How do you handle a hostile witness in a mock trial? How do you have a judge declare a witness “hostile”? Well, you arrived on my blog because you were searching online. And you probably noticed there is not a lot of materials on the subject online or examples on YouTube. The truth is that it is uncommon for a witness to be declared “hostile” in the real world. But the idea does have a sort of dramatic flair, so you often see people declared “hostile witnesses” on T.V. and in the movies. So since mock trial is intended to be fun, and certainly entertaining, I figured I would write a post about the subject.


Hostile Witness

First the basics. You should already know that when you are doing a direct examination (questioning your own witness) you can’t ask leading questions. But when you are cross-examining a witness, you can ask leading questions. The “hostile witness” rule changes this up a bit. A hostile witness is a witness that you call to the stand, that doesn’t want to be there, and is avoiding answering questions, and so when you have him declared a “hostile witness” the judge will allow you to ask him leading questions. Need an example? O.k. Let’s say you are prosecuting a man for bank robbery. After the robbery, the suspect shows up at his brother’s house. You call his brother to the stand. Here is how it goes….

Prosecutor: On that date, you brother arrived at you house that afternoon?

Witness: I guess so.

Prosecutor: And did you notice anything unusual?

Witness: I don’t remember, it has been a while.

Prosecutor: Any article of clothing that you remember?

Witness: What do you mean? He had pants and a shirt.

Prosecutor: Anything else?

Witness: I don’t remember too well, it was last summer.

Prosecutor: Anything to cover his head with?

Witness: Like a hat? Yeah I think I remember something like that.

Prosecutor: What did you tell the police?

Witness: I don’t remember.

Prosecutor: Would it help to look at your statement again to refresh your recollection?

Witness: Maybe. I was kind of out of it when I wrote that statement, I don’t know.


You see the problem. The prosecutor isn’t getting the answer he is looking for. And he can’t ask a leading question because he called the brother to the stand. So here is how it is done….


Prosecutor: Your honor, the State requests permission to treat the witness as hostile. The witness is avoiding answering the questions and is giving different answers then he gave to the police when he was first interviewed.

Defense attorney: We object, your honor.

Judge: Permission to treat the witness as hostile is granted.

Prosecutor: Sir, isn’t it true that when you brother arrived at your apartment that he had a ski mask?

Witness: I guess so.

Prosecutor: Well that is exactly what you told the police when they asked you about this the next day?

Witness: Well, that is correct. I did tell the police that.


In reality, the “hostile witness” idea is not necessarily all or nothing. If a witness is uncooperative, judges tend to give a little more leeway with leading questions. They don’t often formally declare a witness “hostile.” Having coached mock trial for 20 years, I don’t often see this come up too often in the scripts or packets of material that schools use. However, it is always good to be prepared. If you are on the other side, they you should always object to leading questions, and object to the witness being declared hostile. The way you object is by explaining that just because the lawyer isn’t getting the answers he or she wants doesn’t make the witness hostile. Also, you object and argue that opposing counsel hasn’t first tried to refresh the witness’s recollection.





Is this you? You don’t know where to start on your opening statement? Untitled-1That is a common feeling for students having to write a mock trial opening statement or closing argument. Suddenly you wish you paid more attention when your parents were watching Law & Order reruns. Well, there is help for you. An attorney has broke it down for you here, so check it out: CLICK HERE. He knows what he is talking about.  He has been coaching mock trial since you were watching Rugrats. It will give you some good ideas on how to get started as a lawyer in a mock trial, and guide you along the way.  If you have any feedback or suggestions, post it below. As always thanks for visiting my mock trial blog.

I just found this amazing website with samples of closing arguments for prosecution and defense! (O.k. it’s one of my sites). The attorney goes through a fact pattern on an assault case involving a claim of self-defense, and also a burglary case involving potential mistaken identity and a coerced confession. There will be more examples of closing arguments coming in the weeks to come. Check it out. Here is the website. If you can think of other closing argument topics to write about (besides burglary and assault) let me know in the comment section below.

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Unlike a cross examination which is hard to plan, a direct examination is all about planning. Here are a few suggestions to help your mock trial direct examination go smoothly.

1. Make Sure Your Witness is Prepared
A witness needs to know his or her mock trial witness statement inside and out. When you rehearse, quiz them on all the facts in their witness statement to make sure they know their witness statement. This will help them on cross-examination too.  Also, see our post on tips for witnesses.

2. Don’t Attempt to Script the Direct Examination
While it is proper to prepare a list of questions or make an outline, you don’t want to entirely script the direct examination. A cross examination that is totally scripted will sound artificial, and will lead your witness to be thrown off when there are objections, or if you have to rephrase the question.

3. Prepare for the “Leading Question” Objection
The “leading question” objection is the most important objection to know for a mock trial direct examination.  See our earlier post on leading questions.  Practice rephrasing your questions in a less leading manner.  For example, instead of asking “Did the defendant point a gun at you?”, you can ask “Was there anything in the defendants hand?” and when the witness responds “Yes, a gun”, you can ask them “In what direction did the defendant point the gun.”

4.  Coordinate with the Attorney that is Doing the Closing Argument

It is important that you discuss your direct examination with your classmate that is doing the closing argument.  You need to elicit or establish certain facts that he or she wants to use during their closing argument.

5.  Lay the Foundation for Your Questions

If you have an expert witness, you will need to establish his or her qualifications before they can render an opinion.  Likewise with fact witnesses you may need to explain how they know the information on the subject they wish to testify.

6. Prepare to Respond to Objections

The best way to prepare to respond to objections is to rehearse your mock trial and have a classmate make objections during your direct examination.  There are two types of objections that you will face during your mock trial direct examination.  There may be objections to the form of your question, and even if a question is proper, you may face objections on the response that your witness makes.

7. Study Examples of Direct Examinations

When I was in law school, I didn’t have the internet as a resource to look at other trials.  Today, mock trial competitors have lots of examples online for direct examination.  See here, here and here.

I am not sure what to write about next. I have covered prosecutor’s opening, defense opening, prosecutor closings, defense closing, leading questions, cross exams for lawyers and witnesses, general tips for witnesses, and dealing with forgetful witnesses, and hearsay, etc. I need the readers to give me some feedback in terms of what other questions students have.  Also to make this blog more interactive, I added the social “share” buttons below. So if you find an article or blog post helpful, go ahead and share it. Thanks!  Mock Trial questions answered here!
Steve Graham

As you probably have already learned, the defense attorney delivers his or her closing argument after the prosecutor speaks. In addition, since the prosecutor has the burden of proof, he or she is allowed to speak again after the defense counsel speaks. The mock trial defense lawyer only has one opportunity to speak. Unlike a prosecutor, who is able to plan his or her opening statement, the defense counsel has to be a little more prepared to think on their feet. The mock trial defense lawyer has to be prepared to respond to the points that the prosecutor is making.

The defense attorney should begin by thanking the jurors for their time. In a mock trial competition, it is best to write down 8 or 10 of your strongest points and be prepared to focus on them. You will want to weave in some of the themes from your case depending on the facts of your trial scenario. You should make a point of responding to the prosecutors closing argument. This shows the judge you were listening to the opposition when they were speaking and it shows you can think on your feet. For example, the defense counsel might say: “Now we have just listened to the prosecutor state that the police found fingerprints of my client at the scene of the burglary. However, that is not a very strong point considering that my client had been a guest at the victim’s home on earlier occasions.”  Responding to an occasional point like this is better than just reading a prepared statement, or arguing off a prepared outline alone.

Aside from the above, here are a few arguments you often see defense lawyers bring up:
1. The burden of proof is very high – beyond a reasonable doubt. It is not sufficient to merely suspect that someone did something.
2. The defendant in a court of law has no burden to prove his or her own innocence.
3. The police should have done a more thorough investigation: i.e. talked to more witnesses, looked for DNA evidence, dusted for finger prints in more locations, attempted to locate security cameras.
4. Bias of witnesses – the police, the eye-witnesses, the expert witnesses etc.
5. Describe your client in the best possible light, i.e. argue that he wouldn’t commit the crime as alleged.
6. Remind the mock trial jurors that they must be unanimous to convict your client.

See some samples of closing arguments here.

Any questions?  Leave them below in the comment section!!!

Here is an example of a classic closing argument:

So you are nearing the end of your mock trial, and now it is time for you to do your closing argument. Hopefully you have given this a little thought before it is your turn to get up and speak. Unlike an opening statement, which can be written entirely in advance, the closing argument has to be written as the trial goes along. It has to be adjusted depending on what evidence is admitted by the trial court.  The mock trial closing argument will depend a lot on the particular facts of your case, but I will try to make a few suggestions on how you can sketch out an outline.

You are an Advocate for One Side

Remember that your closing argument is just that, an argument.  You need to convince the jury of the merits of your arguments – not to consider the facts from a neutral point of view. No matter what sort of case the prosecutor is handling, the prosecutor’s position is always the same: there is no reasonable doubt.

Echo Your Opening Statement

Much like an opening statement, you begin by thanking the jurors for their time.  You want to remind the jury of what you said in your opening. For example: “Good afternoon ladies and and gentlemen – thank you for your time and attention to this very important matter here today.  As I [or my colleague] stated this morning, the evidence against so-and-so is really overwhelming, and we would ask you to return a verdict of guilty.”

Cover the Elements of the Crime

Every crime has elements, i.e. the things the prosecutor has to prove to make a case.  For example the elements of residential burglary, are:

1) entering without permission,

2) into a residence,

3) with the intent to commit a crime.

Look at the mock trial materials your teacher or coach gave you and consider what the elements of the crime are in your case.  In other words, what does a prosecutor have to prove beyond a reasonable doubt?

Making Compelling Arguments

After you argue how each point is proven in your mock trial case, then you have to tie it all together in a cohesive way, and present the argument with emotion. If the jury does not see that you believe in your case, then they themselves will not believe in your case. You can use sayings, axioms, famous quotes, reference to literature and popular culture, understatement, hyperbole, mild sarcasm, appropriate humor, rhetorical questions, and appeals to patriotism, common sense, and notions of justice.  So applying those ideas to the crime of residential burglary, you might say: Well the defendant says he didn’t go in the home to commit a crime, just to use the phone. Is he the only person on the planet without a cell phone?  Couldn’t he have just asked to borrow a phone from a passerby? There is a saying that where there is smoke there is fire. Courts are a place where a lot of technical rules apply, but that doesn’t mean that you have to check you common sense at the door. The case is really very simple, he got caught with his hand in the cookie jar.  His explanation really just amounts to “the cat ate my homework.”  Don’t buy it.  Hold him accountable and find him guilty.  
Now, that is a lot of colorful language all crammed into one paragraph, but the point is to mix in this rhetoric in with your factual arguments?


 Post your questions below in the comment section!!!

See more samples of closing arguments here.


Check out the closing arguments on YouTube.  Or check out:

Post by Steve Graham.


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