before the judge or jury begindeliberations.

1. _

2. _

3. _

4. _

s. _

6. _

~ -----------------------------8. _

THE MOCK TRIALS 35