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I wrote last month about presenting a mock trial opening statement for a prosecutor, so this post will deal with an opening statement for a defense lawyer. Before I launch into my suggestions, let’s talk a little bit about what the role of a defense lawyer is in a trial. The defense lawyer’s job is to make sure that his or her client gets a fair trial, and that means that the defense lawyer must advocate for the client’s point of view.

Mock Trial Opening Statement

An mock trial opening statement is scored both on the content and also on delivery.

Most of the time a defense lawyer does not succeed in convincing a jury of a the defendant’s actual innocence. Usually when a defendant is acquitted (found “not guilty”), the jurors make that decision based on the fact that there was some small measure of doubt in their minds as to the defendant’s guilt.  These doubts is what the defense lawyer raises, and there is no better place to begin then in the defense opening statement.

If you haven’t already, go ahead and read last months tips for the prosecutor’s opening statement.  You will find helpful suggestions, and the post with help you anticipate what a prosecutor might present.  In your defense opening statement, your job is raise some doubt in the jurors minds about the prosecutor’s claims as to what your client has done.  So after you introduce yourself, and tell the jurors who you represent, you should begin to highlight the facts in the case that support your defense theory.  If the prosecutor points out that he has a solid eye witness to the crime, point out that the witness was over 150 feet away, or that the witness was biased, or that he is not very credible.  If the prosecutor says that your clients fingerprints were found at the scene of the crime, point out that your client was previously present on the scene as a guest, or that he trespassed but did not steal anything.  If the prosecutor claims your client was caught red-handed with the stolen items in his possession, point out that your client may not have known the items were stolen.

Your mock trial defense opening statement might go a little like this:

  • Good morning ladies and gentlemen of the jury, my name is so-and-so and it is my privilege to represent (name of client) in this case before you today.
  • You have heard the prosecutor explain what she hopes will be proven, but the prosecutor did not tell you all the facts.
  • The prosecutor has explained that my client was “identified” as the bank robber, but in fact this supposed eye-witness is a man that has held a grudge against my client for a long time, and he has made many inconsistent statements about the case.
  • The prosecutor has explained that my client was found the next day with over 50 thousand dollars, but none of those bills’ serial numbers was matched to any bank, and my client had the money due to a recent inheritance.
  • The prosecutor has stated that my client confessed to the robbery, but this statement was made to the police under coercion, and my client is mentally ill and didn’t know what he was saying.
  • So we would ask you to keep an open mind and listen to ALL the evidence, and return a verdict of “not guilty”.  Thank you.

So now that you have spoken, the jurors in the mock trial will at least be prepared to listen to both sides.  Keep in mind, that you just can’t make this “doubt” up out of thin air.  Every “doubt” must exist in the mock trial packet your teacher gives you, and you need to prep all your lawyer teammates and witness teammates to cover all the fact that are important.   For example, if you state in your opening that your client had all that cash due to a recent inheritance, your classmate that is questioning the defendant on direct sure as heck better have the word “inheritance” on his outline of questions.  You will lose points if you mention things in your opening statement if they are not later established by the testimony.

I have notice that I have had a lot more visitors to my mock trial blog lately.  Let’s hear from you students or teachers as to what questions you have, or what topics you might find helpful.  I have been doing jury trials for almost 17 years as both a prosecutor and criminal defense lawyer.   I have also coached mock trial teams since about 1997.  If you have any questions or suggestions post them in the comment section below.  Thanks for reading. 🙂

See also our new post on How to Write Opening Statements.

Volunteering to present the opening statement for your mock trial team poses a challenge.  It may mean that you are the first to speak in the entire competition.  To review, let’s go over the order of a trial again.  First the prosecutor gives an opening, then the defense, then the prosecutor calls her witnesses, the defense calls witnesses, the prosecutor does the closing argument, the defense closes, then the prosecutor gets to speak one more time in rebuttal.  So if you volunteer to present the opening statement you will be speaking first.  Until now, the jury will not have heard anything about your case.  So the opening statement is an opportunity to outline the facts as you anticipate they will be presented.  The opening statement is not really an opportunity to argue your case, but it is an opportunity for you to begin to convince the jury about the strength of your case, or the strength of your defense.  Here is an outline of a real traditional prosecution opening statement:

  • Good morning, my name is ____ and I represent the State.
  • This is my opportunity to outline the evidence as I anticipate it will be presented.
  • I will call three witnesses.
  • The first witness will be so and so, and he will testify as to such and such.
  • The second witness will be so and so, and he will testify as to such and such.
  • The third witness will be so and so, and he will testify as to such and such.
  • At the conclusion of the case, we will ask you to convict the defendant of the crime as charged, thank you.

So that is basically how a prosecutor does an opening.  It may take 3 minutes, or it may take 20 minutes based on how many witnesses you have and how thoroughly you cover the “such and such” of the expected testimony.  In a mock trial, typically the prosecutor has 3 or 4 witnesses, and the time spent on an opening will be 5 minutes or less.  The above outline is a real basic opening statement.  To some it is a little bland, or formulaic, but in my job as a criminal defense lawyer, I do often see prosecutors deliver such openings.  It basically gets the job done.  And in a mock trial, that is often what a student lawyer is trying to do.

Now, students in a mock trial competition often want to know how to score the most points in an opening statement.  First off, don’t read the opening.  I wouldn’t try to memorize it either.  Rather I would write out an outline of what you want to say, and then rehearse it 20 times.  Usually this is hard for students to do; there is a tendency to try to memorize it, or to just read a pre-written statement.  However, you will lose points if you read an opening.  You just never see lawyers (even inexperienced one) do that in court.

Also, it seems like judges will score you on making good eye contact with the jurors, and delivering the opening with some level of feeling or emotion.  The closing is more an opportunity for persuasion, but your opening should contain a little element of drama.  Also, you will be judged on covering all the strongest points of your case.  You could lose points by including facts that are later not covered.  The best way to get good is to practice your opening statement in front of your classmates.

See also our new post on Tips for a Prosecution Opening.

Here is a sample opening statement from a fictional trial of Lee Harvey Oswald.

Mock trial competitors often struggle with the concept of the leading question. Lawyers also struggle with this. Everyone has heard of the courtroom objection, but it is difficult to define when a question is “leading” and when it is not. It is often said by lawyers that a leading question is a “question that suggests an answer”.   But legal texts define it as follows: A leading question is one which, either through form or substance of the interrogation, instructs a witness, or puts words in the witness’s mouth to be echoed back, or one which suggests to a witness the answer desired. (See Glen Weissenberger, Federal Evidence 1996 Courtroom Manual 134 (1995); Black’s Law Dictionary 888-89 (6th ed. 1991).] Generally, each judge has his or her own limit on how much an attorney is allowed to “lead” a witness. Courts have ruled that “the allowance of a leading question is within the discretion of the court, and is no ground for reversal.” See Farmers’ Co. v. Groff, 87 Penn. St. 124.

The problem for lawyers, is where do you draw the line?  For example, let’s say a prosecutor is interviewing a witness who observed an armed man who was fleeing the scene of a bank robbery.  A prosecutor may ask: “Did you see Mr. Smith fleeing the scene with a gun?”  That would be leading.  But what about the questions “Did you see Mr. Smith fleeing the scene?” or “Was Mr. Smith fleeing the scene?”?  The problem is that most judges would also likely find even those questions to be leading.  A lawyer is usually left with simply asking the witness if he observed “anyone fleeing the scene”.  The problem with this is that the witness is likely to then decribe any number of people fleeing the scene, such as bank tellers or account holders.  A lawyer would then meekly ask “uhm, anyone else?” and simply hope that the witness gets the idea.  You can kind of see now why some trials take weeks and weeks to get through testimony.  On the subject of the defendant fleeing with a gun, a lawyer would typically ask: “Was there anything in Mr. Smith’s hand?” or “was he carrying anything of note?”  Those questions seem simple enough, but often times a nervous witness will “choke” and find the phrase “anything of note” to be confusing.  This is particularly true if the witness mistakenly assumes that lawyers will ask fairly straight forward questions.   What a good trial lawyer does is to craft questions that are just leading enough without raising an objection.  This takes practice.  In the context of a mock trial competition, your classmate witnesses will generally know where you are trying to go with a question.  And unlike a real trial, it is not wrong or unethical to “prep” a witness for a mock trial competition. Student attorneys score points by how well they can ask non-leading questions, and they also score points by making timely objections to improper questions.  See my earlier post: Preparing for that Big Mock Trial Cross-Examination, Part I.

There are a few exceptions when a lawyer is allowed to ask a leading question.  First, on cross examination, a lawyer may always ask leading questions.  (That is, when you are questioning witnesses from the team of the opposing school.  Second, a lawyer is sometimes allowed to ask leading questions of an expert witness.  Third, a lawyer may ask the judge to declare a witness “hostile” and ask him or her leading questions.  I have never seen this last category work in real life however.

Let’s face it, it is not pleasant to be cross-examined. The witness is at a disadvantage. The lawyer has the element of surprise. He or she knows in advance what they are going to ask. The witness does not. Here are some tips to help you get through a mock trial cross-examine.
1. Know your witness statement inside and out. Also it is also helpful to read the other witness statements. You cannot answer based on what other witnesses have experienced, but it may help you anticipate what the cross-examiner will ask. In real life this would be impermissible witness prep, but is not prohibited in mock trial.

2. Remember what “overruled” and “sustain” mean. If an objection is made to the question, you may answer the question if the judge “overrules” the objection. If the judge “sustains” the question, you may not attempt to answer, and you have to wait for the next question to be asked.

3. When prepping for your mock trial, make sure you get a commitment from your lawyer teammate to protect you on the stand. If the cross-examiner is badgering you, or asking improper questions, you cannot object. Rather your teammate lawyer must object. The natural tendency is for mock trial student lawyers to relax after they have completed their direct examination. This is not good. They need to keep on their toes to protect you during cross examination. I like to use the analogy of a player needing a block or a screen during sports.

4. Remember the answers “I don’t know”, “I don’t recall”, and “I can’t answer that”. To buy time so you can think, you can always ask the attorney to repeat the question. If all else fails, ask if you can ask for a glass of water. And I am only half kidding about that.

5. Prepare to testify by sitting in the witness chair. Sitting in the witness chair can cause a little stage fright for the first time. “Test drive” the chair before trial, to get the cushion right, the microphone right, and to see how it feels.

6. Stay in character. Unlike real life, the mock trial scenario only provides limited information. If the questioner, asks you “what color was the get away car?” you can’t answer if that wasn’t in the classroom material. “I don’t recall” is a better answer than saying that it wasn’t in the class material.

Ultimately, you will score point for your team by knowing the material, and by remaining patient with the questioner, and not getting flustered. If the lawyer is needlessly rude or sarcastic during the cross examination, you score points simply by not responding in turn.

When it comes to courtroom drama, there is nothing quite like the cross-examination.   The closing argument usually includes an attention-getting, impassioned plea to the jury, but let’s face it, the closing argument sometimes can sound a little rehearsed.   A cross-examination can never be rehearsed.  You can prepare for the cross exam, but you never have to worry about it sounding memorized. You never know how the adverse witness is going to answer a question.

The best way to prepare for a cross-examination is to write down a list of questions. The questions should be listed in an abbreviated, outline form. I usually draw a little box next to each question, and I check the boxes as I go. You don’t have to go in order. The cross-exam will take a natural course.

One of the hardest parts of the cross-examination is getting the tone right. The cross-exam that a lawyer does for a criminal defendant or a police officer is obviously much different than a cross-exam of a child or a neutral witness with no ax to grind. You want to make it clear that you are in charge, and you are to make sure that your questions are answered, but you don’t want to go overboard and look like a jerk. Mock trial lawyers sometimes lose points by being too rough on a witness, or by indulging too much in sarcasm, or trying to be too theatrical. The trial process is, of course, a serious event.

Lawyers often make more eye contact with the jurors during cross-exam than on direct examination. The reason is that the lawyer is seeing how much the jurors are absorbing, and how they are reacting. The jurors’ attention to the witness usually increases.

On cross-examination a lawyer is allowed to ask leading questions. On direct-examination, a lawyer may not. When you are questioning a witness, you are typically not allowed to approach the witness without asking the judge for permission. Typically, approaching the witness is only allowed when you are asking him or her to look at an exhibit. In mock trials, judges sometimes relax this rule. Below is a clip from the movie My Cousin Vinny. The cross-examination tone is sarcastic, but the scene demonstrates the basic point.

What is hearsay?  In life, as in the courtroom, people like to make decisions based on first hand information.  Outside the law, people will often discount as “hearsay” information that is unreliable that they have heard from other people.  So too, in law, lawyers try to make sure that information comes directly from people first hand.   Hearsay is a complex system of rules and exceptions to rules that come from ancient England and that are embodied in our evidence rules.  For example, a witness says “John told me Mike robbed the bank”.  Since the witness did not see Mike rob the bank, the statement would be hearsay evidence to the fact that Mike robbed the bank.  Such a statement would be inadmissible, and it is the job of a mock trial student to object to such evidence.  “Objection hearsay!”  The judge will sustain such objections.  No one would want to be convicted of a criminal offense based on such second hand information.

Coaches for mock trial teams often simply tell their students to object whenever one witness attempts to quote another person.  This is probably good advice.  Often a mock trial lawyer will miss many potential objections.  It is then the job of the opposing attorney to then know what exception to the hearsay rule that he or she is relying on.  Here is a list of several exceptions to the hearsay rule:

1.    Confessions.  A witness is almost always allowed to quote a person who confesses to a criminal offense, or makes a statement against his or her interest.

2.    Excited Utterances. A witness is usually allowed to quote another person who was very excited or scared or agitated at the time.  It is thought that person in such a state would be in no shape to concoct fabrications, and thus most be telling the truth.  For example, a police officer arrives on the scene of a bank after an alarm is sounded.  A hysterical teller blurts out that “Mike” a former employee demanded money at gunpoint.  The police officer would be able to quote the teller as to the identity of the robber.  However, it is the job of a mock trial lawyer to establish the state of mind of the teller.

3.   Business Records. A witness who maintains record for a business or agency is generally allowed to admit the content of those records into court.  For example, a bookkeeper at a convenient store can introduce receipts for purchases of fuel by a getaway car even though he or she was not working on the day of the robbery.

4. Prior Statements Under Oath. Statements made at a prior court proceeding are generally admissible if the witness later becomes unavailable.  For example, if a teller witnesses a robbery and is questioned in court about that robbery, and ends up dying before trial, that earlier testimony would be admissible at a later trial.

5.   Statements Made for Purpose of Medical Diagnosis. Generally, a doctor or nurse is allowed to quote a patient as to statements made about their medical condition.  For example, a nurse may testify that a patient complained that injuries were cause by a beating during a robbery.  However the nurse may not quote the patient as to who, in particular, caused the injuries.

Knowing the hearsay exceptions is a good way for a mock trial lawyer to score points in a trial.

Whether in a real life trial, or a mock trial, witnesses tend to forget some of the facts of a case.  There is a specific way to handle such circumstances.  Below is a basic outline that lawyers follow in court.  In a mock trial, it is important to stay in character.

REFRESHING A WITNESS’S RECOLLECTION ON DIRECT

Q:        What was the weather like that day?

A:        Dark and cloudy?

Q:        Are you sure?

A:        Uhm, uhm, no I guess not. (laughter)

Q:        Did you provide a written statement in this case?

A:        Yes, I did.

Q:        Do you believe that it may refresh your recollection to look at it?

A:        Yes, I guess so…

Q:        Can I approach the witness? (Directed to the judge)

Judge: Yes

Q:        Do you recognize this statement?

A:        Yes.

Q:        Go ahead and read to yourself this part right here. (Must not read it aloud).

Q:        Now that you have read that, does that refresh your recollection?

A:        Yes

Q:        So let me ask you again, what was the weather like that day?

A:        It was warm and very sunny out.

Q:        Thank you

REFRESHING A WITNESS’S RECOLLECTION ON CROSS EXAMINATION

Q:        You testified a few minutes ago that it was dark and cloudy on the day in question, didn’t you?

A:        Yes.

Q:        But in your witness statement, you said it was warm and sunny, didn’t you?

A:        No, I don’t think so.

Q:        Your honor, can I approach the witness?

Q:        Read this part to yourself.

Q:        Have you had a chance to read it?

Q:        I’ll ask you again, in your statement you said it was warm and sunny didn’t you?

A:        Yes, I guess I did.

So you opted to be a witness in the mock trial rather than a lawyer?  Uh-oh. Lawyers only have to ask a bunch of questions.  Thats easy.  As a witness, you need to have all the answers.  Here are a few tips to survive the ritual of a senior year mock trial without being too traumatized.

1)    Read your witness statement over and over.  You will find that you don’t really absorb it until you practice your direct-examination and cross-examination with your classmates.  After you practice a few times, you will find that you absorb it better when you re-read it because you know what will be asked.

2)    Know how you spell your name.  In real life, judges often ask a witness to spell his or her name.  Learn how to spell your mock trial name so you can provide the spelling without choking in front of the class.

3)    Answer questions verbally. Court proceedings are audio-recorded.  A nod of the head doesn’t cut it.

4) Try to make eye contact wit the jurors when you testify. Making eye contact with the judge is not important except when you are being sworn in.

5)   Try out the witness chair before the trial begins. Sitting in the witness seat can be daunting.  When you first sit down to testify, the whole “Law-and-Order” ambience can be a little overwhelming.  Test drive the seat, the chair, the cushion, and the positioning of the mic before you testify, so when you get sworn in for reals you can focus on the task at hand.

6)   Remind your lawyer to protect you before the trial. If you are being badgered by a lawyer, you can’t object.  Remind your lawyer classmate, that after they do the direct exam, that they need to be prepared to object at questions asked of you, rather than go on a mental vacation.  Facing hard questions is part of being a witness, but you don’t want to be hung out to dry either.

7)    Dress for the part. If you are an expert witness, or a doctor etc, it is better to dress up a little to fit the part.  Ask your coach if you can borrow a tie.  He may even show you how to tie it.  At a minimum, no shorts or tank tops for mock trial court or real court.

8 )   Remember what “sustained” and “overruled” mean. When a lawyer objects, don’t try to answer the question until the judge rules.  “Overruled” means you can answer.  If the judge says “sustained”, just wait for the next question.

Any questions?  Leave questions below in the comment section!

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