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O.k. So you are up on the witness stand, and you are being cross-examined, and you are getting beat up by the lawyer from the other school. Not fun. To make matter’s worse, the lawyer on your team is not objecting! What do you do?  Here are a couple of suggestions. (Note: these are tips for witnesses in MOCK trials, not real trials. If you are prepping for a real trial, back the heck off this page before you get yourself into trouble.)

  1. Don’t let the lawyer interrupt you. When you are answering a questions don’t let the lawyer jump you with another question if you are mid-sentence. Just talk over the lawyer. This will force him to stop, or it will force the judge to stop the both of you.  But either way, you have shown that you are assertive enough not to get interrupted mid-sentence. If the judge looks at you like its your fault, just look innocent and say, “I am sorry your honor” and smile at the attorney.
  2. Critique his question. This sort of thing really throws off lawyers when they are being bullies.  Say something like: “Can you rephrase the question?” “Can you repeat the question?” “I don’t understand the question.” “That questions is pretty vague.” If the question is really over the top, you can ask: “Is that a serious question?”
  3. Ask for a moment. Repeat the question back and say “Let me think about that for a moment. Hmmm. No.” When you are being peppered with questions, sometime you just need a second to collect your thoughts.  Example:
    Q: Was it raining that day?
    A: Was it raining that day? (Question repeated back)
    Q: Uh, yeah.
    A: Let me think about that for a second. Hmmm.  I believe so. Yes, it was raining that day.
    You see what you are doing here? You just took control of the tempo. A lot of what frazzles the witness is sense that things are being rushed and they don’t have time to think. When the lawyer on your team is objecting (even unsuccessfully), she is at least giving you time to think and collect yourself. But as we discussed, sometimes lawyers are asleep at the wheel, and these tips are about how to protect yourself.
  4. Don’t always let yourself be forced to answer “yes” or “no”.  Sometimes, an attorney will ask you a question, and then will say “yes or no”, or will say “just answer yes or no”. Normally, this is fine, just say “yes” or “no”.  But if the lawyer is just using this as a bullying tactic, maybe you don’t go along with it. At best, give the answer as “Yes, I believe so” or “I don’t think so” just to show the lawyer you won’t be pushed around. But if the judge directs you to answer the question in a yes or no format, then you most definitely better do so or risk losing some serious points.
  5. Be assertive in your tone. Sometimes in high school mock trial competitions, I hear witnesses answer in upspeak. Upspeak is when you make a statement but you use the intonation of a question. Like the tone rises at the end. Don’t do this. If the situation calls on you to be emphatic, then be emphatic. If the lawyer asks an accusatory questions, don’t respond “no”, say “absolutely not”, or “of course not” and give him a puzzled look.Keep in mind that these are self-defense tactics. This isn’t an offensive strategy. This is for when the opposing counsel is showboating, being sarcastic (and getting laughter from the spectators). When a lawyer does this to you, these tips will help even the playing field. But again, don’t go overboard. A lawyer that acts mean will lose points. The same is true of a witness.

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I have written in the past about specific subjects within a mock trial, such as closing arguments, cross-examination, hearsay rules, etc. Let’s now take a more holistic look at the subject, and discuss how you tie all that into a victory on the day of the mock trial. Here is what you need to know.

  • Team Consistency: Sometime when I watch mock trial teams compete it seems like the students practiced and prepared individually rather than as a team. All the lawyers and witnesses should be pursuing the same goal and the same theme of the case. E.g. is your defense to the assault charge mistaken identity or self-defense? Decide on one, and every question you ask of any witness, and the opening and closing should be focused on this goal.
  • Sportsmanship: No judge wants to give the trophy to a team that comes across as cocky or is nasty to the other side. Lawyers act that way only on T.V. In real life, every trial lawyer know that jurors hate lawyers who are jerks. Good sportsmanship is even more important in mock trial as it is on the playing field. In sports the points decide the game.  In mock trial, the scoring is subjective, and if you come across like a jerk you won’t win.  Guaranteed.
  • Objections: You have already probably figured out that you lose points if you miss out on proper objections, and score points by making a proper objection. Here is what you might not know.  You can score points even if your objection is not sustained.  So even if you make an objection and the judge says “overruled,” that isn’t a bad thing.  You still get credit for showing your knowledge of the evidence rule.  Ruling on an objection is often a close call for a judge.
  • Clothing and Dress: Not everyone has to be dressed like the lawyers on Law and Order. However, everyone should make some effort.  You don’t have to spend a lot of money.  You can go to the thrift store. Guys, it is important to have your mom come with you and to make sure the clothing fits properly.  (Not too baggy).  Sometimes an oxford shirt with a tie will work.  For witnesses, you are allowed to dress for the part: if you are a detective or an expert witness, wear a tie.  But if you are a lay witness you can dress more like what those witnesses would were in their day -to-day lives.  If your witness role is a patrol officer, you can usually order a cheap police costume off of Amazon for about $25.00.
  • Timing. One of the ways students often stumble in a mock trial is to lose track of the time requirements. Practice competing using a clock. Once you start your cross-examination, it is easy to get tunnel vision and lose track of how much time you have used.  It is ok for teammates to whisper or to slip a note to a lawyer who has exceeded his or her time allocation.
  • Have Fun: Your mock trial will go better if you relax a little bit. No, you don’t represent a real client who will go to prison for life if you mess up. So get some sleep, do you best, and be prepared to roll with the punches a little. No matter how hard you prepare, you will always struggle a little bit and be thrown off.  Like Mike Tyson said, everyone has a plan until they get punched in the face. No matter how the trial goes, take a breath and use it as a learning experience.

What do you think makes a winning mock trial team?  What have I left out?  What has worked for you?  Leave me a comment below!

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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.

 

 

 

 

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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.

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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.

Picture 13

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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.

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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

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