Multnomah County Courthouse December 13, 2013
Scott Walker v. Tanya Brewster
A civil case involving the negligent storage of a firearm and negligent supervision of a minor child.
Coordinated by James S. Coon, Swanson Thomas Coon & Newton, Portland, Oregon in cooperation with CLASSROOM LAW PROJECT
CLASSROOM LAW PROJECT 2013 Oregon High School Mini Mock Trial TABLE OF CONTENTS PAGE I.
2013 Mini Mock Trial
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II.
Program Objectives
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III.
Code of Ethical Conduct
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IV.
The Case Statement of Stipulated Facts Claims and Defenses Relief Requested Additional Stipulations Witnesses for Plaintiff Witnesses for Defendant Applicable Law (Related Statutes) Witness Statement – Scott Walker (Plaintiff) Witness Statement – T.J. Walker (Testifying for Plaintiff) Witness Statement – Dr. Sandy Turner (Testifying for Plaintiff) Witness Statement – Tanya Brewster (Defendant) Witness Statement – Carl Newhouse (Testifying for Defendant) Witness Statement – Terry Bottner (Testifying for Defendant) Exhibit A Exhibit B Exhibit C Exhibit D
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V.
The Form and Substance of a Trial A. The Elements of a Civil Case B. Proof by Preponderance of Evidence C. Role Descriptions 1. Attorneys a. Opening Statement b. Direct Examination c. Cross Examination, Redirect, Re-Cross, and Closing 2. Witness 3. Court Clerk, Bailiff a. Duties of the Clerk – Provided by the Plaintiff b. Duties of the Bailiff – Provided by the Defense
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PAGE VI.
Rules of The Mini Mock Trial A. Administration Rule 1. – Rules Rule 2 – The Problem Rule 3 – Witness Bound by Statements Rule 4 – Unfair Extrapolation Rule 5 – Gender of Witness B. The Trial Rule 10 – Team Duties Rule 11 – Swearing In the Witnesses Rule 12 – Trial Sequence and Time Limits Rule 13 – Timekeeping Rule 14 – Time Extensions and Scoring Rule 15 – Supplemental Material, Illustrative Aids, Costuming Rule 16 – Trial Communication Rule 17 – Viewing a Trial (Not applicable to the MiniMock) Rule 18 – Videotaping, Photography, Media C. Judging and Team Advancement (Not applicable to the MiniMock) Rule 19 – Decisions Rule 20 – Composition of Panel Rule 21 – Ballots Rule 22 – Team Advancement Rule 23 – Power Matching/Seeding Rule 24 – Merit Decisions Rule 25 – Effect of Bye/Default or Forfeiture D. Dispute Settlement (Not applicable to MiniMock) Rule 26 – Reporting Rules Violation – Inside the Bar Rule 27 – Dispute Resolution Procedure Rule 28 – Effect of Violation on Score Rule 29 – Reporting Rules Violation – Outside the Bar
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VII.
Rules of Procedure A. Before the Trial Rule 30 – Team Roster Rule 31 – Stipulations Rule 32 – The Record Rule 33 – Courtroom Seating B. Beginning the Trial Rule 34 – Jury Trial Rule 35 – Motions Prohibited Rule 36 – Standing During Trial Rule 37 – Objection During Opening Statement/Closing Argument
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VIII.
C. Presenting Evidence Rule 38 – Objections Rule 39 – Procedure for Introduction of Exhibits Rule 40 – Use of Notes Rule 41 – Redirect/Re-Cross D. Closing Arguments Rule 42 – Scope of Closing Arguments E. Critique Rule 43 – The Critique
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Federal Rules of Evidence – Mock Trial Version Article I. General Provisions Rule 101 – Scope Rule 102 – Purpose and Construction Article IV. Relevancy and Its Limits Rule 401 – Definition of “Relevant Evidence” Rule 402 – Relevant Evidence Generally Admissible: Irrelevant Evidence Inadmissible Rule 403 – Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time Rule 404 – Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes Rule 405 – Methods of Proving Character Rule 407 – Subsequent Remedial Measures Rule 408 – Compromise and Offers to Compromise Rule 409 – Payment of Medical or Similar Expenses Rule 411 – Liability Insurance (civil case only) Article VI. Witnesses Rule 601 – General Rule of Competency Rule 602 – Lack of Personal Knowledge Rule 607 – Who May Impeach Rule 608 – Evidence of Character and Conduct of Witness Rule 609 – Impeachment by Evidence of Conviction of Crime Rule 610 – Religious Beliefs and Opinions (NA) Rule 611 – Mode and Order of Interrogation and Presentation Article VII. Opinion and Expert Testimony Rule 701 – Opinion Testimony by Law Witness Rule 702 – Testimony by Experts Rule 703 – Bases of Opinion Testimony by Experts Rule 704 – Opinion and Ultimate Issue
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61 61 61 62 62 62 62 62 62 62 63 63 63 64 64 64 65 65 66 66 66
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IX.
Article VIII. Hearsay Rule 801 – Definitions Rule 802 – Hearsay Rule Rule 803 – Hearsay Exceptions, Availability of Declarant Immaterial Rule 805 – Hearsay within Hearsay
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Notes to Judges A. Note to Judges B. Introductory Matters C. Tips for Critiquing
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Appendices
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Often Uses Objections in Suggestion Form
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Team Roster – Coordinator’s Copy
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Team Roster – Plaintiff Side
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Team Roster – Defense Side
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Time Sheet
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Diagram of a Typical U.S. Courtroom
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I.
2013 Mini Mock Trial
This packet contains the official materials, which student teams will need to prepare for the Fall 2013 Mini Mock Trial. Mini Mock Trial is not a competition! It is a chance for students to practice their skills and to try out mock trial. Judges do not compile scores, and no teams are ranked in any way. Judges offer their subjective comments to help participants understand mock trial and improve their skills. The mock trial is designed to clarify the workings of our legal institutions for young people. In the mock trial, students portray each of the principals in the cast of courtroom characters. As the student teams study a hypothetical case, and receive guidance from volunteer attorneys in courtroom procedure and trial preparation, they acquire a working knowledge of our judicial system. Students participate as counsel, witnesses, court clerk, and bailiffs. Since teams are unaware of which side of the case they will present until shortly before the trial begins, they must prepare for both the prosecution and defense. II.
Program Objectives
For the students, the mini mock trial will: 1.
2.
3.
Increase proficiency in basic skills such as reading and speaking, critical thinking skills such as analyzing and reasoning, and interpersonal skills such as listening and cooperating. Provide the opportunity for interaction with positive adult role models in the legal community. Provide a hands-on experience outside the classroom from which students can learn about law, society, and themselves.
For the school, the mini mock trial will: 1. 2. 3.
Promote cooperation and healthy academic competition among students of various abilities and interests. Demonstrate the achievements of high school students to the community. Provide a challenging and rewarding experience for participating teachers.
III.
Code of Ethical Conduct
At the first meeting of the Mock Trial Team, this code should be red and discussed by students and their teacher. The Code of Ethical Conduct governs as participants, observers, guests and parents at all mock trial events.
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All participants in the Mini Mock Trial must adhere to the same high standards of scholarship that are expected of students in their academic performance. Plagiarism of any kind is unacceptable. Students’ written and oral work must be their own. Coaches, non-performing team members, observers, guests, and parents shall not talk to, signal, communicate with or coach any member of the currently performing side of their team during trial. This rule remains in force during any recess time, which is called by the judge. Currently performing team members may, among themselves, communicate during the trial; however, no disruptive communication is allowed. Non-team members, teachers and coaches must remain outside the bar in the spectator section of the courtroom, unless the presiding Judge allows seating in the jury box. Students promise to compete with the highest standards of deportment, showing respect for their fellow students, opponents, judges, evaluators, attorney coaches, teacher coaches, and mock trail personnel. All competitors will focus on accepting defeat and success with dignity and restraint. Trials will be conducted honestly, fairly and with the utmost civility. Students will avoid all tactics they know are wrong or in violation of the rules, including the use of unfair extrapolations. Students will not willfully violate the rules of the competition in spirit or in practice. Teacher coaches agree to focus attention on the educational value of the mock trial. They shall discourage willful violations of the rules. Teachers will instruct students as to proper procedure and decorum and will assist their students in understanding and abiding by the competition’s rules and this Code of Ethical Conduct. Attorney coaches agree to uphold the highest standards of the legal profession and will zealously encourage fair play. They will promote conduct and decorum in accordance with the competition’s rules and this Code of Ethical Conduct. Attorney coaches are reminded that they are in a position of authority and thus serve as positive role models for the students. All participants are bound by all sections of this Code of Ethical Conduct and agree to abide by the provisions. Teacher and attorney coaches should ensure that students understand and agree to comply with this Code. Violations of this Code may result in disqualification from competition.
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IV.
THE CASE STATEMENT OF STIPULATED FACTS
On December 4, 2011 at approximately 4:30 p.m., 5 year old Jesse Walker was severely wounded by a bullet accidentally fired from a 9-millimeter Baretta semi-automatic pistol. The shooting occurred in the home of Jesse’s parents, Scott and Claudia Walker. Scott and Claudia also have a two-year old daughter, Kym, and Scott has a thirteen-year old child, T.J. Walker, from a previous marriage. Only Jesse, Kym, and T.J. were in the house at the time of the shooting. T.J. was visiting Scott for the weekend and brought the pistol with her/him. The shooting was the result of a scuffle over the pistol between Jesse and T.J. While Jessie was trying to pull the pistol out of T.J.’s hand, the pistol fired, hitting Jesse. Tanya Brewster is T.J.’s mother. She and T.J.’s father, Scott Walker, were married for four years. They were divorced on May 17, 2002, and Tanya was given sole custody of T.J. In August of 2011, Carl Newhouse began living with Tanya and T.J. in the home owned by Tanya at 4952 Oaktree Lane. The pistol involved in the shooting is registered to Carl. Jesse was permanently paralyzed as a result of the shooting. He will require specialized medical care for the rest of his life. Scott filed this lawsuit on January 7, 2012. No criminal charges of any kind have been brought against any party in this matter. CLAIMS AND DEFENSES Scott Walker is suing Tanya Brewster for negligent storage of a firearm and for negligent supervision of her minor child, T.J. Negligent storage of a firearm has recently been recognized as a new civil cause of action by three New Columbia trial courts. Negligent supervision of a minor child is a well-established cause of action in New Columbia. Scott claims that T.J.’s acquisition and use of the pistol were the result of Tanya’s negligent actions. Scott has incurred, and will continue to incur, substantial medical expenses due to Jesse’s injuries. In addition, Scott claims that his enjoyment of the companionship and services of his son has been significantly limited by Jesse’s permanent paralysis. Tanya claims that it is not her fault that Jesse was injured. She believes that she acted as a responsible parent at all times. She claims that it was Scott’s negligent supervision of his children that allowed the accident to happen. Tanya argues that the facts of this case do not support a finding of negligent storage of a firearm on her part.
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RELIEF REQUESTED Scott is asking the Court to make a finding of negligent storage of a firearm and of negligent supervision of a minor child, against Tanya Brewster. Scott is requesting the following damages awards: $42,000 for actual medical expenses (including costs for emergency and intensive care services, surgical procedures, inpatient hospital services, prescription medications, specialized equipment, physician office visits, and other services); $975,000 for future medical expenses (representing $15,000 per year of estimated expenses for 65 years of remaining estimated life expectancy); and $500,000 for the loss of Jesse’s companionship and services. Tanya is asking the Court to find that there was no negligence on her part and to deny any damages sought by Scott. In the event that the Court finds any liability on Tanya’s part, Tanya is asking the Court to find that Scott is also liable for negligent acts on his part, and to reduce his damages in accordance with the extent of his liability. ADDITIONAL STIPULTIONS The parties have stipulated to the authenticity of the following items: 1.
Hospital bill from Shepardsville Hospital sent to Scott Walker, containing current medical expenses for Jesse Walker along with an estimate of future medical expenses.
2.
Official transcript of recorded 911 emergency telephone call placed by T.J. Walker on December 4, 2011.
3.
Gun safety information sheet entitled “Safe Storage of Handguns” used in required course taken by Carl Newhouse. The information sheet was written by Dr. Sandy Turner.
4.
Letter from Terry Bottner to Scott Walker, dated April 6, 2011, which was returned to Bottner with a handwritten reply by Walker on the bottom of the page.
5.
Beretta 9-millimeter semi-automatic pistol registered to Carl Newhouse. The parties reserve the right to dispute any other legal or factual conclusions based on these items, and to make objections to these items based on other evidentiary issues.
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WITNESSES FOR THE PLAINTIFF Scott Walker T.J. Walker Dr. Sandy Turner
-Plaintiff -Child of Plaintiff and Defendant -Professor of Emergency Medicine and Public Health WITNESSES FOR THE DEFENDANT
Tanya Brewster Carl Newhouse Terry Bottner
-Defendant -Friend of Defendant -Juvenile Diversion Counselor
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APPLICABLE LAW RELATED STATUTES NEW COLUMBIA CRIMINAL CODE § 105: CRIMINAL STORAGE OF A FIREARM (a) A person commits the offense of criminal storage of a firearm is he or she keeps, or allows to be kept for any length of time, any firearm within his or her dwelling, and a child of sixteen years of age or younger obtains access to the firearm and thereby causes death or great bodily injury to himself, herself, or any other person. (b) A person will not be found guilty of this section is he or she: (1) Stores the firearm using a trigger-lock or other locking device on the firearm, which prevents the firearm from functioning, or (2) Stores the firearm in a secure, locked container, or (3) Takes other means reasonably designed to insure that a child of sixteen years of age or younger will not come into possession of the firearm. (c) The fact that a person who allegedly violated this section attended a firearm safety training course prior to the purchase of the firearm that is obtained by a child of sixteen years of age or younger in violation of this section shall be considered a mitigating factor by a district attorney when he or she is deciding whether to prosecute an alleged violation. NEW COLUMBIA CASE LAW Mackey v. Norodin, 115 New. Col. App. 684 (1996) Plaintiff in an action for negligence has the burden to prove that the defendant breached a duty to exercise reasonable care under all the circumstances. The violation of a civil or criminal statute or other governmentally imposed requirement shows a failure to exercise reasonable care, and plaintiff may offer evidence of violation of a criminal or civil statute or governmental standard or regulation as evidence of a breach of the standard of care in an action for negligence. Johnson v. Moore, 67 New. Col. App. 462 (1967) Normally, parents are not liable for the torts of their minor children merely because of the parent-child relationship. However, in cases involving the use of a dangerous object by a child, the standard for imposing liability upon a parent for failing to prevent the child’s action is whether the parent knew, or should have known, of the child’s tendency or inclination towards dangerous activity involving the object, but failed to take reasonable precautions to prevent the danger.
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New Columbia v. Scowcroft, 110 New Col. App. 161 (1990) Defendant, James Scowcroft, was convicted of criminal storage of a firearm under New Columbia Criminal Code § 105, after his five-year-old daughter shot herself with a gun that Scowcroft knew was being kept in his house. The gun belonged to Scowcroft’s sister, Lisa, a New Columbia State Police Sergeant, who was visiting Scowcroft on the weekend of the shooting. Scowcroft had told his sister that he was concerned about her bringing a gun into the house. She assured Scowcroft that she was a responsible police officer and that his children would not be in danger. Despite the assurance, she left the loaded gun on top of the guestroom nightstand while she took a shower. Scowcroft’s daughter found the gun and accidentally shot herself. The Court of Appeals overturned Scowcroft’s conviction, holding that Scowcroft could not be held criminally liable under § 105. “He made an inquiry of an experienced police officer who was a trusted family member and he reasonably assumed, based on her simple assurance, that his child would not come into possession of the firearm. This situation satisfies the requirements of § 105 (b)(3) since, under the totality of the circumstances, Scowcroft took reasonable means to insure that his daughter would not come into possession of the firearm.” New Columbia v. Morgan, 112 New Col. App. 35 (1992) Defendant, Fred Morgan, was convicted of criminal storage of a firearm under New Columbia Criminal Code § 105. Morgan kept a loaded rifle in an unlocked, glassfront gun cabinet in his living room. Morgan lived alone, had no children, and received very few visitors. He hired a twelve year-old boy to clean up his basement. Unknown to Morgan, the boy took the rifle out of the gun cabinet, and brought it home with him. The boy later shot a playmate with the rifle, permanently blinding him. Morgan appealed his conviction on the ground that his actions satisfied the requirements of § 105 (b)(3) since he reasonably believed a child of sixteen years of age or younger would not come into possession of a firearm that was kept in a home where no children lived and few ever visited. The Court of Appeals upheld Morgan’s conviction stating: “The statute contains two specific exemptions: one, § 105 (b)(1), for the use of a ‘locking device’ which keeps the weapon from functioning; the other, § 105 (b)(2) for storing the gun in a ‘secure, locked container.’ Section 105 (b)(3) was clearly designed to cover alternative measures that provide the same level of security as a locking device or a secure, locked container. The actions of the defendant in this case do not even approach the level of care indicated by sections (b)(1) and (b)(2). Therefore, the action of the defendant cannot constitute ‘other means reasonably designed to insure that a child of sixteen years of age or younger will not come into possession of the firearm,’ as required by section (b)(3).”
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Larson v. Miller, 158 New Col. 488 (1991) Until now, this state has not recognized claims by a parent for loss of a child’s companionship and services. But under the circumstances present here, where the injury was so severe as to be permanently disabling, and the child was providing financial support to her parents and would have continued to do so throughout the parents’ lifetimes, we will recognize the claim and uphold the damage award. Moss v. Smart Pharmacy, Inc. 82 New Col. App 177 (1972) New Columbia is a ‘pure’ comparative negligence jurisdiction. Awards in a tort action are based on the degree to which each party is at fault. Thus, once a defendant is found to be at fault, and the plaintiff is also found to be at fault, plaintiff’s damage award is diminished to the extent of the plaintiff’s own fault. In this case, both the defendant and the plaintiff were found to be at fault. The defendant was 75% at fault and the plaintiff was 25% at fault. Therefore, the defendant must only pay the plaintiff 75% of the plaintiff’s total damages. That is, the plaintiff’s total damage award is reduced by 25%.
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WITNESS STATEMENT Scott Walker Plaintiff My name is Scott Walker. I am 32 years old and my address is 2633 Grant Avenue, Shepardsville, New Columbia. I am a construction foreman for Bronston Construction, Inc., and have worked there for the past seven years. I met my first wife, Tanya Brewster, in high school during our sophomore year. We dated seriously for over two years. When Tanya became pregnant during our senior year, we decided to get married right after graduation. If Tanya had not been pregnant, we probably would not have gotten married. I started working construction right after graduation and T.J. was born five months later, on November 3, 1998. For the first two years of our marriage, Tanya stayed at home and took care of T.J. Then, Tanya got a job as a receptionist at a temporary employment agency. It was about this time that our marriage started to go bad. After Tanya started working, she kept telling me I had to start helping with T.J. and with the housework. Tanya and I started fighting often about the house, money, and T.J. After fighting for about two years, Tanya and I decided to get a divorce. The only condition Tanya insisted on was that she get custody of T.J. That was fine with me. I did not feel ready to raise a kid so I agreed to let Tanya have custody. We agreed that I would have visitation rights every other weekend and 6 weeks during the summer. I was also required to pay child support. The judge approved our agreement and we were divorced on May 17, 2002. After the divorce, things really fell apart. I was fired from my job for being late too many times. My parents yelled at me constantly for “abandoning my child.” I knew that my pain problem was immaturity. I decided to join the Army. I think it was one of the best decisions I
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ever made. Because of my construction background, I worked with the Army Corps of Engineers. We were involved in building things like bridges, dams and roads. I never went overseas or saw any combat in the Army. When I left the Army I moved back to Shepardsville. I felt like I could start my life all over. I got a job at a construction company in only a few weeks. In five months I was promoted to foreman because I had more experience than the rest of the guys on the crew. Around that same time I met Claudia. She was a fabulous blues singer with a local band. I met her when her band was playing at a club called MI Blue. We started dating and fell in love. After dating for six months, we got married. It was the happiest day of my life. I finally felt that the pieces of my life fit together. About one year later, on July 3, 2006, Claudia gave birth to our son, Jesse. Then on May 28, 2009, we had a daughter, Kym. From the moment Jesse was born, I felt a strong responsibility to be a good father. I wanted to get closer to T.J. too, but I did not know how to change the patterns Tanya, T.J. and I had established. I had essentially given up control of T.J. to Tanya, since she was the person actually raising her/him. T.J. did not want to be around me. During the two years I was in the Army I only saw T.J. once. When I came back home, I worked so much overtime that I only saw T.J. about once a month. It’s like T.J. forgot that I was her/his father. The only thing T.J. seemed to like about me was the fact that I had been in the Army. I tried to tell T.J. that what I did in the Army was build things, but all s/he wanted to hear about was guns and fighting. When we talked about guns, it seemed more like T.J. was proud of me. I told T.J. again and again about my infantry training and the rifle range, as well as battle stories that the Vietnam Vets used to tell us. I even bought a few books about guys which we read
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together. I remember T.J. doing a book report about the history of army artillery that s/he got an A on. The funny thing is that I was never interested in guns, even when I was in the Army. Our gun hobby was just something I thought I could use to get T.J. to like me. Two years ago, our gun hobby got me in trouble with Tanya. I bought T.J. a BB gun for her/his eleventh birthday. T.J. had asked me for one and I knew it would make her/him very happy. The box said the BB gun was for ages twelve and up. Before I agreed to give T.J. the gun, we set ground rules. The gun was to be kept at my house and was not to be used unless I was there. The week before T.J.’s birthday, I got a call from Tanya. She was furious. She said that she would not allow T.J. to own a gun. I explained that it was only a BB gun, but she didn’t care. I tried to argue that what I did with my child in my home was my own business, but she would have none of that. She started telling me how kids as young as T.J. were getting arrested with handguns in their neighborhood. According to Tanya, guns, drugs, and gangs were all tied up together and she did not want to encourage the use of guns in any way. When I realized how serious she was about this, I returned the BB gun. When T.J. did not get the gun, s/he was very mad. T.J. told me that I was afraid of her/his mother and said, “If you won’t buy me a gun, I’ll get one on my own.” I wasn’t worried about this. T.J. was just an eleven-year-old kid blowing off steam. One day in the fall on 2011, I saw T.J. with a gun magazine. T.J. asked, “Hey, Dad, can you buy guns through the mail?” I said, “I don’t think so. But you shouldn’t be thinking about that anyway.” I will never forget December 4, 2011, the day the shooting occurred. T.J. was over my house for the weekend. I was in the basement with T.J., Jesse and Kym. Claudia was out with
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friends and had left me in charge of the kids. T.J. and Jesse were playing checkers and we were all watching a football game on T.V. At halftime I remembered that I had borrowed a drill from my neighbor, Louis. I told T.J. to watch the kids while I brought it back. There were some guys at Louis’ house watching the game. I started talking to them and Louis asked me if I wanted a beer. I decided to hang around and have one beer. I wasn’t worried about the kids. T.J. was thirteen years old and should have been responsible enough to look after younger children. S/he had never watched the kids alone before, but I trusted her/him. I only planned to be gone for fifteen or twenty minutes. After I finished the beer, there were only five minutes left in the game with the score tied. I decided to stay until the end. Around that time, there was a loud banging on the door. Louis got up to answer it and T.J. ran in. T.J. was covered in blood and crying. S/he told me that Jesse “got shot.” I tried to ask T.J. what happened but s/he ran out of Louis’ house and down the street to my house. We all followed T.J. into my basement. Jesse was lying on the floor, and there was blood everywhere. He was unconscious but breathing. Louis used to be a paramedic, so he took over. I asked T.J. what had happened. T.J. said that s/he was showing Jesse a gun and Jesse tried to grab it. When T.J. tried to take it back from Jesse, the gun went off, hitting Jesse. An ambulance and police car arrived. Before I let the police talk to T.J., I made sure to tell her/him that I wasn’t mad at her/him. I don’t remember exactly what I said, I just wanted T.J. to know that I didn’t blame her/him. The paramedics took Jesse to the hospital. I rode in the ambulance with them.
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At the hospital the doctor said Jesse had been shot in the lower chest. The bullet hit his spinal cord and exited out his back. The doctor said Jesse would live, but he would be permanently paralyzed from the waist down. I called Tanya from the hospital to tell her about the shooting. I was very upset at the time and I told her that I blamed the whole thing on her. She said “Oh my God, I wish I had kept that gun out of my house.” Later that night, I asked T.J. to explain what had happened more carefully. S/he said that the gun belonged to Tanya’s boyfriend, Carl. T.J. found the gun in Carl’s toolbox and brought it to my house for the weekend because s/he “wanted to.” T.J. showed it to Jesse and Jesse asked if he could play with it. T.J. said no, but then Jesse tried to grab it out of T.J.’s hands. While the two of them were wrestling for the gun, it accidentally went off. I don’t blame T.J. for what happened, I blame Tanya. She went nuts when I tried to give T.J. a BB gun, but then she let some guy bring a real gun into her house. Maybe she thought Carl was more responsible than me, but this sure proved her wrong. She has always told me that she is worried about T.J. getting involved with gangs and guns, especially after T.J. was arrested last year. She said the arrest was my fault because I never got involved with T.J. She even got that counselor, Bottner, to start bothering me. Bottner called me twice, and I told her/him quite clearly not to tell me how to raise my child. I thought I was done with it, but then I got a rude letter from Bottner in April of 2012. I sent the letter right back to Bottner with a note on the bottom that finally got her/him to stop bothering me. I know I have missed some weekends and a birthday or two, but I was busy, and every time I tried to get involved I felt that Tanya put hurdles in my way. I also didn’t pay child
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support some months when I was really strapped for cash. I knew Tanya was making much more money than I was anyway. I really love T.J. and I have always wanted what is best for her/him. Since the shooting accident, I have realized that I should have been more involved in what was going on in T.J.’s life and how Tanya was raising her/him. My son is paralyzed because Tanya allowed a gun to be kept unsafely in her house. She should have to pay for Jesse’s injuries and for my loss.
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WITNESS STATEMENT T.J. Walker Child of Plaintiff and Defendant (Testifying for Plaintiff) My name is T.J. Walker. I am 13 years old and I live with my mother, Tanya Brewster at 4952 Oaktree Lane, Shepardsville, New Columbia. I am an eighth grader at James E. Carter Junior High School. My father, Scott Walker, left my Mom and me when I was three. I guess my parents just did not get along and my father wanted a new life. I don’t remember seeing much of my Dad while I was growing up. He was in the Army for a couple of years. When he came back, he would take me out for pizza and maybe a movie every once in a while. I was really raised by my Mom. It wasn’t until my Dad got married again and started a new family that he started showing any interest in me. I started seeing my Dad a little more often on weekends, but we always had to spend time with his new wife and his new kids. I never felt like I really belonged with his new family. Every once in a while, my Dad and I went out alone. I liked that better than being with his whole family. A few times we went to the shooting range near his house and watched people shoot their guns. One day there was this old Marine guy at the range shooting a machine gun. My Dad said he had learned how to use one in the Army. I told him to ask the guy if he could shoot it. He didn’t really seem to want to, but he asked anyway. It was cool seeing my Dad just blast away. When I was in the sixth grade my Dad promised me a BB gun for my birthday. He made me promise that I would only use it when he was around. He wrote down a bunch of rules that I would have to follow. When my Mom found out about it and got mad, my Dad gave in. He
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didn’t try to stand up for me or tell her about the rules. He just agreed with my Mom. I guess it saved him the trouble of having to buy me the BB gun. My Dad never wanted to spend time with me when I was growing up. He just left my Mom and me to survive on our own. My Mom is okay as mothers go. She is the one who raised me. She works really hard to be successful and to provide for us. I guess it’s cool how she put herself through college and started her own business and everything. I appreciate that she’s mostly done it for me, although all her work means that I’m usually alone. Between my Dad leaving me and my Mom working all the time, sometimes I feel as if I have grown up alone. They say I’m supposed to be responsible for myself because they can be around to do everything for me. But then they try to put restrictions on me including who I can hang out with and how late I am allowed to stay out. That is messed up. It’s also messed up the way that my Mom’s boyfriend, Carl, moved into our house. No one asked me if I minded him moving in. I don’t really mind him living here - - my mom deserves a life - - but it would have been nice to be asked. Between my Mom and my Dad, though, my Mom is by far the better parent. I just wish she was around more. Even though my Mom isn’t around much, sometimes she gets all worked up over things that happen to me. My Mom started getting worried about me when I got into a fight at school two years ago. It wasn’t my fault. This fifth grader, Chris Thompson, would not get out of my way in the hallway. Chris needed to learn some respect. When the principal called my Mom, she blamed it on my friends. She thinks they are a “bad influence.” My friends are all right. They are no different from any of the other kids at school. I can depend on them to back me up no matter what.
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Last year there was a fight and we all got hauled off to the police station. It was a fight for pride. Someone had insulted one of my friends and we had to show them that they couldn’t “dis” us. I knew guns were going to be involved. Someone always has a gun. People respect you when you carry a gun. You’re nothing in their eyes if you don’t carry. But I wasn’t the one carrying the gun. When I talked to the Youth Officer at the police station, he said he would probably just send me home because I wasn’t carrying a weapon and had never been arrested before. Then my Mom came in and he talked to her. He said he was going to drop the case but she started asking him questions. He talked about what could happen if they didn’t drop the charges, and mentioned stuff like counseling and diversion. When my Mom heard about this diversion thing, her eyes lit up. She said she thought it was the best thing for me. The officer said that I really didn’t need it, but my Mom insisted that he sign me up for the program. So we ended up in diversion. I go every Saturday and my Mom and I talk to Terry Bottner once a month. Terry is okay. S/he always wants to know about drugs and guns in the school, so I say what s/he wants to hear. Sometimes I make stuff up to keep Terry happy, but most of the time what I say is true. There really is some scary stuff going on at school. For instance, I told them that some of my classmates sneak guns into the school. My Mom, of course, gets real worried about all this. I wouldn’t tell her what’s really going on if she and I were talking on our own. But with Terry there, it’s easier. The one thing that bugs me about Terry, though, is that s/he really seems to hate my Dad. S/he always talks about how my Dad doesn’t do anything for me and how it’s his fault that I get into trouble. Terry doesn’t know my Dad or anything about him. So I don’t see how s/he can have this opinion of him.
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I found out that Carl had a gun because he and my Mom had a huge fight over the gun when he moved in. Mom knew I was home. Later on that day, she was reading something about safe storage of handguns. I asked her about it because I wanted to know more about Carl’s gun. But she just got really angry and wouldn’t talk about it. A couple of weeks later I was down in the basement with Carl in his workshop. He asked me to get him a screwdriver from his toolbox. That’s when I found his gun. It was a Beretta 9millimeter and it was tough looking. It was the kind of gun that makes people listen to you. I know Carl said it was off limits but I couldn’t help borrowing it. One day I took it to school and my friends were real impressed. They’ve all got cheap guns. Nobody had a gun as tough as Carl’s. They all called me “Beretta” that day. Since no one caught me when I took the gun to school, I decided to take it again one weekend when I was visiting my Dad. I was going out with my friends that night. I wanted to take the gun with me because, I thought, you never know when you’re going to need one. That day, we were all sitting around watching football at my Dad’s house. Jesse wanted to play checkers. I wanted to watch football and talk to my Dad, but I played checkers with Jesse just to shut him up. Sometime that afternoon, my Dad said he was going out for a while and that I was in charge. Since my Dad was gone, I decided to show Jesse the gun. I knew it would impress him. When he saw the gun, Jesse said he wanted to play with it. I told him no because it was my gun. That’s when he tried to grab it out of my hands. We wrestled with it for a few seconds. Then the gun went off accidentally, and Jesse was hit. After that everything seemed like it was in slow motion. There was a big red spot on Jesse’s shirt that kept getting bigger. I think he passed out the second he got shot. I called 911
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for an ambulance. The operator asked me if anyone else was there. I said my father was down the street. The operator said to stay on the phone and keep talking until the ambulance arrived. The operator kept asking me questions and I tried to answer them. I was so confused and upset that I don’t even know what I said. The ambulance took so long that I thought Jesse was going to die before it got there. I dropped the phone and ran down the street to get my Dad. He and his friends ran back to the house with me and then the ambulance finally showed up. Jesse could have died and I felt terrible. When the cops asked my father if they could take me to the other room to talk to me, he said he wanted to speak to me first. My dad was really angry and upset. He asked me where I got the gun. I told him I got it at Mom’s house and that it was Carl’s. He said “You’re old enough to know better. Nobody can watch you 24 hours a day.” I was so upset already that after he said this I started crying. I guess my Dad felt bad because then he put his hand on my shoulder and said, “It’s all right T.J. You didn’t mean it. It’s just as much my fault as it is yours.” That made me feel better. I’ve thought about what happened a whole lot since then. I feel bad that Jesse is paralyzed. I never meant for him to get hurt. But it was not really my fault. Jesse should not have tried to grab the gun, especially when I told him he could not have it. I would have gotten a gun eventually even if Carl didn’t have one. I was planning to buy one from a guy at school. The fact that Carl had one in the basement just saved me some money.
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WITNESS STATEMENT Dr. Sandy Turner Professor of Emergency Medicine and Public Health (Testifying for Plaintiff) My name is Dr. Sandy Turner. I am a Professor of Emergency Medicine and Public Health at New Columbia University. I received a B.S. in biochemistry from Brookstone College. I received an M.D. from New Columbia University Medical School, and did a residency in Emergency Medicine at New Columbia University Hospital. After my residency, I was a staff emergency room physician at New Columbia General Hospital for four years. I then went on to receive a Ph.D. in Public Health from New Columbia University. I have been a Professor of Emergency Medicine and Public Health for the past six years. Most of my research and teaching has been in the area of domestic violence. During the past two years I have conducted studies of the relationship between gun ownership and shooting deaths in the home. I was also a special consultant to the New Columbia Senate Committee on Health and Public Safety during the drafting of New Columbia Criminal Code § 105: Criminal Storage of a Firearm. After that, I prepared materials for the gun safety course that is required in order to obtain a firearm license in New Columbia. These materials include an information sheet entitled “Safe Storage of Handguns.” I have testified about the causes and results of gun violence at twenty four trials in the last two years. At eighteen of those trials I have testified on behalf of the plaintiffs. I am being paid my regular rate of $200 per hour for research and testimony at this trial. I met with Scott Walker and his attorneys a few days ago. I also spent fifteen minutes talking on the phone with T.J. Walker. These individuals described to me all of the important
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facts of this case. I have also examined the medical records of Jesse Walker. I have never met with Tanya Brewster or Carl Newhouse, but I have gathered all the information I need to know. Firearms kill more teenagers than cancer, heart disease, AIDS and all other “biological” diseases combined. In addition to deliberate shootings, the United States has witnessed an increase in the number of accidental shootings occurring among family members. With all the media publicity focused on violence resulting from gang or drug wars, not enough attention is focused on the accidental shootings with occur every day. Every day in America, a child is accidentally killed by a firearm, and ten others are injured. The most effective way to control these accidental shootings is not to have a gun in the home. If parents are going to continue to keep guns in their home, they must make sure that they are safely stored. The New Columbia statute imposes criminal liability for unsafe storage of a firearm that is used by a child. This law is designed to get parents to store their guns safely. A number of other states have passed similar parental responsibility statutes. Although no formal studies have been done on the effectiveness of these laws, I think they will be successful in reducing the number of accidental shootings in the home. For example, in 2008, an Ohio law similar to the New Columbia statute became effective, and the state widely publicized the new parental liability. During the next year, there were no accidental shootings involving children in Connecticut. This, I believe was a direct result of the statute. Many gun-owning parents claim they do not need to be told how to store their guns because they believe that their children will not take the gun without the parents’ permission. Parents expect their children to obey their instructions not to take or use the gun. These parents are out of touch with the facts.
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The most recent study published in the New England Journal of Medicine showed that keeping a gun in the house nearly triples the chance that someone will be killed on the premises. Another study has shown that 88% of children who are injured or killed in unintentional shootings are shot in their own homes or in the homes or relatives or friends. Parents should assume that all children will become curious or will disobey their parents’ instructions, and will examine or play with the gun. An accidental shooting is the likely result. Parents should also be aware of whether their children may be prone to violent behavior. When a child has been involved in violent behavior, the parents should be on red alert. Violent behaviors include any fights, gang involvement, incidents involving weapons of any kind, or any criminal activity. If a child has been involved in these types of incidents, the parents are on notice that their child was violent tendencies. If this is true, the parents should take precautions to reduce the possibility of violent behavior by that child in the future. However, even if there are not specific incidents of violent behavior by a child, I think all parents who have guns in the house should know that their children are more than likely to take and to examine a gun. Guns have become an integral part of our culture and, in fact, have become a rite of passage for many of our children. This epidemic of teenagers and younger children with guns is happening everywhere in our country, including cities, suburbs, and rural areas. Research has shown that teenagers know how violent other teenagers are, and adapt their own behavior to protect themselves. Teenagers know that they can become targets of spontaneous violence over real or imagined slights, such as looking at someone the wrong way or bumping into someone and scuffing his sneakers. One of 25 high school students in the United States carried a gun in 2009. Teenagers obtain guns for a number of reasons. Often they do so for protection or revenge. But they also
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carry guns for status and glamour. They carry guns to school, to parties, on subways, anywhere they go. Young people often say, “everyone else has one, so I need to have one too.” Based on all of the facts of this case, I believe that Tanya Brewster acted irresponsibly. Ms. Brewster should have been much more careful in her supervision of T.J. Also, she should have not allowed a gun to be stored unsafely in her home. At least one billion dollars is spent annually for hospital costs associated with the treatment of individuals with firearm injuries. Unfortunately, Jesse Walker is now one of those individuals. My review of Jesse’s medical records indicates that he will need a lifetime of intensive medical treatment, including physical therapy, medication, specialized equipment, and outpatient nursing care. I estimate that Jesse’s future medical expenses will amount to approximately $10,000 per year. Projected over Jesse’s estimated remaining life span of 65 years, this amounts to approximately $650,000.
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WITNESS STATEMENT Tanya Brewster Defendant My name is Tanya Brewster and I am 32 years old. I live at 4952 Oaktree Lane, Shepardsville, New Columbia. I own and manage a temporary employment agency and have done so for the last three years. I bought my house after Scott and I were divorced. This used to be a safe neighborhood, but over the past several years there has been more crime and violence, mostly from street gangs. I have never been robbed, but almost everyone I know has. I met Scott when we were both sophomores in high school and we fell in love. When I found out I was pregnant during my senior year, I was very upset. I did not know what to do, but my parents said we should get married and Scott agreed. I did not think I could raise a child on my own, even though I guess I did end up raising T.J. all by myself. Our marriage started off pretty well. We were young and in love. But after T.J. was born, Scott seemed to lose interest. He was hardly ever around the house, took very little interest in helping with T.J. and didn’t seem to want to be with me. He was always out with his friends, hanging out in bars or playing cards. When T.J. turned two I started working part-time at a temporary employment agency and things got worse between Scott and me. I decided to get a job because I needed to feel that I was doing something meaningful, plus we needed the money. Scott was spending the money he earned as fast as he was bringing it in. Our marriage had gotten so bad that when Scott asked me for a divorce, I agreed. The only condition that I put on the divorce was that I wanted full custody of T.J. Scott never seemed interested in raising T.J. and I did not want some judge giving Scott partial custody. Scott readily agreed to give me sold custody.
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The divorce agreement required Scott to pay $250 per month in child support. He promised me that he would pay the child support and visit T.J. regularly. But then he went off and joined the Army. He only saw T.J. once while he was in the Army, and that was for about three hours one Christmas. When he returned from the Army, he only saw T.J. about every four or five weeks. He even missed a few of T.J.’s birthdays and one or two Christmases. Scott also started missing child support payments. While he was in the Army, the payments came every month. But when he got out, he began missing more and more payments. I did not pursue these payments in court, because by that time my business was becoming more successful and I did not have the time or energy to go to court to chase down Scott. As I stated, I had begun working for a temporary employment agency. At first, I was a receptionist, but I was promoted several times until I became the office manager. I saw how the business was run from the inside and I thought I could run a better agency, so I decided to put myself through college at night while I was working during the day. After I graduated in December 2008, I quit my job and opened up my own temporary employment agency. I worked many long, hard hours to get my business off the ground and it is now quite successful. The work takes a lot of my time, most of it in fact, but I love it. One drawback is that the past few years I have not had as much time with T.J. as I would like. T.J. is a great kid and works pretty hard in school. S/he has had a few problems in the past but we have dealt with them. T.J. got into trouble at school twice during the sixth grade, once for fighting and once for vandalizing school property. I have never really blamed T.J. It is the kids s/he hangs out with who cause the trouble. They are a bad influence.
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The only other problem I have ever had with T.J. was in January of 2011 when s/he was involved in a fight between two groups of kids in the neighborhood. The police broke it up and took everyone to the station house. There were weapons involved, including one or two handguns and some switchblades. As soon as I found out about the arrest I went down to the police station and spoke to the Youth Officer. He told me about the juvenile justice system and what could happen if T.J. were arrested again. He said many first-time offenders enter a diversion program, which includes counseling about violence, drugs, and guns. I immediately told him that I wanted T.J. in the program. He explained that he had planned to just release T.J. because he did not feel that diversion was necessary. But I told him that we would do the program voluntarily. I didn’t want T.J. to think that s/he could get away with just a slap on the wrist and I thought the counseling would help. The diversion program has worked very well. T.J. and I go for counseling sessions once a month with Terry Bottner, who is a very nice person and seems very concerned about both T.J. and myself. In the sessions, we talk about the crime situation in our neighborhood and how to avoid it. T.J. says a lot of things in the sessions that s/he would never tell me if just the two of us were talking. For instance, s/he told us that some students sneak guns into school. From these sessions, I’ve learned how hard it is for a teenager to stay away from all the drugs and guns that they see or hear about every day. I think one of our main problems is Scott’s attitude towards T.J. When Terry Bottner asked Scott to participate in the counseling, Scott refused to come. He treated the arrest and the diversion program like they were nothing.
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I think T.J. became interested in guns because of Scott. I didn’t know about it when we were married, but Scott is into guns. That’s probably why he joined the Army. When T.J. was younger, s/he would come home from visits with Scott talking about different guns that Scott had shot in the Army. The last straw came when Scott bought T.J. a BB gun. Scott acted like it was a toy but I knew that someone could get seriously hurt with one of those things. I put my foot down and said that under no circumstances would I allow T.J. to own a gun of any kind. Scott agreed to return the BB gun, but who knows what he said to T.J. about the whole thing. When T.J. gets these kinds of messages from Scott, it is very hard for me to keep her/him on the straight and narrow. For example, T.J. and I once watched a television documentary about handgun violence. T.J. missed the point of it completely. S/he said s/he thought it would be cool to have a gun in the house. Another time, I found a gun magazine in T.J.’s room. It was open to a page where T.J. had circled several gun prices and descriptions. I took the magazine and threw it away. All of this is Scott’s influence. I have tried to do my best for T.J. I try to provide a good home and to be there whenever T.J. needs me. I know I spend a lot of time at work, but I am trying to make a better life for both myself and T.J. It is not easy being a single mother, especially when Scott has never done his part. After my divorce, I did not date anyone for a long time. I was extremely busy and did not want to get involved in a relationship. About two years ago, though, I met Carl Newhouse when I was buying a new car. He gave me a great deal on a car. We dated for a year and a half and then he moved into my house with T.J. and myself last August. We are not even considering marriage at this point. Since my last marriage was such a disaster, I am not anxious to try again.
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When Carl moved in, he told me he owned a handgun which he wanted to keep in the house. This led to a huge argument. My immediate reaction was to tell him no. I said that I did not like guns, that I did not want one in the house, and that keeping a gun could only lead to trouble. Carl insisted that we needed a gun for protection. He said our neighborhood was so dangerous that having a gun was a necessity. He also told me that he had taken a gun safety course and would be happy to show me the materials used in the course. Carl finally wore me down and I agreed he could keep the gun. I looked over the materials, including an information sheet entitled “Safe Storage of Handguns.” I remember T.J. interrupting me while I was doing this. I tried to hide what I was reading but s/he saw it. I don’t remember the explanation I gave T.J. for it, but I don’t think s/he figured out that we had a gun in the house. After the fight, I never thought or asked about the gun again and Carl never mentioned it. In the sessions with Terry Bottner, we talked about how a lot of people in our neighborhood had guns. But somehow I never remembered Carl’s gun. In fact, I never really thought about it until I got the phone call from Scott. It was a Saturday, and T.J. was at Scott’s house for a rare visit. Around six o’clock that afternoon I received a phone call from Scott telling me that T.J. was at the police station being questioned about a shooting accident involving Jesse, one of Scott’s kids. I was shocked. Scott was screaming and tried to blame the whole incident on me. I knew it wasn’t my fault, but I remember wishing that I had never let Carl bring that gun into my house. I might have even said something like that to Scott.
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I rushed to the police station. The police told me that T.J. had found, and used, Carl’s gun. I became angry with both T.J. and Carl. Carl should have kept the gun in a secure place and T.J. should have known better. I really feel bad for Scott and his family. Jesse is a nice kid and it is horrible that he is paralyzed, but I don’t think that I should be made the scapegoat. It is not my fault that Jesse was shot. The shooting happened at Scott’s house and, from what I hear, he was down the street drinking beer. This is typical of Scott. He was the same way when we were married.
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WITNESS STATEMENT Carl Newhouse Friend of Defendant (Testifying for Defendant) My name is Carl Newhouse. I am a 36 year-old car salesman. I met Tanya Brewster about two years ago, when she needed to buy a car. We started dating about a week after we first met, and we began living together in Tanya’s house in August of 2011. T.J. never seemed to mind having me move into the house. T.J. is a great kid - - smart, funny and outgoing. But T.J. is a teenager and can easily be influenced by friends and by TV or movie images. T.J. can also be influenced by adult authority figures like her/his father. I think T.J. had a tough childhood, since Scott was never really around. Scott was always too busy with his own interests, and is now too busy with his second wife and his other kids. In the two years or so that I have known Tanya and T.J., Scott has missed a number of child support payments and has avoided seeing T.J., often for weeks or even months at a time. I think T.J. sometimes does bad things just to try and get Scott’s attention. On the other hand, I know T.J. loves Scott very much and would like to have a closer relationship with him. T.J. has told me so. About 6 to 8 months before the shooting incident, it appeared to me that Scott was trying a little harder to get close to T.J. and to make T.J. feel like a part of Scott’s new family. Tanya is a great mother. T.J. is really the most important person in her life. She has been working so hard all these years to make a better life for T.J. and herself. Tanya is not around the house much because she is so busy with work. It takes a lot of dedication to make a business successful. I often get the feeling that Tanya does not really understand what today’s teenagers are faced with, but she would do anything for T.J.
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When I moved into Tanya’s house, I wanted to bring my gun with me. I bought a gun a number of years ago because my apartment had been broken into while I was sleeping. One of the burglars held a gun to my head while the other one took all my valuables. I was never going to let that happen again, so I bought a gun, a Beretta 9-millimeter semi-automatic pistol. I keep it loaded so that I’m always ready in case of trouble. I have a license for the gun. I had to take a gun safety course in order to receive the license. When I told Tanya about the gun she got very upset and said she did not want it in the house because it was too dangerous. She told me T.J. had been in trouble in the past and that she was afraid of her/him being around guns. I insisted that we needed a gun to protect ourselves since we were living in a dangerous neighborhood. It seems like everybody on the streets has a gun; even the kids, who will shoot you if you look at them the wrong way. I told Tanya that I knew how to handle and store the gun safely since I had taken the gun safety course. She made me give her the materials from the gun safety course, including an information sheet called “Safe Storage of Handguns,” so she could read them for herself. Tanya finally agreed to let me keep the gun. I guess she trusted me. She never asked me where I kept the gun and I never told her. We never talked about it again until the shooting. My hobby is working on cars and fixing them up, so I had set up a workshop in the basement, near the garage. I put the gun in a toolbox I kept in the basement. The toolbox has a lock on it and I usually keep it locked. Sometimes when I am working on a long-term project, I forget to lock it. I told T.J. that all my stuff was off limits and not to mess with any of it. There were a lot of delicate parts and tools that I did not want broken. Since T.J. was not allowed to go through my belongings, I felt that the toolbox was a safe place to put my gun.
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A few weeks after I moved in, T.J. and I were working in my workshop. I needed a screwdriver from my toolbox. Forgetting that I had put the gun in the toolbox, I asked T.J. to get the screwdriver for me. T.J. found the gun and asked me about it. I told her/him to put the gun back and to never touch it again. I did not tell Tanya about this, because I knew she would be really angry. Besides, I thought that T.J. would listen to my instructions. I remember the week before the accident because I was rebuilding a transmission that whole week. I am fairly sure the toolbox was locked that week. I could not believe it when Tanya told me that T.J. had found my gun and that Jesse had been accidentally shot. I specifically told T.J. not to take or use the gun. There is no way that Tanya is responsible for the shooting. She did what she could. She also does everything she can to support T.J. so that s/he does not feel a need to get involved with all the crime and violence that is going on in our neighborhood. If I did something wrong, Tanya shouldn’t have to pay for it.
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WITNESS STATEMENT Terry Bottner Juvenile Diversion Counselor (Testifying for Defendant) My name is Terry Bottner. I am a counselor for the Juvenile Pre-trial Diversion Program in Shepardsville, New Columbia. I have worked there for four years. Before that I was a high school teacher in the city school system for four years. I received a B.A. in physical education from Shepardsville City College and a Masters degree in Social Work from New Columbia University. I am currently working on my Ph.D. in Social Work at New Columbia University and have completed preliminary research for my thesis on gang violence among teens. After finishing college I was hired by Ford High School as a physical and health education teacher. I also coached the junior varsity basketball and track teams. I enjoyed the work at first but I started becoming very concerned about the culture of drugs and violence prevalent among the students. I can still remember the day I called out a boy’s name in gym class and heard another student answer, “He got shot yesterday.” In my health classes we had frank discussions about subjects like sex, drugs, guns and violence. The attitudes and behavior of the kids scared me. I frequently saw kids stashing guns and drugs in their gym lockers. After two years of teaching and coaching, I decided that I should become more actively involved in keeping kids out of trouble. I decided I should try to help the kids who really were at risk. I quit my coaching positions and started an “after hours” club. I asked a group of kids I knew were really “in danger” if they wanted to hang out in the gym after school and play basketball. Every day we played some basketball, worked on homework and then finished off with a “rap session.” No subject was off limits in the rap session. We also had weekly speakers from the community who were positive role models for the kids.
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I ran the “after hours” club for two years. During the second year, Dr. Phyllis Gannon came to speak to the kids about the juvenile justice system. Dr. Gannon had just started the Pretrial Diversion Program in Shepardsville. She explained that diversion was for first-time juvenile offenders who did not seem to pose a threat to the community. These young offenders were enrolled in a program where they participated in group and family counseling. Similar programs had enjoyed great success in others areas, and Dr. Gannon was confident that diversion would succeed here as well. That summer she offered me a position as a counselor with the Pre-trial Diversion Program and I accepted. I have been working for the diversion program for four years. Over the past four years I have been involved in all aspects of the diversion process, including screening, group counseling, and individual and family counseling. In screening, I examined offenders’ records and spoke to their teachers, parents and lawyers to determine their eligibility for the program. In group counseling, I led groups of about fifteen kids in weekly discussions about things like alternatives to crime, problems in school, and life planning. For the past two years, I have been involved in individual and family counseling. I meet with program participants individually every week and also meet with participants and their families for two hours every month. I also call the parents once a week to see how things are going. During counseling sessions and phone calls, we discuss any problems among the family members and try to work out solutions. Through this work I have come to realize that the most important factor in determining whether children will become or remain involved in violent crime is the level of parental support. I think our program works so well because we involve the parents.
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I met Tanya and T.J. in February of 2011. When I read T.J.’s file, I was surprised that the case had even come to us. T.J. was a decent student who attended school regularly and had a very supportive mother. It was also T.J.’s first offense. Usually these cases are dropped. The person in charge of screening told me that T.J.’s mother wanted her child to be in the program even if s/he hadn’t actually done anything. I called up Tanya and she told me the same thing. She wanted to be in the diversion program because she didn’t want to “take any chances” where T.J. was concerned. Counseling sessions with T.J. and Tanya have always gone extremely well. Tanya is a very involved parent. Even though she has raised T.J. on her own, she has provided the type of home atmosphere that few children experience in this city. There is some lack of communication between T.J. and Tanya, but that is hardly unusual between parents and teenagers. That’s where I come in. In our sessions, T.J. actually tells Tanya about the weapons and drugs s/he sees in school and the fact that s/he has actually witnessed a great deal of violence. Although she seems shocked, this gives Tanya a more realistic view of what T.J. goes through every day. We have discussed guns quite a few times. In fact, I think that they probably have come up at least once at every session. Tanya has always made it very clear that she does not want T.J. to be involved with, or even to touch, guns. In my opinion, young people carry guns mostly to get attention and respect. Tanya has always given T.J. the attention that s/he needs and shown respect for his/her independence. She has done all that any parent can do to prevent her child from picking up a gun. I have not had much contact with Scott Walker. Our program tries to involve the whole family in counseling, even if the parents are divorced or separated. But if a non-custodial parent
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doesn’t want to participate, there is nothing we can do. When I first called Mr. Walker to talk about T.J. he asked if I was a police officer. I explained that T.J.’s case had been diverted from the juvenile justice system and I described our program to him. He said he did not want to participate in T.J.’s family counseling sessions. I think his exact words were “If T.J.’s mother is going, what do you need me for?” He then hung up. After two sessions with T.J. and Tanya, I realized that T.J.’s mother and father were giving him conflicting signals about guns, violence, and our counseling sessions. I got the impression that Mr. Walker was downplaying the importance of our counseling and not taking T.J.’s arrest seriously enough. I don’t know exactly what he said to T.J., but I’m sure that it was part of the problem. I don’t know exactly what he said to T.J., but I’m sure that it was part of the problem. I called Mr. Walker again to try to explain the problem. Again he did not want to talk. He said “Nobody is going to tell me what to say to my child. I don’t let T.J.’s mother do that and I won’t let you.” Again he hung up. I decided to give Mr. Walker one last chance. On April 6, 2011, I wrote him a polite letter asking if he would reconsider his participation in the counseling. His handwritten reply clearly showed that he did not care about T.J.’s problems. I think Mr. Walker’s refusal to participate in the program has hurt T.J.’s progress. T.J. receives support from her/his mother for trying to stay out of trouble. But T.J.’s father refuses to get involved. Criminal behavior is often a way to get the attention of one’s parents. T.J. obviously did not get the attention of Scott Walker the first time s/he was arrested. Maybe T.J. thought that bringing a gun right into her/his father’s house would be enough to get his attention. Scott Walker’s behavior towards T.J. is typical of divorced men. They think that the second the ink is dry on their divorce papers they no longer have any responsibility towards their
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children. My father was like that, too. In my opinion, divorce, and its effect on children, is one of society’s biggest problems, and it is the absentee fathers who are to blame. I have no respect for men like Scott Walker. I have never met Carl Newhouse. Until the accident, I was not aware that he was living with Tanya and T.J. If I had known, I would have asked him to participate in our counseling sessions. I certainly didn’t know anything about the gun that Carl owned. If I had, I would have told Tanya that she should make Carl get rid of it. A gun is too much of a temptation for a young person, too great a status symbol and attention-getter to resist, even under lock and key, even in a safe. I would have insisted that there be no guns in the house. I have found Tanya Brewster to be more involved with, and more concerned about, her child than at least 90% of the parents I come into contact with. In my opinion, based on my professional experience, there is nothing more she could have done to keep T.J. from getting into this type of trouble.
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EXHIBIT A Official Transcript 911 Emergency Telephone Call Recorded on 12/04/11 – Beginning 16:37:17 hours Transcribed 2/3/12 Operator:
Hello 911, what is your name and where are you?
Caller:
Hello, is this the emergency ambulance?
Operator:
Yes, I can get you an ambulance. What is your name and where are you?
Caller:
Um, T.J. Walker. I’m at my Dad’s the address is…2633 Grant Avenue. It’s right by Peterson Middle School.
Operator:
That’s O.K. T.J. I know where it is. You said you need an ambulance. What happened?
Caller:
Jesse is unconscious. He’s bleeding. He needs a doctor right away. You have to send an ambulance.
Operator:
T.J., there’s already an ambulance on the way. You have to keep calm until it get’s there. O.K.?
Caller:
Yes.
Operator:
T.J., how old are you?
Caller:
Th-thirteen.
Operator:
Is there anyone else at home, T.J.? Anyone older?
Caller:
Kym’s here, but she’s just a baby.
Operator:
Are there any adults there, T.J.?
Caller:
My Dad’s down the street at Louis’ house.
Operator:
How far away is Louis’ house, T.J.?
Caller:
Its…..I’m not sure. I’ve only been there once. It’s like one or two blocks.
Operator:
You’re not sure what house?
Caller:
No.
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Operator:
O.K., T.J. then I just want you to stay right there. O.K.?
Caller:
Uh huh.
Operator:
Is……Jesse still bleeding?
Caller:
Yeah, it’s all over the place. I think he’s going to die.
Operator:
T.J., is the phone cord long enough to reach Jesse while you still talk to me?
Caller:
Yeah.
Operator:
O.K. T.J., I want you to go over to Jesse.
Caller:
Uh huh.
Operator:
Are you there?
Caller:
Uh huh.
Operator:
Where is Jesse bleeding?
Caller:
All out his stomach.
Operator:
The wound is covered by his shirt?
Caller:
Yes.
Operator:
O.K., then we’ll keep his shirt on. T.J., I want you to put direct pressure on the wound to try to keep down the bleeding. O.K……Now keep the phone under your chin so you can still talk to me while you do this.
Caller:
O.K.
Operator:
Now I want you to use both of your hands and put them down flat on Jesse’s wound right where the blood is coming from and press down. You’re trying to keep the blood from coming out.
(6 second pause) Operator:
T.J., are you doing that?
Caller:
Yes, I hope I’m doing it right.
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Operator:
O.K. T.J. I just want you to stay and do this until the ambulance comes. Now you and I will just talk until the ambulance arrives. When is your father coming back T.J.?
Caller:
I don’t know. He didn’t tell me.
Operator:
How long has he been gone, T.J.?
Caller:
I don’t know….a long time….all afternoon. Why are you asking me all these questions?
Operator:
I just need to know what happened so I can help. O.K. T.J.? I want you to tell me what happened. How did Jesse get hurt?
Caller:
We were just playing. I didn’t mean it.
Operator:
I know you didn’t mean it. Now, how did Jesse cut himself?
Caller:
He didn’t cut himself, he…..he got shot.
Operator:
T.J. …...he was shot? How….Where did the gun come from?
Caller:
It’s Carl’s gun. I got it from Carl.
Operator:
Did Carl bring the gun over? Where’s Carl?
Caller:
I don’t know. I got it from his toolbox.
Operator:
You brought the gun over T.J.?
(4 second pause) Caller:
Yeah.
Operator:
And you got it from Carl’s toolbox?
Caller:
Yeah.
Operator:
Was the toolbox locked, T.J.?
Caller:
No. Where’s the ambulance? Jesse’s dying.
Operator:
The ambulance will be there real soon. You have to be calm.
Caller:
O.K.
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Operator:
Who’s Carl, T.J.? Is he a friend of yours?
Caller:
Carl….he’s my Mom’s boyfriend.
Operator:
And he just leaves a gun lying around in an unlocked box?
Caller:
Yeah. Where’s the ambulance?
Operator:
It’s coming T.J. Just stay calm and we’ll keep talking. How old are you T.J.?
Caller:
I already told you that. I’ve got to go get my father right now. I don’t want Jesse to die.
Operator:
Jesse’s not going to die T.J., O.K.? ….T.J.?
Caller:
I’ve got to go get my Dad.
(click) Call Terminated 16: [check time on hard copy] hours
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Exhibit B
Shepardsville Hospital 5300 Medical Boulevard Shepardsville, New Columbia 98765 (504) 876-4900 BILL FOR MEDICAL SERVICES PATIENT:
Jesse Walker
SENT TO:
Mr. Scott Walker 2633 Grant Avenue Shepardsville, New Columbia 98761
DATE:
February 1, 2012 Current Medical Expenses
Emergency and intensive care services ………………………………………………9,000 Surgical procedures …………………………………………………………………14,400 Inpatient hospital services …………………………………………………………..11,000 Prescription medication ………………………………………………………………..350 Specialized equipment ……………………………………………………………….3,500 Physician office visits ………………………………………………………………..1,750 Physical therapy ……………………………………………………………………...2,000 TOTAL ……………………………………………………………………….$42,000
Estimated Future Expenses The following are mere estimates based on the best information currently available. These estimates have been prepared at the request of the billing recipient, Scott Walker. Estimated annual medical expenses ……………………………………………….$15,000 X (estimated remaining life expectancy of 65 years) Total …………………………………………………………………………$975,000
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Exhibit C
NEW COLUMBIA DEPARTMENT OF PUBLIC SAFETY Information Sheet # 36 “SAFE STORAGE OF HANDGUNS” Prepared by Dr. Sandy Turner for the State of New Columbia’s required pre-license firearm safety course. INTRODUCTION Statistics show that keeping a gun at home nearly triples the chance that someone will be killed on the premises. Every day in America, a child is accidentally killed by a firearm, and then others are injured. At least one billion dollars is spent annually for hospital costs associated with the treatment of individuals with firearm injuries. These statistics should be considered before making the decision to keep a handgun in your home. Potential handgun owners should also be aware that there is a law in New Columbia which imposes criminal liability when a child of sixteen years of age or younger obtains a firearm that was not been safely stored, and a serious injury results. (New Columbia Criminal Code § 105: Criminal Storage of a Firearm) OWNING A HANDGUN Making the decision to own a handgun assumes that you are prepared to undertake full-time responsibility for your weapon’s safety and security. You must protect yourself and your family members against misuse of the handgun by anyone who is either incompetent or unqualified to handle the weapon. In particular, you must secure your handgun from theft and misuse by children. If you have a handgun you should understand that it is a lethal weapon capable of inflicting death and disabling injury on living targets. If not treated with utmost caution and safety, it can accidentally discharge and result in tragic consequences for you and your family. In the material that follows, we describe step-by-step precautions that you must take to protect you and your family members from being accidentally killed or maimed by your handgun. It is your responsibility to put these safety rules into practice. SPECIAL NOTE FOR PARENTS Do not trust anyone else, even your spouse or significant other, to insure that the measures described below are followed. All adults in the house must know exactly where a handgun is stored and what measures have been taken to child-proof the handgun. They must also insure that these precautions are continually taken. If you are not willing to take on this responsibility, you should not keep a handgun in your home, or allow anyone else to keep one there.
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STORAGE Before we begin, you should know the parts of your pistol or revolver, as illustrated below. As a handgun owner, safe and secure storage is one of the most important responsibilities that you assume. You and your spouse must both be aware of where your weapon is permanently stored. It should not be within sight or reach of children, or accessible to burglars. Specifically, the following measures must be taken: Store your handgun unloaded and uncocked in a securely locked container. Store your handgun and its ammunition in separate locations. Do not store your handgun among your valuables, such as jewelry or silver. Do not store your handgun in a bedside table or under your mattress pillow. Child-proof your revolver by placing a padlock around the top strap of the weapon or by securing a trigger lock. Child-proof your semi-automatic handgun by removing the magazine, disassembling the frame from the slide and magazine, or securing a trigger lock. Always carry with you on your key chain the keys that open both the locked container that stores your handgun and its padlock or trigger lock. If you go on vacation, consider additional safekeeping measures for your handgun while you are away. Store ammunition in a locked container, away from heat or moisture. Never throw out ammunition in the trash.
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Exhibit D
SHEPARDSVILLE, NEW COLUMBIA JUVENILE PRE-TRIAL DIVERSION PROGRAM 16101 STATE STREET, #410 SHEPARDSVILLE, NEW COLUMBIA 98760 (504) 820-0100 April 6, 2011 TO:
Mr. Scott Walker 2633 Grant Avenue Shepardsville, New Columbia 98761
Dear Mr. Walker: I am writing to follow up on our two brief telephone conversations. As you may recall, I am T.J.’s Diversion Program Counselor. After meeting with T.J. several times, and with T.J. and his mother twice, I am beginning to worry that T.J. is at risk of becoming involved in violent activities. In our sessions, T.J. has regularly displayed a fascination with guns and weapons. Based on my professional experience, these types of interests in young people like T.J. often are warning signs that the child could easily become a victim or a perpetrator of violence. I have already asked you to participate in our counseling sessions and I will repeat that request here. Judging from your behavior towards me on the phone, however, I doubt that you will be willing to cooperate with us in such a productive way. At the very least, I think you should be aware of these tendencies in T.J., and should do whatever you can to change them. I don’t think either of us wants to see T.J. become another statistic. Finally, Mr. Walker, I would like to remind you that, even though a man can legally divorce his wife, he can never escape the responsibility that he took on by fathering children. Sincerely,
____________________________________ Terry Bottner Juvenile Diversion Counselor
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V.
The Form and Substance of a Trial
A.
The Elements of a Civil Case
In civil law, when a person commits a wrong, it is called a tort. It is a civil wrong committed by one against another. The injured party, or plaintiff, may sue the wrongdoer, or defendant, in court for a remedy which is usually money damages. In this case the plaintiff alleges that a tort has been committed and is suing for negligent storage of a firearm and for negligent supervision of a child. The tort of negligence contains four elements and the plaintiff has the burden of proving each of them. They are: Duty: the defendant owed a duty of care to the plaintiff; Breach of duty: that duty was violated, or breached, by the defendant’s conduct; Causation: the defendant’s conduct caused the plaintiff’s harm; and Damages: the plaintiff suffered actual damages. A defendant can defend herself either by (1) showing that at least one of the four elements above has not been proven, or (2) showing that plaintiff’s damage was caused, at least in part, by plaintiff’s own fault. “Comparative negligence” means dividing responsibility for the loss according to the degree to which each party is at fault. If the defendant can prove that more than 50% of the fault lies with the plaintiff, then the plaintiff gets no damages and the defense wins.
B.
Proof by a Preponderance of Evidence
Unlike a criminal case, in which the government must prove its charges “beyond a reasonable doubt”, the standard of proof in a civil case is the “preponderance of the evidence”. This standard requires that the weight of the evidence favor the winning party. This means that plaintiff must show that it is more likely than not that defendant breached the duty of reasonable care and that caused plaintiff’s injuries. The same standard applies to defendant’s efforts to prove that plaintiff was comparatively negligent in causing his own harm.
C.
Role Descriptions 1.
Attorneys
Trial attorneys control the presentation of evidence at trial and argue the merits of their side of the case. They introduce evidence and question witnesses to bring out the facts surrounding the allegations. The plaintiff’s attorneys present the case for the plaintiff. By questioning witnesses and introducing exhibits, they will try to convince the jury that the defendant, Tanya Brewster, negligently stored a firearm and negligently supervised her child, causing harm to Jesse Walker. The defense attorneys present the case for the defendant. They will offer their own witnesses and exhibits to present their client’s version of the facts. They may undermine the plaintiff’s case by showing that the plaintiff’s witnesses cannot be depended upon or that their testimony makes no sense or is seriously inconsistent.
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Demeanor of all attorneys is very important. On direct examination it is easy to be sympathetic and supportive of your witnesses. On cross-examination it is just as important to be sympathetic and winning. An effective cross-examination is one in which the cross examiner, the witness, the judge and jury all agree on the outcome. It is bad manners and ineffective to be sarcastic, snide, hostile or contemptuous. The element of surprise may, in fact, be a valuable attorney’s tool, but it is best achieved by being friendly and winning in the courtroom, including with the other side. Trial attorneys will: conduct direct examination and redirect if necessary conduct cross examination conduct redirect and re-cross if necessary make appropriate objections (note: only the direct and cross-examining attorneys for a particular witness may make objections during that testimony) be prepared to act as a substitute for other attorneys make opening statement and closing arguments
a.
Opening Statement
The opening statement outlines the case. The plaintiff’s attorney delivers the first opening statement. A good opening statement should explain what the attorney plans to prove, how it will be proven; mention the burden of proof and applicable law; and present the facts of the case in an orderly, easy to understand manner. One way to begin your statement could be as follows: “Your Honor, my name is (full name), representing the plaintiff/defense in this case” or “You Honor, my name is (full name), counsel for the plaintiff/defense in this action.” Proper phrasing in an opening statement includes: “The evidence will indicate that ...” “The facts will show that ...” “Witnesses (full names) will be called to tell ...” “The defendant will testify that ...” Tips: You should appear confident, make eye contact with the jury, and use the future tense in describing what your side will present. Do not read notes to the jury; use them sparingly, if at all, and only for brief reference.
b.
Direct Examination
Attorneys conduct direct examination of their own witnesses to bring out the facts of the case. Direct examination should: call for answers based on information provided in the case materials reveal facts favorable to your position and disclose unfavorable facts as necessary ask questions which allow the witness to tell the story. Do not ask leading questions – questions that suggest the answer -- leading questions are appropriate only during cross-examination make the witness seem believable keep the witness from rambling Call for the witness with a formal request:
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“Your Honor, I would like to call (full name of witness) to the stand.” The clerk will swear in the witness before you ask your first question. It is good practice to ask some introductory questions of the witness to help him/her feel comfortable. Appropriate introductory questions might include the witness’ name, length of residence, present employment, etc. Proper phrasing of questions on direct include: “Could you please tell the court what occurred on (date)?” “How long did you remain in that spot?” “Did anyone do anything while you waited?” Conclude your direct examination with: “Thank you Mr./s. ________. That will be all, your Honor.” Tips: Isolate exactly what information each witness can contribute to proving your case and prepare a series of clear and simple questions designed to obtain that information. Be sure all items you need to prove your case will be presented through your witnesses. Never ask questions to which you do not know the answer. Listen to the answers. If you need a moment to think, do not be afraid to ask the judge for a moment to collect your thoughts, or to discuss a point with co-counsel.
c.
Cross Examination, Redirect, Re-Cross, and Closing
For cross examination, see explanations, examples, and tips for Rule 611. For redirect and re-cross, see explanation and note to Rule 40 and Rule 611. For closing, see explanation to Rule 41.
2.
Witnesses
Witnesses supply the facts in the case. As a witness, the official source of your testimony is your witness statement, all stipulations, and exhibits you would reasonably have knowledge of. The witness statements contained in the packet should be viewed as signed and sworn affidavits. You may testify to facts stated in or reasonably inferred from your statement. If an attorney asks you a question, and there is no answer to it in your official statement, you can choose how to answer it. You may reply, “I don’t know” or “I can’t remember,” or you can infer an answer from the facts you do officially know. Inferences are only allowed if they are reasonable. If your inference contradicts your official statement, you can be impeached. Also see Rule 3. It is the responsibility of the attorneys to make the appropriate objections when witnesses are asked to testify about something that is not generally known or cannot be inferred from the witness statement.
3.
Court Clerk, Bailiff
It is recommended that you provide two separate team members for these roles. If you use only one, then that person must be prepared to perform as clerk and bailiff in every trial. The court clerk and bailiff aid the judge in conducting the trial. When evaluating the team performance, judges will consider contributions by the clerk and 48
bailiff. The plaintiff will be expected to provide the clerk for any given trial. Defense will provide the bailiff.
a.
Duties of the Clerk – Provided by the Plaintiff
When the judge arrives in the courtroom introduce yourself and explain that you will assist as the court clerk. The clerk’s duties are as follows: 1. Roster and rules of competition: The clerk is responsible for bringing a roster of students and their roles to each trial round. You should have enough copies to be able to give a roster to each judge in every round as well as a few extras. Use the roster form in the mock trial packet. In addition, the clerk is responsible for bringing a copy of the “Rules of Competition.” In the event that questions arise and the judge needs further clarification, the clerk shall provide this copy to the judge. 2. Swear in the witnesses: Every witness should be sworn in as follows: “Do you promise that the testimony you are about to give will faithfully and truthfully conform the facts and rules of the Mock Trial Competition?” Witness responds, “I do.” Clerk then says, “Please be seated and state your name for the court and spell your last name.” 3. Provide exhibits for attorneys or judges if requested (both sides should have their own exhibits, however, it is a well-prepared clerk who has spares). A proficient clerk is critical to the success of a trial and points will be given on his/her performance.
b.
Duties of the Bailiff – Provided by the Defense
When the judge arrives in the courtroom, introduce yourself and explain that you will assist as the court bailiff. The bailiff’s duties are to call the court to order and to keep time during the trial. 1.
Call to Order: As the judges enter the courtroom, say, “All rise. The Court with the Honorable Judge ______ presiding, is now in session. Please be seated and come to order.” Say, “all rise” whenever the judges enter or leave the room.
2. Timekeeping. The bailiff is responsible for bringing a stopwatch to the trial. Be sure to practice with it and know how to use it. Follow the time limits set for each segment of the mock trail and keep track of the time used and time left on the time sheet provided in the mock trial materials. Time should stop when attorneys make objections. Restart after the judge has ruled on the objection and the next question is asked by the attorney. You should also stop the time if the judge questions a witness or attorney.
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After each witness has finished testifying, announce the time remaining, e.g., if after direct examination of two witnesses, the plaintiff has used twelve minutes, announce “8 minutes remaining” (20 minutes total allowed for direct/redirect, less the twelve minutes already used). When the time has run out for any segment of the trial, announce “Time” and hold up the “0” card. After each witness has completed his or her testimony, mark on the time sheet the time to the nearest one-half minute. When three minutes are left, hold up “3” minute card, then again at “1” minute, and finally at “0” minutes. Be sure time cards are visible to all the judges as well as to the attorneys when you hold them up. Time sheets will be provided. You will be given enough time sheets for all rounds. It is your responsibility to bring them to each round. Time cards (3, 1, 0 minute) will be provided in each courtroom. Please leave them in the courtroom for the next trial round. A competent bailiff who times both teams in a fair manner is critical to the success of a trial and points will be given on his/her performance.
VI.
RULES OF THE MINI MOCK TRIAL
A.
Administration Rule 1.
Rules
All trials will be governed by the Rules of the Oregon High School Mock Trial Competition and the Federal Rules of Evidence – Mock Trial Version. Rules of the MiniMock as well as proper rules of courthouse and courtroom decorum and security must be followed. Questions or interpretations of these rules are within the discretion of CLASSROOM LAW PROJECT; its decision is final.
Rule 2.
The Problem
The problem is a fact pattern that contains statement of fact, stipulations, witness statements, exhibits, etc. Stipulations may not be disputed at trial. Witness statements may not be altered.
Rule 3.
Witness Bound by Statements
Each witness is bound by the facts contained in his or her own witness statement, also known as an affidavit, and/or any necessary documentation relevant to his or her testimony. Fair extrapolations may be allowed, provided reasonable inference may be made from the witness’ statement. If, in direct examination, an attorney asks a question which calls for extrapolated information pivotal to the facts at issue, the information is subject to objection under Rule 4, Unfair Extrapolation. If in cross-examination, an attorney asks for unknown information, the witness may or may not respond, so long as any response is consistent with the witness’ statement and does not materially affect the witness’ testimony. A witness may be asked to confirm (or deny) the presence (or absence) of information in his or her statement. Example: A cross-examining attorney may ask clarifying questions such as, “isn’t it true that your statement contains no information about the time the incident occurred?”
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A witness is not bound by facts contained in other witness statements. Explanation: Witnesses will supply the facts in the case. Witnesses may testify only to facts stated in or reasonably inferred from their own witness statements or fact situation. On direct examination, when your side’s attorney asks you questions, you should be prepared to tell your story. Know the questions your attorney will ask you and prepare clear and convincing answers that contain the information that your attorney is trying to get you to say. However, do not recite your witness statement verbatim. Know its content beforehand so you can put it into your own words. Be sure that your testimony is never inconsistent with, nor a material departure from, the facts in your statement. In cross-examination, anticipate what you will be asked and prepare your answers accordingly. Isolate all the possible weaknesses, inconsistencies, or other problems in your testimony and be prepared to explain them as best you can. Be sure that your testimony is never inconsistent with, nor a material departure from, the facts in your statement. Witnesses may be impeached if they contradict what is in their witness statements (see Evidence Rule 607). The stipulated facts are a set of indisputable facts from which witnesses and attorneys may draw reasonable inferences. The witness statements contained should be viewed as signed statements made in sworn depositions. If you are asked a question calling for an answer that cannot reasonably be inferred from the materials provided, you must reply something like, “I don’t know” or “I can’t remember.” It is up to the attorney to make the appropriate objection when witnesses are asked to testify about something that is not generally known or cannot be reasonably inferred from the fact situation or witness statement.
Rule 4.
Unfair Extrapolation
Unfair extrapolations are best attacked through impeachment and closing arguments and are to be dealt with in the course of the trial. A fair extrapolation is one that is neutral. Attorneys shall not ask questions calling for information outside the scope of the case materials or requesting unfair extrapolation. If a witness is asked information not contained in the witness’ statement, the answer must be consistent with the statement and may not materially affect the witness’ testimony or any substantive issue of the case. Attorneys for the opposing team may object under Rule 4 that a question calls for “unfair extrapolation” or for a response that is “outside the scope of the mock trial materials.” The decision of the presiding judge regarding extrapolation or evidentiary matters is final. When an attorney objects to an extrapolation, the judge will rule in open court to clarify the course of further proceedings (see FRE 602 and Rule 3).
Rule 5.
Gender of Witnesses
All witnesses are gender neutral unless the context requires otherwise. Personal pronouns in witness statements indicating gender of the characters may be made. Any student may portray the role of any witness of either gender. Team Rosters, exchanged between teams before the
51
round begins (Rule 31), indicate witnesses and their gender so that references to them can be made correctly during trial. B.
The Trial
(Rules 6 to 9 do not apply to the MiniMock but only to Competition.) Rule 10.
Team Duties
Team members are to divide their duties as evenly as possible. Opening statements must be given by both sides at the beginning of the trial. The attorney who will examine a particular witness on direct is the only person who may make the objections to the opposing attorney’s questions of that witness’ cross-examination; and the attorney who will cross-examine a witness will be the only one permitted to make objections during the direct examination of that witness. Each team must call all three witnesses. Witnesses must be called by their own team and examined by both sides. Witnesses may not be recalled by either side.
Rule 11.
Swearing In the Witnesses
The following oath may be used before questioning begins: “Do you promise that the testimony you are about to give will faithfully and truthfully conform to the facts and rules of the mock trial competition?” The clerk, provided by the plaintiff, swears in all witnesses.
Rule 12.
Trial Sequence and Time Limits
Each side will have a maximum of 40 minutes to present its case. The trial sequence and time limits are as follows: 1. Introductory matters 5 minutes total (conducted by judge)* 2. Opening Statement 5 minutes per side 3. Direct and Redirect (optional) 20 minutes per side 4. Cross and re-cross (optional) 10 minutes per side 5. Closing argument 5 minutes per side** 6. Judges’ debrief 15 minutes total (conducted by judges)* *Not included in 40 minutes allotted for each side of the case. **Plaintiff may reserve time for rebuttal at the beginning its closing argument. Presiding Judge should grant time for rebuttal even if time has not been explicitly reserved. The Plaintiff gives the opening statement first. Plaintiff gives the closing argument first and should reserve a portion of its closing time for a rebuttal if desired. The Plaintiff’s rebuttal is limited to the scope of the defense’s closing argument. None of the foregoing may be waived (except rebuttal), nor may the order be changed. The attorneys are not required to use the entire time allotted to each part of the trial. Time remaining in one part of the trial may not be transferred to another part of the trial.
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Rule 13.
Timekeeping
Time limits are mandatory and will be enforced. The official timekeeper is the bailiff and is provided by the defense. An optional unofficial timer may also be provided by the plaintiff. b. Timing will halt during objections, extensive questioning from a judge, and administering the oath. c. Timing will not halt during the admission of evidence unless there is an objection by opposing counsel. d. Three and one-minute card warnings must be given before the end of each trial segment. Students will be automatically stopped by the bailiff at the end of the allotted time for each segment. e. The bailiff will also time the judges' critique after the trial; the judging panel will be allowed 15 minutes (5 minutes per judge). When the time has elapsed, the bailiff will hold up the “0” card. Presiding Judge should limit critique sessions to the 15 minutes allotted.
Rule 14.
Time Extensions and Scoring
The Presiding Judge has sole discretion to grant time extensions.
Rule 15.
Supplemental Material, Illustrative Aids, Costuming
Teams may refer only to materials included in the trial packet. No illustrative aids of any kind may be used, unless provided in the case materials. No enlargements of the case materials will be permitted. Absolutely no props or costumes are permitted unless authorized specifically in the case materials or CLASSROOM LAW PROJECT. Use of easels, flip charts, and the like is prohibited.
Rule 16.
Trial Communication
Coaches, non-performing team members, alternates and observers shall not talk to, signal, communicate with or coach their teams during trial. This rule remains in force during any recess time that may occur. Performing team members may, among themselves, communicate during the trial; however, no disruptive communication is allowed. There must be no spectator or non-performing team member contact with the currently performing student team members once the trial has begun. Everyone in the courtroom shall turn off all electronic devices. Non-team members, alternate team members, teachers, and coaches must remain outside the bar in the spectator section of the courtroom. Only team members participating in this round may sit inside the bar. The Presiding Judge may vary this rule in the MiniMock, e.g. allowing parents to sit in the jury box.
Rule 17.
Viewing a Trial (Not applicable to the MiniMock)
Team members, alternates, coaches, teacher-sponsors, and any other persons directly associated with a mock trial team, except those authorized by the Coordinator, are not allowed to view other teams in competition, so long as their team remains in the competition.
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Rule 18.
Videotaping, Photography, Media
Videotaping, tape recording, still photography or media coverage may be allowed with the agreement of both teams and the Presiding Judge in any trial.
C.
Judging and Team Advancement (Not applicable to MiniMock) Rule 19.
Decisions
All decisions of the judging panel are FINAL.
Rule 20.
Composition of Panel
The judging panel will consist of three individuals: one presiding judge, one attorney judge, and one educator/community member judge. All three shall score teams using ballots. All judges receive the mock trial case materials, a memorandum outlining the case, orientation materials, and a briefing in a judges’ orientation. During the final championship round of the state competition, the judges' panel may be comprised of more than three members at the discretion of CLASSROOM LAW PROJECT.
Rule 21.
Ballots
The term “ballot” refers to the decision made by a scoring judge as to which team won the round. Each judge completes his or her own ballot with a number between 1 (poor) and 10 (excellent) less penalty points, for each team. Ties are not allowed. The team that earns the highest points on an individual judge’s ballot is the winner of that ballot. The team that receives the majority of the three ballots wins the round. The points shall not be announced during the competition. A sample ballot is included in the Appendix.
Rule 22.
Team Advancement
Teams will be ranked based on the following criteria in the order listed: 1. Win/Loss record - equals the number of rounds won or lost by a team; 2. Total number of ballots - equals the number of scoring judges’ votes a team earned in preceding rounds; 3. Total number of points accumulated in each round; 4. Point spread against opponents - The point spread is the difference between the total points earned by the team whose tie is being broken less the total points of that team’s opponent in each previous round. The greatest sum of these point spreads will break the tie in favor of the team with the largest cumulative point spread.
Rule 23.
Power Matching/Seeding
A random method of selection will determine opponents in the first round. A power-match system will determine opponents for all other rounds. The schools emerging with the strongest record from the three rounds will advance to the state competition and final round. The firstplace team at state will be determined by ballots from the championship round only. Power-matching provides that: 1. Pairings for the first round will be at random;
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2. All teams are guaranteed to present each side of the case at least once; 3. Brackets will be determined by win/loss record. Sorting within brackets will be determined in the following order (1) win/loss record; (2) ballots; and (3) total presentation points. The team with the highest number of ballots in the bracket will be matched with the team with the lowest number of ballots in the bracket; the next highest with the next lowest, and so on until all teams are paired; 4. If there is an odd number of teams in a bracket, the team at the bottom of that bracket will be matched with the top team from the next lower bracket; 5. Teams will not meet the same opponent twice; 6. To the greatest extent possible, teams will alternate side presentation in subsequent rounds. 7. Bracket integrity in power matching will supersede alternate side presentation. Competition Coordinators in smaller regions (generally fewer than eight teams) have the discretion to modify power matching rules to create a fairer competition.
Rule 24.
Merit Decisions
Judges are not required to make a ruling on the legal merits of the trial. However, during the critiquing process, judges may inform students of a hypothetical verdict. Judges shall not inform the teams of score sheet results.
Rule 25.
Effect of Bye/Default or Forfeiture
A “bye” becomes necessary when an odd number of teams compete in a region. The byes will be assigned based on a random draw. For the purpose of advancement and seeding, when a team draws a bye or wins by default, that team will be given a win and the average number of ballots and points earned in its preceding trials. A forfeiting team will receive a loss and points totaling the average received by the losing teams in that round. If a trial cannot continue, the other team will receive a win and an average number of ballots and points received by the winning teams in that round.
D.
Dispute Settlement (Not applicable to MiniMock) Rule 26.
Reporting Rules Violation – Inside the Bar
At the conclusion of the trial round, the presiding judge will ask each side if it needs to file a dispute. If any team has serious reason to believe that a material rules violation has occurred including the Code of Ethical Conduct, one of its student attorneys shall indicate that the team intends to file a dispute. The student attorney may communicate with co-counsel and student witnesses before lodging the notice of dispute or in preparing the form, found in the Appendix, Rule 26 form. At no time in this process may team sponsors or coaches communicate or consult with the student attorneys. Only student attorneys may invoke dispute procedure. Teams filing frivolous disputes may be penalized.
Rule 27.
Dispute Resolution Procedure
The presiding judge will review the written dispute and determine whether the dispute deserves a hearing or should be denied. If the dispute is denied, the judge will record the reasons for this, announce her/his decision to the Court, and retire along with the other judges to complete the scoring process.
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If the judge determines the grounds for the dispute merit a hearing, the form will be shown to opposing counsel for their written response. After the team has recorded its response and transmitted it to the judge, the judge will ask each team to designate a spokesperson. After the spokespersons have had time (five minutes maximum) to prepare their arguments, the judge will conduct a hearing on the dispute, providing each team’s spokesperson three minutes for a presentation. The spokespersons may be questioned by the judge. At no time in this process may team sponsors or coaches communicate or consult with the student attorneys. After the hearing, the presiding judge will adjourn the court and retire to consider her/his ruling on the dispute. That decision will be recorded in writing on the dispute form, with no further announcement.
Rule 28.
Effect of Violation on Score
If the presiding judge determines that a substantial rules violation or a violation of the Code of Ethical Conduct has occurred, the judge will inform the scoring judges of the dispute and provide a summary of each team’s argument. The judges will consider the dispute before reaching their final decisions. The dispute may or may not affect the final decision, but the matter will be left to the discretion of the scoring judges. The decisions of the judges are FINAL.
Rule 29.
Reporting Rules Violation – Outside the Bar
Charges of ethical violations that involve people other than student team members must be made promptly to a competition coordinator, who will ask the complaining party to complete a dispute form, found in the Appendix, Rule 30 form. The form will be taken to the coordinator’s communication center, where the panel will rule on any action to be taken regarding the charge, including notification of the judging panel. Violations occurring during a trial involving students competing in a round will be subject to the dispute process described in Rules 26-28.
VII.
RULES OF PROCEDURE
A.
Before the Trial Rule 30.
Team Roster
Copies of the Team Roster Form (see appendix) must be completed and duplicated by each team prior to arrival at the courtroom for each round. Before beginning a trial, the teams shall exchange copies of the Team Roster Form. Witness lists should identify the gender of each witness so that references to them can be made correctly.
Rule 31.
Stipulations
Stipulations shall be considered part of the record and already admitted into evidence.
Rule 32.
The Record
No stipulations, pleadings, or jury instructions shall be read into the record.
Rule 33.
Courtroom Seating
The Plaintiff team shall be seated closest to the jury box. No team shall rearrange the courtroom without permission of the judge.
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B.
Beginning the Trial Rule 34.
Jury Trial
The case will be tried to a jury; arguments are to be made to the judge and jury. Teams may address the scoring judges as the jury. Rule 35. Motions Prohibited The only motion permissible is one requesting the judge to strike testimony following a successful objection to its admission.
Rule 36.
Standing During Trial
Unless excused by the judge, attorneys will stand while giving opening statements and closing arguments, during direct and cross examinations, and for all objections.
Rule 37.
Objection During Opening Statement/Closing Argument
No objections shall be raised during opening statements or during closing arguments. Note: It will be the Presiding Judge’s responsibility to handle any legally inappropriate statements made in the closing; all judges may consider the matter’s weight when scoring.
C.
Presenting Evidence Rule 38.
Objections
1.
Argumentative Questions: An attorney shall not ask argumentative questions. Example: during cross-examination of an expert witness the attorney asks, "you aren't as smart as you think you are, are you? "
2.
Lack of Proper Foundation: Attorneys shall lay a proper foundation prior to moving the admission of an exhibit. “Proper foundation” means establishing facts that show the witness can identify and authenticate the exhibit. After the exhibit has been offered into evidence, the exhibit may still be objected to on other grounds.
3.
Assuming Facts Not In Evidence: Attorneys may not ask a question that assumes unproven facts. However, an expert witness may be asked a question based upon stated assumptions, the truth of which is reasonably supported by the evidence (sometimes called a "hypothetical question").
4.
Questions Calling for Narrative or General Answer: Questions must be reasonably specific, e.g. “Where were you on the evening of July 24? Who else was there?”, NOT “Tell us what you know about the case."
5.
Non-Responsive Answer: A witness' answer is objectionable if it fails to respond to the question asked. Warning: This objection may also apply to a witness who talks on and on unnecessarily on cross examination in an apparent attempt to run out the clock at the expense of the other team.
6.
Repetition: Questions designed to elicit testimony that repeats what has already been given may be objected to as “asked and answered”. 57
Teams are not precluded from raising additional objections so long as they are based on Mock Trial Rules of Evidence or other mock trial rules. Objections not related to mock trial rules are not permissible. Rule 39. Procedure for Introduction of Exhibits As an example, the following steps effectively introduce evidence: Note: Steps 1 - 3 introduce the item for identification. 1. Hand copy of exhibit to opposing counsel while asking permission to approach the bench. “I am handing the Clerk what has been marked as Exhibit X. I have provided copy to opposing counsel. I request permission to show Exhibit X to witness .” 2. Show the exhibit to the witness. “Can you please identify Exhibit X for the Court?” 3. The witness identifies the exhibit. But the attorney does not show it to the jury until it is admitted into evidence. Attorney may need to ask more questions to lay foundation for what the exhibit is and how the witness knows that. Note: Steps 4-8 offer the item into evidence after the witness has testified about what it is . 4. Offer the exhibit into evidence. “Your Honor, we offer Exhibit X into evidence at this time. The authenticity of the exhibit has been stipulated.” 5. Court, “Is there an objection?” If opposing counsel believes a proper foundation has not been laid or has another objection, she should be prepared to object at this time. 6. Opposing Counsel, “no, your Honor,” or “yes, your Honor, this document contains hearsay (for example).” Court, “Is there any response to the objection?” 7. Court, “Exhibit X is/is not admitted.” The attorney may then proceed to ask further questions. 8. If admitted, Exhibit X becomes a part of the evidence in the case and, therefore, is handed over to the Clerk. Do not leave the exhibit with the witness or take it back to counsel table. Note: If the exhibit is not admitted, it is not evidence in the case and may not be discussed with the jury in closing argument.
Rule 40.
Use of Notes
Attorneys may use notes when presenting their cases, though effective counsel will use them only for brief reference. Witnesses, however, are not permitted to use notes while testifying during the trial. Attorneys may consult with each other at counsel table orally or through the use of notes. NEW THIS YEAR: The use of laptops or other electronic devices is prohibited.
Rule 41.
Redirect/Re-Cross
Redirect and re-cross examinations are permitted, provided they conform to the restrictions in Rule 611(d) in the Federal Rules of Evidence (Mock Trial Version). For both redirect and recross, attorneys are limited two questions each
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Explanation: Following cross-examination, the counsel who called the witness may conduct re-direct examination. Attorneys conduct re-direct examination to clarify new (unexpected) issues or facts brought out in the immediately preceding cross-examination only; they may not bring up other issues. Attorneys may or may not want to conduct redirect examination. If an attorney asks questions beyond the issues raised on cross, they may be objected to as “outside the scope of cross-examination.” The attorneys will have to pay close attention to what is said during the cross-examination of their witnesses, so that they may decide whether it is necessary or helpful to conduct re-direct. Once redirect is finished the cross examining attorney may conduct re-cross to clarify issues brought out in the immediately preceding re-direct examination only. If the credibility or reputation for truthfulness of the witness has been attacked on crossexamination, during re-direct the attorney whose witness has been impeached may wish to “save” the witness. These questions should be limited to the damage the attorney thinks has been done and should enhance the witness’ truth telling image in the eyes of the jury. Work closely with your attorney coach on re-direct and re-cross strategies. Remember that time will be running during both re-direct and re-cross and may take away from the time needed to question other witnesses.
D.
Closing Arguments Rule 42.
Scope of Closing Arguments
Closing arguments must be based only on the actual evidence and testimony admitted in evidence during the trial; they may not discuss evidence that was ruled inadmissible or that did not come into evidence. The plaintiff delivers the first closing argument. The plaintiff ‘s closer should reserve part of the total five minutes allowed for closing for rebuttal before beginning closing argument, and the Presiding Judge should grant that reservation. The closing argument of the defense concludes the defense presentation. A good closing should: be spontaneous and synthesize what actually happened in court; it should not be an entirely prepared statement but should track case themes. be emotionally charged and strongly appealing (unlike the calm opening statement); outline the strengths of your side’s witnesses and the weaknesses of the other side’s witnesses; summarize the favorable testimony forthrightly address the evidence that hurts your side be well-organized, clear and persuasive (start and end with your strongest point); the plaintiff should emphasize that it has proven liability/negligence by a preponderance of the evidence; the defense should raise questions that show element(s) of negligence not met; the defense should raise questions about the plaintiff’s responsibility for his own damage; weave legal points of authority with the facts.
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Plaintiff should conclude the closing argument with an appeal to find the defendant liable based on the preponderance of the evidence. And the defense should say the plaintiff has failed to demonstrate liability by a preponderance of the evidence or that the plaintiff is at least 50 percent responsible for his or her injuries.
E.
Critique Rule 43.
The Critique
The judging panel is allowed 15 minutes for critiquing. The timekeeper (bailiff) will monitor the critique following the trial. Judges are to limit critique sessions to 15 minutes total (5 minutes per judge) time allotted. Note: Judges’ 15 minutes is not included in 40 minutes allotted to each side of the case.
VIII. FEDERAL RULES OF EVIDENCE – Mock Trial Version To assure each party of a fair hearing, certain rules have been developed to govern the types of evidence that may be introduced, as well as the manner in which evidence may be presented. These rules are called the “rules of evidence.” The attorneys and the judge are responsible for enforcing these rules. Before the judge can apply a rule of evidence, an attorney must ask the judge to do so. Attorneys do this by making “objections” to the evidence or procedure employed by the opposing side. When an objection is raised, the attorney who asked the question that is being challenged will usually be asked by the judge why the question was not in violation of the rules of evidence. The rules of evidence used in real trials can be very complicated. A few of the most important rules of evidence have been adapted for mock trial purposes. These rules are designed to ensure that all parties receive a fair hearing and to exclude evidence deemed irrelevant, incompetent, untrustworthy, unduly 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 evidence will probably be allowed by the judge. The burden is on the mock trial team to know the Federal Rules of Evidence (Mock Trial Version) and to be able to use them to protect their client 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. They are based on the Federal Rules of Evidence, and its numbering system. Where rule numbers or letters are skipped, those rules were not deemed applicable to mock trial procedure. Text in italics represents simplified or modified language. 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 if necessary) and to argue persuasively for the interpretation and application of the rule they think appropriate.
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Article I. General Provisions Rule 101. Scope These Federal Rules of Evidence - Mock Trial Version govern the trial proceedings of the Oregon High School Mock Trial Competition.
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 Relevant evidence is admissible, except as otherwise provided in these Rules. Irrelevant evidence is not admissible. Explanation: Questions and answers must relate to an issue in the case; this is called “relevance.” Questions or answers that do not make any fact material to an issue in the case more or less likely are “irrelevant” and inadmissible. Example: (Probably irrelevant in a traffic accident case) “Mrs. Smith, how many times have you been married?”
Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, if it confuses the issues, if it is misleading, or if it causes undue delay, wastes of time or is a needless presentation of cumulative evidence.
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, and 608.
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(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.
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 by testimony as to reputation or in the form of an opinion. On crossexamination, 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.
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 or subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
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 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 exclusions 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, negating a contention of undue delay, or proving an effort to obstruct investigation or prosecution.
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.
Rule 411. Liability Insurance (civil case only) 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.
Article VI. Witnesses Rule 601. General Rule of Competency Every person is competent to be a witness.
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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’ own testimony. This rule is subject to the provisions of Rule 703, related to opinion testimony by expert witnesses.
Rule 607. Who May Impeach The credibility of a witness may be attacked or challenged by any party, including the party calling the witness. Explanation: On cross-examination, an attorney wants to show that the witness should not be believed. This is best accomplished through a process called “impeachment,” which is done most often in mock trial by showing that the witness has contradicted her witness statement In order to impeach the witness by comparing information in the affidavit to the witness’ testimony, attorneys should use this procedure: Example: Mrs. Pollard testifies she heard a conversation at the theater in New York City on July 23. In her witness statement she said she and her husband were vacationing in Atlantic City for the month of July. Attorney: Mrs. Pollard, you told the jury on direct examination that you overheard the conversation between plaintiff and defendant in New York City on July 23, is that right? Witness: Yes Attorney: Do you recall signing a witness statement under oath in this case on February 7, 2011? Witness: Yes Attorney (to opposing counsel): Counsel, page 45, lines 16 to 19. (to the witness) Mrs. Pollard, do you recall saying in that witness statement that you and Mr. Pollard were in Atlantic City for the month of July? Witness: May I see that please? Attorney: Of course (showing the statement to the witness) Witness: Yes, it does say that here. Attorney: Thank you, Mrs. Pollard Tip: STOP THERE! You will rarely achieve anything by following up with something like “Is your memory better now than it was then?” Kicking the witness when she’s down may alienate the jury or may spur the witness to offer an explanation that takes the edge off your impeachment. The most common error on cross examination is to ask one question too many.
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. 63
(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 crossexamination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character of 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 self-incrimination with respect to matters related only to credibility.
Rule 609. Impeachment by Evidence of Conviction of Crime. (a) General rule. For the purpose of attacking the character for truthfulness of a witness, (1) evidence that a witness other than an accused been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and (2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.
Rule 610. Religious Beliefs or Opinions. Not applicable. 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) 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 relevant 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. Explanation: Cross examination follows the opposing attorney’s direct examination of his witness. Attorneys conduct cross examination to explore weaknesses in the opponent’s case, test the witness’s credibility, and establish some of the facts of the cross-examiner’s case whenever possible. Cross examination should: call for answers based on information given in witness statements or fact situation; use leading questions which are designed to get “yes” or “no” answers; never give the witness a chance to surprise the attorney; include questions that show the witness is prejudiced or biased or has a personal interest in the outcome of the case;
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include questions that show an expert witness or a lay witness who has testified to an opinion is not competent or qualified due to lack of training or experience;
Examples of proper questions include: “Isn’t it a fact that ...?” “Wouldn’t you agree that ...?” “Isn’t it true that ….?” Cross examination should conclude with: “Thank you Mr./s ______ (last name). That will be all, your Honor.” Tips: Be relaxed and ready to adapt your prepared questions to the actual testimony given during direct examination; always listen to the witness’s answer; avoid giving the witness an opportunity to re-emphasize the points made against your case during direct examination; don’t harass or attempt to intimidate the witness; and don’t quarrel with the witness. Be brief; ask only questions to which you already know the answer. Try to finish cross examination with a strong, clear question that offers the witness no chance to do anything other than agree with you. (c) Leading questions. -- Leading questions are not permitted on direct examination of a witness (except as to uncontested preliminary matters). Leading questions are permitted on cross examination. Explanation: A “leading” question is one that suggests the answer desired by the questioner, usually by stating facts and then asking the witness to agree with them. Example: “So, Mr. Smith, you took Ms. Jones to a movie that night, didn’t you?” This is an appropriate question for cross-examination but not direct or re-direct. (d) Redirect/Re-Cross. -- After cross examination, additional questions may be asked by the direct examining attorney, but questions must be limited to matters raised on cross examination. Likewise, additional questions may be asked by the cross examining attorney on re-cross, but such questions must be limited to matters raised on redirect examination and should avoid repetition. For both redirect and re-cross, attorneys are limited to two questions each. Explanation: A short re-direct examination will be allowed following cross-examination if an attorney desires, and re-cross may follow re-direct. But in both instances, questions must be on a subjects raised in the immediately preceding testimony. If an attorney asks questions on topics not raised earlier, the objection should be “beyond the scope of redirect/cross.” See Rule 41 for more discussion of redirect and re-cross.
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. Explanation: Unless a witness is qualified as an expert in the appropriate field, such as medicine or ballistics, the witness may not give an opinion about matters relating to that field. But a non-expert “lay” witness may give an opinion on his/her perceptions if it would be helpful to the jury.
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Example - inadmissible lay opinion testimony: “The doctor put my cast on wrong. That’s why I have a limp now.” (lay witness has no medical expertise) Example - admissible lay opinion testimony: “He seemed to be driving pretty fast for a residential street.” (no special expertise required for such an opinion)
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. Note: Attorneys should qualify a witness as an expert by asking questions about the witness’ education, training and experience to demonstrate the witness’ qualifications before asking for an opinion. Note: In criminal cases, witnesses, including experts, cannot give opinions on the ultimate issue of the case, that is, whether the defendant was guilty. This is a matter for the judge or jury to decide.
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. Explanation: Unlike lay witnesses who must base their opinions on what they actually see and hear, expert witnesses can base their opinions on what they have read in articles, texts, or records they were asked to review by a lawyer, or other documents that may not actually be admitted into evidence at the trial. These records or documents may include statements made by other witnesses.
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.
Article VIII. Hearsay 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. Explanation: If a witness tries to repeat what someone else has said outside of the trial, the witness is usually stopped from doing so by the hearsay rule. Hearsay is a statement made by someone other than the witness while testifying. Because the statement was made outside the courtroom, usually a long time before the trial, it is called an “out-ofcourt statement.” The hearsay rule also applies to written statements. The person who 66
made the statement is referred to as the “declarant.” Because the declarant did not make the statement in court under oath and subject to cross examination, the declarant’s statement is not considered reliable. Example: Witness testifies in court, “Harry told me the blue car was speeding.” What Harry said is hearsay because he is not the one testifying. He is not under oath, cannot be cross-examined, and his demeanor cannot be assessed by the judge or jury. Further, the witness repeating Harry’s statement might be distorting or misinterpreting what Harry actually said. For these reasons, Harry’s statement, as repeated by the witness, is not reliable and therefore not admissible. The same is true if Harry’s prior written statement was offered. Only out-of-court statements which are offered to prove what is said in the statements are considered hearsay. For example, a letter that is an out of court statement is not hearsay if it is offered to show that the person who wrote the letter was acquainted with the person who received it. But if the letter was offered to prove that what was said in the letter was true, it would be hearsay. (d) Statements which are not hearsay -- A statement is not hearsay if: (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 or a person made after perceiving the person; or Explanation: If any witness testifies at trial, and the testimony is different from what the witness said previously, the cross-examining lawyer can bring out the inconsistency. In the witnesses’ statements in the mock trial materials (considered to be affidavits), prior inconsistent statements may be found (see Impeachment Rule 607). (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 in furtherance of the conspiracy. Explanation: A statement made previously by a party (either the plaintiff or defendant) is admissible against that party when offered by the other side, although it might otherwise meet the definition of hearsay. Admissions may be found in the plaintiff’s or defendant’s own witness statements. They may also be in the form of spoken statements made to other witnesses.
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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. Example: As the car drove by Janet remarked, "wow, that car is really speeding.” (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. Example: the witness testifies, “Mary came running out of the store and said, ‘Cal shot Rob!’” (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 of belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of a declarant’s will. Example: A witness testifies, “Mary told me she was in a lot of pain and extremely angry at the other driver.” (4) Statements for purposes of medical diagnosis or treatment -- Statements made for the purpose of medical diagnosis or treatment. (6) Records of regularly conducted activity. A memorandum, report, record, or data compilation 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. (Sometimes called the “business record” exception. (21) Reputation as to character. Reputation of a person's character among associates or in the community.
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. Example: A police report (which is an out of court statement) contains a notation written by the officer, “Harry told me the blue car was speeding.” The report might be admissible as a business record but Harry’s statement within the report is hearsay (unless it was an excited utterance).
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IX.
NOTES TO JUDGES
A.
Note to Judges
To ensure that the mock trial experience is the best it can be for students, please familiarize yourself with the case materials as well as the rules of the MiniMock trial. Mock trial rules sometimes differ with what happens in a court of law. Particular attention should be paid to the simplified rules of evidence. The students have worked hard for many months and will be disappointed if judges are not familiar with the rules and case materials. Please note that mock trial differs from a real trial situation in the following ways: 1.
Students are prohibited from making objections or using trial procedures not listed in the mock trial materials. Students should request a bench conference (to be held in open court from counsel table) if they think the opposing attorneys are using procedures outside the rules.
2.
Students are limited to the information in the witness statements and fact situation. If a witness invents information, the opposing attorney may object on the grounds that the information is beyond the scope of the mock trial materials. The presiding judge may request a bench conference (to be held in open court from counsel table) and ask the students to find where the information is included in the case materials.
3.
Bailiffs are the official timekeepers. The defense team is responsible for providing the bailiff (plaintiff/prosecution provides the clerk). Bailiffs time all phases of the trial including the 15-minute judges' critique (5 minutes per judge).
4.
Students have been instructed to address their presentations to the judge and jury. The students will address the presiding judge as the judge in the case and the other judges as jurors since they are in the jury box.
5.
Each trial round should be completed within two hours. To keep the MiniMock on schedule, please keep within the time limits set out in Rule 12. Do not allow judges’ critiques go overtime.
Each courtroom will be assigned a panel of three judges: The presiding attorney will sit at the bench and will be responsible for conducting the trial, including ruling on objections. The other two judges will sit in the jury box and will have primary responsibility for evaluating and scoring student performances. The judging panel will usually be comprised of two representatives from the legal field and one educator or community representative.
B.
Introductory Matters
The presiding judge should handle the following introductory matters prior to the beginning of the trial: 1.
Ask each side if it is ready for trial. Ask each side to provide each judge with a copy of its Team Roster. Ask each member of a team to rise and identify himself/herself by name and role. Students are to identify their team by their assigned letter designation and not by school name. 69
2.
If video or audio recorders are present, inquire of both teams whether they have approved the taping of the round.
3.
Ask if there are people present in the courtroom who are connected with other schools in the competition (other than the schools competing in this courtroom). If so, they should be asked to leave. They may contact the sponsor's communication center to determine the location of the courtroom in which their school is performing.
4.
Remind spectators of the importance of showing respect for the competing teams. Silence electronic devices. Judges may remove spectators who do not adhere to appropriate courtroom decorum.
5.
Remind teams that witnesses are permitted to testify only to the information in the fact situation, their witness statements, and what can be reasonably inferred from the information.
6.
Remind teams that they must complete their presentations within the specified time limits. The bailiff will signal you as the time for each segment of presentation runs out (3 and 1 minute warning and then 0 minute cards will be held up). At the end of each segment you will be stopped when your time has run out whether you are finished or not.
7.
All witnesses must be called.
Finally, before you begin, indicate that you have been assured that the Code of Ethical Conduct has been read and will be followed by all participants including the teams before you. Should there be a recess at any time during the trial, the communication rule (see third paragraph of Code of Ethical Conduct) shall be in effect. If there are no other questions, begin the trial.
C.
Tips for Critiquing
Try not only to praise students but also to provide comments to help them improve. Each judge should offer a few comments. Providing one useful comment to a student is better than a generic, “well done” to all. Because it is impossible for each of the three judges to offer comments to every team member within the 15-minute debrief time allotted, it is recommended that judges divide the team members among the themselves so that every team member gets at least one comment but the critique time is honored: the educator judge should critique the witnesses, bailiff, and clerk; the presiding judge should critique on trial strategy and overall presentation; and the other judge should critique the attorneys. Suggested critique might include comments such as: "The content of your opening statement laid a clear strategy for your case – well done. A little more volume and it would have been even better." or "You asked good, specific questions on direct that went to the heart of your team’s strategy – that made you and your team look great. Be ready to defend your questions when objections are made."
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The bailiff shall time the critique. Critique is limited to 15 minutes total – five minutes per judge. When the bailiff holds up the "0" minutes card, the critique is over. Once the critique has concluded, the presiding judge should make certain that the courtroom is cleaned before the teams are dismissed.
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APPENDICES
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Notes:
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Often Used Objections in Suggested Form Note: This exhibit is provided to assist students with the proper form of objections. It is NOT a comprehensive list of all objections. Permissible objections are those related to a rule in the mock trial material (examples below). Impermissible objections are those not related to mock trial rules (example: hearsay based on business records exception). That is to say, an objection must be based on a rule found in the Mock Trial materials, not additional ones even if they are commonly used by lawyers in real cases. The following objections are often heard in mock trials but do not represent an exhaustive list. Note: Objections during the testimony of a witness will be permitted only by the direct examining and cross-examining attorneys for that witness. 1. Leading Question (see Rule 611) Objection: "Objection, Your Honor, counsel is leading the witness." (Opposing Attorney) Response: "Your Honor, leading is permissible on cross-examination," or "I'll rephrase the question." For example, the question would not be leading if rephrased as: "Mr. Smith, where did you and Ms. Jones go that night?" (This does not ask for a yes or no answer.) 2. Relevance (see Rule 402) Objection: "Your Honor, this question is irrelevant to this case." Response: "Your Honor, this series of questions will show that Mrs. Smith's first husband was killed in an auto accident, and this fact has increased her mental suffering in this case." 3. Hearsay (see Rules 801, 802, 803, 805) Objection: "Objection, Your Honor, this is hearsay." Response: "Your Honor, this is an exception/exclusion to the hearsay rule.” (Explain applicable provisions.) 4. Personal Knowledge (see Rule 602) Objection: "Your Honor, the witness has no personal knowledge of Harry's condition that night." Response: "The witness is just generally describing her usual experience with Harry." 5. Opinions (see Rule 701) Objection: "Objection, Your Honor, the witness is giving an opinion." Response: "Your Honor, the witness may answer the question because ordinary persons can judge whether a car is speeding." 6. Outside the Scope of Mock Trial Materials/Rules (see Rule 4) Objection: "Objection, Your Honor. The witness is testifying to information not found in the mock trial materials." Response: “The witness is making a reasonable inference.” The presiding judge may call a bench conference for clarification from both attorneys.
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Team Roster – Coordinator’s Copy Please provide one copy to competition Coordinator at student orientation School Name
Team Letter Code OPENING
Plaintiff
Direct
Defense
Witness Scott Walker, Plaintiff
Cross
T.J. Walker
Dr. Sandy Turner
Cross
Direct Tanya Brewster, Defendant
Carl Newhouse
Terry Bottner
Plaintiff
CLOSING Defense
Clerk
Bailiff
Coaches (include addresses)
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TEAM ROSTER – PLAINTIFF SIDE Please provide each judge with a copy when representing the Plaintiff Team Letter Code OPENING STATEMENT
Plaintiff’s attorney
Witness
Direct
Cross
Scott Walker, Plaintiff
T.J. Walker
Dr. Sandy Turner
Cross
Direct Tanya Brewster, Defendant
Carl Newhouse
Terry Bottner
CLOSING
Plaintiff’s attorney
Clerk
General Comments
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TEAM ROSTER – DEFENSE SIDE Please provide each judge with a copy when representing the defendant Team Letter Code OPENING STATEMENT
Direct
Witness Scott Walker, Plaintiff
Defendant’s attorney
Cross examination
T.J. Walker
Dr. Sandy Turner
Cross
Direct examination Tanya Brewster, Defendant Carl Newhouse
Terry Bottner
CLOSING ARGUMENTS
Defendant’s attorney
Bailiff
General Comments
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Time Sheet Plaintiff/Pros.—Team Code
v.
Defense—Team Code
Opening Statement: 5 minutes per side P
5 minutes
minutes used
D
5 minutes
minutes used
Plaintiff/Pros.: Start Witness #1:
Direct/Re-direct—20 minutes total time used
20 minutes less
minutes minutes unused
Witness #2:
time used
less
minutes minutes unused
Witness #3:
time used
less
minutes minutes unused
Defense:
Cross/Re-cross—10 minutes total
Start P witness #1
time used
10 minutes less
P witness #2
time used
less
minutes minutes unused minutes minutes unused
P witness #3
time used
less
minutes minutes unused
Defense: Start D witness #1:
Direct/Re-direct—20 minutes total time used
20 minutes less
minutes minutes unused
D witness #2:
time used
less
D witness #3:
time used
less
minutes minutes unused minutes minutes unused
Plaintiff/Pros.: Start D witness #1
Cross/Re-cross—10 minutes total time used
10 minutes less
minutes minutes unused
D witness #2
time used
less
minutes minutes unused
D witness #3
time used
less
minutes minutes unused
Closing Argument: 5 minutes per side
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Plaintiff/Pros. time used
less
minutes minutes left for rebuttal
Defense Judges' Debrief:
time used
less
minutes
15 minutes total
minutes used
79
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