Unit Title: Interpreting the Past – The Case of the “Bloody Massacre” Designed by: Fran O’Malley Director, Delaware Social Studies Education Project



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Opening Statements


Purpose: 1. To introduce yourself and your client.

2. To acquaint the judges with the nature of the case.

3. To outline what you are going to prove through witness testimony and the admission of evidence.

Preparation for Trial: 1. Write a short summary of the facts.

2. Determine the burden of proof (the amount of evidence needed to prove a fact and who has it in this case).

3. Develop a clear and concise overview of each witness and the physical evidence you will present.

4. Judge how each will contribute to proving your case.

5. Learn your case thoroughly.

Presentation: 1. Stand before the scoring judges.

2. Introduce yourself and your colleagues.

3. Make eye contact with the judges.

4. Appear confident in what you are saying.

5. Outline the case from your point of view.

6. Use the future tense in describing what you will do (e.g., “The facts will show…”).

7. Mention testimony of key witnesses.

8. Tell what relief you are requesting.

Avoid: 1. Too much narrative about witness testimony.

2. Exaggeration and overstatement of facts that may not be proven.

3. Promising to prove something you will not or are not able to prove.

4. Reading your whole statement.

5. Repeating undisputed facts.

Presenting Evidence

Direct Examination


Purpose: To obtain favorable information from your witnesses to prove your case facts.

Preparation for Trial: 1. Study your witness statements. Look for all the good points that are favorable to your case.

2. Prepare a series of questions based on these good points.

3. Avoid leading questions (except for questions that pertain to name, address, etc.).

4. Do not ask questions requiring opinion testimony until you have laid the proper foundation to qualify the witness as an expert.

Presentation: 1. Stand before the podium except when introducing evidence.

2. Be relaxed and clear in the presentation of your questions.

3. Keep to simple questions that you have practiced with your witnesses.

4. Listen to the answers.

5. Be able to think quickly if the witness gives you an unexpected answer and add a short follow-up to be sure you obtained the testimony you wanted.

6. When your facts are in, cease questioning.

Avoid: 1. Wasting time asking questions that are not pertinent.

2. Complex and verbose questions.

3. Redundant and monotonous questions.

4. Eliciting conclusions.

5. Too much narrative (can be dangerous if you lose control of witness testimony).


Cross Examination


Purpose: 1. To discredit the witness.

2. To discover flaws in his/her testimony.

3. To secure admissions which help your case.

Preparation for Trial: 1. Study your opponent’s witness statements. Look for all the points that are not favorable to his/her case.

2. Prepare a series of questions based on these points.

3. Try to anticipate how each witness will answer your questions so that you can adapt your questions during the trial according to what is actually said.

4. Prepare short questions using easily understood language.

5. Ask only questions to which you already know the answer.

Presentation: 1. Be relaxed and ready to adapt your prepared questions to the testimony that is actually heard during the direct examination.

2. Listen with care to the answers of the witness.

3. Ask leading questions that require only a “yes” or “no” answer whenever possible.

4. Ask questions on important points that will raise doubts about the credibility of a witness. If a witness has not been truthful, ask the witness to identify his/her statement and then read that portion of the statement which is contrary to what he/she just said.

5. Pose questions that weaken the testimony of the witness by showing his/her opinion is questionable—such as a witness with poor eyesight claiming to have observed all the details of a fight that took place 500 feet away in a crowd.

6. Ask questions that show that a witness who has testified to an opinion is not competent or qualified due to lack of training or experience, such as a psychiatrist testifying to the need for dental work or a high school graduate testifying that in his/her opinion the defendant suffers from a chronic blood disease.

7. If testimony is given which you feel contradicts the witness’s statement, confront the witness with the statement and bring out inconsistencies in testimony given.

Avoid: 1. Giving the witness the opportunity to reemphasize the strong points made during direct examination.

2. Quarreling, harassing, intimidating or showing hostility toward the witness. Judges usually resent it.

3. “Fishing” expeditions which give the witness a change to clarify damaging statements. When you have a favorable answer, drop the matter and wait for closing arguments to emphasize it.

4. Allowing the witness to explain anything. Try to stop the witness if he/her explanation is going on and hurting your case by saying, “Thank you. You’ve answered my question.” If the witness continues and you have difficulty cutting the witness off, you may ask the judge to admonish the witness to not volunteer information not asked for.

Objections


Purpose: To present to the judge a rule of evidence which would bar an answer to the questions or result in striking the answer from the record, if already given.

Preparation for Trial: Practice both making and responding to objections.

Presentation: 1. Rise to address the presiding judge.

2. Upon the raising of an objection, opposing counsel should immediately be prepared to respond to the objection, arguing why it should be overruled.


Physical Evidence/Exhibits


Purpose: To provide information that may be referred to in detail and parts read in court.

Presentation: 1. Ask the judge if you can approach the bench so the exhibit can be marked for identification.

2. Show the exhibit to opposing counsel.

3. Request permission from the judge to approach the witness.

4. Hand the exhibit to the witness and walk back to the podium.

5. Remind the judge if any of the stipulations establish part of the necessary foundation for the exhibit.

6. Ask the judge if you can approach the witness to retrieve the exhibit.

7. Request permission to approach the bench.

8. If permission is granted, do so and hand the exhibit to the judge and ask that it be admitted into evidence.

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