Mock Trial Guide

Mock Trial Guide
Table of Contents

Purposes of the Mock Trial Tournament page 1
Professional Rules of Conduct 2
Examples of Courtesy by Lawyers 2
Specific Rules for Team Lawyers 2
Specific Rules for Team Witnesses 2
Becoming Familiar With The Case 3
Trial Script Summary 4
Practice Pointers 4 - 5
Simplified Rules of Evidence 5 - 6
So you are the CROWN PROSECUTOR 6 9
So you are the DEFENCE LAWYER 10 13
So you are the WITNESS or the ACCUSED 14

Purposes of the Mock Trial Tournament
to enable students to prosecute and defend a criminal case through inter-
collegial competition
to provide students the opportunity to meet and work with lawyer coaches
to give students the chance to practice advocacy skills before judge
to foster an appreciation of the duty counsel have to act with courtesy toward
other members of the profession and the Court

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Rules of Professional Conduct
All lawyers in Ontario are governed by a set of rules created by the Law Society of
Upper Canada. Lawyers must follow these rules or they risk a suspension of their
right to practice law, or even disbarment. The rules also require counsel to treat the
Court with candour, courtesy, fairness and respect. If the decorum of the courtroom
is not respected there is a risk that the right of all parties to a fair hearing might be
lost.

Examples of Courtesy By Lawyers
Excuse me, Your Honour, for interrupting my friend in the midst of cross
examination, is this a relevant line of inquiry?
With the greatest of respect, the Crown has failed to meet the high burden required
to establish that the defendant is guilty.
Your Honour, would the Court permit defence counsel and I a moment to discuss
just how we would like to proceed at this point.
Your Honour, if it please the Court, might I approach the witness to have her
identify this document?
Thank you for your Honours ruling.
Specific Rules for Team Lawyers
1. Before proceeding with their opening statements, each team of lawyers should have
one of its members introduce the team to the presiding judge(s):

Your Honour, my name is Mr./ Miss _______________. My colleagues are Mr./
Miss _______________, Mr./ Miss _______________, and Mr./ Miss
_______________.

2. Each of the lawyers must engage in either the direct examination or cross
examination of a witness.

3. Lawyers may use notes to present their cases.

4. Fact sheets may NOT be disputed at the trial. Lawyers must not interrupt the judge
to point out that the other side is deviating from the fact sheet. The judge(s) will be
aware of this and will consider it when evaluating the performance of the offending
team.

Specific Rules for Team Witnesses
1. All witnesses, including the accused, must take the stand.

2. Witnesses are not permitted to use notes when testifying during the trial with one
exception: police officers can use notes if the notes were made contemporaneous to
the investigation of the crime. The notes are NOT the fact sheets.

3. The fact sheet binds each witness. The only time it might be necessary to create a
fact is if a cross-examining lawyer asks a question that is not answered by the fact
sheet.
Becoming Familiar With The Case
Once the team members are familiar with the facts, the witness roles can now be
developed. Credibility of witnesses is very important to a teams presentation of its case.
As a result, students acting, as witnesses need to really get into their roles and attempt to
think like the persons they are portraying.

Students who are witnesses should read over their fact sheets many times and have other
members of the team or their class ask them questions about the facts until they know
them cold.

Lawyers will be developing their questioning abilities when they start asking
questions to the witnesses. Student team members have a primary responsibility for
deciding what possible questions should be asked of each witness on direct and cross-
examination.

Prepare an opening statement. This can be a team exercise in which all members
brainstorm questions such as:
What are the most important facts we want to tell the judge?
What evidence will we present that we should stress?
What kind of verdict do we want from the judge?
How will we ask for that?

Each team member will write an opening statement. Legal and/or non-legal language
should be avoided where its meaning is not completely understood by lawyers and
witnesses.

The final case preparation involves the preparation of closing statements for both
sides of the case. This can be developed the same way as were the opening
statements, and put in writing. However, it should be noted that closing statements should
not be totally composed before trial. They are supposed to highlight the important
developments for the crown prosecutor and the defence, which have occurred during the
trial. The more relaxed and informal such statements are, the more effective they are likely
to be. Students should be prepared for interruptions by judges who like to question the
lawyers, especially during the closing arguments.

The ability of a team to adapt to different situations is often a key part in a mock
trial enactment since each judge or lawyer acting as a judge has his/her own
way of doing things. Since the proceedings or conduct of the trial often depend in
no small part on the judge who presides, student lawyers and other team members should
be prepared to adapt to judicial rulings and requests, even if they appear contrary to
outlined tournament procedures and rules.

Trial Script Summary
1. Bailiff escorts judge to bench and calls order.
2. Counsel stand to identify themselves (Crown followed by Defence).
3. Court Clerk reads the indictment and accused pleads to charges.
4. Crown Counsel makes opening statement.
5. Crown examines witness (direct examination).
6. Defence examines witness (cross-examination).
7. Steps 5 7 are repeated for each Crown witness.
8. Defence makes opening statement.
9. Steps 5 7 are repeated for each Defence witness with Defence conducting direct
examination and Crown conducting cross-examination.
10. Defence presents closing arguments.
11. Crown presents closing arguments.
12. J udge leaves.
13. Court adjourns briefly to await return of judge.
14. J udge returns and tells the accused that he or she is guilty or not guilty.
15. J udge evaluates teams.
16. Court is adjourned.

Practice Pointers
Some of the things most difficult for team members to learn to do are:
To decide which are the most important points to prove their side of the case and to make sure
such proof takes place;
To tell clearly what they intend to prove in an opening statement and to argue effectively in their
closing statement that the facts and evidence presented have proven their case;
To follow the formality of the court, e.g. standing up when the judge enters; or when addressing
the judge, to call the judge Your Honour, etc.;
To phrase questions on direct examination in order for them not to be leading (carefully review the
rules of evidence and watch for this type of questioning in practice sessions);
Not to ask too many questions on cross-examination so that well made points are lost. When a
witness has been contracted or otherwise discredited, student lawyers tend to ask additional
questions, which often lessen the impact of points, previously made. (Stop and recognize what
questions are likely to require answers that will make good points for your side. Rely on the use of
these questions. Avoid pointless questions!);
To think quickly on their feet when a witness gives an unexpected answer, a lawyer asks
unexpected questions, or a judge throws questions at the lawyer or witness. (Practice sessions will
help prepare for this);
To restrain oneself from breaking from the reality of the mock trial, by pointing out to the judge
that an opponent is deviating from the fact sheet or an affidavit. The judge is aware of this and you
only harm your side by feeling compelled to point it out.

Simplified Rules of Evidence
Tournament procedures only permit the direct and cross-examination of each
witness; no redirect examination.
Either the Crown Prosecutor or the Defence Counsel may object to a question or the
admission of an exhibit. The judge may ask the person objecting on what rule of
evidence are you relying? Then the judge may either allow (sustained) the objection
preventing the evidence from being introduced or overrule the objection allowing the
questions to be answered or the exhibit to be admitted into evidence.
Reasons for objections:
o Leading questions: Crown prosecutors must allow their witnesses to tell their
own story; they must not lead their witnesses through the story. Defence
lawyers must follow the same rule when questioning their witnesses.
o Hearsay: the questions must limit witnesses to tell facts they know from
personal knowledge. Other information they have is hearsay evidence.
o Immaterial and irrelevant: the information is not closely related to the case,
and is therefore not important.
o Opinions and conclusions: unless the witness is qualified as an expert, s/he
should not give opinions or conclusions.
o Non-responsive answer: the witness answer is not addressing the question.
These are only a few objections. They are probably the most common ones used. They will
adequately serve your needs.
How to Raise an Objection
Stand
Await the attention of the J udge
State the reason for the objection
Address the Court, not opposing counsel
Take your seat while the other side responds
Stand if the Court addresses you
How to Enter an Exhibit
With respect to introducing documents or goods into evidence, a document or other item
must be introduced through a witness who can identify it and testify as to the truth of its
contents.
Announce that you have a document/item that you wish to show the witness
Seek the Courts permission to approach the witness
Introduce the document/item as you show it to the witness: eg., Madam, Im now
showing you a photograph. Have you seen it before? or Can you identify it?
Ask the witness if the document/item is familiar: eg., Please tell the Court if you
recognize this and what it is.
After the item has been identified, ask the Court for it to be made an exhibit. Counsel
hands the document to the clerk to be marked as an exhibit and then questions the
witness on its contents.
So you are the CROWN PROSECUTOR
Duties: The Crown prosecutor must help maintain law and order in our society. When a
crime is committed; the Crown prosecutors job is to bring all the facts of the crime to
the courtroom.

The Crown must prove:
The date
The place
That the crime was committed
That the accused is the culprit
That all the elements of the crime have been fulfilled
Note: the elements of the crime are all the little acts that go to make up the final
complete transaction or crime. The Crown must prove all these things to a certainty
beyond a reasonable doubt.

Strategy Notes:
BEFORE YOU BEGIN, you will need to think about the following ideas:
Who are you? When you play one of the roles in a mock trial, you need to know as
much as you can about WHO that character is. Imagine what it feels like to be a
Crown prosecutor. What would a Crown prosecutor wear in court? How would s/he
walk into the courtroom? How would s/he speak? What kind of language would s/he
use? Practice your role. Try to BE that role.
What is important in a trial? An accused is innocent until proven guilty. Think about
this idea. Talk about it with your classmates and teacher. What does it really mean?
How would a trial be different if we didnt believe in this idea? Keep this idea in mind
throughout the trial.
What happens in a trial? A trial is a formal event. Your teacher has materials that
outline the correct steps for holding a trial. Make sure you know what the steps are
and why they happen before you begin the trial.

PREPARE YOUR CASE
Read the indictment. It will tell you what crime the police believe has been committed
as well as when and where they believe it was committed. It will also tell you who is
accused of committing the crime. Finally the indictment lists the witnesses the Crown
intends to call.
Read the applicable law. Pick out all the elements so that you know what you have to
prove about the crime.
Talk to witnesses and find out the following information:
What happened?
Where?
When (date and time)?
Who was at the scene of the crime?
Did the act show any other qualities necessary to fulfill the elements of the
crime: for example intention?

Remember that you have to prove these facts as well as all the elements of the crime set
out in the law. When you interview your witnesses, practice asking questions so that they
relax and are able to tell their accounts of the crime. Remember that you may not ask them
any leading questions in direct examination during the trial.

PLAN WHAT INFORMATION YOU NEED TO PROVE YOUR CASE
Decide which witnesses you will call. Make sure you bring all the facts of the crime to
the courtroom.
Decide in what order you will be calling your witnesses. Try to start at the beginning
of the incident and continue to the end.

PLAN HOW TO GET YOUR INFORMATION INTO COURT
Opening statement (Crown Prosecutor)
o Purpose: to inform the judge of the nature of the case and to acquaint the
court with the essential facts. Defence counsel does not permit argument,
discussion of law, or objections.
o Include:
Name of the case.
Your name and your colleagues name.
Opponent counsel's name.
The facts and circumstances that led to the charge.
Conclusion.
o Avoid:
Too much detail. It will only tire and confuse the judge.
A run down of the testimony of eyewitnesses.
Exaggeration and overstatement. Dont use such phrases as, prove it to a
mathematical certainty, or prove it absolutely beyond a question.
Argument. It violates the function of the opening and you risk rebuke from
the bench.
Anticipating the defence. It is improper and might result in a mistrial.
Walking or pacing. It distracts and irritates judges.

Lawyers must follow rules of evidence so that a fair trial ensues. You must plan your
strategy within these rules:
No leading questions of witnesses during direct examination.
A witness must tell what happened without any prompting. You may ask your witness
what happened, but you may not ask questions, which give away what answer you
want.
Correct: Tell us what you saw.
Incorrect: Did you see the green truck hit the red car?

Correct: What happened next?
Incorrect: Did he hit him then?

Correct: How fast was the car traveling?
Incorrect: Would you say that the car was traveling at 100 km/hour?

No hearsay. You may only ask your witness about those things which s/he saw or
experienced. A witness may not talk about things s/he has been told by someone
else.

Correct: I saw five cats in Mrs. Smiths kitchen.
Incorrect: J oan told me Mrs. Smith has five cats.

No opinion: You may not ask your witness opinion about things other than
common knowledge unless s/he is an expert in the field. For example, an average
citizen can give an opinion about the speed of a car, or the height of a person.
However, only an expert, an auto mechanic for example, could give an opinion
about the condition of the brake linings in a car.

A witness must identify the item of evidence: The witness must tell the court what
his/her connection with the item is. Then the witness must tell what connection the
item has with the crime (that is, is it a map or the area of where the crime took
place, goods that were stolen, a weapon found near a body, etc?)

o Once the witness has shown the items connection to the case and to him,
the lawyer asks that the item be entered as an exhibit.
o The judge asks if there are any objections. If there are no objections, the
item is given to the clerk.
o The clerk puts a label on the item. The date and Exhibit 1 (1, 2, 3 etc.) are
put on the label.
o The clerk then shows the item to the judge.

If you plan to enter exhibits you should check to be sure they are entered properly.

Exhibits must be entered according the following procedure:
The clerk keeps the item on the table.
NOTE: to establish the chain of control of the item, all the witnesses who have
handled the exhibit must testify.

ANTICIPATE YOUR OPPOSITION
Once you have prepared your case, you should spend time thinking about the other
sides case. Place yourself in the Defence lawyers shoes. Ask yourself what points
s/he will try to make. Make sure your own witnesses have covered them.

Be ready to question the Defence lawyers witnesses on points where they disagree
with the evidence of your witnesses or other Defence witnesses. This questioning is
called cross-examination.

In cross-examination you may ask leading questions of witnesses called by the
Defence lawyer. Your job in cross-examination is to show any biases, mistakes, or
contradictions in the witness testimony and to bring out further evidence concerning
the case. Therefore, you will ask questions to pinpoint specific information which
you want made clear, such as:
o Was the traffic light red?
o Did the thief have curly hair?
o Could the falling snow have impaired your vision?

Be careful not to harass the witness because that will only confuse the witness and
may influence the judge against you or your case.

Never ask a question unless you know what the answer is. You may receive a
statement that defeats your case.

Each lawyer has a responsibility to see that the evidence is presented correctly. Thus, if
you think the Defence lawyer is not following the rules of evidence, you should object to
the questions. For example, you may make the following objections:

Objection, your Honour. The question is irrelevant (It has no meaning in regards to
the matter.)
Objection, your Honour. That evidence is hearsay. (Recounting of someone elses
experiences.)
Objection, your Honour. Counsel is asking for an opinion this witness is not
qualified to give.
Objection, your Honour. Counsel is leading his witness. (Asking questions
improperly.)
Objection, your Honour. Counsel is harassing the witness. (Pursuing a point
unnecessarily in cross examination.)

Once Counsel objects to a question, the judge stops the examination and may ask the
examining Counsel to explain why he is pursuing that line of questioning. The judge then
makes a decision as to whether the objection is to be overruled or sustained if the
objection is overruled, the examining lawyer may continue; if it is sustained, he must
withdraw the question. At the trial the judges word is final. The ruling on an objection may
be grounds for an appeal to a higher court.

PREPARE YOUR SUMMATION
Be sure you tell the judge how you have proven your case. The Crown must prove:
The date
The place

NOTE: The elements of the crime are all the little acts that go to make up the final
beyond a reasonable doubt.
So you are the DEFENCE LAWYER

Duties:
The Defence lawyers job is to protect the rights of the accused. The Defence does not
have to prove anything, so generally you would not have to call any witnesses. (It is the
right of the accused to remain silent.) However, in this mock trial, all witnesses must be
called.

Strategy notes:
BEFORE YOU BEGIN, you will need to think about the following ideas:
Defense Lawyer. What would a Defense Lawyer wear in court? How would s/he
walk into the courtroom? How would s/he speak? What kind of language would s/he
use? Practice your role. Try to BE that role.

KNOW THE LAW AND THE CASE.
Read the indictment. It will tell you what crime the police believe has been committed
as well as when and where they believe it was committed. It will also tell you who is
accused of committing the crime. Finally the indictment lists the witnesses the Crown
intends to call.
Read the applicable law. Pick out all the elements so that you know what the Crown
must prove about the crime.
Talk to witnesses and find out the following information:
What happened?
Where?
When (date and time)?
Who was at the scene of the crime?
Did the act show any other qualities necessary to fulfill the elements of the
crime: for example intention?

Remember that the Crown has to prove these facts as well as all the elements of the
crime set out in the law.

When you interview your witnesses, practice asking questions so that they relax
and are able to tell their accounts of the crime. Remember that you may not ask
them any leading questions in direct examination during the trial.
ANTICIPATE YOUR OPPOSITION:
Your first task in protecting the rights of the accused during the trial is to be
prepared to question witnesses that the Crown calls. Place yourself in the Crown
prosecutors shoes and ask yourself what points he will try to make. Be ready to
question the witnesses on points where they disagree with each other. This
questioning is called cross-examination. Your job in cross-examination is to show
any disagreements among the witnesses and to bring out any further evidence
concerning the case. Therefore, you will ask questions to pinpoint the information,
which you want made clear. For this, you may use questions like:
o Was the traffic light red?
o Did the thief have curly hair?
o Could the falling snow have impaired your vision?

Be careful not to harass the witness because that will only confuse the witness and may
influence the judge against you or your case.

Never ask a question unless you know what the answer is. You may receive a statement
that defeats your case.

Each lawyer has a responsibility to see that the evidence is presented correctly.
Thus, if you think the Crown prosecutor is not following the rules of evidence you
should object to the questions. For example, you may make the following
objections:

o Objection, your Honour. The question is irrelevant (It has no meaning in
regards to the matter.)
o Objection, your Honour. That evidence is hearsay. (Recounting of someone
elses experiences.)
o Objection, your Honour. Counsel is asking for an opinion this witness is not
qualified to give.
o Objection, your Honour. Counsel is leading his witness. (Asking questions
improperly.)
o Objection, your Honour. Counsel is harassing the witness. (Pursuing a point
unnecessarily in cross examination.)

Once Counsel objects to a question, the judge stops the examination and may ask the
examining Counsel to explain why he is pursuing that line of questioning. The judge then
makes a decision as to whether the objection is to be overruled or sustained if the
objection is overruled, the examining lawyer may continue; if it is sustained, he must
withdraw the question. At the trial the judges word is final. The ruling on an objection may
be grounds for an appeal to a higher court.

If the Crown enters exhibits you should check to be sure they are entered.
Exhibits must be entered according the following procedure:
A witness must identify them.
The witness must tell the court what his/her connection with the item is.
Then the witness must account for how the exhibit has been handled since it was
found. (If more than one person has handled it, they all must testify.)
Once the witness has shown these things, the lawyer asks that the item be entered
as an exhibit (number 1, 2, 3).
The judge asks if there are any objections.
If there are no objections, the item is given to the clerk.
The clerk puts a level on the item. The date and Exhibit 1 (2, 3, etc) are put on the
label.
The clerk then shows the item to the judge.
The clerk keeps the item on the table.

NOTE: to establish the chain of control of the item all the witnesses who handled the
exhibit must testify.

PLAN HOW TO GET YOUR INFORMATION INTO COURT
Opening statement (Defence Counsel)
Purpose: to deny that the Crown has a valid cause; and, in a general way, to outline
the facts from the standpoint of the defendant. Objections by Crown are not
permitted.
Give: your name and your colleagues name. General theory of defence. Facts that
tend to weaken the Crowns case. Conclusion.
Avoid: repetition of facts that are not in dispute. A run-down of what each witness
will testify to. Exaggeration and argument. Strong points of the Crowns case.
Walking or pacing it distracts and irritates the judges.
After you have planned your strategy for cross-examination, you must call
witnesses. Although the accused normally has the right to remain silent, all Defence
witnesses are to be called for the purposes of this mock trial enactment. Since you
will be calling the accused, you will probably want to call him/her as the first defence
witness.

Lawyers must follow rules of evidence so that a fair trial ensues. You must plan your
strategy within these rules:
No leading questions of witnesses during direct examination.
A witness must tell what happened without any prompting. You may ask your witness
what happened, but you may not ask questions, which give away what answer you
want.
Correct: Tell us what you saw.
Incorrect: Did you see the green truck hit the red car?

Correct: What happened next?
Incorrect: Did he hit him then?

Correct: How fast was the car traveling?
Incorrect: Would you say that the car was traveling at 100 km/hour?

No hearsay. You may only ask your witness about those things which s/he saw or
experienced. A witness may not talk about things s/he has been told by someone
else.

Correct: I saw five cats in Mrs. Smiths kitchen.
Incorrect: J oan told me Mrs. Smith has five cats.
No opinion: You may not ask your witness opinion about things other than
common knowledge unless s/he is an expert in the field. For example, an average
citizen can give an opinion about the speed of a car, or the height of a person.
However, only an expert, an auto mechanic for example, could give an opinion
about the condition of the brake linings in a car.

PREPARE YOUR CLOSING
Be sure you tell the judge how you have proven your case. The Crown must prove:
The date
The place

HOW TO MAKE A CLOSING ARGUMENT
Summarize the testimony upon which you rely
Summarize the law that supports your position
Limit your argument to THREE main points
Anticipate and/or respond to the main argument of the opposing side

NOTE: The elements of the crime are all the little acts that go to make up the final
beyond a reasonable doubt. If the Crown has failed to prove any of these things you
should point that out to the judge.
So you are the WITNESS or the ACCUSED

Duties: Witnesses and the accused are the people who have seen or experienced the
event in question.

Their task is to answer the lawyers questions. They must answer clearly and truthfully so
that the judge can understand what really happened.

Strategy Notes:
Before you begin, you will need to think about the following ideas:
witness or accused. What would a witness/accused wear in contact? How would
s/he walk into the courtroom? How would s/he speak? What kind of language would
s/he use? There are many ways to study your role. You may find someone who has
been a witness or accused to tell you what its like. Practice your role. Try to BE that
role.



Being interviewed by the lawyers Read the fact sheets. Tell the lawyer who
interviews you what happened and how you became involved. Dont tell anyone
else. They will hear what you have to say in court. If you find that there are details
you must add, speak to your teacher about them.

AT THE TRIAL
You should remember that a witness gives information not only through the words
s/he says but also through mannerisms, clothes, and attitude. Your dress and
manner should reflect the character you want to show.
During the trial, answer the lawyers questions as honestly as possible. A witness
evidence is the only information a judge has about what happened. Tell your story
to the court as clearly and completely as you can, without prompting.
After you give your evidence, you will be cross-examined by the lawyer representing
the other side. The lawyer will ask questions about parts of your evidence. Answer
his/her questions clearly but as briefly as possible.
If a lawyer asks you a question, which you cant answer, tell him/her you dont know.

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