A Straightforward Guide to Entering Evidence

Entering evidence can be challenging. However, in Mock Trial, evidence is crucial to adding more weight to your side of the case. The jury often needs some type of visual element to help them out. Therefore, evidence is a great way to help the jury visualize what’s going on in the case.

Approach Opposing Counsel and the Witness

 

  • “Your honor, permission to approach opposing counsel and the witness with which has been pre-marked as Exhibit #”
    • Ex: Your honor, permission to approach opposing counsel and the witness with which has been pre-marked as Exhibit 3
  • Wait for Approval
  • Show Opposing Counsel
    • Ex: Let the record reflect that I am showing Opposing Counsel this document
  • Give a copy to the witness

Lay Foundation

  • Ask questions to lay foundation
    • Direct Ex: “Are you familiar with this document?”
    • Cross Ex: “This is the email document that you sent John, correct?”
  • Ask the witness, “Is it a fair and accurate copy?”

Move Into Evidence

  • Your honor, permission to move what has been premarked as Exhibit # into evidence as D# (Defense) or P# (Plaintiff/Prosecution)
    • Ex: Your honor, permission to move what has been premarked as Exhibit 3 into evidence as D2
    • Ex: Your honor, permission to move what has been premarked as Exhibit 2 into evidence as P4
    • *The D# or P# is in sequential order when you move exhibits into evidence. For example, if you enter Exhibit 4 as D1, and the court accepts it, and you want to enter another exhibit later on, such as Exhibit 2 as D2, and Exhibit 6 as D3, etc.
  • Wait for an Objection
  • Wait for an Approval
  • Publish to the Jury
    • Ex: Your honor, permission to publish to the Jury?
  • Give copies to the Jury

Use the Evidence

  • Ask your questions on the document, obviously asking open-ended questions on Direct and leading questions on Cross.
  • Remember to retrieve the document when you’re finished!
    • Ex: Your honor, permission to retrieve the document

 

Controlling Your Witness: A Guide to Witness Control

What is Witness Control?

Witness Control is a concept that assists attorney in eliciting information from witnesses, especially non-responsive witnesses. It also allows attorneys to control the witnesses emotions and gain as much information from the witness as possible. For example, if a witness is being non-responsive, concepts in Witness Control allow the attorney to use the “responsiveness” of the witness to their advantage

My Personal Experience

As a witness, I hate witnesses. I am guilty of being a “bad” witness but some witnesses are just downright mean to their attorneys. But as a previous Mock Trial attorney and witness, here is a step by step guide to Witness Control.

Tips on Witness Control

  • The first time a witness is non-responsive or runs (filibustering), let them be non-responsive or let them run. After he has finished, re-ask the question, putting any misunderstanding on yourself and giving the witness the benefit of the doubt with a phrase such as, “I’m sorry, my question might have been unclear…”
  • If a witness runs the second time, let them run for a little bit. However, stop them with a phrase such as, “Directing your attention back to the question I had previously asked,…” This is a little bit hostile. However, it’s encouraged if you were cordial the first time.
  • If a witness runs the third time, you now have enough power to use more aggressive tactics.
    • If you have an expert, or someone who has previously testified in court, you can be more aggressive. You may say, “Sir/Ma’am, you’ve testified in court *x* times before, right? So you understand your role here is to answer the questions posted to you right?” and begin re-asking your question.
    • If you have a normal (lay) witness, begin asking straightforward “yes” or “no” questions with them.
  • If a witness runs the fourth time and you have done all of the things stated above, they’re aggressive and you need to ask the judge to direct the witness to answer the question. Just be sure that your questions are direct and the witness has actually been evading them before asking the judge to get involved. There is nothing worse for an opposing team than a judge intervening just so a witness could be more responsive in answering your questions.
  • Even after all that, you’re allowed to bring a motion to strike the answer from the record and request the judge to instruct the witness to answer. If you feel like a witness is being over the top, you should ask the judge to instruct the timekeeper to stop the clock.

Why do these tips work?

As an attorney, you want to make yourself look a cordial and non-aggressive attorney. Therefore, by being a friendly attorney, the jury will see that you’re a small fish trying to ask questions to an angry shark.

If a witness is aggressive, the jury and judge will see that they are being non-responsive and hostile. Therefore, the jury and judge will deduct points on for their team. The reason why being an aggressive witness isn’t good is because why should a witness, especially an expert witness, be hostile and non-responsive unless they have something to hide.

Why are witnesses aggressive and hostile?

As you may have guessed, bad teams have hostile and aggressive witnesses. However, the reason why a witness may be hostile or aggressive is because they are trying to run you off time. Therefore, time is a key ingredient in Mock Trial because you are only allowed at max three hours in a High School tournament and points will be deducted when you are overtime. Other times, you may have asked a question that would damage their credibility. Therefore, they may be aggressive since they have something to hide.

How to Conduct Pre-Trial Motions

What are Pre-Trial Motions?

Pre-Trial is your first impression with the judge and the first time the jury hears your team speak. Therefore, it’s crucial that you deliver your pre-trial and how well your attorney delivers in those first few minutes.

Should You Deliver Pre-Trial Motions?

Yes! Many teams forget to do this step. Not only does pre-trial make your team look better, you’re allowed to enter important case documents such as stipulations, the federal rules of evidence, or rules of competition.

Pre-Trial Format

  1. The judge will ask your side (or the room as a whole) whether there are any pre-trial matters that the court should attend to. Usually, the prosecution/plaintiff will go first but if the opposing team does not go, you may use this time to go.
  2. Whoever performs pre-trial motions for your team will stand and respond with:
    1. “Yes, your Honor.”
  3. The attorney will make appearances before the court.
    1. “First, your Honor. We’d like to make introductions before the court.”
    2. (Wait for Permission from the Judge), (If nothing for a few seconds, proceed)
    3. Good Morning/Afternoon/Evening your Honor. My name is (John Doe) along with my Co-Counsel (Joe Smith) and (Jane Brown). We represent the defense/prosecution/plaintiff, (Anytown Police Department), in today’s trial.”
  4. The attorney should ask for the judge’s preference for moving about the courtroom (if not asked already). It is usually best to ask permission for exactly what you would rather do as an attorney rather than letting the judge decide (as it sets control). Make sure you note what permissions you have and don’t have as it’s bad to ask for permission and then ignore the judge’s instructions.
    1. “We’d like to ask your Honor’s permission to move about the well freely.”
  5. Ask for permission to Approach Opposing Counsel and the Witness
    1. “Your Honor, I ask your permission to approach the opposing counsel and witness when necessary.”
    2. The Judge will usually reply with: “Please ask permission to approach the witness. You do not have to ask permission to approach counsel” (Usually)
  6. The Attorney will offer copies of the stipulations, relevant case laws, rules of competition, etc. to the bench. To expedite matters, if the judge allows you to approach to tender these documents, an attorney who is not doing pre-trial should tender documents to the bench.
    1. “Next, your Honor, the defense/prosecution/plaintiff has some documents that we’d like to tender to the bench. May I approach?”
    2. Wait for Approval
    3. Approach the judge with the documents (Stipulations/Rules of Evidence) and identify what they are for the court: “We have here the federal rules of evidence and a copy of the stipulations for today’s case.”
  7. (Different per State/Team) Your Attorney will invoke Rule XXX for the constructive sequestration of all non-party witnesses. In a real court case, sequestration would be the removal from the courtroom of all witnesses when they are not testifying. In Mock Trial, doing this constructively allows the witnesses to remain in the courtroom to simplify and expedite this process. In theory, these witnesses are not aware of the testimony of anyone else.
    1. “Lastly, your Honor, we’d like to invoke rule 615: the constructive sequestration of all non-party witnesses. The defense/prosecution/plaintiff designates (John Smith) as our party representative today/we have no party representative.
    2. The Judge may or may not ask the other side to designate a party representative.
    3. NOTE: The Federal Rules of Evidence lists Rule 615 for Sequestration. The rule number may differ if your state does not use the Federal Rules of Evidence. 
    4. Some judges are not frequent with Mock Trial rules so you may need to explain what constructive sequestration is for them.
  8. Finally, the attorney will let the judge know that his side is ready to proceed.
    1. “With that your Honor, the defense/prosecution/plaintiff is ready to proceed.”

Sample Pre-Trial Motions

= Judge | = Attorney 1 | A2 = Attorney 2

  • J: Are there any pre-trial matters that we need to attend to?
  • A1: Yes, your Honor.
  • J: Go Ahead
  • A1: First, your Honor. We’d like to make introductions before the court.
  • J: You may proceed
  • A1: Good Morning your Honor. My name is John Doe along with my Co-Counsel Joe Smith and Jane Brown. We represent the plaintiff, Anytown Police Department, in today’s trial.
  • A1: We’d like to ask your Honor’s permission to move about the well freely.
  • J: Please ask permission to approach the witness. You do not have to ask permission to approach counsel.
  • A1: Next, your Honor, the defense/prosecution/plaintiff has some documents that we’d like to tender to the bench. May I approach?
  • J: You may
  • A2: Hands documents to Judge
  • A1: We have here the federal rules of evidence and a copy of the stipulations for today’s case.
  • J: Is there anything else?
  • A1: Lastly, your Honor, we’d like to invoke rule 615: the constructive sequestration of all non-party witnesses. The plaintiff designates John Smith as our party representative today
  • J: Granted
  • A1: With that your Honor, the plaintiff is ready to proceed.