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CONSTITUTIONAL RIGHTS FOUNDATION
PEOPLE
v.
KENDALL
Vehicular Manslaughter and Illegal Contest of Speed
Featuring a pretrial argument on the
First Amendment: Freedom of symbolic speech and right of association
Co-Sponsored by:
California Department of Education
State Bar of California
California Young Lawyers Association
Daily Journal Corporation
OFFICIAL MATERIALS FOR
THE CALIFORNIA MOCK TRIAL PROGRAM
ACKNOWLEDGMENTS
Developed by:
Marshall Croddy, Director of Programs and Materials Development
Keri Doggett, Senior Program Director
William C. Hayes, Senior Writer and Editor
Laura L. Wesley, Director of Law Programs
Damon Huss, Research Attorney and Writer
Reviewers:
Marvin Awbrey, Fresno Unified School District
George F. Bird Jr., Esq., Torrance
Michael Concha, Esq., Los Angeles
Carla Garrett, Esq., Contra Costa
Honorable Joe Hernandez, Riverside Superior Court
Marshall P. Horowitz, Esq., Los Angeles
Sharon Matsumoto, Esq., Los Angeles
Pamela J. McFarland, Esq., Fresno
Justice Nathan Mihara, California Court of Appeal, Sixth District
Justice Steven Z. Perren, California Court of Appeal, Second District
Commissioner Ron Rose, Los Angeles Criminal Court
Commissioner Ross Klein, Downey Superior Court
Michael Tiktinsky, Napa
Professor Paul Von Blum, Esq., UCLA
Special Thanks to:
Louis Eatman, CRF President
Andrew Costly, Production Manager
Todd Clark, CRF Executive Director
Bruce Williams, Program Assistant
Sylvia Andresantos, Program Coordinator
Cover Drawing: Beatrice Guo, Santa Clara County, Winner 2004 State Mock Trial Courtroom Art Contest
Participating California Counties for 2004–2005
Alameda
Los Angeles Riverside
Santa Barbara
Butte
Madera
Sacramento
Santa Clara
Contra Costa Marin
San Benito
Santa Cruz
El Dorado
Mendocino San Bernardino
Shasta
Fresno
Monterey
San Diego
Solano
Imperial
Napa
San Francisco
Stanislaus
Inyo
Nevada
San Joaquin
Tulare
Kern
Orange
San Luis Obispo
Ventura
Kings
Placer
San Mateo
Yolo
The California Mock Trial competition is a program of Constitutional Rights Foundation and is cosponsored by the California Department of Education, State Bar of California, the California Young
Lawyers Association, and the Daily Journal Corporation.
Copyright 2004, Constitutional Rights Foundation. All Constitutional Rights Foundation publications,
including these Mock Trial materials, are protected by copyright. However, we hereby grant to all
recipients a license to reproduce pages 5–8 and 41 for distribution to students and educators.
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TABLE OF CONTENTS
Program Objectives ..................................................................................................................... 4
Code of Ethics............................................................................................................................... 4
Classroom Materials .................................................................................................................. 5
Lesson—Street Racing as a Crime ................................................................................. 5
Introduction to 2004–2005 California Mock Competition...................................................... 9
Fact Situation ............................................................................................................................ 10
Charges............................................................................................................................. 13
Evidence........................................................................................................................... 13
Stipulations ...................................................................................................................... 13
Pretrial Motion Procedures....................................................................................................... 14
Motion and Constitutional Issue ...................................................................................... 14
Arguments........................................................................................................................ 15
Sources............................................................................................................................. 15
Legal Authorities.............................................................................................................. 16
Caneville Control Of Illegal Racing Clubs Ordinance………………………………….23
Witness Statements .................................................................................................................... 25
Physical Evidence—Official Diagram...................................................................................... 41
The Form and Substance of a Trial.......................................................................................... 42
Team Role Descriptions ............................................................................................................. 43
Procedures for Presenting a Mock Trial Case ......................................................................... 46
Diagram—“A Typical Courtroom” .......................................................................................... 51
Mock Trial Simplified Rules of Evidence ................................................................................ 52
Allowable Evidentiary Objections ................................................................................... 52
Summary of Allowable Objections for the 2004–2005 Mock Trial................................. 59
Law-Related Material From Constitutional Rights Foundation……………………………60
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PROGRAM OBJECTIVES
For the students, the Mock Trial program will:
1.
Increase proficiency in basic skills (reading and speaking), critical-thinking skills (analyzing
and reasoning), and interpersonal skills (listening and cooperating).
2.
Develop an understanding of the link between our Constitution, our courts, and our legal
system.
3.
Provide the opportunity for interaction with positive adult role models in the legal
community.
For the school, the program will:
1.
Provide an opportunity for students to study key legal concepts and issues.
2.
Promote cooperation and healthy academic competition among students of varying abilities
and interests.
3.
Demonstrate the achievements of young people to the community.
4.
Provide a hands-on experience outside the classroom from which students can learn about
law, society, and themselves.
5.
Provide a challenging and rewarding experience for teachers.
CODE OF ETHICS
At the first meeting of the Mock Trial team, this code should be read and discussed by students
and their teacher.
All participants in the Mock Trial competition must follow all rules and regulations as specified in
the California Mock Trial materials or disseminated by CRF staff. Failure of any member or
affiliate of a team to adhere to the rules may result in disqualification of that team.
All participants also must adhere to the same high standards of scholarship that are expected of
students in their academic performance. Plagiarism* and scouting of any kind is unacceptable.
Students’ written and oral work must be their own.
In their relations with other teams and individuals, students must make a commitment to good
sportsmanship in both victory and defeat.
Encouraging adherence to these high principles is the responsibility of each team member and
teacher sponsor. Any matter that arises regarding this code will be referred to the teacher sponsor
of the team involved.
*Webster’s Dictionary defines plagiarism as, “to steal the words, ideas, etc. of another and use
them as one’s own.”
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2004–2005 CALIFORNIA MOCK TRIAL PROGRAM
Each year, Constitutional Rights Foundation creates the Mock Trial case, which addresses serious
matters facing young people today. By affording students an opportunity to wrestle with large
societal problems within a structured forum, we strive to provide a powerful and timely educational
experience. It is our goal that students will conduct a cooperative, vigorous, and comprehensive
analysis of these materials with the careful guidance of teachers and coaches.
The lessons and resources included in this packet offer schools and teachers additional methods to
expand and deepen the educational value of the Mock Trial experience. We encourage all
participants to share these resources with their colleagues for implementation in the classroom. We
hope that by participating in the lesson and the Mock Trial program, students will develop a greater
capacity to deal with the many important issues identified in People v Kendall.
CLASSROOM MATERIALS
The following lesson highlights topics related to People v. Kendall.
In this lesson, students examine drag racing, its dangers, and possible solutions to curb the sudden
rise in illegal street racing. Through the activity, students will assess the effectiveness of various
proposed solutions to the problem of illegal street racing and apply them to hypothetical situations.
Lesson
Street Racing as a Crime
The jury of seven women and five men emerged from the jury room. They had deliberated among
themselves for 11 hours before reaching a verdict in an unusual murder case. It was, in fact, the first
case of its kind in the state of California.
The defendants in the case were Lawrence Calhoun, age 29, and George Waller Jr., age 32. They
were enthusiastic street racers, but that enthusiasm took a dark turn on October 6, 2002. The two
men raced each other down San Diego’s Imperial Avenue, a busy thoroughfare.
The men reached speeds of almost 90 miles per hour. Sadly, a 19-year-old college woman attempted
a left-hand turn in front of the speeding cars. It was just after sunset, but Waller did not have his
headlights on. Waller’s vehicle collided with the woman’s, nearly tearing the car in two. Both the
woman and her 19-year-old boyfriend, were killed. The boyfriend’s younger brother suffered severe
brain damage. A passenger in Calhoun’s vehicle was also injured.
The district attorney prosecuted Waller and Calhoun for second-degree murder under the theory of
implied malice. Under this theory, prosecutors did not have to prove that the street racers intended to
kill anyone, but only that the two men appreciated the risk of fatality from racing and proceeded to
race anyway. It was the first time street racers had been tried for murder in California.
The defense attorneys argued that the men did not appreciate the risk of death and asked the jury to
find the men guilty of the lesser crime of vehicular manslaughter. To support this argument, evidence
showed that the men attended legal drag races, but were not educated about the risk of death
involved in street racing. George Waller testified that his car was in good shape and that he was a
good driver who could handle his vehicle at high speeds.
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On May 19, 2003, the jury returned its verdict. The jury decided that the defendants did not
comprehend the danger of racing, so it found them guilty of the lesser charge of manslaughter.
Waller was sentenced to six years in prison. Calhoun, who left the scene and hid from police,
received nine years in prison.
Since 1959, California has outlawed contests of speed outside of lawful arenas. In that year, Roger
Joseph Harvill, a minor, was convicted of participating in such a contest and had his license
suspended for three months. In In re Harvill, 168 Cal. App. 2d 490 (1959), the California Court of
Appeal held that a traffic officer had presented sufficient evidence for the court to reasonably infer
that the defendant had “revved up” his engine and sped at 55–60 miles per hour.
Five years later, the Court of Appeal in People v. Grier, 226 Cal. App. 2d 360 (1964), held that it
was for the trier of fact (the jury) to determine from the evidence whether a defendant intended to
exhibit the speed of a vehicle for others. Evidence of the defendant’s car peeling out (the screeching
of tires upon acceleration) in a highly populated area of the city was enough evidence for a jury to
infer the defendant’s intent even though he did not actually know whether observers were present.
This case is still good law in California.
Dangers of Street Racing
Not all drag racing is deadly or unreasonably dangerous. In the 1950s, drag racer Wally Parks and
other fans of the sport created the National Hot Rod Association (NHRA) to promote safe standards
in racing. To combat the spread of illegal street racing, NHRA members traveled across the United
states on a “Safety Safari” to inform car clubs of ways to avoid endangering themselves and
bystanders by setting up fair races in places such as abandoned airport runways. The organization has
conducted many other safety campaigns, and it still exists to set standards for legal racing.
Unfortunately, recent statistics show that illegal street racing remains a serious threat to public
safety. According to the National Highway Traffic Safety Administration, in 2001, police listed street
racing as a factor in 135 fatal automobile accidents, almost double that of the previous year. This
same agency also reports that motor-vehicle accidents are the leading cause of death for people
between the ages of 16 and 20.
Some states have notably worsening problems. In Florida, for example, the Department of Highway
Safety and Motor Vehicles reported 28 accidents related to illegal street racing in 2000, 39 in 2001,
and 48 in 2002.
Similarly, in California, the Office of Traffic Safety reports that more than 800 citations for illegal
contests of speed were issued in 2001. As noted above, San Diego had an especially lethal problem
of street racing—16 deaths and 31 injuries in 2001. The California Legislature described San Diego
as experiencing an “epidemic” of street racing.
What Should Be Done?
Some point to the media for fueling American culture’s fascination with the car, a fascination that in
turn leads to teenage death from speeding. Films such as Rebel Without a Cause (1955) and
American Graffiti (1973) romanticized drag racing for many. The recent craze, however, has been
attributed to The Fast and The Furious (2001), a major box office success, which depicted an illegal
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drag-racing subculture. Some law enforcement officials found that this film, in particular, influenced
impressionable youth, because it did not adequately present the dangers of street racing.
Others, however, do not see the media as causing any increase in street racing. They believe the
media merely reflect popular culture. Some believe that human beings have always engaged in racing
in one form or another. Today, a person can buy a fast car from a car dealer, enhance a car’s engine
with a “turbocharger,” or use nitrous oxide fuel that turns vehicles into high-performance dragsters.
With this potential for speed, they argue, some races will take place. They believe the best solution is
to provide places where drag racing can occur legally and safely.
Others think that law enforcement must crack down on illegal racers and spectators. They believe
they should be prosecuted to the full extent of the law and their cars confiscated. Such a crackdown,
they believe, will put an end to any epidemic of drag racing.
For Discussion
1.
Why do you think that the jury did not convict the defendants of second-degree murder in the
case of two victims in San Diego, who were killed by illegal drag racers? Do you agree with
the jury verdict? Why or why not?
2.
Nationwide, more prosecutors are charging street racers with murder when someone is killed
in an illegal race. Do you think agree that this is the proper charge? Explain.
3.
Describe the problem that illegal street racing poses.
4.
What do you think should be done to stop illegal drag racing?
Activity: Looking for Solutions to the Problems of Street Racing
In this exercise, students will assess the effectiveness of various proposed solutions to the problem of
illegal street racing. (If the proposal listed has actually been implemented by a state or municipality,
it is noted in parentheses.)
A. Divide the class into groups of four. Each group shall discuss the strengths and weaknesses of
each proposal. One member of the group should be a recorder who will keep notes of those
strengths and weaknesses.
1. Local government shall declare that vehicles used in illegal contests or exhibitions of speed
are nuisances and subject to being impounded. The registered legal owner of such a vehicle
may request a hearing to determine the validity of the impounding. (San Diego, California)
2. Because illegal street racing is often done as an exhibition of speed, onlookers at such races
shall be charged with a misdemeanor for being a spectator at an illegal race. (Los Angeles
County)
3. Local government shall install speed bumps on industrial streets that have been frequently
used by illegal drag racers. (Ontario, California)
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4. Local government shall close off industrial streets entirely to outside traffic. (Ontario,
California)
5. Police shall mark curbs as “no stopping zones” in areas frequently used by illegal drag racers
to facilitate the mass impounding of vehicles. (Sun Valley, California)
6. Whenever a police officer gives a young driver a speeding ticket, the officer shall also give
that driver a free ticket to participate in legal racing at a local speedway. (Irwindale,
California)
7. Local government shall allocate funds to create programs in which young drivers may
compete at legal speedways in drag races against off-duty police officers. (San Diego,
California)
8. When a racer has been arrested for violation of state law prohibiting illegal street racing or
reckless driving, then that racer’s car shall be impounded for 30 days and the perpetrator must
pay $1,500 to retrieve the vehicle. (The state of California)
9. The sale of turbocharger devices shall be made illegal in the state unless sold by an
authorized dealer to licensed professional racers for use on legal speedways.
10. Films that depict illegal street racing shall receive a Motion Picture Association rating of “R”
regardless of the rest of the film’s content.
B.
After all proposals have been discussed, each group should:
1. Rank the proposals in order of preference from 1 to 10 (1 being the most preferred).
2. Prepare an explanation for its ranking preference.
3. Be prepared to share its rankings and rationales with the entire class.
C.
Have groups report and hold a class discussion on the proposals.
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2004–2005 MOCK TRIAL COMPETITION
This packet contains the official materials required by student teams to prepare for the 24th
Annual California Mock Trial Competition. In preparation for their trials, participants may refer to
all information included in the People v. Kendall case. The competition is sponsored and
administered by Constitutional Rights Foundation. The co-sponsors of the competition are the
California Department of Education, the State Bar of California, the California Young Lawyers
Association, and the Daily Journal Corporation.
Each participating county will sponsor a local competition and declare a winning team from the
competing high schools. The winning team from each county will be invited to compete in the state
finals in Riverside, March 18–March 20, 2005. In May 2005, the winning team from the state
competition will be eligible to represent California at the National High School Mock Trial
Championship in North Carolina.
The Mock Trial is designed to clarify the workings of our legal institutions for young people. As
student teams study a hypothetical case, conduct legal research, and receive guidance from volunteer
attorneys in courtroom procedure and trial preparation, they learn about our judicial system. During
Mock Trials, students portray each of the principals in the cast of courtroom characters, including
counsel, witnesses, court clerks, and bailiffs. Students also argue a pretrial motion. This year’s
motion has a direct bearing on the charges in the trial itself.
During all Mock Trials, students present their cases in courtrooms before actual judges and attorneys.
As teams represent the prosecution and defense arguments over the course of the competition, the
students must prepare a case for both sides, thereby gaining a comprehensive understanding of the
pertinent legal and factual issues.
Because of the differences that exist in human perception, a subjective quality is present in the
scoring of the Mock Trial, as with all legal proceedings. Even with rules and evaluation criteria
for guidance, no judge or attorney scorer will evaluate the same performance in the same way.
While we do everything possible to maintain consistency in scoring, every trial will be
conducted differently, and we encourage all participants to be prepared to adjust their
presentations accordingly. Please remember that the judging and scoring results in each trial
are final.
IMPORTANT
On a regular basis, please check the Mock Trial section of CRF's
web site to see if there are errata for People v. Kendall
(www.crf-usa.org).
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CALIFORNIA MOCK TRIAL FACT SITUATION
Caneville is located in Falcon County, California, a semi-rural area. With a population of 16,000, the
city has seen an alarming increase of illegal drag racing in recent years. The races attract small
crowds of local teenagers and young adults. Many cheer on their favorite drivers from the side of the
road, while a few others participate as starters (giving start signals) or as drivers themselves. In the
last year alone, there have been two fatalities and a number of other injuries requiring medical
attention due to incidents of illegal drag racing. There has also been significant damage to both
private and public property.
Some local residents have organized informal drag racing clubs that challenge each other to race on
Caneville’s streets. Each club identifies itself with decals that depict the club’s logo.
The City Council decided to address this deadly problem. With a unanimous vote in January 2004,
the council passed Chapter 20, called the “Caneville Control of Illegal Racing Clubs Ordinance”
(“Racing Ordinance”). The Racing Ordinance went into effect in April 2004. Notices of the pending
law were placed in the county Department of Motor Vehicles office and the high school and
community college auto-shop classes.
Under this ordinance, it is a misdemeanor for drivers to knowingly congregate with members of an
illegal racing club on Caneville’s streets. Police officers have identified about five local clubs and their
logos. The ordinance allows officers to identify a driver as a club participant by the particular logo that is
visible on the vehicle.
Vanessa Foley, age 19, enrolled at Caneville Community College in September 2003. At that time
she befriended Mo Lancaster, age 18 and the two of them signed up for an auto-shop class at the
college. Vanessa owned a two-door Stallion X2 compact sports car, an import from Europe. Mo was
known to be a drag racer, and Vanessa became interested, too. Vanessa’s brother-in-law owns and
manages a computer store in Caneville, and Vanessa requested that he design and print window
decals of a cartoon pig driving a hot rod with the words “Road Hogz” on it. He did this and provided
Vanessa with some stickers. Vanessa, Mo, and a couple of others placed the decals on their cars and
started to tell people that they were a dragster club called the Road Hogz. Vanessa and Mo had
appeared at the City Council meeting in January to speak out in opposition to the passing of the
Racing Ordinance and to recommend that the local government build a legal racetrack in Caneville.
In October 2003, Vanessa and Mo were arrested in Caneville and convicted for violation of
California Vehicle Code Section 23109, which prohibits illegal contests or exhibitions of speed.
Officer Quinn Avila of the Caneville Police Department cited Vanessa twice since 2002 for speeding
down Main Street in Caneville.
Starting in September 2003, an informal social group at the college, got together to start the
weekend, often driving across town in a “caravan” to a place called The Heavy Burger. The caravan
typically began where the college was located on the eastern end of Main Street, a two-lane road that
ran east-west through the center of Caneville. The caravan then traversed the street to the far west
end of town, where the street crossed Gardner Avenue, a four-lane road. The 80-foot wide
intersection was controlled by a traffic signal suspended above the center of the intersection by high
cables attached to electrical poles at the four corners. An auto-repair shop and gas station located on
the southwest corner belonged to Brett Williams, an auto mechanic.
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The Heavy Burger is located a mile west of this intersection in an undeveloped area of Caneville.
There are sparsely placed light poles along this mile stretch of Main Street, and there were no other
stop signs or traffic signals. It was at this intersection that drag racing often began.
Darian Kendall, age 20, is a second-year student at the college and an acquaintance of Vanessa’s
from high school. Darian had enrolled in the same auto-shop class at the college with Vanessa and
Mo. Darian owned a four-door Dimension 100 sedan with a manual transmission and an eightcylinder engine. Upon seeing Darian’s Dimension 100 for the first time at the college in September,
Vanessa made fun of it. Vanessa later told others in the group that when things cooled down after her
October arrest and December speeding violations, she would enjoy demonstrating how fast her
Stallion X2 could go.
On February 20, Vanessa picked Darian and Mo up at the college to drive them in the caravan to The
Heavy Burger. Vanessa’s Stallion X2 was in the front of the caravan. Darian sat in the backseat,
while Mo was the front passenger. The car stopped at the intersection of Gardner and Main, but
when the light turned green, Vanessa revved the engine. At that moment, Vanessa laughed and
accelerated the Stallion X2 forward to 85 mph and drove at that speed for a quarter mile.
Darian also attended a drag race as a spectator. At this race on Friday, April 23, Officer Avila came
upon the scene and arrested Vanessa Foley for illegally racing. Avila also counseled Darian, and
others on the dangers and legal consequences of street racing and then released them.
On the night of Friday, May 21, at 7:40 p.m., Darian and Robin Avery assembled in a parking lot at
the college for the usual caravan across town. Vanessa arrived with Mo as a passenger. Darian, who
was alone in the Dimension 100, led the three cars in the caravan. Robin, age 20, was second in line,
driving a Saurus, a large SUV. Vanessa’s Stallion X2 was the third and last car in the line. They
arrived at the intersection of Gardner and Main, just after sunset approximately 7:55 p.m.
When the cars stopped for the red light at Gardner, Vanessa suddenly pulled her car out of the line,
drove on the wrong side of the road, and stopped next to Darian’s sedan. Vanessa began revving the
Stallion X2’s engine. When the light turned green, both cars began to accelerate. Vanessa
immediately lost control of her vehicle. The Stallion X2 crossed the intersection and onto the
southwest corner where it struck the light pole. The car wrapped around the pole in such a way that
its hood was split in two. Mo managed to escape from the car. Vanessa, however, was pinned inside.
Flames arose from the engine.
Darian’s Dimension 100 came to a stop on the north side of Gardner Avenue, approximately 55 feet
west of the Main and Gardner intersection.
Brett Williams was at work that evening in the repair shop. As soon as the Stallion X2 collided with
the pole, Brett enlisted the help of Parker Gallo to pull Vanessa from the car. Brett ran back into the
shop to retrieve a fire extinguisher and ran back to the car with it. Brett managed to douse the flames,
but could not extract Vanessa from the car.
About five minutes later, police officer Quinn Avila, paramedics, and firefighters arrived at the
accident scene. Officer Avila calmed the small crowd that had formed and kept them safely away
from the vehicle. The firefighters extracted Vanessa from the Stallion X2, and paramedics took
Vanessa to the emergency room at Vacata Hospital, where she was pronounced dead from traumatic
head injuries. No one else had any severe injuries.
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Officer Avila took statements from witnesses at the scene. Officer Avila arrested Darian for
participating in an illegal contest of speed and arrested Mo for aiding and abetting an illegal contest
of speed.
Darian was subsequently charged with three criminal counts:
(1) vehicular manslaughter Cal. Penal Code Sec. 192;
(2) misdemeanor violation of Cal. Vehicle Code Sec. 23109; and
(3) misdemeanor violation of Chapter 20, the Racing Ordinance.
Police impounded Darian’s Dimension 100, which was subsequently missing from the impound lot
before experts could examine it.
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CHARGES
The prosecution charges Darian Kendall with three counts:
Count One: Vehicular Manslaughter (California Penal Code, Section 192)
Count Two: Illegal Exhibition of Speed, misdemeanor violation (California Vehicle Code,
Section 23109)
Count Three: Caneville Control of Illegal Racing Clubs Ordinance (Caneville City
Ordinance, Chapter 20)
PHYSICAL EVIDENCE
Only the following physical evidence may be introduced at trial. The prosecution is responsible for
bringing: A faithful reproduction of the map of the accident scene. The reproduction should be no
larger than 22 inches x 28 inches.
STIPULATIONS
Prosecution and defense stipulate to the following:
1. If the defense’s pretrial motion is granted, Count 3, violation of Caneville’s Control of Illegal
Racing Clubs Ordinance (Caneville City Ordinance, Chapter 20), will be dropped in its
entirety.
2. For purposes of the pretrial and trial, there is not an equal protection argument.
3. Caneville City Ordinance, Chapter 20, is not preempted by California Penal Code 23109.
4. There was sufficient probable cause to arrest Darian Kendall and Mo Lancaster.
5. Vanessa Foley’s car was thoroughly examined by experts (not included in the case) and it was
determined that there were no mechanical defects and the accident was caused by driver error.
6. All witness statements were taken in a timely manner.
7. All physical evidence and witnesses not provided for in the case packet are unavailable and
availability may not be questioned.
8. All witness statements were taken in a timely matter.
9. Lindsay White and Haley Salazar are qualified witness experts and can testify to each other’s
statements.
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PROCEDURES FOR THE MOCK PRETRIAL MOTION HEARING
The following procedures and recommendations provide a format for the presentation of a mock pretrial
motion.
1.
Ask your coordinator if your county will present pretrial arguments before every trial of each
round. We urge coordinators to require a pretrial motion hearing in as many rounds as possible,
both for its academic benefits and to prepare the winning team for state finals, where it will be a
required part of the competition. Performances will be scored according to the criteria included in
this packet.
2.
Prior to the opening of the pretrial motion arguments, the judge will have read the pretrial materials
provided in the case packet.
3.
Be as organized as possible in your presentation. Provide clear arguments so the judge can follow
and understand your line of reasoning.
4.
Arguments should be well substantiated with references to any of the pretrial sources provided
with the case materials and any common sense or social-interest judgments. Do not be afraid to use
strong and persuasive language.
5.
Use the facts of People v. Kendall in your argument. Compare them to facts of cases in the pretrial
materials that support your position, or distinguish the facts from cases that contradict the
conclusion you desire.
6.
Review the legal arguments to assist you in formulating your own arguments.
7.
Your conclusion should be a short restatement of your strongest arguments.
8.
NOTE: The only motion allowed for the purposes of the competition is the pretrial motion
outlined in this case packet, pages 14–24.
PRETRIAL MOTION AND CONSTITUTIONAL ISSUE
This section contains materials and procedures for the preparation of a pretrial motion on an
important legal issue. The judge’s ruling on the pretrial motion will have a direct bearing on the
charges in this trial and the possible outcome of the trial. The pretrial motion is designed to help
students learn about the legal process and legal reasoning. Students will learn how to draw analogies,
distinguish a variety of factual situations, and analyze and debate constitutional issues. These
materials can be used as a classroom activity or incorporated into a local Mock Trial competition.
The pretrial issue in this case revolves around the First Amendment’s guarantee of freedom of
speech and freedom of association. It challenges the constitutionality of the Caneville City
Ordinance, Chapter 20, also known as the Caneville Control of Illegal Racing Clubs Ordinance. The
prosecution has charged Darian Kendall with violating this ordinance because Darian had both the
illegal racing club logo on Darian’s vehicle and because Darian congregated with Vanessa and Mo,
whom Darian knew to be members of the Road Hogz.
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Although the First Amendment is a powerful protection guaranteed under the United States
Constitution, not all speech is protected. One can be held responsible for making libelous remarks
about another individual; one cannot falsely yell “fire” in a crowded theater; and one is not protected
for uttering fighting words that are likely to produce an immediate violent reaction.
The sources cited below will help you determine if Caneville’s City Ordinance, Chapter 20, is
unconstitutional. For trials in which there is no pretrial hearing, the ordinance is deemed
constitutional and the count three under the charges remains. This pretrial motion is the only
allowable motion for the purposes of the competition.
Arguments
The prosecution will argue that the ordinance is constitutional because it regulates conduct known to
be a clear and present danger to the public order and safety of Caneville. Additionally, even as
symbolic speech, the placing of illegal club logos on vehicles is the equivalent of fighting words that
incite an immediate retaliation by other drivers.
The defense will argue that the ordinance is unconstitutionally vague because it is not clear what
conduct is illegal from the ordinance. It is also overbroad because it encompasses within its scope
otherwise privileged symbolic speech, namely placing decals or logos on one’s vehicle. Also, the
defense will argue that there is no clear and present danger from the placing of logos on vehicles, but
rather from drag racing itself and from driving at speeds in excess of speed limits or reckless driving,
all of which are already illegal without the Caneville Control of Illegal Racing Clubs Ordinance.
Sources
The sources for the pretrial motion arguments consist of excerpts from the U.S. Constitution,
California Penal Code, California Vehicle Code, California Jury Instructions, edited court opinions,
Caneville City Ordinance (Chapter 20) and the Mock Trial Fact Situation.
The U.S. Constitution protects individual’s freedom of speech. But its language is subject to
interpretation. Both federal and state courts have the power to interpret the Constitution. The U.S.
Supreme Court’s holdings are binding and must be followed by California courts. The Supreme
Court decides which cases it wishes to hear. A party may request that the Supreme Court hear its
case through a petition for certiorari. When the court decides not to hear a case that is on appeal from
a lower court, it is said to have denied certiorari. The denial of certiorari should not be taken as a
comment on the lower court’s decision.
Cases from all circuits, including the Ninth Circuit, and cases from federal district courts and from
other state supreme courts, as well as legal commentary, can be used for persuasive purposes, but are
not binding on a California judge. Decisions from higher California courts (such as the California
Supreme Court) are binding on California Judges. In developing arguments for this Mock Trial, both
sides should compare or distinguish the facts in the cited cases from one another and from the facts
in People v. Kendall.
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Legal Authorities
Constitutional
U.S. Constitution, Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably
assemble, and to petition the Government for a redress of grievances.
U.S. Constitution, Amendment XIV
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the State wherein they reside. No State shall make or enforce
any law which shall abridge the privileges and immunities of citizens of the United States; nor shall
any State deprive any person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.
[NOTE: The First Amendment states that Congress may not deny the fundamental freedoms of
speech, the press, assembly, the right to petition the government, and religion. The due process
clause of the 14th Amendment extends this protection to state and local governments.]
Statutory
California Vehicle Code, Section 23109
(a) No person shall engage in any motor vehicle speed contest on a highway. As used in this section,
a motor vehicle speed contest includes a motor vehicle race against another vehicle, a clock, or other
timing device. For purposes of this section, an event in which the time to cover a prescribed route of
more than 20 miles is measured, but where the vehicle does not exceed the speed limits, is not a
speed contest.
(b) No person shall aid or abet in any motor vehicle speed contest on any highway….
(c) No person shall engage in any motor vehicle exhibition of speed on a highway, and no person
shall aid or abet in any motor vehicle exhibition of speed on any highway…
California Penal Code, Section 192
Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:
…
(c) Vehicular—
(1) …driving a vehicle in the commission of an unlawful act, not amounting to felony, and with
gross negligence; or driving a vehicle in the commission of a lawful act which might produce
death, in an unlawful manner, and with gross negligence.
(2) …driving a vehicle in the commission of an unlawful act, not amounting to felony, but without
gross negligence; or driving a vehicle in the commission of a lawful act which might produce
death, in an unlawful manner, but without gross negligence.
…
Jury Instructions
California Jury Instructions, Criminal (CALJIC 8.90)
Every person who drives a vehicle and unintentionally but unlawfully kills another human being is
guilty of the crime of vehicular manslaughter in violation of Penal Code section 192(c)[(1)][(2)]….
Section 192 (c)[(1)] requires gross negligence. Section 192 (c)[(2)] does not requiring a finding of
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gross negligence.
Federal Cases
Schenck v. United States, 249 U.S. 47 (1919)
Facts: Defendants were convicted under the Espionage Act for distributing a leaflet during the First
World War that argued against the draft. They argued that the Espionage Act violated the First
Amendment right to freedom of speech.
Issue: Is the Espionage Act constitutional?
Holding: Yes. “[I]n many places and in ordinary times,” Justice Oliver Wendell Holmes wrote for
the court, “the defendants…would have been within their constitutional rights.” However,
circumstances determine the character of every act. “The most stringent protection of free speech
would not protect a man falsely shouting fire in a theatre and causing panic.” The issue in each set of
circumstances, then, is whether the words themselves create a “clear and present danger” to the
United States, which was at war. Because the “wartime circumstances were crucial,” the convictions
were upheld.
Lanzetta v. New Jersey, 306 U.S. 451 (1939)
Facts: Defendants were convicted of violating a state statute that said: “Any person not engaged in
any lawful occupation, known to be a member of any gang consisting of two or more persons, who
has been convicted at least three times of being a disorderly person, or who has been convicted of
any crime in this or any other State, is declared to be a gangster….”
Issue: Does the term “gang” in the statute violate due process because it is so vague that persons of
common intelligence must necessarily guess at its meaning and differ as to its application?
Holding: Yes. (a) The term “gang” is vague. Its meanings, indicated in different dictionaries and in
historical and sociological writings, are numerous and varied. The court could not find that “gang”
has ever been limited in meaning to a group having the purpose to commit any particular offense or
class of crimes. The term can be properly applied to persons acting together for purposes that are
lawful. (b) The expression “known to be a member” is ambiguous. It is unclear if it means actual
membership in a gang or putative (reputed) membership. If it means actual, then the word “known”
has no significance. On the other hand, if it means putative, then there is uncertainty whether the
reputation must be general or only to specific persons. The statute does not indicate how one may
join a “gang.”
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)
Facts: One afternoon, the defendant stood on a street corner distributing leaflets for his religion. He
also gave a speech denouncing other religions as a "racket." In the process, he used profanity while
calling a listener a "racketeer" and a "fascist." Defendant was then arrested.
Issue: Is defendant's speech protected under the First Amendment?
Holding: No. The Supreme Court said that "it is well understood that the right of free speech is not
absolute at all times and under all circumstances." There are "certain well-defined" classes of speech
that state governments may restrict without raising a constitutional issue under the 14th Amendment.
"These [classes of speech] include the lewd and obscene, the profane, the libelous, and the insulting
or fighting words—those which by their very utterance inflict injury or tend to incite an immediate
breach of the peace." Fighting words are of "such slight social value as a step to truth that any benefit
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that may be derived from them is clearly outweighed by the social interest in order and morality."
Winters v. New York, 333 U.S. 507 (1948)
Facts: A bookdealer was convicted of violating a state statute that prohibited possession,
distribution, selling, etc., of books or periodicals “principally made up of criminal news, police
reports, or accounts of criminal deeds, or pictures, or stories of deeds of bloodshed, lust or crime.…”
Issue: Does the section (quoted above) violate the right of free speech and free press because it is
vague and indefinite (overbroad)?
Holding: Yes. A statute is void when it permits within its scope the punishment of actions fairly
within the protection of free speech. A statute that limits freedom of expression but that also fails to
give fair notice of what acts will be punished violates the accused’s rights under procedural due
process and freedom of speech or press. Here, the law was intended to “minimize all incentives to
crime,” but the bookdealer could not know in advance what collections of pictures and stories a
judge or jury would find criminally objectionable. Also, the court distinguished statutes prohibiting
obscenity, emphasizing that some uncertainty in statutes is permissible if the statute uses “words well
understood through long use in criminal law.”
United States v. O’Brien, 391 U.S. 367 (1968)
Facts: The defendant was arrested for burning his Selective Service registration certificate (“draft
card”) in violation of the Universal Military Training and Service Act. This act indicated that it was a
punishable offense for anyone “who forges, alters, knowingly destroys, knowingly mutilates, or in
any manner changes any such [Selective Service] certificate….”
Issue: Does the Act unconstitutionally abridge free speech?
Holding: No. The Supreme Court held that “when ‘speech’ and ‘nonspeech’ elements are combined
in the same course of conduct, a sufficiently important governmental interest in regulating the
nonspeech element can justify incidental limitations on First Amendment freedoms.” The
government’s restriction on the conduct “is sufficiently justified if it is within the constitutional
power of the Government; if it furthers an important or substantial governmental interest; if the
governmental interest is unrelated to the suppression of free expression; and if the incidental
restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of
that interest.”
Schacht v. United States, 398 U.S. 58 (1970)
Facts: Defendant wore parts of the uniform of the U.S. Army in a theatrical street skit to protest the
Vietnam War. He was convicted under a federal law, 10 U.S.C. Sec. 702, which made it a crime for
any person “without authority [to wear] the uniform or a distinctive part thereof…of any of the
armed forces of the United States….”
Issue: Was the defendant’s symbolic speech privileged conduct under the First Amendment?
Holding: Yes. In the same law, 10 U.S.C. Sec. 772(f), an exception was carved out that “[w]hile
portraying a member of [one of the armed forces], an actor in a [theatrical production] may wear the
uniform…if the portrayal does not tend to discredit that armed force.” The last line of Sec. 772(f) is a
content-based restriction on speech. "Clearly punishment for this reason would be an
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unconstitutional abridgment of freedom of speech. The final clause of Sec. 772 (f), which leaves
Americans free to praise the war in Vietnam but can send persons like Schacht to prison for opposing
it, cannot survive in a country which has the First Amendment."
Colten v. Kentucky, 407 U.S. 104 (1972)
Facts: Defendant and others were in a line of cars leaving the scene of a political demonstration. A
police officer stopped one car belonging to Mendez for having an expired license plate. The officer
ordered the defendant to leave at least five times, but the defendant did not drive away. He claimed
he wished to stay in order to arrange transportation for Mendez. The defendant was subsequently
convicted of violating a state statute, which states: “(1) A person is guilty of disorderly conduct if,
with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof,
he: …(f) Congregates with other persons in a public place and refuses to comply with a lawful order
of the police to disperse.”
Issue: Was the statute impermissibly vague or broad?
Holding: No. The underlying principle is that “no man shall be held criminally responsible for
conduct which he could not reasonably understand to be proscribed.” Here, the defendant stood in a
group of persons along a highway and attempted to engage an officer’s attention while that officer
investigated a traffic violation. That caused an “inconvenience, annoyance, or alarm” when the
defendant failed to disperse under the orders of the officer. “The root of the vagueness doctrine is a
rough idea of fairness.” The statute also “comes into operation only when the individual’s interest in
expression, judged in light of all relevant factors, is ‘miniscule’ compared to a particular public
interest in preventing expression at that time and place.” Here, the statute does not threaten the
constitutionally protected conduct of others besides the defendant because the defendant’s conduct
was not immune under the First Amendment. Therefore, the statute was not overbroad.
United States v. Grace, 461 U.S. 171 (1983)
Facts: Defendants were protesters who distributed leaflets and displayed a sign on a sidewalk
outside the U.S. Supreme Court building. A federal statute prohibited the display of a flag, banner, or
device on the grounds of the Supreme Court building.
Issue: Does this federal statute infringe on the protesters’ First Amendment right to peaceably
assemble in a public place?
Holding: Yes. The statute was unconstitutional as applied to the activity on the public sidewalks
surrounding the building, though the statute technically covered the entire grounds of the court. The
sidewalks are public forums for First Amendment purposes, like any other public sidewalks in the
Washington, D.C., area where the Supreme Court building is located.
Roberts v. United States Jaycees, 468 U.S. 609 (1984)
Facts: The Junior Chamber of Commerce (“Jaycees”) is a national nonprofit membership
corporation. Full regular membership was limited to young men only. Women were allowed
associate membership. The Minnesota Supreme Court held that the organization was a “place of
public accommodation” and therefore, under the state Human Rights Act, had to accept women as
full regular members.
Issue: Are the Jaycees allowed to discriminate against allowing women as full regular members
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under the First Amendment freedom of association?
Holding: No. The U.S. Supreme Court affirmed the Minnesota Supreme Court’s decision. There are
two types of freedom of association that are constitutionally protected. Intimate human relationships,
such as those of family and the raising of children, must be “secured against undue intrusion by the
State because of the role of such relationships in safeguarding the individual freedom that is central
to our constitutional scheme.” Likewise, there is a protected “right to associate for the purpose of
engaging in those activities protected by the First Amendment—speech, assembly, petition for the
redress of grievances, and the exercise of religion.” For the government to justifiably infringe on the
right of association, it must have a compelling interest unrelated to the suppression of ideas and must
use the means least restrictive of the freedom of association.
Texas v. Johnson, 491 U.S. 397 (1989)
Facts: During the 1984 Republican National Convention in Dallas, Johnson participated in a
political demonstration to protest the Reagan administration. After a march through city streets,
Johnson burned an American flag while protesters chanted. Johnson was convicted of violating a
Texas law forbidding desecration of venerated objects.
Issue: Was his conviction consistent with the First Amendment?
Holding: No. The court found that the flag burning was “symbolic speech.” The court noted that
when speech and non-speech elements exist, the government may regulate the conduct if it has a
strong enough reason. The court, however, rejected the reasons put forward by Texas. The flag
burning did not amount to “fighting words.” It also rejected the argument that Texas’ interest in
safeguarding the flag as our nation’s symbol justified Johnson’s conviction. The court stated: “If
there is a bedrock principle underlying the First Amendment, it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable.”
State Cases
Danskin v. San Diego Unified School District, 28 C.2d 536 (1946)
Facts: The California Civic Center Act required that school boards allow the free use of school
auditoriums, but prohibited that use by any organization that sought the overthrow of the
government. The American Civil Liberties Union sought to use such an auditorium for a meeting to
discuss the Bill of Rights. The use was denied when ACLU officials refused to sign an affidavit of
nonaffiliation with subversive political organizations.
Issue: Is the statute an unconstitutional infringement on the right of assembly?
Holding: Yes. Free speech and assembly cannot be prohibited unless they come within the rule of
clear and present danger. “[D]octrines advocating the overthrow of the government by force do not
of themselves constitute a substantial danger.…” Furthermore, “the state is…not justified in
suppressing the freedom of speech of those who happen to be members of an organization committed
to [overthrow of the government].” Since “subversive elements” were allowed to meet in other
places besides a school building, the legislature did not believe that such meetings were a clear and
present danger.
Sun Co. of San Bernardino v. Superior Court, 29 Cal. App. 3d 815 (1973)
Facts: Newspapers sought to publish names and photographs of incarcerated witnesses in a pending
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criminal case. The Superior Court of San Bernardino County issued an order prohibiting them from
doing so.
Issue: Is the court order an unconstitutional infringement on the right of free speech?
Holding: Yes. The court order restrained publication of news respecting the criminal proceeding,
and such an order constitutes censorship. There is a heavy presumption that censorship violates the
First Amendment. Before a trial court may issue such an order, the published news must constitute a
“clear and present danger” to the administration of justice. “[T]he clear-and-present-danger test is an
oversimplified judgment unless it takes account…[of] other factors: the relative seriousness of the
danger in comparison with the value of the occasion for speech or political activity; the availability
of more moderate controls than those which the state has imposed; and perhaps the specific intent
with which the speech or activity is launched.” Therefore, the court order was improper.
People v. Acuna, 14 Cal. 4th 1090 (1997)
Facts: The city of San Jose got a preliminary injunction issued. The injunction named the defendants
as individual members of a criminal street gang, and prohibited them from “[s]tanding, sitting,
walking, driving, gathering or appearing anywhere in public view with any other defendant…or with
any other known ‘VST’…or ‘VSL’…member,” within a four-square-block neighborhood.
Issues: Is the preliminary injunction invalid because it (a) infringes on the defendants’ First
Amendment right of association and (b) is vague or overbroad?
Holdings: (a) No. The Constitution does not recognize a “generalized right of ‘social association’.”
There are two associations that enjoy First Amendment protection. First, there are those with
“intrinsic” or “intimate” value, e.g., marriage, the raising and education of children, and cohabitation
with relatives. Second, there are those that are “instrumental” to forms of religious and political
expression and activity. The street gangs’ conduct fails to qualify as either protected form of
association. In addition, freedom of association “does not extend to joining with others for the
purpose of depriving third parties of their lawful rights.” (b) No. The overbreadth doctrine requires a
finding of “a realistic danger that [a statute] itself will significantly compromise recognized First
Amendment protections of parties not before the Court.” With regard to speech claims, there is a
constitutionally significant difference between injunctions and statutes. An injunction lacks the
“broad and abstract commands of a statute.” Therefore, an injunction will not have the “chilling
effect” on protected conduct that a statute would have, because the only parties subject to it are
named parties to the court action. Also, terms of an ordinance (or injunction) are not impermissibly
vague “when the purpose clause of the ordinance is considered and the terms are read in that context
as they should be.” With respect to the term “known,” no more than a reasonable degree of certainty
can be demanded. The element of knowledge is fairly implied in the injunction.
In re Englebrecht, 67 Cal. App. 4th 486 (1998)
Facts: A preliminary injunction against the “Posole” street gang prohibited its members from “(a)
[s]tanding, sitting, walking, driving, bicycling, gathering or appearing anywhere in public view with
any other defendant herein, or with any other known Posole member.…” It also prohibited them
from “(n)[u]sing or possessing pagers or beepers in any public place.…” Defendant was arrested for
violating subsection (a), and at the police station, officers found a pager in his possession, violating
subsection (n).
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Issues: Is subsection (a) of the injunction vague or overbroad? Is subsection (n) vague or overbroad?
Holdings: Subsection (a) is neither vague nor overbroad, following the reasoning of Acuna. In
addition, the “target area” of the injunction in this case is larger than the “four-square-block” of
Acuna. Nonetheless, relative size is not determinative, and the injunction specifically and narrowly
describes the target area within legal requirements (i.e., no more than necessary to abate the public
nuisance). Subsection (n) pertaining to pagers and beepers is overbroad, however. Cell phones,
beepers, and pagers are analogous to the telephone, which has traditionally been an essential tool for
disseminating speech. Any regulation of phone use must be narrowly tailored so that it does not
proscribe a substantial amount of speech. The injunction here proscribes the possession of all pagers
and beepers within the target area, including those that may have a legitimate communication
function.
People v. Englebrecht, 88 Cal. App. 4th 1236 (2001)
Facts: Same facts as In re Englebrecht. Specifically, subsection (s) of the injunction proscribed gang
members from “[u]sing words, phrases, physical gestures, or symbols commonly known as hand
signs which describe [the gang]; such as: placing the thumb and any other finger together to form an
‘O’ and extending any other finger or fingers to form a ‘P’.…” Also, subsection (t) proscribes
“[w]earing clothing which bears the name or letters that spell out the name of the gang…such as
spelling combinations and acronyms listed.”
Issue: Do subsections (s) and (t) violate the First Amendment by proscribing speech merely because
of disapproval of the ideas expressed?
Holding: No. A content neutral statute need only be narrowly tailored to serve a significant
governmental interest, leaving open alternative channels of communication. First, the subsections are
content neutral. The state did not prohibit the gang communications because it disapproved with the
content of the communications. Instead, the injunction was a response to a pattern of criminal
conduct in the target area that amounted to a public nuisance. The hand signs and symbols
contributed to that nuisance. Second, the injunction burdens no more speech than is necessary to
serve a significant governmental interest. The court “fairly read both sections ‘s’ and ‘t’ [to] mean to
enjoin the conscious expression of gang affiliation, support and allegiance.” If the defendant had
unintentionally formed the hand sign, or had worn a football jersey in a football game bearing one of
the numbers prohibited by the injunction, then he would not have violated the injunction. Therefore,
the subsections are not overly broad.
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Chapter 20. CANEVILLE CONTROL OF ILLEGAL RACING CLUBS ORDINANCE
Legislative findings and declarations. The City Council of Caneville (“Council”) hereby
recognizes that it is the right of every person, regardless of race, color, creed, religion, national
origin, gender, age, sexual orientation, or disability to be protected from physical harm caused by the
activities of illegal contests or exhibitions of speed.
The Council, finds that the city of Caneville is in a state of crisis as a result of illegal contests of
speed, or drag races, on its streets. Individual teenagers and young adults frequently challenge each
other to such contests, in which they disregard posted speed limits thereby endangering the safety of
all who use Caneville’s streets. A more recent phenomenon is the emergence of the racing club. Drag
racers affix logos of their particular racing club to their vehicles. The sight of such a logo on an
automobile presents an unspoken challenge to a race. This challenge frequently begins with the
simple revving of the engine of a vehicle so identified. The logos are the equivalent of fighting words
that incite illegal exhibitions of speed. Experts on drag racing testified before the Council that when
automobiles sharing the same logo congregate in groups of two or more, their principal purpose is to
engage in a drag race or to challenge others to drag race.
These activities present a clear and present danger to public order and safety and are not
constitutionally protected. The Council finds: (1) that there are at least three illegal racing clubs
operating within Caneville including the Road Hogz, Comets, and Cheetaz; (2) Each of these clubs
have identifiable logos; and (3) the number of drag racing-related deaths and injuries is increasing.
These findings are based on reports that in Caneville there was a racing-related fatality in 2002, and
two more in 2003. In addition, since January 2002 a dozen other people have been injured
participating in drag racing either as drivers or as spectators. Larger and larger crowds have been
gathering for the spectacle of drag racing, assembling through word of mouth and attracting
individuals and groups from neighboring municipalities.
The Council also finds the following to be effective as a means of deterring dangerous street racing:
(1) prohibition of the placement of known logos of racing clubs upon motor vehicles within city
limits; (2) prohibition of the congregation of automobiles for the purpose of illegal street racing
within city limits; and (3) impounding of the automobiles used in illegal contests.
It is not, however, the intent of this ordinance to interfere with the exercise of constitutionally
protected rights of freedom of expression and association. The Council hereby recognizes the
constitutional right of every citizen to harbor and express beliefs on any lawful subject whatsoever
and to lawfully associate with others who share similar beliefs.
Section 1. Any person whose vehicle bears a visible logo of a known illegal racing club and who,
while in that vehicle, knowingly and purposefully congregates with one or more vehicles driven by
members of an illegal racing club with knowledge that its members engage in or have engaged in a
pattern of driving at speeds in excess of 10 miles per hour over the posted speed limit, shall be
punished by imprisonment in the county jail for not less than 30 days nor more than 12 months and
by a fine of not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000).
Section 2. If the vehicle is used by the registered owner in the commission of a violation of Section
1, and the registered owner is convicted of such a violation, the vehicle shall be subject to being
impounded at the registered owner's expense for not less than one day nor more than 90 days.
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Section 3. As used in this chapter:
(a) Illegal racing club means any ongoing organization, association or group of two or more persons,
whether formal or informal, having as one of its primary activities the commission of a vehicle
contest of speed or exhibition of speed in excess of speed limits, having a common identifying logo
or symbol, and whose members engage in or have engaged in a pattern of driving at excessive
speeds.
(b) Pattern of driving at excessive speeds means that either one person has had two or more
convictions of violations involving operating a vehicle in excess of speed limits or that two or more
people have had at least one such conviction. At least one of these offenses must have occurred after
the effective date of this chapter, and the last of those offenses must have occurred within two years
after a prior offense.
(c) Logo means any decal or symbol on a vehicle that identifies an illegal racing club.
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WITNESS STATEMENTS—Prosecution Witness: Officer Quinn Avila
My name is Quinn Avila. I am a police officer in the Caneville Police Department where I have
worked for the last six years. I am 29 years old.
In the last year, there has been an increase in the amount of illegal speed contests, or drag racing, in
Caneville. I know that teenagers sometimes do it for excitement. I find it unacceptable, however, that
so many people are taking such risks with their lives. The deaths that have resulted have been
horrific for the community, and I have personally investigated two of them before the death of
Vanessa Foley. I also directed the task force that investigated the problem, identifying some of the
known car clubs around town. This is how I discovered Vanessa’s club, the Road Hogz, and its logo.
Other clubs, like the Comets, would race against either Vanessa or Mo Lancaster just because they
saw the logo on the back of Vanessa's car. The logos may be otherwise innocuous, but when placed
on a vehicle they take on a symbolic significance, letting other drivers know that the driver intends to
drag race.
I knew Vanessa Foley before she died. I had ticketed her for speeding on Main Street twice since
2002. I had spoken to many students at the Community College, and they told me that Vanessa was
very competitive. She would challenge people to any kind of race, including mountain bicycling,
skateboarding, and driving. I arrested her at the drag race on April 23, 2004, for participating in an
illegal speed contest. I also know she had been arrested for other illegal speeding incidents.
I did not know of Darian Kendall until April 23, when I saw Darian who was a spectator at an illegal
race. As with many of the spectators that night, I decided not to press charges, but simply to issue
warnings. I counseled Darian about the dangers of street racing and then released Darian. I hoped
that would do the trick to scare Darian away from participating. However, during my warning,
Darian seemed to have an attitude and appeared not to be paying attention to anything I was saying.
Typical of these drag racing kids, they think they know everything.
On May 21, at about 8:00 p.m., I was on patrol in Caneville when a call came in from dispatch about
a car accident at Main and Gardner. In the patrol car, I rushed to the scene. The fire department had
been called, too. At the scene, I first noticed Vanessa’s car on Brett Williams’ property. The hood
was smoking from the flames that Brett had just doused. A small crowd of about 10 people had
formed on the perimeter of Williams’ gas station. I immediately cordoned off the gas station while
the firefighters and paramedics took care of Vanessa. I questioned the three eyewitnesses to the
accident: Robin Avery, Parker Gallo, and Brett Williams. From them, I learned that Vanessa’s car
had sped out of control into the station and collided with parked vehicle. I also learned from Parker’s
statement that Parker had a good line of sight and saw the entire accident. Parker stated that Vanessa
and Darian were racing and that Darian had been speeding from the moment the light turned green.
As I finished taking Parker’s statement, I noticed two people on the northern side of Main Street.
One was sitting on the ground, and the other was standing. I immediately identified the sitting person
as Mo Lancaster, whom I knew to be a frequent drag racer and member of the Road Hogz, one of the
racing clubs my department had identified. I walked toward them, and as I got closer I saw that I also
knew the other person standing there. It was Darian Kendall.
I asked Mo Lancaster if Mo knew anything about the accident. Mo replied, “There was a race
between Darian and Vanessa, but it went all wrong.” Mo was visibly upset. Darian immediately
began to protest what Mo had said. I asked Darian where Darian’s vehicle was, and Darian pointed
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to the Dimension 100. It was starting to get dark, but I could see that the Dimension 100 had a Road
Hogz decal, which furthered my suspicion that Darian had been involved in a race. When I tried to
question Darian, almost immediately I recognized that Darian had the same negative attitude as on
the night of April 23, when I caught Darian at the drag race. On the night of Vanessa’s accident, I
could tell from Darian’s body language that Darian really didn’t seem concerned with Vanessa. I
think Darian was more concerned with what happened to Vanessa’s car than with Vanessa herself.
I determined that there had been an illegal race. I then arrested Darian on the spot for violating California
Vehicle Code Section 23109(a) and Mo for violating Section 23109(b). I read them their Miranda rights,
frisked them but found nothing, and brought them back to the patrol car. By that time, another patrol car
had arrived. I completed my investigation by taking all the pertinent measurements of the scene and then
took Mo and Darian to the Police Station.
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WITNESS STATEMENTS—Prosecution Witness: Mo Lancaster
My name is Mo Lancaster. I live at 789 Woods Avenue in Caneville. I moved to Caneville from
Oregon five years ago and have attended Caneville Community College since September 2003. I
enrolled in the auto-shop class so that I could eventually work as a mechanic to pay my way toward
getting a bachelor’s degree. I have always loved cars and watching races on television. I am currently
on probation from the incident on May 21, as part of my plea agreement for my charge of aiding and
abetting an illegal contest of speed under the Vehicle Code Sec. 23109.
I met Vanessa Foley in auto-shop class. We became friends and shared a lot about our interest in cars
and racing. We knew that there had been a couple of deaths and others had been injured in Caneville
recently, but we also knew that at least one of those deaths had been caused by teenagers who drove
in from other towns. We attended professional races once in a while and had a serious interest, but
the younger teenagers messed it up for the rest of us.
We formed a car club in September with some others from Caneville and called ourselves the Road
Hogz. It was meant to be funny, and Vanessa even had her brother-in-law design a funny decal for
the club. We wanted to distinguish ourselves and race from time to time.
In the month of October, in fact, I was arrested along with Vanessa and a couple of others for drag racing
on a remote road in Caneville. It seemed unfair, because we deliberately did it outside of the city center
and away from anyplace where we would annoy or injure anyone. The experience convinced us that we
had to protest this new ordinance that was being planned, because we were mostly responsible drivers
and wanted a legal venue for our races.
I knew Darian Kendall from the auto-shop class. Darian was more Vanessa’s friend than mine, but I
liked to show Darian what I was doing in the class. I already knew a lot about engines and improving
the performance of a car. Darian was interested in cars, but I think was afraid to race at first, until
Vanessa and I talked to Darian and said a lot about how much fun racing was. Darian read about our
appeal at the City Council meeting in the newspaper and asked us how to get into racing. Vanessa
thought Darian was a “wannabe” who only got into racing when the newspapers reported about us. I
thought Darian was more serious about racing and explained to Darian that I was available to race
anytime.
On February 20, 2004, Vanessa told me that she was going to see if Darian was the kind of person
worthy to be a Road Hog. She drove very fast toward the Heavy Burger with Darian and me as
passengers. Darian was yelling at her to slow down. At The Heavy Burger, Vanessa was laughing at
Darian and telling people that Darian was “freaked out to be going so fast.” Darian seemed mad
about it. Three days later, on Monday, we saw Darian’s Dimension 100 car at the college parking lot.
There was a Road Hogz decal in the back window. Vanessa confronted Darian right there and told
Darian to take the decal off the car. Darian got into Vanessa’s face and said, “How can you say that
when my car’s faster than your pathetic Stallion X2?” Things were tense. Vanessa started laughing
again, though, and said that Darian was a “poseur,” a fake. Darian just walked away.
Later that same day in the auto-shop class, I watched as Vanessa talked about her car’s engine to
someone. Darian walked up to Vanessa and said out loud, “Your car is pathetic!” Vanessa did not
laugh this time, but said to Darian that she was willing to race Darian anytime. She referred to
Darian’s car as a “bougie bucket,” which made people laugh. Darian said, “You’re all talk.” I do not
know what got into Darian to get so mad, but I assume it was the incident of February 20. Vanessa
repeated that Darian was a “fake Road Hog.”
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I saw little of Darian until April 23 at the drag race. It was on the north side of Caneville, again in a
remote area. It was the area, in fact, where we wanted the racetrack built. Just after Vanessa raced
against someone, the police showed up with their sirens blaring. They started arresting a bunch of
people, and it was then that I noticed Darian there. Darian looked at me and said, “Hey, Mo.” I asked
Darian why Darian was there. Darian replied, “Just to see Vanessa lose.”
It was the next day, I think, when I told Vanessa what Darian had said. Vanessa concluded that
Darian was challenging her to race, which Vanesa was sure she would win. Vanessa explained,
though, that even though her license was being suspended, she would be willing to accept any
challenge by Darian to race. We both wanted Darian to shut up and stop acting so tough.
The opportunity came on May 21, 2004. I was in Vanessa’s car as a passenger when we saw Darian
and Robin Avery standing around in the campus parking lot. We drove up to them and Vanessa
asked where they were going. One of them said The Heavy Burger. Vanessa stopped the car and
asked Darian, “How’s the bougie bucket?” Darian scowled back at her and said, “I’ll be out in front
tonight.” Darian got into the Dimension 100 immediately and was the first to leave the parking lot.
Darian left in a hurry, and it was hard for us to keep up. I saw that as an indication that Darian
wanted to race. I immediately called Parker Gallo on my cell phone and said, “Vanessa’s ready to go!
Get down to Main and Gardner!”
When we pulled up to the Main and Gardner intersection, I could not see Darian because of Robin
Avery’s big SUV in the way. Suddenly, Vanessa pulled the car around and drove up alongside
Darian. Vanessa started to rev the engine. I rolled down my passenger side window so Vanessa could
yell at Darian, whose window was also rolled down. She yelled, “On your mark, bougie bucket!
You’ll be in our dust!”
Darian pointed at her and yelled “No way!” I heard Darian’s motor revving, too.
When the light turned green, I was staring at Darian. Darian’s car pulled forward, and the front tires
smoked a bit. I heard the tires screech. Darian was peeling out, and so was Vanessa. The rest
happened very quickly, though, and I wish I could turn back the clock. The moment Vanessa’s car
pulled forward, I felt it swerve to the left. I started screaming when I saw us heading at full speed
toward Brett Williams’ station. All I remember was a loud crash. I must have blacked out because
the next thing I remember, I was running across Main Street to get away from the car. I fell to the
ground.
I then saw that Vanessa had hit the light pole on the corner of the gas station. Robin got out of the
SUV and ran toward the station. I do not remember much about the next few moments, but I do
remember Darian walking up to me. I did not really want to speak. I was in shock. I think I was
crying. Darian was just staring at the wrecked car when the firefighters and police arrived. I started
yelling, “What are we going to do?” I had a feeling that Vanessa was dead. I later found out that I
was right.
When Officer Avila approached us by the side of the road, the officer asked me first, “Can you tell
me anything about what happened here?” I replied that Darian and Vanessa were racing. Darian
immediately yelled out that that was a lie. When I explained to the officer that I was Vanessa’s
passenger and knew about the race, I was arrested for aiding and abetting.
I am very sorry now that I did not stop Vanessa from racing Darian that night, and that I did not do
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more to calm Darian down. I could just see that Darian would not back down, but neither would
Vanessa. They both were determined to race each other.
WITNESS STATEMENTS—Prosecution Witness: Parker Gallo
My name is Parker Gallo. I live in Caneville at 110 Stock Street. I am in my second year at Caneville
Community College, along with Darian Kendall. I was also enrolled in the auto-shop class with
Darian, Vanessa Foley, and Mo Lancaster.
I never was a drag racer, but I attended almost every race in the last two years, up until January 2004.
I videotaped races so that many of us could have parties and watch the movies of the races. It was
fun while it lasted, and I saw Vanessa and Mo at a lot of these races and parties. I knew Mo better
than Vanessa, but I liked to talk to Vanessa sometimes about racing. I had a dream of being a
mechanic at the Indianapolis 500 professional race someday.
Starting in January 2004, though, I changed my mind about the illegal drag races. I read in the paper
about the City Council’s ordinance, and in an article there were statistics about deaths caused by drag
racing in Caneville and in all of California. I realized that I could get in trouble, too, just for
attending these races. I had made it into a U.C. school as a transfer student, to begin the following
year. I decided not to jeopardize my future and told myself that I would stay away from the races.
The problem was that I was still in the auto-shop class. I had to be there with people who talked
constantly about drag racing. On the Monday afternoon of February 23, I heard Darian Kendall and
Vanessa Foley yelling at each other in shop class. It was weird. They were both angry about
something. I heard Darian yell at Vanessa, “Your car is pathetic!”
Vanessa insulted Darian by calling Darian’s car a “bougie bucket.” I thought Darian would back
down, because I had not seen Darian at any of the races I had attended, except for February 20. I did
not think until then that Darian was a drag racer.
Surprisingly, though, Darian said, “You’re all talk.” Darian then walked away, and after a moment
sat next to me. We were quiet for a minute, and then Darian said to me, “I’m sick of hearing about
Vanessa’s stupid car.” Darian started to ask me about drag racing. I suppose Mo or someone must
have told Darian that I was enthusiastic about racing and had attended a lot of the local races. Darian
said, “I think my Dimension 100 can beat Vanessa’s piece of junk.”
Over the next few weeks, people in the auto-shop class talked about the “upcoming race” between
Darian and Vanessa. This happened many times. Whenever Darian was in the room, I would notice
Darian smile when people talked about Darian racing against Vanessa. People asked me to come
videotape it, but I said I did not do that anymore.
Then, in the evening of May 21, 2004, I was at work at The Heavy Burger. A couple of students were
there from the college. I recognized them from my classes. I overheard them talking about a big race
that evening between Vanessa and Darian at Main and Gardner. Many races had occurred at that
intersection before, but most drag racers had been using more remote roads since 2003.
My shift ended at 7:30 p.m., and I stayed around for a little while talking to people. At about 7:40, I
was walking to the parking lot and I got a call on my cell phone from Mo Lancaster. Mo said,
“Vanessa’s ready to go! Get down to Main and Gardner!” I then got on my motorcycle. I rode down
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an old fire road to the intersection of Main and Gardner. This fire road started behind The Heavy
Burger and went parallel to Main Street for a mile until it opened onto Gardner Avenue, about 40
feet or so north of the intersection with Main Street. I then went south and parked my bike on the
northwest corner of the intersection, across from Brett Williams’gas station. It was about 7:50 p.m.
and I sat and waited.
About five minutes later, I saw Darian’s Dimension 100 pull up to the red light at the intersection.
Suddenly, Vanessa’s car pulled up next to Darian, in the wrong lane. I heard the engines revving. I
realized that the race was actually going to happen.
When the light turned green, I saw Darian’s car peel out into the intersection. Darian’s car appeared
to be accelerating very quickly. I had seen a lot of races over the years, and I can tell when a car is
going to speed.
My attention, though, was quickly drawn toward Vanessa’s car. It was veering toward Brett’s gas
station. For the split second that I noticed Mo’s face, Mo looked terrified. I then saw the car collide
with the light pole at the station’s corner. Darian’s car was just to my left, almost right in front of me
when Vanessa’s car hit. I then heard screeching from Darian slamming on Darian’s brakes.
I looked across the street and saw Brett with a fire extinguisher. I ran over there to see if Vanessa
was all right. Of course, she was not. She looked badly injured. I tried to get her out of the car while
Brett put out the fire that had broken out. The door was jammed shut, though. Neither Brett nor I
could do anything. In the next few minutes, a couple of cars came up Gardner Avenue and stopped
by the station. A small group of onlookers soon were standing around looking at the aftermath of the
accident. The firefighters and police arrived quickly, and I just stood off to the side and answered
Officer Avila’s questions when I was asked.
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WITNESS STATEMENTS—Prosecution Witness: Lindsay White
My name is Lindsay White. I live at 345 Firestone Road in Vacata, California. I am 39 years old. I
have a B.S. in mechanical engineering and am a licensed professional engineer in California. I now
work for the Falcon County Sheriff’s Department as a supervisor in the Automobile Accident
Reconstruction Team (AART). I was a motor officer for seven years. I personally investigated
hundreds of traffic accidents and took numerous courses in accident reconstruction and automobile
dynamics during that period. I then became a commercial vehicle inspector for three additional years
before becoming certified as an accident reconstruction expert and a specialist for AART.
This case presents a situation in which I am not actually analyzing an automobile collision, but rather
evidence related to the issue of whether the defendant was “peeling out,” or accelerating very rapidly,
on the night in question. I have had to analyze the evidence from the moment of the defendant’s
acceleration from Main and Gardner to the subsequent deceleration further west, past the western
end of the intersection. I also examined the intersection where this accident occurred in June 2004 at
the same time of day as the accident. This intersection had also been frequently used by drag racers.
The evidence leads me to conclude that the defendant’s automobile was accelerating very quickly in
a short distance.
Accident reconstruction requires me to look at three general areas to make my conclusions: the facts,
the engineering analysis, and the witness statements. I look at the facts from the officer’s
investigation to see if certain facts here are called into question. In this case, the defendant’s vehicle
was positioned in the westbound lane on Main Street, accelerated when the light turned green, and
proceeded west on Main before braking.
The first issue is whether there were any tire marks to indicate that Darian peeled out. There were a
number of sets of tire marks in the westbound lane of the intersection. None of the marks, however,
can be traced with any certainty to any specific vehicle.
There were also no marks at the point of deceleration. Darian’s car, however, is equipped with an
antilock brake system (ABS). Skid marks from ABS brakes are called wheels-unlocked braking
marks and will not resemble typical locked-wheel skid marks. For one thing, ABS braking marks are
fainter than locked-wheel skid marks. They may have dark edges that can be detected, but I did not
detect them in the western crosswalk of Main Street at Gardner when I examined the scene in June of
2004. This is not uncommon, however, because in more than 60-80 percent of cases, the conditions
of the road do not allow ABS braking marks to be visible at all. I have personally tested many cars
with ABS brakes, including the Dimension 100 model, and have yet to find visible marks even when
I hit the brakes quickly (or “slam” on the brakes) while the car travels at 40 mph. Because the
absence of braking marks, it is difficult to say for sure, exactly how fast Darian was going at the time
the brakes were applied.
The most important issue would be whether Darian reacted quickly or slowly in applying the brakes.
The more a person expects to brake, the faster is their reaction time. This is the time it takes from
perception of a need to brake (like seeing an obstacle in the road) to moving the foot to the brake
pedal and stepping on the pedal. Simply stated, it is the amount of time it takes a driver to process
what is happening and then to step on the brakes. This reaction time can be as little as 0.75 seconds,
especially in a young driver like Darian Kendall.
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When Darian perceived that Vanessa’s car swerved toward Brett’s station, Darian had already been
traveling forward. According to Parker Gallo’s statement, Darian was to Parker’s left, almost in front
of Parker at the moment Vanessa’s car hit the pole. That impact began Darian’s reaction time. In
0.75 seconds, Darian traveled about 20 more feet, then hit the brakes, and abruptly came to a full
stop about 135 feet from the point of acceleration.
Parker also testified that Parker heard a loud screech after Vanessa’s car hit the pole. First, this
screech would coincide with Darian’s braking. Second, such a screech indicates that the vehicle was
traveling relatively fast.
Darian was not looking over at Vanessa when Darian accelerated, which would have given Darian
ample time to gradually apply the brakes. Instead, Darian has stated that Darian looked down at the
accelerator pedal. Even if that glance at the pedal took only one second, that is enough time for the
Dimension 100 to proceed 60 feet, just past the midway point of the intersection. When Darian then
looked up and saw the impact, the reaction time would begin. In 0.75 seconds, as is expected for a
young adult driver like Darian, the application of the brakes at the opposite end of the intersection is
accurate.
Parker Gallo’s statement that Darian’s vehicle crossed the intersection quickly would be consistent
with a vehicle that is accelerating at maximum velocity. We measure that velocity from zero to sixty
miles per hour. This model of Dimension 100 automobile has an eight-cylinder or “V8” engine and
can travel from zero to sixty mph in from seven to eight seconds. Since Darian was nearly in front of
Gallo after only a couple of seconds (when the Stallion X2 hit the pole), this shows that Darian was
accelerating extremely fast in relation to the distance traveled.
In addition, though it was dusk, the intersection was well lit as there was still some natural light at
the time; and the gas station was illuminated with fluorescent lights, so Parker’s observations are
reliable. Importantly, Parker Gallo was only 80 feet from the two cars before they moved forward.
Parker had a good vantage point from which to hear Darian’s engine rev, to hear Darian peel out
upon acceleration, and finally to hear Darian’s car screech upon braking.
By contrast, Brett Williams stated that Darian moved off the line slowly. Brett is much older than
Parker Gallo. It is a noted among reconstructionists that the older the observer, the more they tend to
underestimate speeds of vehicles. Also, Williams would have been observing the Dimension 100 in
relation to Vanessa’s vehicle, which was speeding toward Brett. From that angle, Brett would have
mentally compared the Dimension 100’s speed to the closer Stallion X2 driven by Vanessa. Brett
would naturally have underestimated Darian’s speed in the mental comparison.
In my expert opinion, Darian Kendall was traveling at a high velocity in relation to the distance the
car traveled at the time Vanessa Foley’s vehicle collided with the light pole.
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WITNESS STATEMENTS—Defense Witness: Darian Kendall
My name is Darian Kendall. I am 20 years old. I live at 4545 Whitmore Street in Caneville,
California. I am in my second year at Caneville Community College, where I am enrolled in an autoshop program. I hope to study mechanical engineering at a four-year university.
My parents own a market in Caneville, where I have worked since my first summer after ninth grade
in high school. For the last two years, I have also worked part-time there throughout the year. Around
the first of September in 2003, I had saved enough money to buy a car. It was a used Dimension 100,
and I got a good price on it. Up until that time, I had always walked or used the Caneville bus
system.
Having enrolled in the auto class, I really wanted to learn more about how to fix up my car. I have
always liked building and repairing things, especially radios and televisions. I have been handy at my
parents’ store doing odd jobs. I also needed a car. I figured that once I learned more in auto-shop, I
would be able to do my own car repairs as well. I have a knack for it.
In the class, I met Vanessa Foley. I had known of her in high school, but we had different sets of
friends. She talked about racing from the first moment I spoke to her in September of that year. I had
known that around town some kids had been drag racing illegally for a few years. I was always
talking to my friends about the serious problem of racing. I knew someone who died in a race back in
2002, and it sickened me. It seemed so pointless to die just for trying to beat someone in a race.
People told me that Vanessa often raced, but I never knew when or where.
I also met Mo Lancaster in the class. Mo and Vanessa were buddies. Mo had an uncle who had been
a pretty well-known race car driver in the 80’s. Mo bragged a lot about racing people around town
and said disparaging things about members of one of the local car clubs who went by the name The
Comets. Mo told me that Mo’s car could outrun any of The Comets. I started to become curious
about these races I had heard so much about but had never seen. Mo was a very confident person and
made racing sound interesting. I thought Vanessa and Mo were cool people, having gotten to know
them. They were always eager to show me how to do things in class.
I noticed they each had window decals on their cars that said “Road Hogz” and had a picture of a
cartoon pig in a hot rod. Vanessa explained that her brother-in-law custom designed the decal on his
computer. He ran a computer store in town.
I realize now that it was a bad idea for me to want to see a race. On February 20, I went with Mo and
Vanessa to The Heavy Burger, a place just outside of Caneville that had good food and was a cool
place for us to go at the end of the week. Vanessa was driving. Just past the Gardner intersection on
Main, Vanessa sped up the car. As the Stallion X2’s engine roared, Vanessa said to Darian, “You
hear that? That’s a racing engine!” We went incredibly fast, and I was afraid Vanessa would lose
control of the wheel and we would all end up dead. I yelled at Vanessa to slow down, but she did not.
I thought she was crazy. She and Mo told everyone that I was freaked out by the speed of the car,
which was true. Nonetheless, I was embarrassed by how everyone thought I was “freaked out.”
The following Monday, February 23, Vanessa confronted me just before auto-shop class began.
Vanessa said, “You should do something with that bougie bucket of yours. It can’t race!” I tried to
ignore Vanessa because she was starting to go out of her way to ridicule my car for no apparent
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reason.
Partly to show I was still cool, and partly to annoy Vanessa and Mo, I went to Vanessa’s brother-inlaw at the computer store and asked for him to print up one of those “Road Hogz” window decals for
me. He did, and I paid him $5.00 for it and put it on my car.
One day in autoshop, I heard Vanessa bragging about how her car club, the Road Hogz, had the
fastest cars in Falcon County. I decided to have a little fun and interrupted her to say that her car was
actually not that fast. I said anyone could push their car to 85 mph, but that did not make the car that
amazing. Her reaction surprised me because she was genuinely angry. She told me the only thing
pathetic was that I had her club’s sticker on my car when I did not have the guts to race. She
demanded that I remove the sticker. I decided not to remove the sticker, since I had paid for it. I still
wanted to be friends with Vanessa and Mo, but it seemed they no longer cared to be friends with me.
Then on the Friday night of April 23, I was driving to a friend’s house on northside of Caneville. On
my way there I came upon a large number of people gathered on a side-street with their cars. I was
curious what this was about so I pulled over. I quickly discovered that what I was watching was a
race between a couple of the car clubs. I thought this could be interesting, though now I realize I
made a mistake. A few minutes after the first race, police officers showed up and arrested a couple of
people, including Vanessa Foley. I saw Mo there but did not say anything to Mo. Officer Avila
warned me very seriously not to participate in or watch any more races or else I could serve jail time
and pay a fine. The experience frightened me into staying away from drag races.
For the next few weeks, I stayed away from Vanessa and Mo. I saw them in class, but I did not want
to socialize with them. I wanted to avoid trouble while I was preparing to graduate from the college.
Vanessa warned me repeatedly to remove the sticker from my car window. I had lost some respect
for Mo and Vanessa and felt like defying them, so I left the sticker on my car.
On May 14, 2004, as I was in my Dimension 100 stopped at an intersection in town, the accelerator
pedal stuck. The car skidded a bit when I moved forward from a complete stop. That very afternoon,
I called Brett Williams and explained the problem. Brett is our family’s mechanic and I knew Brett
might be able to help me. Brett told me to bring the car in on Monday so Brett could look at it. I wish
I had taken the car to Brett, but I was really busy with school.
On May 21, 2004, about 7:40 p.m., I met up with my friend Robin Avery at the college parking lot.
We were going to get something to eat. To my surprise, Vanessa and Mo showed up there, too.
Robin and I had planned to caravan to The Heavy Burger, like we often did back then. Vanessa
pointed at me and said, “How’s the bougie bucket?” I was annoyed by this, but knew that Vanessa
was probably still angry that I did not remove that window decal.
I looked over to Robin and said, “I will be out in front tonight.” I said that because I knew Vanessa
was trying to taunt me into racing, so I wanted to make sure I was as far away from Vanessa as
possible. I was afraid that Vanessa would try to speed on the way to The Heavy Burger again. I was
the first to leave the parking lot and was comforted to see that Robin was right behind me as a kind
of buffer between Vanessa and me.
When we arrived at Main and Gardner, the light was red. I stopped, of course. Seconds later, I saw
Vanessa’s car next to mine on the road, facing west in the eastbound lane. Mo was in the passenger
seat and rolled down the window. Vanessa yelled something at me, but she was also revving her
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engine, which made it impossible for me to understand what she was saying. My window was
already unrolled, and I yelled back, “What did you say?” Mo started laughing, and Vanessa gripped
the steering wheel. She appeared angry. I was confused. It appeared that Vanessa was determined to
race against me, but I had no intention of doing that.
When the light turned green, things got crazy. My car lurched forward and I knew immediately that it
was because the accelerator was stuck again. I pulled forward, but my accelerator inexplicably got
stuck again. I was looking down at the gas pedal for a second, when in my peripheral vision I saw
that something was not right. I quickly looked to my left to see what Vanessa was doing, and that is
when I saw that her car had skidded out of control and was already entering Brett Williams’ gas
station area. I was stunned at what I saw. Vanessa’s car hit the light pole at the station. I kept staring
as my car moved forward. I then braked and pulled my car to the side of the road.
The front end of Vanessa’s car was wrapped around the pole and was in flames. I saw Brett Williams
trying to get near the car to pull Vanessa out. I got out of my car and watched what was happening. I
was scared and could not really move. Mo managed to escape from the car and ran to my side of the
road and fell to the ground. Mo appeared in shock. I looked over to Mo and asked, “Are you all
right?” Mo did not say anything. Mo was shivering while sitting on the ground, so I offered my
jacket to Mo. Mo sat-up and started screaming, “What should we do? What should we do?” That is
when I heard the sirens coming.
The local firefighters arrived, and so did Officer Avila. I could not speak or move, standing there
watching while the firefighters put out the fire at the car. I do not know how long we stood there. It
could have been five minutes or an hour because everything seemed to blur.
The next thing I knew, Officer Avila was standing in front of us, asking us about what had happened.
At that moment, Mo screamed that Vanessa and I had been racing just before she crashed. I said that
was not true. I told the officer that Mo was hysterical and jumping to conclusions. Officer Avila then
asked me where my car was. I pointed to my Dimension 100.
The officer asked me about how fast I had been going before I stopped. I said I was not sure, because
while driving my attention was turned toward the gas station and I did not look at the speedometer. I
was in shock when I stopped the car. I told the officer I did not remember exactly all that had
happened.
Officer Avila then told me this had been a race, and that the officer had to place me under arrest for
an illegal contest of speed. I did not know what to do, but I said I would cooperate. Officer Avila
arrested both Mo and me and walked us back to the patrol car.
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WITNESS STATEMENTS—Defense Witness: Robin Avery
My name is Robin Avery. I am 20 years old. I live at 464 Daytona Street in Caneville, California. I
am in my second year at Caneville Community College. I was a social acquaintance of Mo Lancaster
and Vanessa Foley and a friend of Darian Kendall. I never really liked Mo or Vanessa. They seemed
to be a bad influence on Darian. I only hung around them because of Darian.
Frequently, Darian, myself, and others would caravan in our cars over to The Heavy Burger. It was
convenient for us to do this, since many of us would go our separate ways after eating there, to this
party or that. I would drive myself there and often go on to my parents’ house in Vacata.
I was not involved in the auto-shop class, but I had attended the race on April 23, 2004 when some
people were arrested. The police gave us a stern warning and then ordered us to disperse. I knew that
that was scary for Darian. Darian had no criminal record, and was worried about the rest of Darian’s
family finding out about it. Darian told me that Darian would not get involved in racing.
That same night, I asked Darian about that decal on the window of Darian’s car. I thought it was silly
for Darian to keep it. Darian explained that it irritated Vanessa, and that gave Darian a sense of
satisfaction. They had some kind of mutual dislike for each other, and Darian knew that Vanessa’s
source of pride was in racing and “souping up” automobiles. Darian liked the idea that the decal
meant nothing to Darian, but meant everything to Vanessa. “It’s so easy to make her mad,” Darian
said, “Just diss her car and she starts fuming.” I still thought Darian was being ridiculous, but I never
expected that Vanessa would take Darian seriously. “I just think I’ll try to stay away from her,”
Darian finally said to me, “She’s out of control.”
On the evening of May 21, 2004, I arranged with Darian to meet after studying for finals at the
college. We would meet at about 7:40 p.m. in the same parking lot we always met at before
caravanning over to The Heavy Burger. We met as scheduled, and just before we headed out to Main
Street, another car pulled up. Its engine was roaring, and I was surprised to see Vanessa and Mo in
Vanessa’s Stallion X2. We had not seen them around for weeks.
Darian and I looked at each other. Then I saw Darian shrug. Vanessa called out to Darian, saying,
“How’s the bougie bucket?” Darian looked back over at me and rolled Darian’s eyes.
Darian also said to me, “I’ll be out in front tonight.” I said, “Okay.” I thought the statement was a
little odd because I usually drove in front, but I really didn’t think too much about it.
Darian then walked quickly back to the Dimension 100, got in, and drove toward Main Street. I
pulled up behind Darian, and Vanessa drove behind me. Vanessa tailgated me most of the way. It
was not clear to me that Vanessa and Mo were invited to come along with us, especially since
Vanessa was driving so erratically.
When we pulled up to the intersection of Main and Gardner at about 7:55 p.m., I saw Vanessa pull
the Stallion X2 next to Darian’s car. Mo unrolled the passenger window of the Stallion X2. I saw
Vanessa lean over and yell something at Darian. Darian yelled something back. I saw Darian shrug
again.
When the light turned green, Darian seemed to lurch forward a little bit, but then proceeded forward.
I was about to step on my gas pedal, but kept my foot on the brake when I saw the Stallion X2 go off
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at a high speed toward the gas station. I heard screeching sounds and saw the Stallion X2 hit the light
pole. I glanced in front of me to see where Darian was and saw Darian’s car about halfway across the
intersection, moving forward and away from me.
I jumped out of the SUV and ran toward the gas station. I saw Brett Williams there. I pulled out my
cell phone and dialed 911. After a few minutes, the firefighters and police arrived. I stayed and
answered questions from Officer Avila. I saw what Vanessa looked like when they finally pulled her
out of the Stallion X2. It was horrible.
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WITNESS STATEMENTS—Defense Witness: Brett Williams
My name is Brett Williams. I am 60 years old. I live with my family at 29 Gardner Avenue, about
half a mile south of the auto-service station that I have owned for the past fifteen years. I have built
the business up over the years, and that has required working many late nights. It is the last service
station, let alone the last building, you will see as you travel west along Main Street toward The
Heavy Burger.
I have known Darian Kendall for fifteen years, as long as I have owned the service station. Darian’s
parents bring their cars to me for repairs from time to time. I remember about May 14, 2004, I
received a phone call in the late afternoon. It was Darian Kendall. Darian explained that the gas
pedal of Darian’s Dimension 100 had gotten stuck at an intersection and made the car jerk forward
when Darian accelerated. Darian explained that it made the car skid a bit. I was about ready to head
out of town for the weekend. I explained this to Darian and said that Darian should just bring the car
by the service station the following Monday morning. I did not hear from Darian, and frankly I had
forgotten about the problem until I saw Darian a week later at the scene of the accident at my shop.
On that night of May 21, I had turned on the station lights and was outside the shop, fixing a door
hinge on the western wall of the main building. A few minutes before 8:00 p.m., I walked around to
the front of the building to get some other tools. At that moment, I heard revving noises coming from
the direction of the intersection. I looked over and saw someone in the car nearest to me, facing the
wrong direction. I later learned this person was Vanessa Foley. I kept looking toward the
intersection, because her car was in the wrong lane.
I recognized Darian Kendall in the Dimension 100 next to Vanessa’s car. Darian had a confused
facial expression. The light turned green and the cars moved forward. Darian’s car moved slowly.
My attention, though, was drawn to the car Vanessa was driving because it took off so fast. The front
of that car was ahead of Darian’s, but almost immediately it was headed for my station. I quickly
jumped back.
The car Vanessa was driving crashed right into the light pole that was at my station. I froze for a
second, though it felt like an hour. When I saw the flames burst from under the crushed hood of the
car, I ran into the station to grab my fire extinguisher. Then, Parker Gallo ran up to me.
With the fire extinguisher, I ran to the burning car. I put out the flames pretty quickly, but I could see
that Foley was pinned between the steering column and the seat of the car. The door was crushed,
too, in such a way that I could not pull it open. Gallo tried, too. I ran back inside and called 911.
Apparently, someone had already called 911 about this accident. I felt helpless. All I could do was
wait. The few minutes before the police and firefighters arrived again felt like hours. During those
minutes, I saw Darian Kendall and someone else off to the side of the road. It may seem trivial in
hindsight, but at that moment I thought about Darian’s phone call to me a week before. I guess I was
in shock to be thinking about something that seemed so trivial at the time.
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WITNESS STATEMENTS—Defense Witness: Haley Salazar
My name is Haley Salazar. I am 50 years old. I live at 999 Michelin Way in Vacata, California. I
worked for 10 years in Detroit, Michigan, as a mechanical engineer and then as a consultant for
many major automobile manufacturers. In 1990, I was certified as an accident reconstructionist in
Michigan. I moved to California where I was again certified. I am also a licensed professional
engineer in California. I worked in an accident reconstruction firm in Southern California until 1995,
at which time I founded my own firm, Salazar Associates, where I presently work.
To reconstruct the accident, I use the facts, engineering analysis, and witness statements. Often,
reconstructionists are unable to examine the scene directly after an accident, but the record, properly
gathered, will suffice. Here, such a proper record exists. I also examined the scene in June 2004 at
the same time of day as the accident in question.
In this case, many facts are not called into question. The intersection was 80 feet wide including a
10-foot wide crosswalk on each side running north to south. The defendant’s Dimension 100 with an
eight-cylinder engine and the decedent’s Stallion X2 were side-by-side facing west on Main Street at
the intersection with Gardner. Vanessa Foley’s vehicle accelerated rapidly in a southerly direction
toward Brett Williams’ station due to driver error. Darian Kendall applied the brakes of the
Dimension 100 at some point past the midway point of the intersection and came to a full stop
approximately 100 feet west of the eastern end of the intersection. The road was dry at the time.
Though there were numerous tire marks in the intersection, none of them was identifiable or
traceable to any particular vehicle. This was, after all, a popular spot for exhibitions of speed prior to
May 21, 2004.
Another issue is the wheels-unlocked braking marks. No such marks were visible at the scene. The
lack of brake marks, however, indicates that Darian was not traveling fast enough to create them.
Had Darian traveled fast and then quickly slammed on the brakes, there would have been faint
striations (lines) as braking marks.
Regardless of tire marks, the Dimension 100 did not travel very fast in relation to the distance
traveled. In Darian’s moment of alarm from seeing what happened to Vanessa, Darian’s attention
was distracted. Darian stated this. In such a situation, Darian looked over at Vanessa and not at the
road. In the shock, Darian may not have pressed fully on the accelerator, or could have applied the
brakes more than once, giving the impression Darian had been accelerating rapidly and “slammed”
the brakes (i.e., stepped down hard on the pedal). It would not be hard for the tires to screech even if
Darian was traveling at a slow speed.
The crucial issue is really whether Darian could have reacted as quickly in stopping as Darian did if,
indeed, Darian was racing. From Robin Avery’s statement, Darian was about halfway through the
intersection when the Stallion X2 collided with the pole. Darian’s reaction to the collision would
have begun at that point. Darian may have already traveled approximately 60 feet and could have
taken more than a second to react to the impact of the Stallion X2. By the end of that third second of
travel, Darian would have moved Darian’s foot over to the brake pedal and then applied the brakes.
After that, the vehicle would have rolled to a stop approximately 55 feet west of the intersection by
the side of Main Street, as we see in these facts.
It is clear, too, that it could even have taken Darian as much as a second and a half to react to what
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happened to Vanessa’s car. Darian stated that “things got crazy” immediately when the light turned
green. Darian looked down for maybe a second or less. Furthermore, Darian said that Darian then
looked over at Vanessa’s car as it entered the gas station area, before the impact. In that case, not
only was Darian’s reaction slower, but Darian could not have been accelerating very fast before
applying the brakes at the opposite end of the intersection. People generally have shorter reaction
times when they expect to brake. Darian, however, did not expect Vanessa to swerve out of control,
so Darian’s reaction time would be slower. Robin Avery’s statement corroborates this, since Robin
stated that Darian was only about halfway across the intersection at the moment of impact.
Finally, in looking at the witness statements, an important factor must be taken into consideration.
Parker Gallo said that Darian’s car traveled at a high speed through the intersection. Brett Williams,
however, stated that Darian’s car appeared to move slowly off the line. A number of factors play into
judging speeds of vehicles, such as the structure of the surroundings and background, the direction of
motion relative to the observer, and the lighting of the area. Here, Parker may have judged Darian’s
vehicle to be moving faster than it was really traveling due to the excitement of seeing it head
westward directly toward Parker. Parker also heard revving noises, but that was definitely coming
from Vanessa’s Stallion X2, as corroborated by Mo Lancaster, who said that Vanessa started to rev
the Stallion X2’s engine.
It is my expert opinion, then, that Darian Kendall was not accelerating rapidly through the
intersection, but rather began reacting to Vanessa’s car swerving out of control, and about a second
and a half later braked and rolled to a stop just past the Main and Gardner intersection.
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OFFICIAL DIAGRAM
Intersection of Main and Gardner
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THE FORM AND SUBSTANCE OF A TRIAL
The Elements of a Criminal Offense
The penal (or criminal) code generally defines two aspects of every crime: the physical aspect and
the mental aspect. Most crimes specify some physical act, such as firing a gun in a crowded room,
and a guilty, or culpable, mental state. The intent to commit a crime and a reckless disregard for the
consequences of one’s actions are examples of a culpable mental state. Bad thoughts alone, though,
are not enough. A crime requires the union of thought and action.
The mental state requirement prevents the conviction of an insane person. Such a person cannot form
criminal intent and should receive psychological treatment rather than punishment. Also, a
defendant may justify his or her actions by showing a lack of criminal intent. For instance, the crime
of burglary has two elements: (1) entering a dwelling or structure (2) with the intent to steal or
commit a felony. A person breaking into a burning house to rescue a baby has not committed a
burglary.
The Presumption of Innocence
Our criminal justice system is based on the premise that allowing a guilty person to go free is better
than putting an innocent person behind bars. For this reason, defendants are presumed innocent. This
means that the prosecution bears a heavy burden of proof; the prosecution must convince the judge
or jury of guilt beyond a reasonable doubt.
The Concept of Reasonable Doubt
Despite its use in every criminal trial, the term “reasonable doubt” is hard to define. The concept of
reasonable doubt lies somewhere between probability of guilt and a lingering possible doubt of guilt.
A defendant may be found guilty “beyond a reasonable doubt” even though a possible doubt remains
in the mind of the judge or juror. Conversely, triers of fact might return a verdict of not guilty while
still believing that the defendant probably committed the crime. Reasonable doubt exists unless the
triers of fact can say that they have a firm conviction of the truth of the charge.
Jurors must often reach verdicts despite contradictory evidence. Two witnesses might give different
accounts of the same event. Sometimes a single witness will give a different account of the same
event at different times. Such inconsistencies often result from human fallibility rather than
intentional lying. The trier of fact (in the Mock Trial competition, the judge) must apply his or her
own best judgment when evaluating inconsistent testimony.
A guilty verdict may be based upon circumstantial (indirect) evidence. However, if there are two
reasonable interpretations of a piece of circumstantial evidence, one pointing toward guilt of the
defendant and another pointing toward innocence of the defendant, the trier of fact is required to
accept the interpretation that points toward the defendant’s innocence. On the other hand, if a piece
of circumstantial evidence is subject to two interpretations, one reasonable and one unreasonable, the
trier of fact must accept the reasonable interpretation even if it points toward the defendant’s guilt. It
is up to the trier of fact to decide whether an interpretation is reasonable or unreasonable.
Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendants guilt.
Jurors must often reach verdicts despite contradictory evidence. Two witnesses might give different
accounts of the same event. Sometimes a single witness will give a different account of the same
event at different times. Such inconsistencies often result from human fallibility rather than
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intentional lying. The trier of fact (in the Mock Trial competition, the judge) must apply his or her
own best judgment when evaluating inconsistent testimony.
A guilty verdict may be based upon circumstantial (indirect) evidence. However, if there are two
reasonable interpretations of a piece of circumstantial evidence, one pointing toward guilt of the
defendant and another pointing toward innocence of the defendant, the trier of fact is required to accept
the interpretation that points toward the defendant’s innocence. On the other hand, if a piece of
circumstantial evidence is subject to two interpretations, one reasonable and one unreasonable, the trier
of fact must accept the reasonable interpretation even if it points toward the defendant’s guilt. It is up
to the trier of fact to decide whether an interpretation is reasonable or unreasonable.
ROLE DESCRIPTIONS
ATTORNEYS
The pretrial-motion attorney presents the oral argument for (or against) the motion brought by the
defense. You will present your position, answer questions by the judge, and try to refute the opposing
attorney’s arguments in your rebuttal.
Trial attorneys control the presentation of evidence at trial and argue the merits of their side of the
case. They do not themselves supply information about the alleged criminal activity. Instead, they
introduce evidence and question witnesses to bring out the full story.
The prosecutor presents the case for the state against the defendant(s). By questioning witnesses,
you will try to convince the judge or jury (juries are not used at state finals) that the defendant(s) is
guilty beyond a reasonable doubt. You will want to suggest a motive for the crime and will try to
refute any defense alibis.
The defense attorney presents the case for the defendant(s). You will offer your own witnesses to
present your client’s version of the facts. You may undermine the prosecution’s case by showing that
the prosecution’s witnesses are not dependable or that their testimony makes no sense or is seriously
inconsistent.
Trial attorneys will:
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Conduct direct examination.
Conduct cross-examination.
Conduct re-direct examination, if necessary.
Make appropriate objections:
Only the direct and cross-examination attorneys for a particular witness may make objections
during that testimony.
- Conduct the necessary research and be prepared to act as a substitute for any other attorneys.
- Make opening statements and closing arguments.
Each student attorney should take an active role in some part of the trial.
WITNESSES
You will supply the facts in the case. As a witness, the official source of your testimony, or record, is
composed of your witness statement, all stipulations and exhibits, and any portion of the Fact
Situation of which you reasonably would have knowledge. The Fact Situation is a set of indisputable
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facts that all witnesses and attorneys may refer to and draw reasonable inferences from. The witness
statements contained in the packet should be viewed as signed statements made to the police by the
witnesses.
You may testify to facts stated in or reasonably inferred from your record. If an attorney asks you a
question, and there is no answer to it in your official testimony, you can choose how to answer it.
You can either 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. Your inference
cannot contradict your official testimony, or else you can be impeached using the procedures
outlined in this packet. Practicing your testimony with your attorney coach and your team will help
you to fill in any gaps in the official materials.
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 that cannot be reasonably inferred from the
Fact Situation or a Witness Statement.
COURT CLERK, COURT BAILIFF, UNOFFICIAL TIMER
We recommend that you provide two separate people for the roles of clerk and bailiff, but if you
assign only one, then that person must be prepared to perform as clerk or bailiff in any given trial.
As outlined in the rules, the unofficial timer may also be a defense attorney, the bailiff, or the defense
team’s clerk.
The clerk and bailiff have individual scores to reflect their contributions to the trial
proceedings. This does NOT mean that clerks and bailiffs should try to attract attention to
themselves; rather, scoring will be based on how professionally and responsibly they perform
their respective duties as officers of the court.
The court clerk and the bailiff aid the judge in conducting the trial. In an actual trial, the court clerk
calls the court to order and swears in the witnesses to tell the truth. The bailiff watches over the
defendant to protect the security of the courtroom. For the purpose of the competition, the duties
described below are assigned to the roles of clerk and bailiff.
Before each round of competition, the court clerks, bailiffs, and unofficial timers may meet with a
competition staff person at the courthouse about 15 minutes before the trial begins. At this time, any
questions about their duties will be answered and time sheets will be available for distribution.
Prosecution teams will be expected to provide the clerk for the trial; defense teams are to
provide the bailiff.
Duties of the Court Clerk
When the judge arrives in the courtroom, introduce yourself and explain that you will assist as the
court clerk.
In the Mock Trial competition, the court clerk’s major duty is to time the trial. You are responsible
for bringing a stopwatch to the trial. Please be sure to practice with it and know how to use it
when you come to the trials.
An experienced timer (clerk) is critical to the success of a trial.
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Interruptions in the presentations do not count as time. For direct, cross, and re-direct
examination, record only time spent by attorneys asking questions and witnesses answering them. Do
not include time when:
- witnesses are called to the stand.
- attorneys are making objections.
- judges are questioning attorneys or witnesses or offering their observations.
When a team has two minutes remaining in a category, call out “Two”; when one minute remains,
call out “One,” and when 30 seconds remains, call out "30." Always speak loud enough for everyone
to hear you. When time for a category has run out, announce “Time!” and insist the students stop.
There is to be no allowance for overtime under any circumstance. This will be the procedure
adhered to at the state finals. After each witness has completed his or her testimony, mark down the
exact time on the time sheet. Do not round off the time.
Duties of the Bailiff
When the judge arrives in the courtroom, introduce yourself and explain that you will assist as the
court bailiff.
In the Mock Trial competition, the bailiff’s major duties are to call the court to order and to swear in
witnesses. Please use the language below. When the judge has announced that the trial is beginning,
say:
, Department
“All rise, Superior Court of the State of California, County of
presiding, is now in session. Please be seated and come to order.”
, Judge
When a witness is called to testify, you must swear in the witness as follows:
“Do you solemnly affirm that the testimony you may give in the cause now pending before this
court shall be the truth, the whole truth, and nothing but the truth?”
In addition, the bailiff is responsible for bringing to trial a copy of the “Rules of Competition.”
In the event that a question arises and the judge needs further clarification, the bailiff is to
provide this copy to the judge.
Duties of the Unofficial Timer
One defense attorney at the counsel table, the bailiff, or the defense team’s clerk may serve as an
unofficial timer. This unofficial timer must be identified before the trial begins and may check time
with the clerk twice during the pretrial (once during the defense argument and once during the
prosecution argument) and twice during the trial (once during the prosecution’s case-in-chief and
once during the presentation of the defense’s case).
Any objections to the clerk’s official time must be made by this unofficial timer during the trial,
before the verdict is rendered. The judge shall determine if there has been a rule violation and
whether to accept the clerk’s time or make a time adjustment. Only official team members in the
above-stated roles may serve as unofficial timers.
To conduct a time check, request one from the presider and ask the official timekeeper how much
time he or she has recorded in every completed category for both teams. Compare the times with
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your records. If the times differ significantly, notify the presider and ask for a ruling as to the time
remaining. If the presider approves your request, consult with the attorneys and determine if you
want to add or subtract time in any category. If the judge does not allow a consultation, you may
make any requests for adjustments. You may use the following sample questions and statements:
“Your honor, before bringing the next witness, may I compare time records with the official
timekeeper?”
“Your honor, there is a discrepancy between my records and those of the official timekeeper. May
I consult with the attorneys on my team before requesting a ruling from the court?”
“Your honor, we respectfully request that ___ minutes/seconds be subtracted from the
prosecution’s (direct examination/cross examination/etc.).”
“Your honor, we respectfully request that ___ minutes/seconds be added to the defense (direct
examination/cross-examination/etc.).”
Be sure not to interrupt the trial for small time differences; your team should determine in advance a
minimum time discrepancy to justify interrupting the trial. Be prepared to show your records and
defend your requests.
TEAM MANAGER
Your team may also select a member to serve as team manager. Any team member, regardless of
his or her official Mock Trial role, may serve as team manager. The manager is responsible for
keeping a list of phone numbers of all team members and ensuring that everyone is informed of the
schedule of meetings. In case of illness or absence, the manager should also keep a record of all
witness testimony and a copy of all attorney notes so that another team member may fill in if
necessary.
PROCEDURES FOR PRESENTING A MOCK TRIAL CASE
Introduction of Physical Evidence
Attorneys may introduce physical exhibits, if any are listed under the heading “Evidence,” provided
that the objects correspond to the description given in the case materials. Below are the steps to
follow when introducing physical evidence (maps, diagrams, etc.). All items are presented prior to
trial.
1.
Present the item to an attorney for the opposing team prior to trial. If that attorney objects to use
of the item, the judge will rule whether it fits the official description.
2.
When you first wish to introduce the item during trial, request permission from the judge: “Your
honor, I ask that this item be marked for identification as Exhibit # .”
3.
Show the item to the witness on the stand. Ask the witness if he or she recognizes the item. If
the witness does, ask him or her to explain it or answer questions about it. (Make sure that you
show the item to the witness; don’t just point!)
4.
When you finish using the item, give it to the judge to examine and hold until needed again by
you or another attorney.
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Moving the Item Into Evidence
Exhibits must be introduced into evidence if attorneys wish the court to consider the items
themselves as evidence, not just the testimony about the exhibits. Attorneys must ask to move the
item into evidence at the end of the witness examination.
1.
“Your honor, I ask that this item (describe) be moved into evidence as People’s (or Defendant’s)
Exhibit # and request that the court so admit it.”
2.
At this point, opposing counsel may make any proper objections.
3.
The judge will then rule on whether the item may be admitted into evidence.
The Opening Statement
The opening statement outlines the case as you intend to present it. The prosecution delivers the first
opening statement. A defense attorney may follow immediately or delay the opening statement until
the prosecution has finished presenting its witnesses. A good opening statement should:
-
Explain what you plan to prove and how you will prove it.
Present the events of the case in an orderly sequence that is easy to understand.
Suggest a motive or emphasize a lack of motive for the crime.
Begin your statement with a formal address to the judge:
“Your honor, my name is
(full name), the prosecutor representing the people of the state
of California in this action;” or
“Your honor, my name is
(full name), counsel for
(defendant) in this action.”
Proper phrasing includes:
“The evidence will indicate that . . .”
“The facts will show. . . ”
“Witness
(full name) will be called to tell . . .”
“The defendant will testify that . . .”
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 all of the facts favorable to your position.
Ask the witness to tell the story rather than using leading questions, which call for “yes” or “no”
answers. (An opposing attorney may object to the use of leading questions on direct
examination. See “Leading Questions,” page 56.)
Make the witness seem believable.
Keep the witness from rambling about unimportant matters.
Call for the witness with a formal request:
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“Your honor, I would like to call
(name of witness) to the stand.”
The witness will then be sworn in before testifying.
After the witness swears to tell the truth, you may wish to ask some introductory questions to make
the witness feel comfortable. Appropriate inquiries include:
-
The witness’s name.
Length of residence or present employment, if this information helps to establish the witness’s
credibility.
Further questions about professional qualifications, if you wish to qualify the witness as an
expert.
Examples of proper questions on direct examination:
“Could you please tell the court what occurred on
“What happened after the defendant slapped you?”
“How long did you see . . .?”
“Did anyone do anything while you waited?”
“How long did you remain in that spot?”
(date)?”
Conclude your direct examination with:
“Thank you, Mr./Ms.
(name of witness). That will be all, your honor.” (The witness
remains on the stand for cross-examination.)
Cross-Examination
Cross-examination follows the opposing attorney’s direct examination of the 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 the Fact Situation.
- Use leading questions, which are designed to get “yes” and “no” answers.
- Never give the witness a chance to unpleasantly surprise the attorney.
In an actual trial, cross-examination is restricted to the scope of issues raised on direct examination.
Because Mock Trial attorneys are not permitted to call opposing witnesses as their own, the scope of
cross-examination in a Mock Trial is not limited in this way.
Examples of proper questions on cross-examinations:
“Isn’t it a fact that . . .?”
“Wouldn’t you agree that . . .?”
“Don’t you think that . . .?”
“When you spoke with your neighbor on the night of the murder, weren’t you wearing a red
shirt?”
Cross-examination should conclude with:
“Thank you, Mr./Ms.
(name of witness). That will be all, your honor.”
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Impeachment During Cross-Examination
During cross-examination, the attorney may want to show the court that the witness should not be
believed. This is called impeaching the witness. It may be done by asking questions about prior
conduct that makes the witness’s credibility (believability) doubtful. Other times, it may be done by
asking about evidence of criminal convictions.
A witness also may be impeached by introducing the witness’s statement and asking the witness
whether he or she has contradicted something in the statement (i.e., identifying the specific
contradiction between the witness’s statement and oral testimony).
Example: (Prior conduct)
“Is it true that you beat your nephew when he was 6-years-old and broke his arm?”
Example: (Past conviction)
“Is it true that you’ve been convicted of assault?”
(NOTE: These types of questions may only be asked when the questioning attorney has information
that indicates that the conduct actually happened.)
Examples: (Using signed witness statement to impeach)
“Mr. Jones, do you recognize the statement I have had the clerk mark Defense Exhibit A?”
“Would you read the third paragraph aloud to the court?”
“Does this not directly contradict what you said on direct examination?”
Re-Direct Examination
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 any issue brought out
during direct examination. Attorneys may or may not want to conduct re-direct examination. If an
attorney asks questions beyond the issues raised on cross, they may be objected to as “outside the
scope of cross-examination.” It is sometimes more beneficial not to conduct re-direct for a particular
witness. To properly decide whether it is necessary to conduct re-direct examination, the attorneys
must pay close attention to what is said during the cross-examination of their witnesses.
If the credibility or reputation for truthfulness of a witness has been attacked on cross-examination,
the attorney whose witness has been damaged may wish to “save” the witness through re-direct.
These questions should be limited to the damage the attorney thinks has been done and should
enhance the witness’s truth-telling image in the eyes of the court.
Work closely with your attorney coach on re-direct strategies.
Closing Arguments
A good closing argument summarizes the case in the light most favorable to your position. The
prosecution delivers the first closing argument. The closing argument of the defense attorney
concludes the presentations. A good closing argument should:
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- Be spontaneous, synthesizing what actually happened in court rather than being
“pre-packaged.” NOTE: Points will be deducted from the closing argument score if
concluding remarks do not actually reflect statements and evidence presented during the
trial.
- Be emotionally charged and strongly appealing (unlike the calm opening statement).
- Emphasize the facts that support the claims of your side, but not raise any new facts.
- Summarize the favorable testimony.
- Attempt to reconcile inconsistencies that might hurt your side.
- Be well-organized. (Starting and ending with your strongest point helps to structure the
presentation and gives you a good introduction and conclusion.)
- The prosecution should emphasize that the state has proven guilt beyond a reasonable doubt.
- The defense should raise questions that suggest the continued existence of a reasonable doubt.
Proper phrasing includes:
“The evidence has clearly shown that . . . ”
“Based on this testimony, there can be no doubt that . . . ”
“The prosecution has failed to prove that . . . ”
“The defense would have you believe that . . . ”
Conclude the closing argument with an appeal to convict or acquit the defendant.
An attorney has one minute for rebuttal. Only issues that were addressed in an opponent’s closing
argument may be raised during rebuttal.
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DIAGRAM OF A TYPICAL COURTROOM
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MOCK TRIAL SIMPLIFIED RULES OF EVIDENCE
Criminal trials are conducted using strict rules of evidence to promote fairness. To participate in a
Mock Trial, you need to know about the role that evidence plays in trial procedure. Studying the
rules will prepare you to make timely objections, avoid pitfalls in your own presentations, and
understand some of the difficulties that arise in actual cases. The purpose of using rules of evidence
in the competition is to structure the presentations to resemble an actual trial.
Almost every fact stated in the materials will be admissible under the rules of evidence. All evidence
will be admitted unless an attorney objects. Because rules of evidence are so complex, you are not
expected to know the fine points. To promote the educational objectives of this program, students are
restricted to the use of a select number of evidentiary rules in conducting the trial.
Objections
It is the responsibility of the party opposing the evidence to prevent its admission by a timely and
specific objection. Objections not raised in a timely manner are waived. An effective objection is
designed to keep inadmissible testimony, or testimony harmful to your case, from being
admitted. A single objection may be more effective than several objections. Attorneys can and
should object to questions that call for improper answers before the answer is given.
For the purposes of this competition, teams will be permitted to use only certain types of
objections. The allowable objections are summarized on page 59 of this packet. Other objections
may not be raised at trial. As with all objections, the judge will decide whether to allow the
testimony, strike it, or simply note the objection for later consideration. Judges’ rulings are final.
You must continue the presentation even if you disagree. A proper objection includes the following
elements:
(1) attorney addresses the judge,
(2) attorney indicates that he or she is raising an objection,
(3) attorney specifies what he or she is objecting to, e.g., the particular word, phrase or question,
and
(4) attorney specifies the legal grounds that the opposing side is violating.
Example: “(1) Your honor, (2) I object (3) to that question (4) because it is a compound question.”
Allowable Evidentiary Objections
1. Facts Outside the Record (FOR)
This objection is specific to the competition and is not an ordinary rule of evidence. The FOR
objection applies if a witness creates new facts not included in and which cannot be reasonably
inferred from his or her official record.
Form of Objection: “Objection, your honor. The answer is creating a material fact that is not in
the record,” or “Objection, your honor. The question seeks material testimony that goes
beyond the scope of the record.”
2. Relevance
Relevant evidence makes a fact that is important to the case more or less probable than the fact
would be without the evidence. To be admissible, any offer of evidence must be relevant to an issue
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in the trial. The court may exclude relevant evidence if it is unfairly prejudicial, confuses the issues,
or is a waste of time.
Either direct or circumstantial evidence may be admitted in court. Direct evidence proves the fact
asserted without requiring an inference. A piece of circumstantial (indirect) evidence is a fact (Fact
1) that, if shown to exist, suggests (implies) the existence of an additional fact (Fact 2), (i.e., if Fact
1, then probably Fact 2). The same evidence may be both direct and circumstantial depending on its
use.
Example:
Eyewitness testimony that the defendant shot the victim is direct evidence of the
defendant’s assault. Testimony establishing that the defendant had a motive to shoot
the victim, or that the defendant was seen leaving the victim’s apartment with a
smoking gun, is circumstantial evidence of the defendant’s assault.
Form of Objection: “Objection, your honor. This testimony is not relevant to the facts of this
case. I move that it be stricken from the record.” or
“Objection, your honor. Counsel’s question calls for irrelevant testimony.”
3. Laying a Proper Foundation
To establish the relevance of circumstantial evidence, you may need to lay a foundation. Laying a
proper foundation means that, before a witness can testify to certain facts, it must be shown that the
witness was in a position to know about those facts.
Sometimes when laying a foundation, the opposing attorney may object to your offer of proof on the
ground of relevance, and the judge may ask you to explain how the offered proof relates to the case.
Example:
If attorney asks a witness if he saw X leave the scene of a murder, opposing counsel
may object for a lack of foundation. The questioning attorney should ask the witness
first if he was at or near the scene at the approximate time the murder occurred. This
lays the foundation that the witness is legally competent to testify to the underlying
fact.
Form of Objection: “Objection, your honor. There is a lack of foundation.”
4. Personal Knowledge
A witness may not testify about any matter of which the witness has no personal knowledge. Only if
the witness has directly observed an event may the witness testify about it. Witnesses will sometimes
make inferences from what they actually did observe. An attorney may properly object to this type of
testimony because the witness has no personal knowledge of the inferred fact.
Example:
From around a corner, the witness heard a commotion. Upon investigating, the
witness found the victim at the foot of the stairs, and saw the defendant on the
landing, smirking. The witness cannot testify over the defense attorney’s objection
that the defendant had pushed the victim down the stairs, even though this inference
seems obvious.
Form of Objection: “Objection, your honor. The witness has no personal knowledge to answer
that question.” or
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“Your honor, I move that the witness’s testimony about . . . be stricken from the case because
the witness has been shown not to have personal knowledge of the matter.” (This motion would
follow cross-examination of the witness that revealed the lack of a basis for a previous
statement.)
5. Character Evidence
Witnesses generally cannot testify about a person’s character unless character is an issue. Such
evidence tends to add nothing to the crucial issues of the case. (The honesty of a witness, however, is
one aspect of character always at issue.) In criminal trials, the defense may introduce evidence of the
defendant’s good character and, if relevant, show the bad character of a person important to the
prosecution’s case. Once the defense introduces evidence of character, the prosecution can try to
prove the opposite. These exceptions are allowed in criminal trials as an extra protection against
erroneous guilty verdicts.
Examples:
1. The defendant’s minister testifies that the defendant attends church every week and has a
reputation in the community as a law-abiding person. This would be admissible.
2.
The prosecutor calls the owner of the defendant’s apartment to testify. She testifies that the
defendant often stumbled in drunk at all hours of the night and threw wild parties. This would
probably not be admissible unless the defendant had already introduced evidence of good
character. Even then, the evidence and the prejudicial nature of the testimony might outweigh
its probative value making it inadmissible.
Form of Objection: “Objection, your honor. Character is not an issue here,” or
“Objection, your honor. The question calls for inadmissible character evidence.”
6. Opinion of Lay Witness (non-expert)
Opinion includes inferences and other subjective statements of a witness. In general, lay witness
opinion testimony is inadmissible. It is admissible where it is (a) rationally based upon the
perception of the witness and (b) helpful to a clear understanding of the testimony. Opinions based
on a common experience are admissible. Some common examples of admissible lay witness
opinions are speed of a moving object, source of an odor, appearance of a person, state of emotion,
or identity of a voice or handwriting.
Example:
A witness could testify that, “I saw the defendant who was elderly, looked tired, and
smelled of alcohol.” All of this statement is proper lay witness opinion testimony as
long as there is personal knowledge and a proper foundation.
Form of Objection: “Objection, your honor. The question calls for inadmissible opinion
testimony on the part of the witness. I move that the testimony be stricken from the record.”
7. Expert Witness and Opinion Testimony
An expert witness may give an opinion based on professional experience. A person may be qualified
as an expert if he or she has special knowledge, skill, experience, training, or education. Experts
must be qualified before testifying to a professional opinion. Qualified experts may give an opinion
based upon personal observations as well as facts made known to them outside the courtroom. The
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facts need not be admissible evidence if it is the type reasonably relied upon by experts in the field.
Experts may give opinions on ultimate issues in controversy at trial. In a criminal case, an expert
may not state an opinion as to whether the defendant did or did not have the mental state in issue.
Example:
A doctor bases her opinion upon (1) an examination of the patient and
(2) medically relevant statements of patient’s relatives. Personal examination is
admissible because it is relevant and based on personal knowledge. The statements of
the relatives are inadmissible hearsay but are proper basis for opinion testimony
because they are reasonably relevant to a doctor’s diagnosis.
Form of Objection: “Objection, your honor. There is a lack of foundation for opinion
testimony,” or
“Objection, your honor. The witness is improperly testifying to defendant’s mental state in
issue.”
8. Hearsay
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Hearsay is
considered untrustworthy because the speaker of the out-of-court statement is not present and under
oath and therefore cannot be cross-examined. Because these statements are unreliable, they ordinarily
are not admissible.
Testimony not offered to prove the truth of the matter asserted is, by definition, not hearsay. For
example, testimony to show that a statement was said and heard, to show that a declarant could speak
in a certain language, or to show the subsequent actions of a listener is admissible.
Examples:
1. Joe is being tried for murdering Henry. The witness testifies, “Ellen told me that Joe killed
Henry.” If offered to prove that Joe killed Henry, this statement is hearsay and probably
would not be admitted over an objection.
2.
However, if the witness testifies, “I went looking for Eric because Sally told me that Eric did
not come home last night,” this could be admissible. This is an out-of-court statement, but is
not offered to prove the truth of its contents (that Eric did not come home). Instead, it is being
introduced to show why the witness looked for Eric.
Form of Objection: “Objection, your honor. Counsel’s question calls for hearsay.” or
“Objection, your honor. This testimony is hearsay. I move that it be stricken from the record.”
Out of practical necessity, courts have recognized certain general categories of hearsay that may be
admissible. Exceptions have been made for certain types of out-of-court statements based on
circumstances that promote greater reliability. The exceptions listed below and any other proper
responses to hearsay objections may be used in the Mock Trial. Work with your attorney
coach on the exceptions that may arise in this case.
a. Admission against interest by a party opponent—a statement made by a party to the legal
action of the existence of a fact that helps the cause of the other side. (An admission is not limited
to words, but may also include the demeanor, conduct, and acts of a person charged with a crime.)
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b. Excited utterance—a statement made shortly after a startling event, while the declarant is still
excited or under the stress of excitement.
c. State of mind—a statement that shows the declarant’s mental, emotional, or physical condition.
d. Declaration against interest—a statement that puts declarant at risk of civil or criminal liability.
e. Records made in the regular course of business
f. Official records and writings by public employees
g. Past recollection recorded—something written by a witness when events were fresh in that
witness’s memory, used by the witness with insufficient recollection of the event and read to the
trier of fact. (The written material is not admitted as evidence.)
h. Statements for the purpose of medical diagnosis or treatment
i. Reputation of a person’s character in the community
j. Dying declaration—a statement made by a dying person respecting the cause and circumstances
of his or her death, which was made upon that person’s personal knowledge and under a sense of
immediately impending death.
k. Co-conspirator’s statements—(a) The statement was made by the declarant while participating
in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of that
conspiracy; (b) the statement was made prior to or during the time that the party was participating
in that conspiracy; and (c) the evidence is offered either after admission of evidence sufficient to
sustain a finding of the facts specified in (a) and (b) or, in the court’s discretion as to the order of
proof, subject to the admission of this evidence.
Allowable Objections for Inappropriately Phrased Questions
9. Leading Questions
Attorneys may not ask witnesses leading questions during direct examination. A leading question is
one that suggests the answer desired. Leading questions are permitted on cross-examination.
Example:
Counsel for the prosecution asks the witness, “During the conversation, didn’t the defendant
declare that he would not deliver the merchandise?”
Counsel could rephrase the question, “What, if anything, did the defendant say during this
conversation about delivering the merchandise?”
Form of Objection: “Objection, your honor. Counsel is leading the witness.”
10. Compound Question
A compound question joins two alternatives with “and” or “or,” preventing the interrogation of a
witness from being as rapid, distinct, or effective for finding the truth as is reasonably possible.
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Example:
“Did you determine the point of impact from conversations with witnesses and from
physical marks, such as debris in the road?”
Form of Objection: “Objection, your honor, on the ground that this is a compound question.”
The best response if the objection is sustained on these grounds would be, “Your honor, I will
rephrase the question,” and then break down the question accordingly. Remember that there may be
another way to make your point.
11. Narrative
A narrative question is too general and calls for the witness in essence to “tell a story” or make a
broad-based and unspecific response. The objection is based on the belief that the question seriously
inhibits the successful operation of a trial and the ultimate search for the truth.
Example:
The attorney asks A, “Please tell us all of the conversations you had with X before X
started the job.”
The question is objectionable, and the objections should be sustained.
Form of Objection: “Objection, your honor. Counsel’s question calls for a narrative.”
Other Objections
12. Argumentative Question
An argumentative question challenges the witness about an inference from the facts in the case. A
cross-examiner may, however, legitimately attempt to force the witness to concede the historical fact
of a prior inconsistent statement.
Questions such as “How can you expect the judge to believe that?” are argumentative and
objectionable. The attorney may argue the inferences during summation or closing argument, but the
attorney must ordinarily restrict his or her questions to those calculated to elicit facts.
Form of Objection: “Objection, your honor. Counsel is being argumentative.” or
“Objection, your honor. Counsel is badgering the witness.”
13. Asked and Answered
Witnesses should not be asked a question that has previously been asked and answered. This can
seriously inhibit the effectiveness of a trial.
Examples:
1. On Direct Examination—Counsel A asks B, “Did X stop for the stop sign?” B answers,
“No, he did not.” A then asks, “Let me get your testimony straight. Did X stop for the stop
sign?”
Counsel for X correctly objects and should be sustained.
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BUT:
2. On Cross-Examination—Counsel for X asks B, “Didn’t you tell a police officer after the
accident that you weren’t sure whether X failed to stop for the stop sign?” B answers, “I don’t
remember.” Counsel for X then asks, “Do you deny telling him that?”
Counsel A makes an asked and answered objection. The objection should be overruled.
Why? It is sound policy to permit cross-examining attorneys to ask the same question more
than once in order to conduct a searching probe of the direct examination testimony.
Form of Objection: “Objection, your honor. This question has been asked and answered.”
14. Vague and Ambiguous Questions
Questions should be clear, understandable, and as concise as possible. The objection is based on the
notion that witnesses cannot answer questions properly if they do not understand the questions.
Example:
“Does it all happen at once?”
Form of Objection: “Objection, your honor. This question is vague and ambiguous as to what
‘it’ refers to.”
15. Non-Responsive Witness
Sometimes a witness’s reply is too vague and doesn’t give the details the attorney is asking for, or
the witness “forgets” the event in question. This is often purposefully used by the witness as a tactic
to prevent some particular evidence from being brought forth.
Form of Objection: “Objection, your honor. The witness is being non-responsive.”
16. Outside the Scope of Cross-Examination
Re-direct examination is limited to issues raised by the opposing attorney on cross-examination. If an
attorney asks questions beyond the issues raised on cross, opposing counsel may object to them.
Form of objection: “Objection, your honor. Counsel is asking the witness about matters that did
not come up in cross-examination.”
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SUMMARY OF ALLOWABLE EVIDENTIARY OBJECTIONS
FOR THE CALIFORNIA MOCK TRIAL
1.
Facts Outside the Record: “Objection, your honor. The answer is creating a material fact
that is not in the record,” or “Objection, your honor. The question seeks testimony that goes
beyond the scope of the record.”
2.
Relevance: “Objection, your honor. This testimony is not relevant to the facts of this case. I
move that it be stricken from the record,” or “Objection, your honor. Counsel’s question calls
for irrelevant testimony.”
3.
Foundation: “Objection, your honor. There is a lack of foundation.”
4.
Personal Knowledge: “Objection, your honor. The witness has no personal knowledge to
answer that question,” or “Your honor, I move that the witness’s testimony about be
stricken from the case because the witness has been shown not to have personal knowledge of
the matter.”
5.
Character: “Objection, your honor. Character is not an issue here,” or “Objection, your
honor. The question calls for inadmissible character evidence.”
6.
Opinion: “Objection, your honor. The question calls for inadmissible opinion testimony (or
inadmissible speculation) on the part of the witness.”
7.
Expert Opinion: “Objection, your honor. There is lack of foundation for opinion testimony,”
or “Objection, your honor. The witness is improperly testifying to defendant’s mental state in
issue.”
8.
Hearsay: “Objection, your honor. Counsel’s question calls for hearsay,” or “Objection, your
honor. This testimony is hearsay. I move that it be stricken from the record.”
**A list of hearsay exceptions is listed on pages 49-55 of this case packet.
9.
Leading Question: “Objection, your honor. Counsel is leading the witness.”
10.
Compound Question: “Objection, your honor. This is a compound question.”
11.
Narrative: “Objection, your honor. Counsel’s question calls for a narrative.”
12.
Argumentative Question: “Objection, your honor. Counsel is being argumentative,” or
“Objection, your honor. Counsel is badgering the witness.”
13.
Asked and Answered: “Objection, your honor. This question has been asked and answered.”
14.
Vague and Ambiguous: “Objection, your honor. This question is vague and ambiguous as to
_________.”
15.
Non-Responsive: “Objection, your honor. The witness is being non-responsive.”
16.
Outside Scope of Cross: “Objection, your honor. Counsel is asking the witness about
matters that did not come up in cross-examination.”
59
Law-Related Material From Constitutional Rights Foundation
Criminal Justice in America
Grades: 9–12
Criminal Justice in America, CRF’s most popular publication, is the most comprehensive secondary
text available on the subjects of criminal law, procedure, and criminology. It can serve as a text for
an entire law-related education course or as a supplement for civics, government, or contemporaryissues courses.
Its extensive readings are supported by:
•
Directed Discussions
•
Role Plays
•
Mock Trials
•
Cooperative and Interactive Exercises
•
Activities to Involve Outside Resource Experts
•
Research Activities for Students to Use the Library or Internet
The Student Edition is divided into six units:
1.
Crime includes sections on victim rights, history of crime, methods for measuring crime,
white-collar crime, cybercrime, violent crime, property crime, youth gangs, elements of
crimes, and legal defenses to crime.
2.
Police includes sections on history of law enforcement, criminal investigations, crime labs,
search and seizure, interrogations and confessions, the exclusionary rule, the use of force,
racial profiling, corruption, and police-community relations.
3.
The Criminal Case explores a hypothetical criminal case from arrest through trial. It
includes all the key steps of the criminal trial process. It also has sections on judges, judicial
independence, the court system, and defense attorneys and prosecutors.
4.
Corrections includes sections on theories of punishment, history of corrections, sentencing,
alternatives to incarceration, prison conditions, parole, recidivism, capital punishment, and
current debates on corrections such as whether too many people are behind bars.
5.
Juvenile Justice includes sections on the history of the juvenile system, delinquency, status
offenses, steps in a juvenile case, rights of juveniles, juvenile corrections, transfer to the adult
system, and death penalty for juveniles.
6.
Solutions includes sections on the debates over the cause of crime, racism in the justice
system, history of vigilantism, policy options to reduce crime and make the criminal justice
system fairer, and options for individual citizens.
The Teacher’s Edition, a comprehensive guide, provides detailed descriptions of teaching strategies,
activity masters, chapter and final tests, background readings, and extra resources to supplement the
text.
In addition, our frequently updated web site offers links to supplementary readings, the latest
statistics, almost every case mentioned in the text, and much more. To purchase any publication, go
to www.crf-usa.org.
Criminal Justice in America
#10100CMT Student Edition, 320 pp.
#10101CMT Teacher’s Guide, 80 pp.
#10102CMT Set of 10 Student Editions
$15.95 ea.
$8.95 ea.
$151.95
60
CityWorks
Engaging Students in Government
Grades 9–12
CityWorks is a standards-based, local government curriculum designed to fit into any civics or
government class. An independent, multi-year, research-based study released in 2002 concluded that
classes using CityWorks improved student knowledge of both regular and local government and
helped prepare students for effective citizenship by increasing student civic competencies as
compared to students in traditional government courses.
Students become citizens of the fictional city of Central Heights, learn about issues of state and local
government, and practice critical-thinking skills. Along the way, they take on the role of local
political leaders and active citizens to address political and social issues facing the community.
The curriculum has two elements:
Six interactive lesson modules centering on specific local government content, such as the
executive, legislative, and judicial functions of local government and on realistic public policy
issues, such as the economy and crime and safety.
CityWorks Project activities follow each lesson. These activities and assignments help students
explore problems, institutions, and public policy issues in their own community. Students are guided
through a civics-based service-learning project that addresses a local community problem they have
studied.
CityWorks curriculum materials consist of three components:
The CityWorks Teacher’s Guide includes everything you need—lessons, reproducible masters for
all lesson handouts (including the Bugle), instructions for the CityWorks project activities, and
reproducible masters of the Student Handbook.
The Central Heights Bugle, six issues of a simulated newspaper in class sets of 35. Each edition is
linked to one of the lessons in the Teacher’s Guide and provides students with readings and
information for the lesson.
A Student Handbook containing detailed instructions for completing the CityWorks project
activities and serving as a portfolio for students to record much of their work.
CityWorks
#35351CMT Teacher’s Guide
#35355CMT Student Handbook
(Set of 35)
#35360CMT Central Heights Bugle
Class Set (6 issues, 35 ea.)
$39.95
$64.95
$115.95
PowerPoint Presentations—The Constitution & Bill of Rights
Grades 4–8
CRF introduces four colorful, animated Power Point presentations to provide social-studies teachers
with content on the Constitution and classroom activities. Each presentation includes a teacher’s
guide with talking points to accompany the content presentation, step-by-step teaching procedures
for the activity, and student handout masters.
The Constitution & Bill of Rights: An Introduction tells the story of the development of the
Constitution and the Bill of Rights. It offers a focus discussion, walks students through the creation
of the Constitution, and introduces each of the first 10 amendments of the Bill of Rights and the
13th, 14th, 15th, and 19th amendments. In addition, it includes a graphic version of “A Visitor From
61
Outer Space,” an exciting interactive activity that asks students to determine which rights are most
important to them.
#107400CMT $16.95 (CD-ROM, PC Compatible)
The Constitution and the Bill of Rights: Due Process introduces students to the concept of due
process and related amendments from the Bill of Rights. It also explains the trial and appellate court
systems. In addition, it includes a moot-court activity based on California v. Greenwood, a landmark
U.S. Supreme Court case on whether a person has a right to privacy in articles thrown in the trash
and put out for collection.
#10741CMT $16.95 (CD-ROM, PC Compatible)
The Constitution & Bill of Rights: Equal Protection introduces students to the concept of equal
protection. It also includes a moot court activity, “Gratz v. Bollinger: A Supreme Court Case.” In
this activity, students apply what they have learned about equal protection by preparing and
presenting moot-court arguments on a recent affirmative-action case.
#10742CMT $16.95 (CD-ROM, PC Compatible)
The Constitution & Bill of Rights: Free Expression introduces students to the concept of free
expression as outlined in the First Amendment. In addition, it includes a moot court activity,
Hazelwood v. Kuhlmeier: A Supreme Court Case. In this activity, students apply what they have
learned about free expression and the First Amendment by preparing and presenting a moot-court
case on school newspapers.
#10743CMT $16.95 (CD-ROM, PC Compatible)
CRF’s Challenge Series
Grades 9–12
The four volumes in the Challenge series help students understand and evaluate controversial topics.
The volumes cover four areas of crucial interest to our society: violence, information, diversity, and
governance. Made possible by a generous grant from the W.M. Keck Foundation of Los Angeles,
these supplemental materials feature balanced readings, guided discussions, and interactive lessons
designed to address key challenges to our democracy. Each volume is 72 pages long and is fully
illustrated with photos, graphs, and charts. Each comes with a teacher’s guide with reproducible
handouts and step-by-step instructions for high-interest interactive activities that foster critical
thinking.
The Challenge of Violence challenges students to grapple with one of America's most vexing
problems—violence. It is divided into three units:
Unit 1: The Problem of Violence places the problem of violence in a historical context. It also
explores the problems of violence today, including gangs, youth violence, and causes and risk factors
of violence.
Unit 2: Law and Public Policy examines how law and public policy at the national, state, and local
levels seek to address the problem. Students engage in crucial societal debates over proposed
solutions, including punishment versus prevention, gun control, curfews, and school uniforms.
Unit 3: Taking Action Against Violence helps students move beyond the classroom and learn how
to take action against violence in their own lives and communities.
The Challenge of Violence
#10800CMT Student Edition, 72 pp.
$9.95
#10801CMT Teacher’s Guide, 47 pp.
$8.95
#10802CMT Set of 10 Student Editions
$94.95
62
The Challenge of Information examines issues surrounding information and the media. This highinterest book is divided into five units:
Unit 1: A Free Press covers basic constitutional issues dealing with the media and free press. It
begins by explaining how the free press developed historically. It then examines landmark First
Amendment cases and explores issues involving the right to know.
Unit 2: A Responsible Press looks into problems of press ethics, such as the use of questionable
sources, the influence of advertising on editorial content, tabloid journalism, undercover journalism,
and the violent content of local broadcast news coverage.
Unit 3: Free Press–Fair Trial discusses issues involving the press and criminal justice system. It
explores problems related to high-profile cases such as the trial of O.J. Simpson and evaluates
whether reporters should have to reveal their sources in court.
Unit 4: The Myth Makers encourages students to take a critical look at information. It gives
students background for evaluating urban myths and rumors, conspiracy theories, and claims of
paranormal phenomena.
Unit 5: New Frontiers addresses policy issues relating to the Internet. It looks at the growth of the
Internet and at issues surrounding hate speech and indecency on the Internet.
The Challenge of Information
#10810CMT Student Edition, 72 pp.
$9.95
#10811CMT Teacher’s Guide, 47 pp.
$8.95
#10812CMT Set of 10 Student Editions
$94.95
The Challenge of Diversity gives students with an in-depth look at issues of racial and ethnic
diversity in the United States. The book is divided into five units:
Unit 1: The Ideal of Equality traces the development of equal protection from slavery and the
Constitution to the Civil War amendments.
Unit 2: A Diverse Nation provides a brief historical review of the experience and struggles of
various ethnic groups during the 19th and first half of the 20th century.
Unit 3: Civil Rights Movement covers the turbulent period between 1954 and 1975 that changed
America forever. It examines the social protests, landmark Supreme Court decisions, the Civil Rights
Act of 1964 and Voting Rights Act of 1965, and Mexican American activism.
Unit 4: Issues and Policies explores current issues of diversity—affirmative action, bilingual
education, multiculturalism, reparations, hate crimes, and the extent of progress in race relations.
Unit 5: Bringing Us Together tells of governmental and grassroots efforts to bring people together
and provides students with ideas and resources for service-learning projects.
The Challenge of Diversity
#10820CMT Student Edition, 72 pp.
$9.95
#10821CMT Teacher’s Guide, 47 pp.
$8.95
#10822CMT Set of 10 Student Editions
$94.95
The Challenge of Governance is designed to help students gain proficiency in meeting the National
Standards for Civics and Government. It goes through every standard and provides an exciting
activity to reinforce learning. It covers the Constitution, republicanism, civil society, equality,
conflicts, taxation, state and local government, the branches of government, the public agenda,
elections, public policy, foreign policy, and much, much more. Perfect for a review of all the
government standards.
The Challenge of Governance
#10830CMT Student Edition, 72 pp.
$9.95
#10831CMT Teacher’s Guide, 47 pp.
$8.95
#10832CMT Set of 10 Student Editions
$94.95
63
CONSTITUTIONAL RIGHTS FOUNDATION 2004 MAJOR DONORS*
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Constitutional Rights Foundation gratefully thanks
the Daily Journal Corporation for its generous contribution of printing the
Official Materials for the California Mock Trial Program.
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