Kit & Case Materials - YMCA of Greater Seattle

WASHINGTON YMCA
YOUTH & GOVERNMENT
TABLE OF CONTENTS
Program Overview 1
Calendar 2
Fees/Refund Policy 3
State Office Contact Information 4
District Conveners 5
Program Information
Program Testimonials 6
Acknowledgements 7
Mission Statement 8
Program Policies and Board Expectations 9
Coaching Responsibilities 10
Historical Review of Mock Trial 11
Board of Directors 12
Case & Competition History 13
Questions and Answers about Mock Trial 15
Words of Wisdom from Successful Coaches 21
Budgeting & Fundraising
Budgeting 23
Funding Your Program 25
Fundraising Opportunities 26
Instructional Materials & Sample Lesson Plans
Sample Monthly Planning Calendar 27
Teaching Mock Trials
Teaching Mock Trials 29
Introduction – Trials and American Society 30
Planning for a Mock Trial 32
Judging 37

Classroom Arrangement 38
Administrative Checklist 39
Lesson Plan 1: Dispute Resolution and the Trial Process 40
Lesson Plan 2: Steps in a Trial 42
Lesson Plan 3: Introduction to the Case 43
Lesson Plan 4: Strategy/ Case Analysis & Opening Statements 44
Lesson Plan 5: Witness Examination and Closing Arguments 46
Lesson Plan 6: Rules of Evidence and Procedure 50
Lesson Plan 7: The Mock Trial 54
Lesson Plan 8: Debriefing after the Mock Trial 55
Review #1 56
Mock Trial Observation Sheet 57
Review #2 58
The Trial Process 61
Steps in a Trial 66
Resources for Teachers
Civics Education Resources 77
Mock Trial Resource List 85
Electronic Resources 88
Preparing for Competition
Tips for Preparing Witnesses and Attorneys 89
Courtroom Decorum 90
Case Preparation Tips for Attorney Coaches and Teachers 91
Key Points to Remember 92
Awards and Recognition 95
Trial Procedures 96
Trial Sequence and Information for Student Participants 97
Bailiff/Clerk Responsibilities 99
Bailiff Time Cards 101
Time Guidelines 109
Sample Time Tracking Form 110
Courtroom Host Responsibilities 111
Team Rosters 112
Guidelines for Attorney Coaches 113
Guidelines for Judges 114
Order of Pre-Trial Motion Events 115

Conducting the Trial 116
Suggestions for Presiding Judges and Audience Raters 117
Explanation of the Scoring System for Audience Raters 120
Attorney and Witness Evaluation Rubrics 122
Sample Score Sheet 124
An Explanation of Scoring 125
An Explanation of Power Matching 126
Mock Trial Competition Rules
Mock Trial Competition Rules 129
Judges 134
Rules of Evidence and Procedure 136
The Case
Introduction 1
Case Witnesses 2
Stipulations 3
Indictment 5
Jury Instructions 10
Witness Statements 15
Exhibits 59
Pretrial Motion 66

DIVIDER

DIVIDER

YMCA YOUTH & GOVERNMENT PROGRAM OVERVIEW
FOUNDED IN 1947, YMCA Youth & Government provides
opportunities for teens statewide to find their voice on the issues
facing society today. Offered in local YMCA’s, schools, and
community groups, students are empowered to assume the role
of leaders in their communities. By providing access to teens and
encouraging their participation in the judicial, legislative and
executive branches of our government, Y&G programs empower
students to address concerns in their communities while building
understanding of the “shades of gray” that dominate adult life
MOCK TRIAL
Teens in the YMCA Mock Trial program acquire the
leadership, team building and public speaking skills that lead to
the development of active and engaged citizenship. Mock Trial
provides an opportunity for students to participate in a
competitive, high drama courtroom showdown between teams
from around the state. Through researching case law, working
with team members and arguing legal issues in front of real
judges and lawyers, teens are provided hands-on learning
opportunities that will assist in the development of the
confidence, knowledge and skills needed to lead the next
generation.
YOUTH LEGISLATURE
Students explore the meaning of civics and democracy in our
nation by assuming the roles of various Washington State elected
officials, researching and drafting creative policy solutions to
community problems and engaging in service-oriented activities.
Delegates learn and practice tolerance, understanding, and peer
mentorship while putting to use real-world skills for a lifetime of
civic involvement.
1

2012-2013 MOCK TRIAL PROGRAM CALENDAR
October
20 Coaches’ Orientation (Washington State Capitol in Olympia)
Release of the 2013 Case materials
November
15 CONA Applications Due to State Office
(all students currently enrolled in grades 9-12 are eligible to apply)
December
4 Financial Assistance Applications Due
8 YMCA Youth & Government Board Meeting (Seattle)
CONA Interviews (Seattle)
14 Mock Trial District Fees Due
January 2013
26 CONA Orientation Meeting
February
4-28 Mock Trial District Competitions (Statewide)
March
9 YMCA Youth & Government Board Meeting (Olympia)
11 Mock Trial State Fees Due
22-24 Mock Trial State Competition (Thurston County Courthouse,
Olympia)
May
9-11 National Mock Trial Championships (Indianapolis, IN)
June
7-9 Board of Directors Retreat (Spokane, WA)
27-July 5 YMCA Youth Conference on National Affairs (Black Mountain, NC)
2

INFORMATION ABOUT FINANCES,
REGISTRATION FEES, AND REFUND POLICY
DISTRICT REGISTRATION FEES
Due December 14, 2012
$100 per Team
$30 per Student.
STATE FINALS REGISTRATION FEES
Due Friday, March 11, 2013
$300 per Team
$30 per Student
- each team can have a maximum of 15 students
- teams provide their own housing, transportation, and most meals
LATE POLICY
Teams whose fees are postmarked after the deadlines will be charged an
additional $25.
Fees postmarked more than 30 days after deadlines will be charged an additional
$25 (for a total of $50 in late fees).
FINANCIAL ASSISTANCE APPLICATIONS
At the Y everyone is welcome regardless of their ability to pay. Financial Assistance
is available through the state office. YMCA Youth & Government follows the financial
need criteria of the YMCA of Greater Seattle and the HUD guidelines for King
County in order to ensure a fair distribution of money to students. All individual
Mock Trial participants are eligible to apply for these funds. Money is distributed
based on family’s financial situation. If you have any questions about this process
please contact the State Office at (360) 357-3475.
REFUND POLICY
District and State Finals Registration Fees
There are no refunds or credits on District or State registration fees.
REGISTRATION COSTS
Student and team registration fees may be shared between schools or obtained
from student body associations, individual students, donations from local bar
associations, service groups and fund-raising projects.
*We advise that students pay some portion of the student fee. Past experience
shows that if they pay for the exceptional training they receive through this
program, they will have more ownership in attending practice and preparing. Some
schools ask local attorneys or their local bar to sponsor some portion of the
participation fee as well.
3

PROGRAM INFORMATION
STATE OFFICE
Sarah Clinton
Executive Director
sclinton@seattleymca.org
EASTERN WASHINGTON
BJ Edwards
Program Leader
bedwards@ymcaspokane.org
Mac Sample
Program Director
msample@seattleymca.org
Phone: (360) 357-3475
Physical Address:
921 Lakeridge Way SW, Suite 202
Olympia, WA 98502
Mailing Address:
PO Box 193
Olympia, WA 98507
Youth & Government on the web:
www.youthandgovernment.org
4

LIST OF CONVENERS
Clark Honorable Robert Lewis (360) 397-2226
Clark County Superior Court robert.lewis@clark.wa.gov
PO Box 5000
Vancouver, WA 98666-5000
King Honorable William Downing (206) 296-9362
King County Superior Court william.downing@kingcounty.gov
516 3 rd Ave, C-203
Seattle, WA 98104
Pierce & Honorable Stephanie Arend (253) 798-7562
Thurston Pierce County Superior Court sarend@co.pierce.wa.us
930 Tacoma Ave. S., Rm 334
Tacoma, WA 98402-2102
Benton & Honorable Joseph Burrowes (509) 735-8476 x3392
Franklin Benton District Court joseph.burrowes@co.benton.wa.us
7122 W Okanogan, Place Bldg A
Kennewick, WA 99336
South King Honorable Judge Larson (253) 835-3012
Federal Way Municipal Court david.larson@cityoffederalway.com
33325 8th Avenue South
Federal Way, WA 98063
_________________________________________________________________
Snohomish Honorable Linda Krese (425) 388-3954
Snohomish County Superior Court Linda.krese@co.snohomish.wa.us
3000 Rockefeller MS 502
Everett, WA 98201
Whatcom Honorable Charles Snyder (360) 738-2457
Whatcom County Superior Court CSNYDER@CO.WHATCOM.WA.US
311 Grand Ave
Bellingham, WA 98225
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DIVIDER

DIVIDER

MOCK TRIAL TESTIMONIALS
“It is Mock Trial’s ability to inspire passion that makes the program what it is.
Whether it is a passion for the law, a passion for acting, or maybe just a passion for
argument, you would be hard pressed to find a student in Mock Trial who isn’t
passionate about something. It is this passion that makes the Mock Trial world so
real. Without it, we would just be a bunch of kids talking about imaginary people
allegedly doing imaginary things that may or may not be against the law.”
Scott Ferron, Seattle Prep
student (2009)
“Mock trial is not just debate, it is not just theatre, and it is not just law. Mock Trial
is a mental battle, fought in a court room, combining elements of theatre, law,
debate, and speech. It is a melting pot of individuals, combining the legal
community, with some of the brightest high school students in Washington; and it
is the single best experience of my High School career.”
Louis Brotherton, Seattle Prep
student (2007)
“The YMCA Mock Trial Program invigorates participants as well as their family and
friends, basically our community, with knowledge of and passion for the justice
system. Furthermore, participants learn fundamental social skills such as
negotiation, public speaking, leadership, teamwork, critical thinking, creative
problem solving, and civic involvement.”
Dubs Ari Tanner Herschlip, WSBA Young Lawyer
Program Volunteer (2006)
“I help facilitate Mock Trial in our county because it is one of the most energizing
things I can do. I am constantly amazed at the resourcefulness and competence of
the students who participate and I think it teaches them so many skills that they
won't get elsewhere.
Honorable Charles Snyder, Whatcom County Superior Court
District Convener (2006)
“The best thing about working with the YMCA Mock Trial program is the opportunity
to observe so many talented high school students putting so much effort in to their
presentations. All of the teams were impressive and, clearly, had spent many
hours preparing for their trials.”
Honorable Linda Krese, Snohomish County Superior Court
District Convener (2007)
6

ACKNOWLEDGEMENTS
Without the generous support of the following people and organizations the
Mock Trial Program would cease to exist. Their continued support has
allowed the program to flourish. A quality learning experience has been
provided to over 14,830 past participants who have entered society with
training and skills that will enhance any adult role they seek to fulfill.
First of all we would like to thank our Board of Directors. It is only because
of their time, energy, vision, and passion that the Mock Trial Program
continues to enhance the lives of Washington’s youth.
Many thanks also go to Wendy Ferrell and the staff at the Administrative
Office of the Courts for their dedication and service to the Mock Trial
Program.
We would also like to thank Program Chair, Judge Robert Lewis of the Clark
County Superior Court for his time and dedication to the civic education of
Washington’s youth.
Thanks also go out to case author Mike Lang and editor Judge William
Downing, King County Superior Court, for the time and creative energy they
have given over the past year in creating The Last Ferry. Their time and
dedication, alongside the time and dedication of volunteers like them,
continues to set Washington’s Mock Trial program apart from other
programs around the nation who look to our state for some of the best mock
cases in the country.
We are also grateful for the expertise and time of hundreds of volunteers
from the legal community who serve as judges, court administrators, district
conveners, audience raters, and attorney coaches; each year their collective
volunteer hours number into the thousands. This contribution to the lives of
young people is immeasurable.
And finally, thanks to the scores of teachers and volunteer coaches willing to
embrace the mock trial concept and put forth the commitment to prepare
mock trial teams for competition. They inspire excellence in their students
and provide an experience in democracy they will remember for a lifetime.
7

VISION STATEMENT
New generations of ethical and informed, public-minded citizens
MISSION STATEMENT
Teach Democratic values and skills to youth through hands-on experiences
SPECIFIC PROGRAM GOALS:
To foster the development of citizen responsibility
To develop social competence, problem-solving ability, and
communication skills
To encourage self reliance and a sense of purpose for youth
To provide training and experience through active participation
in the three branches of government: Legislative, Executive, and
Judicial
To stimulate careful deliberation of social issues and their
possible resolutions
To create opportunities to hear and respect varying viewpoints
To inspire young people to be responsible & act with integrity
To apply ethical values in making public policy
To teach the YMCA core values of Honesty, Caring, Respect,
and Responsibility
MOTTO
“Democracy must be learned by each generation.”
8

PROGRAM POLICIES/BOARD EXPECTATIONS
Washington YMCA Youth & Government is governed by a Board of Directors.
The following are guidelines and policies adopted by the Board:
Adult Leadership Policy
All phases of the Mock Trial program include adult responsibilities. To
ensure adequate supervision and leadership for students, adult leaders
function in the following capacities:
As advisors and facilitators assisting students
As a responsible adult acting on behalf of the students’ parents, the
local YMCA or high school, and the statewide organization of YMCA
Youth & Government
All adult coaches and program volunteers are expected to maintain
appropriate relationships with their students. Personal relationships with
individual students are strictly prohibited.
Drug, Alcohol & Tobacco Policy
The YMCA commitment to a healthy spirit, mind and body requires
consistent enforcement of the Youth & Government drug, alcohol, & tobacco
policy as follows:
There will be no tolerance of drug, alcohol or tobacco use in any form
during Youth & Government events and activities.
Failure to comply with this policy could result in immediate expulsion
from the program. Delegates may be sent home at their own
expense.
9

COACHING RESPONSIBILITIES
Coaching Requirements
A ratio of one adult to every ten participants (1:10) is to be in place at
all Youth & Government activities on the local, district, and state level. At
least half of the coaches from each team must be at least 21 years of age.
Program alumni are required to be at least two years out of high school to
volunteer as a team coach. Alumni interested in volunteering who are less
than two years out of the program should contact the state Youth &
Government office to learn about additional opportunities.
Each delegation must have one “Lead Coach” for their group. This
individual will be the main point of contact for the state office and be
responsible for providing leadership and direction for the team at all levels of
the program. It is also the responsibility of this individual to ensure that the
following responsibilities are taken care of (either by themselves or by
another advisor in the group).
It is the coaches role to provide appropriate adult leadership and direction
for high school age delegates. Please be clear with your students about your
role as a coach and that you maintain a professional manner in dealing with
them and their parents.
10

HISTORICAL REVIEW OF MOCK TRIAL
1987-2012
For many years, the YMCA Youth Legislature included an appellate court component that
allowed students to write and present a legal brief before a model state Supreme Court. In
1989, in order to reach more students with a law related educational program, the Youth &
Government Board of Directors decided to phase out the appellate court, and run a separate
Mock Trial Competition, instead.
The Mock Trial program was originally a bi-centennial project that was sponsored through
the local ES districts. In 1987, Youth & Government began to co-sponsor Mock Trial as one
of its programs. The program had other sponsors and was supposed to be self sustaining
through fees and donations. Mock Trial suffered from continual funding problems and a
high rate of coordinator turn over which made fundraising difficult. In 1990 the Board voted
to bring the Mock Trial Program under the wing of the Board financially. The Board agreed
to pick up the program’s deficit and raise the money to cover it. The Seattle YMCA
graciously carried this deficit for us until we could raise the necessary funds. In 1994, after
another funding and staffing crisis with Mock Trial, the Board took full responsibility for the
program, placing the Mock Trial coordinator and the successful functioning and funding of
the program under the Board and the Executive Director.
Mock Trial teams from high schools throughout the state work with a teacher-advisor and an
attorney-coach to present a hypothetical legal case before a real judge in an actual
courtroom. The vast majority of teams come from public and private high schools around
the state, however there are occasionally other groups that form teams and become
involved. An example of this is the Seattle Parks and Recreation team who began
competing in the King County District Competition in 2006.
The case is written or selected by the Mock Trial Case Committee made up of attorneys and
judges around the state. Judge William Downing has chaired this committee for the past
several years and under his guidance the cases Washington students use in competition are
some of the most well written and socially relevant mock trial cases in the nation. Our
students are also known nationwide as effective debaters, skilled competitors, and polite
and civilized opponents. In 2000 Seattle’s Franklin High School represented Washington
State well as they took first place at the national competition. Since then, Washington
teams have repeatedly placed within the top 20 at each national championship.
In 2012 Seattle Prep came in first place in the State Competition and went on to receive 6th
place at the National Mock Trial Championship in Albuquerque, New Mexico.
Participants in the Mock Trial Program learn critical thinking and dispute resolution, practice
oral advocacy, and experience planning and preparing a team effort. They develop a feel
for the meaning of justice as they learn to sift truths from untruths and how to evaluate
both sides of an issue before making a decision. The mock trial program adds a special
dimension to citizenship education in our state, one that makes students aware of the
importance of the law and it’s far reaching impact on our lives.
11

12
YMCA Youth & Government
Board of Directors
Chris Koenig* Chair
Koenig Chevrolet-Subaru
Jeanne Cushman* Vice Chair
Attorney/Lobbyist
Marta Tolman, Secretary
Business Management Consultant
Tom Hoemann, Treasurer
Washington State Senate, Secretary
Lucy Helm*, Past Chair
Starbucks Corporation
Jennifer Joly
Attorney
Mike Egan*
Microsoft Corporation
Judge Robert Lewis, MT Program Chair
Clark County Superior Court
Al Ralston
Checkerboard Consulting Services, Inc.
Kevin Hamilton
Perkins Coie LLP
David Namura
Puget Sound Energy
*YMCA Y&G Alumni
Joe Jenkins*
Bill Collins
Attorney, retired
David Fisher
Business Consultant
Ken Kanikeberg
OSPI
Eleanor Peavey, YL Program Chair
Mill Creek YMCA, Snohomish
Molly Miller, Mock Trial Representative
Houston Warren, Youth Governor
Advisory Board
Sam Reed
Secretary of State
Sharon Tomiko Santos
Washington State House of
Representatives
Scott Washburn
YMCA of Snohomish County
Ralph Munro
Former Secretary of State
Justice Robert Utter*
Washington State Supreme Court, retired
12

13
CASE AND COMPETITION HISTORY
Year Type Case Case Subject Teams
At
State
1989 Civil Casey Carter v.
Henry M. Jackson
H.S.
1990 Civil Robinson et. al v.
Adams School
District
1991 Civil State of
Washington v.
Chelan Lake
1992 Crim State of
Washington v.
Haines
Discrimination of a
student with AIDS
High school drug
testing policy
Championship Round
(winner in bold)
8 Moses Lake vs.
Capitol
8 Franklin vs.
Port Angeles
The Right-to-Die 8 Franklin vs.
Involuntary
manslaughter/
possession of
unregistered
weapon
1993 Civil State v. Kruse Malicious
harassment
8 Franklin vs.
Ft. Vancouver
16 Ft. Vancouver vs.
University Prep
Presiding Judge
Supreme Court
Justice Barbara
Durham
Supreme Court
Justice Charles Smith
Supreme Court
Justice James
Dolliver
Elaine Houghton and
Steven DeForest
1994 Civil State of
Washington v.
Jerrod Theodore
Bronson
Insurance fraud 18 Lynden vs.
Ft. Vancouver
1995 Crim State of
Washington v.
Mel Dobson
1996 Civil Capulet v. Rich
County S.D.
1997 Crim State of
Washington v.
Haines
2 nd degree burglary
and malicious
mischief
Racial
discrimination
Self defense or
murder
15 Ft. Vancouver vs.
Walla Walla
Supreme Court
Justice Charles Smith
14 Ft. Vancouver vs. Franklin Court of Appeals
Judge Karen G.
Seinfeld
16 Franklin vs.
University Prep
1998 Crim State v. Jones Domestic violence 18 Franklin vs.
Ridgefield
1999 Civil Noble v.
Sexual harassment 22 Franklin vs.
Katiesburg in schools
University Prep
School District
2000 Civil Alex Williams,
Marty Graves,
and the Cedar
County Board of
Educ.
First Amendment
and case for
injunctive relief
20 Franklin vs.
University Prep
National Champion
Supreme Court
Justice Richard B.
Sanders
Supreme Court
Justice Richard Guy
Supreme Court
Justice Barbara
Madsen
Supreme Court
Justice Gerry
Alexander
13

14
2001 Crim State v. Tag
Montague
2002 Crim State v. Ogden
Browne
2003 Crim State v. Taylor
Garrison
2004 Civil Internet Freedom
Forum, et al. v.
Sam Houston
Free Speech and
Graffiti
20 Franklin (3 rd at Nationals)
vs.
Franklin
Vehicular Homicide 20 Franklin (6 th at Nationals)
vs.
University Prep
Sports Assault 20 Seattle Prep (6 th at
Nationals)
vs.
Franklin
Civil Liberties and
Patriot Act
20 Seattle Prep (16 th at
nationals) vs.
University Prep
Supreme Court
Justice Tom
Chambers
Supreme Court
Justice
Susan Owens
Supreme Court
Justice
Susan Owens
Former Supreme
Court Justice Robert
Utter
2005 Crim State of
Washington v.
Whislea Dwight
Accomplice
liability/felony
murder
20 University Prep (10 th at
nationals)
vs. Fort Vancouver
Supreme Court
Justice Jim Johnson
2006 Crim State of
Washington v.
Lin Pauling
2007 Civil Cisco Narcissus
v. J.P. “Weegee”
Zenger
Controlled
substance homicide
19 Seattle Academy (16th at
nationals) vs.
Franklin
(3rd at American Mock
Trial Invitational)
Invasion of Privacy 20 Seattle Prep (16 th at
nationals) vs.
University Prep
(2 nd at AMTI)
Supreme Court
Justice Susan Owens
Supreme Court
Justice Jim Johnson
2008 Crim State of
Washington v.
Jesse Herring
Homicide/
Circumstantial
evidence
20 Seattle Prep (8 th at
nationals) vs.
Seattle Prep JV
Supreme Court
Justice Mary
Fairhurst
2009 Civil Tisby Hark v.
Cedar County
School District
2010 Crim USA v. Cuyahoga
Rivers
2011 Crim State of WA v.
Kenley Kadich
2012 Civil Evening star life
& casualty
insurance
company, INC. v.
Ithacus solutions
Employment Law 20 Seattle Prep (3 rd at
nationals) vs.
University Prep
(9 th at AMTI)
Eco Terrorism 20 Seattle Prep (5 th at
nationals vs.
Franklin High School
Manslaughter by a
Police Officer
22 Seattle Prep(10 th at
Nationals)
vs (Seattle Prep JV
Insurance Claim 22 Seattle Prep(6 th at
Nationals) vs. Franklin
Supreme Court
Justice Jim Johnson
Supreme Court
Justice Barbara
Madsen
Supreme Court
Justice Debra
Stephens
Supreme Court
Justice Susan Owens
14

QUESTIONS AND ANSWERS ABOUT MOCK TRIAL –
THE “NUTS AND BOLTS”
**Don‘t start anything until you read this! **
What is a mock
trial
Where do I get the
case for the year
Who organizes and
pays for the Mock
Trial Program
Who can form a
mock trial team
High school students portray a part in a cast of courtroom
characters. Much of mock trial’s fascination lies in its dramatic roleplay
possibilities. Students can become, for a time, a fiery
prosecutor or a dedicated defense attorney, a righteous defendant
or an elusive witness. Each year students study a new hypothetical
case relevant to today’s issues. They receive guidance from
volunteer attorneys in courtroom procedure, oratory, and trial
preparation.
The Mock Trial Kit (includes the case and supporting materials) is
provided by the Mock Trial Program in mid October. No other
materials other than those provided may be used. This places the
emphasis on interpreting and formatting information into a
convincing case rather than researching obscure legal precedents.
The YMCA Youth and Government program funds a Professional
Staff to administer the Mock Trial Program. Our operating costs
come from donations, grants, and volunteer support. Participant
fees make up the additional costs it takes to make this program
possible. Public and private high school teachers and attorneys
take on the task of preparing students for competition. They may
receive a stipend from their individual schools.
A teacher at any high school, public or private and/or an attorney
volunteer can be a coach. All participants (grades 9–12) must be
enrolled at the same school district, preferably in the same high
school, or the same private high school, or be a pre-existing
member of a youth group in existence for a minimum of 3 years
with a constitution or bylaws. Home school and other youth groups
may also participate. With the approval of the state coordinator,
exceptions can be made to help new teams get started.
15

What happens
during the trial
When are the
competitions
What does it cost
to participate
How do teams
finance their
competition fees
How is mock trial
taught
Teams present their case in a two-hour trial before a real
judge in a real courtroom. At district competition, each team
gets at least two opportunities to argue the case. At State
finals each team goes to trial four times (twice to
prosecution, twice for the defense, if possible). During the
trial, each side presents the pre-trial motion. Next, they give
their opening statements. Later, each of the four witnesses
for both the prosecution (or in a civil case, the plaintiff*) and
the defense are questioned by both sides on direct and crossexamination.
Then the attorneys make their final case in
closing arguments. At least two practicing attorneys critique
and score student performances in each trial. Volunteer
judges preside over the trial, and volunteer raters score the
teams and comment on their performances.
* Any future references to prosecution should read plaintiff in a
civil case.
In February, teams of attorneys and witnesses meet at
county courthouses all over the state to argue their cases. On
the last weekend in March, the winners of their respective
districts meet at the state competition for two days to
compete with other teams from all over the state. The state
champion represents our state at Nationals held in May.
District Competition cost $100 per team plus $30 per person.
State Finals cost $300 per team, $30 per person, plus lodging
and transportation.
ASB funds, local bars and/or legal firm donations. Our
program has a small scholarship fund for teams and
individuals. Most teams do additional fundraising. Scholarship
forms and fundraising ideas are included in the kit.
There are a lot of successful formulas. Advisors may run
mock trial as an extracurricular club meeting regularly
October through February (for Districts) and until the end of
March if they go to State. Other advisors run mock trial
16

during first semester class then organize into an
extracurricular club until the season is over. A few recruit and
select mock trial members from their classes and hit the case
really hard in January through Districts in February. This plan
would be difficult for a new or inexperienced team.
When does the
mock trial season
start and end
How much time
does it take to
prepare a team
for mock trial
How does a team
get an attorney
to help out
The year’s case is available in October, on the date set by the
Mock Trial Program Chair. Districts occur mid to late
February. State is usually the last weekend of March.
Nationals are held at the beginning of May in a different city
each year. The competition season fits into the winter sports
season and ends before spring vacation. The District
Convener determines the district competition date in
February. State Finals are often held the same weekend as
State Knowledge Bowl but usually don’t conflict with Debate
events. Many teams spend the fall learning legal terminology
and trial techniques. During this time, many practice on other
mock trial cases and may organize informal competitions with
nearby schools.
For extracurricular arrangements, most teams will meet one
to three times a week from October through January. Usually
teams meet 3–5 times a week during February to prepare for
Districts. Attorney coach time commitments vary. In February
and March they may spend up to several sessions a week
preparing for District and State competitions. A session may
be one-half hour to four hours long during lunch, class,
before or after school. When offered through a first semester
class, students have the benefit of more frequent instruction
depending on other curriculum demands. For classroom
situations, extra time will be required outside of class in
February and March. Students often spend some vacations
learning their parts.
Many teams will recruit a parent who practices law to
volunteer. You can call or e-mail your District Convener for
suggestions. This is the organizer for your region – often a
judge or a member of the legal community. The Mock Trial
17

Kit contains a list of District Conveners. The state director
may also be able to provide a few names of attorneys in your
area who have expressed interest. More than one attorney
may help a team. Volunteer attorneys don’t receive
compensation or continuing legal education credits for their
time, but they do it because it’s rewarding. Students must
attend practice sessions with attorneys or they should be
removed from the team. A $100- $200 per hour attorney
won’t continue to volunteer time if students don’t show up.
Younger attorneys with fewer family commitments will do it
as a way to give to their community. Established attorneys
may be busier, but may want to volunteer during their own
children’s high school years. Finding an attorney coach is
really a big help! Often they will find other attorneys to assist
them once they’re hooked on mock trial!
How many
students does it
take to
participate
How are team
members
recruited
It takes 7–15 kids and a school may field more than one
team. A full team would have fifteen students with three
student attorneys and four witnesses for both the prosecution
and defense. Under this scenario, seven students learn the
prosecution’s case and seven learn the defense case. The
fifteenth student fills the role of bailiff. For teams with fewer
students, it is possible for students to double up on roles with
a set of six students learning and arguing both sides. One of
the attorneys for each side would also present the pre-trial
motion in addition to an opening or closing statement and
witness examinations. When doubling up, a student may be a
witness for the prosecution’s case (for instance) and an
attorney for the defense. They cannot play both witness and
attorney for the same side. The team that competes at
Nationals is limited to eight members.
Start by recruiting from students in business law, civics, U.S.
government classes and from debate, drama or speech clubs.
Post flyers around the school and hold an informational
meeting. Write a short article for the school and local
newspaper to inform students of upcoming auditions or
meetings.
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How is a team
created
How does a team
get to compete
Again there are many ways to do this. Some teachers recruit
specifically from competitive Debate, Speech, and Drama
teams for their experience. Others allow anyone who commits
the time to participate. Some teachers conduct auditions for
witness and attorney roles, others select their students and
assign them a role.
Any team that pays the registration fee by the deadline is
allowed at Districts. The size of the district will determine
how many teams from each District Competition will attend
the State Event in late March.
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What’s involved
in
preparing for
competition
Educate students on elements of a trial and legal
terminology.
Recruit an attorney to help you.
Take a tour of the local courthouse.
Make copies of witness statements.
Conduct auditions or otherwise assign roles.
Read the case and work on a case analysis.
Break down each witness statement into statements of
fact.
Weed out irrelevant details that have no bearing on the
case.
Separate the facts that are good/bad for the
prosecution and for the defense.
Create a timeline of events in the case.
Choose a theme to each side of the case.
Practice how to phrase questions that cannot be
successfully objected to.
Write questions for each witnesses’ examination and
cross-examination.
Help the witnesses rehearse their answers to the above
questions.
Have attorneys start writing their opening and closing
statements.
Review and practice how to make effective objections.
Show attorneys how to submit exhibits and how to
introduce their team.
Train students in proper courtroom decorum, dress and
demeanor.
Predict the opponent’s possible objections and how
you’ll respond.
Teach and practice elements of effective oratory and
presentation.
Conduct practice scrimmages. Ask a judge to come in
to critique.
20

OTHER WORDS OF WISDOM FROM SUCCESSFUL
COACHES…
After you get the kit, set aside a block of time to read the kit materials
and the case thoroughly. Recruiting an attorney to advise you and your
students is really helpful. Many teachers who don’t know much about law
have coached teams. They learn along with their students. Having an
attorney to help assists the teacher as much as the students!
Competitive Mock Trial takes commitment. Two other important attributes
are responsibility and teamwork. It takes hours of preparation and good
organizational skills. Students must attend practice and spend outside
time preparing their witness or attorney roles. Lay out your expectations
from the get-go and have students commit. If students don’t show up
they let their team down, whittle away team morale, and decrease their
chances of success and fun at this endeavor.
Start early enough or if you plan to start January 1 st, have a grueling
schedule planned with students who’ve already been recruited and have
parts that they’ve studied over the holidays. After the case is analyzed
and memorized, plan to spend a month working on oratory and
presentation style. Don’t give this process short shrift – it makes all the
difference when attorneys score the teams in competition. Get the
speech teacher as well as the attorney to advise you and the students at
this level.
Don’t let the temptation to help the students override the purpose of the
program – their learning and their accomplishment. If you write the
material or even work it over a lot, it becomes less their product and
more yours. Don’t allow students to adopt another team’s material – it is
unethical. We are teaching teen how to honest, civic-minded leaders in
Youth & Government programming.
Assign alternates in case a member drops out. If an attorney has to be
replaced, it will usually be with someone familiar with the case – most
likely a witness. Move the witness into the attorney role and fill the
witness position with an alternate.
Mock Trial is not drama. It has elements of drama in the portrayal of
witnesses, but too much melodrama will hurt your team. Witnesses must
21

know the facts of the case very well. Well-rehearsed answers will look
stale and overwrought demonstrations of emotion will backfire. Subtle
characterizations can still be very effective – a tilt of the head, a shuffle
to the walk, a slight accent, a mannerism that’s unique, a stutter…
Don’t over-practice. The trial will unfold with its share of surprises – a
team should be wary of becoming complacent with their version of the
case. Mock trial’s best teams know how to think their way out of a tough
situation or when the trial takes a direction they didn’t expect.
Instruct your students to observe courtroom decorum – never chew gum
or eat during the trial. Attorneys should wear conservative clothing – dark
sport coats or dresses or a jacket and skirt. Wear small jewelry or none
at all. While attorneys need to dress more formally, witnesses should
dress appropriately for their role without obvious costuming. Do not move
furniture or disturb courtroom equipment, approach the witness, or touch
exhibits or papers without permission from the judge. Observers of the
trial should be quiet and attentive. No side-talking.
Instruct students to control their facial expressions and body language.
They can put on a calm and poised face even if they’re feeling a range of
emotions or even turmoil inside. A composed and unruffled team will
impress the judge and the attorney raters. Never treat a member of a
team or the judge with bias as to gender, age or race – i.e. don’t be
condescending or over-bearing or interrupt or over-object. Never raise
your voice or argue with the judge. A rush of whispers among team
members will make you look bad. Do not display a negative facial or
vocal reaction to a judge’s decision. Create practice scenarios where you
learn to stay composed under pressure.
Organize your cases and prepared questions in plastic. Laminate the
objections and keep them nearby for reference unless they are committed
to memory. Each attorney should have a notepad. Closing and opening
statements should be memorized. Visuals (within the rules) can help to
focus attention to the key points.
22

DIVIDER

DIVIDER

Budgeting 101
When creating a program budget there are two main things to consider.
Expenses are things that will cost money, and revenue is money being
brought in. In the end your expenses and revenue should balance – or your
revenue should be just a little more than your expenses so you come out
positive. The following tables outline some things you will need to consider
in terms of expenses and revenue when creating your budget for Youth
Legislature or Mock Trial.
Revenue:
Program fees
Fundraisers
It’s important for students to pay at least a small amount
of the cost of the program.
Make sure to get student input before planning
fundraisers. Having students set their own goals for
fundraising is usually a great way to start.
Sponsorships/donations Have students write letters to local business people about
supporting your program. Invite sponsors to attend an
“open house” with your team/delegation.
Grant/foundation
support
Y&G Financial
Assistance
ASB funding
Local YMCA support
If applying for a grant keep in mind that all applications
are not successful and many applications may take 6-8
months for a foundation to process.
All students are encouraged to apply for need-based
scholarships. Forms are included in the program
materials.
If your program is set up through a school there may be
ASB or other funds available.
Whether or not your program is set up through a local
YMCA, local Y’s may be interested in offering support in
the form of scholarships, staffing, facilities, fundraising
opportunities or a donation.
23

Expenses:
Staffing
Training
Volunteer support
Transportation
Lodging
Food
Facilities
Program Materials
State Program
Fees
District Program
Fees
In high schools this may take the form of a teacher stipend. In YMCA’s
it may be a percentage of an employee’s total salary (based on the
amount of time spent running the Y&G program.). It may also include a
small portion of an administrative person or supervisor’s salary.
Both Youth Legislature and Mock Trial advisors/coaches are encouraged
to attend annual training/orientation events. Fees for training are $7.00
to cover the cost of food.
Account for any thank you gifts or meals for volunteers during Y&G
events, trainings or meetings.
Account for the cost of gas or mileage reimbursement or the amount to
rent a school or charter bus when planning for statewide events.
District events may also require a transportation budget if students are
not able to transport themselves to events.
Some things to keep in mind when shopping for hotels:
# of students per room (usually 4 is OK for students)
# of adults per room (usually 1-2)
Is the hotel in walking distance to event
Is breakfast included (decreasing $ needed for meals)
Know in advance what meals you will provide during events and what
students will be responsible for. Make sure students can get at least
one nutritious meal each day (something other than fast food or pizza is
good).
Also make sure to budget some snack money for meetings – this is a
great way to make sure kids show up!
$ needed for meeting/practice facilities
If you will print handbooks for your students, team/delegation t-shirts
or bags; if you’re going to do a fundraiser make sure to include the cost
of materials needed
These are listed in your program materials
Check with your district coordinator or convener to see if there are
additional fees to pay for facilities/food/materials at district events.
24

FUNDING YOUR PROGRAM
FUNDRAISING: A well know and traditional approach, having your
delegates fundraise individually or toward the collective is a common
way to offset fees. Before you think “candybars”, consider something
that connects civics and fundraising such as putting up local political
campaign signs, interning for elected officials, or supporting the local
BAR Association with volunteer hours.
UNDERWRITING: Local businesses and community boosters are
often most interested in direct underwriting of a measurable activity
such as ‘travel costs for 10 high school students’ or ‘delegation district
competition fees’. They perceive an immediate and direct impact for
their dollars that is appealing. One tip is to utilize the budget
spreadsheet to quantify a cost area and then ask Y&G staff for help in
brainstorming possible local organizations that would be interested.
GRANTS: The Y and many other organizations offer block grants for
civic education or teen development programs. Y&G grant
opportunities will be made known to all programs through normal
channels, but be sure to look at local and regional foundations for
opportunities to receive one-time or on-going funding for your
program. One tip – have your delegates assist in the creation of the
grant application. This is a real-life skill and also further engages
them with the mission and goals of Y&G.
FINANCIAL AID: Financial aid is available through the Y&G program
and local Y’s. For more information see the financial aid form in your
packet or visit youthandgovernment.org
OTHER: In many of our school based delegations, the district or
school or school board has made a financial commitment to the
program and will cover a portion or all of the costs.
25

Listed below are local fundraising opportunities based in
Washington State:
Holiday Evergreen Sales: www.sherwoodforestfarms.com (Seattle)
www.alpinefarms.com (Port Orchard)
For more local fundraising opportunities go to:
www.fundraisingweb.org/usa/washington.htm
And for even more fund raising ideas and opportunities try these
great sites:
www.fasttrackfundraising.com
www.justfundraising.com
**If you have any questions about specific ideas listed here or would like
more fund raising resources please contact the State Office at (360) 357-
3475.
**If your fundraising event includes the involvement of local or statewide
elected officials, please contact the State Office to avoid confusion or
possible conflicts. Thank you.
26

DIVIDER

DIVIDER

SAMPLE MONTHLY PLANNER
September
Advisors recruit students, conduct auditions, and select team members
Formation & Group Building
o Topics to cover:
• U.S. Constitution
• Democracy-Why must democracy be learned by each
generation
October
Release and distribution of Mock Trial Kit & Case
Work out student practice schedule in addition to meeting times with
attorney coach
Advisors and attorney coaches begin to study the case and prepare for trials
o Topics to cover:
• The Common Good vs. Individual Interest
• The Responsibilities of Citizenship
• Courtroom procedure and legal terminology
• Servant Leadership
November
District Conveners set date and start planning for district competitions
Submit request for purchase order or check for district competition
Submit district scholarship application form(s) if needed
o Topics to cover:
• The Trial Process
• Steps in a Trial
• Introduction to the Case
• Fund Raising Project Planning (if needed)
December
Arrange for transportation to district competition
o Topics to Cover:
• Strategy and Case Analysis
• Witness Examinations and Closing Arguments
• Rules of Evidence
• Service Project
January
Begin collecting signed student consent forms and complete registration for
districts
Submit required district materials by deadline to State Office
Fine tune case and work on oratory and presentation skills
Plan and hold practice mock trials with neighboring schools
27

February
District events
Submit state scholarship application form(s) if needed
Submit required state materials by deadline to State Office
Arrange for transportation to state competition
Fund Raiser (if needed)
March
Guest speaker/Field trip to close year or prepare for state competition
Host a Community Night
28

TEACHING MOCK TRIALS
The following materials may provide some ideas that advisors can use in
teaching students and youth group members about short mock courtroom
trials. They may be adapted to best suit your local educational goals.
These materials were written for use with brief classroom mock trials involving all
students in the classroom, which is different than the mock trial described in the
latter pages of this kit. The case presented in this kit includes a longer, more
involved mock trial with up to three attorneys per side, four witnesses, and no jury.
However, these materials can be used with an entire class, from which the
competition team can then be formed. When the in-class activities are completed,
the competition team can practice outside of class. This mock trial program can
also be used with extra-curricular groups such as school debate teams or youth
groups including scout troops, YMCA Youth & Government groups, teen church
groups, homeschoolers etc. Students on each team must be from the same high
school or a pre-existing member of the same youth group.
Much of the material in these lesson plans was developed by what was formerly the
National Institute for Citizen Education in the Law.
EDUCATIONAL BENEFITS OF THE MOCK TRIAL PROGRAM
Participation in this educational opportunity demands quite a bit of time
from teachers and attorneys, but the benefits will make it worthwhile.
Some of the educational benefits for students are:
Knowledge of practical law and trial procedure and education about the legal
profession.
Increase in student motivation to excel and participate fully.
Development of research, organization, planning and preparation skills.
Development of oral advocacy skills.
Enhancement of communication skills -- speaking, listening, writing.
Enhancement of reasoning, critical thinking and analytical skills.
Development of self-confidence and self-esteem.
Knowledge of strategies for conflict resolution.
Experience in team effort.
Substantive knowledge about the issues presented in the case.
29

INTRODUCTION - TRIALS AND AMERICAN SOCIETY
Whether the issue is teaching evolution in school, the kidnapping of the baby
of a famous couple, or a Hollywood lovers' fatal quarrel, Americans have
long relished the spectacle of the courtroom trial.
In the past fifty years, crowds have strained against police barriers, hoping
to get into courtrooms where presidential counselors were being tried as
part of the Watergate conspiracy. They have packed the courtroom where a
school mistress was on trial for the murder of her lover, a famous physician.
They have sat watching while the psyches of a would-be presidential
assassin or the most private details of a famous athlete charged with murder
were exposed to the world. In some recent cases, courtrooms have been
replaced by highly public hearings by special counsels on the doings of a
President and his friends and the Department of Justice itself. The names of
the parties to cases like these move into American legal and popular history:
John Ehrlichman and Robert Haldeman, Michael Jackson, John Hinckley, O.J.
Simpson, Bill Clinton and Waco.
Then, too, the names of the most prominent role-players among the judges
and attorneys edge into daily conversation, at least for a time: John Sirica,
Barrington Parker, F. Lee Bailey, E. Bennett Williams. Scores of reporters,
and, in recent years, miles of videotape - even inside some courtrooms -
feed this public fascination. Perhaps the media’s role in heightening the
public’s contact with the trial process is most clearly underscored by the fact
that many of the nation’s most well known trial celebrities are Hollywood
creations or more recently, judges turned into public icons like Judge Judy!
Media hype aside, there are important reasons for the public attraction to
the trial process, and these are undoubtedly inherent in the nature of our
government and legal system. Perhaps the most basic of these reasons is
the public’s perception of the trial as one of society’s principal vehicles for
the achievement of justice for all citizens, a belief which is the cornerstone
of our American legal system. In these times, apparent widespread distrust
of the trial process surfaces whenever members of the public loudly protest
a verdict, as happened in the John Hinckley and O.J. Simpson cases. Yet, all
in all, Americans still cling to the belief that each citizen should have his or
her own “day in court.” Statistics on the rising number of case filings in civil
court underscore the exercise of this right of access to the courts.
30

Some of the public fascination with trials also flows from the nature of a trial
as great human drama. In the common view, few secrets can remain
cloaked in a trial, or few emotions remain unraveled under the intensity of
skillful examination of witnesses.
MOCK TRIAL – “THE ULTIMATE ROLE-PLAY”
Many teachers have discovered that American society's attraction to the trial
process can be used to an educational advantage. More and more courts
are implementing formal visitation programs for students. Bar associations,
individuals attorneys, and judges willingly lend their time to teachers and
students. Significantly, during the past twenty years the use of mock trials
has taken root in schools’ curriculum.
Two main reasons can be cited for this teaching phenomenon. One is the
great public popularity of trials, already mentioned. The second (more
significant educationally) is the recognition of the mock trial as a versatile,
multi-dimensional teaching device. Because of the number of students a
mock trial can involve in working toward the achievement of a wide variety
of skills objectives, the mock trial as a teaching device might well earn a
reputation for being the “ultimate role-play.”
31

PLANNING FOR A MOCK TRIAL
CONDUCTING MOCK TRIALS
A teacher new to the use of mock trials may hesitate to undertake a trial for
reasons of time and complexity. Trial simulation is actually a flexible device,
capable of being compacted into one or two classroom periods or expanded
into a full unit several weeks in length. On a competitive level, attorneys
statewide volunteer each year providing legal advice and training to mock
trial teams and their advisors.
Mock trials may be based on historical events, cases of contemporary
interest, school situations, or hypothetical fact patterns. The format of the
mock trial can be formal or informal, depending on the objectives of the
class and the skills and sophistication of the students. Most mock trials use
some general rules of evidence and procedure, an explanation of the basic
facts, and a brief statements for each witness.
There is a range of mock trial formats. Freewheeling activities can be done
where rules are created by the student participants (sometimes on the spot)
and no scripts are used. Or more serious attempts to simulate the trial
process can be based on simplified rules of evidence and procedure. They
also can be used to re-enact dramatic historical trials in which scripts are
relied upon heavily.
Usually, however, scripts are not used. Instead, the students are given a
statement of facts and legal issues. They may also be given a set of witness
statements, which are not scripts, but affidavits on which the witnesses and
attorneys build their witness examination questions and answers. Relevant
documentary evidence (e.g. a contract) might also be included in the packet
of trial materials. Analysis of the packet of materials and strategic design of
each step in the trial represent the most important parts of the student
learning experience in the mock trial. For this reason, teachers should avoid
scripting the material or doing most of the question and statement
preparation for the students.
Simplicity in approaching a mock trial is critical, particularly for a teacher
who has not used the device previously. The skills-building objectives
should always be in the forefront of the teacher’s activities in the mock trial.
While real-life simulation is certainly desirable to a point, teachers should be
aware that too much legalizing over the issues, too much jargon, too much
emphasis on the rules of evidence and procedure tend to diminish the
32

learning value of the mock trial by stifling student interest and making the
process too cumbersome for all involved.
TIME FACTORS
A successful mock trial can be a largely impromptu event taking place right
in the classroom and occupying one or two class periods at most. It can also
be an intricately planned event with class preparation taking a full week or
even more and trial presentation requiring two or more complete class
periods.
Both types of mock trials, and many variations on them, have demonstrated
their value as strategies for learning in the high school classroom. Each
teacher needs to exercise discretion in selecting which approach to use. A
key criterion is the amount of time available for this activity. Another is the
specific learning objectives the teacher is aiming for at that particular point.
The lesson plans provided in this manual are built around the time
sequences for each activity that have proven realistic on the basis of
experience with hundreds of mock trials of all kinds.
Throughout, the references to class periods assume 50-minute lengths of
time.
A natural prelude to or follow-up activity for the mock trial are trips to local
courts to observe real attorneys, witnesses and judges in action. In
addition, many attorneys, law students and judges are happy to volunteer to
come into classrooms to help students prepare, act as judges and/or debrief
the trial.
STUDENT INVOLVEMENT
A mock trial project should involve every student in the class for the entire
unit. Careful planning is essential to achieve this goal of total involvement.
Students not assigned specific, active roles quickly lose interest. However,
not every student in a large class can play an attorney or a witness.
Realistically, then, in classes larger than fifteen or twenty, how can every
student be actively involved To a large extent, the answer depends on the
individual teacher and the classroom situation.
Suggestions to aid teachers in arranging total involvement
include:
33

a. Number of Attorney and Witness Roles
In each mock trial case, each side uses two witness roles and six
possible attorney roles. In sum, there are sixteen principal roles.
b. Alternates
Alternate witnesses are essential to safeguard against last-minute
absences. Since attorneys can usually cover for each other,
teachers can also assign alternate attorneys. With alternates for
each attorney and witness role, as many as thirty-two students
could be assigned roles.
c. Teams *
Cooperative learning is one of the important objectives of the mock
trial process. The team and small group activities essential to mock
trial preparation provide the vehicles for cooperative learning.
d. Role Assignments
Note that specific role assignments for attorneys and witnesses are
not mentioned until Lesson Plan #4. Unless the mock trial is to be
a fairly short, informal classroom event, there is no need to rush
into role assignments. The longer every student remains a
candidate for any role, the higher the level of student interest in the
mock trial preparations will be.
*Lesson Plan #3 provides instructions for dividing the class into
teams. For the purposes of active involvement in trial preparation,
every student should be assigned to one team or the other, and
should then be expected to participate fully in the small group
discussions and team strategy sessions. The lesson plans call for
small groups at certain points and also indicate which principal roles
are involved at each stage. The principal role players and
alternates, as well as, other students to assist them, should all be
assigned to small groups and participate in them.
e. Juries
In large classes it may be preferable to include all unassigned
students on the jury. (Note, however, possible other roles, under f.)
Using a jury is a good way to keep all students actively involved
during the actual trial. However, during the trial preparation stage,
students who will be serving on the jury should be assigned to work
with the teams. Even though real life jury members start a trial
impartially with no prior knowledge of the case, the educational
34

value of having jury members assist with case preparation
outweighs the need to simulate reality.
Activities designed to demonstrate the importance of an impartial
jury are valuable. (One way is to conduct a role-play of a “voir dire”
exercise--this is when lawyers or the judge ask prospective jurors
questions to gauge their impartiality. A lawyer could help us with
this.) If the class strongly desires a truly impartial jury for their
trial, another class can be invited to sit as the jury.
f. Other Roles
The trial itself has room for roles other than attorneys and
witnesses. These roles include:
1. Judge or Judges `4. Clerk or Bailiff
2. Formal Observers 5. Members of the Jury
3. Court Artist 6. Reporters from the media
Again, the goal is to involve every student. All students in the class,
whatever their eventual role in the trial, should participate on trial
preparation teams.
PREPARATION OF MATERIALS FOR STUDENTS
The student materials in this manual include an Introduction to the Trial
Process, Steps in a Trial,
Simplified Rules of Evidence, and Case Materials. Before starting the mock
trial unit, teachers need to determine which materials to give the class and
when. The teacher may copy and distribute the entire packet at once or
give out only sections at a time. A few suggestions that can help with this
decision:
a) The Trial Process is a general introduction for students who have not
previously studied trials in detail, or for those needing refresher
reading. It is a good first handout.
b) Steps in a Trial is a guide designed to assist students with their
preparation for mock trial roles.
c) Simplified Rules of Evidence is recommended for distribution only
to classes in which the teacher plans to devote a substantial amount of
time to trial preparation. For the sake of time and simplicity, teachers
may prefer not to use these rules for short, informal mock trials.
35

d) Case Materials are separate packets with the facts and pieces of
evidence for the specific trial the class will conduct. All students
should receive a copy of this material.
LEGAL ASSISTANCE
The mock trials presented in the cases include hypothetical laws appropriate
for use in any classroom. However, teachers may prefer to use a law
actually on the books in the jurisdiction where the school is located.
To obtain information about an appropriate law that would work for a mock
trial, teachers should consult with a local attorney or attorneys. The Bar
Association in the area can often assist teachers in identifying attorneys who
could help out.
Attorneys and law students are also valuable resources to assist students in
the actual preparation for a mock trial. When using attorneys or law
students as class presenters, team advisers, or judges, the teacher must
take the time to brief them so that they understand the educational
objectives of the program and recognize that the class will necessarily be
using simplified procedures and rules of evidence.
36

JUDGING
Two important early decisions for the teacher are who will judge the trial and
whether to use a jury. These decisions are influenced by time and learning
objectives, as well as by class size. A few suggestions might help with this
decision:
a) If the judge is to be a student, he/she should be able to learn the trial
process well, have the capacity to be decisive, and be able to give
directions to other students.
b) The teacher may choose to serve as the judge in situations where
substantial control over the actual process is important. Such
situations may apply with the very first trial, where everyone is a
novice; where time is unusually tight; or where the teacher wants to
have a free hand in interrupting to explain or drill witnesses during the
trial.
c) An attorney, law student (preferably beyond first year), or local judge
may be invited to act as the judge. This arrangement is most
appropriate for the more formal trial where the class has spend much
time preparing. As with other situations using an outside resource
person, the teacher should make arrangements well in advance. A full
week is minimal. The resource person agreeing to take the judge’s
role will need to know the date, time, and place. Equally important,
the judge needs to gain a thorough familiarity with the educational
objectives of the class and with the simplified procedures that will be
used in the mock trial. It is also advisable to pass the actual trial facts
and statements onto the judge prior to the trial date.
d) With a large class, the teacher may wish to place the students who are
not participants in the trial on a “jury.” The jury then has the task of
deciding the outcome of the case. When the time comes for jury
deliberations, the teacher may find it advantageous not to have the
jury go out but have it deliberate fishbowl style right in the classroom.
This gives non-jurors the opportunity to observe the decision-making
process, but of course they may not participate in the juror’s
discussion.
37

CLASSROOM ARRANGEMENT
For the actual trial, the room should be arranged as follows:
If the trial will attract a sizable group of spectators, a teacher might wish to
hold the proceedings in a larger room or auditorium. Such larger rooms will
usually require microphones at the attorney’s lectern, judge’s bench, and the
witness box. All such details should be firm several days before the trial,
and audio equipment should be tested and adjusted before the trial.
SELECTING AND INSTRUCTING THE BAILIFF
Every trial should have a bailiff (often called a clerk) who takes care of
announcing the entrance of the judge, calling the case, keeping time,
marking evidence, and swearing in witnesses. The teacher should instruct
the student selected at least one day before the actual trial. A section
entitled “Clerk’s Directions” is included as part of Lesson Plan #7: The Mock
Trial. See Bailiff/Courtroom Host explanation in the Competition Procedures
section of this kit.
PREPARING THE OBSERVERS
Because there may be more students that can have attorneys and witness
roles, or that can assume such other roles as bailiff, the teacher may wish to
designate overseers. This is not just a “catchall” role. The observers will be
valuable in debriefing the trial. They will have the job of observing the trial
as it unfolds, of looking for good points and errors and deficiencies, and of
making notes that can be referred to afterwards when it comes time to
analyze the event.
Lesson Plan #6 reminds the teacher to hand out the Mock Trial Observation
Sheet to each observer before the trial begins.
38

MOCK TRIAL ADMINISTRATIVE CHECKLIST
These are tasks the teacher should check off as accomplished. Some are
noted as “optional” – all others are necessary for successful trials.
______ Trial Selected
______ Time-frame Determined (dates for each lesson and trial itself)
______ Lesson Plans Adapted
______ Materials Selected for Students
______ Materials Copied for Students
______ Student’s Preparation Begun
______ Court Field Trip Date Set (optional)
______ Attorneys (or Law Students) Identified to Help (optional)
______ Attorneys Invited (optional)
______ Attorneys Briefed (optional)
______ Judge Identified
______ Judge Invited (actual judge, attorney, teacher, or students)
______ Judge Briefed and Provided Materials
______ Room Selected
______ Microphones Ordered (for larger rooms only)
______ Invitations Sent (other classes, administrators, parents, etc.)
(optional)
______ Observation Sheets Copied and Handed Out (optional)
______ Jury Selected/Instructed (optional)
______ Clerk Selected/Instructed
______ Judge’s Robe obtained (an academic gown will suffice)
______ Gavel, etc. obtained (optional)
______ Students’ Preparation Completed
______ Trial Conducted
______ Trial Debriefed
39

LESSON PLAN 1
INTRODUCTION TO DISPUTE RESOLUTION AND THE TRIAL
PROCESS
(One to two fifty-minute periods; more, if trip to court is undertaken)
OBJECTIVES:
As a result of the activities in this lesson, the students will be able to:
Explain the purpose of the trial process.
Describe at least one alternative to the trial process.
List and explain the major steps in the trial.
Name the parties to a case in both a civil and a criminal trial.
Explain the roles of attorneys, judge and jury in the trial process.
ACTIVITIES:
1. Reading Assignment: Either for homework or in class, the students should
read “The Trial Process” section (immediately following these lesson plans) in
this manual.
2. Vocabulary Exercise: The teacher might ask students to list at least five
new words in “The Trial Process” section for vocabulary building.
Alternatively, the teacher might begin a class discussion by listing key words
and phrases on the board, e.g. “adversary system,” “prosecution,”
“defendant,” “evidence,” etc., and eliciting definitions from the class. (10
min.)
3. Small-Group Discussion Exercise: Divide the class into groups of 3-5.
Ask them to develop at least two examples of non-criminal disputes that
might wind up in a trial. Ask them to discuss alternative methods of dispute
resolution (such as those listed in “The Trial Process”) for each case, and to
identify when a trial might be the only solution. (20 min.)
4. Discussion Exercise and Homework Assignment: Ask students to bring
in an article from the local newspaper concerning an incident that might
result in a trial. In class, discuss why the disputes arose. Identify a possible
way to settle the cases out of court. Ask the students: If the parties go to
court, what would they hope to accomplish (20 min.)
40

5. Field Trip to Court: (A half-day or one full day)
a. Make arrangements through the clerk of the local court or an attorney
for a visit by the class. Different courts handle student trips differently,
but good communication with the staff at the local courthouse usually
will ensure a worthwhile visit. You will need to find out what phase of a
trial the students are likely to be observing, and whether it will be a civil
or a criminal proceeding. If your mock trial will be a civil case, you may
prefer to observe a civil trial.
b. If the clerk can give you specific information about the case or cases the
class will be observing, spend some time in class the day before
reviewing the characteristics of the civil or criminal process as
appropriate.
c. As a homework assignment immediately after the field trip, direct the
students to write several paragraphs answering these questions:
What kind of trial was observed, and what portion
Who were the most important people in the courtroom, and what
did they do
What facts did the class learn during their observation
What do you think happened after the class left
Did this process seem like a good way to deal with the particular
problem involved What alternatives would you recommend
(You may wish to design a form for students to fill in for this
purpose.)
d. Discuss the field trip, based on the homework responses, in large or
small groups during the next class.
6. Guest Speakers: Having an attorney or a judge visit in class is a good
alternative or in addition to a field trip to court. In arranging for such a
speaker, be sure that person is adequately briefed regarding (a) the grade
level, age and prior legal knowledge of the class; (b) your objectives for the
speaker’s visit; (c) particular subject areas the class desires to discuss; (d)
details of any activity you plan to conduct while the speaker is present. The
better you handle preparation with the guest speaker, the better that class
period will turn out. (One class period.)
7. Distribute Mock Trial Materials and Assign Reading: At this point, the
mock trial case and related materials can be distributed and assigned for
homework reading.
41

LESSON PLAN 2
STEPS IN A TRIAL
OBJECTIVES:
As a result of the activities in this lesson, the students will be able to:
List and explain the major steps in the trial.
ACTIVITIES:
a. Have students state the order of events in a trial and list them on
the blackboard or give large sheets of paper to small groups and ask
them to develop their own lists of trial procedure. After full class
discussion, discuss ways in which the class’s ideas about trial
procedure match or vary from the actual procedure. Which is better
Why (15 min.)
b. Homework assignment: Direct students to make personal charts of
the trial process. Ask students to clip articles about a trial currently in
the news and to identify what particular steps in a trial are referred to
in the articles.
c. Quiz.- See Review #1, duplicate and pass out the quiz. The
correct answers are:
1. C 6. I
2. N 7. B
3. J 8. A
4. M 9. D
5. K 10. F
Main Steps In A Trial:
1. Opening statement by prosecution.
2. Opening statement by defendant.
3. Direct examination of prosecution’s witnesses.
4. Cross-examination of prosecution’s witnesses.
5. Direct examination of defendant’s witnesses.
6. Cross-examination of defendant’s witnesses.
7. Closing statement (argument) by prosecution.
8. Closing statement (argument) by defendant.
42

LESSON PLAN 3
INTRODUCTION TO THE CASE
(One to Two Class Periods)
OBJECTIVES:
As a result of the activities in this lesson, the student will be able to:
Identify the type of case, court, and division of the court.
Identify the parties to the case.
Describe what each party to the case wants.
Describe the stipulated facts on a timeline.
Write one paragraph summarizing the facts of the case and the legal issues
involved.
ACTIVITIES:
1. Reading Assignment: The case packets should be distributed to be read for
homework in advance of the first class. On the first day of class discussion of
the case, the teacher should ask a student to read aloud the introduction to
the case and the Statement of Facts. (15 min.)
2. Factual Summary Timeline: Draw a line across the board as shown below.
As in the example below, put important dates from the case on the timeline.
Ask the class a series of questions, e.g.
What happened on each date given
What happened during the intervening periods
What information is missing
How does the missing information affect the case
Where can that information be found
The timeline may be used as a means of review and as a quiz. On each day
of trial preparation, until the students know the facts thoroughly, a student
could be called to the board to fill in the events on the timeline. A timeline
could also be distributed as a quiz, with instructions to the students to fill it
in as indicated. (30 min.)
3. Initial Case Analysis: With the whole class, elicit facts favorable to the
prosecution and facts favorable to the defendant, and list them on the board
in columns. (30 min.)
4. Homework: Ask students to write a paragraph summarizing the facts and
legal issues. Alternatively, ask students to make two lists, one indicating
facts favorable to the prosecution, and other facts for the defense.
43

LESSON PLAN 4
STRATEGY AND CASE ANALYSIS: OPENING STATEMENTS
(One Class Period)
OBJECTIVES:
As a result of the activities in this lesson plan, the students will be able to:
Describe the main arguments in favor of each side of the case.
Identify the facts that support or weaken each major argument.
Summarize the evidence that will be presented on each side of the case.
Write an opening statement for one side of the case.
ACTIVITIES:
1. Assignment to Sides of the Case: Once the preliminary factual
analysis has been com-pleted, the time is appropriate to assign
students to prosecution or defense teams. The specific role
assignments (e.g. attorney, witness) need not be given yet. However,
having a par-ticular point of view will help the students begin to
engage in strategic analysis of the case.
Once students are divided into prosecution and defense teams, the
teacher might also find it advantageous to designate team captains.
(Appoint or elect, perhaps two for each side, as appropriate for the
class.) These students can then be made responsible for leading the
small group discussions and later on, directing the team’s specific case
preparation. (This is optional; some teachers prefer not to have
student leaders.) (10 min.)
2. Strategic Analysis by Teams: Split the class into the two main
groups (prosecution and defendant). Each team is directed to discuss
the following points: (15 min.)
What does our side want to achieve in this case
How will we accomplish this goal
What evidence do we have to help us …Hurts us
What can we claim we will prove in the opening statement
44

3. Team Brainstorming for Opening Statement: After about fifteen
minutes of the discussion described in #2, the students can set about
the task of brainstorming the general framework for their opening
statements. For this exercise, it might be useful to have the students
gather their teams at the blackboard or to equip them with butcher
paper. (25 min.) Discussion should focus on:
What are the most important facts we want to tell the judge in our
opening statement
What evidence will we present that we should stress
What kind of ruling do we want from the judge
How will we ask for that
4. Homework Assignment: Once the students have had sufficient time
to strategize and brainstorm, they will be ready to write individual
opening statements for homework. On the day the assignment is due,
each student should get a chance to read the prepared statement to
the team, and the team should decide which statement is best, or
which portions of various statements might be used in combination.
45

LESSON PLAN 5
PREPARATION OF PROSECUTION AND DEFENSE CASES:
WITNESS EXAMINATIONS AND CLOSING ARGUMENTS
(Two to Three Class Periods)
OBJECTIVES:
As a result of the activities described in this lesson plan, the students will be
able to:
As examining attorneys, write a logical sequence of direct or crossexamination
questions (depending upon student assignments) designed
to achieve the purpose of the witness examination.
As attorneys assigned to the closing arguments, outline the high points of
the ideal closing argument for their respective sides.
As witnesses, recall from memory the important points made in the
witness affidavit, and respond correctly to possible direct and crossexamination
questions.
ACTIVITIES:
1. Role Assignments: Prior to the lesson, the teacher should assign
students to specific roles. These are the available roles for the trials in
this packet:
Witnesses - Each side has two witnesses, alternates should be
appointed for each role.
Attorneys - Each side may use up to six attorneys to take each
available speaking part; however, teachers may find it advantageous
to use only three of four attorneys for each side, assigning more than
one speaking part to each. Note that during the trial each side gets to
carry out direct examination of its own witnesses and to cross-examine
the opposing witnesses.
2. Reading Assignment: Once the roles are assigned, students should
be instructed to read the case materials again and study the particular
parts of the case materials applicable to their specific roles.
ROLE ASSIGNMENT CHECKLIST
Witnesses:
Witness #1 ________________ ________________
(Alternate) ________________ ________________
Witness #2 ________________ ________________
(Alternate) ________________ ________________
46

Attorneys:
Opening Statement ____________ ____________
Direct Examination - Witness #1 ____________ ____________
Direct Examination - Witness #2 ____________ ____________
Cross-examination - Opposing Witness #1 ____________ ____________
Cross-examination - Opposing Witness #2 ____________ ____________
3. Small Group Preparation #1: (One Class Period) Separate the class
into prosecution and defense teams. Divide each team into three working
groups as follows
PROSECUTION TEAM
DEFENSE TEAM
P1 Witnesses and Alternates D1 Witnesses and Alternates
P2 Examining Attorneys D2 Examining Attorneys
P3 Attorneys assigned to make D3 Attorneys assigned to make
opening and closing statements
opening and closing statements
INSTRUCTIONS FOR THE GROUPS
(First Drill) Witness Groups (P1 and D1):
The purpose of this session is to drill the witness and alternates on their
knowledge of the facts and their witness statements. Through taking turns
drilling each other, students will begin to acquire information about all other
witness statements.
Witness #1 is the first to be drilled. Starting with “State your name, please”
and proceeding through the witness statement, witness #1 is asked every
conceivable question by the other students in the group. Witness #2 and
then the alternates follow suit.
The questioning drill continues around the circle until each student can
answer the questions without looking at his or her statement.
Once the initial knowledge is acquired, the Witness Group should focus on
style and characterization. Going around the circle again, the students
should help each other try to develop a specific type of character and
responses to fit their roles.
47

EXAMINING ATTORNEY GROUPS
(P2 and D2)
During this session, the attorneys conducting each direct examination begin
designing the questioning strategy for each witness in consultation with the
other attorneys in the group. The group should start with Witness #1, and,
as a group, outline the basic series of direct exam questions needed for that
witness. They then do the same for Witness #2. Attorneys should write out
the examination questions for homework.
ATTORNEY GROUP FOR STATEMENTS
(P3 and D3)
The purpose of this group is to brainstorm the principal points to be included
in opening statements and closing arguments. After the outlines are
planned together, the students then work independently to write the
statements. (They can also be drafted for homework.) Once the statements
are written, the students reconvene to hear and critique each other’s
statements.
4. Small Group Preparation #2: (One Class Period) This phase of class
preparation for the mock trial helps students to rehearse and refine their
case presentation. Reorganize the team groups as follows:
PROSECUTION TEAM
DEFENSE TEAM
P1 Opening and Closing Attorneys D1 Opening and Closing Attorneys
P2 Witness & Direct Exam Attorneys D2 Witness & Direct Exam Attorneys
P3 Cross-examination Attorneys D3 Cross-examination Attorneys
48

INSTRUCTIONS FOR THE GROUPS
(Second Drill)
OPENING AND CLOSING ATTORNEYS (P1 and D1)
Each attorney delivers the prepared statement. The others in the group
critique.
WITNESSES AND DIRECT EXAMINATION ATTORNEYS (P2 and D2)
Using the direct examination questions developed earlier, the attorneys
rehearse the examination
with the witnesses and make changes as necessary.
CROSS-EXAMINATION ATTORNEYS (P3 and D3)
The attorneys responsible for cross-examination for each side can assist
each other in trying to project what testimony might be given on direct
exam, thus showing what material might be appropriate for crossexamination.
Attorneys can plot out a series of possible cross-examination
questions and ask each other the questions to see how they will work.
(These students do need to remember that they will have to alter their
prepared material, to some extent, based on what happens in the direct
examination.)
49

LESSON PLAN 6
THE RULES OF EVIDENCE AND PROCEDURE
(Two to Three Class Periods)
Depending upon the complexity of the trial and the amount of time
available, teachers may choose to reduce the scope of this lesson plan. So
that students will understand the relationship between these rules and the
evidence they plan to present, teachers should use this lesson plan only
after teams are well involved with the case preparation.
OBJECTIVES:
As a result of the activities described in this lesson plan, the students will be
able to:
Explain the purpose of the rules of evidence.
Recognize leading questions, hearsay, irrelevant testimony, and opinions.
Make proper objections to violations of the rule of evidence.
Know how to respond to an objection.
Correctly introduce a piece of evidence.
Explain the concept of “impeachment.”
Give an example of impeachment.
ACTIVITIES:
1. Reading Assignment: Teacher may choose to assign students to
read the rules of evidence for homework, or have them read aloud in
class. (15 min.)
2. General Discussion: What is the purpose of the rules of evidence
What might happen without them What situations have students
encountered in their lives that had specified rules of procedure What
would have happened without these rules Are there situations from
their everyday lives where these rules come up (e.g. would a parent
punish a child who said, “I think my sister did it” (20 min.)
3. Discussion of Examples: Taking each rule of evidence, teacher
repeats what the rule is. Teacher asks for an example of a rule
violation, other than one given in the text. What harm would come if
the particular rule did not exist Is this a useful rule Are the rules
given sufficient to make the trial fair What rules would the class add
(30 min.)
4. Team Drill: Return the class to prosecution and defense teams. Ask
one attorney to start direct questioning of a witness in the case you
are preparing. All others in the group listen for violations of rules of
evidence, and make objections as appropriate. (20 min.)
50

5. Individual Drill: On the board, write steps for introduction of physical
evidence. Drill each attorney individually. (20 min.)
6. Discussion of Impeachment: Ask the class for their understanding
of the concept of impeachment. Explain how the concept is applied in
a trial to shake the credibility of a witness. (e.g., an attorney on crossexamination
might show a witness a prior statement which contradicts
testimony just made on direct examination.) For homework, ask each
attorney/witness team to develop one example of possible
impeachment for that witness. Demonstrate the examples in the next
class. (20 min.)
7. Review #2(a): Evidence Exercise:
Hand hypothetical Review Exercise 2(a) (look ahead five pages) to students
and discuss. (15 min.) Answers are as follows:
a) This is allowed as a statement by a party (the defendant here) as an
exception to the general rule against hearsay. The defendant is present
and can of course deny having made the statement.
b) This is a leading question as it has the answer the attorney wants in the
question and cannot be asked on direct examination. (It could be asked
on cross-examination.)
c) Yes, this is not leading.
d) No, this is not relevant to the contract issue.
e) Yes, this may be relevant to issues in a divorce case.
f) Yes, if the witness could not remember he may be shown a written
statement to refresh his recollection. The attorney does not have to
introduce the statement into evidence.
g) Yes, this is proper, to impeach the credibility of a witness.
h) No, on cross-examination an attorney may only bring up issues raised on
direct examination, this is called a question outside the scope of the
direct examination.
i) Yes, if Herb is first certified as an expert witness through being
questioned about his prior training and experience.
51

j) No, not as an expert, but he can testify to the fact that the victim
appeared to be in pain or to other facts from his direct observation.
k) No, one can testify only to things one knows from direct knowledge.
8. Review #2(b): Evidence Drill.
This review exercise (five pages from this one) will help the students
recognize improper questioning in a trial. They will also understand
better the rationale for evidentiary rules and will get valuable practice
in conducing proper introductions of evidence. Attorneys could be
asked to come in to help with this exercise.
To prepare for this exercise, the teacher will need to do the following:
1. Read over the Evidence Cases. Teacher will need to decide how to
assign witness and attorney roles for each case. (There will be
eleven witnesses and eleven attorneys. If the class is smaller
than 22 students, some can get more than one assignment.)
2. Duplicate the Evidence Case pages at least twice (more, if
needed.)
3. Cut the cases apart. For the eleven students who will act as
witnesses, black out or cut off the lower part of the slip that
describes the lawyer’s job. (Otherwise, the witness will have
advance knowledge of what the lawyer is going to try.) Only
each lawyer gets the entire slip.
4. Hand out the slips as appropriate. Tell students not to disclose
their roles to the other students.
5. Teacher calls out the case number at random and reads the facts
portion to the entire class. Student who has that case performs
the lawyer’s role as instructed on the slip. The witness responds
appropriately. (Teacher should see that this exchange is kept
brief so as not to have too much material for the class to react
to.)
52

6. Teacher instructs the other students to observe each lawyer’s
action, and to make appropriate objections, if warranted. The
student who volunteers an objection must explain the objection.
For example, he or she should not merely call out “hearsay” but
should indicate “hearsay, because…” Also, when making
objections, students should practice using the proper form of
address. For example, “Your Honor, I object to (type of
objection) (because)” or “Your Honor, objection! The attorney is
(type of objection) (reason). “
7. If the questioning can be done differently to avoid the evidence
problem, the student playing the lawyer should rephrase the
question properly.
8. Repeat as necessary with the remaining cases.
9. Debrief each case, encouraging discussion of the rationale for
each kind of objection.
(Amount of time for drill above will vary.)
53

LESSON PLAN 7
THE MOCK TRIAL
(One to Two Class Periods)
OBJECTIVES:
As a result of the activities described in this plan, the students will be able
to:
Conduct a mock trial, correctly following the sequence of steps in a trial
and employing good technique for each role.
Make complex prepared oral presentations as attorneys and witnesses.
Demonstrate skill in listening, rapid critical analysis, and extemporaneous
speech.
Demonstrate knowledge of the rules of evidence and procedure.
Demonstrate knowledge of the law applicable to the case.
ACTIVITIES:
Conduct the Mock Trial. Prior to the date of the Mock Trial, the teacher
should be sure to have accomplished most of the tasks described in the
“Mock Trial Administrative Checklist.” Be sure each formal observer has a
copy of the Mock Trial Observation sheet at the start of the trial.
Follow the steps in a trial listed in the Students' Guide: Section B.
BAILIFF’S DIRECTIONS:
A student should be selected to serve as the court bailiff (referred to as the
“clerk” in many courts). This student should announce the opening of the
court by stating “all rise” as the judge enters and then stating “please be
seated” when the judge is seated. The bailiff then calls the name of the
case, e.g. “Your honor, our case for today is St. Clair vs. St. Clair.”
As witnesses are called the bailiff requests them to raise their right hands
and asks, “Do you swear or affirm that the testimony you are about to give
is the truth and nothing but the truth” Witness responds: “I do.” “Please
be seated and state your name for the court, and spell your last name.”
When attorneys have documents (such as an affidavit or another piece of
evidence), they should first hand them to the bailiff who marks it
“Prosecution’s Exhibit A, B, C. etc.” and Defendant’s Exhibit A, B, C etc.”
depending on which attorney is presenting it.
Further details about the bailiffs handling of items for identification can be
found under “Special Procedures” in the “Simplified Rules of Evidence”
section of the Students' Guide.
54

LESSON PLAN 8
DEBRIEFING AFTER THE MOCK TRIAL
(One Class Period or Less)
OBJECTIVES:
As a result of the activities described in the lesson plan, the students will be
able to:
Analyze the strong and weak points of each case presented in the trial.
Identify the person or persons whose performance in the trial made a
difference in the case.
Critique the trial from the standpoint of its success in achieving justice.
ACTIVITIES:
1. Observers: Any student who was designated as an observer for the
trial should have completed an Observation Sheet. After the trial is
completed, the observers make reports of their observations to the
class.
2. Teams: After hearing the reports of the observers, or in lieu of
observer reports, prosecution and defense teams should re-form as
small groups to discuss these questions:
What were the strong points in our presentation
What were our weak points How could they have been avoided
Were our attorneys prepared correctly
Did we make good objections
Was the trial conducted in a fair manner
Did we achieve our goal Why or why not
Even if we achieved our goal, could we have accomplished it in a
different manner
3. Large-Group Discussion: After the small groups have completed this
discussion, summaries of their responses to these questions should be
given to the whole class, with any appropriate additional discussion led
by the teacher or an attorney, if one was present at the trial. An
attorney (or judge) can be especially effective in debriefing a mock
trial by comparing what went on to what usually occurs in real courts.
4. Written Assignment: In class or as homework, have students write a
brief essay telling whether or not the trial was a sensible way to
achieve justice in this particular case, and whether justice was in fact,
achieved.
55

REVIEW #1
(from Lessons 1 and 2)
TRIAL PROCESS AND STEPS IN A TRIAL
From Column B place in the blank the letter for the word or phrase that most
closely matches the
definition in Column A.
COLUMN A
COLUMN B
___ 1. Trier of fact a. prosecutor
___ 2. The burden of proof in a civil case b. closing argument
___ 3. Process of sharing information before trial c. jury
___ 4. Adversary process d. evidence
___ 5. Written statement made by witness e. direct
examination f. negotiation
___ 6. One type of defense in a criminal case g. prosecution
___ 7. Final step in the trial before the judge’s decision h. civil cases
___ 8. Person who represents the government i. alibi
in criminal cases j. discovery
___ 9. What each party needs to present to k. affidavit
prove their facts l. defendant
___ 10. One way to settle a dispute without going m. trial
to trial n. preponderance of
evidence
LIST IN ORDER THE MAIN STEPS IN A TRIAL:
1. _____________________________ 5. _______________________
2. _____________________________ 6. _______________________
3. _____________________________ 7. _______________________
4. _____________________________ 8. _______________________
56

MOCK TRIAL OBSERVATION SHEET
Please note comments about each presentation; include things that could
have been done differently or improved upon.
Observer’s Name:
PROSECUTION TEAM
Pre-Trial Motion
Date:
DEFENSE TEAM
Pre-Trial Motion
Opening Statements
Opening Statements
Direct Exam of First Prosecution Witness
Direct Exam of First Defense Witness
Direct Exam of Second Prosecution Witness
Direct Exam of Second Defense Witness
Cross Exam of First Defense Witness
Cross Exam of First Prosecution Witness
Cross Exam of Second Defense Witness
Cross Exam of Second Prosecution Witness
Objections
Objections
Procedures for Using Documents
Procedures for Using Documents
Closing Arguments
Closing Arguments
57

REVIEW #2(A)
RULES OF EVIDENCE – HYPOTHETICAL SITUATIONS
a. Doug told me he killed his brother and Doug is on trial for the murder.
Should I be able to testify to what he told me
b. During direct examination, the attorney wants to show that the witness,
David, was at school on November 30. Can he ask, “You were at school on
November 30, isn't that correct
c. Same situation as in b. Can the attorney ask David, “Where were you on
November 30”
d. Harry’s being sued in a civil trial for breach of contract. Can the prosecution
introduce evidence that Harry has been unfaithful to his wife
e. Can Harry’s unfaithfulness be introduced in a contested divorce case
f
John made a sworn statement two days after the automobile accident that he
had witnessed. When the case finally comes to trial and he is called as a
witness, John cannot remember what happened. Can his attorney show John
the statement that may help him remember Must the attorney introduce
the statement into evidence
g. Same situation as in f, only John does remember and testifies on direct
examination. However, his testimony contradicts his earlier sworn
statement. On cross-examination, can the other attorney bring up the
inconsistencies
h. Mary is in a car accident and she sues the other driver. On her direct
examination, damage to the car is never mentioned. Can the defense, on
cross-examination, ask about the repair costs of the car
i. Herb is a doctor. The attorney has Herb testify to this when Herb is on the
stand. Can Herb testify that in his expert opinion, the victim was suffering
from a fracture of the right leg
j. Can Joe, a plumber who worked with the victim, testify that the victim was
suffering from a fracture of the right leg
k. Kevin has never seen Amy with her baby. Can Kevin testify that Amy is a
terrible mother
58

REVIEW #2(B)
THE EVIDENCE CASES
1. The case: A delinquency proceeding in juvenile court resulting from
serious assault on a student on a school playground.
The witness on the stand: The mother of the victim.
Your job as an ineffective lawyer: Ask the witness a HEARSAY
question.
2. The case: A dispute over the amount of money owed under a written contract.
The witness on the stand: One of the parties to the contract.
Your job as an effective lawyer: You want to have the written
contract introduced into evidence as an EXHIBIT. Ask the witness
questions to identify the contract and move the exhibit into evidence.
3. The case: A lawsuit brought by a women who fell on spilled pickle
juice at 9:3 0 p.m. in a grocery store.
The witness on the stand: The prosecution (the woman who fell).
Your job as an ineffective lawyer: Ask the witness an IRRELEVANT
question
4. The case: A medical malpractice suit. A doctor prescribed medicine
for a pregnant woman and the baby was born retarded.
The witness on the stand: The father of the child.
Your job as an ineffective lawyer. Ask the witness an
objectionable OPINION question.
5. The case: A contested marital dissolution (divorce) in which the wife
is accused of being a chronic alcoholic.
The witness on the stand: The wife.
Your job as an ineffective lawyer: BADGER the witness with
questions.
6. The case. A dispute over the custody of two children.
The witness on the stand: The mother of the children. (She is being
questioned by her lawyer.)
Your job as an ineffective lawyer. Ask your client on the stand a
LEADING question.
More…
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7. The case: A department store sues a customer for failing to pay the
bill.
The witness on the stand: The customer.
Your job as an ineffective lawyer: Ask the witness an objectionable
question about his CHARACTER.
8. The case: Criminal trial for purse snatching.
The witness on the stand: An eyewitness testifying for the defense;
she just testified that the defendant looks like the person who
committed the crime.
Your job as an effective lawyer: IMPEACH (destroy the credibility
of) your witness.
9. The case: A criminal trial for burglary, the defendant claims he was in
Florida on the day of the crime.
The witness on the stand: The defendant.
Your job as an ineffective lawyer: Ask the witness an objectionable
CHARACTER question.
10. The case: A suit for emotional distress suffered by a man who found a
dead mouse in his soda.
The witness on the stand: The man who found the mouse.
Your job as an ineffective lawyer: Ask the witness BADGERING
questions.
11. The case: A dispute between a customer and a TV seller resulting
from the failure of the seller to repair the set.
The witness on the stand: The consumer.
Your job as an ineffective lawyer: Ask the witness a HEARSAY
question.
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THE TRIAL PROCESS
THE PURPOSE
“Equal Justice Under Law” are the words carved deep into the stone above
the entrance to the Supreme Court of the United States. This statement
reflects the primary purpose of law in the United States: to ensure that
every person in this country has the freedom and security to enjoy the
benefits of life in a democratic society.
According to the democratic principles on which American society is built,
every person should have a free and equal opportunity to pursue individual
goals and desires. However, so that one individual’s pursuit of happiness
does not infringe upon another’s, the citizens of this country, through the
electoral and legislative processes, agree upon certain guidelines for their
behavior. These guidelines comprise our system of law.
However, at times individuals come into conflict with one another, in spite of
the system of laws. The reasons for conflict are varied. Laws do not cover
every possible situation. Often individuals involved do not know or
understand the law. In certain cases an individual deliberately chooses to
break the law.
Whenever a dispute arises between individuals or between an individual and
the government, or whenever an individual offends the general will of the
people by breaking the law, a solution must be found that is in harmony with
the principles of our society.
Several solutions might be considered:
1) a clarification of the rights of the parties;
2) a determination of right and wrong, or guilt and innocence;
3) a direction to one individual to take certain actions to make up for
harming another’s rights; or
4) even a fine and/or a sentence as punishment for breaking the law.
A trial is a widely recognized means for settling such disputes. However,
going to court usually should be the last resort in seeking a solution. People
should try to work out their problems first in one-to-one communication or
with a third person.
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Three common ways of settling disputes without going to court are:
(1) negotiation, in which the parties talk face-to-face;
(2) mediation, in which the parties talk through a third person called a
“mediator” who helps them find a common ground on which they can
agree to a solution; and
(3) arbitration, a process less formal than a trial, in which a third party
hears the complaints and makes a decision that the parties have agreed
in advance to abide by.
However, when these methods fail, parties to the dispute sometimes go to a
trial to find a solution. A trial is an “adversary process.” This means that two
or more persons who are in conflict present their arguments and their
evidence before a third party not involved in the dispute who then renders a
decision. The “impartial” third party that renders the decision can be a
judge or a jury. The judge or jury functions as the “Trier of fact.”
THE PARTIES
A trial revolves around an argument involving two or more people. The
people who bring their
argument to the trial are called the “parties” to the case.
A civil trial involves one person complaining about something another person
did or failed to do. The person who does the complaining is called the
“prosecution,” and the person who is the object of the complaint is the
“defendant.”
In a criminal trial, a person is accused of a particular act that the law calls a
crime, such as murder, robbery, or fraud. The person who does the
accusing is the “prosecutor.” The prosecutor speaks on behalf of the
government, which in turn represents the people of the state or nation. The
person who is accused of the crime is the “defendant.”
Except in a few special circumstances (most notably small claims court cases
in which lawyers frequently are not involved), both parties will hire and
instruct lawyers to prepare their respective cases and to make their
arguments in court.
THE FACTS OF THE CASE
Long before a trial actually takes place, some argument or incident occurs.
Perhaps there is a traffic accident; a husband and wife decide they can no
longer live together; someone is robbed at gunpoint. The argument or
incident involves many facts, which together make up the “case” Persons on
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opposite sides of a case often will view the facts quite differently. This
disagreement over the facts of an incident forms the basis for a trial.
In a trial, the parties present their differing versions of the facts before an
impartial “trier of fact,”
a judge or a jury. The job of the trier of fact is to decide which facts are
correct.
THE EVIDENCE
While the description of the facts of the argument or incident as presented
by each party is important, the trier of fact usually needs a lot more
information in order to make a decision. The version of the facts given by
the parties may be incomplete, or affected by their emotional state at the
time of the incident. Or, in a few cases, parties might even give false
versions of the facts.
For all of these reasons, the trier of fact needs more information than just
the stories of each party. In a trial, the attorneys for each side present all of
the factual information they can gather to support their side of the case.
This information is called “evidence.”
Evidence may take several forms including:
(1) Testimony: a person, called a “witness,” tells the court what he or she
saw, heard, did, or experienced in relation to the incident in question.
(2) Documents: letters, notes, deeds, bills, receipts, etc., that provide
information about the case.
(3) Physical Evidence: articles such as weapons, drugs, clothing that can
provide clues to the facts.
(4) Expert Testimony: a professional person, someone not involved in the
incident, who can give medical, scientific, or similar expert instruction to
help the trier of fact decide the importance of the evidence presented.
THE BURDEN OF PROOF
To guarantee that the trial process is fair to everyone involved, certain legal
principles govern the way parties present their evidence, and the way the
judge or jury considers the evidence and makes a decision. One of the most
important rules concerns which party must prove his or her version of the
facts, and how convincing he or she must be. This rule is called the “burden
of proof.”
In a civil case, the person who brings the case to court and does the
complaining (the prosecution) has the burden of proof. Prosecutions must
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convince the judge or jury that these facts are correct “by a preponderance
of the evidence,” meaning that their evidence is slightly more convincing
than the defendants' evidence. Some refer to this as meaning that 51
percent or more of the evidence supports prosecutions' side.
In a criminal case, the burden of proof is considered to be much stricter,
because the defendant may go to prison if the prosecutor proves the state’s
case. Therefore, the prosecutor must convince the judge or jury “beyond a
reasonable doubt” that the accused committed the crime. Some state that
“beyond a reasonable doubt” means that the trier of fact (judge or jury)
must be at least 95 percent sure that the prosecutor is correct.
THE DEFENSE
As described above, the complaining or accusing parties usually have the
burden of proving their particular version of the facts. The job of the
defense team is to present evidence which prevents the prosecution or
prosecutor from meeting the burden of proof. Defense evidence should
explain, disprove, or discredit the evidence presented by the other party.
For example, in a traffic accident case, suppose the prosecution presents a
witness who testifies that the defendant was speeding just prior to hitting
the prosecution’s car in an intersection. The defense could then present a
witness who tells the court that the prosecution, who was hit while making a
left turn, failed to signal before making the turn. The defense could also try
to show that the defendant was not speeding at all. This defense testimony
weakens the prosecution’s case by presenting an alternative explanation for
the accident.
In criminal cases, defendants try to discredit the evidence presented by the
prosecutor in a variety of ways:
1. presenting evidence to show that the defendant was not present at the
scene of the crime (called an “alibi”);
2. showing that the defendant was acting to protect him/herself (selfdefense);
and
3. presenting medical evidence showing that the defendant was mentally
deranged at the time of the crime (insanity defense).
PREPARATION FOR TRIAL
Attorneys are responsible for collecting all of the evidence that supports the
side of the case they are representing and for deciding how to present that
evidence at the trial. It is the attorney’s job, therefore to work out a
strategy for the trial.
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In general, there should not be any surprises at the trial (contrary to popular
belief) if the attorneys are well prepared. This lack of surprises is also due
to the fact that the attorneys for the opposing sides must let each other
know what evidence they have collected. This advance sharing of
information is called “discovery.” Discovery enables both sides to prepare
their cases as well as possible, to ensure that the trial is fair.
Before the trial, witnesses might make “affidavits,” which are written
statements of the facts, made voluntarily and sworn to, usually in the
presence of a notary or other person authorized to administer oaths.
Witnesses might also be required to give a “deposition,” which is testimony
given out of court. At a deposition, attorneys for both sides are present to
question the witness,
while a stenographer records the testimony for later use in court.
During this period before the trial, attorneys must also spend time preparing
for what they will actually say and do at each step in the trial. These steps
and suggestions for attorney preparation are contained in the next section.
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STEPS IN A TRIAL
Note to Students: For a civil case, substitute the word “plaintiff” for the word
“prosecution”.
A number of events occur during a trial, and most must happen according to
a particular sequence.
(The sequence may vary slightly based on state or local rules or practice.)
1. The following is the basic sequence in the trial process:
2. Judge enters and takes the Bench.
3. Bailiff calls the case.
4. Prosecution (Prosecutor in criminal case) makes an opening statement.
5. Defense makes an opening statement.
6. Prosecution presents case:
7. Prosecution calls first witness and conducts direct examination.
8. Defense cross-examines the witness.
9. Prosecution conducts redirect examination, if desired.
10. Steps a, b, and c completed for each of the prosecutions other
witnesses.
11. Prosecution rests case.
12. Defense presents case in same manner as Prosecution in #5 above,
with Prosecution cross-examining each witness.
13. Defense rests.
14. Prosecution makes closing argument.
15. Defense makes closing argument.
16. Prosecution offers any rebuttal argument.
17. Jury instructions (if jury trial).
18. Jury and judge deliberations.
19. Verdict/decision/judgment.
20. Order (civil trial); Sentence (if found guilty in a criminal trial).
The main steps in this trial sequence, before the judge or jury start
deliberating, can be
summarized as: (Note how the sides take turns.)
1. opening statement by prosecution;
2. opening statement by defense;
3. direct examination of prosecution’s witnesses,
4. cross-examination of prosecution’s witnesses;
5. direct examination of defense witnesses;
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6. cross-examination of defense witnesses;
7. closing statement (argument) by prosecution; and
8. closing statement by defense.
In the following sections on the next four pages, the four most critical stages
of the trial are highlighted.
THE OPENING STATEMENT
OBJECTIVE: To acquaint the judge with the case and outline what you are
going to prove through the witness’ testimony and the admission of
evidence.
DESCRIPTION:
The opening statement is the introduction to the case. This first impression
is critical to the trial since it’s the first time the attorneys for each side get to
tell the judge and jury about what happened to their clients. It “paints a
picture” of the case. Your direct and cross-examinations work to reveal the
picture’s details in the best possible light.
In the opening statement the attorney should:
1) Identify themselves, co-counsel and their client,
2) Summarize the case in less than 30 words using key facts according to
your party’s case,
3) Summarize the evidence that will be presented at the trial,
4) Identify who has the burden of proof (the amount of evidence needed to
prove a fact).
5) Tell the court what decision you want them to come to at the end of the
trial.
STYLE POINTS:
1. Prosecution’s Attorney: Since this attorney speaks first, it is very
important for the prosecution’s opening statement to include a good
summary of the facts, presented in a light most favorable to the
prosecution. If the opening statement presents a very convincing picture
of the prosecution’s case, the defense team will have a much harder time
changing the minds of the judge and jury.
2. Defense Attorney: The defense team has the task of showing that the
prosecution’s version of the facts is not correct. The defense attorney
prepares by predicting how much detail and what kind of emphasis the
prosecution’s attorney will make in his/her opening statement. The
defense attorney should be ready to make adjustments in his or her
prepared statement while the prosecution’s attorney speaks. The defense
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attorney should highlight the facts that are in dispute and emphasize the
kinds of evidence the defense will present to show that the prosecution is
wrong.
3. Hot Tips:
Know your case, inside and out. You will then appear confident in your
case.
Attorneys should make eye-to-eye contact with raters while speaking.
Do not read your statement. The use of notes is discouraged and your
score may reflect it. If necessary, however, do not read all the way
through and look up as often as possible at the judge.
Use the future tense in describing what you will do, for instance ‘The facts
will show…’.
Don’t emphasize evidence that might not get admitted. Never promise to
prove something you can’t.
Call your client by name, but refer to your opponent as plaintiff or
defendant.
Don’t be wordy – use concise and specific language to cast your case in
the most positive light.
Use an analogy, a phrase or word, or create some memorable image that
you refer to in your closing.
THE DIRECT EXAMINATION
OBJECTIVE: To obtain information from favorable witnesses to prove the
facts of your case.
DESCRIPTION:
After the opening statements, the process of witness examination begins – a
chance for witnesses to tell their story. First, the prosecution’s team
presents its witnesses, then the defense team. Each time a witness is called
to the stand, the attorney who called the witness asks a series of questions
called the direct examination. These questions reveal what the witness saw,
heard, experienced or knew.
The questions must ask only for facts, not for opinions (unless the witness
has been declared to be an ‘expert’ in a particular subject, such as a doctor
or a police detective). When the direct examination is completed, an
attorney for the other side then asks questions to show weaknesses in the
witness’ testimony, a process called ‘cross-examination.’
STYLE POINTS:
1. Attorney Conducting Direct Examination:
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Before the trial decide the details each of your witnesses know that will
help you prove the main points of your case. Then ask sequence
questions in a logical manner that will reveal these details.
The direct examination’s aim is to protect your witness.
Avoid lengthy or complicated questions. Ask who, what, when, what,
where, how questions.
Leading questions cannot be used on direct examination. (See Rules of
Evidence section.)
Be prepared to rephrase questions in case the witness does not
understand a question or fails to remember facts accurately, or in case
the other side objects to a question. (Grounds for objections are
discussed in the Rule of Evidence section.)
Be sure to have all documents marked for identification before you refer to
them at a trial. Then refer to them as Exhibit A, etc. After you have
finished using an exhibit, if it at all helps your case, ask the judge to admit it
as evidence.
2. Opposing Attorney:
Listen carefully to the questions and answers since cross-examination
must be limited to subjects discussed in the direct examination.
Listen for violations of the Rules of Evidence.
Be prepared to make good objections. It’s often more beneficial to you to
take up ‘objectionable’ issues during cross-examination, rather than
objecting too much. You don’t want to alienate the raters.
3. Witness:
Know the questions that your side’s attorney will ask and prepare clear
and convincing answers that contain the information that the attorney is
trying to elicit from your testimony.
The most important factor in the trial is the believability (often called
“credibility”) of the witnesses.
Witnesses should tell their stories clearly with as little hesitation as
possible.
It's important for witnesses to know the facts thoroughly.
NOTE: The attorney who conducted the direct examination may do a
‘redirect’ at the close of cross-examination (see next section). A redirect
examination follows the same rules as direct. However, the questions are
limited to subjects discussed in the cross-examination. Ask that time
you don’t use in your direct be reserved for redirect.
4. Hot Tips:
Attorney:
Focus the attention on the witness not on yourself.
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Allow your witness to explain some facts that may be detrimental to your
case. This will minimize the opposing counsel’s attempt to ‘sting’ you with
it in cross-examination.
Think quickly if the witness gives you an unexpected answer. Add a short
follow-up to be sure you obtain the testimony you wanted and needed.
Do not make any statements about the facts, even if the witness says
something wrong.
If you need a moment to think, ask the judge if you can discuss a point
with your co-counsel for a moment.
Witness:
Know what your witness doesn’t know. Be very familiar with the facts.
Direct your eye contact to the audience raters. They’re the ones you have
to convince.
Use gestures sparingly and strategically to emphasize key moments in
your testimony.
Don't panic if the attorney or judge asks you a question you haven't
rehearsed.
Don’t argue with the attorney.
THE CROSS-EXAMINATION
OBJECTIVE: To make the other side’s witnesses less believable.
DESCRIPTION:
The purpose of the cross-examination is to show the judge and jury that a
given witness should not be believed. The attorney will try to cast doubt on
the evidence and witness credibility. They’ll work to prove that the witness:
1) cannot remember facts;
2) did not give all of the facts in the direct examination;
3) told a different story at some other time;
4) has a reputation for lying;
5) has a special relationship to one of the parties (maybe a relative or close
friend) or bears a grudge.
QUESTIONS TO ASK:
1) Witness credibility: Show that he has given a contrary statement at
another time
Example: The witness testifies to the exact opposite of what he testified
to during the pre-trial hearing). Ask the witness, “Did you make this
statement on June 1st” Then read it or show a signed statement to the
witness and ask, “Is this your statement” Then ask the witness to read
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part of it aloud or read it to the witness yourself and ask, “Did you say
that”
2) Witness competence or qualifications: Show that an expert witness
or even a lay witness who has testified to an opinion lacks training or
experience.
Example: A psychiatrist testifying to the defendant’s need for dental
work, or a high school graduate testifying that in his opinion the
defendant suffers from a chronic blood disease.
3) Witness is lying: Show the contradiction.
Example: The witness first testifies to not being at the scene of the
accident and soon after admits to being there.
4) Witness is prejudiced or biased: Show the place in testimony where
the witness showed bias.
Example: The witness testifies that he has hated the defendant since
childhood.
5) Witness opinion is questionable: This could be because of poor
eyesight, hearing etc.
Example: The witness with poor eyesight claims to have observed all the
details of a fight that took place 500 feet away in a crowded bar.
STYLE POINTS:
1. Attorney Conducting Cross-examinations:
This attorney must know precisely what kind of weaknesses he or she
wants to show in the witness.
Ask short, “leading” questions (discussed in the Rules of Evidence). For
example, “Isn't it true…
Be brief. Don't ask so many questions that well-made points are lost.
Pin down a witness by asking a question requiring a yes or no. Tactfully
interject on an explanation which may hurt your case. Say “You may stop
there, thank you,” or “That's enough, thank you.”
Questions must be limited to subjects discussed in the direct examination
or they can be objected to as “outside the scope of direct examination.”
Always listen to the witness’s answer.
Don't give the witness the opportunity to re-emphasize the strong points
made during the direct exam.
Don't harass or intimidate or argue with the witness through your
questions.
2. Opposing Attorney:
Listen carefully for violations of the Rules of Evidence and be prepared to
make objections.
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Listen carefully for the kind of attack the cross-examiner is making;
decide if the attack is successful and what to do about it if it was
damaging to your case.
After the cross-examination, the opposing attorney may conduct a
“redirect” examination, to give the witness a chance to explain or correct
some points made in the cross-examination.
Be relaxed and ready to adapt your prepared questions to the testimony
that is actually heard during the direct examination.
3. Witness:
Witnesses should try to give explanations whenever possible.
Witnesses must pay close attention during cross-examination. The
attorney may try to confuse them.
Memorize the facts and make sure that any digression from your
testimony is consistent with the facts.
Be natural and in character emotionally and in your mannerisms and
speech.
Prior to the trial, isolate all possible weaknesses, inconsistencies,
problems in your testimony, and be prepared to explain them.
Be as relaxed and in control as possible. An appearance of confidence
and truthfulness is important.
Don't read or recite your witness statement word for word.
4. Hot Tips:
For attorneys:
Phrase your questions so you know how the witness will answer them.
Ask the question in a different way if you don’t get the answer you were
seeking.
Be quick to spell out to the raters through your questioning the times
when the witness shows bias, contradicts their testimony, is lying or
being uncooperative.
Make your presence so compelling that attention is focused on you rather
than on witness’ answers.
Make sure you have the gender of the witnesses in mind when you refer
to them as him or her.
Never ask the witness “How,” “Why” or “Could you explain” questions.
For witnesses:
Know what your witness doesn’t know.
Direct your eye contact to the audience raters. Use gestures naturally
and strategically for emphasis.
Don’t argue with the attorney. Cross-examination can be tough, so don't
get flustered.
Predict the opposing party’s cross-examination questions. You’ll know
what to say and this will help you keep your composure under pressure.
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OBJECTIONS
The purpose of objections is to protect your witness. You want to keep the
court record clean of information that is out of bounds. When an attorney
hears a question that is out of bounds, she/he stands and says, “I object,
your honor.” Then the attorney must state what she/he is objecting to and
the Rules of Evidence it violates (if they know it). The judge will often allow
the opposing attorney to respond to the objection, before making a ruling.
The Judge can say:
Objection Sustained – The question is thrown out. The attorney can
rephrase the question or move on.
Objection Overruled – The question does prevail. The questioning
attorney can repeat the question to get back on track.
Your Objection is Noted – The judge will listen to the answer, but take the
objection into account.
Objection Overruled as Made – The judge is overruling because the
objection was made incorrectly. The objecting attorney should try to
restate the objection correctly.
Hot Tips:
Keep your objections impersonal. Try to resist clashing with your
opponent.
Some trials can get messy with lots of objections and even antagonism.
This will pointlessly draw both teams away from the focus of the trial.
Resist getting drawn into this type of engagement.
It’s best to hide emotions based on the ruling of the judge. Never
disagree with the judge.
After the judge has made his/her decision, move on. When the judge
overrules an objection, don’t lose heart and stop objecting. Just choose
your objections carefully.
Plan your strategy with your co-counsel. Predict opinion and hearsay
objections. Plan what you’ll say when the opposing team makes a
legitimate objection.
THE CLOSING ARGUMENTS
OBJECTIVE: Make your final case about what evidence is credible or not
and which witnesses should be believed or not. Summarize the application
of the law to your case and ask that your case prevail.
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DESCRIPTION:
The purpose of the closing argument is to convince the trier of fact (judge or
jury) that the evidence presented is sufficient to win the case for whichever
side the attorney is representing.
The closing argument should include:
1) a summary of the evidence presented that is favorable to the presenting
attorney’s side,
2) a summary of the case, and
3) a legal argument showing how the law requires the judge or jury to
interpret the facts, and why that law requires them to rule in favor of the
side for which the attorney is arguing.
STYLE POINTS:
1. Prosecution Attorney:
The prosecution has the burden of proving the facts in a civil case by a
preponderance of the evidence. Tell the jury how you met that burden.
Your compelling summary of the favorable evidence presented is
extremely important.
Be sure to avoid claiming evidence that was not, in fact, presented;
similarly, do not emphasize evidence that the defense successfully
attacked, except to give a firm response to such an attack.
Cite the law clearly and correctly and make a clear argument regarding
how the law requires the judge or jury to rule in the prosecution’s favor.
2. Defense Attorney:
Summarize all of the evidence presented to weaken the prosecution’s
case.
Emphasize the inability of the prosecution to meet the burden of proof
and stress that such inability must clearly lead to a decision in favor of
the defendant.
3. Both Attorneys:
Thank the judge and raters for their time and attention.
Isolate the issues and describe briefly how your presentation resolved
these issues.
Review the witness testimony. Outline the strengths of your side’s
witnesses and also the weaknesses of the other side’s witnesses.
(Remember to adapt your statement at the end of the trial to reflect what
the witnesses actually said as opposed to the anticipated weaknesses of
the other side.)
Review the physical evidence. Outline the strengths of your evidence and
the anticipated weaknesses of the other side’s evidence. (This section
must be adapted at trial.)
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State the applicable statutes and any cases to show it supports your side.
4. Hot Tips:
Tie your opening and closing thematically together.
Show adaptability/flexibility. If the opposing counsel successfully used an
analogy, visual, or a turn of a phrase that can be twisted or adopted in
your favor, do so in your closing.
Don’t forget to request the verdict/remedy you desire.
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DIVIDER

DIVIDER

CIVICS EDUCATION RESOURCES
A listing of useful online resources for teaching and thinking about Civic Education
Primary Sources and Content Materials
Harry S. Truman Library and Museum - http://www.trumanlibrary.org/
A sites for documents, images and related resource from the Harry S.
Truman Museum.
Making of America - http://moa.umdl.umich.edu/
Making of America (MOA) is a digital library of primary sources in American
social history from the antebellum period through reconstruction. The
collection is particularly strong in the subject areas of education, psychology,
American history, sociology, religion, and science and technology.
Internment of San Francisco Japanese - Museum of the City of San
Francisco - http://www.sfmuseum.org/war/evactxt.html
Record of Japanese Internment as recorded in The San Francisco News from
March 2, 1942 to April 30, 1942. Includes complete newspaper articles from
period and links to related resources.
American Memory - http://lcweb2.loc.gov/ammem/ammemhome.html
American Memory is an online resource compiled by the Library of Congress
National Digital Library Program. With the participation of other libraries and
archives, the program provides a gateway to primary source materials
relating to the history and culture of the United States. Over one million
items from the American Memory historical collections are currently available
online. In the coming years, the National Digital Library Program plans to
digitize more of the Library's American history collections and make them
available to teachers, students, and the general public over the Internet.
The Oyez Project - The U.S. Supreme Court Multimedia Database -
http://oyez.org/
Maintained by Northwestern University, Oyez provides complete records of
Supreme Court cases, biographical information on justices and a virtual tour
of the Supreme Court building.
Abraham Lincoln Papers at the Library of Congress -
http://memory.loc.gov/ammem/alhtml/malhome.html
The complete Abraham Lincoln Papers at the Library of Congress consists of
approximately 20,000 documents. The collection is organized into three
"General Correspondence" series which include incoming and outgoing
correspondence and enclosures, drafts of speeches, and notes and printed
material. Most items are from the 1850s through Lincoln's presidential years,
1860-65.
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19th Century Schoolbooks and the Nietz Collection Bibliography -
http://www.library.pitt.edu/dscribe/
The resource includes full-texts of thirty schoolbooks from the Nietz Old
Textbook Collection, one of several well-known collections of 19th Century
schoolbooks in the United States. This resource also includes a searchable
bibliography of the Collection's 16,000 volumes.
Franklin D. Roosevelt Library and Digital Archive -
http://www.fdrlibrary.marist.edu/index.html - This site provides scholars,
teachers and students access to part of the collection of documents,
photographs and video recordings found at the Franklin D. Roosevelt Library
in Hyde Park, New York. This resource includes a K-12 learning center and
over 10,000 digitized documents relating to the Roosevelt presidency.
DoHistory - http://www.dohistory.org/
Constructed by the Film Study Center at Harvard University this is an
experimental, interactive site where you can explore the process of piecing
together the lives of ordinary people in the past. It features a case study
based on the research that went into the book and film A Midwife's Tale,
which were both based upon the 200 year old diary of midwife/healer Martha
Ballard. Although DoHistory is centered on the life of Martha Ballard, you can
learn basic skills and techniques for interpreting fragments that survive from
any period in history.
Ben's Guide to US Government for Kids - http://bensguide.gpo.gov/
Ben's Guide to U. S. Government for kids is a service of the US Government
Printing Office that provides electronic access to information about U. S.
history and government. This site is organized by grade levels: K-2, 3-5, 6-8,
9-12, and a link for parents and teachers.
The Papers of George Washington - http://www.virginia.edu/gwpapers/
The site provides access to the University of Virginia's collection, "The Papers
of George Washington." It includes letters written to Washington as well as
letters and documents written by him.
Canadian War Museum - http://www.warmuseum.ca/cwm/home
An on-line version of the Canadian War museum, this site is dedicated to the
education and remembrance of participants in Canadian wars. Along with
links to other related sources, this site provides links to the museum's public
and educational programs, a "Teacher's Activity Kit," and an interactive story
of life in the trenches during World War One.
Valley of the Shadow - http://jefferson.village.virginia.edu/vshadow2/
This site is a digital history project sponsored by the Virginia Center for
Digital History. The Valley of the Shadow Project documents two
communities, one Northern and one Southern, through the experience of the
American Civil War. The project is a hypermedia archive of thousands of
sources for the period before, during, and after the Civil War for Augusta
County, Virginia, and Franklin County, Pennsylvania. Those sources include
newspapers, letters, diaries, photographs, maps, church records, population
census, agricultural census, and military records. Students can explore every
dimension of the conflict and write their own histories, reconstructing the life
78

stories of women, African Americans, farmers, politicians, soldiers, and
families. The project is intended for secondary schools, community colleges,
libraries, and universities.
Matrix Collection of Humanities Resources and Archives -
http://matrix.msu.edu/resources/
Developed by Matrix - The Center for Humane Arts, Letters, and Social
Sciences Online at Michigan State University, this resource provides
extensive links to online resources in all of the above areas as well as links
and tutorials for web publishing and research.
Supreme Court Collection - http://supct.law.cornell.edu/supct/
Sponsored by the Legal Information Institute, this resource offers Supreme
Court opinions under the auspices of Project Hermes, the court's electronicdissemination
project. This archive contains nearly all opinions of the court
issued since May of 1990. In addition, the collection includes over 600 of the
most important historical decisions of the Court available on CD-ROM and
over the Internet.
Congress at Work - The Library of Congress Congressional records -
http://thomas.loc.gov/
This is a resource page for the Library of Congress designed to give complete
access to congressional legislation. This site can be searched by specific
House and Senate Bill numbers or by a word or a phrase. This site also
includes a series of related links under the headings Legislation,
Congressional Records, and Committee Reports.
National Archives and Records Administration (NARA) -
http://www.nara.gov/
NARA is an independent Federal agency that helps preserve our nation's
history by overseeing the management of all Federal records. NARA's mission
is to ensure ready access to the essential evidence that documents the rights
of American citizens, the actions of Federal officials, and the national
experience. This site includes multiple links to NARA's nationwide holdings
including: Records Management; Federal Register; Online Exhibit Hall; Digital
Classroom; National Historical Publication and Records Commission Grants;
and technical information for Archives and Preservation of Professional
records.
Library of Congress - http://www.loc.gov/
The Library of Congress site offers a searchable, digital collection of
resources from the Library of Congress' American historical collections as well
as its catalog, text and images from major exhibitions, the THOMAS database
of current and historical information on the US Congress, and a Learning
Page for K-12 students and teachers. This site includes a National Digital
Library Program which offers access to key documents, films, photographs
and sound recordings of our nation's history in the American Memory
Historical Collections.
The Avalon Project at Yale -
http://www.yale.edu/lawweb/avalon/avalon.htm
The Avalon Project includes digital documents relevant to the fields of Law,
History, Economics, Politics, Diplomacy, and Government from the 18th to
19th centuries. The site includes a wide variety of documents, such as
79

collections related to the American Constitution; Ancient, Medieval and
Renaissance Documents; the Cold War; Indochina; Nazi-Soviet Relations
1939-1941; and the United States concerning Native Americans and Slavery.
Teaching Resources for Civics
The Common Good – http://www.c-spanclassroom.org/
Sponsored by C-SPAN and Time Warner, this site provides commercial-free
coverage of the American political process. This resource features learning
opportunities for students through partnerships developed with school
administrators and teachers. This site also includes links to Lesson Plans,
Teaching By Topics and Classroom resources for instructors, parents and
students.
American Memory Lesson Ideas for Using Primary Sources -
http://memory.loc.gov/ammem/ndlpedu/lesson.html
Lesson Ideas offers strategies and lesson plans developed by education
professionals to help integrate primary sources, especially those in American
Memory, into the classroom. The main page features lessons grouped by
topics in American history like the Civil War, the Great Depression, and the
Conservation Movement.
Comparative Lessons for Democracy - http://www.civiced.org
Comparative Lessons for Democracy is designed to strengthen education for
democracy in the United States through the use of curricular materials about
the history and government of several Central and Eastern European nations.
Analyzing issues and events related to these emerging democracies
encourages students in the United States to clarify assumptions and
principles upon which democracies rest. The content of the lessons are
divided into four major sections including, Historical Connections,
Transitions: Comparative Trends, Constitutionalism and Democracy and
Citizens' Rights and Civil Society. Comparative Lessons is designed to raise
questions, not only about countries in Central and Eastern Europe, but also
how these same issues relate to American society and politics. In this
manner, students are able to identify the elements common to democracies
everywhere and those dimensions that are unique to the United States.
Democracies Online - http://www.e-democracy.org/do/commons.html
In contrast to most listservs that are organized by topics, this site provides
instruction for setting up email lists and web archives based on geographic
location and democratic principles. This resource outlines step-by-step
procedures for individuals to host and moderate participatory discussions.
Public Achievement Project – http://www.publicachievement.org
This site provides information about Public Achievement, a National project
created in 1990 to promote community action for students who learn to
become effective citizens while doing real public work. Students develop
projects in teams, develop problem-solving strategies and take action. This
site links to additional information and resources related to K-12 civics
education.
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Learning Adventures in Citizenship -
http://www.thirteen.org/newyork/laic/index.html
This site offers students the ability to explore the intriguing history of New
York, do activities to learn more about the history of their own towns, and
participate in their communities. Kids can also submit their work to the Kids'
Contest and view featured projects in the Kids' Lab. There are special
sections for teachers and parents to learn how to get the most out of this rich
resource.
Library of Congress Learning and Lesson Ideas -
http://lcweb2.loc.gov/ammem/ndlpedu/
The Learning Page is a web site designed to help teachers, students, and lifelong
learners use the American Memory digital collections from the Library of
Congress. The site provides guidance to finding and using items within these
primary source collections. This site includes links to Activities and Whats
New. In addition, this resource provides teachers with Educators Programs
and Lesson Ideas.
iCivics - http://www.icivics.org/
iCivics (formerly Our Courts) is a web-based education project designed to
teach students civics and inspire them to be active participants in our
democracy. iCivics is the vision of Justice Sandra Day O'Connor, who is
concerned that students are not getting the information and tools they need
for civic participation, and that civics teachers need better materials and
support.
State and National Civics and Curriculum Standards
Michigan Curriculum Framework –
http://www.michigan.gov/documents/MichiganCurriculumFramework_8172_
7.pdf
The Michigan Curriculum Framework includes standards focused on content,
teaching and learning, assessment, and professional development for all
fields related to Michigan public education. Standards under development will
address teacher preparation programs. This site also links to Toolkits to
guide the use of the standards under development. Toolkits in draft form
address content discrepancy analysis, interdisciplinary connections,
technology across the curriculum, and connecting with the learner. Additional
toolkits and resources address specific content areas. These include
additional vignettes, sample teaching and learning activities, instructional
units, assessment guides, and professional development resources.
National Standards for Civics and Government -
http://www.civiced.org/stds.html
Sponsored by the Center for Civic Education (Center) this site develops
voluntary National Standards for Civics and Government for students in
kindergarten through grade twelve (K-12). Supported by the Office of
81

Educational Research and Improvement (OERI) of the U.S. Department of
Education and The Pew Charitable Trusts, this site outlines National
Standards for Civic and Government that are intended to help schools
develop competent and responsible citizens who possess a reasoned
commitment to the fundamental values and principles that are essential to
the preservation and improvement of American constitutional democracy.
National Standards for Social Studies Teachers -
http://www.socialstudies.org/standards Sponsored by the Center for Civic
Education (Center) this site develops voluntary National Standards for Civics
and Government for students in kindergarten through grade twelve (K-12).
Supported by the Office of Educational Research and Improvement (OERI) of
the U.S. Department of Education and The Pew Charitable Trusts, this site
outlines National Standards for Civic and Government that are intended to
help schools develop competent and responsible citizens who possess a
reasoned commitment to the fundamental values and principles that are
essential to the preservation and improvement of American constitutional
democracy.
The Current State of Civic Education -
http://www.nwrel.org/scpd/sirs/10/c019.html
This site features a detailed report of the "current state of civic education." It
also links to additional school improvement resources and programs.
The Role of Civic Education -
http://www.civiced.org/papers/articles_role.html
This site was prepared by the Center for Civic Education and includes a
report called "The Role Of Civic Education: A Report Of The Task Force On
Civic Education." This report came from the Second Annual White House
Conference On Character Building For A Democratic, Civil Society
Washington, D.C., May 19 - 20, 1995.
Civic Education Organizations
Social Studies.org - http://www.ncss.org/
Social Studies.org is designed to help quickly and easily find the information
from the National Council for the Social Studies. Founded in 1921, National
Council for the Social Studies has grown to be the largest association in the
country devoted solely to social studies education. NCSS engages and
supports educators in strengthening and advocating social studies. With
members in all 50 states, the District of Columbia, and 69 foreign countries,
NCSS serves as an umbrella organization for elementary, secondary, and
college teachers of history, geography, economics, political science,
sociology, psychology, anthropology, and law-related education. Organized
82

into a network of more than 110 affiliated state, local, and regional councils
and associated groups, the NCSS membership represents K-12 classroom
teachers, college and university faculty members, curriculum designers and
specialists, social studies supervisors, and leaders in the various disciplines
that constitute the social studies.
Ackerman Resource Links to Civic, Social Studies, and History
Education -
http://ackerman.education.purdue.edu/summer_institute/teacher_resources.
html
This site provides resources for social studies and civic education as part of
the James F. Ackerman Center for Democratic Citizenship goal to assume a
national leadership role in preparing new generations of American citizens.
The center features links focused on providing programs, institutes, activities
and resources for educators to implement more powerful citizenship
programs and opportunities that result in active student involvement in
schools and communities.
Center for Civic Education - http://www.civiced.org/
This site provides instructional and professional development resources for
civics teachers. It is maintained by the Center for Civic Education a nonprofit,
nonpartisan educational corporation dedicated to fostering the development
of informed, responsible participation in civic life by citizens committed to
values and principles fundamental to American constitutional democracy.
Public Achievement Organization - http://www.publicachievement.org/
The homepage of Public Achievement - a civic education initiative that gives
students opportunities to learn about how to become involved citizens
through public acts.
Government Agencies and Organizations
U.S. House of Representatives Home Page - http://www.house.gov/
This official Web Site of the U. S. House of Representatives includes various
resources to learn about house rules, proceedings, votes, committees, and
83

employment opportunities. The page also includes Educational Links and
resource for writing to individual house members.
U.S. Senate Home Page - http://www.senate.gov/
This Official Site of the U. S. Senate includes information about Senate
activities, committees, and Bills. This resource also provides access to Senate
Art, This Week in Senate History, and search capabilities for information
about a individual state senators and legislative history.
White House Home Page - http://www.whitehouse.gov/WH/Welcome.html
The official Web page of the U. S. White house, this site provides information
on the President and Vice President, the Federal Government, histories of the
White House and its inhabitants, and a Virtual Library of White House
Documents.
U.S. Government Agencies Directory -
http://www.lib.lsu.edu/gov/index.html
This page is a comprehensive resource of U. S. Federal Government agencies
indexed by Executive, Judicial and Legislative branches of government. This
site also includes links to Independent Boards, Commissions and
Committees, and other government agencies.
State of Michigan – http://www.michigan.gov
This site is a portal to online resource for the State of Michigan. Included at
this site are public policy documents, speeches, and news releases from
Governor John Engler's Administration. In addition, you can explore links to
Michigan's State Legislature, the Judiciary and every state department, as
well as Michigan Compiled Laws and the Michigan Administrative Code. This
resource also includes travel, tourism information, and a virtual tour of the
State Capitol.
Newspapers/Current Events
The Detroit Free Press - http://www.freep.com/
The New York Times - http://www.nytimes.com/
USA Today - http://www.usatoday.com/
CNN - http://www.cnn.com/
MSNBC - http://www.msnbc.com/
U.S. News Online - http://www.usnews.com/usnews/home.htm
Wall Street Journal - http://interactive.wsj.com/home.html
The National Review – http://www.nationalreview.com
Time - http://www.time.com/time/index.html
Newsweek - http://www.newsweek.com/
The Washington Times - http://www.washtimes.com/
84

MOCK TRIAL RESOURCE LIST
Washington State Bar Association
1325 Fourth Ave., Ste. 600
Seattle, WA 98101-2539
Telephone: 800-945-WSBA
Fax: 206-727-8319
Website: www.wsba.org
Street Law, Inc.
1600 K Street, NW, # 602
Washington, DC 20006
Telephone: 202-293-0088 Fax: 202-293-0089
Website: www.streetlaw.org
American Bar Association
Division for Public Education (NLRC)*
541 N. Fairbanks Court
Chicago, IL 60611
Telephone: 312-988-5735
Email: abapubed@abanet.
Website: www.abanet.org/publiced/home.html
*What is the National Law-Related Education Resource Center (NLRC)
The American Bar Association's Public Education Division created the NLRC in 1991
to collect and disseminate information on law-related education (LRE) programs
and resources, legal topics, funding sources, and teacher and resource leader
training opportunities. The NLRC can point you to magazines, newsletters, technical
assistance papers, anthologies, syllabi, bibliographies, videotapes, software,
posters, journalists' guides, law client products, law career information, and
hundreds of law-related educational products and services. The NLRC also serves
as the Adjunct ERIC Clearinghouse for Law-Related Education
http://www.indiana.edu/~ssdc/eric_chess.htm.
Center for Civic Education
Charles N. Quigley, Executive Director
Roy Erickson, Director of Justice Education Programs
5146 Douglas Fir Road
Calabasas, CA 91302
Telephone: 800-350-4223 Fax: 818-591-9330
E-mail: youthforjustice@civiced.org
Website: www.civiced.org
85

Constitutional Rights Foundation
Los Angeles Office
Todd Clark, Executive Director
601 S. Kingsley Dr.
Los Angeles, CA 90005
Telephone: 213-487-5590 Fax: 213-386-0459
E-mail: todd@crf-usa.org
Website: www.crf-usa.org
Constitutional Rights Foundation
Chicago Office
Carolyn Pereira, Executive Director
407 S. Dearborn, Suite 1700
Chicago, IL 60605
Telephone: 312-663-9057 Fax: 312-663-4321 E-mail: pereira@crfc.org Website:
www.crfc.org
Phi Alpha Delta Legal Fraternity
Frank C. Patek, II, Executive Director
345 N. Charles Street
Baltimore, MD 21201
Telephone: 410-347-3118 Fax: 410-347-3119
E-mail: andrew@pad.org
Website: www.pad.org
U.S. Department of Justice - OJJDP
810 Seventh Street, NW
Washington, DC 20531
Telephone: 202-307-5911 Fax: 202-307-2093
E-mail: askjj@ncjrs.org
Website: www.usdoj.gov
Juvenile Justice Clearinghouse
P.O. Box 6000
Rockville, MD 20849-6000
Telephone: 800-638-8736 Fax: 301-519-5212
E-mail: askncjrs@ncjrs.org
Oregon Classroom Law Project
Marilyn R. Cover, Executive Director
620 SW Main, Suite 102
Portland, OR 97205
Telephone: 503-224-4424 Fax: 503-224-1721
E-mail: mcover@classroomlaw.org
86

State Bar of California
Kids and the Law publication
This web publication is aimed at parents to inform them about their parental rights
and responsibilities and to assist them in teaching their children about the laws that
affect them. Topics include: juvenile court, truancy, work permits, shoplifting,
fighting, gangs, curfew, drugs, alcohol, age of majority, and much more. Some of
the information is specific to California, but there is much that is useful for other
states.
www.calbar.org/2pub/3kids/3kidsndx.htm.
For a copy of the 42-page booklet, A Citizen’s Guide to Washington Courts
or a copy of the Supreme Justice video contact:
Office of the Administrator for the Courts
PO BOX 41170
Olympia, WA 98504-1170
Telephone: 360-753-3365
Center for Research And Development in Law Related Education
(CRADLE)
A lesson-plan sharing service for teaching civics-related materials.
Website: www.constitutioncenter.org
Mock Trial Highlights, 2003-04.
The DVD is edited into chapters by trial segment. It shows students in the State
and National competitions arguing pretrial motions, delivering opening and closing
statements, and conducting direct and cross examinations. It includes voiceover
commentary drawing attention to particular trial advocacy techniques.
Order from Molly Ortiz: ortizm@seattleu.edu. 60 minutes, $25.
Raise the Bar.
This professionally made DVD documentary follows teams from around the country
as they advance through the state competitions to the Nationals in Orlando in 2004.
It includes dramatic trial footage, profiles of teams and team members, and
interviews with judges and mock trial coaches. Students, parents, coaches, and
school administrators will find it to be a useful introduction to high school mock
trial. Order from James Charleston: charleston@mac.com. Preview copies are
available.
60 minutes, approx. $140 (5 or more @ $100 each.)
Washington State Finals videos.
TVW has taped the State finals in Olympia for the past several years. Contact TVW
regarding orders.
http://www.tvw.org/index.cfm.
A textbook written specifically for mock trial courses is:
Lubet, Steven and Jill Trumbull-Harris. Mock Trials: Preparing, Presenting,
and Winning Your Case.
South Bend, Indiana: NITA, 2001. ISBN 1-55681-713-4. .
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ELECTRONIC RESOURCES
YMCA Youth & Government
www.youthandgovernment.org
Legislative Sites
Legislature, general
WA State House of Representatives
WA State Senate
District finder-State and Congress
Revised Code of Washington (RCW)
Office of the Code Reviser
Bill Drafting Guide
Washington State Constitution
Elected Officials
Washington Votes
www.leg.wa.gov
www.leg.wa.gov/house/default.htm
www.leg.wa.gov/senate/default.htm
http://dfind.leg.wa.gov/dfinder.cfm
www.leg.wa.gov/rcw.index.cfm
http://slc.leg.wa.gov/default.htm
http://slc.leg.wa.gov/default.htm
www.courts.wa.gov/education/constitution
www.secstate.wa.gov/elections
www.washingtonvotes.org
Executive and State Agencies
Access Washington
Governor
Attorney General
Department of Agriculture
State Board of Education
Employment Security Department
Office of Financial Management
Department of Fish and Wildlife
Washington State Gambling Commission
Department of Health
Higher Education Coordinating Board
Human Rights Commission
Labor and Industries
Department of Licensing
Liquor Control Board
Lottery Commission
Public Disclosure Commission
Secretary of State
Sentencing Guidelines Commission
Social and Health Services
Supreme Court
Department of Transportation
www.access.wa.gov
www.governor.wa.gov
www.wa.gov/ago
www.agr.wa.gov
www.sbe.wa.gov
www.wa.gov/esd
www.ofm.wa.gov
www.wa.gov/wdfw
www.wsgc.wa.gov
www.doh.wa.gov
www.hecb.wa.gov
www.wa.gov/hrc
www.lni.wa.gov
www.dol.wa.gov
www.liq.wa.gov
www.walottery.com
www.pdc.wa.gov
www.secstate.wa.gov
www.sgc.wa.gov
www.dshs.wa.gov
www.courts.wa.gov
www.wsdot.wa.gov
88

DIVIDER

DIVIDER

TIPS FOR PREPARING
WITNESSES AND ATTORNEYS
This section outlines various areas of study essential to a team that enters
competition.
PRACTICE, PRACTICE, PRACTICE:
Deciding which are the most important points to prove their side of the
case and to make sure that proof takes place.
Following the formality of court, e.g., standing up when the judge enters;
or when addressing the judge, to call the judge “Your Honor,” etc.
Telling clearly what you intend to prove in an opening statement and to
argue effectively in your closing argument that the facts and evidence
presented have proven their case.
Phrasing questions on direct examination that are not leading (carefully
review the rules of evidence and watch for this type of questioning in
practice sessions).
Not asking so many questions on cross-examination that well-made
points are lost. When a witness has been contradicted or otherwise
discredited, student attorneys tend to ask additional questions that
often lessen the impact of points previously made.
Recognizing what questions are likely to require answers from the witness
that will make good points.
Learning to avoid pointless questions!
Thinking quickly on their feet when a witness gives an unexpected
answer, an attorney asks unexpected questions, or a judge throws
questions at the attorney or witness. (Practice sessions will help prepare
for this.)
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COURTROOM DECORUM
Always be courteous to witnesses, attorneys, audience raters and the
judge.
Always stand when talking in court and when the judge enters or leaves
the room.
Dress appropriately. (If it's a formal competition trial, this may mean coat
and tie for males and dresses or equivalent for females.)
Prior to opening statements, ask the judge if you may present stipulations
you would like him/her to consider.
Do not stand in the view of the opposing counsel when you are examining
a witness.
Always say “Yes, Your Honor,” or “No, Your Honor,” when answering a
question from the judge.
Attorneys should try to make objections in a manner which allows the
judge to hear the full question being asked, but not the responsive
testimony.
Judges and raters don't like attorneys who constantly make objections or
attorneys who make objections without being able to explain the reason
for the objections.
Learn how to introduce evidence. Mark the evidence first. Show the
evidence to the witness. Ask the witness to identify the evidence as
authentic. Ask the judge that the evidence be admitted. The bailiff will
give the evidence to the judge.
If the judge rules against your objection, take the defeat gracefully and
without showing emotion.
Gum chewing is prohibited.
The members of your team watching from the audience should not be
talking during the proceedings.
Coaches should not be talking to their team members sitting in the
audience boxes.
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CASE PREPARATION TIPS FOR
ATTORNEY COACHES AND TEACHERS
Teachers should duplicate and distribute to appropriate individuals,
all student materials included in this manual.
Case preparation can begin in class and move outside of class when the
competition team is selected. Attorney coaches should try to attend 2-3
in-class sessions during initial preparation.
Attorneys can be of assistance to the teacher in discussions of the
following:
procedures in trials;
burden of proof;
rules of evidence (explain only simplified rules of evidence
included in this manual);
the roles of each participant, i.e., attorney, witness;
law relevant to the competition case given in this manual.
Brainstorming is a good teaching technique to use for case preparation.
Attorneys should avoid lectures. Attorneys and the teacher should elicit
ideas from students rather than spoon-feed them. Use this technique in
reviewing steps of a trial, identifying important issues, developing
arguments, deciding what should be included in opening and closing
statements, questioning techniques.
During group work, attorneys can take one group and the teacher the
other.
Teachers and attorneys must be thoroughly familiar with the rules of
evidence and rules of competition.
It is important to de-emphasize the competitive aspects of the experience
and stress the educational benefits and enjoyment.
Attorneys should be available to attend preparation sessions before the
District Competitions.
Attorneys and teachers can help students prepare their statements, but
should avoid the temptation to help too much. Students should be
encouraged to do as much of the writing as possible.
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KEY POINTS TO REMEMBER
1. All participants should speak loudly and clearly. Practice this by
having each student attorney stand at the far end of the room while
questioning the student witness.
2. As soon as possible, student attorneys should begin formulating
questions for use in examination of witnesses, and student witnesses
should rehearse their testimony. Student preparation will progress
more rapidly by simulating actual conduct of the trial than by merely
conducting general classroom discussion of the steps in the trial.
3. Leading questions are not allowed on direct examination, but can and
should be asked on cross-examination.
4. Courtroom etiquette and decorum should be stressed at practice and
observed at trial (e.g., standing when addressing the court, calling the
judge “Your Honor”).
5. Cross-examination should be short and to the point: questions on
cross-examination are designed to elicit a particular response from the
witness, asking open-ended questions which call for a narrative or
explanation (e.g., “How,” “Why,” or “Could”) may result in testimony
which is unexpected and harmful to the cross-examiner’s case.
6. Each attorney should be prepared to state the reasons for overruling
an objection raised by the opposing counsel during questioning of the
witnesses.
7. The witness statements should not be read verbatim in the trial.
Witnesses will not be permitted to take their statements to the stand.
They serve merely as a point of departure for oral testimony.
However, testimony must not be inconsistent with facts set forth in the
witness statements.
8. Credibility of witnesses is very important and therefore, students
acting as witnesses should be encouraged to get into the roles and to
attempt to think and dress like the person they are playing. These
students should read over the statements many times and have other
people ask them questions about the facts until they know them
“cold.”
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9. The witnesses' performance will be taken into consideration when
evaluating the team’s performance during the competition.
10. Witnesses are not permitted to refer to their statements during the
trial, except to refresh recollection (direct) or impeach (cross).
11. Even though the class is representing one side during the first round of
competition, during practice sessions students on the competition
team should be assigned to play all witnesses. Use case preparation
materials completed during classroom work so that your competing
students have two sets of trial materials to work from.
12. During the practice rounds, you may wish to get students from
another class to constitute the jury. The jury should not be allowed to
read the statement of facts or witness statements prior to the trial in
order to avoid predisposition, to simulate more precisely an actual trial
and to more adequately determine your team’s effectiveness.
13. Opening statements and closing arguments should be written by
students. Attorney and teacher coaches can assist with editing, but not
the actual writing of arguments. Coaches should not tell students to
incorporate language the students do not understand. Closing
arguments should not be totally composed before trial as they are
supposed to highlight the important developments for the prosecution
and defense that occurred during the trial.
14. It should be made clear to students that material or relevant facts
cannot be changed from their witness statement. If they contradict
this statement on the witness stand, the opposing attorney may use it
to impeach the witness. Students also may not “invent” relevant
medial facts or incidents that not in the statements. However, when
an attorney on cross-examination asks a question the answer to which
is not included in the statement of facts, the witness will be forced to
respond with an answer consistent with his character and the facts.
This should be a warning to cross-examiners to avoid asking questions
which are not included in the statement of facts or witness statements,
as the response will be accepted (see rules of competition).
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15. Always conduct a debriefing session after a practice round in order to
identify and correct possible deficiencies. Include questions such as:
a. Was the opening statement an accurate picture of what the trial
actually produced
b. Did the examining attorneys elicit all the necessary facts from the
witnesses
c. Were the witnesses convincing and adequately prepared
d. Did the closing arguments effectively summarize the main points
the witnesses made Did they identify deficiencies of the opposing
side’s case
16. Some of the things most difficult to learn are:
a. To phrase questions on direct examination that are not leading;
b. To introduce documentary or physical evidence;
c. To follow the formality of court;
d. Not to ask so many questions on cross-examination that wellmade
points are lost. When they have contradicted a witness or
made him/her otherwise look bad, student attorneys tend to ask
additional questions which often lessens the impact of points
previously made. Students should be encouraged to recognize
what answers make good points so that they know when to stop;
e. To tell what they intend to prove in an opening statement and, in
the closing argument, to argue that the facts and evidence
presented have proved their case.
17. Teams must be prepared to present both sides of the case, as
attorneys for the prosecution or defendant.
18. In order to deter unfair extrapolations on redirect examination, recross
examination is allowed, so long as the questioning is strictly
within the scope of the redirect.
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AWARDS AND RECOGNITION
DISTRICT COMPETITION
Certificates will be sent to District Conveners for distribution to
each participant following district events.
Conveners may chose to award certificates for outstanding
witness and attorneys for their local event.
STATE FINALS COMPETITION
Certificates will be sent to teachers for distribution for each
student who participates in the State Finals.
Each participating team will receive a plaque.
Trophies will be awarded to the State Final Champion and
Second through Fifth Place teams.
Awards will be presented to the individual outstanding witness
and student attorney for the both the competition overall and
the Championship Round.
95

TRIAL PROCEDURES
Before participating in a mock trial, it is important to be familiar with the
physical setting of the courtroom, the events that generally take place
during a trial, and the order in which they occur. This section outlines the
usual steps in trial.
COURTROOM LAYOUT
JUDGE
BAILIFF
DEFENSE TABLE
AUDIENCE SEATING
WITNESS STAND
PLAINTIFF TABLE
AUDIENCE SEATING
J
U
R
Y
B
O
X
*Note: Jury box should always be on the same side of the courtroom as the
witness stand. Unless otherwise directed by the judge, the plaintiff’s
attorneys sit at the table closest to the jury (raters) box.
PARTICIPANTS:
The Judge
The Attorneys Prosecutor - Defendant (Criminal Case) or
Plaintiff - Defendant (Civil Case)
The Witness Prosecution - Defendant (Criminal Case) or
Plaintiff - Defendant (Civil Case)
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TRIAL SEQUENCE & INFORMATION
FOR STUDENT PARTICIPANTS
As is true in any trial, this case presents a host of problems for team members.
When to call a witness, what the witness should say, and how to cross-examine are
just some of the issues that will be encountered. This outline should clarify the
issues and solve some of those problems by placing the entire case in an
understandable perspective for student attorneys and witnesses. Some of the
material discussed in the outline below is described in more detail in the Simplified
Rules of Evidence and Procedure section. Students should be familiar with all such
material.
The trial is divided into three sections:
(1) Opening Statements; (2) Examination of witnesses; and (3) Closing Arguments.
TRIAL SEQUENCE
1. Opening Statement: These are brief presentations to the judge/jury that
are made by the attorneys. (5 minutes per side.)
a. A Plaintiff Attorney will outline the case by briefly telling the judge (and
jury) the facts of a case in a light which is favorable to his or her side.
The legal points expected to be raised during the trial, and a statement of
the result that he or she will seek at the close of the case. Note: The
application of the law to the facts shall not be argued in the opening
statement.
b. The Defendant's Attorney will do the same, highlighting those facts
which will support his or her theory of the case. Opening may not be
reserved.
2. Examination of Witnesses: (Each team will have 24 minutes for all their
direct and redirect examinations and 20 minutes for all their cross and recross
examinations.)
a. Direct: The purpose of this segment of the trial is to allow your
witnesses to tell their side of the story in a narrative manner. Witnesses
should know their statements “cold.” Attorneys should be sure to listen
to their witness's response so that if he or she forgets anything, you can
make sure it gets into the record by asking the question again or
rephrasing the question to elicit the response desired.
b. Cross: At the close of every direct examination, the opposing counsel
will cross examine that same witness before the next witness is called.
The purpose of the cross-examination is to impeach the witness's
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credibility (believability); that is, to make him/her look bad in the eyes of
the judge/jury. This can be done by showing the witness is biased or
prejudice, the witness doesn't remember just exactly what happened, or
the witness did not actually see what happened.
Another purpose of cross-examination is to bring out any facts in the
witness’s statement that are helpful to the opposing side. The attorney
should focus on these specific points by asking the witness leading
questions.
c. Redirect: the attorney who called the witness may ask follow-up
questions about issues raised in the cross-examination.
d. Re-cross: Questions must fall within the scope of redirect. An attorney
will normally use re-cross examination only when unfair extrapolations
have been made during redirect examination.
3. Closing Arguments: These are concluding arguments made to the
judge/jury by each side. (Each side has 6 minutes to make closing
arguments. The Plaintiff has an additional 2 minutes for a rebuttal
argument.)
It is always proper in final argument to refer to a witness’s interest in the
outcome of the case, his appearance and conduct while testifying, and the
character and credibility of parties and witnesses when the remarks are
based on facts in evidence.
The closing argument should tie the whole case together, as if the attorney is
closing a circle. The attorney should point out the most favorable things
brought out in the trial in his/her favor and suggest weaknesses in the
opponent’s case. Attorneys should not refer to facts which were not testified
to by a witness during the trial.
a. The plaintiff, who always has the burden of proof, has the right to have
the first closing argument. The attorney should always ask for a
judgment or ruling in his/her client’s favor.
b. The defendant’s attorney then has an opportunity to argue his/her case.
The attorney should urge the judge/jury to find that the plaintiff has not
met its burden of proof, and should point out any facts which would lead
the judge/jury to that conclusion. The attorney should always ask for a
judgment or ruling for his or her client.
c. Because the plaintiff has the burden of proof, its attorney is allowed the
last word in rebuttal argument. Rebuttal should respond to issues raised
during the defense closing argument, and should suggest why those
points should not prevent a favorable ruling for the plaintiff.
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BAILIFF/CLERK RESPONSIBILITIES
Note: Laminate this and keep it with you during each trial. Your job is vital
to the conduct of this mock trial. You are in charge of the following duties:
announcing the opening of the trial; keeping time to make sure that each
part of the trial is within the time limits set and swearing in of witnesses.
Before the trial begins, introduce yourself to the judge and explain that you
will help as the bailiff. The team that plays the plaintiff should supply the
bailiff for each trial and shall be designated as the timekeeper during the
trial. The defense team shall provide their bailiff to serve as courtroom
host; this bailiff may also assist the defense team with keeping track of their
time.
1) When the judge is about to enter the courtroom for the trial, stand up
and announce: “All rise, the Superior Court for (name) County, State
of Washington is now in session, the Honorable (name) presiding.”
Everyone remains standing until the judge enters and is seated. After
the judge has taken a seat, announce: “Please be seated.”
2) The judge will hear the pretrial motion first, not to exceed 6 minutes
for each side
3) The opening statements are next, not to exceed 5 minutes for each
side.
4) After opening statements, the judge will ask that all 8 witnesses in the
case stand to be sworn. The bailiff then says “Please raise your right
hand. Do you swear or affirm that the testimony you are about to give
is the truth and nothing but the truth” The witnesses should respond
“I do.” The bailiff then says “Please be seated.”
5) Next are the witness examinations. Please keep track of the time the
attorney uses for examination (direct, cross, redirect and re-cross) on
the Time Tracking Form as provided in this kit. The Time Tracking
Form is only used during the round; you are not required to turn it in
to the judge after the trial is over. The judge has the discretion to
extend the allotted time for direct and cross examinations, and to stop
the clock during examination in certain circumstances.
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6) The bailiff must keep accurate time. The bailiff brings a watch with a
timer or a stopwatch and his/her own time cards as provided in the
kit. (Be sure to practice with it and know how to use the watch before
coming to the trials.) Using the pages supplied in this kit, laminate a
set of 7 time cards. For each part of the trial that is timed, hold up the
appropriate cards and be sure they are visible to the judge and the
questioning attorney to let them know how much time is left.
7) Announce recesses and adjournment of the trial. For example, if at
the end of closing arguments, the judge says, “I'm going to call a
recess while I consider the case and will have a decision in a few
minutes,” the bailiff should stand and says, “Court will be in recess: all
rise.” When the judge re-enters following a recess, announce “all
rise,” then “be seated” when the judge is seated.
8) The closing arguments are the final presentations by the attorneys.
Arguments are limited to 6 minutes for each side. The plaintiff is
allowed an additional 2 minutes to make a rebuttal argument. When
closing arguments are over, the judge will recess.
9) Time is measured in whole second increments.
10) Bailiffs should not stop the clock for objections unless otherwise
instructed to do so by the presiding judge. Some judges may advise the
bailiff to automatically stop and start the clock when certain events occur
(for example, when the judge asks for a response to an objection). Other
judges may instruct the bailiff to start and stop the clock during specific
questions or objections. And other judges may add examination time
upon request, instead of starting and stopping the clock. The bailiff
should meet with the judge at the beginning of the trial to discuss these
procedures, and the attorneys should be advised of the judge’s practice.
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BAILIFF’S TIME CARD NUMBERS*
Please duplicate these cards onto four 8 ½” x 11” sheets (one for
each number) and display them during attorney arguments and
statements. This helps them manage their time allocations.
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0
102

1/2
103

1
104

2
105

5
106

10
107

15
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TIME GUIDELINES FOR MOCK TRIALS
These time guidelines should be used by all classes and teams in preparing
their cases for trial. The team that plays the plaintiff should supply the bailiff
for each trial and shall be designated as the timekeeper during the trial. The
defense team shall provide their bailiff to serve as courtroom host and
secondary time keeper during the trial. Judges will be notified of these time
guidelines, and may choose to hold the students to them strictly. Whether
or not these time limitations are strictly enforced, the students' ability to
remain within these confines will be used as a scoring criterion on the score
sheets.
The Time Tracking Form on the next page should be copied by the bailiff
and brought to each trial so as to keep track of time used by each person in
the trial. (A sample has been provided as an example of what a form would
look like when used.)
(All times listed are for EACH team EXCEPT rebuttal argument)
PRETRIAL MOTION
OPENING STATEMENT
6 minutes
5 minutes
DIRECT EXAMINATION 24 total minutes for all witnesses, used as
teams see fit. (Includes Redirect)
CROSS-EXAMINATION
teams see fit.
CLOSING ARGUMENT
REBUTTAL ARGUMENT
(PLAINTIFF ONLY)
AUDIENCE RATER
CRITIQUES
20 total minutes for all witnesses, used as
6 minutes
2 minutes
(Suggested time for each is under five
minutes, at the judge’s discretion to lengthen if
necessary.)
With these guidelines, trials (including critiques) should be concluded in
approximately two hours. Because the trials may be scheduled back-to-back, and
due to the scoring evaluations, every effort should be made to adhere to these
guidelines.
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SAMPLE BAILIFF TIME TRACKING FORM
Round _______ Courtroom ____________
Judge _____________________________
Bailiff _____________________________
Rater ______________________________
Plaintiff Team Letter ______________
Rater ______________________________
Defense Team Letter _________________
Rater ______________________________
Pretrial Motion (Record time used)
_____ Plaintiff argument (4 minutes)
_____ Plaintiff rebuttal (2 minutes)
Plaintiff’s Case in Chief
Plaintiff Opening (5 minutes)
Plaintiff Witnesses Defense Cross
(24 minutes) (20 minutes)
Pretrial Motion (Record time used)
_____ Defense argument (4 minutes)
_____ Defense rebuttal (2 minutes)
Defense’s Case in Chief
Defense Opening (5 minutes)
Defense Witnesses Plaintiff Cross
(24 minutes) (20 minutes)
Direct ______ _____ Cross Direct ______ _____ Cross
Witness
________________________
Witness
________________________
Redirect ______ _____ Re-cross Redirect ______ _____ Re-cross
Direct ______ _____ Cross Direct ______ _____ Cross
Witness
________________________
Witness
________________________
Redirect ______ _____ Re-cross Redirect ______ _____ Re-cross
Direct ______ _____ Cross Direct ______ _____ Cross
Witness
________________________
Witness
________________________
Redirect ______ _____ Re-cross Redirect ______ _____ Re-cross
Direct ______ _____ Cross Direct ______ _____ Cross
Witness
________________________
Witness
________________________
Redirect ______ _____ Re-cross Redirect ______ _____ Re-cross
Plaintiff Closing (6 minute argument;
2 minute rebuttal)
__________ Closing ________ Rebuttal
Defense Closing (6 minutes)
__________ Closing (no rebuttal allowed)
110

COURTROOM HOST RESPONSIBILITIES
Each team is expected to provide a courtroom host for their
courtroom. At the end of the trial, the two hosts double check the
room and are responsible for its final cleanliness. Their job is really
easy if they are vigilant on the following items.
Any room that is not left clean will result in sanctions against each
team, which may include loss of points for the round.
‣ Maintain respectful behavior of courtroom spectators. Quietly warn those
who are loud. If they must communicate in some way, they may quietly
and very discreetly pass notes to a person sitting next to them (not
across the room, for instance). If the disruption continues, ask them to
take their conversation outside the courtroom, before the judge asks
them!
‣ Do not allow any food or drink (this includes pop cans and cups of coffee)
to be brought into the courtroom.
‣ Fill the water jugs from a fountain in the hall. Water and cups will be
made available to the courtroom host. As a courtesy, fill the water jug if
less than half full after your trial for next trial.
‣ Be responsible for locating the Mock Trial Director or designated staff
member at the judge’s request for dispute resolutions during the trial.
Go to the Mock Trial Competition Information Table, and the convener will
be found to help you.
‣ Do not allow anyone to move any courtroom furniture or furniture from
the halls. Each room has seating allowable by law and fire codes.
Courthouse staff get really upset when they find the rooms are not as
they were left and then have to rearrange them in order to resume trials
on the Monday after our event. Respect of their environment ensures
their continued support of our event.
‣ Remove all used paper cups from defense and prosecution tables.
Remove paper from the wastebasket in the courtroom. Place litter in the
large trash container located in the hallway.
‣ Stand by the courtroom door and monitor it to ensure quiet exits and
entrances into the courtroom during the trial.
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SAMPLE PICTURE ROSTER
Team X Defense Roster
Attorney Attorney Attorney
____________ ____________ ____________
(name) (name) (name)
Witness #1 Witness #2 Witness #3 Witness #4
____________ ____________ ____________ ____________
(name) (name) (name) (name)
112

GUIDELINES FOR ATTORNEY COACHES
Students and teachers benefit immensely from attorney practical experience
and expertise. The involvement of trial attorneys in the mock trial program
raises the bar of performance for teams. As role models to impressionable
students, their involvement also improves the chances that students will
form a positive opinion of legal professionals and the legal system.
Attorney coaches are asked to observe these guidelines in order to serve the
students and teacher advisors in the most effective manner possible. As
much as attorneys may want to help the students, they need to remember
that students will develop a better understanding of the case and learn more
from the experience if the attorney coaches do not dominate the student’s
preparation for the mock trial. Attorney coaches should point students in the
right direction, but allow them to do the research. The preparation phase of
the contest is intended to be a cooperative effort of the students, teacher
and attorney coaches.
The attorney coach is best described as the constructive observer listening,
suggesting, guiding, and demonstrating techniques to the team. Sessions
with the mock trial team should be devoted to the following:
Answering questions that students may have concerning general trial
practices.
Explaining the reasons for the sequence of events/procedures found in a
trial.
Listening to the students’ approach to the assigned case, then provide
guidance.
Emphasizing key points, such as the elements to be proved, and the
relevance and importance of available legal authority.
Demonstrating proper questioning techniques by the student attorneys
Demonstrating the delivery of sound testimony by the witnesses.
Encouraging students to do as much of their own preparation as possible.
Attorney coaches should not prepare opening statements, closing
statements or questions for the students.
Explaining complicated legal terms and procedures if necessary.
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GUIDELINES FOR JUDGES
1. Judges are asked to decide the pretrial motion. The judge may also comment
on the merits of the case, i.e. how the facts and applicable law might be
decided in an actual bench trial. The audience raters decide which team
made the best overall team presentation. When the trial is over, the judge
may wish to recess briefly in order to consider these decisions.
2. When commenting on the merits of the case, the judge should consider only
the evidence presented, the statutes or case authority provided in the fact
pattern, the stipulated facts, and the legal arguments of the attorneys. No
other cases, statutes, etc., may be referred to by counsel during the trial.
After the trial, the judge may explain what facts and legal principles he or
she would consider particularly important in making a decision.
3. It is important to be familiar with the general summary of the case to be
presented by the parties. This will assist you in making decisions on
relevance objections. You should not, however, rule on whether a witness
has testified consistently with a particular statement in a declaration.
4. The witness statements contained in the packet should be viewed as signed
affidavits. Witnesses can be impeached if they contradict the material
contained in their witness affidavits. This rule is designed to limit, not
eliminate, the need for reasonable inference by providing a familiar
courtroom procedure.
5. Use only the Mock Trial Simplified Rules of Evidence and Competition Rules.
The judge should encourage the attorneys to demonstrate their knowledge of
the rules by allowing argument on objections when appropriate.
6. The judge may not interrupt an attorney's opening statement or closing
argument to ask questions. The judge may not question the witnesses.
7. At the conclusion of the trial, the judge may comment on the case and its
merits, then begins the comments, critiques and suggestions for
improvements to the teams, including appropriate praise. Ask raters to
make brief comments. At the district competition, comments should be
limited to 5 minutes per rater. At the state level, total oral comments, by
judge and raters, is limited to 10 minutes, and is timed by the bailiff.
Students need time between rounds to relax and prepare.
Please keep your comments short, positive and constructive. Detailed
suggestions for change in a team’s presentation are not helpful at the state
competition. Positive reinforcement of both sides helps ensure a beneficial
educational experience for everyone
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8. If it is necessary to call a recess during the trial, please be sure to remind all
participants that they are not to communicate with anyone who is not a
member of their own team. Attorneys and teachers may not be consulted.
9. During the trial, the judge may be asked to stop the clock during
examination of witnesses, or to add to a team’s total examination time.
Generally, the judge should keep the trial within the prescribed time limits;
this encourages teams to be prepared and efficient in their use of time.
However, the judge should consider whether to stop the clock/add time when
(a) ruling on an objection calls for a response and extended argument, or (b)
it appears that a witness or attorney is deliberately attempting, through
evasiveness or stalling tactics, to waste another team’s examination time.
The bailiff and judge will review how to handle time issues, and advise the
teams before trial begins.
ORDER OF PRE-TRIAL MOTION EVENTS
1. The judge asks the moving party to summarize the arguments made in the
motion. The moving party has four minutes. The judge may interrupt to ask
clarifying questions. The time spent answering the judge's questions is not
part of the four minute time limit.
2. The judge asks the non-moving party to summarize arguments made in its
opposition. The non-moving party has four minutes. The judge may
interrupt to ask clarifying questions. The time spent answering the judge's
questions is not part of the four minute time limit.
3. The judge offers the moving party two minutes of rebuttal time. The rebuttal
time is used to counter the opponent's arguments. It is not to be used to
raise new issues. The same attorney presents both the arguments and the
rebuttal.
4. The judge offers the non-moving party two minutes of rebuttal time. The
rebuttal time is used to counter the opponent's arguments. It is not to be
used to raise new issues. The same attorney presents both the arguments
and the rebuttal.
5. At the end of the oral arguments, the judge will rule on the motion.
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CONDUCTING THE TRIAL
1. Normal courtroom procedure and decorum should be followed during the
trial. If a mistake does occur, the judge should usually not interrupt the trial
to explain the proper procedure if this can wait until the end of the trial.
Judges should realize, however, that inexperience is usually the cause of
student errors.
2. Judges should feel free to interrupt attorneys as they would in their own
courtroom. Judges may not, however, interrupt opening statement or
closing argument to ask questions, or question witnesses. Some students,
however, will become more nervous when faced with a direct question from
the judge. Further, interruptions from judges should be considered when
deciding whether to give the students more time.
3. Students have been taught the Simplified Rules of Evidence and are expected
to make some objections. Judges should encourage the attorneys to
demonstrate their knowledge of the rules, by allowing argument on
objections when appropriate. Judges may immediately explain their rulings
on objections, or may wait until the conclusion of trial.
4. The trial should last at most between two and two and a half hours;
therefore, the judge should help it proceed efficiently. Guidelines for the
length of each segment of the trial are provided. Barring an unusual number
of objections or lengthy arguments on them, the time limits set forth should
be sufficient to allow for objections. The time limits are purposely short.
This is because part of the purpose of the mock trial competition is to get the
students to focus upon the salient facts and issues. Teams should have
rehearsed sufficiently to make their presentations within the allotted time.
Judges may, in their discretion, occasionally add time when a team has
deliberately used obstructive tactics to waste another team’s time for
examination of witnesses. Otherwise, judges should hold students to the
time guidelines provided.
5. Any Statement of Facts and Stipulations in the case are agreed to by both
sides. Each witness has been provided an affidavit which both sides have.
These affidavits may be used to impeach during cross-examination.
6. Only one attorney may question each witness, and only the attorney
questioning that witness may raise objections.
7. The same attorney may NOT make both the opening statement and the
closing argument for his or her side of the case.
116

SUGGESTIONS FOR JUDGES AND AUDIENCE
RATERS
General Parameters:
The trial should last two to two and a half hours. At the district level, oral critiques
should be limited to 5 minutes per rater. At the state level, total time for oral
comments by raters will be limited to 10 minutes, and will be timed by the bailiff.
The close timing of competition rounds does not allow for deviations from these
rules. One late trial can hold up the entire schedule. Judges should discourage
excessive objections and limit recesses.
Pre-Trial Conference:
Ask each team if it is ready for trial. Ensure they’ve supplied a Team Roster to
each audience rater and the judge (a total of four copies). Teams are to be
identified by team letter only.
If video recorders are present, ask an attorney from each team to consult their
team of any objection they would have to the trial being videotaped. If a team
objects, the videotape may not be made.
Remind all present that observers connected to other teams in competition are
not allowed to view the proceedings in this courtroom. Only observers
connected to the teams in this round are permitted to observe the trial.
Remind all present that the mock trial rules prohibit any communication
between team members and observers, teachers, or coaches from this point to
the end of the trial. This includes any recesses that may be called. Also, no
team member should leave the courtroom without the permission of the court.
Before the Round:
At the orientation meeting prior to the trial, score sheets and pens will be
provided for each rater. Please use the pen provided and write legibly.
Before the trial, raters should write the round number and team letters (for
example, T vs. Q) on the top right corner of all comment sheets. Raters need to
fill in the score sheets with names provided on the Team Rosters, and sign their
name to each sheet. Make any written comments on the separate sheet
provided, not on the score sheet.
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During the Round:
Keep up with scoring; it’s impossible to do it all at the end of the trial. Raters
must also vote for best witness and attorney. Raters are asked to penalize
attorneys who are obviously over-objecting or using unfair extrapolations.
Raters should also reduce the score of any witness who is successfully
impeached, or shown to have gone beyond the scope of the case or their written
statement. See Explanation of Scoring System under Witnesses for details on
this process.
Score sheets will be collected immediately after the trial by mock trial staff. Do
not distribute comment sheets directly to the teams. We reproduce these for
distribution to teams after the competition.
Scoring, rater critiques, and the judge’s ruling/comments should take no more
than 20 minutes at the district level, and ten minutes at the state competition.
Raters are encouraged to be available to students after the formal critique
period to provide individual comments, and to make written comments on the
form provided. Please remember that students may need to rest and prepare
before the next round, and that the courtroom may be needed for other trials.
The judge should decide whether to stop the clock, or to add time, using the
guidelines discussed the in the mock trial rules. If the bailiff is told that the
clock should be stopped during portions of the trial, then the judge should make
sure the bailiff is stopping and restarting the clock correctly. Please remember
the time limits are purposely short, so students will focus on salient facts and
rounds will run on time.
Post-Trial Comments:
When the trial is over, the judge may announce any decision on the merits of the
case and begin the critique session while the raters are completing their score
sheets. Once those have been collected, the judge should turn the critiquing over
to the raters.
At the district level, provide about five minutes each for comment from each rater,
and from the judge. At the state level, provide about 2-3 minutes each. The raters
may assign areas of the trial to which each can focus their oral critique; another
approach could be to assign one rater to the attorney critiques and another rater to
witness critiques. Or raters can agree to cover everyone in the trial, knowing they’ll
pick up different aspects in their comments. In either case, each score sheet needs
to be completely filled out by each individual rater, including a vote for the best
witness and best attorney in the trial. The bailiff will time rater comments, to
assure that raters stay within the allotted time.
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For many students, critiques are the most valuable part of the competition. Brief
general comments are a good way to preface the critique. Students may see
comments that are too general as unhelpful or simplistic; so keep most comments
specific and follow them with suggestion(s) on how to improve. Highly competent
teams will expect specific comments and insightful observations; whereas, less
experienced or less polished teams may require gentler handling. Humor is often
helpful as a tension reliever when used appropriately. Please remember that
detailed suggestions for changes in a team’s presentation are not helpful at the
state competition.
One of most difficult concepts to teach students is the proper use of leading versus
open-ended questions. (In contrast, the presentation of opening statements and
closing arguments is much like debate and playing a witness role is much like
drama.) It is not surprising therefore that many possible “form of the question”
objections are missed. In order to make the scoring as uniform as possible, scorers
should evaluate form of the question issues. Thus, a direct team consisting largely
of leading questions should be marked down even if no objections are made,
because the questioner has not demonstrated knowledge of the rules, similarly, in
such a case, the opposing team should be marked down because they failed to
object.
After Each Trial/Round:
Important! A mock trial score runner will pick up the score sheets right after
the trial. Be sure to fill out all areas on the score sheet including opening and
closing statements and best witness and best attorney votes. Also be sure to
vote on which team did the best - plaintiff or defense. The runners will leave
with just the score sheets, so you must take the comment sheets to the
orientation room unless otherwise designated. Be sure to mark you name, the
team letters and the trial on each comment sheet. Thanks!
Raters must turn in comment sheets to the orientation room after using them
to provide feedback to each team in the round.
Raters and judges are requested to fill out the evaluation form on their mock
trial experience and turn it in before they leave to the orientation room in the
box provided. We use your feedback to improve future competitions.
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EXPLANATION OF THE SCORING SYSTEM
FOR AUDIENCE RATERS
RATING SCALE:
Individual participants are rated on a scale of 1 – 10.
The audience rater scores individual and team performances.
Scoring of the presentations should be independent of the case’s
legal merits.
Scores should not be based on the judge’s comments about how the case
might be decided in a real trial.
Please note: After score sheets are turned in, the points awarded for the
pre-trial motion and closing arguments will be tripled and the points
awarded for the opening statement will be doubled. This is in recognition of
the extra work that goes into these important phases of the trial.
SCORING:
Please do not award fractional points, a range of points or a score of “0”.
Make sure to score all phases of the trial, including the pretrial motion,
opening statements and closing arguments. the pretrial and opening
statements near the top left of the score sheet and the closing statement
in the bottom corner.
Be sure to vote on best attorney and best witness in the trial. Please
identify the student by name and team letter, rather than character
name.
When a witness has been successfully impeached with a prior inconsistent
statement, the witness' overall score should be reduced, and the crossexaminer’s
score should be increased.
Scores from 1 to 4 are extremely rare. Assume each student starts at a 7
and stays there or works his/her way up or down. Students earning a
seven or more are doing a lot of things right. 8 and 9 denote great
performances and 10 is for outstanding performances. Review and use
the two rubrics included in your rater packet to guide your scoring
process.
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Important! When awarding points, please do not artificially lower
points to a team in “fairness” to a weaker opponent OR artificially
raise points to a team in “fairness” to a
stronger opponent. The points play a very important role in the
competition. You may inadvertently affect a team’s placement by doing
so.
INTRODUCTIONS: Teams often introduce themselves to the judge and
raters, and make clarifying motions and comments to the judge before the
trial begins. Except for the mandatory pre-trial motion, these events are not
part of the trial, and should NOT influence your scoring decisions.
THE OPENING AND CLOSING STATEMENTS should provide a clear and
concise case description and summarize the important points in an organized
and well-reasoned fashion.
DIRECT EXAMINATION should use questions requiring straightforward
answers. Questions should be properly phrased, exhibit an understanding of
trial procedure, and elicit key info.
CROSS-EXAMINATION should elicit any helpful information for the crossexaminer’s
theory of the case, should bring out any contradictions in the
witness’ testimony and should demonstrate the ability to adapt to the needs
presented by the tone and content of the witness’ testimony. Attorneys
should demonstrate their knowledge of the rules of evidence and trial
procedures by making appropriate objections during the examination of
witnesses, or by appropriately responding to opposing counsel’s objections.
Objections and responses should be timely, properly phrased, and should
succinctly state their legal basis. An attorney’s score during an examination
should include his or her performance concerning objections. [Note:
Objections are not permitted during opening statements and closing
arguments].
WITNESSES should present believable characterizations and convincing
testimony. They should also demonstrate careful preparation on direct
examination and the ability to field questions on cross-examination with
poise. A witness should not be unrealistically evasive on cross-examination
or seem to be deliberately causing delay. If a witness has engaged in
“unfair extrapolation” for tactical advantage, the cross-examiner’s remedy is
to impeach with the prior inconsistent statement or omission. Both the
attorney and witness’ scores should reflect a successful impeachment.
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RUBRIC FOR SCORING WITNESS PERFORMANCE
Point(s) Performance Criteria For Evaluating Student Performance
1 – 2 Not effective
3 – 4 Fair
5 – 6 Good
7 – 8 Excellent
9 – 10 Outstanding
Unsure of self, illogical, uninformed, not prepared, speaks
incoherently, definitely ineffective in communication. Steps
out of role numerous times. Unable to respond to some
questions due to lack of preparation or knowledge.
Minimally informed and prepared. Performance is passable,
but the role lacks depth. Communication lacks clarity and
conviction.
May step out of role or act at times in a way inconsistent with
their role. Unprepared resulting in an inability to answer a
question.
Fairly solid testimony and shows a near complete mastery of
the role. Can perform outside the script but does so with less
confidence. Answers are adequate, but seem stilted with little
or no hint of character development. Clear communication
isn’t a problem, but could be more fluent and persuasive.
Shows confusion or is at a loss for words when confronted
with an unexpected question.
*Assume each student starts at a 7 and works his/her way up
or down.
Students earning a seven or more are doing a lot of things
right.
Fits believably into the role and is persuasive. Communication
is clear and understandable. Has creatively developed and
mastered the role. Most elements of testimony are well done.
May become temporarily flustered when confronted with an
unexpected question, but shows an ability to recover.
Performs well outside the script. May appear too wellprepared,
so that the words seem memorized or too
automatic. Believable witness with potential.
Possesses superior qualities that set this character apart from
the rest. It may be pizazz, a total immersion in the character,
or a sense that this person’s skill under testimony could alter
the course of the trial. Character is totally believable and
persuasive. Answers questions convincingly without a ‘canned
feel’. Thinks well on feet and maintains poise under duress.
Never is unsure of details during testimony or is caught in an
inaccuracy.
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Rubric for Scoring Attorney Performance
Point(s) Performance Criteria For Evaluating Student Performance
1 – 2 Not effective Unsure of self, illogical, uninformed, not prepared, speaks
incoherently, definitely ineffective in communication.
3 – 4 Fair Minimally informed and prepared. Performance is just
passable, but lacks depth, knowledge, logical thinking and
understanding of case materials. Communication lacks clarity
and conviction.
5 – 6 Good Solid performance, but still lacking. Can perform outside the
script but with less confidence. Logic and organization
adequate. Grasps major aspects of the case, but without
mastery. Communication is clear and understandable.
Speaking is clear and understandable, but could be more
fluent and persuasive. Logical thought is lacking at times.
Doesn’t use time as effectively as possible.
*Assume each student starts at a 7 and works his/her way up
or down.
Students earning a seven or more are doing a lot of things
right.
7 – 8 Excellent Generally fluent, persuasive, clear, and understandable.
Shows skill in organizing materials and thoughts and exhibits
knowledge of the case and materials. Works well under
predictable circumstances, but may become flustered or lose
train of thought when confronted with the unexpected, but
shows ability to recover. Uses time effectively and
demonstrates logical thinking most of the time. Makes and
responds to objections appropriately.
9 - 10 Outstanding Superior qualities – articulate, poised, confident. Follows
through on weak points of the opposing team. Thinks well on
feet, demonstrates logical thinking, maintains poise under
duress and questioning by judge. Sorts out essential from the
non-essential and uses time effectively. Demonstrates unique
ability to utilize all resources to emphasize vital points of the
trial. Displays a personal style that supports the role rather
than detracts from the trial. Makes and responds to
objections skillfully.
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MT SAMPLE SCORESHEET
(see www.youthandgovernment.org to download the scoresheet)
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AN EXPLANATION OF SCORING
By Judge Robert Lewis, Program Chair
1. During a trial, each rater completes a ballot, scoring a team member’s
performance on individual events (for example, opening statement). The
rater also provides a tie-breaker, expressing his or her opinion of which team
overall performed best during the trial. The rater does not add the scores.
2. The tournament’s scoring staff doubles the score provided by the rater for
opening statement, and triples the scores provided by the rater for the pretrial
motion and for closing argument. The tournament staff then totals the
scores for each team on that individual ballot.
3. A team wins a rater’s ballot during a trial by receiving a higher total score on
that ballot than the opposing team’s score on that ballot. If the teams have
identical point totals on the ballot, then the tie breaker on that ballot is used
to determine the winner. If the scores are not identical, then the tie breaker
is not considered.
4. A team wins a trial by winning the majority of the rater ballots for that trial.
Typically, when there are three raters for a trial, a team wins the trial by
taking 2 or 3 of the ballots.
5. At the conclusion of the competition, the teams are first ranked according to
their record of trial wins and losses. For example, if each team competed in
four trials, then a team with a 4-0 trial win-loss record would rank above any
team that had a 3-1 trial win-loss record. This would be true even if a lower
ranked team had more total ballots, or more total points.
6. If there are two or more teams with identical trial win-loss records, then
these teams are next ranked according to the total number of rater ballots
they won in the competition. A team with a 3-1 trial win-loss record and 9
total ballots in the tournament would rank ahead of a 3-1 team with 8
ballots. This would be true even if the lower ranked team had more total
points.
7. Finally, if two or more teams have identical trial win-loss records, and have
taken an identical number of rater ballots overall, then these teams are next
ranked according to their total point score in the tournament. A 3-1 team
with 8 ballots and a total point score of 800 would rank ahead of a 3-1 team
with 8 ballots and 799 total points.
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AN EXPLANATION OF POWER MATCHING
By Rick Nagel
The scoring of a mock trial competition is inherently subjective despite
dedicated attempts to make it less so.
Power matching is less an attempt to eliminate this subjectivity than
an effort to achieve two goals: fairly matching opponents, after the
random pairings in the first round, by pairing teams with the same
won-loss records (though this is not always possible); and minimizing
the influence of the aberrant rater by placing more emphasis on
winning the ballot of each of the three raters (i.e., being scored the
winner by each individual rater), than on aggregate point totals
(having the most total points when all three ballots are added
together).
To illustrate the power matching system at work, let’s look at the
progress of Washington’s state champion, Franklin High School, at the
2001 National Mock Trial Championships in Omaha, Nebraska.
The pairings in Round 1 were determined by random draw, and
Washington’s defense went up against Georgia’s prosecution. In each
round, three attorney judges score the competition, and the team that
gets the higher score is said to have won that judge’s “ballot.”
Washington’s defense team won all three ballots against Georgia. It
advanced to Round 2 with a record of 1-0. The power matching
system dictates that it would play another team that had won its first
round match. The 1-0 team it faced was determined by the ballots
and point scores of the other teams in the 1-0 bracket (e.g., a 1-0
team with three ballots faced a 1-0 team with two ballots, or a team
with two ballots faced another team with two ballots but fewer points).
Every effort is made to have teams play others in their won-loss
bracket, and to have the team with the most ballots (the second
consideration after won-loss record) or points (the third consideration)
would play the team with the fewest ballots or points that was also in
the 1-0 bracket.
Washington’s defense faced Illinois in the second round and won,
garnering two of the three ballots, resulting in its prosecution meeting
California’s defense in the Round 3 Winners’ Bracket. Again
Washington prevailed with two of the three ballots, and took its 3-0
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ecord against Texas in Round 4. For the third time, its Defense went.
Again, Washington won two of the three ballots, and was 4-0 in the
competition with only the Championship Round left.
Three teams were undefeated in the first four rounds of competition-
Washington, Iowa, and New Jersey. Washington had the most points,
but only nine total ballots
of the 12 possible (four rounds times three scorers in each round)
Iowa and New Jersey had 10. Each of the three ballots Washington
lost was by a single point. Total ballots are the first tiebreaker. Had
Washington won ten ballots, its greater point total (when teams have
an identical number of ballots, total points break a tie within the
particular won-loss bracket) would have put it in the championship
against New Jersey, as of the three 4-0 teams, Washington (and New
Jersey) had more points than Iowa did. It would have been altogether
possible that Washington’s defense would have competed again, and
that would have meant that the prosecution would have participated in
only one match of the five.
A “pure” power matching system could result in a team having its
prosecution or defense going four or five times and one side not
competing at all (imagine the fatigue experienced by the students on
whom the competitive burden exclusively falls, and the disappointment
of those who had prepared so extensively and never got to compete).
This was felt to be too high a price to pay for power-matching purity,
thus the National Mock Trial Championship compromise that requires
that each side have the opportunity to compete in at least one of the
four rounds.
Prior to this year, our state guaranteed that each side- prosecution (or
plaintiff) and defense performed twice. This resulted in a less pure
power matching system, where teams will more often face opponents
with better or worse won-loss records than theirs, but allowed for
equalizing the opportunities for students to perform. This year we
have decided to experiment using the national rule, which means that
for a few teams (with 44 teams, only 4 had to play one side three
times, though many more had to play one or the other side twice
consecutively ), either the prosecution (plaintiff) or defense will
perform only once. This is the price of an effort to gain a more reliable
placement of teams and the two best teams competing in the
championship round.
Like democracy, power matching is not perfect; but no one has
devised a better, fairer, more reliable scoring system
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128

DIVIDER

DIVIDER

MOCK TRIAL COMPETITION RULES
The annual Mock Trial Competition is governed by the rules set forth below.
These rules are designed to ensure excellence in presentation and fairness in
scoring all trials and tournaments.
These rules are supplemented by any specific stipulations and comments provided
in the current case. These rules are also supplemented by the Simplified Rules of
Evidence and the following sections of the “Preparing for Competition” section of
the kit: (a) Trial Procedures; (b) Trial Sequence and Information for Student
Participants; (c) Bailiff/Clerk Responsibilities; (d) Time Guidelines for Mock Trials;
(e) Guidelines for Judges; (f) Order of Pre-Trial Motions; (g) Conducting the Trial;
(h) Suggestions for Judges and Audience Raters; and (i) Explanation of the Scoring
Systems for Audience Raters (with scoring rubrics and score sheet).
These materials should be interpreted to be consistent with one another. In the
event of an actual conflict between different sections of the Mock Trial materials,
the following order of precedence should be used : (1) current case stipulations and
comments; (2) Simplified Rules of Evidence; (3) Mock Trial Competition Rules; (4)
Preparing for Competition – Guidelines/Responsibilities sections; and (5) Preparing
for Competition - Suggestions/Information sections.
TEAM COMPOSITION
1. All teams must consist of students currently enrolled in grades 9-12.
2. All students on a team must be enrolled in the same school district. If a
school district has more than one high school involved with the mock trial
program, students are expected to be enrolled with the team from their
primary high school. Teams may also be formed from students enrolled at
the same private high school. A team may also be formed from pre-existing
members of a youth group. The youth group must have been in existence
for a minimum of three years and have a constitution or bylaws. Home
school participants and other community groups may also participate and
should contact the state office.
Deviations from these requirements may be made on a case-by-case basis.
For example, new teams from different schools trying to field enough
students may request to join forces for a period of time. In considering
whether to make an exception, the state office will consider both the short
term interest of students in participation, and the long term development of
teams.
3. Teams will be composed of a minimum of 7 students and a maximum of 15
students.
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The following roles are defined as:
2 attorneys for pre-trial motion (Can be doubled up as a plaintiff or defense attorney)
2 attorneys for plaintiff 2 attorneys for defendant
4 witnesses for plaintiff 4 witnesses for defendant
1 court bailiff (If the bailiff is doubled up in a witness role, s/he may not play
a witness for the plaintiff side, because s/he is needed as bailiff.)
Each team must use a minimum of two and a maximum of three attorneys in
each trial. Four different students must be used to play the four witnesses.
Each team should try to designate an alternate for each position. Schools
may enter more than one team in the competition. However, if a school
enters more than one team, the teams must have no members in common.
4. Teams are expected to be prepared to present both sides of the case
(Plaintiff and Defense), and will present each side at least once during the
competition. The side that each team will represent will be determined at the
trial site just prior to the beginning of the trial.
5. All student attorneys must participate with case presentation as follows:
a) Each attorney must take part in the direct examination of at least one
witness and the cross-examination of at least one witness. However,
on a team with three attorneys representing a side (plaintiff or
defense), an attorney on that side may be allowed to participate solely
in the pre-trial motion and is not obligated to participate in the rest of
the trial. This exception is made only for the pre-trial motion. The
attorney may participate in the rest of the trial, but then must adhere
to the rule of examining one witness per side.
b) The attorney giving the opening statement will not be allowed to give
the closing argument.
c) Objections will be permitted by the direct or cross-examining attorney
only.
6. Each party must call all witnesses included in the kit for its side of the case.
TRIAL PREPARATION – GENERAL CONSIDERATIONS
7. All participants are expected to display proper courtroom decorum, good
sportsmanlike conduct and appearance appropriate for the part they are to
play during the trial.
8. Students may read other cases, materials, articles, etc., in preparation for
the mock trial. They may, however, only cite the materials given in this
official Mock Trial Manual.
9. A student portraying a witness may dress in appropriate court attire
consistent with the character being portrayed. However, no uniforms or
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props are allowed. Witness roles can be played by either males or females
regardless of the name of the character in the case materials.
10. During the trial, witnesses may not be permitted to use notes or read from
any writing unless questioned or cross-examined about a witness statement.
11. Attorneys may use notes in presenting their cases. However, their scores
may be lowered if they
a) mostly read their opening statement or closing argument and/or
b) use impeached statements in their closing argument.
TRIAL PREPARATION -- MATERIALS
12. Each witness statement in the case must be considered a sworn affidavit or
declaration of that witness. To the extent any statements conflict, that may
be brought out in closing argument or on cross-examination.
13. Witness Testimony
a. Each witness is bound by the facts as contained in that witness'
statement(s) and any related documentation. A witness is not bound by
the facts as contained in the statements of other witnesses.
b. On direct examination, a witness may testify to limited additional facts
provided the new information is merely incidental and is supported by
reasonable inference from the witness' statement.
c. On cross-examination, if an attorney asks for previously unstated
information, the witness may testify to limited additional facts provided
(a) the answer is directly responsive to the question, (b) any new facts
are consistent with the witness' statement, and (c) the new facts do not
materially affect the witness' testimony.
d. If a witness testifies to facts contrary to those contained in his or her
statement, the sole remedy is for the cross-examiner to impeach that
witness' credibility by questioning the witness regarding the contradiction.
14. Exhibits
a. The only exhibits which may be introduced into evidence during the trial
are the original exhibits provided in this official Mock Trial manual.
b. The exhibits provided with the case, or portions of an exhibit, may be
enlarged up to 23” by 29”, and displayed on standard white poster board.
The enlargements may only be in black and white, even if the original
exhibit is in color. Exhibits may be enlarged either by direct copying or, if
the exhibit is a written document, by retyping the enlarged section of the
exhibit in a similar black font.
c. No exhibits or visual aids other than those provided with the case may be
brought to court. With the judge’s permission, the original exhibits may
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e published to the jury during a witness’ testimony. Otherwise,
materials and copies of materials may not be handed to the jury.
d. While testifying, witnesses are allowed to make sketches or diagrams,
consistent with their statements, to illustrate their testimony. These
materials are not to be marked and do not become exhibits.
e. Simple charts outlining evidence or law may be used for closing
arguments or, in the discretion of the judge, opening statements.
f. In general, exhibits, charts and visual aids may not be used during the
pre-trial motion. If the pre-trial motion requests the suppression of an
exhibit or a portion of the statement of a witness, then those materials
may be presented to the judge, in original form, during argument of the
motion.
g. The use of any electronic devices during any portion of the trial is
prohibited.
15.Each problem includes a pre-trial motion. No other motions shall be made
during the course of the mock trial.
16.Unless otherwise provided for in the case materials, stipulations may be
presented through the testimony of any witness.
PRETRIAL
17.Teams are expected to be present in their assigned courtroom fifteen minutes
before the scheduled starting time of their trial. Teams coming from a prior trial
that went overtime will not be penalized.
18.Whenever possible, the starting time of any trial should not be delayed for
longer than 5 minutes. Incomplete teams will have to begin without their other
members or with alternates. Teams without a sufficient number of participants
to start the trial will forfeit the match. Teams coming from a prior trial that
went overtime will not be penalized.
19.Teams will meet with the judges and attorney-coaches five minutes prior to the
trial to ensure rules of evidence and procedures are uniformly interpreted. In
addition, the side each team will represent will be confirmed. The decisions of
the judge with regard to pre-trial matters are final.
20.Team members may briefly introduce themselves to the judge and raters,
indicating a member’s name and the witness part he or she will play, without
further description of the character. An attorney team member should not
describe the specific parts of the trial they will present. Introductions and
clarifying questions and comments should be kept short, are not part of the trial,
and should not be considered in scoring decisions.
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21.Unless otherwise directed by the judge, the teams should follow the courtroom
layout described in the kit materials. The plaintiff’s attorneys sit at the table
closest to the jury (raters) box.
22.The presentation of the pre-trial motion contained in the case materials is
governed by “Preparing for Competition – Order of Pre-Trial Motion Events.”
TRIAL RULES
23.The trial proceedings are governed by the Mock Trial Simplified Rules of
Evidence. Other, more complex rules or objections may not be raised in the
trial. Objections to opening statements and closing arguments are not
permitted. Attorneys may not make “offers of proof”, stating objections that
would have been made, after opening statements and closing arguments.
24.During the trial presentation, teacher/advisers, attorney/coaches and all other
observers may not talk to, signal, or otherwise communicate with, or in any way
coach, their teams. This rule applies to any recesses during the trial.
25.Witnesses are not to be excluded during the mock trial.
26.Witnesses should not be “tendered” or “proffered” as expert witnesses.
Attorneys should ask questions designed to demonstrate the training and
experience that qualifies the witness to give expert opinions. Opposing counsel
may object that particular opinions are outside the scope of the expertise of a
witness, or make other objections allowed by the case materials and the
Simplified Rules of Evidence
27.Attorneys are not allowed to question (voir dire) witnesses in aid of objections.
28.To permit judges to hear and see better, attorneys should stand during opening
and closing statements, direct and cross-examinations and all objections.
Without permission, attorneys shall not leave the podium or other areas
designated by the judge for presentation.
29.In order to deter unfair extrapolations on redirect examination, re-cross
examination is permitted. The questioning must be within the scope of the
redirect. Re-cross time is included in a team’s total cross-examination time.
30.Attorneys may request bench conferences with the judge to clear up or protest a
significant procedural, mock trial rule violation or factual questions. It is the
responsibility of the attorney to state the page and rule number in question. One
representative from each team should be present for all bench conferences. All
disputes must be given to the judge before the trial’s end and before the
judge and raters recess to discuss the trial. The decision of the judge is final.
Students are advised not to overuse this procedure.
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JUDGES
31.Presiding judges for mock trials may include sitting or retired trial and appellate
judges, and members of the Washington State Bar Association.
32.All judges will receive the Guidelines for Judges, the Simplified Rules of Evidence
and Procedure, a summary of the factual background, and any legal materials
provided to students to argue the pretrial motion. Judges will not necessarily
receive the witness affidavits and documentary evidence.
33.Presiding judges are asked to conduct the trial according to mock trial
procedures and to make a decision on the merits of the pre-trial motion. The
judge may also comment on the factual and legal merits of the case at the
conclusion of the trial.
34.A judge may not interrupt an attorney's opening statement or closing argument
to ask questions. The judge may not question the witnesses.
35.The decisions of the judge with regard to rules, challenges and all other matters
are final. However, judges are not involved with, and may not rule upon,
scoring decisions. If a judge is also separately serving as a member of the
scoring panel, he/she should not announce scoring decisions, or attempt to
influence the decisions of other panel members.
RATERS AND SCORING
36.The decision on team scores is made by a scoring panel consisting of at least
two, and preferably three, raters who are attorney members of the Washington
State Bar. If only two raters are available, the trial judge may be asked to
serve as the third member of the rating panel.
37.Raters score individual and team performances. Each rater fills out an individual
ballot, and raters should not consult with one another during this process. The
judge is not involved in performance scoring decisions. Teams should not ask
judges to rule that an event during the trial should be assigned a particular
score on rater ballots.
38.The criteria for scoring is discussed in Preparing for Competition -- Explanation
of the Scoring Systems for Audience Raters (with scoring rubrics and score
sheet). Raters should be careful to distinguish between rulings on the merits of
the case and judging of the presentations. It is to be expected that there will be
some differences among judges as to rulings on motions or objections. Such
differences merely reflect reality and should not affect scoring, which is intended
to measure how the students respond to a ruling, not what ruling was obtained.
The rules, scoring rubrics, and score sheets are designed to further that goal.
39.NO COMPLETED SCORING SHEETS ARE TO BE VIEWED BY ANY TEAM MEMBER
OR ANY OTHER PERSON DURING THE COMPETITION, in compliance with the
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educational goals of the Mock Trial program. These are to be returned to the
tournament staff after the round has been concluded and the winning team
recorded. Score and comment sheets for a team will be copied and distributed
to that team’s coach after the competition is completed.
DISTRICT AND STATE TOURNAMENT PROCEDURES
40.Tournament staff will check rater ballots for complete scoring and for improper
scores. Whenever possible, raters will be asked to make any necessary
corrections. When a rater cannot be located, or other circumstances prevent
timely consultation with the rater concerning the ballot, the district or state
convener or designated scorer will correct improper entries before the ballot is
totaled, or take other appropriate action.
41. Unless otherwise directed by the tournament convener, the following scoring
and ranking rules apply:
a. A team wins a rater’s ballot by receiving a higher point total on
that ballot than the opposing team. If the teams have identical
point totals on a rater’s ballot, then the tie breaker on that ballot
will be used to determine the winner.
b. A team wins a trial by winning the majority of the rater ballots
for that trial.
c. At the conclusion of the competition, teams will first be ranked
according to their record of trial wins and losses. Teams with
identical win-loss records will next be ranked based upon the total
number of ballots the team received in the competition. Teams
with identical win-loss records, and identical records for total
number of ballots received, will next be ranked based upon the
total point score they received in the competition.
42.The tournament convener’s decisions concerning the rules and procedures to be
followed during that tournament are final.
43.The team’s advisers and coaches are responsible for enforcing mock trial rules
and supervising their students at all times i.e. during formal mock trial events,
free time, at the hotel (from the time the team leaves to travel to the mock
trials until their return).
44.Violations of the student conduct agreement must be reported to tournament
staff (preferably at the time of the violation and at the state finals, no later than
1 and a half-hour before the beginning of the second day of the competitions).
In regard to student conduct violations: Before competitions are started on the second Day
of finals, a panel will meet and each side (the person reporting the violation and the
person being accused of making a violation) will have 3 minutes to make a
presentation to a panel. The panel will make a decision on the violation and the
consequence for any violations. Suggested consequences are stated in a policy
developed by the Mock Trial Program Committee. The decisions of the panel are
final. Serious violations may result in a team being eliminated from the competition.
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WASHINGTON MOCK TRIAL
RULES OF EVIDENCE
Introduction
In American trials, complex rules are used to govern the admission of proof (i.e.
oral or physical evidence). These rules are designed to ensure that all parties
receive a fair hearing and to exclude evidence deemed incompetent, irrelevant,
untrustworthy, unfairly prejudicial, or otherwise improper.
If it appears that a rule of evidence is being violated, an attorney may raise an
objection to the judge. The judge then decides whether the rule has been violated
and whether the evidence must be excluded from the record of the trial. In the
absence of a properly made objection, however, the judge will probably admit the
evidence.
The burden is on the mock trial team to know the Rules of Evidence and to be able
to use them to protect or advance their cases and fairly limit the actions of
opposing counsel and their witnesses.
For purposes of mock trial competition, the Rules of Evidence have been modified
and simplified. These evidence rules are based on the National High School Mock
Trial Rules of Evidence, which in turn are based on the Federal Rules of Evidence,
and its numbering system. Where Federal rule numbers or letters are skipped,
those rules were deemed not applicable to mock trial procedure.
Not all judges will interpret the Rules of Evidence (or procedure) the same way, and
mock trial attorneys should be prepared to point out specific rules (quoting them, if
necessary) and to argue persuasively for the interpretation and application of the
rule they think appropriate.
The Mock Trial Competition Rules and these Rules of Evidence govern high school
mock trial competitions in Washington State.
The commentary sections are primarily based on commentary that has long been
part of the Washington mock trial kit. The commentary was revised in the summer
of 2004 to reflect Washington’s adoption of the National rules. These comments
are not comprehensive, authoritative, or intended to address all applications of the
evidence rules to mock trial fact patterns.
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Sources for additional commentary include the Advisory Committee’s Notes for the
Federal Rules of Evidence, the Emanuel’s Evidence Outline, and Lubet’s Modern
Trial Advocacy (2d ed., NITA, 1997).
Objections and Proper Question Form
During the course of a trial, it is the right and the duty of an attorney to make
objections to regulate the procedure for, and the admissibility of, evidence in
accordance with the rules of evidence. Upon receiving an objection, the judge will
immediately decide whether the objection is accepted or rejected. If the judge
agrees with the objection, he or she will “sustain” it. If the judge disagrees with
the objection, he or she will “overrule” it. An attorney may ask to be heard on the
point. Some judges then allow brief argument for and against the admissibility of
the challenged evidence. The attorneys are bound by the trial court's rulings on
objections. (In actual legal practice, evidentiary rulings may form the basis for a
later appeal.)
Trial judges expect lawyers in their courtrooms to follow both the evidence rules
and the customs of the trial courts. Attorneys must know how to phrase questions
on direct examination and cross-examination. They must also know both when to
object and how to object. Improperly phrased questions are objectionable.
(A) Leading Questions Forbidden on Direct Examination. Leading questions are not
permitted during the direct examination of a witness except as may be permitted
by the court to develop the witness's testimony. Ordinarily, leading questions
should be permitted on cross-examination. When a party calls a hostile witness, an
adverse party, or a witness identified with an adverse party, interrogation may be
by leading questions.
Comment: A leading question is one that suggests to the witness the answer
desired by the examiner, and often suggests a “yes” or “no” answer. On direct
examination, questions should be open ended and phrased to elicit facts from the
witness. Courts will allow leading questions on direct examination of children, the
elderly, and handicapped persons. Leading questions may be permitted to elicit
background information which is not objectionable or to which no objection is
made. Such questions save time and seek to elicit information that is not
objectionable in most cases.
A proper direct question might be phrased, “Describe the defendant's physical
appearance just before midnight the night of the party.” An improper leading
question might be phrased: “Did the defendant appear glassy-eyed and unsteady
just before midnight the night of the party”
(B) Compound Questions Forbidden. A question which is composed of two or more
separate questions within the question is not permitted.
Comment: A compound question asks two or more questions at once. For example,
“What time did you arrive at the party, whom did you go with and what did you do
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there” is a compound question. Such questions are not permitted, primarily
because they do not
permit opposing counsel to interpose appropriate objections before the witness
launches into what could be an improper response to one or more parts of the
question. Another difficulty with compound questions is that if the witness says
“yes” (or “no”) in response, it is not clear if the witness is responding to all of the
question or only part of it. Questions should be phrased to elicit one fact at a time,
unless the subject matter under examination is not objectionable for any reason,
such as very general background information.
(C) Narrative Responses Forbidden. Questions which call for long narrative
responses are not permitted if they prevent opposing counsel from interposing
timely objections.
Comment: While the purpose of direct examination is to get the witness to tell a
story, the questions must not be so broadly framed that the witness is allowed to
ramble or “narrate” a whole story. Narrative questions are objectionable.
Opposing counsel must be permitted to interpose objections to improper questions
and responses. Timely objections are prevented by the use of narrative questions
and responses.
An example of a question which calls for a narrative response is: “Start at the
beginning and tell me what happened the night of the party.” A proper objection to
this question might be phrased: “Objection, the question calls for a narrative
response.”
When a witness launches into a long narrative answer to an otherwise proper
question, a proper objection should be made quickly and might be phrased as
follows: “Objection, the response is beyond the scope of the question.”
(D) Argumentative Questions Forbidden. An attorney shall not ask argumentative
questions.
Comment: An argumentative question typically occurs on cross-examination when
the attorney asks the witness to agree to a particular interpretation or
characterization of the evidence, as opposed to a particular fact. Attorneys learn
the difference between proper aggressive cross-examination and improper
argumentative questions.
(E) Questions Assuming Facts Not in Evidence Forbidden. Attorneys may not ask a
question that assumes unproved facts. However, an expert witness may be asked
a question based upon stated assumptions, the truth of which is reasonably
supported by evidence (sometimes called a "hypothetical question").
Comment: The hackneyed example of the question that assumes facts not in
evidence is, “Are you still beating your wife” The question is improper because the
questioner has not established that the witness ever beat his wife.
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(F) Proper Foundation Required. Attorneys shall lay a proper foundation for
testimony and prior to offering exhibits into evidence. After the exhibit has been
offered into evidence, the exhibit may still be objected to on other grounds.
Comment: The “foundation” requirement for evidence provides the jury the basis
for the evidence being offered. Evidence that is premature or not adequately
supported by prior testimony is said to “lack foundation.”
In mock trial, the parties usually stipulate to the authenticity of exhibits before trial,
and the court’s ruling on the pretrial motion determines the admissibility of
contested exhibits. Nevertheless, the attorney should establish that the witness
has previously seen the item and can identify it before offering it into evidence.
(See Introduction of Exhibits below.)
When an attorney objects for lack of foundation, he or she is using legal
“shorthand” to complain to the judge that the question asks for testimony which is
premature, i.e., which is not admissible yet because some other fact or facts must
be elicited before this question can be asked. For example, before a witness can be
asked to identify the defendant as the perpetrator of a crime, the witness must first
testify that he was at the scene of the crime or has some other first-hand basis for
identifying the defendant as the perpetrator. Similarly, before a witness to an
intersection accident can testify to the collision itself, the attorney should ask
questions establishing her presence at the scene and her opportunity to observe
events as they occurred.
Before an expert witness can render professional opinions, he must first testify as
to his qualifications and be accepted by the court as an expert in the field or
specialty area in question. Thus, before a ballistics expert can offer an opinion as
to whether a particular gun fired a particular bullet, the attorney should ask
questions establishing the witness’s expertise, training, examination of the items,
etc.
In either case, an opposing attorney would simply object to the lack of foundation
as a way of saying the evidence might be admissible later but it surely is not
admissible now. This objection may be overcome by asking more questions and
eliciting more information about the bases for the witness’s testimony.
(G) Non-responsive Answers Objectionable. A witness's answer is objectionable if
it fails to respond to the question asked.
Comment: An attorney faced with an evasive hostile witness may move to strike
the witness’s answer as “non-responsive.” Precise, narrowly phrased crossexamination
questions reduce the witness’s opportunity to be evasive. Skilled
attorneys develop various “witness control” techniques to keep a witness in line
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during cross-examination. In closing argument, some attorneys will draw attention
to a witness’s evasiveness to attack the witness’s credibility.
(H) Repetitive Questions Objectionable. Questions designed to elicit the same
testimony or evidence previously presented in its entirety are improper if merely
offered as a repetition of the same testimony or evidence from the same or similar
source.
Comment: This objection is often phrased, “Asked and answered.” Note also that
Rule 403 may be invoked to block the presentation of cumulative evidence.
(I) Timeliness Required. Objections must be made in a timely manner or they are
deemed to be waived.
Comment: Attorneys should strive to make their objections after the opposing
attorney asks the objectionable question but before the witness gives an answer.
This way, the judge will have an opportunity to rule on the objection before the jury
hears or sees the objectionable evidence. If an attorney is slow in making an
objection, a favorable ruling made after the jury has already been exposed to the
tainted evidence could be useless. It does little good to close the gate after the
cows have escaped.
Sometimes, the basis for an objection does not become clear until after the witness
starts to respond. For example, a witness may give an answer which is not
responsive to an otherwise proper question. In those cases, the attorney should
make the objection as soon as it becomes evident that a basis for objection exists,
regardless of whether the jury has been exposed to the evidence. If the objection
is sustained, the attorney who made the objection should follow up with a motion to
strike the non-responsive testimony from the record of the trial. If no objection is
made, the evidence will be deemed admissible and will be treated as any other
evidence admitted at trial.
(J) “Opening the Door” to Inadmissible Evidence. By voluntarily raising a subject
on direct examination, a party may waive any objection to cross-examination or
rebuttal on that subject even though such cross-examination would not otherwise
be permitted under the rules of evidence.
Comment: If an attorney examines a witness during direct examination on a
subject that would be forbidden if the subject were first raised on crossexamination,
the attorney is said to have “opened the door” to the subject and will
not be permitted to object when the opposing party delves into the subject deeper
on cross-examination. For example, the rules of evidence provide that in a criminal
case only certain prior convictions may be introduced by the prosecution during
cross-examination of the defendant to attack his or her character. However, if
during direct examination the defendant testifies that he or she has led an
exemplary life and would never think of shoplifting a leather jacket, the defense has
opened the door to permit the prosecution to explore the defendant's criminal
history far beyond the scope that would have been permitted if the defendant had
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not reported his exemplary record for good citizenship. It should be noted,
however, that the court will always exercise its discretion to limit the scope of
examination in such collateral matters so that the trial does not stray from its
principal issues.
(K) Scope of Direct, Redirect and Cross-Examination. Direct and crossexamination
may cover all facts relevant to the case of which the witness has first
hand knowledge or has special training and knowledge sufficient to permit the
witness to offer an opinion, and any other matter permitted by these Rules of
Evidence. Cross-examination is not limited to the scope of direct examination. Redirect
examination is limited to the scope of the cross-examination. Recross
examination is limited to the scope of redirect examination.
(L) Specificity Required. An objection must be specific.
Comment: Whenever possible, an attorney making an objection must state the
specific basis for the objection by citing the rule of evidence or law which supports
the objection, or by stating the basis in the form of a word or phrase which informs
the judge of the basis. (See examples listed below.)
If a party's objection does not include a statement of the legal reason supporting it,
e.g., when an attorney simply says, “Objection,” without telling the court why the
objection was made, it is termed a “general objection.” General objections are not
prohibited per se, but the court may, in its discretion, refuse to sustain an objection
which is not specific. On the other hand, when general objections are made to
questions which are obviously objectionable, the court will usually rule on them
even without a statement of the specific basis. For example, the judge may not
need to be informed of the specific basis to rule on a question which is obviously
leading (“Would you say the car was going around 50 miles per hour”) or one
which obviously calls for a hearsay response (“What did Ms. Jones say to the police
officer”).
Objections to the “form of the question” and “lack of foundation” are acceptable
specific objections. When an attorney objects to the form of the question, he or
she may be complaining that the question calls for a narrative response, is
compound, is too broad, is too complex, is argumentative, or is defective in some
other general way. The purpose of the objection is to ask the court to require the
examining attorney to ask a better, i.e. less objectionable, question.
Sample Objections
Following are examples of acceptable ways to make common objections.
Objections are not precise formulas or magic words. Objections should be clear,
succinct, and well-founded. They should state the legal basis for the objection.
They should not be used as a ploy to bring impermissible material to the attention
of the jury.
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Irrelevant Evidence. “Objection, relevance.” Or, “I object, Your Honor. This
testimony is irrelevant to the facts [issues] of this case.”
Leading Questions. “Objection. Counsel is leading the witness.” (Remember, this
is only objectionable when done on direct examination.)
Narrative Question and/or Response. “Objection. Counsel's question calls for a
narrative.” Or, “Objection. The witness is giving a narrative response.”
Improper Character Testimony. “Objection. The witness's character or reputation
has not been put in issue.” Or, “Improper character evidence under rule 404.”
Beyond the Scope of Cross-examination. “Objection. Counsel's question goes
beyond the scope of the cross-examination.”
Hearsay. “Objection. Counsel's question calls for a hearsay response” (witness is
about to testify to an objectionable out-of-court statement). Or, “Objection. The
witness's answer is based on hearsay” (for example, witness is about to testify to
facts in a newspaper article as if she had personal knowledge of them). (If the
witness makes a hearsay statement, the attorney should also say, “and I ask that
the statement be stricken from the record.”)
Improper opinion. “Objection, a lay witness may not testify as an expert.” Or,
“Improper lay opinion.” (This objection is appropriate when the question calls for a
response in the form of an opinion which the witness is not qualified to give.)
Lack of Personal Knowledge. “Objection. The witness has no personal knowledge
that would enable him/her to answer this question.” Or, “Objection. Lack of
foundation.” (This latter objection presupposes that the subject matter of the
testimony could be admissible if the examiner first establishes through proper
questioning that the witness has the requisite personal knowledge.)
Badgering/Argumentative. “Objection. Counsel is badgering the witness.” Or,
“Objection. Counsel is arguing with the witness.”
Motion to Strike. If inadmissible evidence has been introduced before an objection
can be timely made and the court sustains the objection, a follow-up motion should
always be made to purge the record of the tainted evidence. “Your Honor, I move
to strike the [nonresponsive] [inadmissible] portion of the witness's testimony from
the record,” or, “Your Honor, I ask that the jury be instructed to disregard the
witness’s last statement.”
Note: Teams are not precluded from raising additional objections which are
available under the Washington Mock Trial Rules of Evidence.
Introduction of Exhibits
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There is a formal procedure for introducing exhibits, e.g., documents, pictures,
guns, etc., during an actual trial. The exhibit must be relevant to the case, and the
attorney must be prepared to defend its use on that basis.
In mock trial, exhibits are usually pre-marked for identification, and the parties
stipulate to their authenticity. In State competition, teams often use enlarged
copies of the exhibits, but enlargements are normally not allowed under the
National rules.
Below are the basic steps to use in mock trial when introducing a physical object or
document for identification and/or use as evidence.
Take the item, without showing it to the jury, and show it to opposing counsel.
Then ask the court for permission to approach the witness.
Hand the marked exhibit to the witness while stating, “I am now handing you [a
document] [an item] previously marked for identification as Exhibit 1.” Ask the
witness whether he or she knows or recognizes the exhibit, and then ask the
witness what it is in order to identify it and establish its relevance.
After laying this foundation, offer the exhibit into evidence. “Your Honor, I offer
Exhibit 1.”
Opposing counsel will either object to the offering of the exhibit or say, “No
objection.” If opposing counsel makes a specific objection as to why the exhibit is
not admissible, the attorney offering the exhibit will be given an opportunity to
respond. In many cases opposing counsel will simply object for lack of foundation,
meaning that the attorney offering the exhibit has not asked enough questions to
establish the witness’s personal knowledge of the exhibit, its identity, and its
relevance.
If the court overrules the objection and permits the exhibit to be admitted, counsel
may now hand it back to the witness and commence examination of the witness on
matters related to the exhibit. If the court sustains an objection for lack of
foundation, additional questions should be asked of the witness to identify the
exhibit or establish its relevance.
The exhibit should not be displayed to the jury until it has been admitted into
evidence.
National Mock Trial Competition Rule 4.20 offers a similar series of steps by way of
example.
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RULES OF EVIDENCE
Note -- All of following articles of the Federal rules have been omitted as
inapplicable: Article II (Judicial Notice), Article III (Presumptions Civil
Actions and Proceedings), Article IX (Authentication and Identification), and
Article X (Contents of Writing, Recordings and Photographs).
Article I. General Provisions
Rule 101. Scope
These Rules of Evidence govern the trial proceedings of high school mock
trial competitions in Washington State.
RULE 102. Purpose and Construction
These Rules are intended to secure fairness in administration of the trials,
eliminate unjust delay, and promote the laws of evidence so that the truth
may be ascertained.
Article IV. Relevancy and its Limits
Rule 401. DEFINITION OF "RELEVANT EVIDENCE
"Relevant evidence" means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.
Rule 402. RELEVANT EVIDENCE GENERALLY ADMISSIBLE: IRRELEVANT
EVIDENCE INADMISSIBLE
All relevant evidence is admissible, except as otherwise provided in these
Rules. Irrelevant evidence is not admissible.
Comment: The rule creates a very minimal threshold of admissibility. “Any
evidence which has a tendency” to establish a fact is relevant and therefore
admissible. In a case based primarily on circumstantial evidence, the
relevance of a particularly small circumstance may not be readily apparent
when viewed in isolation, but if it is “of consequence” to the outcome of the
action it will be admissible. It is the duty of an attorney to persuade the
court of the relevance of evidence.
Rule 403. EXCLUSION OF RELEVANT EVIDENCE ON GROUNDS OF
PREJUDICE, CONFUSION, OR WASTE OF TIME
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Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, if it confuses the
issues, if it is misleading,
or if it causes undue delay, wastes time, or is a needless presentation of
cumulative evidence.
Comment: This rule applies with equal force to direct examination and
cross-examination and is to be applied in an evenhanded manner by the
court to ensure fairness. The rule is intended to exclude only evidence
which creates “unfair” prejudice. After all, all evidence is prejudicial in the
sense that it is offered to persuade the jury to believe more strongly in the
case of the party offering it.
However, since it is considered to be an extraordinary remedy when the
court excludes relevant evidence, the party seeking to have the evidence
excluded bears a heavy burden of persuasion to convince the court that the
probative value of the relevant evidence “is substantially outweighed by the
danger of unfair prejudice.” Judges will rule very cautiously on such motions
to exclude relevant evidence. (Note: the National rules do not include the
word substantially, but most judges will apply that standard because
substantially outweighed is the phrase in the Federal rules.)
Rule 404. CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT;
EXCEPTIONS; OTHER CRIMES
(a) Character Evidence. -- Evidence of a person's character or character
trait, is not admissible to prove action regarding a particular occasion,
except:
(1) Character of accused. -- Evidence of a pertinent character trait
offered by an accused, or by the prosecution to rebut same;
(2) Character of victim. -- Evidence of a pertinent character trait of
the victim of the crime offered by an accused, or by the prosecution to
rebut same, or evidence of a character trait of peacefulness of the
victim offered by the prosecution in a homicide case to rebut evidence
that the victim was the aggressor;
(3) Character of witness. -- Evidence of the character of a witness as
provided in Rules 607, 608 and 609.
(b) Other crimes, wrongs, or acts. -- Evidence of other crimes, wrongs, or
acts is not admissible to prove character of a person in order to show an
action conforms to character. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.
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Comment: The term “character” as used in the rules of evidence refers to a
person's general tendencies with respect to honesty, peacefulness,
temperance, truthfulness, and similar traits. This rule is concerned only with
preventing a party from attempting to introduce a character trait as
substantive evidence. For example, this rule would exclude evidence that a
person was an alcoholic if it were being offered as substantive evidence to
prove that the person was intoxicated when he was involved in an accident
on a particular date. This rule should not be confused with the rules
pertaining to impeachment.
The 404(a)(1) exception permits an accused in a criminal case to offer
evidence in his defense pertaining to his character if the character trait is
relevant to his defense. For example, an accused may offer testimony
concerning his good record for honesty at work where he handles large sums
of money in a case where he is accused of theft. On the other hand, his
record for honesty would not be relevant in a case where he was charged
with assault or indecent exposure.
If the defendant opens up the subject of his character, the prosecution will
be permitted to cross-examine him on the subject and introduce
independent evidence which rebuts the defendant's testimony concerning his
good character. For example, if a businessman defendant testifies about his
wealth in an effort to persuade the jury that he has no need to steal money
from his clients, the prosecution will be permitted to inquire about the
defendant's income tax returns. However, just because a criminal defendant
chooses to testify does not open up the issue of his or her character. The
subject is opened up only when the accused voluntarily puts his or her
character at issue by claiming to be a person of exemplary behavior.
The 404(a)(2) exception permits the accused to offer evidence of the
victim’s violent character in murder and assault cases in order to show that
the victim was the first aggressor and the accused acted in self defense.
Rule 404(b) is based on the concept that the defendant is being tried for
crimes alleged to have been committed in the present, not crimes or
wrongdoing committed in the past. It is intended to prevent the prosecution
from arguing that since the defendant has committed offenses in the past,
he or she is more likely to have committed the offense with which he or she
is currently charged, i.e., that the defendant is obviously a criminal or a “bad
person.” The danger of unfair prejudice from the admission of such
evidence far outweighs its relevance.
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However, this evidence may be admissible for some other purpose. For
example, evidence that the defendant and the deceased engaged in physical
combat on several occasions in the past could prove that the defendant was
hostile toward the deceased and, therefore, had a motive to commit murder.
Evidence which is admissible under this rule will often be ruled inadmissible
under Rule 403 because the danger of unfair prejudice far outweighs its
probative value. When the decision to admit or exclude evidence concerning
prior wrongdoing is in doubt, judges usually rule in favor of excluding the
evidence.
Rule 405. METHODS OF PROVING CHARACTER
(a) Reputation or opinion. -- In all cases where evidence of character or a
character trait is admissible, proof may be made by testimony as to
reputation or in the form of an opinion. On cross-examination, questions
may be asked regarding relevant, specific conduct.
(b) Specific instances of conduct. -- In cases where character or a character
trait is an essential element of a charge, claim, or defense, proof may also
be made of specific instances of that person's conduct.
Comment: Rule 405(a) allows a defendant to offer reputation or opinion
evidence of his good character, but character witnesses for the defendant
cannot testify as to specific incidents demonstrating the defendant’s good
character. If the defendant opens the door to his character, the prosecution
may rebut the defendant’s claim of good character through reputation or
opinion evidence from other witnesses.
In addition, the prosecution may cross-examine the defendant’s character
witnesses about “relevant, specific conduct,” if the prosecution has a good
faith basis for believing that such conduct occurred. For example, if
defendant is a bank teller accused of embezzlement and puts a neighbor on
the stand to testify that the defendant has a reputation in the community as
an honest person, the prosecution may cross-examine by asking, “Would
defendant’s reputation be different if it were known that the IRS is
investigating him for tax fraud”
Rule 405(b) governs situations where character is an “essential element” of
the claim or defense. For instance, in a defamation suit, the plaintiff puts his
character and good reputation at issue by claiming that defendant damaged
his reputation. The defendant may offer prior “specific instances” of the
plaintiff’s bad conduct to show that plaintiff previously had a bad reputation.
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Rule 406. HABIT; ROUTINE PRACTICE
Evidence of the habit of a person or the routine practice of an organization,
whether corroborated or not and regardless of the presence of eyewitnesses,
is relevant to prove that the conduct of the person or
organization, on a particular occasion, was in conformity with the habit or
routine practice.
Comment: “Habit” refers to a person’s regular response to a repeated
situation. It is distinct from “character,” which is a general description of a
person’s disposition. For instance, assume an apartment building burns
down and the cause of the fire is in dispute. Landlord claims tenant caused
the fire by leaving a coffeepot on. Tenant can testify that it is his habit to
always turn off and unplug the coffeepot before leaving the apartment. This
testimony would be admissible to support tenant’s claim that he did not
cause the fire.
Rule 407. SUBSEQUENT REMEDIAL MEASURES
When measures are taken after an event which, if taken before, would have
made the event less likely to occur; evidence of the subsequent measures is
not admissible to prove negligence or culpable conduct in connection with
the event. This rule does not require the exclusion of evidence of
subsequent measures when offered for another purpose; such as proving
ownership, control, or feasibility of precautionary measures, if controverted,
or impeachment.
Comment: This rule serves public policy by encouraging property owners
and manufacturers to take corrective action after an accident occurs, without
fear that plaintiff will unfairly exploit that corrective action by claiming that
the correction shows that the defendant was at fault. For instance, if tenant
slips on landlord’s staircase, the landlord should then be able to install a
safety tread on the staircase (a “subsequent remedial measure”) without
tenant being able to point to the absence of a tread to support tenant’s claim
that landlord had negligently maintained the stairs when tenant slipped on
them.
The second sentence of the rule allows introduction of subsequent remedial
measures for other purposes. In the example above, if defendant-landlord
denied owning the apartment building, tenant could offer evidence that
landlord installed the safety tread after the accident to support tenant’s
claim that landlord owned or controlled the building.
Rule 408. COMPROMISE AND OFFERS TO COMPROMISE
Evidence of (1) furnishing or offering or promising to furnish, or (2)
accepting or offering or promising to accept, a valuable consideration in
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compromising or attempting to compromise a claim which was disputed as
to either validity or amount, is not admissible to prove liability for or
invalidity of the claim or its amount. Evidence of conduct or statements
made in compromise negotiations is likewise not admissible. This rule does
not require the exclusion of any evidence otherwise discoverable merely
because it is presented in the course of compromise negotiations. This rule
also does not require exclusion when the evidence is offered for another
purpose, such as proving bias or prejudice of a witness, negativing a
contention of undue delay, or proving an effort to obstruct investigation or
prosecution.
Comment: This rule serves public policy by encouraging parties to attempt
to settle disputes and to be candid in settlement discussions. Statements
made in settlement negotiations cannot be used to prove the weakness of an
opposing party’s claim or defense. But the rule allows admission of such
statements “for another purpose,” such as proving a witness’s bias or
prejudice.
Rule 409. PAYMENT OF MEDICAL OR SIMILAR EXPENSES
Evidence of furnishing or offering or promising to pay medical, hospital, or
similar expenses occasioned by an injury is not admissible to prove liability
for the injury.
Comment: Rule 409 is similar to Rule 408. It prevents the injured party
from using payment of his medical expenses as a basis for showing that the
defendant was at fault. For instance, a motorist who injures a pedestrian
might offer to pay the pedestrian’s medical expenses, but the pedestrian
cannot use the offer to argue that the motorist is liable for his injuries.
Rule 410. INADMISSIBILITY OF PLEAS, PLEA DISCUSSIONS, AND RELATED
STATEMENTS
Except as otherwise provided in this Rule, evidence of the following is not, in
any civil or criminal proceeding, admissible against a defendant who made
the plea or was a participant in the plea discussions:
(1) a plea of guilty which was later withdrawn;
(2) a plea of nolo contendere;
(3) any statement made in the course of any proceeding under Rule
11 of the Federal Rules of Criminal Procedure or comparable state
procedure regarding either of the foregoing pleas; or
(4) any statement made in the course of plea discussions made in the
course of plea discussions with an attorney for the prosecuting
authority which do not result in a plea of guilty or which result in a
plea of guilty which is later withdrawn.
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However, such a statement is admissible (i) in any proceeding wherein
another statement made in the course of the same plea or plea discussions
has been introduced and the statement ought, in fairness, be considered
with it, or (ii) in a criminal proceeding for perjury or false statement if the
statement was made by the defendant under oath, on the record and in the
presence of counsel.
Comment: Rule 410 applies the rationale of Rule 408 to plea negotiations.
For instance, in plea negotiations with the prosecutor, a criminal defendant
might admit to pulling the trigger and offer to plead guilty to manslaughter.
If the prosecutor rejects the offer and tries defendant for murder, the
prosecution cannot use defendant’s admission in plea negotiations against
him. (A nolo contendere plea is a plea of “no contest.” Rule 11 of the
Federal Rules of Criminal Procedure deals with types of pleas and the
manner in which they may be made.)
Rule 411. LIABILITY INSURANCE
Evidence that a person was or was not insured against liability is not
admissible upon the issue whether the person acted negligently or otherwise
wrongfully. This rule does not require the exclusion of evidence of insurance
against liability when offered for another purpose, such as proof of agency,
ownership, or control, or bias or prejudice of a witness.
Comment: This rule is designed to prevent a plaintiff from arguing that
because defendant was insured, defendant had less reason to be careful. It
is usually improper to refer to defendant’s insurance (or lack of it) in a
personal injury case, as the jury might be affected by the argument that a
“deep pocket” is available to compensate plaintiff for her injuries.
As in Rule 407, however, evidence of insurance may be admitted for another
purpose, such as showing defendant’s control of a premises or vehicle.
Article V. Privileges
Rule 501. GENERAL RULE
There are certain admissions and communications excluded from evidence
on grounds of public policy. Among these are confidential communications
between:
(1) husband and wife;
(2) attorney and client;
(3) physician and patient; and
(4) priest and penitent.
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Comment: Privileges exempt a witness from testifying about certain types
of subject matter. Maintaining candor and privacy in certain types of
relationships (spouses, doctor-patient, attorney-client, etc.) or situations
(among grand jurors, state secrets, self-incrimination, etc.) is deemed to be
so important that the courts will forgo testimony concerning statements
made in a privileged context. The holder of the privilege may choose to
waive it. Testimonial privileges, because contrary to the judicial power to
compel production of evidence, are strictly construed. (The wording of
National Mock Trial Rule 501 differs slightly.)
Article VI. Witnesses
Rule 601. GENERAL RULE OF COMPETENCY
Every person is competent to be a witness.
Rule 602. LACK OF PERSONAL KNOWLEDGE
A witness may not testify to a matter unless the witness has personal
knowledge of the matter. Evidence to prove personal knowledge may, but
need not, consist of the witness's own testimony. This rule is subject to the
provisions of Rule 703, related to opinion testimony by expert witnesses.
Comment: A witness must testify only on the basis of facts which the
witness has seen, heard or otherwise perceived through his or her senses
unless the witness is qualified as an expert witness. (See also Rule 701.)
For example, a witness could testify from personal knowledge that she saw
the defendant drink 12 bottles of beer at the party, but she would not be
permitted to testify, “Everyone at the party knew Joey was drunk.” Without
laying a foundation to establish the basis for her knowledge about the
thoughts of others, the witness has no first-hand knowledge about what all
the other partygoers knew. Laypersons may give testimony in the form of
opinions if the matters on which the testimony is based are matters of
common experience and if the witness has first-hand knowledge of such
matters. For example, a witness is entitled to give an opinion as to whether
or not the defendant was intoxicated based on the witness's experience
observing intoxicated persons.
In the mock trial context, this rule should be read in conjunction with
Competition Rule 13a.
Rule 607. WHO MAY IMPEACH
The credibility of a witness may be attacked by any party, including the
party calling the witness.
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Comment: If a mock trial problem includes an adverse witness who must be
called in a party’s case-in-chief, that party could attack the witness’s
credibility. Furthermore, that party could conduct the direct examination as
a cross-examination, if the court makes a finding that the witness is a hostile
witness.
Rule 608. EVIDENCE OF CHARACTER AND CONDUCT OF WITNESS
(a) Opinion and reputation evidence of character. The credibility of a
witness may be attacked or supported by evidence in the form of opinion or
reputation, but subject to these limitations: (1) the evidence may refer only
to character for truthfulness or untruthfulness, and (2) evidence of truthful
character is admissible only after the character of the witness for
truthfulness has been attacked by opinion or reputation evidence, or
otherwise.
(b) Specific instances of conduct. Specific instances of the conduct of a
witness, for the purpose of attacking or supporting the witness' credibility,
other than conviction of crime as provided in Rule 609, may not be proved
by extrinsic evidence. They may, however, in the discretion of the Court, if
probative of truthfulness or untruthfulness, be asked on cross-examination
of the witness (1) concerning the witness' character for truthfulness or
untruthfulness, or (2) concerning the character for truthfulness or
untruthfulness of another witness as to which character the witness being
cross-examined has testified.
Testimony, whether by an accused or by any other witness, does not
operate as a waiver of the accused's or the witness' privilege against selfincrimination
with respect to matters related only to credibility.
Comment: Rule 608 allows opinion or reputation evidence of a witness’s
character for truthfulness or untruthfulness, with certain restrictions. For
example, if Ms. X observes an accident and testifies for plaintiff that the
stoplight was red, the defense could offer testimony under 608(a)(1) from
Ms. Y, her neighbor, that Ms. X is known to be a liar. Rule 608(a)(2) would
then allow the plaintiff to call Ms. Z, another neighbor, to testify as to Ms.
X’s truthful character.
Rule 608(b) is designed to avoid mini-trials on specific instances of a
witness’s truthfulness or untruthfulness. Thus, the details of a prior dispute
between Ms. X and Ms. Y, in which Ms. X allegedly lied, are inadmissible
“extrinsic” evidence. Similarly, if Mr. Q witnessed the accident, testified for
plaintiff, and falsely claimed he was walking home from church at the time,
defendant could not call the card dealer at the casino to testify that Mr. Q
had actually been at the casino, not at church. Such attacks on the
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credibility of nonparty witnesses are of marginal relevance and consume too
much time. Note, however, that on cross-examination of Mr. Q, the defense
attorney could ask, “Isn’t it true that you were walking home from the
casino”
Rule 609. IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME; TIME
LIMITS
(a) For the purpose of attacking the credibility of a witness in a criminal or
civil case, evidence that the witness had been convicted of a crime shall be
admitted if elicited from the witness or established by public record during
examination of the witness but only if the crime (1) was punishable by death
or imprisonment in excess of one year under the law under which the
witness was convicted, and the court determines that the probative value of
admitting the evidence outweighs the prejudice to the party against whom
the evidence is offered, or (2) involved dishonesty or false statement,
regardless of the punishment.
(b) Evidence of a conviction under this rule is not admissible if a period of
more than 10 years has elapsed since the date of the conviction or of the
release of the witness from the confinement imposed for that conviction,
whichever is the later date, unless the court determines, in the interests of
justice, that the probative value of the conviction supported by specific facts
and circumstances substantially outweighs its prejudicial effect. However,
evidence of a conviction more than 10 years old as calculated herein, is not
admissible unless the proponent gives to the adverse party sufficient
advance written notice of intent to use such evidence to provide the adverse
party with a fair opportunity to contest the use of such evidence.
(c) Effect of pardon, annulment, or certificate of rehabilitation -- Evidence of
a conviction is not admissible if (1) the conviction has been the subject of a
pardon or other equivalent procedure based on a finding of the rehabilitation
of the person convicted of a subsequent crime which was punishable by
death or imprisonment in excess of one year, or (2) the conviction has been
the subject of a pardon, other equivalent procedure based on a finding of
innocence.
(d) Juvenile adjudications -- Evidence of juvenile adjudications is generally
not admissible under this rule. The court may, however, in a criminal case
allow evidence of a juvenile adjudication of a witness other than the accused
if conviction of the offense would be admissible to attack the credibility of an
adult and the court is satisfied that admission in evidence is necessary for a
fair determination of the issue of guilt or innocence.
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Comment: This rule governs the admissibility of prior convictions to attack a
witness’s credibility. Some convictions are considered relevant to whether
the witness’s testimony is believable. Felonies and all crimes of dishonesty
are admissible, subject to the time limits in 609(b). For felonies, the judge
must balance the conviction’s probative value against its prejudicial effect.
But any crime involving “dishonesty or false statement” is admissible to
attack credibility, even if it is a misdemeanor. Crimes of dishonesty or false
statement include perjury, criminal fraud, embezzlement, counterfeiting,
forgery, and filing false tax returns. Most crimes of violence (murder,
assault, etc.) and many nonviolent crimes (drug offenses, prostitution) do
not fall into this category. Courts disagree on whether theft, shoplifting, and
the like are crimes of dishonesty. For instance, one federal decision calls
bank robbery “a crime of violent, not deceitful, taking,” and therefore not
covered by 609(a)(2).
Rule 609(b) reflects the view that the older a conviction is, the less
probative value it has. The ten year period usually begins running when the
individual is released from prison. The party seeking to attack the witness’s
credibility must convince the judge that the relevance of the prior crime’s
“specific facts and circumstances” substantially outweighs the conviction’s
prejudicial effect. The party must also provide advance written notice to the
other side.
Rule 610. RELIGIOUS BELIEFS OR OPINIONS
Evidence of the beliefs or opinions of a witness on matters of religion is not
admissible for the purpose of showing that by reason of their nature the
witness' credibility is impaired or enhanced.
Comment: This rule bars inquiry into the religious beliefs or opinions of a
witness to show that the witness is (or is not) credible. It is impermissible
to elicit testimony that the witness is an atheist in order to argue that the
witness is not credible. Similarly, it is impermissible to argue that if the nun,
the minister, and the rabbi all claim the light was green, it must have been
green because people in the religious life are more credible than others.
Rule 611. MODE AND ORDER OF INTERROGATION AND PRESENTATION
(a) Control by Court -- The Court shall exercise reasonable control over
questioning of witnesses and presenting evidence so as to (1) make the
questioning and presentation effective for ascertaining the truth, (2) to avoid
needless use of time, and (3) protect witnesses from harassment or undue
embarrassment.
(b) Scope of cross examination -- The scope of cross examination shall not
be limited to the scope of the direct examination, but may inquire into any
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elevant facts or matters contained in the witness' statement, including all
reasonable inferences that can be drawn \
from those facts and matters, and may inquire into any omissions from the
witness statement that are otherwise material and admissible.
(c) Leading questions -- Leading questions should not be used on direct
examination of a witness (except as may be necessary to develop the
witness' testimony). Ordinarily, leading questions are permitted on crossexamination.
When a party calls a hostile witness, an adverse party, or a
witness identified with an adverse party, leading questions may be used.
(d) Redirect/Recross -- After cross examination, additional questions may
be asked by the direct examining attorney, but questions must be limited to
matters raised by the attorney on cross examination. Likewise, additional
questions may be asked by the cross examining attorney on recross, but
such questions must be limited to matters raised on redirect examination
and should avoid repetition.
Comment: This rule gives the judge broad authority to control the manner in
which testimony comes into evidence. See the “General Comment –
Objections and Proper Form of Questions” for guidance on this rule in a
mock trial setting.
Rule 612. WRITING USED TO REFRESH MEMORY
If a written statement is used to refresh the memory of a witness either
while or before testifying, the Court shall determine that the adverse party is
entitled to have the writing produced for inspection. The adverse party may
cross-examine the witness on the material and introduce into evidence those
portions which relate to the testimony of the witness.
Comment: This basic rule of fairness ensures that if the examining attorney
shows the witness a document to refresh the witness’s recollection, the
other side is entitled to see the document and cross-examine the witness on
it. When the witness’s memory is refreshed with a document on direct
examination, the proponent of the witness’s testimony cannot offer
statements in the document for their truth. The document is not received
into evidence. But the rule allows the adverse party to cross-examine the
witness about the document and introduce portions into evidence.
(Compare Rule 803(5), the hearsay exception dealing with past recollection
recorded.)
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Rule 613. PRIOR STATEMENTS OF WITNESSES
In examining a witness concerning a prior statement made by the witness,
whether written or not, the statement need not be shown nor its contents
disclosed to the witness at that time, but on request the same shall be
shown or disclosed to opposing counsel.
Extrinsic evidence of a prior inconsistent statement by a witness is not
admissible unless the witness is afforded an opportunity to explain or deny
the same, and the opposite party is afforded an opportunity to interrogate.
Comment: This rule allows a cross-examining attorney to question a witness
about the witness’s prior statement without showing the statement to the
witness. The cross-examiner must show the statement to opposing counsel
on request. Usually the cross-examiner seeks to attack the witness’s
credibility by showing an inconsistency between the trial testimony and the
prior statement. If “extrinsic evidence” of the prior statement is relevant
and admissible (e.g. another witness’s testimony that the first witness made
the prior inconsistent statement), the first witness must be provided an
opportunity to “explain or deny” the statement. If the inconsistent
statement concerns a “collateral matter,” the cross-examiner must take the
witness’s answer; the cross-examiner may not introduce “extrinsic evidence”
to discredit the witness. (See comment to 608(b) for an example of
extrinsic evidence on a collateral matter.)
Article VII. Opinions and Expert Testimony
Rule 701. OPINION TESTIMONY BY LAY WITNESS
If the witness is not testifying as an expert, the witness' testimony in the
form of opinions or inferences is limited to those opinions or inferences
which are (a) rationally based on the perception of the witness and (b)
helpful to a clear understanding of the witness' testimony or the
determination of a fact in issue.
Comment: As a general rule, the testimony of lay witnesses is restricted to a
recitation of facts, and their opinions are not permitted. However, there is
no clear demarcation between fact and opinion in some instances.
Sometimes a fact sounds like an opinion and an opinion sounds like a fact.
For example, when a lay witness testifies to prior experience observing
intoxicated persons, then testifies that the defendant was “drunk” at the
time of the accident, is this a statement of fact or an opinion It is both.
Therefore, this rule of evidence does not prohibit per se opinions offered by
lay witnesses but simply expresses a preference for factual testimony. Lay
witnesses are permitted to offer certain opinions concerning matters which
are based on their own common experience, provided adequate foundation
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is laid. For example, a witness is generally permitted to offer an opinion
about the value of his home or about the average miles per gallon achieved
by his car.
Rule 702. TESTIMONY BY EXPERTS
If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education,
may testify in the form of an opinion or otherwise.
Comment: No expert opinion is permitted to be introduced in evidence until
it is shown that the expert possesses the requisite skill, knowledge,
experience, or education to be qualified to offer the opinion. Before any
expert opinion is elicited from a witness, a foundation is laid by asking the
expert witness questions that are intended to establish his or her expert
qualifications. Expert witnesses come from all trades and professions, and
there is no qualitative distinction between an expert who is a journeyman
carpenter with 25 years of practical experience and an aerospace engineer
who has had 19 years of formal education. Both are experts in their own
areas of specialty.
In addition to the requirement that a proper foundation be laid to establish
the qualifications of the expert witness, an expert opinion still may not be
admissible unless the judge rules that the subject matter of the opinion is
beyond the common knowledge and experience of the jurors, that the
opinion “will assist the trier of fact” to understand the evidence or determine
a fact at issue, and that the opinion does not exceed the recognized limits of
the science or art involved. The trier of fact does not need the assistance of
an expert to draw inferences and conclusions from facts that are of common
knowledge and experience.
The current mock trial rule reflects the law before the U.S. Supreme Court’s
decision Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
In response to Daubert, Federal Rule 702 was amended in 2000 to affirm the
trial court’s role of gatekeeper and provide some general standards that the
trial court must use to assess the reliability and helpfulness of the proffered
expert testimony. The 2000 amendment added three factors to guide the
judge’s decision: An expert “may” offer an opinion “if (1) the testimony is
based upon sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.”
Proponents of expert testimony should be prepared to demonstrate the
reliability of scientific expert testimony, to the extent possible in a mock trial
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format. Rejection of expert testimony is the exception, not the rule.
Vigorous cross-examination and presentation of contrary evidence are
traditional and appropriate means of attacking shaky but admissible expert
evidence.
Rule 703. BASES OF OPINION TESTIMONY BY EXPERTS
The facts or data upon which an expert bases an opinion may be those
perceived by or made known to the expert at or before the hearing. If of a
type reasonably relied upon by experts in the field in forming opinions or
inferences, the facts or data need not be admissible in evidence.
Comment: This rule simply clarifies that the underlying facts and data used
by the expert witness to form an expert opinion need not be admissible as
evidence. If the expert customarily relies on such information, the
information itself need not be admissible. The key to admissibility is the
customary reliance by the expert on the information, not its independent
admissibility. For example, to form an opinion concerning the weather on a
certain date in March 2000, a meteorologist may rely on weather service
maps which might
be objectionable hearsay evidence if admitted at trial by themselves. Yet
the information may form the basis for the expert's opinion.
Rule 704. OPINION ON ULTIMATE ISSUE
(a) Opinion or inference testimony otherwise admissible is not objectionable
because it embraces an issue to be decided by the trier of fact.
(b) In a criminal case, an expert witness shall not express an opinion as to
the guilt or innocence of the accused.
Comment: Rule 704(a) allows lay and expert witnesses to offer opinions on
issues to be decided by the jury. For example, in a medical malpractice
case, an expert physician testifying for the plaintiff can opine that the
treating physician’s conduct fell below professional standard of care.
However, witnesses cannot offer opinions on how the case should be
decided, nor can they offer opinions on questions of law. Rule 704(b)
specifically bars opinion testimony on the mental state of criminal
defendants.
Rule 705. DISCLOSURE OF FACTS OR DATA UNDERLYING EXPERT OPINION
The expert may testify in terms of opinion or inference and give reasons
therefore without prior disclosure of the underlying facts or data, unless the
Court requires otherwise. The expert may in any event be required to
disclose the underlying facts or data on cross-examination.
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Comment: Because Rule 703 allows the expert to base her opinion on
otherwise inadmissible facts (if of the type reasonably relied on by other
experts in the field), Rule 705 allows the expert to offer an opinion without
disclosing the underlying facts or data. But the court has discretion to
require disclosure on direct examination, and the opposing party can compel
disclosure on cross-examination.
Article VIII. Hearsay
General comment: Rule 801 defines a “hearsay” statement as (1) an out-ofcourt
statement, (2) made by someone other than the witness who is
testifying to the contents of the statement, and (3) which is offered to prove
the truth of the matters asserted in the statement. The easiest way to
explain the rule is by example. If a witness testifies that he heard a man
say, “I am Alexander the Great,” the testimony concerning the statement
would be hearsay if it was being offered to prove the truth of matters
contained in the statement, i.e., that the person making the statement was
in fact Alexander the Great. On the other hand, if the statement was being
offered in evidence to prove that the person making the statement suffered
from delusions, the statement would not be hearsay because it was not
offered to prove the truth of matters contained in the statement.
A key to understanding hearsay is to focus on the purpose for which an outof-court
statement is being offered. The same statement can be hearsay or
nonhearsay, depending on its purpose. For instance, assume X observes a
traffic accident. Y comes to the scene a few minutes later. X tells Y, “The
light was red.” Y’s testimony, “X said that the light was red” is hearsay, if
offered to show the light was red. Suppose, however, that the issue was (1)
whether X was blind, or (2) whether the traffic light was functioning at all.
In those two situations, Y’s testimony, “X said the light was red” is not
hearsay. The statement is offered to show (1) that X could see, or (2) that
the traffic light was working. Therefore “the truth of the statement”
(whether the light was indeed red) is not at issue, and the statement is not
hearsay.
Hearsay is inadmissible because it relies on the credibility of the person who
made the statement, and that person is not on the witness stand. Such
evidence is deemed to be less credible and less reliable than evidence
elicited through first-hand testimony from the person who actually made the
statement.
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Keep in mind that a nonparty witness’s own out-of-court statement can be
hearsay, even when the witness testifies. Thus, in the traffic light example
above, if X testifies, “I told Y that the light was red,” the statement is
hearsay if offered to show the light was red. Of course, X can testify, “I was
there and I saw that the light was red,” because X is testifying as to her own
observations. Furthermore, out-of-court statements by witnesses who are
parties to the case (or “speaking agents” of parties) are normally admissible
under the 801(d)(2) exceptions.
Conduct can be a “statement” under the hearsay rule if it is intended to be
an assertion. For example, if a person is asked, “Did Joe kill the bartender”
and the person nods his head in an affirmative response to the question, the
nod is an assertion, and it would be hearsay for a witness to testify that he
saw the person nod his head in response to the question just as it would be
hearsay for the witness to testify that he heard the person say, “Yes, Joe
killed the bartender.” Another example of conduct as hearsay is when one
person points at another person as a means of identifying that other person
when asked, “Who killed the bartender” An example of conduct which is
not hearsay is when a person shakes with fright when confronted by a police
officer. The involuntary shaking is not intended to be a statement.
Unless the statement being testified to meets the definition of hearsay, the
statement is not hearsay and is not inadmissible on that basis. The rules of
evidence also contain many exceptions to the rule that hearsay is
inadmissible. The exceptions to the hearsay rule which apply in mock trial
are set forth below. Attorneys in mock trial should learn the differences
between statements which are inadmissible as hearsay, statements which
are admissible because they are not hearsay, and statements which are
hearsay but which are nevertheless admissible because they are recognized
exceptions to the hearsay rule.
Rule 801. DEFINITIONS
The following definitions apply under this article:
(a) Statement -- A "statement" is an oral or written assertion or nonverbal
conduct of a person, if it is intended by the person as an assertion.
(b) Declarant -- A "declarant" is a person who makes a statement.
(c) Hearsay. -- "Hearsay" is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.
(d) Statements which are not hearsay -- A statement is not hearsay if:
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(1) Prior statement by witness -- The declarant testifies at the trial or
hearing and is subject to cross examination concerning the statement
and the statement is:
(A) inconsistent with the declarant's testimony, and was given
under oath subject to the penalty of perjury at a trial, hearing,
or other proceeding, or in a deposition, or
(B) consistent with the declarant's testimony and is offered to
rebut an express or implied charge against the declarant of
recent fabrication or improper influence or motive, or
(C) one of identification of a person made after perceiving the
person; or
(2) Admission by a party-opponent -- The statement is offered against
a party and is:
(A) the party's own statement in either an individual or a
representative capacity, or
(B) a statement of which the party has manifested an adoption
or belief in its truth, or
(C) a statement by a person authorized by the party to make a
statement concerning the subject, or
(D) a statement by the party's agent or servant concerning a
matter within the scope of the agency or employment, made
during the existence of the relationship, or
(E) a statement by a co-conspirator of a party during the course
and in furtherance of the conspiracy.
Comment: Technically all of the 801(d) statements are “nonhearsay,” as a
matter of definition; they are not hearsay “exceptions” (see 803 and 804).
Conceptually, the 801(d) statements function much like hearsay exceptions.
Note also that the 801(d)(2) statements must be offered “against a party,”
not by a party on his own behalf.
Example, 801(d)(1)(A), (prior inconsistent statement under oath): In a
declaration (sworn statement) given to the insurance investigator after an
automobile accident, the driver said the light was green. At trial, the driver
testifies that the light was yellow. Under this rule, the driver's prior
statement is admissible.
Example, 801(d)(1)(B), (prior consistent statement offered to rebut a
charge of recent fabrication): Three men are charged with theft. One of
them makes a deal with the prosecutor and pleads guilty to a minor offense
in exchange for his testimony against the other two defendants. During the
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trial, the defense attorneys for the other two men make allegations against
the witness that the prosecution “bought his testimony.” In this situation,
the prosecution would be entitled to use the witness's prior consistent
statement to prove that he did not change his story after making the plea
bargain deal.
Example, 801(d)(1)(C), (prior statement of identification): Just after a bank
robbery the police put the suspect in a lineup and ask a witness if she can
identify the robber. The witness identifies the suspect. At trial, the
witness's out-of-court statement identifying the suspect is admissible.
Comment and example, 801(d)(2)(A), (admission by a party-opponent):
Admissions made out-of-court by a party to the lawsuit are admissible.
During a telephone conversation with the police, the defendant admitted
being at the scene of a burglary. The statement is admissible. Similarly,
the driver’s statement, “I didn’t see you in the crosswalk” is an admission in
the pedestrian’s suit against the driver.
Comment 801(d)(2)(B), (adoptive admission): This rule most commonly
deals with situations where X (the party) is present when Y makes a
statement. If X agrees or acquiesces in Y’s statement, X may be deemed to
have adopted Y’s statement. In that situation, Y’s statement is admissible
as an admission against X.
Comment, 801(d)(2)(C), (authorized statement): Admissions made by a
spokesperson are admissible. Admissions by a lawyer on the client’s behalf
can be admissible against the lawyer’s client.
Comment and example, 801(d)(2)(D), (statement by a speaking agent):
Assume a gas station pump explodes while plaintiff is filling her car. If the
cashier tells injured plaintiff, “We’ve been meaning to get that pump fixed,
but the corporate headquarters told stations across the country not to waste
money on maintenance,” is that statement about the corporate policy
admissible against the corporate defendant as an admission by a “speaking
agent” On those facts, probably not, because broad corporate policies are
not “a matter within the scope of [the cashier’s] agency or employment.”
Comment, 801(d)(2)(E), (statement by a co-conspirator): Statements
made by one co-conspirator are admissible against other co-conspirators, as
long as the statement was made during the course of the conspiracy and in
furtherance of it. The threshold question of the existence of the conspiracy
is decided by the judge, based on a preponderance of the evidence. The
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judge may admit a statement provisionally, based on a representation that
the prosecution will “connect it up” later by laying further foundation that a
conspiracy existed.
Rule 802. HEARSAY RULE
Hearsay is not admissible, except as provided by these rules.
Rule 803. HEARSAY EXCEPTIONS, AVAILABILITY OF DECLARANT
IMMATERIAL
The following are not excluded by the hearsay rule, even though the
declarant is available as a witness:
(1) Present sense impression -- A statement describing or explaining an
event or condition made while the declarant was perceiving the event or
condition, or immediately thereafter.
(2) Excited utterance -- A statement relating to a startling event or condition
made while the declarant was under the stress of excitement caused by the
event or condition.
(3) Then existing mental, emotional, or physical conditions -- A statement
of the declarant's then existing state of mind, emotion, sensation, or
physical condition (such as intent, plan, motive, design, mental feeling, pain,
and bodily health), but not including a statement of memory or belief to
prove the fact remembered or believed unless it relates to the execution,
revocation, identification, or terms of declarant's will.
(4) Statements for purposes of medical diagnosis or treatment
(5) Recorded Recollection -- A memorandum or record concerning a matter
about which a witness once had knowledge but now has insufficient
recollection to enable the witness to testify fully and accurately, shown to
have been made or adopted by the witness when the matter was fresh in the
witness' memory and to reflect that knowledge correctly.
(6) Records of regularly conducted activity. A memorandum, report,
record, or data compilation, in any form, of acts, events, conditions,
opinions, or diagnoses, made at or near the time by, or from information
transmitted by, a person with knowledge, if kept in the course of a regularly
conducted business activity, and if it was the regular practice of that
business activity to make the memorandum, report, record, or data
compilation, all as shown by the testimony of the custodian or other qualified
witness, unless the source of information or the method or circumstances of
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preparation indicate lack of trustworthiness. The term "business" as used in
this paragraph includes business,
institution, association, profession, occupation, and calling of every kind,
whether or not conducted for profit.
(18) Learned treatises -- To the extent called to the attention of an expert
witness upon cross examination or relied upon by the expert witness in
direct examination, statements contained in published treatises, periodicals,
or pamphlets on a subject of history, medicine, or other science or art,
established as a reliable authority by the testimony or admission of the
witness or by other expert testimony or by judicial notice.
(21) Reputation as to character -- Reputation of a person's character among
associates or in the community.
(22) Judgment of previous conviction -- Evidence of a judgment finding a
person guilty of a crime punishable by death or imprisonment in excess of
one year, to prove any fact essential to sustain the judgment, but not
including, when offered by the government in a criminal prosecution for
purposes other than impeachment, judgments against persons other than
the accused.
Comment and example, 803(1), (present sense impression): This exception
is commonly called the “present sense impression” exception. The rule
presumes that a spontaneous statement, i.e. one made before the declarant
has had a chance to think about the event he or she describes, reduces
some of the risk of misrepresentation. When the person who was just
involved in a car accident says to a witness, “Why didn't I put on my seat
belt” the statement is undoubtedly a spontaneous utterance and is not
objectionable as hearsay.
Comment and example, 803(2), (excited utterance): This exception is called
the “excited utterance” exception. A victim's telephone call to the police
describing how the defendant raped her and left her along the road several
hours before the call would probably be admissible as an “excited
utterance.” The key to admissibility is whether the declarant was still under
the influence of the event (i.e., emotionally charged from the effects of the
event) at the time the statement was made. The belief is that a statement
made while the declarant is still under the influence of or affected by the
event is more reliable and less likely to be fabricated than one made after
the declarant has calmed down and taken the opportunity to think about the
event.
164

Comment and example, 803(3), (state of mind): Statements which describe
the declarant's then-existing state of mind fall within this exception. A
statement of the declarant’s intent or plan also falls within this exception
when offered to prove that the intent or plan was later carried out by the
declarant. However, the exception does not apply to statements that
describe past states of mind. A witness will be permitted to testify that the
victim of a spousal assault told her, “I fear my husband” because it was a
statement of the victim's state of mind at the time the statement was made.
On the other hand, the witness will not
be allowed to testify that the victim told her a week before the assault, “My
husband threatened me and I thought he was going to hurt me” because
that is a statement concerning a state of mind which existed in the past
when the threat was made. In other words, the “state of mind” exception to
the hearsay rule does not apply to statements of memory or belief about
past actions or events. But the state of mind exception does apply to
statements concerning the present status of a person's health or physical
condition. In a prosecution for murder by poison, the victim’s statement,
“My stomach hurts a lot” would be admissible.
Comment and example, 803(4), (medical diagnosis): A doctor will be
permitted to testify that his patient complained of a sore knee during an
office visit. One issue that arises frequently is whether the patient’s
description of the cause of the injury is admissible through the testimony of
the physician or thorough the physician’s chart note. Under this exception, a
patient’s statement that he was struck by a car might be admissible, but
probably not his statement, “The other guy hit me when he ran the red
light.”
Comment and example, 803(5), (past recollection recorded): A witness may
make notes or a record of an observation, but then have forgotten it when
called to testify months or years later. Rule 803(5) allows the witness’s
statements of “recorded recollection” to be admitted for their truth, if the
proponent lays proper foundation. A typical line of foundation questions will
establish (1) that the witness once had personal knowledge of the event; (2)
the witness has forgotten the event to some extent; (3) the witness
previously made an accurate record of the event; and (4) the event was
fresh in the witness’s memory when the witness made the record. In many
situations, the past recollection recorded exception is similar to the business
records exception (803(6)). But the past recollection recorded exception
normally requires the maker of the actual record to testify, whereas the
business record exception simply requires a “qualified witness” with
knowledge of the enterprise’s general practices.
165

The past recollection recorded hearsay exception is sometimes confused with
the practice of refreshing a witness’s “present recollection” under Rule 612.
Rule 612 applies when a document, object, or picture will trigger a memory
that had been forgotten; the item itself is an aid to memory and is not
received into evidence. The witness testifies from her “refreshed
recollection.” In contrast, Rule 803(5) applies when the witness cannot
trigger a memory of the event, but did “record” the event when it occurred.
Comment and example, 803(6), (business records): Most records kept in the
ordinary course of business are hearsay if offered to prove that their
contents are true. For instance, entries in a bank’s loan register would be
hearsay if offered to show the loan was not repaid on time. Records of any
“regularly conducted activity” fall within this hearsay exception if proper
foundation is laid. A typical line of foundation questions will establish that
the record (1) was made at or near the time of the event; (2) was made by
a person
with knowledge; (3) was kept in the regular course of business; (4) was
made as a part of the business’s regular practice. Note that the opposing
party may be able to challenge admissibility of the business record on the
grounds of “lack of trustworthiness.”
Comment and example, 803(18), (learned treatises): Statements in a
treatise or other scholarly publication are admissible for their truth, if the
proponent lays foundation that the publication is a reliable authority in the
field. For instance, in a medical malpractice case, either side’s expert may
read portions of a standard textbook in the field to establish that the treating
doctor did (or did not) meet the applicable standard of care.
Comment and example, 803(21), (reputation in the community):
Statements concerning a person's reputation in the community are not
objectionable hearsay, so long as the statements do not exceed the scope of
permissible character testimony and are elicited in the manner prescribed by
Rule 405.
Comment and example, 803(22), (prior judgments): This rule allows
admission of prior felony convictions in certain situations, even though the
prior conviction would technically be hearsay. For instance, if D is convicted
of murder, then Victim’s family brings a wrongful death civil suit on the
same set of facts, D’s conviction is admissible for its truth, i.e. to show that
D did indeed kill Victim. Victim’s family does not need to re-litigate the issue
of whether D really did it.
166

Rule 804. HEARSAY EXCEPTIONS; DECLARANT UNAVAILABLE
(a) Definition of unavailability. "Unavailability as a witness" includes
situations in which the declarant:
(1) Is exempted by ruling of the court on the ground of privilege from
testifying concerning the subject matter of the declarant's statement;
or
(2) Persists in refusing to testify concerning the subject matter of the
declarant's statement despite an order of the court to do so; or
(3) Testifies to a lack of memory of the subject matter of the
declarant's statement; or
(4) Is unable to be present or to testify at the hearing because of
death or then existing physical or mental illness or infirmity; or
(5) Is absent from the hearing and the proponent of a statement has
been unable to procure the declarant's attendance (or in the case of a
hearsay exception under subdivision (b) (2), (3), or (4), the
declarant's attendance or testimony) by process or other reasonable
means.
A declarant is not unavailable as a witness if exemption, refusal, claim of
lack of memory, inability, or absence is due to the procurement or
wrongdoing of the proponent of a statement for the purpose of preventing
the witness from attending or testifying.
(b) Hearsay exceptions. The following are not excluded by the hearsay rule
if the declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at another
hearing of the same or a different proceeding, or in a deposition taken
in compliance with law in the course of the same or another
proceeding, if the party against whom the testimony is now offered, or
in a civil action or proceeding, a predecessor in interest, had an
opportunity and similar motive to develop the testimony by direct,
cross, or redirect examination.
(2) Statement under belief of impending death. In a prosecution for
homicide or in a civil action or proceeding, a statement made by a
declarant, while believing that the declarant's death was imminent,
and concerning the cause or circumstances of what the declarant
believed to be impending death.
167

(3) Statement against interest. A statement which was at the time of
its making so far contrary to the declarant's pecuniary or proprietary
interest, or so far tended to subject the declarant to civil or criminal
liability, or to render invalid a claim by the declarant against another,
that a reasonable person in the declarant's position would not have
made the statement unless believing it to be true. A statement
tending to expose the declarant to criminal liability and offered to
exculpate the accused is not admissible unless corroborating
circumstances clearly indicate the trustworthiness of the statement.
(4) Statement of personal or family history. (A) A statement
concerning the declarant's own birth, adoption, marriage, divorce,
legitimacy, relationship by blood, adoption, or marriage, ancestry, or
other similar fact of personal or family history, even though declarant
had no means of acquiring personal knowledge of the matter stated;
(B) a statement concerning the foregoing matters, and death also, of
another person, if the declarant was related to the other by blood,
adoption, or marriage or was so intimately associated with the other's
family as to be likely to have accurate information concerning the
matter declared.
(6) Forfeiture by wrongdoing. A statement offered against a party that
has engaged or acquiesced in wrongdoing that was intended to, and
did, procure the unavailability of the declarant as a witness.
Comment: All the hearsay exceptions under Rule 803 apply whether or not
the declarant is “available” to testify in person. But another group of
hearsay exceptions set forth under Rule 804 require that the declarant must
be “unavailable” before the hearsay statement is admitted. Rule 804(a)
defines situations in which a declarant is considered “unavailable.” Physical
unavailability such as death or absence from the jurisdiction is not required.
The unavailability requirement is also satisfied if the witness invokes a
privilege, or refuses to testify in contempt of court.
Comment, 804(b)(1). Rule 804(b)(1) creates a hearsay exception for an
unavailable person’s prior sworn statements.
Comment, 804(b)(2). Rule 804(b)(2) is the “dying declaration” hearsay
exception. It creates a hearsay exception when the victim of a homicide
says, “D shot me,” before victim expires.
168

Comment, 804(b)(3). This rule sets forth the “declaration against interest”
hearsay exception. It rests on the notion that a person is unlikely to make a
statement that would get the person in trouble, unless the statement is true.
The last sentence of the rule places a “corroboration” requirement on
statements by an unavailable declarant that are offered to prove the
innocence of a criminal defendant. For instance, if D is charged with
murder, and D’s brother Q is dying of cancer, Q might make a false
deathbed “confession” to exonerate D. If D wants to admit Q’s “confession”
into evidence through a nurse who heard it, the corroboration requirement
would have to be met.
Comment, 804(b)(4). Since one typically does not truly have “personal
knowledge” of his or her birth, parents’ marriage, ages of older siblings, etc.,
this rule creates a hearsay exception to allow witnesses to testify facts of
family history.
Comment, 804(b)(6). The “forfeiture by wrongdoing” exception would
include situations where a witness by a criminal case is unavailable because
the defendant made arrangements for the witness to “sleep with the fishes.”
Because defendant’s wrongdoing brought about the witness’s unavailability,
hearsay testimony from other witnesses about the unavailable witness’s
statements are admissible against the defendant.
Rule 805. HEARSAY WITHIN HEARSAY
Hearsay included within hearsay is not excluded under the hearsay rule if
each part of the combined statement conforms with an exception to the
hearsay rule provided in these rules.
Comment: This rule governs so-called double hearsay and multiple hearsay
situations. These situations pose challenging analytical problems. Generally
the proponent must show that every link in the chain of statements is
admissible. Arguments for admissibility may include the fact that one or
more of the statements is not offered for its truth, or comes in under a
hearsay exception, or is defined as non- hearsay, etc.
ARTICLE XI – Miscellaneous Rules
Rule 1103. TITLE
These rules may be known and cited as the Washington Mock Trial Rules of
Evidence
169

DIVIDER

DIVIDER

Washington State’s
YMCA Youth & Government
2013 Mock Trial Case
Case Author: Mike Lang
Editor: William L. Downing

INTRODUCTION
“The Last Ferry": grim plot or fairy tale
As the tenth anniversary of September 11, 2001 approached, federal law enforcement
agencies worked overtime to ensure that there would be no attacks to commemorate
the awful events of that day. Intelligence “chatter” suggested that plans were being
made around the world. In Washington State, federal law enforcement agents met with
established confidential sources and recruited new sources, prying them, and paying
them, for information. Despite these efforts, new attacks were planned and nearly
succeeded. In early 2011, federal agents learned that a group of domestic terrorists
was planning a horrific attack on the Washington State ferry system, an attack that
could match, if not exceed, the casualties of 9/11.
This investigation began in January 2011, after the Martin Luther King holiday, when a
backpack bomb was found at the site of a Martin Luther King Day parade in Cedar,
Washington. Investigators in that case were able to identify one of the conspirators
from a partial fingerprint that had been left on the bomb. Agents arrested this person
and concluded that s/he was not the actual bomber. The FBI recruited the person as a
Confidential Source (CS), and the CS agreed to help the FBI target a family that the FBI
considered one of the most dangerous domestic terrorist groups in Washington State.
The Jones family were avowed anti-government extremists under the leadership of
defendant Hutaree Jones. The group maintained that each individual is a “sovereign
citizen” who does not need to pay taxes or follow U.S. laws. The FBI came to believe
that this group was planning a massive attack on the Washington State ferries,
scheduled to occur on Labor Day weekend, one of the busiest weekends of the year for
the ferry system. The CS met several times with Hutaree Jones, where details of the
attack were said to be the subject of detailed discussions.
During the summer of 2011, the CS reported that members of the Jones family were
carefully plotting the bombing, including how, when, where it would occur, and the likely
casualties. The plot entailed driving a deadly truck bomb onto a Washington State ferry
during a busy Labor Day weekend run. The ferry to be attacked was specifically chosen
because among the mass casualties would likely be many US naval officers returning to
their post at the Washington Naval Base across the bay from Cedar. Or, at least this is
the information the CS provided to the FBI, information upon which the government has
acted decisively in bringing the current charges.
As with other recent U.S. terrorism investigations, prominent and challenging issues in
this case include the use of cooperators, the defense of “entrapment,” and the fine line
that can separate free speech from a terrorist conspiracy.
1
Mike Lang
William Downing
September 2012

CASE WITNESSES
For the plaintiff:
Sam Stone: Special Agent with the FBI
Sage Annandale: cooperating witness
L.B. Kravitz: mushroom and salal forager
Flinders Petrie, PhD: forensic linguist
For the defense:
Hutaree Jones: defendant
Jo Jo (“TJ”) Jones: avalanche control specialist, sibling of the defendant
Waverly Rouse: former in-law of Sage Annandale
Alex Lacassagne: forensic linguist
TRIAL EXHIBITS:
Exhibit 1: photo – Berry Containers
Exhibit 2: photo – Timing Devices
Exhibit 3: photo – Bunker Entrance
Exhibit 4: photo – Tunnel between Bunkers
Exhibit 5: photo – Weapons Seized from Jones Compound
Exhibit 6: diagram – Vicinity of Cedar Ferry Landing
2

STIPULATIONS:
1. The three anonymous letters, as referred to in the witness statements,
were processed by the FBI lab in Virginia and found to contain neither
latent fingerprints of comparison value nor DNA. Comparisons of the
handwriting with samples provided by Hutaree Jones and Sage
Annandale were all deemed “inconclusive.” The text of the letters is
correctly relayed in the witness statements that discuss them.
2. The ferry “Olympia” is owned and operated by the State of Washington. It
is a “Jumbo Mark II” class ferry with a maximum capacity of 2500 people
and 202 vehicles. On September 4, 2011, at the 6:45 pm sailing, the
Olympia was near maximum capacity with the following on board:
1989 people (876 adult males, 713 adult females, 400 children)
184 vehicles (several were overlength or had trailers)
(16 of the vehicles were registered to the US Navy)
3. The device recovered from the bed of the seized truck on September 4,
2011 consisted of the following:
Four Casio brand wristwatches, utilized as timing devices,
connected via detonation wiring to four berry containers holding
1000 pounds of ammonium nitrate, divided roughly equally among
the four containers.
Each of the four containers also held:
One gallon of racing fuel and one gallon of diesel fuel
Hexamethylene triperoxide diamine (HMTD), a primary explosive
Cyclotrimethylene trinitramine (RDX), a primary explosive
Ethylene glycol dinitrate (EGDN), a secondary explosive
A team of experts from the FBI Terrorist Device Analytical Center (TEDAC),
examined the device at a remote, secure location in Cedar County. The
experts concluded that the device was designed to be operational and meets
the definition of an “explosive device.” If the device had been fully connected
as designed, it would have exploded with a force of 1,000 pounds of TNT, or
about one fifth the explosive force of the Oklahoma City bombing. The
experts also examined the design plans of the ferry Olympia, the ferry itself,
and the parked location of the Sage Annandale pick-up truck. The experts
3

concluded, to a reasonable degree of certainty, that this device would likely
have blown a sizeable hole into the hull of the ferry Olympia, and would have
significantly damaged approximately one fourth the side of the ferry Olympia.
Washington State ferry experts reviewed these conclusions and determined
that, with the damage described above, the ferry Olympia would have sunk
within fifteen minutes.
4. The FBI TEDAC team also examined the backpack bomb recovered on
January 17, 2011 and found that it met the definition of an “explosive
device.”
5. Two legal actions referenced by Waverly Rouse are pending in the
Superior Court of Cedar County. Both the trust action and the third-party
custody case are set for trial during the summer of 2013. The State’s
dependency action has been dismissed without prejudice as the State of
Washington, making responsible use of taxpayer dollars, is awaiting the
outcome of these other cases.
6. All statements of the witnesses were given under oath and certified as
being true and accurate to the best of that witness’s memory.
4

INDICTMENT
5

UNITED STATES DISTRICT COURT
DISTRICT OF WASHINGTON
AT CEDAR
)
UNITED STATES OF AMERICA )
) NO. 11-1066
Plaintiff, )
)
v. ) INDICTMENT
)
HUTAREE JONES, )
BOBBY JOE JONES, and )
BILLY JOE JONES, )
)
Defendants. )
)
The Grand Jury charges the above-named defendants with the following:
COUNT ONE
(Conspiracy to Use a Weapon of Mass Destruction)
1. Beginning at a time unknown, and continuing until on or about
September 4, 2011, at Cedar County, within the District of Washington, and
elsewhere, HUTAREE JONES, BOBBY JOE JONES, BILLY JOE JONES, and
other persons known and unknown, knowingly and intentionally, and without
legal authority, did conspire to use a weapon of mass destruction, that is, an
explosive bomb placed in a truck (a “truck bomb”), against property that is owned
and used by the United States and by a department and agency of the United
States, namely, vehicles owned and operated by the United States Department
of Defense, which were located on the Washington State Ferry system, and
against persons and property within the United States, where a perpetrator
traveled in and caused another to travel in interstate commerce in furtherance of
the offense.
A. Manner and Means Used by Conspirators
Among the manner and means used by the defendants to further the
objects of the conspiracy were the following:
6

2. The defendants planned an act of violence against persons and
property of the United States.
3. The defendants selected a ferry operated by the Washington State
Ferry system, which was operating within Cedar County, Washington, as a target
for the truck bomb, at a time when the defendants knew that the ferry would be
occupied by United States military servicemembers and their families.
4. The defendants obtained and aided and abetted in obtaining the
components of a truck bomb, including a truck, ammonium nitrate, racing and
diesel fuel, detonation cord, timing devices, and other explosive materials.
5. The defendants used their private property, located on Forest
Service Road 43 in Cedar County, Washington, to conceal the truck bomb
components.
6. The defendants constructed, and aided and abetted in constructing,
an explosive truck bomb.
7. The defendants aided and abetted in placing the truck bomb onto a
Washington State ferry.
Overt Acts
To further the conspiracy and to achieve its objectives, the defendants
committed and caused to be committed the following acts, among others, in the
District of Washington and elsewhere:
8. On or about January 17, 2011, the defendant HUTAREE JONES
caused a destructive device to be placed in downtown Cedar, Washington, at the
site of the Martin Luther King Day parade.
9. On or about July 10, 2011, HUTAREE JONES met with a
confidential source and discussed the general nature of the conspiracy, including
the need to acquire explosives for the attack, and the plan to detonate a truck
bomb on a Washington State ferry. On this same date, HUTAREE JONES
instructed the confidential source to travel in interstate commerce and acquire
fertilizer, which was intended for use in constructing the truck bomb.
7

10. On or about August 3, 2011, defendant BILLY JOE JONES traveled
in interstate commerce with a confidential source to acquire fertilizer for use in
constructing the truck bomb.
11. On or about August 3, 2011, defendants HUTAREE JONES and
BOBBY JOE JONES, accepted delivery of fertilizer from the confidential source,
and agreed to store the fertilizer for later use in constructing the truck bomb.
12. On or about August 15, 2011, BILLY JOE JONES and the
confidential source conducted a “dry run,” designed to test the security measures
at the Washington State Ferry system, by placing a test explosive device onto a
Washington State ferry.
13. On or about August 20, 2011, defendants HUTAREE JONES,
BOBBY JOE JONES, and BILLY JOE JONES assisted the confidential source in
detonating a destructive device which was designed to test the operability of the
truck bomb.
14. On or about September 4, 2011, defendants HUTAREE JONES,
BOBBY JOE JONES, and BILLY JOE JONES assisted the confidential source in
assembling the weapon of mass destruction.
15. On or about September 4, 2011, defendants HUTAREE JONES
and BILLY JOE JONES traveled to the bombing location. HUTAREE JONES
was armed with a remote control detonator and was prepared to detonate the
truck bomb.
All in violation of Title 18, United States Code, Sections 2332a(a)(2)(C) and
2332a(a)(3).
COUNT TWO
(Conspiracy to Bomb a Place of Public Use and
a Public Transportation System)
16. Beginning at a time unknown, and continuing until on or about
September 4, 2011, at Cedar County, within the District of Washington, and
elsewhere, HUTAREE JONES, BOBBY JOE JONES, BILLY JOE JONES, and
other persons known and unknown, knowingly and intentionally did conspire to
8

omb a place of public use and a public transportation system, that is, a
Washington State ferry, and did aid and abet in unlawfully delivering and placing
an explosive device onto a Washington State ferry, with the intent to cause death
and serious bodily injury, and with the intent to cause extensive destruction of the
Washington State ferry, where such destruction was likely to result in major
economic loss.
The allegations contained in paragraphs 1-15 of Count 1 above are herein
re-alleged and incorporated by reference.
All in violation of Title 18, United States Code, Sections 2332f.
COUNT THREE
(Conspiracy to Murder Officers and Employees of the United States)
17. Beginning at a time unknown, and continuing until on or about
September 4, 2011, at Cedar County, within the District of Washington, and
elsewhere, HUTAREE JONES, BOBBY JOE JONES, BILLY JOE JONES, and
other persons known and unknown, knowingly and intentionally did conspire to
kill officers and employees of the United States and of an agency of the United
States Government, while such officers and employees were engaged in, and on
account of the performance of, their official duties, and to kill other persons
assisting such officers and employees in the performance of such duties and on
account of that assistance.
The allegations contained in paragraphs 1-15 of Count 1 above are herein
re-alleged and incorporated by reference.
All in violation of Title 18, United States Code, Sections 1114(1) and 1117.
A TRUE BILL
DATED: __________________
_________/s/_________________________
GRAND JURY FOREPERSON
9

JURY INSTRUCTIONS
10

Instruction No. 1
The defendant has entered a plea of not guilty. That plea puts in issue
every element of the crimes charged. The government has the burden of proving
each element of a charged crime beyond a reasonable doubt. The defendant
has no burden of proving that a reasonable doubt exists.
A defendant is presumed innocent. This presumption continues
throughout the entire trial unless, during your deliberations, you find that it has
been overcome by the evidence beyond a reasonable doubt.
________________________________________________________________
Instruction No. 2
A reasonable doubt is a doubt for which a reason exists and may arise
from the evidence or lack of evidence. It is such a doubt as would exist in the
mind of a reasonable person after fully, fairly and carefully considering all of the
evidence or lack of evidence.
All twelve of you must agree in order to return a verdict.
________________________________________________________________
Instruction No. 3
Evidence may be either direct or circumstantial. Both types are valuable
and entitled to be given significant weight. Direct evidence refers to something
stated by a witness who has directly seen or otherwise perceived something that
is at issue in the case. Circumstantial evidence refers to evidence from which,
based on your common sense and experience, you may reasonably infer
something that is at issue in the case.
________________________________________________________________
Instruction No. 4
In deciding the facts in this case, you may have to decide which testimony
to believe and which testimony not to believe. You may believe everything a
witness says, or part of it, or none of it.
In considering the testimony of any witness, you may take into account:
1. the opportunity and ability of the witness to see or hear or know the
things testified to;
2. the witness' memory;
3. the witness' manner while testifying;
4. any interest, bias or prejudice of the witness;
5. whether other evidence contradicted the witness' testimony;
6. the reasonableness of the witness' testimony in light of all the
evidence; and
7. any other factors that bear on believability.
11

Instruction No. 5
A witness who has special training, education or experience in a particular
science, profession or calling may be allowed to express an opinion in addition to
giving testimony as to facts. You are not, however, required to accept this
opinion. To determine the weight and credibility to be given to this type of
evidence, you may consider, among other things, the education, training,
knowledge and ability of the witness. You may also consider the reasons given
for the opinion and the sources of his or her information, as well as considering
the factors already given you for evaluating the testimony of any witness.
________________________________________________________________
Instruction No. 6
The Defendant is charged with conspiracy in each of the three separate
counts. A conspiracy is a kind of criminal partnership – an agreement of two or
more persons to commit one or more crimes. The crime of conspiracy is the
agreement to do something unlawful; it does not matter whether the crime
agreed upon was actually committed.
For a conspiracy to have existed, it is not necessary that the conspirators
made a formal agreement or that they agreed on every detail of the conspiracy. It
is not enough, however, that they simply met, discussed matters of common
interest, acted in similar ways, or perhaps helped one another. You must find that
there was a plan to commit at least one of the crimes alleged in the indictment as
an object of the conspiracy with all of you agreeing as to the particular crime that
the conspirators agreed to commit.
One becomes a member of a conspiracy by willfully participating in the
unlawful plan with the intent to advance or further some object or purpose of the
conspiracy, even though the person does not have full knowledge of all the
details of the conspiracy. Furthermore, one who willfully joins an existing
conspiracy is as responsible for it as the originators. On the other hand, one who
has no knowledge of a conspiracy, but happens to act in a way that furthers
some object or purpose of the conspiracy, does not thereby become a
conspirator. Similarly, a person does not become a conspirator merely by
associating with one or more persons who are conspirators, nor merely by
knowing that a conspiracy exists.
An overt act does not itself have to be unlawful. A lawful act may be an
element of a conspiracy if it was done for the purpose of carrying out the
conspiracy. The government is not required to prove that the defendant
personally did one of the overt acts.
12

A conspiracy requires the participation of at least two true co-conspirators.
There can be no conspiracy when the only person with whom the Defendant
allegedly conspired was a government agent who secretly intended to frustrate
the conspiracy.
________________________________________________________________
Instruction No. 7
For the Defendant to be found guilty of the conspiracy charged in Count
One of the Indictment, the government must prove each of the following
elements beyond a reasonable doubt:
1. The Defendant conspired to use a weapon of mass destruction
against any person or property within the United States; and
2. The Defendant did not have lawful authority to use the weapon of
mass destruction; and
3. The property was used in interstate or foreign commerce, or in an
activity that affects interstate or foreign commerce, or if any perpetrator
traveled in, or caused another to travel in interstate or foreign commerce
to further the offense, or the offense would have affected interstate or
foreign commerce.
The term "weapon of mass destruction" means a destructive device,
including any explosive, incendiary device, or any weapon that is designed or
intended to cause death or serious bodily injury. The term "interstate commerce"
includes any movement or transportation of persons, goods, merchandise,
securities or money from one state into another state. The term "facility of
interstate commerce" includes means of transportation and communication.
________________________________________________________________
Instruction No. 8
For the Defendant to be found guilty of the conspiracy charged in Count
Two of the Indictment, the government must prove each of the following
elements beyond a reasonable doubt:
1. The Defendant conspired to deliver, place, discharge, or detonate
an explosive device or other lethal device; and
2. The target of the explosive device or lethal device was a place of
public use or a government facility, or an infrastructure facility; and
3. (A) The Defendant acted with the intent to cause death or serious
bodily injury; or
(B) The Defendant acted with the intent to cause extensive
destruction of such place, facility, or system, where such destruction was
likely to result in major economic loss.
13

Instruction No. 9
For the Defendant to be found guilty of the conspiracy charged in Count
Three of the Indictment, the government must prove each of the following
elements beyond a reasonable doubt:
1. The Defendant conspired to kill an officer or employee of the United
States, or any branch of the United States government, including any
member of the uniformed services; and
2. The Defendant sought to kill the officer or employee of the United
States, on account of the performance of their official duties.
________________________________________________________________
Instruction No. 10
The Defendant claims entrapment by a government agent. The
government has the burden of proving beyond a reasonable doubt that the
Defendant was not entrapped. The government must prove the following:
1. The Defendant was not induced by a government agent to commit the
crime; or
2. The Defendant was predisposed to commit the crime before being
contacted by a government agent.
When a person, independent of and before government contact, is
predisposed to commit the crime, it is not entrapment if a government agent
merely provides an opportunity to commit the crime.
The government is not required to prove both lack of inducement and
predisposition. If a defendant is found to be predisposed to commit the crime, an
entrapment defense is not available regardless of the inducement.
In determining whether the Defendant was predisposed to commit the
crime before contact by government agents, you may consider the following:
1. The Defendant’s character and reputation;
2. Who initially suggested criminal activity;
3. Whether the Defendant stood to gain by the criminal activity;
4. The nature of any inducement; and
5. Any other factors that relate to predisposition.
A private citizen acts as a government agent when the government
authorizes, directs and supervises that person’s activities for a governmental
purpose. In determining whether someone was acting as a government agent,
you should consider all of the surrounding circumstances, including the person’s
relationship with the government, the purpose of the activities and the extent of
the government’s knowledge and control of the person’s activities.
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WITNESS STATEMENTS
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STATEMENT OF SAM(ANTHA) STONE
My name is Sam Stone. I am a Special Agent with the Federal Bureau of
Investigation. I joined the FBI in August 2007, after working thirteen years for the
Cedar County Sheriff’s Office. I began my career as a patrol officer, then worked
narcotics cases as a detective for ten years. My last assignment as a detective
was with the Cedar County Regional Drug Task Force (RDTF). Through my
work on this task force, I was able to meet a lot of federal agents and impress
them with my work. A lot of them told me on the side that I was wasting my time
with the county and should be working for the feds. Since I was “one of the best”
(their words, not mine) I should be working for the best. I had my pick of
agencies – DEA, ATF and FBI. I chose the FBI because it is the most
prestigious law enforcement agency in the world. Only Scotland Yard comes
close to the Bureau in reputation.
My training includes the Washington State basic law enforcement
academy in 1993, advanced narcotics investigation, advanced arson
investigation, and basic homicide investigation. I have served over 500 search
warrants, either as the primary detective or part of a team. In 2003, I received the
Cedar County Sheriff’s Office Detective of the Year award, for my work on the
RDTF, because we had reduced meth labs by 30% between 2000 and 2002. In
late 2007 and early 2008 I attended the 16 week FBI Academy in Quantico,
Virginia. Cedar County was my first assignment after leaving the academy – you
usually don’t get your first choice, but I was really lucky to get mine. I’m sure it
helped to finish first in my class.
I have had several big cases in my career, but two stand out. The first
happened in August 2005, when I was a Cedar County detective. A cabin on
Lonesome Lake burned to the ground in a meth fire, killing one of the occupants.
I was the lead investigator on that case, and there was a sensational trial that got
a lot of media attention. You may have heard of it.
The second big case happened in 2008-2009. I was the lead FBI agent
on the cold-case investigation into the arson fire of the Washington A&M
University Urban Horticulture Building. I worked the case up, found a cooperating
witness, and solved the case. Trial was rough, I won’t lie to you; the defense
came at me hard. But even so, it was a learning experience. That’s one thing
about this business that I like -- I am constantly learning. Every case I
investigate, I learn something. I especially learn from my mistakes; and I’ll admit
I’ve made a few over the years--everyone does.
In 2009, I was assigned to headquarters in Washington D.C. for a detail
on the International Terrorism Squad. In 2010, I was accepted into training for
the FBI’s elite Hostage Rescue Team. The HRT responds to crises anywhere in
the world, offering tactical response in high risk situations. Unfortunately, I
injured my back and shoulder in a fall from the ropes course during HRT training,
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and I was unable to complete the training. As a result, I requested a transfer
back to Cedar County, to be closer to my parents, who are getting on in years. I
am not married and have no children. I have no time and no interest.
I have been assigned to the Domestic Terrorism (DT) squad since
December 2010, when I returned to the Cedar County Field Office from HRT
training. I worked on this same squad in 2008-09, when I solved the A&M arson
fire. In addition to my work for the FBI, I regularly teach at the Washington State
Police Academy on the subject of domestic terror groups, and I teach an annual
one-week course at the FBI Academy in Quantico, Virginia on the same subject.
Both of these classes discuss the history of domestic terror groups in the US,
current trends, and law enforcement safety concerns related to these groups.
The Joneses and the Sovereign Citizen Movement:
In December 2010, my supervisors assigned me to conduct an analysis of
possible DT threats related to the 10th anniversary of 9/11, which was less than
a year away. Not much had been done by the Field Office to conduct any sort of
threat analysis related to the 9/11 anniversary, and we all strongly suspected that
something was likely to occur in this region -- we just have too many whackos
around here. We have an active DT threat in Washington State, with home
grown extremists such as skinheads, ultra-fascists, and left wing, eco-terrorist
groups, such as the Earth Liberation Front and Animal Liberation Front.
My threat analysis focused on any and all DT threats, but I knew going in
that the greatest DT threat to our region comes from the Sovereign Citizen
movement. In my opinion, Hutaree Jones and the Jones clan are by far the most
dangerous Sovereign Citizens in Washington State. I was certainly aware of the
Joneses, when I was a Cedar County deputy sheriff. We used to see them drive
around with their pick-up trucks and their home-made, wooden license plates,
claiming they did not need to abide by any state laws. The incident with the
trooper really put a scare into all of us in law enforcement, and when they holed
up on their compound, there was a bunch of us in law enforcement who wanted
to go in and get ‘em, but upper management said “No,” and we had to stand
down. That put a burr under a lot of saddles, let me tell you. So the Joneses
were pretty much at the top of my list when I began my threat assessment for
“9/11 + Ten,” as we called it, and they never really dropped from that top spot.
I should give a little background about the Sovereign Citizen movement.
The FBI considers sovereign-citizens to be a domestic terrorist movement. We
estimate that approximately 300,000 people in the United States hold Sovereign
Citizen beliefs, or admit to membership in a Sovereign Citizen group. About onethird
of these, or 100,000 people, are hard-core believers in the ideology of the
movement. Members are scattered across the United States, and they exist in
nearly every state. I estimate that there are approximately 1,000 people in
Washington State who identify themselves as Sovereign Citizens; of these,
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approximately 300 are hard-core believers. In my threat analysis, I rank
Sovereign Citizens as the number one domestic terror threat in Washington
State. They pose a special risk to law enforcement officers, government officials,
and members of the judiciary. The core belief of a “Sovereign Citizen” is that,
even though he or she is born and resides in the United States, he is his own
sovereign, and is therefore not a United States citizen. These people believe
that there were no U.S. citizens at all before the passage of the Fourteenth
Amendment. They believe that the federal government has tricked people into
becoming U.S. citizens by entering into fraudulent “contracts” with people using
documents such as birth certificates and social security cards. With these
contracts, a person unwittingly creates a fictitious entity (i.e., the U.S. citizen) that
is separate from the real person. Sovereign Citizens believe that their fictitious
identity is represented as their real name in all capital letters. They believe that
this is why the government writes names in all-capital letters on birth certificates,
driver’s licenses, and other government documents.
Sovereign Citizens also believe that the U.S. government has tricked its
citizens into signing over all of their land and other property as security for the
national debt. As a result, Sovereign Citizens engage in what I call “paper
terrorism.” They file fraudulent claims against the government and default
judgments against government officials. They also refuse to pay any taxes, and
do no recognize federal, state, or local laws, policies, or regulations. In addition,
they often create their own version of license plates, driver’s licenses, and even
currency. Some Sovereign Citizens finance themselves by selling “diplomatic
identity” cards to other members, claiming these confer “diplomatic status” and
give them immunity from prosecution in US courts. This all may sound like just
wacky stuff, but it can lead to real danger.
I have taken a closer look at Sovereign Citizens’ violent tendencies. While
the vast majority of Sovereign Citizens do not act out violently, a smaller, more
hard core group, will do so. Hutaree Jones and the Jones clan represent this
segment of Sovereign Citizens. If a government authority figure challenges a
member of this group (for example, during a police traffic stop), then the behavior
of these Sovereign Citizen extremists can quickly escalate to violence. Since
2000, Sovereign-Citizens have killed six law enforcement officers in the United
States. For example, in 2010, two Arkansas police officers stopped sovereign
citizen extremists Jerry Kane and his son Joseph on a routine traffic stop. Joseph
Kane jumped out of the vehicle and opened fire with an AK-47 assault rifle, killing
both officers. Another notable example is Terry Nichols, who helped plan the
1995 Oklahoma City courthouse bombing. And in 1996, a group in Montana
known as the “Montana Freemen” attempted to create their own government
known as “Justus Township” which led to an 81 day armed standoff with the FBI.
The bottom line is that Sovereign Citizens of this category will plan and commit
acts of violence against the government and government representatives.
In my opinion, Hutaree Jones and the Jones clan fall into this category of
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violent Sovereign Citizens. This is evidenced by their statements espousing
violence, by their willingness to act out violently against law enforcement, and by
the obvious care and planning they have taken to arm their compound for an
“end of the world” type siege. It was precisely because of our firm belief in the
high risk posed to the general public by the Jones clan that we went to the
lengths we did in order to insure a successful investigation and prosecution.
The MLK Day Parade Bomb
We began exploring DT threats in early 2011, and right away the Martin
Luther King Day bombing was an obvious precursor to an attack on 9/11 + ten.
We knew that such preliminary attacks were a possibility, so the attempt did not
surprise me; we were lucky that no one was hurt. I was the lead FBI agent on
the MLK Day bomb case, and I responded when the backpack bomb was still on
scene. The bomb was discovered by some alert city workers, who found it on a
park bench along the parade route. They looked inside and saw wires, then
called us. After the Cedar Police bomb squad neutralized the device and
rendered it safe, I examined the device on scene and in the FBI evidence room,
and I reviewed the FBI lab report on the device.
The device was operational, it was deadly, and it was intended to inflict
multiple casualties. The device was a directional pipe bomb – meaning it was
designed to spray shrapnel in the direction it was pointed, which in this case was
the parade route. If the device had detonated, it would have caused multiple
casualties among the marchers. The pipe bomb contained about 100 metal
fishing weights, which were supposed to act as shrapnel, and were coated with
rat poison, which acts as a blood anti-coagulant, so that people hit by the blast
would “bleed out” without immediate medical care. About 1,500 people showed
up for the parade, including many families with young children. Someone
obviously took time to place the device in just the right spot to maximize
casualties. This was a vicious, calculated act.
The device had a remote detonator operating on a radio frequency
system, meaning that a mobile phone, which expends radio frequency energy
(RF), could be used to detonate the device. I examined the device inside the
pack and extracted several latent prints of comparison value. We submitted all
the prints to the FBI lab in Quantico, Virginia, which ran a check through multiple
databases. Two days after the bomb was discovered, we got a hit matching the
prints to Sage Annandale, whose prints were on file for a 2008 arrest.
Sage was not on our radar screen, I will admit. An on-and-off electrician,
working a late night shift at a Gas ’N’ Sip, is not the type of criminal you stay up
late worrying about. We also thought it was odd that Sage left prints all over the
detonator – someone was really careful to place the backpack without being
seen, and took care to leave no prints on the pipe bomb itself. We just thought
that there was more to the story, and my instinct was that this was part of
something bigger – not just the work of a “lone wolf” terrorist.
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Three days after the bomb scare, we arrested Annandale. We came in
heavy on Annandale’s home, grabbing him/her as quickly and quietly as possible
as s/he left for work. We did not want to alert the neighbors. We had a search
warrant for Annandale’s home and got his/her address book, which contained the
contact info for the Jones clan. We also found fishing weights, similar to the size
and shape of those used in the bomb, and Acme rat poison, which is a generic
brand of rat poison, which was also consistent with the type of rat poison found in
the backpack bomb. Based on all of that, I knew we were on the right track.
The Investigation of the Jones Clan
I was the lead interviewer of Sage Annandale after his/her arrest on the
backpack bombing. S/he was malleable from the get-go, waiving Miranda and
agreeing to talk. S/he was a weepy mess, really incarceration-averse and that
played into my hands. I remember Sage saying “I’ll do anything,” or words to that
effect. I explained what I knew to be true -- that things were not adding up in this
case -- that Sage could not have acted alone, and that there were a lot of missing
pieces that s/he could help us put together. I placed Sage’s address book on the
table, opened it to the page that had Hutaree Jones’ mailing address and a
phone number for TJ Jones, and said “Tell me about Jones.” That was all I said;
I made no suggestion that Jones had anything to do with the backpack bomb--I
just said “Tell me about Jones.” Sage asked, “Which one” I said, “You tell me
which one.” I knew I could not suggest an answer to a potential cooperator.
Sage’s eyes lit up, as if knowing the jig was up. S/he said, “Hut Jones is
the one you want.” Sage said that s/he had been making detonators for the
Jones clan, and had just made a detonator for Hut Jones around Christmas time.
Sage said that the Jones clan must be the ones behind this bomb. S/he started
to relax, and said s/he would tell me everything, and was willing to cooperate
against them. I got Sage talking – I’m a good interrogator and I can sense a
person’s weak spots. S/he told me how s/he had been making detonators for the
Joneses for several months. S/he told me about a ledger with the dates, prices,
etc. to corroborate what s/he had been telling me and later s/he showed it to me.
I knew I was in a tricky spot. The public was obviously worried about the
MLK Day bomb incident, and we were under pressure to publicly announce an
arrest. Still, I managed to get headquarters’ approval to keep Annandale’s arrest
quiet, and to let Annandale remain out of custody so we could work the case up
the ladder to the main players. Sage and I devised a plan to go after the Jones
clan. We knew the Joneses must have been frustrated when the MLK bomb did
not go off, and they were going to want to do something even more dramatic.
I made it very clear to Sage that, moving forward, any ideas had to come
from the Joneses, not from Sage, otherwise it would be entrapment. We
developed a plan where Sage would work his/her way into the Jones family
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compound, offer his/her services for future detonators, and let the fish take the
bait, so to speak.
Within a few weeks, it became clear that Sage could not keep a job and
also do the undercover work needed for this case project. We had to pay
him/her – simply from an efficient use of time standpoint. Sage worked for us
pretty much full time from February to mid-September 2011, and we paid him/her
$20,000 a month, for a total of about $150,000. I realize this might seem like a
lot of money, but to get a top terrorist target off the streets, from a public safety
standpoint, it was good use of taxpayer dollars, in my opinion – and in the
opinion of FBI management, which approved the entire project.
As for Sage’s child custody battle, the funny thing is that as much time as
we spent together, I didn’t even know Sage had kids until summer. Then, all of a
sudden, some custody dispute Sage was involved in became a hot topic. I made
some general comments that we could “try” to assist in that custody battle, but I
think Sage took my words out of context. The FBI can’t meddle in state court
issues and it would be completely against the Attorney General Guidelines
Regarding the Use of Confidential Informants, for me to make any promises. I
think Sage misunderstood what I was saying. I told Sage I could write one
supportive letter and that would be it. No guaranties about what would happen. I
gave my confidential letter to Sage’s lawyer and I don’t know what was done with
it. It truthfully explained Sage’s role with us but, due to national security
concerns, I am not at liberty to produce a copy or to discuss its specific content.
We intended to have Sage wear a body wire for every visit with the
Joneses, but Sage explained that they had patted him/her down for wires on
his/her first visit in October 2010. From my own experience with the Sovereign
Citizen movement, I knew this to be a common practice among its members, so I
found this to be credible as it related to the Joneses. We made an investigative
decision to rely on Sage to give us debriefings immediately after each meeting.
Another operational difficulty was the physical remoteness of the Jones
compound, which made visual surveillance nearly impossible. We had to rely on
Sage driving out to the compound without visual support. Each visit was risky, so
we had to rely on Sage’s wits and ability to make it work.
Sage was able to get back to the Jones compound in late January 2011,
which was huge coup for us – law enforcement had not had a look inside that
compound in eight years. What Sage told us let us know that we were on the
right track – s/he said that they had “every weapon in the book,” with night vision
goggles, and a real bomb-making factory. We redoubled our efforts.
Throughout the Spring and Summer of 2011, Sage continued to meet with
Hut Jones and the Jones family just about two to three times a week. Sage
always debriefed us immediately after every meeting. During the summer of
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2011, Hut made clear his/her intentions of executing a terrorist attack with a truck
bomb on a Washington State ferry, targeting US Navy sailors. Hut wanted to
make a big splash, excuse the pun. Hut had the plan, the expendable truck and
some explosives (fertilizer and diesel fuel) but needed more. Sage helped with
that and we helped Sage acquire these. Sage, of course, would provide the
detonator and timing device. We also came up with the idea of using frozen
berries to hide the explosives from any Homeland Security dogs that might alert
on the truck prematurely. I fed this idea to Sage, who passed it on to Hut.
Hut planned the attack for the Sunday of Labor Day Weekend in 2011
(September 4, 2011). Besides being close to the 9/11+ ten date, Hut knew that a
lot of Navy personnel would be coming in to Cedar from their base across the
bay for the big Labor Day festival.
To make our case against Hut Jones ironclad, I wanted to get the truck
with the explosives all the way onto the boat with Hut nearby before we closed our
trap. It was also a consideration that it would be much safer arresting Hut off of
his/her property. I strongly encouraged Sage to have Hut leave the compound,
but I did not force the issue. Sage told me that it “would not be a problem,”
because Hut wanted to be there. I am detail oriented, so of course I was
concerned, but everything worked out OK.
The Letters
Meanwhile, in late January, I was alerted by the Cedar Plain Dealer (the
largest newspaper in Cedar County) that they had received a handwritten letter
that appeared to relate to the MLK Day bombing attempt. We recovered the
letter from the newspaper, which had agreed not to publish its contents during
the pendency of the investigation. The letter was sent to the FBI Lab in
Quantico, Virginia, where it was processed for latent fingerprints, DNA, and
handwriting. Nothing of forensic value was discovered. The letter was
concerning; we knew that the attacker was still at large and an active threat.
Later, as our investigation was quietly progressing, two more letters came in to
the newspaper and got passed on to us. These were also sent to the lab with the
same inconclusive result.
Events of September 4, 2011
Sage was right. On Sunday, September 4, 2011, at approximately 1600
hours, I was part of the surveillance team that tracked Hut Jones and Billy Joe
Jones as they left the Jones compound, and drove directly to the ferry terminal.
We began following them as they turned off of FS Road 43 and onto Highway
705, which leads into Cedar. The pair did not stop at any location along the way.
Hut was wearing a disguise– a baseball hat, sunglasses, and a jacket with the
collar turned up. At approximately 1640 hours, they arrived at the ferry terminal.
Billy Joe pulled to the curb, Hut exited Billy Joe’s truck and entered a coffee
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shop, just as Sage was getting into the ferry line with the “loaded” truck. Billy Joe
drove off, and agents lost surveillance of him in the heavy Labor Day traffic (we
tried to call in air support but all the helicopters had been pulled away to assist in
fighting a large forest fire in central Washington). We have not seen Billy Joe
since that day, and there is a warrant out for his arrest as a co-conspirator, as
well as Bobby Joe. I worry for the law enforcement officers who find that pair.
Hut sat on the deck of the coffee shop for almost two hours. I sat just
outside the coffee shop entrance, about 30 feet away, and observed him/her. Hut
had a pair of mini binoculars, and looked at the boat traffic as it passed back and
forth across Cedar Bay. Hut looked around a lot, as if doing counter surveillance,
and looked at his/her watch a lot. Hut seemed real nervous. Finally, Sage’s truck
got onto the ferry “Olympia,” which was scheduled to depart at 6:35 pm.
After Sage’s truck drove onto the Olympia, I received word that Sage had
walked off the ferry and made it to the FBI tactical team van. As the ferry left the
terminal, Hut pulled out a cell phone and set it on the table. Hut watched the
ferry sail into the middle of Cedar Bay. I watched as Hut then dialed a number
and then stared at the ferry. We moved in and, holding my badge in one hand
and my service weapon in the other, I shouted “FBI, show me your hands!”
Before we could reach him/her, Hut threw the cell phone into Cedar Bay, and
then raised his/her hands, real calmly. The only thing Hut said was, “You are the
tyrant’s puppet and the enemy of the people.” Then s/he asked for a lawyer,
and said nothing else. On two occasions in the days following the arrest, we
sent police divers down into the bay to locate the cell phone, without success.
Either the bottom fish or the muck swallowed it up.
We did a head count of military personnel and equipment on the ferry
Olympia. Based upon military identification and personnel records, we counted
220 U.S. Navy personnel. Of these, 47 were in uniform, many of whom had been
working throughout the day at a Navy recruiting station set up at the Labor Day
festival. There were also 84 navy spouses, and 78 children of these Navy
personnel. There were sixteen US Navy vehicles on the ferry. The ferry itself
was packed, and the total number of people and vehicles is listed separately.
Follow-up Investigation
Following Hut’s arrest, we began an all-out search for the remaining Jones
clan. We have been unable to find either Billy Joe or Bobby Joe Jones since that
day, despite a nationwide manhunt. We believe they may be hiding in the forests
of north-central Washington, and may have hiked into Canada. I expect they will
turn up some day, just like Eric Rudolph did, scrounging for food in garbage
dumpsters. We brought TJ Jones in for questioning. We threatened to charge
him/her if s/he did not cooperate, but TJ stood firm and refused to give us any
information. We have not been able to tie TJ into the conspiracy, but anything’s
possible if we develop the evidence, and I am keeping TJ’s case open.
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On the evening of September 4, we executed a search warrant at the
Jones compound. The compound was heavily fortified. Each “building” (the
main residence and six outbuildings) had been rigged with improvised explosive
devices (IED’s) which had been designed to blow up if anyone tried to enter
them. We had a to use a robot to disarm these IED’s before entering the trailers.
Once we entered each outbuilding, we found each one to be a trailer that had
been buried into the earth and heavily fortified with dirt, logs, and earth, with a
heavy wooden door providing the main entrance. The outbuildings were
connected to one another via tunnels. Each outbuilding was provisioned with
sufficient food, water, weapons, ammunition, and other gear so as to last two
people for three months, in my opinion. In the outbuildings, we found six large
boxes of fishing weights, similar to the size and shape of those used in the
backpack bomb. We also found several boxes of Acme rat poison, which is a
generic brand of rat poison, which was also consistent with the type of rat poison
found in the Martin Luther King Day backpack bomb.
We recovered fifty-seven weapons from the Jones’ property, all of which
were found in the various outbuildings. The ATF ran traces on all the weapons.
Each firearm had been legally purchased by a member of the Jones family:
seventeen by Hut Jones before 2004, twelve by Billy Joe Jones before 2004.
Bobby Joe Jones purchased twenty-three firearms, and Jo Jo (a/k/a TJ) Jones
was the registered purchaser of five of the firearms. We also recovered five gas
masks, three sets of night vision goggles, three sets of body armor, and
thousands of rounds of ammunition, of the type used for all of the firearms found.
All of this was lawfully purchased, but was not lawfully owned because it is
considered part of this criminal conspiracy.
We also recovered hundreds of documents, including books, magazines,
brochures, and papers, with anti-government rhetoric, including, “The Federal
Mafia” and “The Sovereign Citizen’s Handbook.” In what appeared to be the
cabin belonging to Billy Joe (based upon papers and documents of dominion and
control we found inside), we found a copy of “The Turner Diaries.”
I know there’s been some criticism of our methods in the press, especially
for bringing explosives onto the ferry terminal. Listen, we knew there might be
blowback, but this operational plan was vetted at the highest levels of the FBI;
everything was done by the book and with public safety in mind. The explosives
would not have blown, and no one was put in harm’s way. Given who the
Joneses are, and the ongoing threat to law enforcement and the community, we
were willing to take some risk in order to make sure we got them and got them
good. But that’s the media for you – they need to find something to criticize.
On the other hand, this case has made me a hero with law enforcement.
Every cop in the state has been waiting for someone to nail the Jones clan. They
tell me I’ll never have to buy a drink in this state again. Makes me feel good.
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STATEMENT OF SAGE ANNANDALE
My name is Sage Annandale. I am 37 years old. I formerly lived in Cedar
County, Washington, although I currently live in an undisclosed location in the
Department of Justice witness security program, known as “witsec.” I am single
– divorced, and a parent to three children, ages 9, 7, and 5. They are my world,
and I would do anything for them. They are with me now in the witsec program,
which is good and bad -- good because the government pays for their care, bad
because they have had to start life over again with me in a new place. My fiveyear-old
son is developmentally disabled, and needs significant medical care,
including occupational therapy and physical therapy, for at least the next several
years, and maybe forever. The State covers some of these medical expenses
but not enough to cover everything. Life has not been easy.
I am an electrician by trade, which was a good line of work to be in for a
long time. I worked with my spouse, Everly, for several years. Everly owned a
chain of auto-repair shops, and I did the electrical work on the cars. I took a
couple of accounting classes in community college, so I also did the books for
the business. Things were good until mid- 2008, when the economy started to
go south. The business was not going so well, and Everly blamed it on me. Yes,
I admit that I didn’t file tax returns for our business for several years, but I just
never saw the point in our government taking my hard-earned money. Everly
didn’t see it that way, and when s/he discovered what I’d done, we argued, yes,
and s/he took the kids and left me in late 2008. In 2009, I was charged in federal
court and ultimately pled guilty to five misdemeanor counts of failure to file
income taxes, for the tax years 2003-2007. Kicking me when I was down didn’t
endear me to the U.S. government any more, I can tell you.
We had a pretty rough divorce, and I wound up deeply in debt from
attorney’s fees. On top of that, Everly, who was still quite wealthy from the auto
business (even after paying the IRS fines), took all of our savings, basically
robbing me blind. When I found out that Everly had emptied our savings
account, I did a stupid thing – I bashed in Everly’s windshield with a baseball bat
– I blame that little act of stupidity on listening to too much country music, which
sort of encourages that behavior. Of course, as luck would have it, the cops
drove by right when I was doing the smashing, and yes I did point the bat in the
general direction of the police officer. I was arrested and charged with felony
malicious mischief and felony assault on a police officer. My lawyer was terrible
and pushed me into a guilty plea -- reluctantly, I agreed to plead guilty to both
charges in state court in January 2009. I got probation, community service, and
a felony record and soured any chance I might have had in my divorce case.
My divorce lawyer was also pathetic and I wound up losing everything.
My kids were taken away from me even though I’m the one who had looked after
them a lot of the time since Everly was working and I wasn’t. The judge claimed
it was due to my “mental instability,” and my criminal record. In our August 2009
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dissolution decree, I was given a “minimum” of one weekend a month with the
kids but, because they needed me, I spent much more time with them than that.
Anyway, this became irrelevant when Everly died in April of 2011, when the car
s/he was repairing fell on him/her. First the State of Washington tried and now
Everly’s wicked sibling, Waverly Rouse, is trying to get my kids, but Agent Stone
has promised to help me with the custody battle. That’s not part of any written
agreement, but s/he verbally promised me that help. I don’t really know what
Waverly is up to. I have a lawyer dealing with all that. All I know is how much I
love my kids and that’s why I’ve been fighting for them so hard from the start.
After my divorce was finalized, I didn’t stay knocked down for long – I
wound up getting a job working the counter at the Gas ’N’ Sip, the one out on
State Route 619, before it cuts off to Forest Service Road 43. I worked the night
shift – 8 pm to 8 am, so I could see my kids during the daytimes. It made for
some long days, but at least it was a job –I was never one of these people to
complain and ask people for handouts. I got out there and did what needed to be
done. So I worked, and once I showed I was no layabout, my boss let me set up
a little workshop in the Gas ’N’ Sip, behind the counter, where I could do some
electrical work on the side – small repairs like DVD players, clock radios, cell
phones, whatever people could bring in. This helped me a lot since it generated
under-the-table income and it seemed like the State and my ex were garnishing
most of my regular income for current and back child support.
We get a colorful bunch of characters coming in there for gas, and I got to
know the regulars, one of whom was TJ Jones. I only know him/her as TJ –
don’t know his/her real name. TJ came in a few times and we got to talking –
s/he noticed me tinkering on the small appliances, and asked me about my
electrical background. TJ mentioned that s/he did avalanche control up in the ski
resorts in the area, and asked me about remote detonators. I told him/her I’d
take a stab at it. It was probably around summer of 2010 that this happened. TJ
asked if I could work on a special project for him/her. TJ wanted to see if a cell
phone, when dialing a particular number, could signal to a timer, which would
then set off an explosive device. TJ said s/he had seen this done by insurgents
when s/he was working for the military in Iraq, and s/he wanted to do the same
thing for his/her avalanche control business. I had never done anything like this
before, so I read a few internet pieces on it and got it figured out pretty quickly. I
sold the first one to TJ, and the next thing I knew, I had a nice, steady stream of
business.
TJ began to bring in more cell phones and more timers – at least a dozen.
I set every one of them, and got $200 each. TJ always paid in cash and on time
-- two things I admire in a person. By the last one, I was getting pretty good at it
and the money was real good. In about October 2010, TJ said that s/he had
been talking to his/her sibling, Hutaree (goes by Hut), who wanted to meet me.
TJ invited me out to Hut’s place, which happens to be out FS 43, way up in the
woods, on some prime acreage along a river. TJ said Hut was having a
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barbecue and I could bring the kids since it was on a weekend when I was going
to have them for a visit and I couldn’t very well leave them home alone.
Hut’s place was real far out there. There were signs all over the fence that
runs along the road, saying things like, “Keep Out,” and “No Trespassing.” Also
some anti-government signs – one read, “When people fear the government,
there is tyranny. When the government fears the people, there is liberty.”
Another one read, “Vaccination = Annihilation.” When I arrived at the front gate,
TJ came out to meet me with his/her brother, Billy Joe, who was armed with a
sidearm in a holster. TJ was a bit embarrassed, explaining that they don’t trust
strangers, and Billy Joe would need to search me for wires to be sure I wasn’t a
federal agent. I had no problem with it, having dealt with the government myself
and not trusting anything the government might do. Billy Joe patted me down
and searched my belongings. When he was confident that I was not wearing a
wire or any surveillance equipment on me, they let me onto the property.
It was a beautiful Fall day, and there were about 30 or so people out there,
about a half dozen long-time friends of Hut’s, plus their families. Lots of kids, and
good food. Everyone was armed -- all the men and most of the women carried a
sidearm, and several people had military style assault rifles that they were
showing off to one another. Hut had a shooting range set up way out in the back
section of the property– shooting into a dirt mound which ran along the riverbank.
People were riding ATV’s out back and practicing with the weapons. Everyone
was real friendly, and it seemed like all of them had heard about me – “Hey
you’re TJ’s electrician,” they said, and told me how TJ had said I was such a
great electrician and whatnot.
I met Hut for the first time during this visit. You could tell that everyone
held Hut with the greatest respect -- s/he was like the matriarch/patriarch of a
clan. Even Billy Joe and Bobby Joe calmed down around Hut, like the meanest
dogs do around their owners. Speaking of dogs, Hut had several dogs
wandering around the property– at least three Rottweilers and the same number
of pit bulls. They were well-trained – they did not bother me or anyone else a bit,
during any of my visits out there. They just roamed along the fenceline of the
property and came back when Hut or one of the siblings called them back. It was
a bit scary how well-trained they were.
Hut showed me around the property. S/he showed me his/her residence,
which was a small log cabin that was very tidy and well kept. Hut was unmarried
and lived there alone. Each sibling also had their own small log cabin. In fact, all
three of their cabins were nearly identical, which was a bit strange -- it just
showed how close the family was, I guess. They also had several storage
trailers -- each one the size of a double wide trailer – which were buried in the
earth around the back acreage of the property. Then we got to talking about the
government, and Hut told me that his/her family belonged to the Cedar militia,
and when the battle came, they were going to set up a “New World Order” with
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other militias around the country. Hut said the “New World Order” would not pay
taxes, or kowtow to the Chinese or the Russians or anyone.
It was at this picnic, while we were walking around, that Hut said s/he had
a special job for me. S/he said s/he knew I needed money, and s/he said s/he’d
pay me $1,000 for this one job. It involved connecting a cell phone to a remote
car starter via an electrical circuit. I asked Hut why s/he needed this, and Hut
said s/he wanted to surprise his/her sibling, TJ, with a Christmas present. TJ
was bidding on a state contract to do avalanche control on the state highway
mountain passes, and the remote would be a safer, more efficient way to
detonate controlled avalanches. I didn’t know much about avalanche control –
still don’t – and the whole thing sounded weird to me. Why do you need remote
car starters for avalanche control Except for the money. That didn’t sound
weird at all. I told Hut that I would see what I could do.
I worked hard on it – I wanted that money. It took me about two months to
get it right—I remember I finished it right before Christmas 2010. It was sort of a
Christmas present for me too. I got Hut and TJ their remote detonator, and Hut
paid me the thousand dollars. I bought my kids some new boots, and sleds, and
we had a big turkey dinner with all the trimmings. That was a good Christmas.
I didn’t see much of Hut for the next couple months. In January 2011, I
saw the news about the backpack bomb they found in downtown Cedar, on
Martin Luther King Day. I was relieved they’d found the bomb before it went off
and no one was hurt. It was all over the news, and looked like a real bad deal for
whoever had done it. I sort of wondered about Hut, and the detonator I had
prepared, but it never really went beyond wondering for a moment or two.
About two days after the MLK Day bomb was found, the FBI SWAT team
arrested me as I was leaving my house to go to work for the day – there must
have been fifty cops there, strutting around like peacocks, acting tough for a mildmannered
electrician like me. They threw me up against my car and roughed me
up a bit – wouldn’t even tell me what I had done.
I went downtown to the Cedar FBI office, and the agents told me that they
had found my fingerprints all over the backpack bomb. Then it dawned on me --
Hut was not just talking -- s/he was having me make detonators for real, live
explosives. I felt like such a fool. Until that moment, I thought Hut was all talk.
I told Agent Stone about Hut, including what Hut had asked me to do and
what Hut had said about the government and about their militia and the New
World Order. Agent Stone told me that I wasn’t telling the whole truth, and I must
know more than I’m saying. While much of the interview is a blur, I remember
crying and saying, “You’ve got to believe me – my kids need me!” Agent Stone
left the room, and came back a few minutes later with a couple more FBI agents.
They asked me every detail about Hut. They asked me to draw a map of the
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property, and they wanted to know who else lived there, who I had seen on the
property. They were good, thorough interrogators, like I’d expect the feds to be.
We talked for hours. They took another break, a long one this time. I
guess they were checking out my story or something. They came back in and
told me I’d have to spend the night in jail while they checked out some things.
They let me call my job to say I was home sick so as to avoid suspicion.
The next morning the FBI agents came back, and told me my story
“checked out.” They said that Hut had been on their “radar screen” for years,
and was “slippery as an eel,” and that it was time to “put a stop to Hut once and
for all.” (Anything in quotes is what Agent Stone said to me, to the best of my
memory). Agent Stone asked me if I’d agree to “wear a wire” they called it, and
meet with Hut, and record some conversations. They said they’d let me out of
jail, and if things went well, then maybe they’d even not charge me with anything.
As I realized what they were asking me, I told them I couldn’t just give up my job
for this. Agent Stone said that if things went really well, they might be able to pay
me so I wouldn’t have to work. I explained how they had searched me when I
first visited the property and Agent Stone said that I would have to investigate the
case without wearing a wire.
Agent Stone and I decided that the best way for me to go in was to drop
by Hut’s place and confront Hut about the backpack bomb. This was risky and I
was scared, but it was the only way. I drove out there in late January. I didn’t
call ahead, because the Joneses don’t have or use telephones – they use
shortwave radios when they need to communicate with anyone, such as TJ.
When I pulled up, Billy Joe came out to the gate and searched me, then let me
in. He didn’t say much or even ask why I was there.
Hut was real friendly, but also cautious -- much more so than our first
meeting. I explained that I was out there because I had been reading the news
about a backpack bomb, and I said the news reported that the detonator was
“unusual and homemade,” which sounded like mine. I said I needed to know the
truth about the remote detonator I had made for him/her. I said I was worried
about the backpack they had found, and I wondered whether Hut had something
to do with it. I told Hut that s/he had put me in a real tight spot, and if the feds
came snooping around, I didn’t know what I should or shouldn’t tell them. There
was a long pause, and Hut sat real quietly and looked out the cabin window.
Billy Joe was there, and Hut looked at Billy Joe and shrugged, then said, “You
say anything to anyone about what I tell you, and Billy Joe here will kill you,
understand” I did and I said so. Then Hut sat back, sighed, and said, “You got
it figured out friend.” Hut immediately wanted me to know that TJ had nothing to
do with it. Hut said that Billy Joe had built the device, and Bobby Joe had gone
out to set it. Hut said they were trying to “jumpstart” the New World Order by
going “at the throat” of the US government. Hut said this one didn’t go as
planned, but s/he asked me if I wanted to help. I said yes, and Hut said they
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were planning something big (“Really big”). Hut asked me if I wanted in. I said
sure. Hut said when springtime came they were going to start planning for real.
When I told Agent Stone about this, Stone told me I had done a great job
– it was just what they were looking for, and s/he told me to “keep it going.” I
visited Hut a couple of times a week from February to May 2011. A lot of the
visits were just friendly visits -- dropping in to say hello and build the relationship.
Billy Joe searched me every time. During our visits, Hut asked me my thoughts
on the government and I unloaded a bit. By this time, Agent Stone had me
reading a lot of militia writers so I got to know the lingo. I told Hut that I didn’t
trust the government because they wanted to take my money and my kids from
me, send me to prison, and let my spouse use the courts to attack me. At one
point, Hut asked me if my tax case was on appeal, and said maybe s/he could
help. Hut asked me to bring my “case file” out to the property sometime, and
maybe s/he could help me with my appeal.
Agent Stone told me that Hut just wanted to see if I was telling the truth
about my tax conviction. Stone told me, “This is a good sign!” Stone told me to
go ahead and bring my case file out to the property. I didn’t have any of the
paperwork, so Stone got copies of everything -- the indictment, my sentencing
paperwork, and everything. I brought it out and showed it to Hut. This was in
around May 2011. After that day, I was “in like Flynn,” as they say. Billy Joe
stopped searching me, and Hut told me it was time to “get serious” and that we
needed to “do this thing right.”
It was at this point that Hut also showed me around the trailers on the
property. I walked through each one, and through the tunnels connecting them.
It was pretty cool. Each trailer had a large supply of canned food, bags of rice,
dried legumes, beans, gas masks, huge bottles of water, plus water purifying
tablets, vitamins, and military style MRE’s. Each trailer had a supply of firearms
lined along the wall, and boxes of ammunition.
In total I saw about fifty firearms of various caliber and size, including a
couple of sniper rifles with night vision scopes. Hut said they were preparing for
“the Final Days,” which were coming soon, and they would be ready. Hut said
they had enough supplies to last three years after the power grid goes down.
Frankly, it all looked pretty well planned out to me, and I thought they were pretty
smart to plan the way they did.
The government was paying me about ten times what I was making at the
Gas ‘N’ Sip, so by March 2011, I was able to quit my job and have plenty of time
to spend hanging out with them and working on this investigation. From May to
September 2011, I saw Hut about four or five days a week. Billy Joe and Bobby
Joe were always there. They never said much, just sat and listened to Hut and
me while we talked.
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In early summer, Stone suggested that we needed to “pick up the pace” of
the investigation. Stone said that s/he was getting some pressure from his/her
superiors because they were spending so much money on the case, without
much to show for it. Stone made it very clear that Hut had to come up with the
ideas for any criminal conduct we might do – I was not allowed to suggest
criminal acts because that would be entrapment. Stone said it was OK if I just
“floated” some very loose idea and then let Hut “take it and run with it.”
About a week into July, we had a conversation in which I mentioned to Hut
that I’d been on a Washington State ferry and had seen dozens of American
Navy men and women heading into Cedar from their base for the big 4 th of July
fireworks show. I mentioned that if something big were to happen on the ferry, a
lot of American servicemen “would go down.” That’s all I said – I made sure not
to suggest anything. Hut just nodded, and didn’t say anything at that meeting.
About a week later, I visited again. Hut asked me if I had ever been to the
big Cedar Labor Day festival, which is held every year. I said I had, and Hut
asked me if a lot of US Navy people attended. I said I thought so but I couldn’t
be sure because a lot of them were in civilian clothes. Hut then asked me what I
thought it would take to “take down a ferry.” I mentioned that ferries were really
sturdy, but I said a truck bomb, “like Oklahoma City,” might be able to do it.
Hut said, “I was thinking the same thing.” Then Hut said, “Let’s write up a
‘to do’ list.” Hut asked me what I thought it would take, and I mentioned a truck,
explosives, a remote detonator, and a “way to get past the dogs.” Hut wrote
down the list on a piece of paper, then burned it in a firepit when the meeting was
over. Hut said s/he had been saving bags of fertilizer over the years, “just in
case,” (s/he didn’t elaborate), but they probably “didn’t have enough to put a hole
into a ferry hull.” Hut said s/he had about ten bags of ammonium nitrate
(fertilizer), each about fifty pounds, but said we would probably need about thirty
more in order to “Pull off an Oklahoma City” (Hut’s words). I told Hut I’d see
what I could do.
Hut also said they had an old pickup truck with an enclosed bed, that
might do the trick. Hut asked me to prepare two detonators, and asked me if I
could put the detonators together onto the truck bomb.
Hut said there was no way s/he was leaving the property, so I would be in
charge of getting the extra fertilizer and the diesel fuel which would be needed to
ignite the bomb. Hut said that Billy Joe would help me pick up the fertilizer and
carry the load. I am guessing that Hut wanted Billy Joe to keep an eye on me.
I went back to Agent Stone and asked what we could do. Stone said that
we needed to buy the fertilizer out of state -- s/he didn’t explain why, just that we
needed to get the stuff out of state. Stone made some calls and found a place in
Oregon that would sell to us. Stone negotiated a price and gave me the money.
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In early August, I picked up Billy Joe. Before we left, I told Hut we’d be
buying the stuff in Oregon, and Hut was real happy with that because they don’t
charge sales tax down there – Hut didn’t even want to pay taxes on a bomb!
Billy Joe and I drove to Oregon. Billy Joe doesn’t talk much so that was a
long ride, let me tell you. Even when I tried to tune in something on the radio,
Billy Joe would say, “I don’t like that. Turn on something else.” So I’d turn on
something else. Then he’d tell me to turn on something else. Finally I just turned
off the radio. It was a long, boring drive.
I bought thirty bags of fertilizer in Oregon, using the money that Agent
Stone had given to me, and we turned around and drove right back to the Jones
compound in Cedar County. When we showed up, Billy Joe and Bobby Joe
helped me unload the fertilizer from my pickup. We set it in several storage
locations around the property. TJ showed up during the unloading and it was
nice to see him/her -- I had not seen TJ in months. We divided up the load so it
wasn’t all in one place, in case something bad happened while we figured out
how to build the bomb. Hut didn’t lift a finger to help the unloading, just sat there
watching us and talking about the government and saying, “They won’t know
what hit ‘em when we catch that last ferry,” then laughing a mean, quiet laugh.
After we unloaded the fertilizer, Hut said that we had to do a “dry run,”
which meant testing the bomb dogs at the ferry terminal to see if we could get the
explosives past them. Hut said, “We have to do this right . . . even if it takes
more time, we have to do this right.” The dry run was Hut’s idea.
During our conversation, Hut talked a lot about the message we would
send – Hut felt this was a critical part of the plan – to “send the right message.”
Hut said this was about “taking the country back” and “ending tyranny.” Hut also
said, “This war has been a long time coming – Now’s the time to strike and take
the nation back.” I said, “Amen to that.” I don’t know what Hut decided about
issuing a statement but I know Hut viewed this sort of thing as exclusively his/her
department. I was only allowed input on logistics like how we’d get the bomb
past the sniffer dogs and onto the ferry. By now, it was mid-August and I could
tell that the stress was getting to Hut who was eager to hit them on Labor Day.
I asked Agent Stone for some ideas on how we could get a truck bomb
past the dogs and onto a ferry. Stone was reluctant to suggest anything,
particularly something that might actually work. Nevertheless, a few days later,
Agent Stone came up with the idea for the frozen raspberries. Stone said that an
FBI analyst researching explosives had said this was something they’d seen.
Agent Stone connected me with a berry farmer in rural Cedar County. I
brought a 55 gallon drum of berries to Hut’s compound, and we put some
fertilizer and a container of diesel fuel into the middle of it while the berries were
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still un-frozen. Then we set the container in Hut’s deep-freezer for a couple of
days in order to freeze the berries, with everything inside it.
Two or three days later (it was mid-August), we put the drum onto the
pickup truck that Hut gave me, and I drove it to the ferry terminal. Hut’s brother
Billy Joe followed me in his own truck, and watched me from a nearby coffee
shop. I must admit I was nervous, as I really did not want to explode while
driving onto the ferry. But I knew that we had no detonator so I knew we would
be safe. Everything worked like a charm – the dogs went right by us and did not
seem to notice a thing. I drove onto the ferry, went across, and came back.
Then Billy Joe and I drove back out to the compound. Hut was thrilled- there is
really no other way to describe him/her. S/he seemed really excited.
The next thing I know, Hut said that we needed to know that the
explosives would really work. So we set up a test explosion in the back of Hut’s
property the following week. We used the drum that I had driven onto the ferry.
First we had to let the berries thaw a bit so that I could get a detonator cord into
them. I had no idea whether this would work. But during the day or two between
the ferry run and the test explosion, Agent Stone came to my rescue again.
Stone set me up with some ATF agents, who created a detonator that would
work with the fertilizer and diesel fuel, even when surrounded by frozen berries.
It required all sorts of heavy, rubber coated wires and several tests at the ATF
explosives testing ground.
The test explosion at Hut’s place occurred in late-August. It worked—we
blew up the test drum and it made a terrifying explosion. It was one of those,
“what have I gotten myself into” moments – that was the moment when I was
really scared that we were going to hurt some people. Hut was thrilled and
patted me hard on the back. Billy Joe and Bobby Joe were also real happy, they
were laughing like a couple of kids. It was the first and only time I have seen
either of them laugh.
Hut said we were ready to go, and said that we would maintain Labor Day
weekend as the target for “the big event.” That was Hut’s codename for the day
– “the big event.” Hut’s plan was that I would drive the truck, loaded with four 55
gallon drums containing fertilizer and diesel fuel. I would drive to the ferry
terminal at the end of the second day (Sunday) of the Labor Day weekend
festival. The ferry would be crowded with US Navy sailors and their families who
were returning to their base after a day in Cedar. I would drive the truck onto the
ferry, exit the truck, and walk off. Then, when the boat had left the dock,
“BOOM!” Hut was so excited s/he could barely contain him/herself.
I knew that Hut had not been off his/her compound in eight years. Agent
Stone said that for this to work, I needed to convince Hut to get close to the
action. This took a couple of visits, but I told Hut that s/he really should see “the
big event,” since it was his/her idea. I proposed that Hut should “do the honors,”
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meaning detonate the device. We decided -- well, I guess I suggested it, but
they liked the idea -- that Hut’s brother Billy Joe would drive Hut, who would be
wearing a disguise, to the ferry terminal. Hut would sit in the coffee shop at the
end of the ferry terminal (the same place that Billy Joe sat during the dry run).
Hut would wait until the ferry got into the middle of Cedar Bay, then hit the cell
phone trigger. It still gives me shivers to think about. Bobby Joe declined to join
us and that was that. I didn’t push it. I’m guessing Bobby Joe waited behind and
set the explosives that they later found on the property.
We did everything as planned - up until the “BOOM” part, that is. The
Jones siblings and I filled up the drums and loaded them. They didn’t know I had
set up the detonator so that it would not work. They watched me real carefully
while I set the cables and I needed to be very careful to ensure that they could
not see that I switched the negative and positive cables so they would not
detonate. I was sweating throughout the whole thing. I gave the detonation cell
phone to Hut, with the code to call to set off the device - 91110. The code
number was Agent Stone’s idea--Hut loved it when I suggested it.
I left their property at 4 pm and drove directly to the ferry terminal. Hut
and Billy Joe followed me in Billy Joe’s truck. I remember the day before this
happened, they had a big argument -- which I stayed out of (I don’t get in
arguments with Billy Joe). Hut wanted Billy Joe to put on the same old, fake,
wooden license plates that Hut always used when driving around. Hut felt it was
important to stay “true to our beliefs,” was the way s/he put it, and use the fake
ones. Billy Joe, on the other hand, (and sensibly, I think), forcefully (which is the
only way he argued) said they should use some real Washington license plates
for this particular trip. Since it was Billy Joe’s truck, he won out -- he told us that
about a month before, he had stolen some license plates off a similar make and
model of truck that was parked outside the local diner.
I drove to the ferry terminal and got in line about 5 pm, which, at the end of
a long summer day, meant a wait of about 2 hours. I was really nervous. Hut
was wearing a hat and sunglasses to cover him/herself, and set up in a coffee
shop. Hut called me about every 15 minutes and asked me where I was in line,
until I rounded the corner and s/he could see me. Hut carried the cell phone that
would act as the detonating device.
Eventually, I drove onto the ferry without a hitch, and then I walked off. I
walked as fast as I could away from the terminal, and met some FBI agents who
were waiting for me outside the line of sight of the coffee shop. I listened on the
radio and heard that they had arrested Hut. Billy Joe was nowhere to be seen,
and I haven’t seen him, or Bobby Joe, ever since. Which makes me real
nervous, as those two are some of the scariest people I have ever met in my life.
Those two being at large is the biggest reason why I am in the witness security
program right now.
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Agent Stone told me I had done a great job, and everyone at the FBI
seemed really excited and pleased. I made $150,000 total in payments from the
FBI, plus the FBI agreed to put my kids and me into the federal witness security
(“WitSec”) program. When this trial is over, the FBI is going to provide me with a
new identity and move me to a new location, and find me employment. In the
meantime, they have set me up in temporary housing in an out-of-state location.
I am living in a long-term, furnished apartment. Given my son’s medical needs,
the FBI has also agreed to provide medical care for the last year and during the
first year of our placement into witness security, which is particularly helpful
because I do not have health insurance. I cannot deny that life has improved
considerably since I began working for the FBI, notwithstanding the stress of this
investigation. I feel like I have a new lease on life, and can start over again. I
have also been shopping my story around to book publishers and Hollywood.
This is only to help pay for my son’s medical needs. Agent Stone has told me
that this is one of the biggest terrorism investigations since 9/11 – because the
casualty rate could have been so high. The Hollywood studios are interested,
and that is exciting. We will see what happens. I’m not supposed to cut any
deals until the trial is over, so right now I am just waiting to see what happens
with this trial.
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STATEMENT OF L.B. KRAVITZ
My name is L.B. Kravitz. I live on federal disability (Social Security
Disability Insurance). I used to work as a forestry technician -- basically a
firefighter, for the U.S. Forest Service, but I injured my back in 2007 and I have
not been able to work since then. I live in a trailer on some property out on
Forest Service Road 43. I am regaining strength but the process is slow.
I don’t own the property where I live; I’m sort of a squatter. I found the
place when I was out foraging for mushrooms and salal, which I sold to contacts I
made in the Forest Service. The mushrooms were not the hallucinogenic kind,
mind you. I sold what I found to herbalists I had met over the years, just to
supplement my income. I have been foraging mushrooms and salal for ten years
or so, and FS Road 43 was a rare spot that was good for both mushrooming and
salal harvesting. I found my trailer about four years ago, and the area was just
teeming with mushrooms and salal, so I decided to stay. I’ve been living at the
place since shortly after I found it, since about 2008. I have been there long
enough to know what the Jones clan was up to, that’s for sure.
My property runs right up to the Jones property. We share about five
hundred feet of fenceline. The Joneses put up a long wooden fence, with barbed
wire on top, and hand-painted “No Trespassing” signs about every fifty feet or so.
They also have dogs that prowl all around the property – big, mean suckers –
rotty’s and pit bulls. They used to bark whenever I got near the fence.
Nevertheless, they had some real nice looking mushroom specimens –
morels and chanterelles - on their land, and I was hoping they’d let me come on
their property and pick them. So I decided to pay them a visit. This was just a
few months after I moved onto the property – late 2008 probably. I drove up to
the front gate of the Jones property, which was locked, and saw all the crazy
signs about the government and sovereignty, etc. I thought it was pretty
interesting, to tell you the truth – mushroom foragers are usually an interesting
bunch so this crowd seemed right up my alley. Until I met them.
It was Hut’s brother who came to the gate. Big fella. Nasty looking. Told
me his name was Billy Joe. He wore a sidearm on his hip. It was a big revolver.
Looked like a .38. Billy Joe said they don’t like strangers coming around. I
explained that I was a new neighbor and was interested in picking mushrooms
and salal on his land. He sort of just stared at me, giving me an, “Are you
serious” sort of look – a look I’m used to, let me tell you. But his look was
creepier than most. Scary, really. The only thing he said to me was, “You best
start movin’ along. Now.” The way he talked and looked at me chilled my blood.
Then he just stared at me until I walked away. He didn’t need to tell me twice.
So that was a dead end, but when I see a good mushroom harvest, I don’t
give up, even when my obstacle is as scary as that fella. I started walking up to
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the fenceline and tossing pieces of meat over to those dogs. Took a few weeks,
but eventually they stopped barking when I came around, and then became real
friendly. I was able to start climbing through the fence and picking some choice
mushrooms on their land. I knew it was illegal and I was trespassing, but man,
the harvest was just too good to pass up. I usually went at night when the
Joneses couldn’t see me. I bought some night vision goggles from a friend of a
friend and was able to get around real well, picking my way over logs and roots
and such. I had to be real quiet since that big fella had a trailer out on the back
forty of the property but I figured my way around soon enough.
One day, in the Spring of 2011, I watched a bunch of pick-up trucks drive
by my place and on to the Jones property. It was getting dark, which is my
mushroom picking time anyway, so I decided to head on over and see what was
up. I crept through the fence and made my way toward the living quarters -- it
was scary, but a bit thrilling too, you know what I mean As I got closer, I heard
someone talking in a loud voice. I crept a bit closer and saw a group of 8 or 10
people sitting around a bonfire. There were men and women there. I recognized
the mean one -- hard to miss, he was the biggest one of the bunch. All the men
were armed, which I thought was weird, since they were on their own property -- I
mean, were they expecting an invasion or something I also saw Hut Jones
standing near the fire, talking to the group. S/he seemed like a preacher, the
way s/he was standing in front of the assembled masses. Everyone was
watching him/her, listening real intently, and nodding their heads “yes” as Hut
was talking. You could tell they really respected what s/he was saying.
I listened in. Hut was saying that it’s time for the U.S. government to “reap
what it sows.” That is an exact quote. S/he said a bunch of other things, and I’ll
try to quote what I remember. It was scary stuff, so I remember it pretty clearly.
S/he said, “The longer we wait, the more we’ll talk ourselves out of it.” Then it
sounded like they were talking about attacking police – because s/he said
something about police and the military, and patrol cars.
Here is the gist of what I heard Hut saying: “If their wives and their
children are killed, then so be it, because we are sending a message to the rest
of them. Any cop who stops you is an agent of a foreign power, and you have
the right to resist. When a police officer goes out on patrol, their family goes on
patrol with them. When US military personnel fight in battle, their family fights
with them. They take their families with them – maybe not in person, but in spirit.
And that makes their families legitimate targets. Their families go with them in
their tanks, and their aircraft carriers, their submarines and their fighter jets, their
police cars and their SWAT vehicles. If you are a US police officer, you put your
family in the line of fire. If you are a member of the US military, every time you
go to war, you take your family with you. And that makes them legitimate targets.
The funeral of one officer or soldier is a funeral for their family and vice versa.”
Nobody else spoke, but I could see a lot of heads nodding, and Hut was
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getting real red in the face. I was getting a little freaked out, let me tell you – I
didn’t know if they were going to pull out their guns and start shooting into the
woods right then and there, the way Hut was getting everyone stirred up – so I
got the heck out of there. I slept with one eye open for about a week after that.
It wasn’t till a few months later that I finally got my courage up to go back
onto the Jones property. Once again, I got a little freaked out. It was
summertime, and evening, so the sun was still out. As a result, I stayed back in
the woods and used my binoculars to get a closer look. The dogs were nowhere
in sight, which was unusual.
I saw a big, blue 55 gallon drum, which was sitting in the center of the
clearing, near where the bonfire had been that time before. Hut was there, and
some person I did not at that time recognize, although I later learned this was
Sage Annandale. The big fella was there, of course; he never left the property as
far as I could tell. The big fella and Sage were talking a lot. In fact they seemed
friendly. In fact, I had never seen the big fella so friendly with anyone -- just
talking and slapping Sage on the back. (A bit hard -- Sage kept falling forward
with every slap). Another big man was there, who I later identified from a photo
as Bobby Joe Jones.
Sage had some sort of cell phone looking device in his/her hands, and
was gesturing toward the drum, then down at the phone, and looking at Hut.
Sage made a gesture with his/her hands like something was blowing up. Sage
showed the device to Hut, and it looked like trying to hand the device to Hut. Hut
held up his/her hands and in sort of a waving off gesture, like s/he was saying,
“No, you do it.” I couldn’t hear anything. Sage tried one more time to get Hut to
take the device, but again, Hut waved it off -- a bit angrier this time. Sage sort of
shrugged his/her shoulders, then gestured that everyone should move back.
Everyone moved out of the way and went out of sight, behind some
trailers and into some sort of dirty and log-filled bunker type structure that I had
not seen before. I could see what was coming, so I found the biggest tree I
could, ran behind it, crouched down, and held my hands over my ears. About a
minute went by, and nothing happened. I was just about to peek my head
around the tree when, “Boom!” It was the loudest explosion I’ve ever heard in my
life. Shrapnel from the blue drum went flying past the tree I was crouched
behind, and I could feel “thumps” from bits of steel lodging into the tree itself. My
ears were ringing and I went deaf for a few minutes. I stayed crouched down for
a few minutes, then stood up and peeked around. I held up my binoculars and
saw Hut, Sage, and the brothers standing there. Everyone was nodding and
patting Sage on the back like in a congratulatory manner. Hut and Sage were
smiling -- although neither of the brothers were; they just had their arms crossed
staring at the empty space where the drum used to be, nodding with approval. I
never saw those two guys smile. Then Hut gave Sage a high five and a brief
hug. The brothers stood back. I thought the whole thing was weird and scary.
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After the explosion, some county sheriffs came by my place and asked me
if I had heard anything. I lied and said no. I was worried because I didn’t know
what the Joneses would do to me if they heard I was talking to the police. So I
thought it was better to just lie and not get involved. The deputy sheriff said they
had been ordered by their command staff not to go near the Jones property, so
my place was the closest they could get to the Joneses and find out if they “were
up to something.” I said nope, I didn’t know nothin’ ‘bout nothin.’ The deputy left
me his card and told me to call if I ever heard anything. I never did.
I remember the day the feds came out and raided the Jones place. That
morning, I was out tending to my front fence when I heard a truck approaching
from the direction of the Jones place. I looked up and saw it was Billy Joe in the
driver’s seat. In the passenger seat I saw someone I did not recognize (but who
the FBI later informed me was Hut Jones). Hut was putting on a hat and seemed
all fidgety. I thought this was odd, so I walked over to the fenceline of the Jones
property, hopped the fence, and walked a few feet in. I saw the other big fella,
Bobby Joe, walking around the compound and burying some things in the earth.
These were pipes with wires attached to them. Bobby Joe was carefully covering
these pipes with earth and connecting all the pipes to one another with wire.
It wasn’t until the feds came out here to raid the Jones property on Labor
Day weekend that I went over and introduced myself at their command post. I
asked them what was going on, and someone said, “We finally got that crazy
bunch -- the Jones gang.” I asked what they got them for, and they said, “They
tried to blow up a state ferry. It’s a federal case now.” I knew this was a big deal,
so I asked what they could do for me if I had information they might want to know
about. They told me it depended on the information I had, but there were a lot of
ways they could show their appreciation. I thought about that for a few minutes,
then decided I better tell them what I knew. I was going to help them no matter
what, since the Joneses were obviously real dangerous criminals and I have an
obligation to help my fellow citizens.
I told them what Hut had been saying, and about the explosion. Then I
told them about the pipes and wires that Bobby Joe had buried into the ground,
and the feds seemed real excited and nervous and appreciative. They made
some calls on the radio and backed everyone off the property. Some guys asked
me to show them around my property and they entered the Jones property from
my property. I showed everyone around, and showed them the tree where I had
been hiding when the explosion took place. They were real thankful about what I
had to say. When I showed them my night vision goggles, and the feds seemed
real interested because they goggles were US military issue. They asked if I got
them from the Joneses and when I said no, they just handed them back to me
and the commanding agent said “You’ve been real helpful to us. So we aren’t
going to seize these from you, but keep your mouth shut about them.” I wouldn’t
have said anything, but I swore to tell the whole truth in this statement.
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A few days after the raid on the Jones compound, I met with Agent Stone
to give a statement. I told Stone I was really afraid of the Jones brothers, who
were still at large, and I asked to be put into the witness security program. Stone
looked into it but then said I was not eligible because I was not “central” to the
case enough. The FBI did agree to pay to move me out of state. First, they
moved me to a hotel for a week, then they set me up in a furnished apartment
and gave me two months rent, in a real nice place out of state. They’re also
helping me find a job, which is hard since I don’t have many skills, and I’m still
disabled (my back gets real sore if I move around too much). I won’t say where
I’m living. However, it is nicer than my trailer, that’s for sure. The FBI will fly me
to Cedar County for trial, and they told me I’ll be staying at a real nice hotel until
my testimony is finished. I plan to get room service and watch cable TV. I
explained that the stress makes my back hurt, so the FBI said I may be eligible to
get back massages while I am I town for trial. This would really help keep the
spasms from affecting my testimony. I am proud to be helping my country in my
small way.
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STATEMENT OF FLINDERS PETRIE, PhD
My name is Flinders Petrie. I am Chair of the Linguistics Department at
Washington A&M University. I come from a long line of distinguished
academicians, beginning with my great-grandfather, for whom I am named, the
renowned British Egyptologist who worked with Lawrence of Arabia. I am a full,
tenured professor of linguistics at Washington A &M, where I have taught since
1990. Before that, I was an associate professor at Stanford, where I taught for
four years, before I was denied tenure in a sorry event. I obtained my
undergraduate degree in sociology from Columbia University (1980), and I
obtained a master’s degree (1982) and a PhD in Linguistics (1986), both from the
University of Chicago.
I am a regular consultant for law enforcement agencies in Washington
State and the Pacific Northwest region, on a wide variety of issues in the still
emerging field of forensic linguistics. I am past president of the International
Association of Forensic Linguists, an office I held from 2003-2006. I remain an
active member of that organization and I attend its annual convention to remain
knowledgeable about current trends in the field. I charge $250 an hour for
consultative work, and a $1500 flat fee per day for courtroom testimony. I have
billed approximately twenty hours of work thus far in this case, which has
primarily consisted of reviewing the documents as outlined below.
Forensic linguistics is the application of linguistic studies in a legal context.
It includes applying the study of language, syntax, word choice, and other
linguistic patterns in an effort to determine authorship of unknown writings.
Examples where this science has been applied in the forensic context include
attempting to identify the author of a ransom note in a kidnapping case or
determining the authenticity of a suicide note or purported will. There is also
linguistic origin analysis -- determining a person’s place of origin based upon
dialect, syntax, and other unique features. Someone using the word “skookum”
for sturdy or well-built is probably from the Northwest while someone calling a
submarine sandwich a “grinder” and a milk shake a “frappe” is likely from New
England. I have been consulted on all of these processes, as well as many
others too numerous to mention here.
In the summer of 2011, I was contacted by FBI Agent Stone, who asked
me to serve as a consultant on a case involving three anonymous letters
regarding a possible terrorist attack that had been received by the Cedar Plain
Dealer and that were being held by the FBI. I was asked to determine whether I
could draw any conclusions as to the authorship of three letters in FBI evidence.
In order to render an opinion, I reviewed the witness statements in this
case, the journals and writings of Hutaree Jones that were taken by the FBI
during a search of the Jones property on September 4, 2011.
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The unknown writings I examined are as follows:
First, a letter sent to the Cedar Plain Dealer, which was received on
January 19, 2011, and which read, in its entirety as follows:
“You luck’d out but there will be no missfire again. You can’t hide
and you can’t run. The tyrants blood runs red.”
Second, a letter sent to the Cedar Plain Dealer, which was received on
August 3, 2011, and which read in its entirety as follows:
“Something decisive and great is coming. A tyrant can’t hide his tru
colours. For wen they shal say peece and safty, then suden
destruction comes upon them as travale a women with child and
they shal not escape.”
Third, a letter sent to the Cedar Plain Dealer, which was received on
August 31, 2011, and which read in its entirety as follows:
“For tyrany to gain a foothold the poeple must reman silent. The
armees have gatherd together to make war aganst the beest on his
hors and his army.”
I compared these writings to the writings of Hutaree Jones, as found in the
journal entries and other documents found on Hutaree Jones’s property, as well
as the statements that witnesses ascribe to Hutaree Jones.
It was my conclusion that Hutaree Jones was the author of these writings.
This conclusion is based upon the following observations:
First, and most obvious, the spelling is atrocious. I considered whether
this was an intentional affectation, but in reviewing the letters and Hutaree
Jones’s writings, it was clear that they shared many of the same misspellings,
such as spelling the word “poeple” for “people.” In addition, long vowels such as
“beest” and “peece” are consistently misspelled throughout Hutaree Jones’s
known writings, double consonants are removed, and the plural “women” is
placed for the singular of that word.
In addition, the letters contain biblical apocalyptic quotes. The second and
third letter contain biblical quotes relating to Armageddon: letter two contains a
quote from 1 Thessalonians 5:2-3, and letter three contains a quote from
Revelations 19:19. Such biblical references are common among the sovereign
citizen movement and those who seek to overthrow the US government.
Third, one of the letters contains a quote from Thomas Jefferson: “For
tyranny to gain a foothold, the people must remain silent.” This is significant in
two respects. First, that the quote relates to Jefferson’s views on tyranny, which
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is an obsession of Hutaree and a common word used in his speeches and
writings. Second, Hutaree Jones shows an obsession with the founding fathers
in general, and Thomas Jefferson in particular. An example of this is found in the
Jefferson quote placed on the fenceline of the Jones property that states, “When
people fear the government, there is tyranny. When the government fears the
people, there is liberty.” (By the way, from the photograph I’ve seen of this sign,
it appears to have been commercially prepared and this accounts for the
impeccable spelling.)
Fourth, contractions of negative words such as “can’t” are consistent
throughout Hutaree Jones’ writings, while positive affirmations such as “I am” and
“ we are” are consistently broken out into two words.
As a result of these and other unique characteristics of these letters, it is
my conclusion that the letters were written by Hutaree Jones.
I understand that my former protégé, Alex Lacassagne, has been retained
by the defense. This does not surprise me, as Lacassagne was the reason for
my unfortunate departure from Stanford. I had been teaching at Stanford for four
years and was comfortably on tenure track. Lacassagne was a graduate
assistant who was working in the Linguistics Department. In the Fall of 1989,
shortly after the school year began, the University registrar’s office brought to my
attention that I had improperly vouchered several overseas trips I had taken to
study the dialects of sub-Saharan Africa. Of course, I immediately began efforts
to rectify this situation, when I fell ill with an obscure disease I had acquired
during my latest African trip that summer of 1989. I missed several weeks of
school, and when I returned, I found that Lacassagne had taken over my
teaching obligations. I attempted to return to the classroom, but it was quite
apparent that Lacassagne had turned all of my students against me. The
students grew unruly and demanded that Lacassagne return as their instructor –
each day was a new drama. In a moment of pique, and because the illness had
greatly impacted my teaching abilities (I was also on several medications at the
time), I failed every student who was enrolled in the three courses I was teaching
at the time. Admittedly, none of them deserved a failing grade, and the stress I
regrettably caused was quite severe. Some of the students were denied
admission to graduate schools, and several of them succumbed to severe
depression. By this point, I had forgotten all about the improper vouchering,
which the University insisted I re-pay with interest. By mid-winter, the University
relieved me from my teaching obligations, and soon thereafter, asked for my
resignation, which I reluctantly gave. If not for Lacassagne, I am quite sure I
could have weathered my temporary illness and I would still be at Stanford.
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STATEMENT OF HUTAREE JONES
My name is Hutaree Jones. I go by Hut. I am 45 years old and a lifelong
resident of Cedar County. I am single and never married. Never found the right
person, I guess. I’m what you might call a strong personality, and a spouse
would really need to accept me as is. Haven’t found that person yet, but I’m
always open to the possibilities.
Until my most recent arrest, I lived with my brothers Billy Joe and Bobby
Joe and their families on a 50 acre compound up off Forest Service Road 43.
We inherited the property from our parents. We lived “off the grid,” so to speak.
We don’t tie in to the county electrical grid, or the water or sewer systems. We
don’t use the public school system and we have no need for the police. We use
generators for our power, and we talk to each other in person, rather than using
cell phones. We get by on the produce we grow ourselves and the livestock my
brothers tend and the fish we can pull out of the Cedar River, which runs through
our property. That’s why we have all that fishing gear on our property, including
fishing weights -- not because we are out there making up backpack bombs or
some such foolishness. We are just living our lives.
My brother Bobby Joe and I have not left our property in over eight years -
- ever since we had our run-in with the state trooper back in 2004. I better
explain the incident with the trooper, since the government’s version is all lies. I
was driving home from Tucker’s Hardware after picking up some fishing gear and
weed killer. My brother Bobby Joe was in the passenger seat. We had our
sovereign citizen license plate, which Bobby Joe had made at our place. We
don’t recognize the state government so no, we aren’t about to pay for a
Washington state driver’s license or license plate. Don’t tread on me.
We were driving on State Route 2 when the trooper pulled out behind us,
got his lights going, and pulled us over. He asked for my driver’s license, and I
handed over an identity card containing my name and my sovereign citizen title
of “Archon.” I had my window rolled down just an inch to pass it through. The
trooper asked me to step out of the car, and I refused, saying that I did not
recognize his authority over me and I would not submit to his false authority. He
called for backup on his little shoulder radio, and when he was calling out for help
like a little girl, I started to drive away. The trooper grabbed my window and told
me to stop. I refused. He started to pound on my window with his storm trooper
flashlight, at which point I stopped, since he was damaging my personal property,
which angered me. Before I had even stopped, Bobby Joe jumped out of the
car, and ran over to the trooper just as the trooper was trying to pull his sidearm.
For a big fella, Bobby Joe is lightning quick. Bobby Joe disarmed the man
(Bobby Joe may be big, but he’s not even my meanest brother – that’d be Billy
Joe, by a country mile). While Bobby Joe held the man at bay with the trooper’s
own gun, I got out and started pointing my finger at the trooper. I gave him a
piece of my mind, yelling, “You have no authority over us! You have no authority
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over us!” Then I told him, “You best start runnin,’ and don’t look back.” Bobby
Joe then used the trooper’s gun to shoot out the radio in the patrol car. I yelled
after him, “The name’s Hutaree Jones! If you come after us, you better bring
body bags!” I said it and I meant it. All that happened. But last time I checked,
I’m not on trial for that. That was eight years ago and this may explain why the
government has been gunning for us ever since.
After that event, Bobby Joe and I knew the cops would come after us, so
Bobby Joe got himself a trailer and parked it on my back lot, and we’ve been
living there ever since, with my other brother Billy Joe. The three of us have
grown real close over the years, sort of holed up together and standing up
against the government. In fact, I sort of know what it must have been like for
that Bin Laden fella -- running from the big, bad U.S. government, hiding out in
caves. First they make up that whole 9/11 thing, which was obviously a
conspiracy to scare Americans into submitting to the dictates of our illegitimate
government, then they point the finger at Bin Laden as a scapegoat. Peel the
skin off that onion and you’ll see who was really responsible – the Wall Street
bankers, the plutocrats and the puppeteers who control our government, for
starters.
But enough of all that. I first heard about Sage when my sibling, TJ, told
me s/he had met someone who could do electrical work for avalanche control
detonation. This was in the late summer of 2010, as I recall. I was real
suspicious, as I usually am, and I grilled TJ about where s/he had met this
person, what they did for a living, etc. etc. I don’t need the government looking
up my nose with a microscope, if you know what I mean, and I know they’re
always trying to find ways to get at me, so yes, I was suspicious.
That summer of 2010, TJ started bringing some of the detonators around
to the property, and when I saw them I could tell they were real quality work. I
wanted to meet the maker. So it was around October 2010 that I invited Sage to
my place for a barbecue. My siblings were there, and some friends from the
movement. Sage came with his/her kids. We don’t invite many outsiders onto
the compound, and we don’t have many barbecues, but we all wanted to meet
the electronics whiz. Billy Joe in particular wanted to check him/her out. My
nieces and nephews played with Sage’s kids -- I have to say that Sage’s kids
were not very well behaved -- constantly whining and complaining; grabbing food
without saying please or thank you; pulling hair, just basically running amok. I’m
glad we had the dogs, I’ll tell you that. That’s the only thing that kept those kids in
line. They were just real brats, in my opinion, and Sage showed no interest in
trying to control them. I may have respected Sage as an electrician, but certainly
not as a parent. I think it fits with my NOT believing in big government that I DO
believe in personal responsibility, self-discipline and good manners.
I showed Sage around the property including our arsenal – all purchased
and owned legally and intended for personal protection. I am not a convicted
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felon, and I have as much right to bear arms as anyone -- just like our founding
fathers intended. Frankly, I’m proud of the weapons we own and I like showing
them to folks. I really opened up the place to him/her. I should have known
better.
Even though Sage’s kids were a real pain, all three of my siblings thought
Sage was just fine. Billy Joe and Sage really hit it off, which was unusual,
because Billy Joe doesn’t hit it off with anyone. After that, Sage started coming
around more, and we started to see one another pretty often.
In January 2011, I heard on the radio the news about the backpack bomb
found at the MLK day parade. We don’t get TV or newspapers; I mainly listen to
talk radio and see the internet. Of course I knew the bomb was another
government plot to justify more repressive police on the streets. Business as
usual. I thought nothing of it.
Last summer, sometime around the 4 th of July (I can’t remember if it was
before or after), Sage asked me if I was ever bored living my whole life on the
compound. I said no. I said I had everything I needed right there. Sage then
asked an unusual question. S/he asked “what would it take” to get me off the
compound. That question set off some alarm bells, I must say, but I let it go. I
told Sage that I would leave the compound “when they buried me under it, or
dragged my dead body off of it.” Sage then asked me, “What if you wanted to
watch the most spectacular fireworks show you’ve ever seen” Then Sage said,
“And what if that fireworks show was part of something that brought down the
government, just the way you always wanted”
I was intrigued; let me put it to you that way. I told Sage to go ahead and
tell me more, and Sage laid out his/her plan. Billy Joe and Bobby Joe were there
too. Sage, who had clearly thought this through, laid out everything. Sage told
me about all the Navy sailors s/he had seen on the ferry the week before, and
said that taking out the ferry might actually start the war I always knew was
coming. Billy Joe in particular seemed interested in what Sage was saying; he
was always the most ornery of the family.
I told Sage that I might be interested in watching what s/he was doing, but
I wasn’t going to participate in any killing unless it was in self-defense. I don’t go
out and start trouble. Sage started coming around regularly. One time s/he
brought his/her paperwork from his/her court case. I never asked him/her to,
that’s for sure. Sage just showed up with it one day and showed it around like
we cared or something.
One day, Sage came by and met Billy Joe. They dragged out an old pickup
truck that Billy Joe had been storing on the property for a couple decades.
The truck was not registered to anyone and Billy Joe said he had stolen it about
twenty years ago and left it on the property for parts. They worked on the truck
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for a few weeks and got it up and running. Then Sage said s/he wanted to do a
“dry run,” by which s/he meant testing the bomb dogs at the ferry terminal to see
if s/he could get some explosives past them. Billy Joe said he was going with
Sage to make sure everything went OK. I told Billy Joe to be careful, because I
didn’t want him going to prison for the rest of his life. I said, “Whatever you’re
doing, you better do it right; anything worth doing, even if it takes a few extra
months, you have to do it right.”
Another time, I remember telling Sage that if s/he was going to do
something big, then the message was important. I told Sage that it was
important to “get the message out.” I will admit it, Sage got me going. I
remember saying, “You need to quit playing and get serious. The more you wait,
the more you are going to talk yourselves out of it. If you mean to start a war,
then start it. This country is doomed and war is coming sooner or later. It may
be the Russians, it may be the Chinese, it may be the Arabs. But war is coming.
As far as I’m concerned, let’s get it going.” If Sage wanted to jumpstart things,
then who am I to stand in the way I’m just little old Hut Jones living my life in
peace by a river.
During one of his/her visits, Sage asked me how many explosives it would
take to blow a hole in the side of one of the State ferries. I had never been on a
state ferry so I had no idea, but I assumed they were pretty big. I told Sage that
it would probably take a lot of firepower, but a truck bomb with some fertilizer in
it, like they used in Oklahoma City, might work pretty well. Sage replied, “Yeah, I
thought about that too.” That was pretty much it for that conversation.
A week or so later, Sage came by our place and picked up Billy Joe, and
they said they were heading to Oregon. They came back later that day and
unloaded a big pile of fertilizer. I knew what that stuff could do, so I told them to
store it in different sections of the property, so if anything set it off, it wouldn’t
take me down with it. I sat on an old tree stump and watched them. We talked
about all sorts of things – the weather, the state of the country, the government,
you name it.
A few days after this, Sage came back out to the place with a big 55 gallon
drum, filled with raspberries. Sage and Billy Joe set it out on the back section of
the property and filled it with some fertilizer and diesel fuel. I had never seen
anything like it, so I watched what they were doing. Sage then borrowed our
deep freezer, which we use to store deer meat and other animals that we hunt
when they wander through the property, or animal meat that TJ kills and brings
out to us for food. It runs on an old diesel generator that we have hooked up out
there. They put the drum inside for a couple of days.
In another couple days, Sage came by and picked up Billy Joe again.
They said they were going to take a ferry ride. Sage sort of jokingly asked me if I
wanted to come along, and I said no thanks. Billy Joe and Bobby Joe rolled the
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55 gallon drum up into the pick-up truck (which they had got working by now) and
headed out. They came back later than evening and Sage said everything had
“worked like a charm.” Billy Joe didn’t say anything, and I didn’t ask any
questions. They put the drum back into our deep freezer.
Some time after that, Sage came back to the place and told me I should
watch what s/he had “cooked up.” We all stood and watched Sage put a bunch
of wires into the 55 gallon drum, then Sage told us that we better get someplace
safe. After we all moved back, Sage tried to hand me a cell phone. I did not
want my fingerprints on anything s/he was involved in, so I waved him/her off.
Sage tried again and I had to get a bit pushy with him/her. Finally Sage just
shrugged his/her shoulders and we all moved back out of the way. Sage then
dialed a number on the cell phone. Nothing happened for a couple of minutes,
and I thought it was all just a big nothing. Next thing I know, there was a huge
explosion. I had been holding my hands over my ears and I’m glad I did – it was
loud! We all came out and congratulated Sage on a job well done – that was
definitely some mighty fine explosive work. It was that day that I thought that
Sage might really pull off whatever it was s/he was planning.
Sage asked if s/he could put some more drums in our deep freeze. “Fine
with me,” I said. Sage and Billy Joe went out and got three more drums, put
some stuff in there, and put them in the deep freeze for a few days.
Sage came out several times during the week before Labor Day weekend.
Sage really buttered me up and said how much I had inspired him/her into taking
a stand against the government. Sage pushed me hard and said s/he really
wanted to “honor” me by having me watch what s/he had planned. Sage told me
that if I was ever going to leave the property, then this one day was the time. I
continued to say that I was not interested in leaving my home, but I appreciated
what Sage was saying about my inspiration. It was not until the day itself that I
decided to go. It was a last minute decision by me, and I only intended to go and
watch from a distance what Sage had planned. In no way, shape, or form, had I
planned this event or assisted in planning it. Sage and I may have found some
common ground in our political views but we certainly didn’t agree on methods.
I wore a disguise so I would not be identified and busted on my warrant,
and I asked Billy Joe to drive me. Right before we left, Sage came up to me and
gave me a hug. I know the feds are claiming that I had some sort of cell phone
detonator; well if I did, then this was probably when Sage planted it on me. Billy
Joe and I followed Sage to the ferry terminal. Billy Joe dropped me off at a
nearby coffee shop, and then he left. He said he was going to park the truck and
come back and meet me, but I have not seen him since, and I’m glad. I hope he
and Bobby Joe are long gone and living fat and happy somewhere, waiting for
this trial to end when I get out of jail and we can all live together again in peace.
I sat and watched the ferry line. I watched Sage pull onto the ferry, then
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the next thing I know, the feds are yelling at me and ordering me,“ Show me your
hands!” I instinctively reached down to my side to reach for my sidearm. I was
planning on meeting deadly force with deadly force, as is my God-given right, but
I had forgotten that I left my gun at the compound. It was then that I discovered
that there was a cell phone in my jacket pocket. I grabbed the phone, slowly held
it up so they could see I was unarmed, and said something about how the people
would not tolerate tyranny. Then I threw the cell phone into the bay. Then I held
up my hands and asked for a lawyer. I wish I’d had the chance to defend myself
and engage the enemy before they took me in.
I have seen the written statement of S/A Stone and I have to say the
stooge got at least one thing about right. The parts that describe citizen
sovereignty and the trickery of the fraudulent government are right on. Where
the bootlicker goes off-target is in the part about violence. I am totally non-violent
– except, of course, when it comes to matters of self-defense.
Life in the Federal Detention Center is not pleasant, let me tell you. I am
considered a “high risk” inmate -- they claim I might foment a rebellion inside the
jail. As a result, they have me in solitary confinement 23 hours a day. I get out
of my cell for one hour of exercise. I eat my meals in the cell. I read, and write,
and exercise in my cell. I get to see my sibling TJ once a week; s/he is my only
visitor. My lawyer tells me that if I’m convicted, they’ll send me to Supermax for
the rest of my life. For what Speaking words Believing in a war that is no
doubt coming I did not conspire with anyone to explode a bomb on that ferry. I
also did not write the letters that the FBI claims I wrote. The only thing I am guilty
of is letting Sage Annandale get too close to my family, and freely speaking my
mind. If Sage conspired with anyone, it was not me. If I inspired someone to
rise up against the government, so be it. That is not a crime in my book – words
are words, and ideas are ideas. I thought that’s what the First Amendment
protected. We do still have the First Amendment, don’t we
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STATEMENT OF JO JO (“TJ”) Jones
My name is Jo Jo Jones, but I go by TJ, which is short for Triple J.
Everyone started calling me Triple J when I was a kid and at some point it just
became TJ. I am the youngest sibling of Hutaree Jones, Billy Joe Jones, and
Bobby Joe Jones. I live in rural Cedar County, about five miles as the crow flies
from the compound where Hut and my brothers used to live before Hut was
arrested and my brothers went on the run. I am an avalanche control expert,
although I am out of work right now, as no one will hire me because of my
association with this whole mess, though they blame it on my federal conviction.
Hut has always been the leader of our family, no doubt about it. My
brothers, mean as they are, always looked up to Hut, and so did I. Hut had a
way with words, in a manner that none of us ever did. Whenever Hut spoke, we
listened, and we respected what Hut had to say. Hate to admit this about a
sibling, but when Hut said something, Hut was usually right. We all knew it. Our
parents were real proud of Hut, and expected a lot more of Hut than the rest of
us, which was fine with us, since we expected more of Hut too. I have remained
closed to Hut over the years, even when Hut and Bobby Joe were confined to the
family compound by the US government. Since Hut and my brothers don’t have
a phone, I visited Hut regularly, and asked a friend to keep an eye on Hut and my
brothers for me, and keep me posted if anything ever happened out there that I
should know about.
As for me, I made it through the tenth grade, then dropped out of school
after I got expelled for spraypainting “School is tyranny” on the front of the high
school. I worked some odd jobs, then joined the army after I got a fake GED
from a guy I met at the local bar. I started out as a munitions specialist --
basically I cleaned and stocked weapons. Then I became an Explosive
Ordnance Disposal (EOD) specialist. I only lasted two years, and that was
pushing it, let me tell you. I did not favor the military lifestyle. But I did learn
some valuable tradecraft, as we call it.
I was dishonorably discharged in 2004, but as far as I’m concerned, I quit-
-I wasn’t fired. The military also accused me of stealing military gear when I left
the service, but they never charged me with theft, and they never proved
anything.
After I left the Army, I started to use my skills to blow things up -- all
legally. I got paid to blow things up – who wouldn’t like that job I first got some
jobs with the county, doing small demolition jobs on county roads, then got a
reputation as good with explosives, and then I got work with some timber
companies, blowing things up so they could build roads up into their timber
properties. That eventually led to wintertime work for the state, doing avalanche
control on the mountain passes. Then ski resorts started calling. So life was
good for a while.
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In early 2010, a couple of feds came by my place – they said they had
information that I had been lying about my military record. I said I didn’t know
what they were talking about, even though I did. They told me I had been falsely
claiming I had been awarded a Silver Star in order to get work. They said that
maybe they could forget about what they heard if I wanted to work with them and
help them get Hut and Bobby Joe for that incident with the trooper. I told them I
still didn’t know what they were talking about, and maybe they should get the h—
off my property before someone got hurt.
I knew what they were talking about. I had told some folks at the timber
company that I got a Silver Star by defusing a bomb during the middle of a battle
in Iraq, which saved a bunch of soldiers. One of the guys didn’t believe it, and so
I bought a real Silver Star off of e-Bay, then brought it in and showed it around.
This made everyone shut up real quick. After that, I decided to keep lying about
it. I lied to get work– times were tough and I had a family to feed, so yeah, I lied.
Doesn’t everyone Anyway, the feds left me alone for a few months, but
showed back up later.
During the summer of 2010, I met Sage Annandale when I was paying for
gas at the Gas ‘N’ Sip. I had been going to the Gas ‘N’ Sip for a while that
summer. During my visits, I noticed Sage tinkering on some small appliances,
and I asked Sage about his/her electrical background. I mentioned that I did
avalanche control up in the ski resorts in the area, and asked Sage what s/he
knew about radio frequency detonation. I was looking to detonate some high
mountain avalanches -- the areas where it is real hard to detonate because the
terrain was so rugged.
I asked Sage if s/he could set a radio frequency link to a timing
mechanism – basically a watch. Basically, I wanted to see if a cell phone, when
dialing a particular number, could signal to a regular wristwatch and set off the
explosives. This was a money saving effort by me -- my timing mechanisms
were expensive and I wanted to use some homemade ones. Sage claimed that
s/he had never done anything like this before, but said s/he’d take a crack at it.
Sage sold some to me for a good deal -- I paid well because these were my
livelihood -- I paid Sage $200 for each detonator device, which was half what I
had to pay for a professionally-made detonation device.
I didn’t talk to Sage very much at first, and Sage didn’t ask a lot of
questions, which I liked. I’d guess Sage synched up about a dozen watches and
phones for me. I always paid cash and paid on time. By the last one, Sage was
getting pretty good at it. From the conversations we did have, I learned that
Sage was quite angry over being hassled by the IRS for political reasons and
that Sage held some very strong anti-government views.
I visited Hut a couple of times each week back then (summer and fall of
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2010), and I told Hut about Sage. I spoke about the work that Sage had been
doing for me, and some of the anti-government comments that Sage had made
to me when we were talking. Hut was very interested in meeting Sage. I also
mentioned that Sage had been going through a rough patch in his/her life, on
account of having beliefs that were similar to ours and being hounded by the feds
as a result. Hut is a very generous person, and Hut thought it would be nice to
have Sage come over and meet the family.
In about October 2010, Hut hosted a barbecue for some like-minded
individuals. Due to Hut’s situation -- never leaving the compound -- Hut is very
cautious about who s/he lets on the compound, so inviting Sage in to meet Hut
was a very big honor. Bringing some kids along, Sage came out and everyone
was real friendly to him/her. Sage and Billy Joe really seemed to hit it off – and
Billy Joe doesn’t like anyone. Sage talked a lot about hating the government and
his/her tax convictions, so that helped break the ice, so to speak, with everyone.
Hut and Sage spent a lot of time walking around together. I don’t know
what they talked about -- Hut would not tell me, but they spent a lot of time in
private conversation. At the end of the barbecue, as Sage was leaving, I heard
Hut invite Sage to come out and visit again soon. I know they continued to meet
when I was not around, since Hut told me they did.
At Christmastime (this was Christmas 2010), Hut surprised me with a
great gift – a long-range remote detonator. It was very cool, and clearly quality
work -- I immediately recognized it as Sage’s work. I need these for my
avalanche control business during my work that winter – I used this on one
particular job on a highway pass in January of that year. It was a real tricky job
and I needed a good, solid detonator. The detonator was destroyed in the
explosion, and I dropped the cell phone in some deep snow during the explosion,
so that thing is long gone.
In early February 2011, the feds showed back up in my life. They got me
as I was leaving a grocery store. They arrested me, put me in cuffs, and took me
downtown. I was charged with violating the Stolen Valor Act – lying about getting
a Silver Star. I refused to negotiate with the feds and went to trial in May 2011,
and a judge convicted me of violating the Stolen Valor Act, which was a
misdemeanor. I got credit for time served and six months probation. My
probation officer wouldn’t let me go near Hut or my siblings, since they were
wanted criminals. But I made it out to the compound a few times during the
summer of 2011, without my probation officer knowing about it.
During one of my visits, Sage was there, visiting with Hut and my brothers.
They were unloading some bags of fertilizer. I knew fertilizer was an explosive,
and I joked, “What are doing, pulling a McVeigh” Everyone looked at me and
Sage laughed a real nervous laugh. Then Sage said, “Maybe. Want to get in on
the action” I said, “No thanks,” and sat down to catch up with Hut. We talked
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about things, and after the unloading was finished, Sage sat down with us. Sage
told Hut that s/he wanted to do a “dry run.” I had no idea what Sage was talking
about, so I asked. Sage said that s/he had a ”Labor Day Surprise” for the
government -- that was Sage’s comment -- a “Labor Day Surprise.” Sage said
s/he needed to “test the dogs” at the ferry terminal to see if s/he could get the
“surprise” past them. Hut said, “If you are going to do it, you better do it right . . .
you have to do it right, or you’ll wind up like TJ here.” The only person who used
the phrase “dry run” was Sage. Nobody said anything about killing anyone, or
about the military, or anything.
Sage then asked me if I wanted to go on the “dry run” with him/her. This
was the second time that Sage had asked me to participate in his/her scheme,
and I was starting to get nervous. We weren’t that close of friends, and I hadn’t
seen Sage in months, and it was just an odd thing to ask. I said no. Sage then
asked Hut, “What would it take to get you off this property You must get pretty
stir-crazy sitting out here all the time. Want to go for a ride” Hut said s/he liked
it just fine on the compound, thanks, and no thanks on the ride. Hut even told
Sage, “You seem real pushy today. If I didn’t know any better, I’d think you was
a Fed.” I told you, Hut was real smart that way. Sage got nervous then, and
said, “I’m just trying to make conversation.” Nobody said much else, and I left a
short time later. I found out later that Billy Joe went with Sage on the dry run.
This doesn’t surprise me, since Billy Joe was never the brightest bulb and Sage
probably convinced him pretty easily. It seemed like Sage wanted anyone s/he
could get to go along with him/her.
That time out at Hut’s was the last time I saw Sage. On Labor Day
weekend, I saw the news and knew immediately that Sage was responsible. I
also had the sinking feeling that Sage had been trying to drag down Hut and my
brothers with him/her. The feds arrested me that evening, and held me for 72
hours. I was brought down to the FBI office and Agent Stone came at me hard.
Stone told me “cooperate and you go free. Refuse and you go to jail.” Well
guess what, I didn’t cooperate, and I’m not in jail. Stone is a blowhard and a
bully.
I saw Hut in jail after I was released. Hut was real depressed, but also
defiant. Hut was angry that Sage had betrayed the family, and Hut felt
responsible for allowing it to happen. I feel bad too, since I had introduced Sage
into my family. Hut didn’t do anything wrong, and I predict Hut will go free, just
like I did. Hut is no more a criminal than I am. What we did -- exercising our
right to free speech -- ain’t a crime, and that’s all that Hut did.
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STATEMENT OF WAVERLY ROUSE
My name is Waverly Rouse. My sibling, Everly Rouse, was married to
Sage Annandale for ten, ill-fated years. Sage was nothing but a moneygrubbing,
self-centered narcissist, who also happened to have some very strange
ideas about our government and our obligations as citizens. I am currently trying
to take custody of Everly’s children from Sage, because I think Sage is an unfit
parent, and I know it is what Everly would have wanted.
I was never a fan of Sage, even when Everly and Sage were first courting.
Still, it wasn’t my business to butt in, so I remained silent for years. Things
seemed fine for the first few years, until the kids started arriving. After that, Sage
was absent more and more, going out drinking with friends, and just avoiding any
basic childcare responsibilities. When their oldest child was about two years old,
Sage started leaving the house around dinnertime, and the kids often went
without dinner until Everly got home late to discover that Sage was not around. I
had many late-night phone calls with Everly complaining and even crying about
the absent Sage and how the kids were dirty and hungry and left home alone. It
was heartbreaking.
After their second child was born, (I think it was around 2007 or so), Sage
began to express inappropriate and, in my view, criminal, opinions about the
government of the United States. For example, during one holiday get-together,
we were sitting around the dinner table when Sage announced, “Oh I don’t pay
taxes – I haven’t paid taxes in years. The US government is not legitimate, and
we don’t have to recognize an illegitimate government by paying taxes.” When I
pressed Sage about that, s/he replied, “No taxation without representation.” This
didn’t really make any sense to me, so I asked Sage again what s/he meant, and
s/he just replied the same way. It was very strange. Another time, Sage said
that federal holidays like Veteran’s Day, and Memorial Day, were nothing but a
conspiracy when all government employees would not really take the day off
work, but instead they would meet in secret and plot how they would hack into
everyone else’s bank accounts and siphon money out. Sage said s/he would
never put money into a bank because the banks were part of a government plot.
Sage said that the Martin Luther King holiday was the worst, because this was
just a recently made up holiday with no tradition behind it and thus proved his/her
point.
When I mentioned to Everly that perhaps Sage wasn’t the best person to
be doing Everly’s business taxes, Everly got a little defensive and uptight. It
became a sore subject and I couldn’t bring it up again. Then, in 2008, the
economy went bad, and everything came out that Sage had never been filing
Everly’s business taxes. It came out that Sage had not been filing any taxes for
Everly’s business for about five years. I was over at their house at Thanksgiving
when it happened and I heard it all. Everly lost it and got real upset at Sage.
Everly told Sage that s/he really put them in a bad spot and the IRS was going to
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take their house and Everly’s business and everything. Sage just laughed and
said, “The IRS already has control of your house and your business, you fool!”
Sage then said “I have a plan --no government is going to control me! You and
your family are idiots!” Everly asked about the kids, and Sage replied, “Those
kids are nothing but your pawns – you can have ‘em.” Sage then grabbed some
clothes and walked right out of Everly’s life.
Everly got a lawyer real fast and filed for divorce. It got nasty. I know that
Sage was convicted of bashing in Everly’s car, and after spending a few months
in jail, seemed to settle down a bit. In the decree of dissolution entered in August
of 2009, Everly got all of their property and full custody of the kids, of course,
plus a restraining order against Sage. Sage had to pay a significant amount of
child support for the three kids, with a provision for a slight reduction if s/he cared
for them no less than one weekend a month or more. Sage complained like mad
about that child support and never exercised more than the minimum visitation.
Then, sadly, Everly died in February 2011. I can never prove this, but I
am convinced that Sage killed Everly – Everly had been using that car lift system
for years, and never had any problems with it. Then one night Sage texted
Everly, asking, “Where are you Are you working late” The next thing you
know, a perfectly functioning car lift system dropped onto Everly with no apparent
malfunction, and Everly was dead. With what I’ve recently learned, I definitely
think a remote activation of that lift is well within Sage’s capabilities.
Right after Everly died, the State of Washington’s Department of Social
and Health Services stepped in as they should. Since Everly’s three kids now
had “no fit parent” to care for them, they were alleged to be “dependent” on the
State. I cooperated fully in this process and very soon they were removed from
state care and placed with me as an in-family foster care provider. Up through
this point, Sage had not shown the slightest interest in any of this, neither
seeking custody nor even visitation. The fact that I was not asking for any
support payments was no doubt very pleasing to Sage.
Then something significant happened that changed all that. The Guardian
ad Litem, appointed for the children by the court, was digging around and learned
that Everly’s and my deceased mother, a wealthy widow, had left a lot of money
in trust for her grandchildren. Everly had been the trustee but now, upon Ev’s
death, Sage was in line to step into that role as successor. I suspect two things:
one, that Everly never touched that money, leaving it to grow for when the kids
would really need it and, two, that Sage had been kept in the dark about the
availability of these funds. So, when the GAL informed the court, DSHS and the
parties about all this, Sage made a quick 180 degree turn.
Sage could envision going from having monthly child support involuntarily
withheld from each paycheck to being able to access hundreds of thousands of
dollars with just a signature and a false claim that it would be used for the kids.
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Suddenly, Sage hired an attorney and began contesting custody and expressing
a deep devotion to those poor kids. Sage’s motives are entirely transparent.
I am involved in two separate pieces of active litigation with Sage. First,
there is an action in which I am seeking Sage’s removal as trustee for the
children. This is based on the facts that (1) Sage is a convicted felon and not of
sufficiently high moral character to fulfill this fiduciary role; and (2) Sage has a
distinct conflict of interest in seeking personal access to those funds. I am asking
that I be appointed as the proper trustee who will look out for the children’s best
interests. Pending the outcome, the Court has frozen the trust fund and no one
can touch it for now.
The second legal action is that in which I am seeking permanent full
custody of Everly’s children. In addition to Sage’s insincere and self-serving
interest in having custody, I worry that Sage might try to turn these innocent kids
into some kind of little militia soldiers. Sage’s anti-government views run deep
and no one should fall for this good citizen act. I tell you, the MLK parade
incident and the ferry business both have Sage’s name all over them. Sage is in
it right up to that neck that s/he is trying to save.
Unfortunately, the FBI got a bit involved in these cases since they and
Sage seem to be happily using each other for a while. There was some
statement by Agent Stone that I know got filed under seal with the Court and,
after that, the dependency action got dismissed and the kids have been placed
temporarily with Sage. (Although I’m a loyal supporter of our government, I do
have to wonder how this could happen.) I am confident that, when all is said and
done, I will prevail in both the trust action and the custody case.
In the meantime, however, I guess the children are in the witness
protection program and I can’t see them, communicate with them or even know
where they are. I am heartbroken, but I will never give up the fight for those kids.
Sage will maintain custody over my dead body – although maybe I shouldn’t be
saying that -- with Sage involved, who knows--it may be over my dead body.
Believe me, every time I get in my car, I worry that Sage may have rigged it with
an ejector seat that will automatically send me through the sunroof the first time I
hit 60 miles per hour.
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STATEMENT OF DR. ALEX LACASSAGNE
My name is Alex(ander/andra) Lacassagne (pronounced Lackasanya). I
am a tenured professor of Linguistics at Stanford University. My lineage includes
many distinguished academicians, including the founder of modern forensic
science -- a Frenchman, of course. I am proud to carry on this fine family
heritage. Although I was born and raised for much of my early years in France,
my parents moved to the United States during my teen years. I obtained my
undergraduate degree in Linguistics from Harvard (1985), and my master’s
degree (1987) and PhD from Stanford (1990).
I began teaching at Stanford in 1988, while still a graduate assistant. I first
worked under Professor Flinders Petrie, who at the time I thought was a brilliant
linguist. Unfortunately, my naivete was shattered by Dr. Petrie’s bizarre behavior
during our time together. This culminated in Dr. Petrie’s appearing in class
intoxicated throughout the Fall of 1989, which I personally witnessed on several
occasions. I also know that Petrie claims I turned his/her students against
him/her. In fact, Petrie’s students far preferred my French flair – my, shall we
say, je ne sais quoi -- to Petrie’s stuffy English style of teaching. Quite simply, as
Petrie’s inappropriate behavior continued, I had no choice but to report it to the
University Administration, which saw fit to terminate Petrie’s employment.
I understand that Professor Petrie has landed on his/her feet at
Washington A & M, and I am glad for that. I wish him/her no ill will, and nothing
but the best. That being said, I continue to believe that Professor Petrie’s
judgment has remained impaired ever since that ill-fated trip to Africa in the
summer of 1989.
I have been retained by the defense to offer an impartial, comprehensive,
statistically valid review of the unknown writings involved in this case, and to offer
my opinion as to the linguistic characteristics of these documents. My fees are
$350 per hour for consultative work, $1,600 per day for court testimony, plus
expenses (airfare, lodging, etc.).
In addition to my classroom work, I am the founder and president of
Language Technology, which markets linguistics software. I have been working
to perfect a computer algorithm to identify patterns hidden within syntax. Of
course, academically, I would love nothing better than to find and authenticate a
lost Shakespeare poem but, commercially, my goal is to develop a standard,
validated tool that police and other forensic investigators can use to identify
linguistic patterns. My software program is not yet ready for commercial
application, but it is far enough along that I am able to use it for my own private
consultative work, as I have done in this case. Several Stanford alumni,
including the founders of Google, have expressed interest in my project. I
concede that I stand to make a substantial sum when my software program is
completed, but I will also note that this scientific approach to linguistics is far
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superior and more reliable than Petrie’s subjective, academic methods. My
approach is more clinical and quantitative, and will be useable by a broader
spectrum of investigators, including those in remote, rural areas, where
investigators may not have money to pay for, or access to, high priced experts.
In this case, I took the three unknown letters that were obtained by the
FBI, and I entered each word and sentence into my proprietary software
program. I used this program to compare the unknown writings to the known
writings of Hutaree Jones. I also compared the words and phrases contained in
the unknown writings to my own proprietary “virtual library” of words and phrases
found in the English language.
Using this program, I found that the words in the three unknown letters are
found in only .003 percent of Hutaree Jones’s known writings. Of these, the word
“tyrant” or derivations thereof, appear in Jones’s writings only 1.5 percent of the
time, which is only marginally above the median for the population at large.
However, when compared to all other words found in the unknown writings, this
is statistically insignificant.
I also conducted a search for biblical phrases and other religious phrases,
in Hutaree Jones’s writings. I concluded that Jones uses biblical phrases in less
than 5 % of his/her writings. When compared to the biblical phrases found in the
unknown letters, there were no statistically significant comparisons which
permitted an inference that Jones wrote the unknown letters.
I next compared the unique spellings found in the letters. While I noted
that Jones’s writing reflect a word spelling using two consecutive vowels to spell
long vowels, similar to the “beest” and “armees” found in the letters. However,
when compared to the words spelled by others as found in my virtual library, I
note that there is nothing statistically significant about these misspellings; in other
words, roughly 30% of the population at large misspells words with long vowels
in a rate similar to that of Hutaree Jones.
Finally, I examined the other misspelled words found in the unknown
writings: wen, tru, shal, hors, poeple, suden, aganst, travale, and women. I found
no statistical significance when comparing these misspellings to the same words
misspelled by the population at large.
In sum, statistics don’t lie. The statistical significance of words found in
the letters is virtually nil, when compared to Hutaree Jones’s writings. The words
and phrases themselves are statistically insignificant. The unique spellings are
insignificant. The misspelled words are statistically insignificant. While I did not
compare the statistical significance of all of these events occurring together, I do
not expect that this would change my findings to any appreciable degree. As a
result, no person can draw a statistically verifiable conclusion that Hutaree Jones
was the author of the unknown letters.
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EXHIBITS
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Exhibit 1
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Exhibit 2
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Exhibit 3
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Exhibit 4
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Exhibit 5
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Exhibit 6
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PRETRIAL MOTION
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UNITED STATES DISTRICT COURT
DISTRICT OF WASHINGTON
AT CEDAR
UNITED STATES OF AMERICA, )
) NO. 11-1066
Plaintiff, )
)
v. ) DEFENDANT’S PRETRIAL
) MOTION RE: “EXPERT”
HUTAREE JONES, ) TESTIMONY
BOBBY JOE JONES, and )
BILLY JOE JONES, )
)
Defendants. )
________________________________)
From reviewing the statements of FBI Special Agent Stone as well as from
pretrial interviews, the undersigned counsel has serious concerns that this
witness is likely to offer improper testimony at trial, ostensibly as an “expert”. If
this should occur, the result would be either unfair prejudice to the defendant
Hutaree Jones or a costly mistrial. Accordingly, the defense brings this pretrial
motion in order to:
a) obtain a pretrial order expressly prohibiting S/A Stone from making
certain specific statements of opinion regarding the defendant’s
membership or affiliation with any organized group and/or opinion as to
the dangerousness of any such group; and
b) alert the court in advance as to the serious concerns that underlie
objections that we anticipate may need to be made during the course
of S/A Stone’s testimony.
Respectfully submitted,
/S/
Counsel for Defendant Hutaree Jones
67

AUTHORITY FOR PRETRIAL MOTION
Evidence Rule 702: Testimony by Experts
Evidence Rule 703: Bases of Opinion Testimony by Experts
Evidence Rule 401: Definition of “Relevant Evidence”
Evidence Rule 403: Exclusion of Relevant Evidence on Grounds of Prejudice
Excerpts from selected cases.
United States v. Long, 917 F.2d 691 (2d Cir. 1990)
Appellants were indicted in 1988 on charges of participating in a racketeering enterprise
by committing and agreeing to commit numerous crimes between 1978 and 1987. Both
appellants were charged with conspiring to participate in (Count I) and participating in
(Count II) the racketeering enterprise in violation of RICO, 18 U.S.C. sections 1962 (c)
and (d).
The indictment contained ten other counts alleging substantive offenses, including
extortion, filing false tax returns, perjury and false statements under oath. Because the
claims of error implicate the statute of limitations and the prejudicial effect of certain
rulings, a fairly detailed description of the evidence is necessary.
The government's proof focused on the criminal activities of Hyman, a dentist who was
convicted of extortion and loansharking in 1985 and thereafter became the government's
key witness in this case. Hyman testified that he had previous associations with various
organized crime families in Buffalo, paying the families a percentage of profits on union
dental care plans that Hyman set up with the backing of the families. When he moved
his criminal activities to the New York area, Hyman developed a relationship with
Rotondo, a member of the DeCavalcante organized crime family in New Jersey.
In 1979, Rotondo arranged for a contractor, Ben Parness, with whom Rotondo had an
extortionate relationship described infra, to introduce Hyman to Long, the Secretary–
Treasurer of Teamsters Local 804 in New York City. Hyman indicated to Long that he
was a partner of Rotondo, and Rotondo attended a few meetings between Hyman and
Long. Hyman proposed a dental plan for Long's union and requested that Long suggest
other Teamsters locals that might be interested in dental plans or pension funds.
Long thereafter introduced Hyman to Mahoney, who was Secretary–Treasurer of
Teamsters Local 808. Hyman reported to Rotondo and Rotondo's superior John Riggi,
then acting boss of the DeCavalcante family, that Mahoney was willing to discuss
business together. Rotondo responded, “[i]f you could do it, God bless you. Nobody has
been able to move Mahoney up until now.” Hyman told Mahoney that Hyman and
Rotondo were partners. Hyman testified, however, that Mahoney emphasized that he
intended to do business only with Hyman. Hyman shared the proceeds from the
resulting criminal activities with Rotondo and Riggi.
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Appellants argue that the district court abused its discretion by admitting expert
testimony regarding organized crime. We agree that the testimony was improperly
admitted.
Judge Edelstein ruled that the government's first witness, F.B.I. Special Agent James
Kossler, might testify as an expert on organized crime families under [Evidence Rules
702 and 703 and that such testimony was also permissible under Rule 403. Agent
Kossler's testimony described the division of La Cosa Nostra into families, some of
which operated in New York and New Jersey. He went on to describe the hierarchical
structure of such a family, including the respective roles of “the boss,” “the underboss,”
“the consiglieri,” “capos” and “soldiers.” He defined the difference between “made
members” and “associates” and the meaning of “vouching,” “sit downs” and “sweetheart
contracts.” He stated that organized crime families engage in gambling, loansharking,
theft, fencing and labor racketeering. Finally, he identified Rotondo as an underboss of
the DeCavalcante crime family.
We fail to see how Agent Kossler's testimony assisted the jury either “to understand the
evidence or to determine a fact in issue” as required by Rule 702. The claimed nexus
between the crimes charged and organized crime families appears to be the fact that
Rotondo was a “made member” of the DeCavalcante family and Hyman was an
“associate.” Rotondo introduced Hyman to Long so they could arrange the various
kickback schemes and the two “sweetheart contracts.” Long in turn introduced Hyman to
Mahoney for the same purpose. In return for Rotondo's introductions, Hyman shared
with Rotondo and his superior, Riggi, the ill-gotten gains.
We agree that the fact that Rotondo had contacts in organized labor as a result of his
position in the DeCavalcante crime family and demanded a fee for his services was
relevant background to explain to the jury how and why he was able to facilitate.
Hyman's various schemes by introducing him to Long. Hyman, however, could have
testified to that fact, and there was no need to call an expert to explain the hierarchical
structure of organized crime families, their jargon, the various unrelated criminal
activities in which they engage, and so forth. The sharing of the proceeds from illegal
kickback schemes with those who facilitate them is hardly a unique arrangement found
only where “made members” introduce “associates” to crooked labor leaders. Indeed,
recent highly-publicized scandals in New York City have involved payments to political
leaders in exchange for their services as facilitators of corrupt schemes.
In addition to being only marginally relevant, Agent Kossler's extensive descriptions of
organized crime families were substantially prejudicial. Although Rotondo played only an
introductory role in facilitating Hyman's relationship with Long, calling Agent Kossler as
the first prosecution witness had the effect of implicating Long and Mahoney as part of a
much larger criminal organization and associating them with all of the sinister aspects
and activities of that criminal organization. It thus operated less to aid the jury than to
prejudice it.
The fact that the agent did not testify about the particular facts of the instant matter does
not reduce the prejudice. This sort of generalized information—by definition not directly
related to the case at hand—was quite prejudicial in a case with so thin a nexus to
organized crime. For example, because it was generalized, cross-examination could not
blunt its prejudicial effect. The evidence thus clearly had an adverse impact “beyond
tending to prove the fact or issue that justified its admission into evidence.”
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United States v. Locascio, 6 F.3d 924 (2 nd Cir. 1993)
John Gotti and Frank Locascio were convicted after a jury trial of substantive and
conspiracy violations of the Racketeer Influenced Corrupt Organizations Act and various
predicate acts charged as separate counts. They were each principally sentenced to life
imprisonment. The charges stemmed from their involvement with the Gambino Crime
Family of La Cosa Nostra, an extensive criminal organization.
On appeal, Gotti and Locascio raise numerous challenges to their convictions. For
the reasons stated below, we affirm the judgments of the district court.
Gotti and Locascio both contend that the district court committed reversible error in
admitting the testimony of government experts to assist the jury in understanding the
structure of organized crime families. More specifically, they principally challenge various
facets of FBI Agent Lewis Schiliro's testimony, arguing that: (1) Schiliro's testimony was
too broad and went beyond the scope of expert testimony; (2) he was not properly
qualified as an expert; and (3) his use of hearsay and un-introduced evidence to
substantiate his opinions violated Evidence Rule 703, and the Confrontation Clause.
A. Background
At trial, Special Agent Schiliro testified at great length on the nature and function of
organized crime families, imparting the structure of such families and disclosing the
“rules” of the La Cosa Nostra. For example, Schiliro testified that a “boss” must approve
all illegal activity and especially all murders, and that the functions of the “consigliere”
and “underboss” are only “advisory” to the “boss.” In addition, as part of his testimony,
he interpreted the numerous surreptitiously taped conversations introduced into
evidence, and identified the individuals speaking by their voices. Schiliro specifically
named John Gotti as the boss of the alleged Gambino Family and Gravano as the
consigliere. Additionally, he identified, together with their titles, ranks, and functions,
numerous members and associates of the Gambino Family and other criminal
organizations. When pressed as to his sources for individuals' titles, ranks and functions,
Schiliro admitted that his sources of information were not necessarily before the court.
B. Discussion
Under the Federal Rules of Evidence, an expert is permitted to testify in the form of
an opinion or otherwise when that testimony would “assist the trier of fact to understand
the evidence or to determine a fact in issue.” In determining whether such evidence will
assist the jury, the district court must make a “ ‘common sense inquiry’ ” into “ ‘whether
the untrained layman would be qualified to determine intelligently and to the best
possible degree the particular issue without enlightenment from those having a
specialized understanding of the subject involved in the dispute.’ ” In applying this
standard, the district court has broad discretion regarding the admission of expert
testimony, and this Court will sustain the admission unless “manifestly erroneous.”
Gotti and Locascio contend that the district court erred in admitting Schiliro's
testimony for several reasons. The thrust of their argument is that Schiliro did not
actually testify as an expert, but rather was simply a conduit allowing inadmissible
evidence and arguments to flow into the court. They assert that Schiliro's testimony was
too broad, sweeping, and unsubstantiated to be admissible. We will consider their
specific points in turn.
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1. Challenge to Scope of Expert Testimony
The defendants-appellants challenge the admission of expert testimony on the inner
workings of the Gambino Family as being outside the scope of expert testimony. We
have, however, previously upheld the use of expert testimony to help explain the
operation, structure, membership, and terminology of organized crime families.
In United States v. Daly, this Court confronted a similar claim that a district court
committed reversible error in admitting expert testimony on the structure of organized
crime families. There, the government agent who testified “identified the five organized
crime families that operate in the New York area; he described their requirements for
membership, their rules of conduct and code of silence, and the meaning of certain
jargon, ... and he described how, in general, organized crime has infiltrated labor
unions.” Additionally, the expert identified voices on surveillance tapes. In sustaining the
admission of such testimony, we explained that such expert testimony “was relevant to
provide the jury with an understanding of the nature and structure of organized crime
families.” We further added that there was “no question that there was much that was
outside the expectable realm of knowledge of the average juror.”
We continue to believe that despite the unfortunate fact that our society has become
increasingly familiar with organized crime and its activities from such sources as
newspapers, movies, television, and books, it is still a reasonable assumption that jurors
are not well versed in the structure and methods of organized crime families. Moreover,
much of the information gleaned from such sources may be inaccurate. Consequently,
the subject matter of Agent Schiliro's testimony, namely the structure and operations of
organized crime families, was properly admitted.
2. Schiliro's Qualifications as an Expert
The defendants-appellants argue that Schiliro was not properly qualified as an expert,
since his testimony required knowledge of linguistics, the sociology of crime, tape
recording technology, and voice analysis. Gotti and Locascio contend that because he
was not an expert in any of those areas, he was not qualified to interpret tapes or give
his opinion on the Gambino Family structure.
This argument ignores the fact that Schiliro had been an FBI agent for seventeen
years, and for five years had been on the FBI's Organized Crime Program, a squad that
investigated only organized crime cases. For more than two years, he was the
supervisor of the Organized Crime Program. Rule 702 only requires that an expert
witness have “scientific, technical, or other specialized knowledge” gained through
“knowledge, skill, experience, training, or education.” Because Schiliro's background
qualifies as “specialized knowledge,” the district court did not err in qualifying him as an
expert. Schiliro did not need to be a voice analysis expert to be able to recognize the
defendants-appellants' voices on the tapes, nor did he need a linguistics degree to
understand what was being said. Schiliro testified as an expert on organized crime, and
he was sufficiently qualified on that basis. Although he had never before been qualified
as an expert witness, even the most qualified expert must have his first day in court.
3. Sources of Information
Defendants-appellants next argue that because Schiliro relied upon “countless
nameless informers and countless tapes not in evidence,” his testimony violated Rule
703 and the Confrontation Clause of the Sixth Amendment. The government responds
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that, although Schiliro relied upon information that was not before the court, this reliance
is permitted under the rules of evidence.
According to Rule 703, the facts that form the basis for an expert's opinions or
inferences need not be admissible in evidence “[i]f of a type reasonably relied upon by
experts in the particular field.” Thus, expert witnesses can testify to opinions based on
hearsay or other inadmissible evidence if experts in the field reasonably rely on such
evidence in forming their opinions. Therefore, Schiliro was entitled to rely upon hearsay
as to such matters as the structure and operating rules of organized crime families and
the identification of specific voices heard on tape in forming his opinion, since there is
little question that law enforcement agents routinely and reasonably rely upon such
hearsay in the course of their duties. An expert who meets the test of Rule 702, as
Schiliro does, is assumed “to have the skill to properly evaluate the hearsay, giving it
probative force appropriate to the circumstances.” The fact that Schiliro relied upon
inadmissible evidence is therefore less an issue of admissibility for the court than an
issue of credibility for the jury. The defendants were free to expose the weaknesses in
the prosecution's widespread use of expert testimony through cross examination
Gotti and Locascio do not seriously contest the point that hearsay and other
inadmissible evidence are often reasonably relied upon by law enforcement agents in
the field, and that this reliance is anticipated by Rule 703. Rather, they argue that a
district court admitting expert testimony based on inadmissible evidence must make an
explicit finding that the underlying sources of information used by the expert are
trustworthy. We agree that a district court is not bound to accept expert testimony based
on questionable data simply because other experts use such data in the field. The
Supreme Court's recent decision of Daubert v. Merrill Dow Pharmaceuticals Inc. makes
this clear. In Daubert the Court abandoned the traditional rule of Frye v. United States
(1923), which required “general acceptance” in the particular field before novel scientific
evidence or techniques could be admitted in court. The Court in Daubert asserted that
such a rigid standard for admitting expert scientific testimony was inconsistent with the
liberal thrust of the federal rules, holding that district courts have the authority and
discretion to determine whether novel scientific evidence is trustworthy. Although
Daubert involved Rule 702 and scientific evidence, the flexibility of the federal rules also
applies to Rule 703 and the determination of the trustworthiness of the sources of expert
testimony. The district court has broad discretion to decide the admissibility of expert
testimony based on inadmissible evidence.
We decline, however, to shackle the district court with a mandatory and explicit
trustworthiness analysis. The district judge, who has the ideal vantage point to evaluate
an expert's testimony during trial, already has the authority under Rule 403 to conduct an
explicit trustworthiness analysis should she deem one necessary. The district court has
the “discretionary right under Rule 703 to determine whether the expert acted
reasonably in making assumptions of fact upon which he would base his testimony”). In
fact, we assume that the district court consistently and continually performed a
trustworthiness analysis sub silentio of all evidence introduced at trial. We will not,
however, circumscribe this discretion by burdening the court with the necessity of
making an explicit determination for all expert testimony. This is especially true in this
case, because the sources relied upon by Schiliro are no different from those previously
allowed by this Court.
72

United States v. Mejia, 545 F.3d 179 (2d Cir. 2008)
Appeal from judgment of conviction entered in the United States District Court for the
Eastern District of New York for conspiracy to commit assaults with a dangerous weapon
in aid of racketeering activity, three counts of assault with a dangerous weapon in aid of
racketeering activity, and three counts of discharge of a firearm during a crime of
violence. We vacate the judgment after finding that the admission of expert witness
Hector Alicea's testimony violated the Federal Rules of Evidence and the Sixth
Amendment Confrontation Clause. We remand for retrial.
BACKGROUND
On June 18, 2003, Ledwin Castro and David Vasquez (“Appellants”), along with several
others, participated in two drive-by shootings on Long Island, New York. At the time,
Appellants were members of the MS–13 gang. MS–13 is a nationwide criminal gang
organized into local subunits known as “cliques.” At the time, to become a full member of
MS–13, an individual was required to “make his quota,” which meant to engage in acts
of violence against members of rival gangs, such as the SWP and the Bloods. MS–13
had local cliques on Long Island, and Castro was the leader of the Freeport clique (the
“Freeport Locos Salvatruchas,” or “FLS”).
On the day of the shootings, Vasquez, Castro, Ralph Admettre (a member of MS–13),
and Nieves Argueta, a new initiate into MS–13, met at the apartment of Bonerje Menjivar
(also a member of MS–13). There, the group discussed their plan to shoot members of
rival gangs. They had been preparing to carry out the shootings for quite some time. A
few weeks earlier, Admettre, acting at Castro's direction, had stolen the van that they
would use. Earlier that day, Vasquez had informed Admettre that he—Vasquez—had
procured a handgun belonging to the Freeport clique. While the group was at Menjivar's
apartment, Menjivar gave Castro ammunition for the handgun.
Admettre, Castro, Vasquez, and Argueta put the plan into action that night. At about 9:40
p.m., Admettre drove the others to a laundromat in Hempstead, New York. After
Vasquez and Castro reconnoitered the scene, attempting to determine whether anyone
in the parking lot was a member of SWP, a rival gang, Admettre left the laundromat
parking lot and stationed the van in a gas station parking lot across the street. Once the
van was in position, Vasquez fired at the crowd in the laundromat parking lot from inside
the van. Two individuals were hit. Ricardo Ramirez, age fifteen, was hit by three shots in
the chest, arm, and leg. Douglas Sorto, age sixteen, was hit once in the leg. Both victims
survived the shooting. After Vasquez fired these shots, Admettre drove away. Castro
then called Menjivar and informed him that more ammunition would be needed.
Admettre drove everyone back to Menjivar's apartment, and Menjivar gave Vasquez
additional ammunition.
Shortly thereafter, at approximately 10:20 p.m., Admettre, Castro, Vasquez, and Argueta
traveled to a delicatessen parking lot in Freeport, New York. Upon arriving, they saw a
group of young black men who they believed were members of the Bloods, a rival gang.
Vasquez handed the handgun to Argueta, who proceeded to shoot one of the young
men, Carlton Alexander, seven times in the back. Despite being hit by multiple shots,
Alexander survived. After the shooting, the four men immediately abandoned the van.
About one month later, local police arrested Castro, Vasquez, Admettre and Argueta.
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In February 2004, a federal grand jury indicted Vasquez, Castro, and twelve others for
various offenses stemming from a series of violent incidents on Long Island between
August 2000 and September 13, 2003. During the course of the trial, which took place
between July 19 and July 26, 2005, the Government called Hector Alicea, an officer with
the New York State Police, as an expert witness. On July 26, 2005, the jury found
Appellants guilty on all ten counts.
DISCUSSION
The Substance of Alicea's Testimony
The Government called Hector Alicea, an investigator with the New York State Police, to
testify regarding MS–13's “enterprise structure and the derivation, background and
migration of the MS–13 organization, its history and conflicts,” as well as MS–13's
“hierarchy, cliques, methods and activities, modes of communication and slang.” Alicea
had been an officer of the New York State Police for eighteen years, and he had been
an investigator since 1992. In 2000, five years before the trial, Alicea had been assigned
to the FBI Long Island Gang Task Force. He was also the Chair of the Intelligence
Committee of the East Coast Gang Investigators Association.
Much of Alicea's testimony concerned MS–13's background. He testified about MS–13's
history, its presence on Long Island, and its national and international presence; about
the gang's colors, hand signs, graffiti use, naming practices, and tattoos; and about its
local subunit structure, leadership structure, division of responsibilities, and membership
rules. In addition, Alicea testified to more specific details about MS–13's operations. He
stated that when MS–13 members fled from prosecution or needed to travel for “gang
business reasons,” such as “to transport narcotics,” “to transport weapons,” or “to
commit crimes in other areas,” they traveled “on a Greyhound bus” or by car. According
to Alicea, MS–13 members from Virginia, California, and El Salvador had attended
organizational meetings in New York State, and MS–13 leaders throughout the nation
communicated with each other by telephone. He testified that MS–13 treasury money
“[was] used to buy guns,” to help members in prison or in other states, or to buy
narcotics. Significantly, Alicea also asserted that MS–13 needed guns “to do what MS 13
does, which is, you know, shoot at rival gang members, and sometimes in the process,
obviously, some people get hit.”
With respect to MS–13's activities on Long Island, Alicea testified that since he had
joined the Task Force in June 2000, the Task Force had seized “[p]robably between 15
and 25” firearms from MS–13 members. He further testified that Task Force members
had seized ammunition, manufactured outside of New York State, from MS–13 members
on Long Island. Moving on to MS–13's narcotics-related operations, Alicea told the jury
that MS–13 members on Long Island had been arrested for dealing narcotics, primarily
cocaine, and that the gang also occasionally dealt marijuana. Alicea also stated that
MS–13 “tax [ed]” non-gang drug dealers who wished to deal drugs in bars controlled by
MS–13. Most importantly, Alicea attested that MS–13 had committed “between 18 and
23” murders on Long Island between June 2000 and the trial.
The Emergence of the Officer Expert
Under Evidence Rule 702, in those situations where “scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue,” testimony by “a witness qualified as an expert by knowledge,
skill, experience, training, or education” is permissible so long as “(1) the testimony is
74

ased upon sufficient facts or data, (2) the testimony is the product of reliable principles
and methods, and (3) the witness has applied the principles and methods reliably to the
facts of the case.” The broad phrasing of the description “scientific, technical, or other
specialized knowledge” brings within the scope of the Rule both “experts in the strict
sense of the word,” such as scientists, and “the large group sometimes called ‘skilled’
witnesses, such as bankers or landowners testifying to land values.” advisory
committee's note. On the question of when expert testimony is appropriate, the Advisory
Committee Notes refer to the traditional common law rule that expert testimony is called
for when the “untrained layman” would be unable intelligently to determine “the particular
issue” in the absence of guidance from an expert.
In the 1980s, a new type of “skilled witness” began emerging: the law enforcement
officer. In criminal cases, the Government began calling law enforcement officers to
testify as experts on what we referred to as “the nature and structure of organized crime
families.” United States v. Daly (1988). This Court first reviewed a challenge to the use
of such an expert in United States v. Ardito (1986). The Government had called an FBI
agent to testify as an expert about terms such as “captain,” “capo,” “regime,” and “crew.”
We upheld the admission of that expert testimony because it “aided the jury in its
understanding of” recorded conversations between the two defendants. Furthermore, we
noted, the district court had reminded the jury that the defendants there had not been
charged with any conduct relating to organized crime.
One year later, we upheld the admission of expert testimony by a law enforcement
officer on the related matter of the meaning of messages written in code. Upholding such
testimony was consistent with pre-Ardito cases where we and other Circuits had allowed
law enforcement officers to testify as experts about the meaning of jargon relating to
narcotics trafficking.
In subsequent years, we have encountered novel uses of these “officer experts” and
approved of their testifying on a broader range of issues. For example, in United States
v. Daly, where the defendants were charged with “various crimes arising out of activities
of the Gambino crime family,” we upheld the expert testimony of an FBI agent who
“identified the five organized crime families that operate in the New York area” and
“described their requirements for membership, their rules of conduct and code of silence,
and the meaning of certain jargon.” After the Government had played surveillance tapes
for the jury, the agent interpreted the jargon the speakers had used. This Court upheld
the district court's decision to admit the agent's testimony, finding that the agent had
testified about “much that was outside the expectable realm of knowledge of the average
juror.” The district court's judgment that the agent's testimony would be helpful to the
juror “was not unreasonable.” Finally, the agent had not testified about the defendants or
any of the charged offenses. The only offense element to which the agent had testified
“was the existence of a RICO enterprise, as he gave his understanding of the existence
of organized crime and the Gambino family.”
Since Daly, we have repeatedly upheld the admission of similar testimony. See, e.g.,
United States v. Locascio (1993) (upholding an FBI agent's expert testimony about the
internal operating rules of organized crime families, the meaning of recorded
conversations, and the identification of members of the Gambino crime family); United
States v. Feliciano (2000) (upholding an FBI agent's expert testimony about “the
structure, leadership, practices, terminology, and operations of [a street gang, Los
Solidos]”); United States v. Matera (2007) (upholding the admission of an officer's expert
75

testimony “about the composition and structure of New York organized crime families”
and observing that the district court had limited the expert's testimony to general
information rather than information about the defendants themselves). Our decision to
permit such expert testimony reflects our understanding that, just as an anthropologist
might be equipped by education and fieldwork to testify to the cultural mores of a
particular social group. Law enforcement officers may be equipped by experience and
training to speak to the operation, symbols, jargon, and internal structure of criminal
organizations. Officers interact with members of the organization, study its operations,
and exchange information with other officers. As a result, they are able to break through
the group's antipathy toward outsiders and gain valuable knowledge about its parochial
practices and insular lexicon. Allowing law enforcement officers to act as experts in
cases involving these oft-impenetrable criminal organizations thus responds to the same
concerns that animated the enactment of the criminal laws that such organizations (and
their members) are typically charged with violating. See Organized Crime Control Act of
1970 (“[O]rganized crime continues to grow because of defects in the evidencegathering
process of the law inhibiting the development of the legally admissible
evidence necessary to bring criminal ... sanctions ... to bear on the unlawful activities of
those engaged in organized crime....”).
Yet despite the utility of, and need for, expertise of this sort, its use must be limited to
those issues where sociological knowledge is appropriate. An increasingly thinning line
separates the legitimate use of an officer expert to translate esoteric terminology or to
explicate an organization's hierarchical structure from the illegitimate and impermissible
substitution of expert opinion for factual evidence. If the officer expert strays beyond the
bounds of appropriately “expert” matters, that officer becomes, rather than a sociologist
describing the inner workings of a closed community, a chronicler of the recent past
whose pronouncements on elements of the charged offense serve as shortcuts to
proving guilt. As the officer's purported expertise narrows from “organized crime” to “this
particular gang,” from the meaning of “capo” to the criminality of the defendant, the
officer's testimony becomes more central to the case, more corroborative of the fact
witnesses, and thus more like a summary of the facts than an aide in understanding
them. The officer expert transforms into the hub of the case, displacing the jury by
connecting and combining all other testimony and physical evidence into a coherent,
discernible, internally consistent picture of the defendant's guilt.
In such instances, it is a little too convenient that the Government has found an
individual who is expert on precisely those facts that the Government must prove to
secure a guilty verdict—even more so when that expert happens to be one of the
Government's own investigators. Any effective law enforcement agency will necessarily
develop expertise on the criminal organizations it investigates, but the primary value of
that expertise is in facilitating the agency's gathering of evidence, identification of targets
for prosecution, and proving guilt at the subsequent trial. When the Government skips
the intermediate steps and proceeds directly from internal expertise to trial, and when
those officer experts come to court and simply disgorge their factual knowledge to the
jury, the experts are no longer aiding the jury in its factfinding; they are instructing the
jury on the existence of the facts needed to satisfy the elements of the charged offense.
The Government cannot satisfy its burden of proof by taking the easy route of calling an
“expert” whose expertise happens to be the defendant. Our occasional use of abstract
language to describe the subjects of permissible officer expert testimony, e.g., in
Locascio and Lombardozzi, cannot be read to suggest otherwise.
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This Court has not been blind to these risks. More than fifteen years ago, we observed
that although “the operations of narcotics dealers are a proper subject for expert
testimony under Rule 702, we have carefully circumscribed the use of such testimony to
occasions where the subject matter of the testimony is beyond the ken of the average
juror.” [We have cautioned] that expert testimony relating to “the operations of narcotics
dealers ... should normally be used only for subjects that have esoteric aspects
reasonably perceived as beyond the ken of the jury” (internal quotation marks omitted)).
Two years later, in Locascio, after approving of an FBI agent's expert testimony on the
structure of the Gambino family, we nonetheless “remind[ed] the district courts ... that
they are not required to admit such testimony, and when they do the testimony should
be carefully circumscribed to ensure that the expert does not usurp either the role of the
judge in instructing on the law, or the role of the jury in applying the law to the facts
before it.” In most cases, of course, no reminder was needed, often because the district
court had taken affirmative steps on its own to prevent such usurpation. (“[T]he final
[jury] instructions made clear that it was the jury's province to determine whether or not
the individuals named in the indictment functioned as an ‘enterprise’....”); (“Immediately
after [the officer expert's] testimony, the district court gave a limiting instruction....”).
We more recently cautioned the Government of our concern about these risks in United
States v. Dukagjini (2003), and Lombardozzi (2007). In Dukagjini, the Government called
the case agent, a DEA officer, as an expert witness for the purpose of interpreting
recorded conversations. The district court allowed the agent to testify, but it “cautioned
the prosecutor to limit [the agent's] testimony to ‘words of the trade, jargon,’ and general
practices of drug dealers.” During his testimony, the agent interpreted various terms,
such as “dry” and “cooked.” The agent also addressed specific exchanges in recorded
conversations and explained their meaning to the jury. In doing so, the agent relied on
both his experience and his knowledge of the case.
After reviewing the agent's testimony, we concluded that the agent had “stray[ed] from
his proper expert function” by “act[ing] at times as a summary prosecution witness.” The
Government's decision to call the case agent as an expert witness, we observed, had
“increase[d] the likelihood that inadmissible and prejudicial testimony [would] be
proffered.” The officer expert's status, we suggested, was likely to give his factual
testimony an “unmerited credibility” before the jury. (“When the expert is a government
law enforcement agent testifying on behalf of the prosecution about participation in prior
and similar cases, the possibility that the jury will give undue weight to the expert's
testimony is greatly increased.”) The defense's inability to meaningfully challenge the
case agent's expert opinions inadvertently reinforces the agent's credibility on questions
of fact. In addition, case agents testifying as experts are particularly vulnerable to
making “sweeping conclusions” about the defendants' activities.
We have identified two distinct ways in which the officer expert might “stray from the
scope of his expertise.” The expert might, as did the agent in Dukagjini, “testif[y] about
the meaning of conversations in general, beyond the interpretation of code words.”
We went on to find that, because the officer expert had relied on hearsay and custodial
interrogations when forming his opinions, his testimony that went outside the scope of
his expertise violated the Evidence Rules and the Confrontation Clause of the Sixth
Amendment. When the agent “departed from the bounds of Rules 702 and 703” by
“repeatedly deviat[ing] from his expertise on drug jargon,” he thereby “crossed [the] line”
between “permissible and impermissible reliance on hearsay.” We held that the agent's
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testimony violated the rules for expert witnesses, the hearsay rules, and the
Confrontation Clause. We affirmed the convictions nonetheless because the violation of
the constitution had not been plain error and the hearsay violation had been harmless.
Similar concerns arose in Lombardozzi. There, the defendant had been charged with
loan sharking, and the Government called an investigator with the U.S. Attorney's Office
for the Southern District of New York “as an expert who testified as to, inter alia, the
general structure of La Cosa Nostra in New York and Lombardozzi's affiliation with
organized crime.” In addition to testifying about the structure of La Cosa Nostra, the
officer told the jury that the defendant was “a soldier in the Gambino crime family.” When
questioned by defense counsel as to his basis for that opinion, the witness testified that
his knowledge of the defendant's position in the Gambino family “was based on
conversations with cooperating witnesses and confidential informants.” He added that
“he personally observed Lombardozzi's activities approximately two dozen times since
1985.” Because the defendant had failed to raise a Confrontation Clause challenge to
the officer expert's testimony, we reviewed that testimony for plain error and found that it
did not affect the defendant's substantial rights. We commented, however, that “the
record indicate[d] that” the expert may have “communicated out-of-court testimonial
statements of cooperating witnesses and confidential informants directly to the jury in the
guise of an expert opinion.”
It is in light of these concerns that we now turn to Appellants' specific challenges to
Alicea's testimony. In doing so, we review the district court's admission of expert
testimony for abuse of discretion, and we will not find error unless the district court's
ruling was “manifestly erroneous.”
Under Rule 702, the district court may admit expert testimony if the witness is “qualified
as an expert by knowledge, skill, experience, training, or education.” At trial, Alicea
testified that he had been an officer with the New York State Police for eighteen years
and that he had been an investigator since 1992. He had been trained at the New York
State Police academy, and he had received additional training in the field and through
refresher courses. In addition, he had been a member of the FBI Gang Task Force on
Long Island since 2000 and served as Chair of the Intelligence Committee of the East
Coast Gang Investigators' Association. Alicea also had extensive experience relating to
MS–13 in particular. He testified that he had “listened to many conversations on tape,”
performed surveillance in the course of investigations of MS–13, executed search
warrants, debriefed MS–13 members, and trained other police departments on MS–13.
Since joining the Task Force, he had arrested “between 50 and a hundred” and
interviewed “[o]ver a hundred” MS–13 members. He said that he had also “read a lot of
documents related to MS, either on the internet or the media or from our instructors or
other people from the conferences I have gone to,” and that he read “a web site” dealing
with MS–13 on a daily basis.
Alicea's qualifications are quite similar to those of experts whose qualifications we have
upheld in the past. In Locascio, for example, the officer expert “had been an FBI agent
for seventeen years, and for five years had been on the FBI's Organized Crime Program,
a squad that investigated only organized crime cases.” Similarly, Alicea had been an
investigator with the New York State Police for thirteen years and a member of the Task
Force for five. Likewise, in Matera, the officer expert had “extensive experience
investigating organized crime as a New York Police Department Detective and later as
an Investigator for the United States Attorney's Office.” And in Feliciano, we described
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an officer expert as having “extensive experience” with a particular criminal gang based
on the officer's participation in a joint task force for approximately five years, “execution
of federal and state search warrants at [gang] locations,” participation in electronic
surveillance, and review of reports by other agents. Alicea's work experience, training,
and involvement in investigations of MS–13 are at least as “extensive.” The district court
did not err in finding that Alicea was qualified to testify as an expert.
The problem was not Alicea's qualifications. It was the subjects about which he testified
and the sources on which he relied. We address those concerns below.
The Appropriate Boundaries of Alicea's Expertise Under Rule 702
Appellants argue that some of the matters about which Alicea testified were outside the
scope of his expertise. Rule 702 requires that expert testimony concern “scientific,
technical, or other specialized knowledge.” Testimony is properly characterized as
“expert” only if it concerns matters that the average juror is not capable of understanding
on his or her own.
Much of Alicea's testimony addressed matters that the average juror could have
understood had such factual evidence been introduced. Alicea's testimony about the
ways that MS–13 members traveled when fleeing from prosecution or when transporting
contraband, his assertion that MS–13 members from Virginia, California, and El
Salvador had attended organizational meetings in New York State, and his statement
that MS–13 leaders communicated by telephone all fall into this category. So, too, did
his testimony about the use of MS–13 treasury funds to buy firearms and narcotics, his
statement that the gang occasionally dealt narcotics, and his statement that MS–13
taxed non-member drug dealers.
This testimony, which ranged from MS–13's activities on Long Island to aspects of the
gang's operations more generally, went far beyond interpreting jargon or coded
messages, describing membership rules, or explaining organizational hierarchy. We find
especially disturbing the portion of Alicea's testimony that essentially summarized the
results of the Task Force investigation on Long Island, and in particular Alicea's
testimony that MS–13 had committed between 18 and 23 murders since 2000.
We recognize that expertise may have been necessary to connect specific murders to
MS–13. An appropriate example of such expertise would have been an expert's
explanation of how the graffiti near a body indicated that the murderer was a member of
MS–13, or an expert's testimony that the gang used a particular method to kill enemies
and that as a result of his review of the autopsy reports (which would have been in
evidence before the jury), he had concluded that MS–13 committed those murders. The
acceptable use of expert testimony for this limited purpose, however, does not make it
acceptable to substitute expert testimony for factual evidence of murder in the first
instance (a fact, as we must remember, that is an element of the charged offense). If the
Government is going to use the fact of murders as a way of proving that the gang
engaged in a pattern of racketeering activity involving murder, that an individual was
murdered remains a fact that must be proven by competent evidence. Only then does
expertise of the sort proffered by Alicea become necessary to help the jury understand
the particular evidence and to show a connection between MS–13 and the murder. The
Government cannot take a shortcut around its obligation to prove murder beyond a
reasonable doubt just by having an expert pronounce that unspecified deaths of
eighteen to twenty-three persons have been homicides committed by members of MS–
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13. Alicea's testimony in this regard went beyond those issues on which his “expert”
testimony would have been helpful and appropriate.
In Feliciano, the one case where we have approved of testimony that even arguably
approached the scope of Alicea's testimony here, the officer was testifying as both a fact
witness and an expert witness. Like Appellants, the defendants in Feliciano had been
charged with offenses under the Violent Crimes in Aid of Racketeering Act. The
racketeering enterprise of which those defendants were members was the Los Solidos
gang. At trial, the Government called the coordinator of a joint task force on gang activity
in Hartford, Connecticut, as both an expert witness and a fact witness. As an expert, the
agent testified about “the structure, leadership, practices, terminology, and operations of
Los Solidos.” As a fact witness, he testified about his involvement in the task force
investigation of Los Solidos. On appeal, the defendants argued that the agent had
testified to legal conclusions. They did not challenge the agent's testimony as outside the
scope of his expertise. We upheld the district court's admission of the testimony after
finding that the agent had not testified to any legal conclusions. Even as we affirmed the
convictions, however, we expressed concern that “the line between [the agent's] opinion
and fact witness testimony [was] often hard to discern, and the ‘facts' testified to are
often stated very broadly and generally.” Nonetheless, because the defense had had
ample opportunity to cross-examine the agent as to the basis for those broadly stated
facts, we found that the district court had not erred in admitting the testimony.
Feliciano thus reinforces our conclusion that it would be improper for the Government to
rely on an officer expert's testimony about matters outside the scope of any conceivable
expertise and that the district court errs in allowing it to do so. There, the Government
correctly realized that it could not call the task force coordinator to testify as an expert
about the precise operations of the racketeering enterprise charged in the indictment,
and it had the agent testify in dual roles: as a fact witness and as an expert witness.
Alicea, in contrast, was proffered and testified in the case before us only as an expert.
Those parts of his testimony that involved purely factual matters, as well as those in
which Alicea simply summarized the results of the Task Force investigation, fell far
beyond the proper bounds of expert testimony. Alicea was acting as a de facto “case
agent” in providing this summary information to the jury (the case being the ongoing
investigation into MS–13's activities on Long Island).
Testifying as he did, Alicea's evidence runs afoul of our admonition in Dukagjini. When
case agents testify as experts, they gain “unmerited credibility when testifying about
factual matters from first-hand knowledge.” The testimony loses its expert character and
the entire process transforms into “the grand jury practice, improper at trial, of a single
agent simply summarizing an investigation by others that is not part of the record.”
Alicea's factual testimony about matters that required no specialized knowledge clearly
implicates these concerns, and the district court erred in allowing him to testify beyond
the bounds for which expert testimony would have assisted the jury in understanding the
evidence.
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State of Washington v. Ronquillo, 1998 WL 87641 (Wash. COA 1998)
On March 23, 1994, Ballard High School student Melissa Fernandes was killed in a
drive-by shooting. The fatal gunshot was fired by Brian Ronquillo from a car driven by
Cesar Sarausad. We consider Ronquillo's challenge to his conviction of first degree
murder, two counts of attempted first degree murder, and assault in the second degree.
We affirm, concluding that the trial court did not abuse its discretion by (1) declining
juvenile court jurisdiction, (2) rejecting a motion for mistrial due to alleged improper
comments on Ronquillo's right to remain silent, and (3) refusing repeated motions to
sever. The trial court was in the best position to make these discretionary rulings, which
we will not upset on appeal. We also reject Ronquillo's argument that the jury
instructions impermissibly broadened the charge against him.
Because gang activity was central to the events surrounding the shooting, we affirm the
trial court's decision to admit expert testimony on gangs. We also affirm the discretionary
evidentiary ruling to strike a portion of the gang expert testimony elicited by Ronquillo on
cross examination because Ronquillo was not otherwise denied the right to cross
examine the expert for bias. Finally, because we reject Ronquillo's assertion that the
State put one of its witnesses on the stand for the primary purpose of eliciting testimony
in order to impeach the witness with otherwise inadmissible evidence, we hold that the
trial court did not abuse its discretion either by admitting the impeaching evidence or
allowing it to be proved by extrinsic evidence.
On the day of the shooting, Ronquillo and Sarausad met with others at their usual
gathering place. This group of young men associated with a gang called the 23rd Street
Diablos (Diablos). Jerome Reyes told the group that he had been chased by members of
the Bad Side Posse (BSP). The Diablos and the BSP are rival gangs. After hearing
about Reyes' encounter with the BSP, nine members of the Diablos went to Ballard High
School to show that the Diablos were not afraid of the BSP. The Diablos went in two
cars, Sarausad's car was in the lead.
When the Diablos arrived at the school, words were exchanged between a group
standing outside, identified as BSP, and the two cars filled with Diablos. Gang signs
were flashed. The Diablos eventually got out of the cars, and a minor physical encounter
ensued. When someone indicated that the police were nearby, the Diablos left. Eight
witnesses testified that during this encounter at the school, they did not see a gun; four
witnesses testified that they saw a gun in the possession of one of the Diablos.
The Diablos went to a member's house where they listened to music, ate and initiated a
new member into the gang. Ronquillo obtained a gun from a fellow Diablo, and put the
gun in his pants. The Diablos agreed to return to the school to show that they were not
afraid of the BSP. The Diablos again went in two cars, with Sarausad's car in the lead.
Ronquillo was in the front passenger seat, Sarausad drove.
Ryan Lam, Tam Nguyen and Melissa Fernandes were standing outside the school when
they spotted the two cars parked nearby. The shooting occurred as one of the cars
drove by the students. Lam noted that the shooter had a blue bandanna over his face.
Ronquillo fired at least six shots. Fernandes died the next day from a penetrating
gunshot wound on the left side of her head. Another student, Brent Mason, was
apparently hit by a bullet fragment.
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Ronquillo later transferred the gun to the other car. Knowing that his car could be
identified, Sarausad drove the Diablos to Northgate Mall and left the group. At the mall,
the Diablos walked around and played video games. The next day, after a discussion
with Ronquillo, a fellow Diablo threw the chopped-up pieces of the gun into the lake. It
was never recovered.
Both Ronquillo and Sarausad were found guilty of murder and assault and this appeal
followed.
Trial courts have broad discretion in determining whether an expert witness is qualified,
and will be reversed only for manifest abuse. At trial, the witness testified that he had
been a detective in the Seattle Police Gang Unit for four years, specializing in Asian
gangs, and that he had attended conferences on various aspects of gangs. He had
personal contact with gangs on a regular basis, and had previously testified as an expert
on gang related matters in Juvenile Court.
Practical experience is sufficient to qualify a witness as an expert; the witness need not
possess the academic credentials of an expert. Ronquillo erroneously interprets State v.
Wilber as requiring an expert to have specialized training or certification. Given the
detective's experience and training, the trial court's determination that he qualified as an
expert was not an abuse of discretion. This is true even though there is no certification
process for gang expertise.
Next, Ronquillo argues that the prejudice to him outweighed the probative value of the
gang evidence. According to the State, the evidence was critical to its case. The fact that
this was a fight between two rival gangs was inextricably intertwined with the crimes.
Without the gang evidence, the crimes would appear motiveless and even more
senseless than they in fact were. The trial court limited admission of the evidence of
gang activity; it was not admitted as to specific instances of misconduct or violent acts by
any individuals alleged to be gang members.
Relevant evidence may be excluded “if its probative value is substantially outweighed by
the danger of unfair prejudice”. In a doubtful case, the scale should be tipped in favor of
the defendant and exclusion. The trial court has broad discretion in balancing probative
value against possible prejudicial impact.
The challenged evidence was highly probative of the State's theory of the case-that the
shooting was the result of a gang rivalry. We reject Ronquillo's argument that the expert
testimony was merely cumulative. We hold that the trial court did not abuse its discretion
by admitting the gang expert's testimony, given the facts of this case.
Finally, we reject Ronquillo's argument that the gang evidence allowed the jury to infer
guilt by his association with a gang, and was therefore overly prejudicial. Although
Ronquillo does not frame the argument in terms of a violation of his First Amendment
right to association, this issue was raised and rejected in State v. Campbell.
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United States v. Hankey, 203 F.3d 1160 (9th Cir. 2000)
Lavern Hankey appeals his conviction and sentence for distributing and conspiring to
possess with intent to distribute phencylidine (“PCP”). At trial, after Hankey's codefendant
testified that Hankey was not involved in the transactions, the district court
admitted rebuttal testimony from a police gang expert that gang members who testify
against one of their own are customarily beaten or killed by other members of their gang.
Upon conviction, the district judge sentenced Hankey to 188 months. On appeal, the
defendant challenges several rulings.
Did the district court abuse its discretion under either Evidence Rule 702 or 703 by
admitting, for the limited purpose of impeaching for bias the exculpatory testimony of a
co-defendant, the opinions of a police gang expert regarding the “code of silence” and
repercussions for testifying against an affiliated gang member
We conclude that the district court properly discharged its “gatekeeping” function as set
forth in the Supreme Court cases of Kumho Tire and Daubert in admitting the gang
expert's testimony. Further, with respect to Rule 403 the court did not abuse its
discretion in ruling that the probative value of the testimony was not substantially
outweighed by unfair prejudicial impact, particularly where the court gave a limiting
instruction to the jury.
In 1996, the Drug Enforcement Administration (DEA) began an investigation of
suspected PCP distributor James Anthony Welch. On August 14, 1996, a confidential
informant arranged with Welch to purchase a quart of PCP for $1,500. Under DEA
surveillance, the informant met Welch and drove with him to the 400 block of Spruce
Street in Compton, California, where they met with an individual who identified himself
as “Poo.” Because neither Poo nor the informant had a container in which the informant
could transport the PCP, the informant and Welch went to a liquor store to purchase a
juice bottle. They then returned to the 400 block of Spruce Street, where Poo and Welch
poured PCP into the juice bottle and gave it to the informant.
Law enforcement later identified “Poo” as Lavern Hankey, who lived in his mother's
home on the 400 block of Spruce Street-the site of the PCP transactions in question.
On October 28, 1996, the DEA initiated another PCP transaction with Welch, using a
second confidential informant. The informant met Welch at his home, where the
informant was introduced to Nathaniel Mixon. A person whom the informant identified as
Hankey then arrived in a green Ford Explorer, had a conversation with Welch, and drove
away. Welch drove away shortly thereafter, followed by the informant and Mixon, who
drove together. Welch led the informant and Mixon to the 400 block at Spruce Street,
where Hankey was standing outside his parents' residence. After the informant gave
Welch $1,400, Welch and Mixon walked over to Hankey, and returned to give the
informant 32 ounces of PCP.
On October 30, 1996, the second informant contacted Welch to inquire about purchasing
a gallon of PCP. Welch stated that in order to quote a price, he would have to “ask him.”
In a second phone conversation between the informant and Welch on the same day, a
person in the background was heard to say, “give you a hell of a deal.” When the
informant asked for specifics, Welch asked the person, “He says like what, Poo He say
like what” Welch then quoted the informant a price of $4,500. When the informant
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stated that he did not believe he could come up with the money before Friday, Welch
responded by saying that the PCP would be divided up into quarts and sold by then.
Welch urged the informant to “hurry up and get the cash.” This deal was never
consummated, because the DEA was unwilling to provide the informant with the
necessary cash.
Welch was arrested in January 1997. Defendant Hankey was arrested in May 1997. The
government charged Hankey and Welch with distribution of PCP and conspiracy to
possess with intent to distribute PCP.
Hankey's defense was that he was not the “Poo” who engaged in the transactions. He
called LaRoy Rogers to the stand to testify that there was a second “Poo” in Compton-a
rap artist who was associated with Welch. Welch, while testifying on his own behalf,
corroborated Rogers' statement, claiming that the “Poo” who supplied the PCP was a
rapper named Marcus Prea. Welch explained the proximity of the drug deals to Hankey's
house by the fact that the house next door was vacant and being used as a local drug
hangout.
In rebuttal, the government sought to discredit the exculpatory testimony of Rogers and
Welch by offering the expert testimony of Mark Anderson, Compton Police Department
Officer and member of an FBI anti-gang task force. Anderson testified at a motion in
limine hearing, outside the presence of the jury, that Rogers, Welch and Hankey were
members of affiliated street gangs, and that these gangs enforce a code of silence
among their members that any affiliated gang member would be subject to violent
retribution if one gang member testified against another.
The court refused to permit Anderson to testify at trial regarding Rogers' gang
membership for lack of foundation. However, the court allowed him to testify before the
jury regarding the gang affiliation of Welch and Hankey. Further, the court permitted
Anderson to express his opinion that if a member of one of the affiliated gangs in the
area testified against another member, the witness would be beaten or killed. At the trial,
the court gave a limiting instruction regarding this testimony, telling the jury that it could
consider Anderson's opinions as they related to Welch's testimony about Hankey's
misidentification, and that it “ought not be a factor in your determination as to whether
the government has proved the charges in this case....”
In full, the district court stated to the jury: “This witness was allowed to give an opinion
because he claims to be an expert in gangs in the Compton area, so he was allowed to
give his opinion. But in assessing his opinion you should consider it like any other
witness-of the other witnesses in this case, you can accept it, reject it for whatever
pertinent reasons you deem appropriate.”
A. Testimony of Police Gang Expert
Hankey first argues that the district court abused its discretion in admitting the opinion
testimony of Officer Anderson regarding the gang affiliations of the co-defendants and
the consequences Welch would suffer if he were to testify against Hankey. Specifically,
he contends that the district court failed to properly discharge its gatekeeping function for
the admission of testimony offered under Rule 702 and further argues that Officer
Anderson's testimony ran afoul of Rule 403.
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In Daubert, the Supreme Court, addressing admissibility of “scientific expert evidence,”
held that Rule 702 imposes a “gatekeeping” obligation on the trial judge to “ensure that
any and all scientific testimony is not only relevant, but reliable.” While holding that the
trial court has substantial discretion in discharging its gatekeeping obligation, it
suggested a number of factors that the court might consider: 1) whether a theory or
technique can be tested; 2) whether it has been subjected to peer review and
publication; 3) the known or potential error rate of the theory or technique; and 4)
whether the theory or technique enjoys general acceptance within the relevant scientific
community.
In Kumho Tire, the Court clarified that the gatekeeping function is not limited to
“scientific” expert testimony, but applies to all expert testimony, ruling that the district
court did not abuse its discretion in excluding the testimony of a tire failure analyst on the
grounds that the expert's methodology was unreliable. The Court stated that “it would
prove difficult, if not impossible, for judges to administer evidentiary rules under which a
gatekeeping obligation depended upon a distinction between ‘scientific’ knowledge and
‘technical’ or ‘other specialized’ knowledge.” “There is no clear line that divides the one
from the others,” the Kumho Court said, observing:
“Disciplines such as engineering rest upon scientific knowledge. Pure scientific theory
itself may depend for its development upon observation and properly engineered
machinery. And conceptual efforts to distinguish the two are unlikely to produce clear
legal lines capable of application in particular cases.”
Hankey invokes Kumho Tire to argue that the district court failed properly to assess the
reliability of Officer Anderson's “non-scientific” testimony. He mistakenly implies that the
court should have assessed this testimony in the same way that the district court
reviewed the methodology used by the tire defect expert in Kumho Tire. However, far
from requiring trial judges to mechanically apply the Daubert factors-or something like
them-to both scientific and non-scientific testimony, Kumho Tire heavily emphasizes that
judges are entitled to broad discretion when discharging their gatekeeping function.
Indeed, not only must the trial court be given broad discretion to decide whether to admit
expert testimony, it “must have the same kind of latitude in deciding how to test an
expert's reliability.”
The Daubert factors were not intended to be exhaustive nor to apply in every case.
However, a trial court may consider the specific factors identified in Daubert where they
are reasonable measures of the reliability of proffered expert testimony. “Whether
Daubert's suggested indicia of reliability apply to any given testimony depends on the
nature of the issue at hand, the witness's particular expertise, and the subject of the
testimony. It is a fact-specific inquiry.”
In considering the admissibility of testimony based on some “other specialized
knowledge,” Rule 702 generally is construed liberally. Thus, admissibility of expert
opinion testimony generally turns on the following preliminary question of law
determinations by the trial judge:
. Whether the opinion is based on scientific, technical, or other specialized knowledge;
. Whether the expert's opinion would assist the trier of fact in understanding the evidence
or determining a fact in issue;
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. Whether the expert has appropriate qualifications-i.e., some special knowledge, skill,
experience, training or education on that subject matter.
. Whether the testimony is relevant and reliable.
. Whether the methodology or technique the expert uses “fits” the conclusions (the
expert's credibility is for the jury).
. Whether its probative value is substantially outweighed by the risk of unfair prejudice,
confusion of issues, or undue consumption of time.
Here, the district court conducted extensive voir dire to assess the basis for and the
relevance and reliability of Officer Anderson's testimony. Anderson stated that he had
been with the Compton Police Department for 21 years; he had been working
undercover with gang members in the thousands since 1989; he had received formal
training in gang structure and organization; and he taught classes about gangs. He
stated that he had extensive personal knowledge regarding the two affiliated gangs of
which Hankey, Welch and Rogers were members. Further, he testified he personally
knew Hankey and Welch for 10 or 11 years each and that in the early 1990's Hankey
and Welch told him they were members of these affiliated gangs during the late 1980's
and early 1990's. He testified he believed that, because they continued to live in the
neighborhood and associate with gang members, they were still members themselves
because those who become unaffiliated leave town. Further, he based his opinion about
Hankey's current gang membership on the criminal activity and observations he made in
the field prior to the arrest for the current offenses. Upon further questioning by the court,
Officer Anderson stated that he had personally seen Hankey and Welch together in
1996, but that he had not seen Rogers in several years. On this basis, the court refused
to allow Officer Anderson to testify regarding Rogers' gang membership, but allowed
testimony regarding the membership of Welch and Hankey, as well as the “code of
silence” and retaliation that prevented members of affiliated gangs from testifying against
one another. Anderson based his testimony as to the “code of silence” and retaliation
upon his current and past communications with gang members and gang officers.
Given the type of expert testimony proffered by the government, it is difficult to imagine
that the court could have been more diligent in assessing relevance and reliability. The
Daubert factors (peer review, publication, potential error rate, etc.) simply are not
applicable to this kind of testimony, whose reliability depends heavily on the knowledge
and experience of the expert, rather than the methodology or theory behind it.
Here, the witness had devoted years working with gangs, knew their “colors,” signs, and
activities. He heard the admissions of the specific gang members involved. He had
communicated and worked undercover with thousands of other gang members. This
type of street intelligence might be misunderstood as either remote (some dating back to
the late 1980's) or hearsay (based upon current communications about “retaliation” and
“code of silence.”), but Rule 702 works well for this type of data gathered from years of
experience and special knowledge.
Certainly the officer relied on “street intelligence” for his opinions about gang
membership and tenets. How else can one obtain this encyclopedic knowledge of
identifiable gangs Gangs such as involved here do not have by-laws, organizational
minutes, or any other normal means of identification-although as Anderson testified,
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some wear colors, give signs, bear tattoos, etc. Anderson was repeatedly asked the
basis for his opinions and fully articulated the basis, demonstrating that the information
upon which he relied is of the type normally obtained in his day-to-day police activity.
The information relied upon by Anderson was not remote-although some dated back 10
or 11 years. The admissions of the defendants as being gang members were within
three or four years of the arrest and their continued gang associations were current.
“Remoteness,” which is often an important variable in the relevance equation, is a term
applied to material which is removed in time, distance, or circumstances from the
proposition to which it is intended to be applied. As this time span narrows, however, the
data becomes increasingly more helpful. In general, the issues of relevance and
remoteness are left up to the commonsense of the trial judge.
After the motion in limine, the trial judge made findings that the foundation for
Anderson's opinions was relevant and reliable. The background information for the “code
of silence” and “retaliation” testimony was current and not subject to attack on
remoteness grounds. Nor did the court abuse its discretion in making its ultimate
decision to admit the evidence. The testimony was certainly helpful to the jury.
Hankey claims on appeal that the trial court abused its discretion when it permitted gang
related evidence “over the Rule 403 objection,” claiming the evidence was highly
prejudicial.
Rule 403 articulates the judicial power to exclude relevant evidence because of
prejudicial dangers or considerations. Relevant evidence may be excluded under Rule
403 only if its probative value is substantially outweighed by one or more of the
articulated dangers or considerations. This requires that the probative value of the
evidence be compared to the articulated reasons for exclusion and permits exclusion
only if one or more of those reasons “substantially outweigh” the probative value. Rule
403 favors admissibility, while concomitantly providing the means of keeping distracting
evidence out of the trial.
As aptly stated by the court in United States v. Mills, (11 th Cir. 1983), in admitting
evidence of Aryan Brotherhood gang activities:
“Relevant evidence is inherently prejudicial; but it is only unfair prejudice, substantially
outweighing probative value, which permits exclusion of relevant matter under Rule 403.
Unless trials are to be conducted as scenarios, or unreal facts tailored and sanitized for
the occasion, the application of Rule 403 must be cautious and sparing. Its major
function is limited to excluding matter of scant or cumulative probative force, dragged in
by the heels for the sake of its prejudicial effect. As the Advisory Committee Notes to
Rule 403 explain, unfair prejudice means ‘undue tendency to suggest decision on an
improper basis, commonly, though not necessarily, an emotional one.’”
As mentioned above, the expert testimony was probative in that it revealed a potential
motive for Welch to lie on Hankey's behalf. Hankey nonetheless argues that any
probative value was substantially outweighed by the risk that the jury would convict him
in an emotional reaction to the revelation that he was a member of a street gang.
The Supreme Court in United States v. Abel addressed the unfair prejudice issue. In
Abel, the government sought to prove the bias of a defense witness through cross-
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examination and extrinsic evidence showing that the defendant and the defense witness
were members of the same prison gang, and that the tenets of the gang required
members to “lie, cheat, steal, [and] kill” to protect each other. The Court held that a
witness' and a party's common membership in an organization, even without proof that
the witness or party has personally adopted its tenets, is certainly probative of bias. In
Abel, the Court also rejected the argument that the district court should cut off the
description of the type of gang because evidence of the gang's tenets was unfairly
prejudicial. The Court observed:
“This argument ignores the fact that the type of organization in which a witness and a
party share membership may be relevant to show bias. The attributes of the Aryan
Brotherhood-a secret prison sect sworn to perjury and self-protection bore directly not
only on the fact of bias but also on the source and strength of Mills' bias.”
In sum, the district court did not err in admitting the “gang” related evidence.
State of Washington v. Ra, 144 Wash. App. 688 (2008)
Ryna Ra appeals his convictions for attempted murder in the first degree, drive-by
shooting, and second degree unlawful possession of a firearm, arguing that the trial
court improperly allowed the State to introduce gang evidence in violation of an order
prohibiting such evidence and that the prosecutor then committed misconduct in arguing
“gang theory” in closing argument. Ra also challenges the sufficiency of the evidence to
prove premeditation, and he argues that the trial court (1) appeared to be partial to the
State and (2) erred in rejecting his proposed self-defense instruction. We agree with Ra
that the trial court mishandled the gang evidence; accordingly, we reverse and remand.
One evening, Ryna Ra and three friends (Vuthy Chau, Samnang Bun, and Dy Son) were
parked in a silver sport utility vehicle (SUV) on the Ruston Way waterfront. Ra was in the
front passenger seat, and Bun was in the rear passenger seat. Two cars pulled into the
same parking lot together containing two couples who were friends: James Huff and
Vianna Cornatzer, and Nick Serdar and Ashley Suhoversnik. One or two empty parking
stalls separated the SUV from the nearest of the two cars, which was owned by
Suhoversnik. Neither Ra nor any of his companions had ever met any member of the
other group.
When the two girls got out of their cars, some of the young men in the SUV began
catcalling about the young women. The SUV occupants also directed some comments at
Huff and Serdar, including: go ahead and “do something,” “I'm going to get your
girlfriend,” “I'm going to kick your f–––ing ass.” When the comments continued, Huff
angrily approached the SUV. Ra fired three or four shots as Huff approached. Huff got
close enough to kick at the SUV when the third or fourth shot hit him in the chest. The
SUV left but was overtaken by police almost immediately. Later, the police found the
weapon used in the shooting in some low bushes in an empty lot along Ruston Way.
A. Gang Evidence
Before trial, the State agreed that it would not offer gang evidence. Yet, during the
State's direct examination of Detective John Bair, the prosecutor asked, “Are you
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presently in a specific unit of the Tacoma Police Department” and “What unit are you
in” Detective Bair responded that he was in the “gang unit,” then explained how cases
are assigned in that unit and that the case at issue had been so assigned.
The prosecution also questioned Bun about his reasons for carrying a gun that evening.
Those questions included, “Mr. Bun, was it because that’s what you do, carry guns”
and ”You and your friends don’t have to take anything from anyone. You’ve got guns.
You’re in charge, correct” and “Why is it difficult to answer these questions Is there a
loyalty involved”
[After the defendant’s testimony], the State moved to admit gang evidence because the
defendant “open[ed] the door” by testifying that (1) he did not know he could not have a
gun, (2) he's “not like that” to make cat-calls and they offended him, (3) Chau wanted
him to carry the gun, and (4) he does not believe in shootings.
The trial court then denied the State's motion to allow the gang evidence, although it
admitted Ra's four prior felony convictions for use on cross-examination.
Ra argues that the State presented “gang evidence” in violation of the trial court's prior
ruling excluding such evidence. The two specific instances of “gang evidence” are (1)
Detective Bair's testimony that he was a member of Tacoma Police Department's gang
unit and was assigned to this case, and (2) the prosecutor's “testimonial questioning” of
Bun suggesting that carrying guns is “what [they] do” and that there was “a loyalty
involved” in his delay in answering questions. The State argues that Ra failed to object
to either of these incidents as gang-related and that even if the issue was preserved, the
evidence was not, in fact, gang evidence.
Here, the prosecutor deliberately questioned Detective Bair about his gang unit and why
the case was assigned to him. He also deliberately questioned Bun about his and the
group's gang-like behavior, whether carrying guns is “what they do,” whether “when
[they] carry guns ... nobody messes with [them],” and whether there was “a loyalty
involved.” Finally, in closing, the prosecutor argued that Ra belonged to a culture of
violence and that he elevated his status in his group, becoming the “baddest of the bad,”
by carrying a firearm and shooting someone. We are unwilling to assume that the jury
missed the State's message. And because the State deliberately elicited the gang
evidence and then argued it, Ra did not waive the issue by failing to object.
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show action in conforming with it. Gang evidence falls within the
scope of Evidence Rule 404(b). It may be admissible for other purposes, such as proof
of motive, intent, or res gestae, but before a trial court may admit such evidence, it must
(1) find by a preponderance of the evidence that the misconduct occurred, (2) identify
the purpose for which the evidence is sought to be introduced, (3) determine whether the
evidence is relevant to prove an element of the crime charged, and (4) weigh the
probative value against the prejudicial effect. Rule 404(b) is not designed ‘to deprive the
State of relevant evidence necessary to establish an essential element of its case,’ but
rather to prevent the State from suggesting that a defendant is guilty because he or she
is a criminal-type person who would be likely to commit the crime charged.”
But because of the indirect manner in which the State presented the evidence, the trial
court never had the opportunity to conduct a 404(b) analysis. And the State never
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presented evidence that Ra was a gang member and, if so, what the gang mores were.
Without such evidence, we have no basis to conclude that the State's gang evidence
was admissible under Rule 404(b).
Finally, the evidence portrayed Ra and his companions as inherently “bad guys,” willing
to commit the most serious acts of violence to elevate their status in the group. This
invited the jury to make the “forbidden inference” underlying Rule 404(b) that Ra's prior
bad acts showed his propensity to commit the crimes charged. The State's suggestions
that this was a gang crime (assigned to the police gang unit) and that Ra intentionally
shot Huff to elevate his status in his group fed the prosecutor's “culture” theme in closing
argument. Because the wrongly admitted evidence unfairly prejudiced Ra, we have no
alternative but to reverse his convictions for attempted first degree murder and drive-by
shooting.
State of Washington v. Rodriguez, 163 Wash. App. 215 (2011)
On Christmas Eve 2005, Michael Rodriguez and Francisco Acevedo stopped at the
home of Candy Leifi in Sunnyside, Washington, and asked if she had, or knew where
they could buy, methamphetamine. At the time, Ms. Leifi had met Mr. Rodriguez only a
few times and knew him only by his street name, Little Evil. She knew that he was a
member of a local gang associated with the Norteño gang. Mr. Rodriguez introduced Mr.
Acevedo, who was 18 or 19 years old at the time and was also a Norteño, as “Downer.”
Ms. Leifi was unable to direct them to any methamphetamine, at which point they asked
her for money for gas needed to drive back to Yakima. Ms. Leifi later testified that she
had a $50 bill but did not trust them to return the change, so she told them she would
ride with them to the store and buy them some gas.
While on the errand, Mr. Rodriguez drove and Mr. Acevedo sat in the front passenger
seat, with Ms. Leifi in the back seat, behind Mr. Acevedo. After buying gas, Mr.
Rodriguez drove around the Sunnyside area; he and Mr. Acevedo told Ms. Leifi that they
were looking for “scraps,” which she understood to be a reference to associates of the
rival Sureño gang. She was unable to tell the two where any “scraps” might live.
After being out for almost an hour, Mr. Rodriguez saw Rosendo Hernandez, who was
walking on the street. He stopped the car and he and Mr. Acevedo called to Mr.
Hernandez to come to Mr. Acevedo's window, asking him “what side” he was from—
meaning, to Ms. Leifi, his gang affiliation. She did not hear Mr. Hernandez's response.
As Mr. Hernandez neared the car, Mr. Acevedo pulled a sawed-off shotgun, which Ms.
Leifi had not seen earlier, and set it on the window, pointed at Mr. Hernandez. Mr.
Acevedo then pulled the trigger and Mr. Hernandez fell back, dying almost instantly. Mr.
Rodriguez drove off at a normal rate of speed.
Mr. Rodriguez drove past Ms. Leifi's home without stopping and she initially feared that
he and Mr. Acevedo would kill her. But Mr. Acevedo suggested they take her back and
drop her off, and they did—but not before Mr. Rodriguez pulled out a handgun, pointed it
at her, and told her that he knew where her family lived and if she said anything he
would come after them and after her. She assured him that she would not say anything.
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After getting her assurance that “we're friends, right” Mr. Rodriguez allowed Ms. Leifi to
leave the car. Ms. Leifi arrived home frightened and upset, and friends and family helped
her hide out for a few days.
Police officers located and arrested Mr. Acevedo the following day. Mr. Rodriguez
initially escaped on foot but was eventually tracked down and brought into custody. Mr.
Rodriguez was charged with accomplice to first degree murder while armed with a
firearm, first degree unlawful possession of a firearm, and tampering with a witness.
The trial court conducted extensive proceedings prior to trial to address several trial
issues, including the extent to which the State would be entitled to offer evidence of
gang culture and structure; whether it could identify Mr. Rodriguez by his street name,
Little Evil; whether Ms. Leifi would be allowed to testify to her opinion that Mr. Acevedo
sought, on the night of the shooting, to advance within the gang.
Following a two-week trial, Mr. Rodriguez was found guilty of all charges.
Mr. Rodriguez . . . assigns error to the trial court's denial, in part, of his motion to exclude
reference to his street name, Little Evil. The trial court heard argument on the motion
and on a motion for reconsideration, and ultimately ruled that law enforcement witnesses
and counsel should use the names Michael or Mr. Rodriguez, but that lay witnesses who
knew the defendant as Little Evil could refer to him in the way they normally would.
Having heard pretrial testimony from Mr. Acevedo, the trial court expressed its belief that
references to Mr. Rodriguez as Little Evil by some witnesses who knew him by that
name was “unavoidable.”
Mr. Rodriguez argues on appeal that his street name was not relevant evidence.
Alternatively, he argues that even if relevant, the probative value of the evidence was
substantially outweighed by the danger of unfair prejudice to the defendant.
While Mr. Rodriguez argues that Mr. Acevedo and Ms. Leifi had no need to refer to Mr.
Rodriguez by his street name because they knew his given name, their knowledge of his
given name was derivative—a result of the legal proceedings. Mr. Acevedo testified that
he knew Mr. Rodriguez not only as Little Evil, but also as Michael, but he claimed no
knowledge of Mr. Rodriguez's full given name. Ms. Leifi testified that “I didn't know his
name. Well, I just knew him by Little Evil.” She added that Little Evil was the only way
she referred to him.
Mr. Rodriguez assigns error to the trial court's ruling that Detective Jose Jaime Ortiz
could testify as [an expert] to general matters concerning gangs and gang behavior.
Detective Ortiz testified to the colors worn by Norteños (red) and Sureños (dark blue)
and that “OG” or “original gangster,” a term used by Ms. Leifi, means individuals who
became associated with a gang at a young age and have risen through the ranks. He
testified that as of Christmas Eve 2005 there was a loose ranking structure in the gangs
in the Sunnyside area and that senior members of the gangs, who have already
committed crimes, tell younger gang members what to do; also that a gang member can
quickly enhance his status within a gang by committing a serious crime, like a drive-by
shooting, homicide, burglary, or robbery. Finally, he testified that as of Christmas Eve
2005, Mr. Rodriguez was known to the Sunnyside Police Department to be a member of
the Norteño gang, whereas Mr. Acevedo was unknown to the department.
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The decision whether to admit expert testimony is within the discretion of the trial court,
as is the determination of whether a witness is qualified to testify as an expert. Practical
experience is sufficient to qualify a witness as an expert and the practical knowledge
need not be acquired through personal experience. We review a trial court's admission
of expert testimony for an abuse of discretion. If the reasons for admitting or excluding
the opinion evidence are “fairly debatable,” the trial court's exercise of discretion will not
be reversed on appeal.
In State v. Campbell, (WA, 1995), the court found that the testimony of three police
officers as to such matters as the meaning of gang terminology, the types of criminal
activities in which gangs were involved, gang codes of conduct and discipline,
organizational structure, and interactions with other gangs was relevant, assisted the
trier of fact, and was properly admitted. This sort of information, as with the information
about gangs in the Sunnyside area testified to by Detective Ortiz in this case, is beyond
the understanding of persons of average knowledge, education, and experience and can
therefore be helpful to a jury.
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