The Cleveland Municipal Court
In partnership with the
Cleveland Metropolitan Bar
Association
Present the
2016 Mock Trial
Competition
For the
Cleveland Metropolitan School
District
Friday, May 6, 2016
Table of Contents
Case Summary
3
Witness Statements
For the Prosecution:
Statement of Officer Jody Price
6
Statement of Principal Chris Jackson
7
Statement of Peyton Lloyd
8
For the Defense:
Statement of Defendant Dana Lewis
10
Statement of Jaime Rodriguez
12
Statement of Dr. Pat Simon
13
Exhibits
16
The Law
20
Enhance Your Case
24
Issues at Stake/Writing Exercise
24
Competition Instructions
26
Simplified Rules of Evidence and Procedure
33
Courtroom Pointers
47
Mock Trial Team Entry Form
51
Writing Competition
52
Case materials written by Cleveland Mock Trial Coordinators Judge Lauren Moore of the Cleveland Municipal Court and Jessica
Paine of the Cleveland Metropolitan Bar Association, with contributions by Matthew Hribar, John Carroll University intern.
20th ANNUAL CLEVELAND MUNICIPAL COURT
MOCK TRIAL COMPETITION
The City of Cleveland v. Dana Lewis
Case Summary
Witnesses for the Prosecution:
• Police Officer Jody Price
• Principal Chris Jackson
• Peyton Lloyd, eyewitness
Witnesses for the Defense:
• Dana Lewis, Defendant
• Jaime Rodriguez, Dana’s friend
• Dr. Pat Simon, psychologist
Case Narrative:
On October 22, 2015, a small, peaceful demonstration led by some disgruntled high school students grew
into a large, violent confrontation between the police and various activist groups from all over the city of
Cleveland. The entire episode, which began at about 1:00 p.m. and concluded later that night at about
8:00 p.m., resulted in some property damage, one police officer being seriously injured and several
demonstrators being pepper-sprayed and roughed-up. Ten members of the organization called
Immigrant Lives Matter were arrested for a variety of offenses, including defendant Dana Lewis.
Dana Lewis is a high school senior at Cleveland High School and a prominent member of the progressive
group Immigrant Lives Matter. Earlier in the fall, the locker of Dana’s good friend, Adnan Sarraf, was
painted with anti-immigrant and anti-Muslim slurs and photos. No students were punished for the act,
which led Dana to complain to Cleveland High School Principal Chris Jackson. Jackson told Dana that
since they couldn’t conclusively prove who had defaced Adnan’s locker, no action would be taken by the
school.
Dana was very upset that Principal Jackson wouldn’t investigate the incident. The next day Dana brought
a bullhorn to school and walked through the cafeteria at lunchtime yelling about the injustices at
Cleveland High School. Dana accused the principal of being racist and anti-Muslim, and said the school
policies were reflective of her/his prejudice. Dana said the students shouldn’t put up with it any more and
that they should all join in a protest. At first they were just going to take over the cafeteria, but later
decided to “take it to the streets,” especially after the principal called for the security guards and
threatened the participants with calling the police.
At 3:30 p.m., about 100 students spilled out of Cleveland High School and onto Euclid Avenue to continue
their protest and capture the attention of the whole city and perhaps the whole world, drawing attention to
what they called “terrible things” that were going on at their school. Principal Jackson had been the
principal for ten years, and under her/his management students were not allowed to start a Multicultural
Club or a girls’ softball team. Principal Jackson said multiculturalism was divisive and that nobody cared
about girls’ athletics. The students complained that the administration made them take Western
Civilization and British Literature, but refused to let the teachers teach African-American History or
Women’s Studies. Jackson did allow a Bible Club to form and supported it. Recently Principal Jackson
suspended several basketball players who wore black armbands during the game in protest of the death
of a young black Cleveland man named Jamal Wright, who was killed by the police in 2014 during an
arrest attempt. Jackson said the black armbands were disrespectful, disruptive, and ruined the
enjoyment of the game. For the protesting students, the incident with Adnan’s locker was the last straw.
3
The Cleveland High students walked down the street clapping and singing “We Shall Overcome.” They
were making impromptu signs that said “Jackson Not Fair,” “We Are All Immigrants, Too,” and “No H8 in
the 216.” Many of the students had their cell phones and accessed their Facebook, Twitter, and
Instagram accounts to urge others to come by and support their cause. Dana still used her/his bullhorn to
speak to passing motorists and pedestrians, some of whom showed support and some of whom showed
disapproval.
An hour later, the crowd had grown to several hundred people and had spilled out onto the roadway,
blocking traffic and a bus route. It was the beginning of rush hour and citizen annoyance grew. The
police were called to manage the scene.
When the police arrived, it was obvious that a full-blown protest was underway and participants included
people wearing t-shirts and carrying signs of all kinds: Immigrant Lives Matter, Justice for Jamal, We
Need a Minimum Wage, This Is What a Feminist Looks Like, Hands Up Don’t Shoot, Welcome Syrian
Refugees, Retire Chief Wahoo, I’m Muslim and I Love America, etc. Dana Lewis was standing on top of
a parked car, urging people to express their grievances and for the unification of all disaffected people.
At this point, there was no violence. Everyone was being peaceful while yelling, chanting, and waving
their signs. At one point late in the afternoon, some of the participants lay down in a line across the street
so that no traffic could pass. They disobeyed police commands to disperse. There were so many people
and because they couldn’t arrest everyone, the police redirected traffic so commuters could get home.
The news media arrived and began shooting footage of everything that was going on. Soon afterwards,
another group, the American Family Values Coalition, arrived and several of them were carrying rifles. A
few police officers challenged them and were told that they were merely exercising their Second
Amendment rights and reminded everyone listening that Ohio was an “open-carry” state, meaning that
they could carry their firearms openly. The Chief of Police told them that their presence was too
antagonistic but their spokesman, Peyton Lloyd, said “Too bad,” that it would be unconstitutional to make
them leave or put their guns away. “Besides,” Peyton said, “you may need a little help restoring law and
order. Look at all these liberal parasites.”
Dana heard this and spoke through her/his bullhorn. The following exchange, recorded by the local news,
occurred:
Dana Lewis: “Who are you calling a parasite? These are hard-working, enlightened human
beings and we are here for righteous causes. We care about people, not guns.”
Peyton Lloyd: “You’re the reason the country is in such terrible shape. You want illegals running
around taking everyone’s job, ISIS bombing Americans on our home turf, political correctness run
amok. You don’t respect police officers and you want to kill babies in the womb. Hardly
righteous causes.”
Lewis: “And you just want to deny people health care, a living wage, food stamps, and prance
around with your guns and pretend to be Clint Eastwood or somebody. You’re a joke! And why
is your Second amendment more precious than our First Amendment, you fascist creep?
Immigrant lives matter! Immigrant lives matter!”
Lloyd: “All lives matter, punk!”
Lewis: “Yeah, predictable response. You’re no better than the Nazis and the KKK. Where’s your
pointy white hood? You just dismiss the idea that we have to remind people that marginalized
people are important too and pretend that everyone gets treated and regarded the same way
when you know that’s not true.”
Lloyd: “Sure it is.”
4
Lewis: “That’s like shouting ‘All diseases matter; what about cancer?’ at a walkathon for
diabetes.”
Lloyd: “What?! That’s stupid.”
Lewis: “You’re stupid.”
Anonymous crowd member: “If all lives mattered, the police wouldn’t have thought Jamal Wright’s
Skittles and Snapple was a gun. He would’ve been given the benefit of the doubt.”
Several people joined in the argument between Dana and Peyton. Everyone was screaming and getting
in each others’ faces. Police and bystanders tried to separate the two groups to no avail. A few minutes
later, there was a gunshot and people scattered. Pandemonium ensued, fights broke out, and it was very
difficult for the police to regain order. During the confusion, a car was overturned and some storefront
windows were broken. It took at least an hour to disperse all the first and second amendment
demonstrators and all the onlookers.
Ten people, including Dana, were arrested. They were all members of Immigrant Lives Matter. No
members of the American Family Values Coalition were arrested. Police Officer Jody Price identified
Dana Lewis as the ringleader and instigator. They charged Dana with Disorderly Conduct, Riot,
Aggravated Riot, Resisting Arrest, and Criminal Damaging.
5
WITNESS STATEMENTS
FOR THE PROSECUTION
Statement of Officer Jody Price
I’m just one month away from retiring. I’m moving to Florida where I’ll do nothing but hunt and fish all
day. The last thing I needed in my last year on the job was a riot on my hands. But I got the call from
dispatch just as I was about to clock out and go to my side job doing security at the CVS. (Gotta have
enough money to pay for my cabin in Fort Lauderdale.) Yes, it was the same CVS that had its front
window shattered because of the irresponsible actions of that kid Dana Lewis. S/He was even yelling
“Burn it down, burn it down!” Had I not apprehended her/him when I did, who knows, someone might’ve
taken a torch to it. All that merchandise would’ve been destroyed, all those jobs would’ve been lost.
People don’t understand the power of their words. Words have the power to destroy.
I spotted Dana Lewis right away. S/He was the one doing all the instigating.
Some of my colleagues say the American Family Values Coalition just made everything worse, that their
appearance carrying all those guns was antagonistic. I disagree. I think they deterred criminal behavior
from escalating. Plus, Ohio is an open-carry state and they were just exercising their Second
Amendment rights. And personally, I feel more comfortable knowing there are responsible, armed
citizens nearby. You know what they say: you need a good guy with a gun to stop a bad guy with a gun.
I don’t know if Dana Lewis had a gun hidden somewhere on her/his person, but I do know that the kind of
people s/he attracts are more often than not the criminal sort.
Dana got all those people to come to her/his little protest at the spur of the moment by taking advantage
of social media. The prosecutor will subpoena her/his Facebook, Twitter, and Instagram accounts. S/He
organized a flash mob, invited all the crazies. All these people came out here in droves to act up and act
out, just like they’ve done in other parts of the city, like in Cleveland Heights when they ruined the street
fair a few years back. We’ve got to do something drastic about all these flash mobs. That’s why we don’t
have a lot of the community festivals anymore. Too many lawless kids with nobody at home making sure
they act right.
So even if it may have started out as a peaceful, non-threatening protest, it quickly grew to a wild, out-ofcontrol brawl. Some people got hurt. I’m sorry we had to use the pepper spray, but that was the only
way we could get people to leave and go home. Yes, some people, including some of the younger kids,
had to get their eyes washed out from the sting of the pepper, but I guess that’s what you call a casualty
of war. I realize there’ve been several complaints against me for excessive force. But the higher-ups did
their Monday morning quarterbacking and didn’t hand down any discipline. It’s tough to police an urban
environment. And they were happy that at least I didn’t maim or shoot anybody. And I didn’t use my stun
gun – that’s worse. Only pepper spray, and most of those people deserved to be sprayed. I feared for
my safety. Remember, I’m so close to retirement. The last thing I need is a broken leg or something.
We had all this blocked traffic that had to get re-routed, a lot of angry motorists just trying to get home
after a long day at work. We got all this property damage – a $60,000 BMW was destroyed and the
boarded-up CVS window makes the city look bad. And there was trash everywhere! That’s a lot of
expensive overtime pay for the sanitation workers. That’s money that could be put to better use. And I
got a busted lip trying to break up a fight between poor Peyton Lloyd and a bunch of Dana Lewis’s friends
and followers. Peyton showed remarkable restraint by not pulling her/his pistol.
I actually happened to be the arresting officer a few years back when Peyton got taken in for assault. We
got called to the Grinning Chameleon Sports Bar after Peyton landed a punch on a guy during an Indians
game. I had to arrest Peyton because s/he got physical, but really the people who saw the fight said the
6
guy was asking for it. He was saying he was a Native American and that the Chief Wahoo logo is racist
to “his people.” I don’t know where they get that BS, it’s just a cartoon. Peyton was wearing a t-shirt with
the old-school logo for the Tribe, the one where the Chief is grinning and happy, like the fans! That guy
who got hit was spoiling for trouble, but I had to do my job and take Peyton in. Later s/he pled guilty to a
lesser charge, so he didn’t end up doing any time.
I don’t know who fired the shot that got everybody scrambling. I can tell you it definitely wasn’t one of the
open-carry guys. They all had AR-15s and it sounded more like a 9 mm. Yes, it could’ve been the
backfire of a car that got everyone spooked. It’s pretty common in that area. But one of the people we
arrested did have a toy gun on him. It had the orange tip removed though so a reasonable person
could’ve easily mistaken it for the real thing. Why would someone bring that to a protest? We haven’t
gotten a straight answer yet.
After the shot went off, people panicked and started running. The streets were too crowded, so several
people got knocked over and trampled, including my partner, Officer Antoine Brady. Officer Brady spent
several days in the hospital with a broken wrist and some cracked ribs because of these criminals. And
all this trouble because the principal refused to overreact and start suspending students for some childish
pranks. This is all Dana Lewis’s fault. S/He should be ashamed. S/He cast the city of Cleveland in a bad
light and it was shown all over CNN, attracting national attention. When I tried to arrest Dana, instead of
cooperating s/he just kept flailing her/his arms and repeating that s/he’d done nothing wrong. Well, that’s
for the courts to decide. I just hope this trial is over before I go to Florida. That’s all I can think about right
now.
Statement of Principal Chris Jackson
I don’t care that Dana is an honor student and that s/he’s been accepted at all these colleges and got
scholarships. S/He should be prosecuted to the fullest extent of the law. And I’ve expelled her/him.
S/He needs to be made an example of.
What s/he did was appalling and cannot be tolerated in a civilized society. Dana has been a
troublemaker since ninth grade, ever since s/he came to Cleveland High. I’ve suspended her/him for
fighting, dress code violations, and for talking back to teachers. Dana has a really bad attitude and no
respect for authority. I always tell the kids at Cleveland High that to get respect you have to earn respect.
Attitudes like Dana’s put other students and teachers at risk – I have to think about safety and order for
everyone at the school, and to protect them I have to nip disrespect in the bud.
Dana thinks adults are always wrong and that s/he is always right. S/He tried to stage a boycott of our
Christmas pageant just because the choir was singing non-secular songs. Luckily most of the students
had the good sense to ignore her/him. It shouldn’t matter that some of our students are Muslim, Jewish,
Jehovah’s Witnesses, or worshippers of Thor, the Norse god of thunder. We’ve had the same pageant
since the founding of Cleveland High. It’s a tradition – who’s going to complain about a time-honored
tradition? Imagine wanting to take the “Christ” out of Christmas. But that’s Dana for you – severely
misguided and self-important. And her/his parents, unfortunately, support and encourage all this
nonsense. I understand they’re civil rights lawyers, that they smoke weed, and are actively campaigning
for legalizing marijuana here in Ohio. Someone should call child services on them.
But her/his latest escapade takes the cake. Some kids as a prank wrote some stuff on Adnan Sarraf’s
locker. I know Adnan, he’s a decent kid. I’m not sure why he hangs out with kids like Dana – it’s only
going to get him in trouble some day. His parents are from Syria, I think, or maybe Turkey. Anyway, they
came over to America when he was a little kid, he barely speaks with an accent now. Some of the other
kids, though, I know they tease him. Mostly good-natured stuff, like calling him Slumdog Millionaire or
talking with what they think is an Arabic accent. Some of the stuff on his locker went a little far, but we
never found out who did it. If we had, we probably wouldn’t have done much anyway besides give the
perpetrators a good talking to, maybe calling in their parents. It doesn’t help the cause of
“multiculturalism” that Dana loves so much to fly off the handle instead of giving kids a chance to talk it
out, does it?
7
But Dana wouldn’t let it go, kept barging into my office wearing that dumb Immigrant Lives Matter t-shirt –
another blatant dress code violation – and demanding that “justice” be upheld. I told Dana that we can’t
do anything without proof. Some other kids said they know who did it, but it’s really a he-said, she-said
situation since no one was caught in the act. And if I ever punished students without proof, I guarantee
Dana would still be up in my face about violating their due process rights or something crazy like that!
So after I told Dana that I wasn’t changing my mind, the next day s/he leads a big protest in the cafeteria
and gets everyone riled up. It was a peaceful study hall and all the students were studying for midterms.
Dana actually stood on top of a lunch table and yelled through a bullhorn, violating about a dozen school
rules. Dana called me every name in the book – racist, sexist, homophobic, a religious bigot. None of
that is true.
I told Dana to get down from the table or that s/he would be forcibly removed by the security guards, and
that if s/he was put out that s/he should not darken the doors of Cleveland High ever again. I’m sick of
her/his shenanigans. It’s obvious that Dana just craves attention. Why else would s/he champion so
many unpopular causes? Dana also has that immature YouTube channel, where s/he posts all those
social justice warrior videos. I’ve taken a look, and the ones I saw were just Dana running off her/his
mouth – it seemed less like it was about seeking justice than about seeking cheap internet fame.
Anyway, that day in the cafeteria Dana brushed past me (isn’t that assault?) and led a whole group of
kids out the door and onto Euclid Avenue to continue the foolishness. They were yelling “Immigrant lives
matter! Immigrant lives matter!” at the top of their lungs. It was so obnoxious. And the funny thing was,
Adnan didn’t even go with them. He stayed in his seat, reading his Social Studies book and looking
embarrassed. So you see, it wasn’t even about Adnan. It was about Dana Lewis’s ego and her/his
twisted sense of right and wrong.
Well, Dana finally got the attention s/he wanted: s/he was all over the news. The media vans caught up
with everybody when they’d gotten about a mile down the road from the school, blocking a bus route and
everything. During the riot a cameraman caught her/him dancing on the hood of that BMW and denting it,
before those hooligans tipped it over entirely. Too bad they didn’t get that part on tape! The video didn’t
get Dana’s face exactly, but it did catch the “Revolution” tattoo Dana has on her/his forearm. I was told
that the unedited version of the footage showed her/him yelling “Burn it down!” – meaning that poor CVS
store that was damaged and could’ve been looted by hoodlums. I don’t know who fired that gunshot but
I’d bet anything that Dana was behind it. Anything to create havoc and get more attention.
Statement of Peyton Lloyd
Dana Lewis is a disgrace and a traitor to her/his country. S/He thinks that immigrants are so great, wait
until we’re living under Sharia law and her/his little sister has to wear a burqa to go out in public and
her/his brother is recruited to ISL. Wait until Cleveland is the next city hit by a terrorist attack, because we
welcomed in all those immigrants with open arms. Look, I’m not a racist or anti-Muslim or anti- any
religion. But to let in all those immigrants without screening them thoroughly first is crazy. I mean, if you
had a bag full of Skittles and you knew that ten of them were poisoned, would you eat them? You
wouldn’t take the chance. Same thing here – we know that some of the immigrants are terrorists, and
until we have a better way to weed them out we can’t take the chance of bringing them inside our
borders.
I got a tweet from several of my friends that there was a possible disturbance going on along Euclid
Avenue near the high school. The tweets said it was the Immigrant Lives Matter group at it again and
that all these other groups were joining them in solidarity. So the tweets said that we should probably get
down there and do a little demonstrating ourselves.
I’m part of a group called American Family Values Coalition: we’re very pro-gun, pro-life, and proAmerica. This was a chance to do a counter-demonstration, so I jumped in my F-150 and went to the
8
scene. There were about 20 of us and we stood around the perimeter with our guns showing to let
people know that we were Second Amendment enthusiasts and were exercising our right to open-carry.
It was obvious that the liberal groups had used social media to bring a flash mob out there, so I’m glad we
came to provide some balance. We weren’t causing any trouble, just exercising our constitutional rights,
minding our business. I told the cops to relax, we were the good guys. If they needed our help, we’d
gladly provide some assistance, but we were there mainly to demonstrate against Obama taking away
our guns. So the cops left us alone and concentrated on the looney toons like Dana Lewis and everyone
crazy enough to follow her/him.
They claimed to be exercising their First Amendment rights. Well, the First Amendment has limits. You
can’t yell “fire” in a crowded theater and you can’t use “fighting words.” I know the U.S. Constitution. I
took a street law course at the community college. Believe me, there were plenty of fighting words being
thrown around. So as far as I’m concerned, they were abusing their rights. And I know they didn’t have a
permit. I’m pretty sure you have to go to City Hall to get a permit before you’re allowed to have a
demonstration. Me, on the other hand, I don’t need a permit to open-carry my legally-owned firearms.
I’m a responsible citizen. Aside from that little assault case I had a few years back, I’ve had no scrapes
with the law. And that guy I punched deserved it. I couldn’t even enjoy the Indians ballgame at my
favorite sports bar because he was just so obnoxious – he kept saying that the Indians logo with Chief
Wahoo is racist, and since I’m a fan I must be racist too. Have you ever heard of anything so stupid?
Anyway, Dana said something to me first, called me a bunch of names, basically saying I was some kind
of racist with no reason to, just like that guy in the bar. “Where’s your pointy white hood?” s/he asked me.
I took offense because I’m a very tolerant individual. I’m tolerant of everybody who respects traditional,
family, biblical values, and a person’s color or nationality don’t matter to me at all. That’s why when
someone tells me immigrant lives matter, I tell them that all lives matter. Pointing out that immigrant lives
matter is actually bigoted against real U.S. citizens, so who’s intolerant now?
Dana and I argued back and forth and then other people got involved. It was a huge crowd. Someone
started pushing and shoving. I’m pretty sure Dana shoved me but I couldn’t swear to it. It could’ve been
one of her/his “crew.” But s/he was pretty upset over the things I was saying and the fact that s/he was
losing the argument. I heard s/he had violent tendencies. But I was falling backwards in any event –
good thing one of my buddies caught me or I would’ve been stomped or trampled. It had turned into an
unruly mob.
Next thing I know, a shot was fired. If Dana says I did it, s/he’s lying through her/his teeth. I was too busy
trying not to fall down. But I suppose it could’ve been a car backfiring too. Everyone went crazy and
started scattering like roaches, especially after the cops started pepper spraying the crowd. I’ve got
asthma so I hightailed it out of there. I’d made my point and forced the police to respect me and my right
to open-carry, plus I showed those clowns that not everyone agrees with their politically correct agenda.
The last thing I saw was someone throwing rocks at the CVS window, which shattered. Some people
cheered, and I heard someone shouting “Burn it down!” It sounded like Dana’s voice, though it could’ve
been more than one person saying it. They’re all lawless, you know. Especially the Immigrant Lives
Matter bunch. There were more of them than anybody else. They were all wearing really bright red shirts
with the ILM logo on them and stood out the most.
9
FOR THE DEFENSE
Statement of Dana Lewis
Principal Jackson has always had it in for me from day one. S/He doesn’t like the way I wear my hair, the
clothes I wear, everything – and s/he especially hates my politics, or anything I do to rock the boat. But
what s/he hates the most is when I question authority. But isn’t that what an education is supposed to be
for? For our minds to grow and challenge the status quo in order to make the world a better place? My
parents – Principal Jackson hates them too – have always taught me to look out for the little guy. So I
care about people having a home, enough food to eat, affordable health care, quality public education, a
job with a decent wage, and an unfettered right to vote. I care about the environment, a woman’s right to
control her own body, and social justice for minorities, gays, immigrants, and Muslims – anyone who
hasn’t gotten a fair shot from the privileged groups who are in charge. I’m sick to death of wars. I believe
that since the U.S. did its part to create unrest and wars in Europe and the Middle East, we have a duty to
help refugees from those wars. I respect the police but will call out police brutality. I’ve got a full
scholarship to three Ivy League schools but I want everyone to have access to low-interest student loans.
I guess this makes me a terrible person, in a lot of people’s eyes.
Let me make one point perfectly clear: Principal Jackson knows exactly who damaged Adnan Sarraf’s
locker. My friend Jaime saw markers and paint and everything they used to do it in their backpacks later
that day, and when Jaime confronted them they didn’t even deny it. Principal Jackson just doesn’t think
that bullying someone because of who they are, where they came from, or what religion they practice is a
big deal. The blatant disrespect this principal has shown for the students and our concerns cannot
continue to be tolerated. S/He rejects all our suggestions, thinks the whole world is just straight, white
Christian males though the U.S. will be a majority-minority country in five years, so we’d better embrace
our differences. And now s/he thinks s/he can just thwart justice by refusing to go after the kids who
made Adnan feel unsafe in his own school? That was the last straw.
I’ve been an official member of Immigrant Lives Matter since the situation in Europe started getting a lot
of international attention in the past few years. Every time I read the news online and see more pictures
of Syrian refugees – little kids as well as their families, risking death and starvation to escape war – my
heart breaks. That video of the Hungarian camerawoman kicking and tripping a father carrying his young
child when they were running for the border – it made me so mad, I had to get involved. America was
founded on principles of welcoming people: the inscription the Statute of Liberty says “Give me your tired,
your poor, your huddled masses yearning to breathe free.” It doesn’t say “Go back to where you came
from, we don’t want your kind here!”
I know that several Muslim people and immigrants here in Cleveland have been jumped and beaten up
and that mosques have been damaged since 9/11, and it happens again every time there’s something
new like the recent attacks in Paris and San Bernardino. Nobody’s ever arrested or prosecuted. And
people are so ignorant in their anti-Muslim hate, too – it’s not enough to be bigots, they sometimes even
attack people of the Sikh faith, thinking they’re Muslim! Principal Jackson doesn’t even know that
Adnan’s parents left Syria when he was young to escape horrible conditions under Bashar al-Assad’s
regime, before the Arab Spring. They came to America to be safe and free, and instead Adnan has to
endure hearing classmates call him a terrorist. He’s as much an American as they are. People just need
to educate themselves.
Okay, so I thought it would be cool to get some other groups involved in our impromptu demonstration. I
know several people who are part of the Justice for Jamal group and I texted them to get some people
together and come join us, plus I posted on Facebook. I was definitely intending to keep everything
peaceful, though. I thought it would be very powerful to show so many groups together working in
solidarity for everyone’s good causes. Plus, I knew if we got any videos of the demonstration I could post
them on YouTube – I’ve already got a strong following and this would help me get more viewers and help
spread the word about our cause. And it worked! One video my friend shot with her cell phone of me
10
with the bullhorn has already gotten almost 5,000 likes and hundreds of positive comments, the most any
of my videos have ever received.
I had no idea that almost 500 people would show up and join us. But I’m not the only one on social media
– people tell other people and the news spread like wildfire. Plus that means that these are real issues
that others care about! I only wanted to have a peaceful demonstration. Blocking traffic may have been
annoying but it was still peaceful. I’m sorry that it made it a little inconvenient for people driving during
rush hour, but sometimes you have to make people uncomfortable in order to bring awareness to causes
bigger than themselves. That’s the problem. So many people ain’t “woke.” They only care about
themselves and no one else. Now that we’ve been on the local news and on CNN, more people have
gotten woke. That’s important to me.
The problem came when those people from the so-called American Family Values Coalition came too,
with all their guns, God, and anti-immigrant rhetoric. It could have been a constructive thing, like we
could have had a real dialogue, but they had all these assault rifles trying to intimidate everyone. How
are you gonna show up at a peaceful gathering waving your guns around, and not expect people to get
scared? At the very least people are going to be too scared to freely express themselves, and at worst
they’re going to get violent right back. I don’t care about their Second Amendment rights and that stupid
open-carry law. This isn’t the wild west. There are limits on the Second Amendment just like there are
limits on the First Amendment, yet they were there to make it more difficult to exercise our right to
peaceful assembly. What makes the Second Amendment more important than the First? Those people
and their leader, Peyton Lloyd, aren’t part of a well-regulated militia like the Constitution says. That whole
group was thugs, but the police treated them like first-class citizens and treated us like second-class
citizens.
Officer Price even apologized to Peyton for getting pepper spray near her/him! I’ll bet if some guys from
the “hood” came by with their assault weapons, it would’ve been a whole different scenario. Jamal Wright
was shot by the police during a routine arrest because they thought he had a gun, when it was just a bag
of Skittles and a bottle of Snapple in his pocket – not even a real gun like these guys had! He wasn’t
even doing anything serious – just selling loose cigarettes on the street. You can bet if he were white the
cops wouldn’t have looked twice at him, let alone arrest him or shoot him. Double standards exist and it’s
not fair. It’s one of the things I fight against.
I was making this point when the police and Officer Price came by demanding I give the police my
bullhorn. Why would I do that? I have freedom of speech, so long as I’m not encouraging violence.
Those cops were trippin’ if they think I’m about to give up my constitutional rights so easily.
Everything was peaceful until Peyton and her/his delusional little army came. They were baiting people
with their obnoxious comments, calling us “spoiled little social justice warriors” and worse. I heard some
nasty name-calling, including some pretty bad anti-Muslim slurs, although nothing from Peyton directly, I
don’t think. They wanted to provoke a physical confrontation so that the police would have a reason to
make everyone leave. They just couldn’t wait to pull out all their little toys – their spray and stun guns and
service weapons. Then they’d tell everyone that they feared for their life so they had to shoot. Same old
sorry excuse.
Double standards are the reason that Peyton Lloyd wasn’t arrested and I was. None of those “American
Values” people were arrested even though they were the ones instigating all the arguments and trouble. I
mean, Peyton tried to rip the bullhorn from my hands. S/He has no right! And Peyton hit me first and
threatened to shoot me. Her/His exact words were “I want to light you up like a Christmas tree right now,
just give me an excuse! You disgust me, traitor.” My friends immediately shielded me from Peyton
because it seemed clear s/he was serious and they wanted to make sure I was protected. Yes, we had
words, but it wasn’t that deep. But Peyton was absolutely enraged. That’s why guns in the wrong hands
are so dangerous. You never know when someone might snap. If those people hadn’t gotten between
me and Peyton, s/he may have followed through with the threat. Those people are scary. My friend
Jaime says s/he saw one of Peyton’s people shoot a handgun in the air, which made everything get more
out of control. And they call us crazy!
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Of course I had nothing to do with the people who overturned the BMW and broke out the windows in the
CVS. They want to blame me because they think I was the ringleader. First, I was never standing on the
BMW. I stood up at one point on a fire hydrant so I could be heard, and before that, I was lying down
then sitting up in the street. Whoever says it was me on the car has me confused with someone else.
There were lots of people wearing the same t-shirt I was, and my “Revolution” tattoo is something I’ve
seen other people get when, like me, they’re trying to say that they challenge the status quo. You can
see it everywhere, there’s even an Instagram account devoted entirely to versions of that tattoo. And that
BMW was beat-up already – it was old and dented. They make it sound like it was some shiny, new car
because that makes everything seem so must worse, as if that justifies all the arrests and police assaults
on innocent people. Second, I never said “Burn it down!” I was trying to urge people to keep everything
peaceful.
But there was so much confusion I don’t know how people can say who was doing what. Officer Price
tried to handcuff me while I was trying to breathe and rub my eyes. S/He sprayed that stuff right in my
face. Some of the younger kids got hit with the pepper blast too. They were crying and carrying on. It
was a bad scene. Sorry if I couldn’t “comply with the demands,” but the demands were unreasonable – I
mean, I hadn’t done anything to be arrested for in the first place! I did get caught up in the hysteria but I
know I didn’t do anything criminal. And if anything I did can be interpreted as a criminal offense, I plead
temporary insanity. Because there was just so much going on and it was all surreal. I’d never
experienced anything like this before in my 18 years. It was like I was watching what was going on and
not actually participating. I can’t even remember a lot of the details because everything happened so fast
and it was just crazy.
I don’t know why they want to say I started a riot. The American Family Values Coalition started the riot.
I’m just a kid, really. Everything was fine until they got there. With the exception of a minor misdemeanor
ticket for pot possession, I have no criminal record. Someone’s trying to ruin me. But I trust in the
system. The facts will come out. There’s no way they can convict me of anything beyond a reasonable
doubt. Both my parents are lawyers and they assured me of that. The system is not perfect but it usually
works.
Statement of Jaime Rodriguez
Dana is a great person. I truly believe s/he’ll be President one day. Dana is intelligent and
compassionate, a born leader and a consensus-builder. That’s how s/he has so many followers on
Twitter and for her/his YouTube channel, spreading the word that we need to embrace all people,
especially those with “differences,” like Adnan. Adnan’s a great guy whose family has been through a lot,
and now people at school are making life harder for him and the authorities aren’t even doing anything
about it. He’s really worried about his aunt and uncle, who are both still in Syria, the last his family heard
from them.
That day Adnan’s locker got trashed, it was awful. People took permanent marker and colored in phrases
like “Go home, terrorist,” and posted photos of Osama bin Laden and Saddam Hussein with “X” marked
over their eyes. There was even a really offensive, stereotyped cartoon of an Arabic man strapped to a
bomb, with the words “Jihad this!” written on it. This was no harmless joke – those were threats from the
same kids who say nasty things to Adnan when the teachers aren’t looking. Later that day I saw a bunch
of them stuffing a bag into their ringleader’s locker, and just then some markers fell out along with another
couple of pictures of bin Laden. I confronted them and they didn’t even deny it – the ringleader, Luis
Martin, just said “What are you gonna do about it? No one’s going to believe you. It’s our word as
patriots over a bunch of terrorists.” When I told Dana about it, I thought s/he was going to explode on the
spot, s/he was so angry for our friend. S/He said “Wait until we tell the world about this!” I suggested we
go to the school officials first – Dana didn’t want to wait, but I convinced her/him to try talking to Principal
Jackson first.
When we went to Principal Jackson about it, s/he didn’t seem like s/he was even willing to consider
talking to Luis and his followers. S/He just said the same thing Luis said, it’s our word against theirs. I
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can’t believe s/he didn’t care enough about Adnan’s safety to even check it out. Adnan can be shy
sometimes, and doesn’t want to cause any trouble. That’s why he stayed behind when Dana took to the
streets to draw attention to the injustice.
Dana is my best friend. We’ve known each other since kindergarten. We have the same belief system.
My parents didn’t always approve of Dana and her/his family. They’re good people, but I know the
parents smoke pot and allow Dana and her/his siblings to smoke too, once they were old enough to be in
high school. They claim it’s relaxing and stimulates the artistic left brain. But they’re all brilliant, friendly
people so after awhile, my parents didn’t mind me hanging out with Dana, especially once they saw how
responsible s/he is and how great s/he does in school. I think some of her/his work ethic and smarts
rubbed off on me.
I was with Dana the whole time after we left the school building. We took a lot of selfies and posted them
to Facebook and Instagram. I know they were shared and re-shared a bunch of times. That’s one of the
reasons all these other groups decided to come out and join us for a mass protest.
At no time did Dana encourage anyone to be violent. Yes, s/he was saying provocative things like “F--the police; F--- the establishment; they don’t respect us and we are the ones who are going to change the
world; I’m not afraid of going to jail!” I think Dana really enjoyed all that limelight, liked the fact that people
were looking to her/him as the leader of some grand, new civil rights movement. One of our other friends
posted a video of Dana with the bullhorn during the protest that s/he uploaded to YouTube, and it’s gotten
a whole bunch of likes. That’s really cool, because the video also features me at the end when I’m
singing “We Shall Overcome” – I’m trying to start a career as a singer, so that was kind of a side benefit.
Dana was excited and probably said some things s/he normally would not have said, but we were all
definitely caught up in the moment. No one could have anticipated that what started out as a nice,
peaceful protest to draw attention to an injustice would grow into a full-fledged demonstration. It was like
Ferguson, Missouri after the Mike Brown incident.
But at no time did Dana say to burn anything down. Yes, I heard someone say it, but it wasn’t Dana.
People need to be held responsible for their own actions. They can’t blame Dana for what they
themselves did. I wouldn’t be surprised if there were some “plants” in the crowd who were getting paid to
make the protest look bad so they can discredit the whole thing. Never mind that most of the people
there had legitimate issues and grievances. All they want to talk about is a broken window and an
overturned car. The “plants” are there to distract people from the real issues. It’s a shame that Dana has
to be the scapegoat.
Peyton Lloyd was probably a plant. Peyton stood right by Dana and just continued to heckle her/him,
trying to goad Dana to do something stupid. At first Dana tried to ignore her/him. But then they really did
get into it, nose-to-nose. Peyton pushed Dana first. Dana didn’t even push back but the crowd kind of
converged on them and Peyton almost got knocked down. One of those Second Amendment fanatics
with the long guns pulled a handgun out of his waistband and shot it in the air. Yes, I’m sure. That’s
when everyone scattered. And that police officer, Officer Price, started just pepper spraying us randomly.
Some of it got on Peyton and Officer Price apologized to her/him. To everyone else, s/he told us to get
our sorry asses out of there. Of course I filed a complaint against her/him. That was totally unnecessary.
Statement of Dr. Pat Simon
My name is Dr. Pat Simon, and I am a Medical Doctor, board-certified Psychiatrist, and Distinguished
Fellow of the American Psychiatric Association. I received my BA with honors in sociology from John
Carroll University, and I received my M.D. from the School of Medicine at Ohio State. After my internship
in Internal Medicine I found my calling and completed my residency in Psychiatry with a focus on social or
mob actions. I have published two books: “Flash Mob in the Pan – Mob Mentality in the Modern Age of
Social Media,” and “Caught Up in the Moment – How the Madness of Crowds Affects and Influences
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Individuals.” Both books have sold well, and are recommended reading for courses at several
universities and colleges both here in Ohio and nationwide.
In some courts, a mob or herd mentality is used as a viable defense against charges involving
misconduct in large-crowd situations. At the very least, it is a mitigating factor. I think that’s what’s in play
in Dana’s case. Dana got caught up in the excitement of everything that was happening and enjoyed
being the center of attention. My professional opinion is that Dana just got caught up in the moment and
didn’t realize that s/he was becoming so confrontational and may have encouraged others to do things in
an uncivilized fashion.
“If everyone else jumped off of a bridge, would you do it too?” Most of us have heard this saying at one
time or another. It’s easy to get caught up in a mob mentality, and many of us do it in day-to-day
situations without even knowing it. Have you ever laughed at a joke you didn’t find particularly funny
because everyone else was laughing? Have you rooted for the home team at a sports bar even if you had
no interest in the game?
Although it’s a natural human response to fear being singled out, going with the flow and mimicking the
behaviors of those around us can lead to some poor decisions. When a large group of people becomes
angry or excited, it only takes a few individuals’ actions to sway the entire crowd. The more people that
become engaged in an activity, the more people will join in. One of the classic examples of mob
mentality gone awry is the Los Angeles riots of 1992. What started as a civil disturbance in South Central
Los Angeles in response to the Rodney King verdict eventually spread across the entire metropolitan
area as a full scale, six-day riot. After it was over, more than 11,000 people were arrested.
High-profile sports events are also a classic example of mob mentality. It only takes a few excited fans to
leap over the barrier after the game-winning goal to prompt the entire crowd into storming onto the field,
sometimes injuring and trampling others in their wake. After beating Michigan, Columbus’s perennial
arch-nemesis, the Ohio State Buckeyes had completed a perfect 13-0 season. The celebration was
immense, with nearly every campus house engaged in a wild party. Unfortunately, it didn’t take long
before things got out of control. The crazy celebration began spilling into the streets, and excited fans
that had been drinking since early in the day, setting fires and flipping over cars. Eventually, riot police
arrived and dispersed the crowd with tear gas. When it was all over, 20 cars were damaged and 70
arrests were made. More recently, after OSU’s National Championship victory, fans flooded onto High
Street and began setting dumpster fires. Not wanting a repeat of 2002, local police quickly tear gassed
1
the crowd and dispersed the fans.
When police arrest people during riots and civil disturbances, it can sometimes be difficult to tell who’s
actually breaking the law, and who’s trying to just get away from the chaos. Even if you did commit a
crime, as you might have guessed, “everybody else was doing it” is not a permissible defense in court.
One dog may bark at you but it’s more likely that a pack will attack you. We are not exempt from that
behavior because we are human and not canine. As evidenced by dogs operating in a pack environment,
human society is based on group dynamics.
As humans, we have instinctual responses that are exacerbated by group influences. What we might not
do as individuals we may do as part of a group. People may lose control of their usual inhibitions, as their
mentality becomes that of the group.
You have never heard of a peaceful riot. Riots are by definition violent in nature. All a riot is, is violent
group behavior. The larger the group, the greater the amplification of that group behavior. If the group
behavior is peaceful, as exemplified by Martin Luther King and Gandhi, the group behavior is peaceful
and orderly. If the group behavior is violent, the larger the group the more magnified the violence.
A mob mentality phenomenon has occurred throughout human history, whether witch burning, religious
zealotry, political protests, or reaction to perceived racial micro aggressions. Three psychological
1
Stephen E. Palmer, Attorney, “Pack Mentality: The Dangers of the Mob Mindset” http://ohiolegaldefense.com/packmentality-dangers-mob-mindset/
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theories address crowd behavior. First is Contagion Theory, which proposes that crowds exert a hypnotic
influence on their members that results in irrational and emotionally charged behavior often referred to as
crowd frenzy. Second is Convergence Theory, which argues the behavior of a crowd is not an emergent
property of the crowd but is a result of like-minded individuals coming together. If it becomes violent is
not because the crowd encouraged violence yet rather people wanted it to be violent and came together
in a crowd. Third is Emergent-Norm Theory, which combines the two above arguing that a combination of
2
liked-minded individuals, anonymity, and shared emotions leads to crowd behavior.
2
Dr. Wendy James, Ph.D., President/CEO Life Consultants, Inc., “The Psychology of Mob Mentality and Violence”
http://www.drwendyjames.com/the-psychology-of-mob-mentality-and-violence/
15
EXHIBIT 1
Broken CVS window
EXHIBIT 2
Demonstrators on Oct. 22, 2015
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EXHIBIT 3
Overturned BMW
EXHIBIT 4
Screenshot of Dana Lewis’s Facebook wall on Oct. 22, 2015
17
EXHIBIT 5
American Family Values Coalition members on Oct. 22, 2015
EXHIBIT 6
Police pepper-spraying demonstrators on Oct. 22, 2015
18
EXHIBIT 7
Photo taken of Dana Lewis during the demonstration
EXHIBIT 8
Demonstrators on Oct. 22, 2015
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Constitutional and Case Law
The First Amendment: Freedom of Expression
The First Amendment of the U.S. Constitution states that "Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech … or
the right of the people peaceably to assemble." However, like all rights protected by the Constitution, the
U.S. Supreme Court has found that some limits apply to protect the government’s ability to run and
protect the safety of its citizens.
In Schenck v. United States, (249, U.S. 47 (1919)) Schenck mailed pamphlets that urged individuals to
ignore the World War I draft. Schenck was charged with violating the Espionage Act of 1917, which
prohibited speech that undermined the U.S. military and its recruitment efforts and operations. In the
Court’s opinion, Justice Holmes wrote that Schenck was not protected by the First Amendment: "The
question … is whether the words used … are of such nature as to create a clear and present danger that
they will bring about the substantive evils that Congress has a right to prevent." An example of such “clear
and present danger” given by Justice Holmes was of a person who falsely yells “fire” in a crowded
theater.
In another case, well-known socialist Eugene Debs gave a public speech to
an assembly of people in Canton, Ohio. The speech was about the growth of
socialism and contained statements that the government claimed, and a jury
agreed, were intended to interfere with soldier recruiting and encouraged
insubordination, disloyalty, and mutiny in the armed forces, also in violation
of the Espionage Act of 1917. Debs appealed his arrest and conviction to the
U.S. Supreme Court. In 1919 the Supreme Court upheld the lower court’s
decision in favor of the government. The Court said that free speech is not
absolute and that Debs had actually planned to discourage people from
enlisting in the armed forces. The Court refused to grant him protection under
Pictured: Eugene V. Debs
the First Amendment freedom of speech clause, stating that Debs “used
words [in his speech] with the purpose of obstructing the recruiting service.” Debs’ conviction under the
Espionage Act would stand because his speech represented a “clear and present danger” to the safety of
the United States as it could influence soldiers to disobey their commanders and therefore endanger the
lives of other soldiers.
Another important case that sets forth the Supreme Court’s interpretation (also known as
precedent) on the issue of “clear and present danger” was Whitney v. California (274 U.S.
357 (1927)). Anita Whitney was found guilty for being part of the Communist Labor Party
of America, a group that was creating rebellion and threatening to violently overthrow the
government. Whitney was convicted because her speech and ideals indicated 'clear and
present danger.’ However, the courts went further and added that "serious evils" (such as
threatening to overthrow the government) were not protected.
Another Ohio case heard by the Supreme Court was Brandenburg v. Ohio (1969). Brandenburg was a
KKK member who was arrested after speaking at a KKK rally where he referenced the possibility of
revenge against blacks, Jews, and “their supporters.” The Supreme Court held his arrest and conviction
violated the First Amendment’s freedom of speech provision. The Court’s ruling broadened the limits of
the “clear and present danger” rule to permit even inflammatory speech unless such speech created a
danger of “imminent (immediate) lawless action.” Brandenburg’s speech did not create such a danger
because there was no immediate threat of violence.
Fighting words, or "words which by their very utterance inflict injury or tend to incite an immediate breach
of the peace," (Casebriefs.com) are not protected because they don't promote ideas and have no positive
interest or impact. There are many other ways in which the government might regulate speech, and not
all of them are off limits, or even bad ideas. A town, for example, might prohibit picketing on city streets
between midnight and dawn, or prevent people from using bullhorns to deliver a speech at night. These
are examples of what we call “content-neutral” limitations on speech. They apply equally to everyone,
20
and are usually designed to protect peace and order by governing where, when and how speech may be
delivered: lawyers sometimes call them ‘’time, place and manner restrictions.”
Laws or government actions that single out speech for regulation based on what the speaker has to say
are generally prohibited by the First Amendment. So while a town can ban the use of bullhorns at three in
the morning, it cannot ban the use of bullhorns only when they are used in a speech that criticizes the
mayor. There are very few exceptions to this rule. If a law or government action singles out speech for
harsher treatment based on its message, it is almost always unconstitutional. Many controversial cases
involve efforts by the government to make “content-based” laws look “content-neutral” in an effort to get
around this rule.
The government also limits free speech by outlawing libel and slander. Libel is a falsehood that someone
writes to deliberately hurt another person and slander is speaking a falsehood to deliberately hurt
someone. A victim of libel or slander can sue the person making the falsehoods for the injury caused,
such as spreading a false rumor that someone has a sexually transmitted disease. To be found guilty of
libel or slander (known collectively as “defamation”) the court in most cases must find the defendant acted
with “actual malice,” in which the individual charged knew the statement was false and acted with
reckless disregard for the truth.
National security is another reason the government can limit free speech. If information is top secret and
would endanger national security, courts have permitted limits or bars to the communication of such
information. Communication of troop movements to the public that could fall into enemy hands would be
an example of such information that a court might limit or bar.
The Second Amendment: The Right to Bear Arms and Open Carry Laws
The Second Amendment of the U.S. Constitution reads: "A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
In District of Columbia v. Heller (554 U.S. 570, (2008)), the U.S. Supreme Court issued a landmark
decision by stating that the Second Amendment guarantees an individual's right to keep arms and use
them for self-defense. The Court held that the term “Militia” doesn’t limit the right to groups of citizens or
to the military, and that the Second Amendment should be read to “guarantee an individual right to
possess and carry weapons in case of confrontation.” Many legal experts say the Court’s decision left
several issues unclear: while the government could not entirely ban handguns, other limitations on
individuals’ access to guns could be upheld as constitutional. Recent incidents of mass-shootings that
have led to new gun-control legislation introduced in many states have given rise to conflicts with gunrights advocates, setting up new challenges for the Supreme Court and the lower courts.
Under Ohio law, Provision 9.68 of the Ohio Revised Code declares that the state’s citizens may “own,
possess, purchase, sell, transfer, transport, store, or keep any firearm, part of a firearm, its components,
and its ammunition,” without restriction, subject only to the state and U.S. Constitution and federal law.
The law protects the “possession, transporting, or carrying of firearms, their components, or their
ammunition,” both openly or concealed. States that allow citizens to carry legally-possessed firearms
openly are said to have Open Carry laws. The opposite is “concealed carry,” where the firearm must be
hidden out of plain sight on the individual.
There are exceptions to open carry in Ohio: “No person shall possess a firearm in any room in which any
person is consuming beer or intoxicating liquor ... or in an open air arena for which a permit [for
consumption of alcohol] has been issued,” with exceptions for law enforcement officers carrying out their
duties in such places or for veterans in their organizations if their firearms are unloaded. (ORC
2923.121). An individual may concealed carry in such places, but only if s/he does not consume alcohol
or drugs personally.
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State Law: The Ohio Revised Code (abridged for clarity)
ORC 2917.11: Disorderly Conduct
(A) No person shall recklessly cause inconvenience, annoyance, or alarm to another by doing any of the
following:
(1) Engaging in fighting, in threatening harm to persons or property, or in violent or turbulent
behavior;
(2) Making unreasonable noise or an offensively coarse utterance, gesture, or display or
communicating unwarranted and grossly abusive language to any person;
(3) Insulting, taunting, or challenging another, under circumstances in which that conduct is likely
to provoke a violent response;
(4) Hindering or preventing the movement of persons on a public street, road, highway, or rightof-way, or to, from, within, or upon public or private property, so as to interfere with the rights of
others, and by any act that serves no lawful and reasonable purpose of the offender;
(5) Creating a condition that is physically offensive to persons or that presents a risk of physical
harm to persons or property, by any act that serves no lawful and reasonable purpose of the
offender.
(E)
(1) Whoever violates this section is guilty of disorderly conduct.
(2) Except as otherwise provided in division (E)(3) of this section, disorderly conduct is a minor
misdemeanor.
(3) Disorderly conduct is a misdemeanor of the fourth degree if any of the following applies:
(a) The offender persists in disorderly conduct after reasonable warning or request to
desist.
(b) The offense is committed in the vicinity of a school or in a school safety zone.
(c) The offense is committed in the presence of any law enforcement officer, firefighter,
rescuer, medical person, emergency medical services person, or other authorized person
who is engaged in the person's duties at the scene of a fire, accident, disaster, riot, or
emergency of any kind.
(d) The offense is committed in the presence of any emergency facility person who is
engaged in the person's duties in an emergency facility.
(F) As used in this section:
(4) "Committed in the vicinity of a school" has the same meaning as in section 2925.01 of the
Revised Code (An offense is "committed in the vicinity of a school" if the offender commits the
offense on school premises, in a school building, or within one thousand feet of the boundaries of
any school premises, regardless of whether the offender knows the offense is being committed
on school premises, in a school building, or within one thousand feet of the boundaries of any
school premises.).
ORC 2917.02 Aggravated riot
(A) No person shall participate with four or more others in a course of disorderly conduct in violation of
section 2917.11 of the Revised Code:
(1) With purpose to commit or facilitate the commission of a felony;
(2) With purpose to commit or facilitate the commission of any offense of violence;
(3) When the offender or any participant to the knowledge of the offender has on or about the
offender's or participant's person or under the offender's or participant's control, uses, or intends
to use a deadly weapon or dangerous ordnance.
(C) Whoever violates this section is guilty of aggravated riot. A violation of division (A)(1) or (3) of this
section is a felony of the fifth degree. A violation of division (A)(2) of this section is a felony of the fourth
degree.
ORC 2917.03 Riot
(A) No person shall participate with four or more others in a course of disorderly conduct in violation of
section 2917.11 of the Revised Code:
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(1) With purpose to commit or facilitate the commission of a misdemeanor, other than disorderly
conduct;
(2) With purpose to intimidate a public official or employee into taking or refraining from official
action, or with purpose to hinder, impede, or obstruct a function of government;
(3) With purpose to hinder, impede, or obstruct the orderly process of administration or instruction
at an educational institution, or to interfere with or disrupt lawful activities carried on at such
institution.
(B) No person shall participate with four or more others with purpose to do an act with unlawful force or
violence, even though such act might otherwise be lawful.
(C) Whoever violates this section is guilty of riot, a misdemeanor of the first degree.
ORC 2917.031 Required proof for offenses of riot and aggravated riot
For the purposes of prosecuting violations of sections 2917.02 and 2917.03 of the Revised Code, the
state is not required to allege or prove that the offender expressly agreed with four or more others to
commit any act that constitutes a violation of either section prior to or while committing those acts.
ORC 2909.06 Criminal damaging or endangering
(A) No person shall cause, or create a substantial risk of physical harm to any property of another without
the other person's consent:
(1) Knowingly, by any means;
(2) Recklessly, by means of fire, explosion, flood, poison gas, poison, radioactive material,
caustic or corrosive material, or other inherently dangerous agency or substance.
(B) Whoever violates this section is guilty of criminal damaging or endangering, a misdemeanor of the
second degree. If a violation of this section creates a risk of physical harm to any person, criminal
damaging or endangering is a misdemeanor of the first degree. If the property involved in a violation of
this section is an aircraft, an aircraft engine, propeller, appliance, spare part, or any other equipment or
implement used or intended to be used in the operation of an aircraft and if the violation creates a risk of
physical harm to any person, criminal damaging or endangering is a felony of the fifth degree. If the
property involved in a violation of this section is an aircraft, an aircraft engine, propeller, appliance, spare
part, or any other equipment or implement used or intended to be used in the operation of an aircraft and
if the violation creates a substantial risk of physical harm to any person or if the property involved in a
violation of this section is an occupied aircraft, criminal damaging or endangering is a felony of the fourth
degree.
ORC 2921.33 Resisting arrest
(A) No person, recklessly or by force, shall resist or interfere with a lawful arrest of the person or another.
(B) No person, recklessly or by force, shall resist or interfere with a lawful arrest of the person or another
person and, during the course of or as a result of the resistance or interference, cause physical harm to a
law enforcement officer.
(C) No person, recklessly or by force, shall resist or interfere with a lawful arrest of the person or another
person if either of the following applies:
(1) The offender, during the course of or as a result of the resistance or interference, recklessly
causes physical harm to a law enforcement officer by means of a deadly weapon;
(2) The offender, during the course of the resistance or interference, brandishes a deadly
weapon.
(D) Whoever violates this section is guilty of resisting arrest. A violation of division (A) of this section is a
misdemeanor of the second degree. A violation of division (B) of this section is a misdemeanor of the first
degree. A violation of division (C) of this section is a felony of the fourth degree.
(E) As used in this section, "deadly weapon" has the same meaning as in section 2923.11 of the Revised
Code (any instrument, device, or thing capable of inflicting death, and designed or specially adapted for
use as a weapon, or possessed, carried, or used as a weapon).
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Enhance Your Case
•
•
•
•
Use relevant exhibits to establish certain important facts.
Determine if there are any facts to impeach (discredit) a witness’s testimony.
Determine if there are any facts that can be used to show a witness’s testimony was motivated by
bad or impure reason (for example, is Principal Jackson targeting Dana because of disagreement
with her/his political views?).
Try to manipulate facts to conform to your theory of the case (for example, does the fact the
Dana’s Facebook post, early in the protest, calls for people looking to “F**** the establishment”
indicate that s/he had non-peaceful intentions?).
Issues at Stake / Writing Exercises
The following examples can be used as writing exercises or prompts for submissions to the writing
competition. The cases cited therein are NOT to be included as part of the “closed universe” of the Mock
Trial case hypothetical or to be relied on in court during the competition unless referenced in the case law
section (e.g. the Debs case).
1. The First Amendment guarantees every American freedom of speech. However, this right can be
restricted if it creates the danger of “imminent lawless action.” Explain the meaning of the term
“imminent lawless action,” provide an example, and compare and contrast it to the “clear and
present danger” rule set forth in the Debs v. U.S. case.
2. Using freedom of expression as an example, explain how individual rights are relative, not
absolute, and describe the balance between individual rights, the rights of others, and “the
common good.”
th
3. G. Norman Collie, a 19 century social and political activist, said “[i]n free countries, every man is
entitled to express his opinions and every other is entitled not to listen.” What did Collie mean?
Do you agree? Disagree? State why and provide examples supporting your position.
4. In 2011 the city of Cleveland passed laws aimed at curbing flash mobs by prohibiting people from
using electronic media devices such as computers and cellphones as criminal tools. The laws
were passed after Mayor Frank Jackson refused to sign an ordinance to ban using social-media
sites to organize mobs, stating that the ordinances mirror state laws already in place. In
Cleveland Heights that same year, the city council adopted a strict curfew for teenagers, and
proposed a social media ban similar to Cleveland’s (the social media ban was never approved).
Many people opposed the measure, calling it racist and a violation of free speech ("Flash mobs:
Cleveland Heights fair violence was catalyst for crackdown," Stan Donaldson for The Plain
Dealer, http://blog.cleveland.com/metro/2011/12/flash_mobs_cleveland_heights_f.html).
Research the issue and take a position. Do you believe that such laws are necessary to protect
citizens? Do they meet Constitutional free speech standards? Are such laws just cover for
concealed racism, or are they race-neutral attempts to keep order? State your position and
provide reasons and facts in support of your answer.
5. In May of 2015, President Obama outlined plans to crack down on the so-called “militarization of
police.” Under his announcement, the federal government will no longer provide heavy military
equipment like tanks and grenade launchers to local police, following weeks of backlash against
officers who confronted protesters in Ferguson, Missouri, in armored vehicles and camouflage.
Obama stated that if police want other, less-imposing military equipment, local law enforcement
agencies will have to submit to stringent federal oversight and restrictions. (“Obama: U.S.
Cracking Down on 'Militarization' of Local Police,” Alex Johnson,
http://www.nbcnews.com/news/us-news/u-s-cracking-down-militarization-local-police-n360381).
Many people blame the “militarization of police” for the breakdown of communication between
police and the community, leading to increased violence on both sides. Research the issue and
take a position. Do you believe that providing police with military and riot gear increases the
24
likelihood of confrontation? What does the scientific research say? What steps do you think
police and communities can take to improve relations? State your position and provide reasons
and facts in support of your answer.
6. The “broken windows” model of policing was first described in 1982 by social scientists. The
theory focuses on the important role small examples of disorder (e.g. broken windows) play in
generating and sustaining more serious crime. The disorder itself is not directly linked to serious
crime; instead, disorder leads to increased fear and withdrawal from residents, which then allows
more serious crime to move in because of decreased levels of informal social control. (Center for
Evidence-Based-Crime Policy, http://cebcp.org/evidence-based-policing/what-works-inpolicing/research-evidence-review/broken-windows-policing). New York City became notorious
for implementing the theory, cracking down on minor offenses, which many people credit for a
decrease in crime in the city overall. Social advocates say the result was unfairly skewed by
race: that although black citizens are just as likely to have committed crimes as white citizens,
they were stopped, searched, and arrested at disproportionately higher rates. The strategy came
under scrutiny recently when Eric Garner died in July of 2014 following an incident with NYPD
officers in Staten Island. Research the issue and take a position. Do you believe that targeting
low-level crime and disorder helps reduce and avoid more violent crime in troubled
neighborhoods? Does the theory unjustly punish minorities? What does the scientific research
say? Are there other theories of police action you believe would work better? State your position
and provide reasons and facts in support of your answer.
7. Protesters for the real-life Black Lives Matter movement have staged demonstrations and raised
social awareness of the deaths of black men and women at the hands of police or in police
custody. Research the history of the Black Lives Matter movement – who were its founders and
leaders? What activities have they engaged in to protest? Do you think their methods are
effective? If so, why do you think so, and if not, what do you think protestors should do instead?
State your position and provide reasons and facts in support of your answer.
8. Write a sentencing memorandum for City of Cleveland v. Dana Lewis using the assumption that
Dana Lewis was convicted of one or more of the charges.
25
COMPETITION INSTRUCTIONS
The Mock Trial Competition will be held on Friday, May 6, 2016 at the Cleveland Municipal Court
in the Justice Center, 1200 Ontario Street, Cleveland, Ohio. There will be two trial sessions: 9:00-11:00
a.m. and 12:00-2:00 p.m. The awards ceremony will take place following the second session at
approximately 2:15 p.m. Lunch will not be provided; however, special arrangements with the cafeteria at
the Justice Center have been made and it will be open and available from 11:00 until 12:00 if students
wish to purchase lunch. There is no limit to the number of teams from each school that may enter the
competition. The purpose of the competition is to maximize student involvement and give as many
students who wish to participate the opportunity to do so.
In order for the necessary arrangements for the competition to be made, each school must submit
its entry form(s) to Gayle Gadison at the Cleveland School Administration Building on or before April 22,
2016. Forms may be submitted by fax to (216) 858-6502 or by email to
[email protected]. A separate entry form for each team should be submitted.
Team Membership and Roles
*
At the competition a mock trial team may consist of a minimum of six and up to 17 students. In
this case, there are three possible witnesses who may be called for the prosecution and three for the
defense. Each team may use up to five attorneys for each side played. Each team will also have a bailiff
who will also serve as the timekeeper. Thus, the possible roles for each team are as follows:
Prosecution
Defense
1. Attorney (Opening Statement)
2. Attorney (Opening Statement)
3. Attorney (Witness Examination)
4. Attorney (Witness Examination)
5. Attorney (Witness Examination)
6. Attorney (Witness Examination)
7. Attorney (Witness Examination)
8. Attorney (Witness Examination)
9. Attorney (Closing Argument)
10. Attorney (Closing Argument)
11. Prosecution (Witness #1)
12. Defense (Witness #1)
13. Prosecution (Witness #2)
14. Defense (Witness #2)
15. Prosecution (Witness #3)
16. Defense (Witness #3)
17. Bailiff/Timekeeper
Although each team is encouraged to maximize student participation, at the discretion of each
teacher, attorney roles may be combined and one student may, for example, conduct more than one
witness examination or do both a witness examination and make one of the arguments. Each team,
however, must use all three witnesses, use at least two attorneys for each side played, and supply a
bailiff/timekeeper. Only the attorney who conducts the direct examination of a witness may make
objections during the cross-examination of that witness.
*
Please include any additional student who participates in the training for the mock trial competition regardless of whether they play
a role at the actual competition so they may also receive a Certificate of Participation.
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The student presentations should be the work product of the students themselves – guided, of
course, by the teacher and team legal advisor(s). It is important that the opening, direct examination,
testimony, or whatever the particular presentation should be the student’s work rather than having the
student simply read the words prepared by an adult.
At competition, each team will conduct the mock trial twice, once as the prosecution and once as
the defense.
Before the start of each trial, teams should give to judges a completed team roster with students’
names and their roles at trial. Judges will rely on these rosters to identify the Outstanding Attorney and
Outstanding Witness from the trial – please write clearly and legibly. Blank rosters will be distributed
electronically before the competition and will also be available on-site.
Time Limits
A trial is scheduled to last no longer than two hours. The presiding judge will enforce the time
limit and may at his or her discretion grant a time extension in the interest of fairness. Each team will
supply a student timekeeper who will show cards with 2:00, 1:00 or 0:00 minutes remaining. The time
clock will stop for objections and responses.
Conduct During Trial and Trial Sequence
The presiding judge controls the courtroom. The judge may ask anyone to leave, if necessary.
During the trial, teachers, legal advisors and all other observers may NOT talk to, signal or otherwise
communicate with or coach their teams. This restriction includes any breaks during the trial.
Only furnishings and equipment available in the courtroom may be used during the trial. At the
conclusion of the trial, all tables, chairs and any other courtroom furniture and equipment are to be
returned to the place where they were found at the beginning of the proceedings. Nothing is to be
removed from the courtroom.
The bailiff will open court by saying:
All rise. Hear ye, hear ye, this Honorable Court for the City of Cleveland is open pursuant to adjournment.
All having business before this Honorable Court draw near, give attention and you shall be heard. You may
be seated.
All judges are to be addressed as “Judge ______” or “Your Honor.”
The bailiff will swear in each witness by saying:
Please raise your right hand. Do you solemnly swear that the testimony you are about to give is the truth,
the whole truth and nothing but the truth and that your testimony will comply with the Rules of the Cleveland
Mock Trial Competition?
Witnesses answer and sit down. They will remain in the courtroom during the trial. No motion for
separation of witnesses will be entertained.
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Opening Statements (3 minutes maximum)
The presiding judge should ask counsel for the prosecution if they wish to make an opening
statement. Prosecution counsel should introduce themselves and their team members and the roles they
are playing and then present the opening statement. The same procedure is used with defendant’s
counsel.
Testimony of Witnesses
The prosecution will present its case first. The presiding judge will ask counsel to call his/her first
witness. The witness will then testify in the following examination sequence:
Direct (6 minutes)
Cross (5 minutes)
Redirect (2 minutes)
Re-cross (2 minutes)
The prosecution will call its remaining two witnesses using the same sequence for each.
Upon conclusion of the prosecution’s case, the prosecution will rest. The presiding judge will
then ask counsel for the defense to call his/her first witness. The defense team will follow the same
sequence as noted above.
Witnesses are bound by their written statements. If there is inconsistency or ambiguity between
the case summary and the witness statement, the witness is to rely upon the information contained in the
witness statement.
Fair extrapolations are permitted if they are consistent with the facts contained in the case
materials and do not materially affect the witness’s testimony. If a witness invents an answer that is likely
to affect the outcome of the trial, the opposition may object. Teams that intentionally and frequently stray
outside the case materials may be penalized.
If an attorney who is cross-examining a witness asks a question, the answer to which is not
included in the witness’s written statement, the witness is free to “create” an answer as long as it is not
contrary to the statement. If the answer is contrary to the statement, the cross-examination attorney may
impeach, or in other words, attack the credibility of the witness.
The trial proceedings are governed by the Modified Rules of Evidence found in this casebook.
Closing Argument (4 minutes maximum for each)
The prosecution will be allowed 2 minutes rebuttal.
Objections
In addition to evidentiary objections, objection may be made during trial by an attorney who
believes that any rule set forth in the Competition instructions has been violated. As with evidentiary
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objections, the objection must be made as soon as the claimed violation occurs. If no objection is made
at the time of the claimed violation, the attorney knew or should have known of the violation at that time,
the right to object is waived.
The presiding judge may make rulings as appear appropriate. All judges will not interpret the
rules and guidelines in the same way. The judge’s decision, however, is final and no appeals procedure
is available.
Conclusion of Trial
The judicial panelists will retire to chambers to discuss their decision and complete the score
sheets upon conclusion of the trial and return it to the competition coordinator. The scoring panelists will
announce the outstanding witness and attorney awards, discuss the highlights of their performances, and
present their certificates. The judicial panelists may discuss the case and make remarks to the teams at
the conclusion of the trial but will not discuss the scoring.
The bailiff will close the proceedings at the judicial panelists’ signal with:
“All rise. This honorable court is hereby adjourned.”
Judging and Scoring
Each trial will be presented before a judicial panel consisting of a Presiding Judge and two
Scoring Judges. The Presiding Judge will control the courtroom and rule on motions and objections, and
will complete a ballot along with the ballots of the two Scoring Judges, based on their evaluations of the
team and individual performances.
The trial will be judged based on team and individual performances, not the merits of the case.
The two scoring panelists and the presiding panelist will separately rate the Prosecution and Defense
teams, assigning points from 6-90 based on the following factors:
1.
Opening Statement (1-10 points possible)
2.
Witnesses’ Performances (1-30 points possible)
3.
Attorneys’ Performances on Direct (1-10 points possible)
4.
Attorneys’ Performances on Cross (1-10 points possible)
5.
Closing Statement (1-10 points possible)
6.
Team Performance (1-20 points possible)
Judicial panelists will score individual performances based on the following guidelines:
•
Ability to think well on feet, be logical, keep poise under duress
•
Ability to sort out essential from the nonessential and use time effectively to accomplish major
objectives
•
Mastery of elements of the case: utilization of all resources to contribute to the team’s position
•
Quality of communication in terms of fluency, persuasiveness, clearness and understandability
•
Depth of performance in terms of knowledge of task and materials
29
Judicial panelists will score team performances based on the following guidelines:
•
The development and validity of the case theory (Did the prosecution/defense team establish a
theme for their argument? Was the theme valid?)
•
The choice and development of case strategy (Did the prosecution/ defense team select the
appropriate form of questioning used for direct examination and cross-examination?)
•
The degree of a team’s persuasiveness (Was the team’s case carefully crafted and skillfully
delivered? Were team members prepared and direct in their roles?)
•
The quality and authenticity of the student’s own work product (Does the student presentation
appear to be the work product of the student?)
In judging the performance of witnesses, judges should consider whether the witness was:
•
Believable in his/her characterizations and convincing in testimony
•
Articulate and responsive
•
Observant of proper courtroom decorum
•
Knowledgeable of the case facts and theory of the team’s case
•
Faithful to the case facts and did not invent new facts
In judging the performance of attorneys, judges should consider the following elements:
•
A creative, organized, and convincing presentation
•
Observation of proper courtroom decorum
•
A clear understanding of the facts, issues, law and rules of Cleveland Mock Trial
•
Ability to apply authority and law to facts
•
Proper phrasing of questions and objections
•
Appropriate presentation style
•
Poise and ability to think on his/her feet, extemporaneous (not scripted) delivery, eye contact
(ability to proceed without reading from prepared materials)
Bonus Points for exceptional attorneys and witnesses (1-20 additional points possible but
NOT mandatory): Judges at their discretion may award an attorney and/or witness who they feel has
given an extraordinary performance 1-20 bonus points, to be indicated in the Bonus Points section of the
score sheet along with the student(s) name(s). These points are NOT mandatory, and are NOT to be
included with the team’s overall score. The points are to aid the Competition Coordinators in
determining which students have received the best scores of the Competition considered as a whole in
the categories of Outstanding Attorney for the Prosecution, Outstanding Attorney for the Defense, and
Outstanding Witness for the Competition.
Penalties: Points should be deducted from the Team Performance Score for:
30
•
Consistently abusing the time limits (1 point)
•
Failing to use attorneys as prescribed (1 point)
•
Intentionally and frequently straying outside the case materials (1 point)
•
Communication during trial between team members and their teacher, legal advisor or any
observer (1 point)
Outstanding Attorney and Witness Awards: Judicial panelists should consult at the conclusion
of the trial to determine the Outstanding Attorney and Outstanding Witness of the trial. Awards should be
based on individual performances – they are not to be used as a consolation prize, but awarded on merit.
All three judicial panelists will complete a ballot. Based on point totals ONLY, each panelist will
find a winner from his/her ballot (no ties on individual ballots allowed). Teams that have won at least two
of the panel’s ballots have won the trial.
Teams will perform one trial as the Prosecution and one trial as the Defense. Teams that have
won both of the two trials will be deemed “Finalists.” Ranking among the finalists will be determined by
overall point total from all ballots for the teams. In the event of a tie, additional points will be added to
team scores based on the awards for Outstanding Attorney and Outstanding Witness, with five points
added for each award won. The team with the highest score will be declared the winner of the
competition. The scores will be tabulated and the top three teams announced at the conclusion of the
competition. After the competition, non-Finalists will be informed of their overall performance (e.g. winner
of first but not second trial). Finalists will be informed of their ranking among the other Finalist teams.
All participants must be mindful that the regular business of the court
will be continuing during Mock Trial Competition.
Conversations and noise in the hallways should be limited
accordingly.
31
Sample Scoresheet
32
SIMPLIFIED OHIO RULES OF EVIDENCE
Rules Unique to Mock Trial
I. Invention of Facts and Extrapolation (special rules for the Mock Trial Competition)
The object of these rules is to prevent a team from “creating” facts not in the material to gain an unfair
advantage over the opposing team.
Invention of Facts - Direct Examination.. On direct examination the witness is limited to the facts given in
his/her own written statement. If the witness goes beyond the facts given (adds new facts or speculates about
facts), the testimony may be objected to by the opposing counsel as speculation or as invention of facts
outside the case materials. If a witness testifies in contradiction of a fact given in the witness statement,
opposing counsel should impeach the witness’s testimony during cross-examination. [See also, Competition
Instructions, “Testimony of Witnesses—Guidelines.”]
Invention of Facts - Cross-Examination. If on cross-examination a witness is asked a question, the answer to
which is not contained in the facts given in the witness statement, the witness may respond with any answer,
so long as it is responsive to the question, does not contain unnecessary elaboration beyond the scope of the
witness statement, and does not contradict the witness statement. An answer which is unresponsive or
unnecessarily elaborate may be objected to by the cross-examining attorney. An answer which is contrary to
the witness statement may be impeached by the cross-examining attorney. [See also, Competition
Instructions, “Testimony of Witnesses—Guidelines”].
Example
The limits on fair extrapolation apply only to cross examination, and no extrapolation is permitted on direct
examination.
An accident reconstruction expert (Mr. Smith) has testified that the accident was caused by the failure of the
defendant to maintain an assured clear distance ahead. The defendant has claimed that he was undergoing
a type of epileptic seizure when the driver ahead stopped abruptly. The accident reconstructionist testifies
that even a person experiencing this kind of epileptic seizure would have seen the car brake abruptly.
1. Unnecessary Elaboration
Cross-examiner:
“But you’re not a neurologist, are you, Mr. Smith?”
Mr. Smith:
“As a matter of fact, I have a Ph.D. in Neurology from Johns
Hopkins University and have written extensively on epileptic seizures..”
If there is no hint in the case materials that Mr. Smith has expertise in neurology, it would be regarded as an
unnecessary elaboration
2. Elaboration necessitated by the Question
Cross-examiner:
“Have you testified before as an expert in accident reconstruction, or is this the
first time that you have ever testified?”
Mr. Smith:
“I have testified in 27 trials.”
It may be reasonable for the expert to claim he has testified in 27 trials, if his age and background make that
plausible, even if there is nothing in the case materials to reflect an answer to that question. It is an
elaboration necessitated by the question.
33
II. Scope of Examinations
Scope of Direct Examination An attorney questions the witness she/he has called to stand. On direct
examination an attorney may inquire as to any relevant facts of which the witness has first-hand, personal
knowledge.
Scope of Cross Examination
The scope of cross-examination shall not be limited to the scope of the
direct examination, but may inquire into any relevant facts or matters contained in the witness’s statement,
including all reasonable inferences that can be drawn from those facts and matters, and may inquire into any
omissions from the witness statement that are otherwise material and admissible.
Redirect Examination After cross examination, additional questions may be asked by the direct examining
attorney, but such questions are limited to matters raised by the opposing attorney on cross-examination.
Just as on direct examination, leading questions are not permitted on redirect.
Comment: If the credibility or reputation for truthfulness of the witness has been attacked
successfully on cross-examination, the attorney whose witness has been damaged may wish to ask questions
to “rehabilitate” the witness (save the witness’s truth-telling image). Redirect examination may also be used
to strengthen a positive fact that was weakened by the cross-examination. Redirect examination is not
required. A good rule to follow is: if it isn’t broken, don’t fix it.
Examples:
CrossCross-examination of physician called by Plaintiff in murder case:
1.
Attorney:
Witness:
Attorney:
Witness:
Doctor, you testified on direct that the defendant
died of arsenic poisoning, correct?
Yes.
Isn’t it true that you have a deposition in which you
testified that you did not know the cause of death?
Yes, that’s true.
Redirect:
Attorney:
Witness:
2.
Doctor, why did you testify in your deposition that
you did not know the defendant’s cause of death?
I had not yet received all of the test results which
allowed me to conclude the defendant died of arsenic poisoning.
CrossCross-examination:
Attorney:
Witness:
Doctor, isn’t it true the result of test X points away
from a finding of arsenic poisoning?
Yes.
Redirect:
Attorney:
Doctor, why did you conclude that the defendant died of arsenic
poisoning even though test X pointed away from arsenic poisoning?
Witness:
Because all of the other test results so overwhelmingly pointed toward
arsenic poisoning, and because test X isn’t always reliable.
Comment: Neither one of these redirect examinations should have been conducted unless the attorney had
a good idea of what the witness’s response would be. As a general rule, it is not advisable to ask a question
if you don’t know what the answer will be.
34
ReRe-cross Examination After redirect, additional questions may be asked by the cross examining attorney,
but such questions are limited to matters raised on redirect examination. Re-cross is not mandatory and
should not be used simply to repeat points that have already been made.
Example:
Assume the cross-examination in the example above has occurred. A good re-cross-examination would be
the following:
Attorney:
Doctor, isn’t it true that when you gave your deposition you
had received all of the test results except the result of test X?
Witness:
Yes, that’s true.
Comment: The cross-examining attorney would then argue in the closing argument that the doctor testified
in his deposition that he did not know the cause of death at that time and the only test result received after
the deposition pointed away from arsenic poisoning.
III. Hostile Witness RuleRule Mode and Order of Interrogation and Presentation
1. Control by court. The court shall exercise reasonable control over the mode and order of interrogating
witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the
ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from
harassment or undue embarrassment.
2. Scope of crosscross-examination. Cross-examination shall be permitted on all relevant matters and matters
affecting credibility.
3. Leading questions. Leading questions should not be used on the direct examination of a witness except
as may be necessary to develop the testimony. Ordinarily, leading questions should be permitted on crossexamination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse
party, interrogation may be by leading questions.
4. When is a witness hostile? “Where a witness is an unwilling one, hostile to the party calling him, or
stands in such a situation as to make him necessarily adverse to such party, his examination in chief may be
allowed to assume something of the form of cross-examination, at least to the extent of allowing leading
questions to be put to him.” 44 OH Jurisprudence 3d 241, “hostile witness” §. 869
The issue is whether the witness’s hostile attitude toward the party calling him/her is likely to make the
witness reluctant to volunteer facts helpful to that party. Hostility may be demonstrated by the witness’s
demeanor in the courtroom, by other facts and circumstances, or by a combination thereof. Whether a
witness is hostile is confided to the sound discretion of the presiding judge.
IV. Voir Dire
Voir Dire examination of a witness is not permitted.
V. No offer of proof
No offers of proof may be requested or tendered.
35
Article I. GENERAL PROVISIONS
RULE 101. Scope of Rules: Applicability; Privileges; Exceptions
Applicability. These rules govern proceedings in the Ohio Mock Trial Program and are the only
basis for objections in the Ohio Mock Trial Program
•
No directed verdict or dismissal motion may be entertained.
Article IV. RELEVANCY AND ITS LIMITS
RULE 401. Definition of "Relevant Evidence"
"Relevant evidence" means evidence having any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less probable than it would be
without the evidence.
RULE 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
Evidence which is not relevant is not admissible.
RULE 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Undue
Delay
(A) Exclusion mandatory. Although relevant, evidence is not admissible if its probative value is
substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of
misleading the jury.
(B) Exclusion discretionary. Although relevant, evidence may be excluded if its probative value is
substantially outweighed by considerations of undue delay, or needless presentation of cumulative
evidence.
RULE 404. Character
Character evidence. Evidence of a person's character, other than his/her character for truthfulness,
may not be introduced. Evidence about the character of a party for truthfulness or untruthfulness is
only admissible if the party testifies.
Article VI. WITNESSES
RULE 601. General Rule of Competency
Every person is competent to be a witness.
RULE 602. Lack of Personal Knowledge
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding
that S/he has personal knowledge of the matter. Evidence to prove personal knowledge may, but
need not, consist of the testimony of the witness. This rule is subject to the provisions of Rule 703,
relating to opinion testimony by expert witnesses.
RULE 607. Who May Impeach
(A) Who may impeach.
impeach The credibility of a witness may be attacked by any party except that the
credibility of a witness may be attacked by the party calling the witness by means of a prior
inconsistent statement only upon a showing of surprise and affirmative damage. This exception
does not apply to statements admitted pursuant to Evid.R. 801(D)(1)(A), 801(D)(2), or 803.
36
RULE 608. Evidence of Character and Conduct of Witness
Opinion and reputation evidence of character.
character. The credibility of a witness may be attacked or
supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the
evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful
character is admissible only after the character of the witness for truthfulness has been attacked by
opinion or reputation evidence or otherwise.
RULE 611. Mode and Order of Interrogation and Presentation
(A) Control by court. The court shall exercise reasonable control over the mode and order of
interrogating witnesses and presenting evidence so as to (1) make the interrogation and
presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time,
and (3) protect witnesses from harassment or undue embarrassment.
(B) Scope of crosscross-examination. For Ohio Mock Trial Rules, see Simplified Ohio Rules of
Evidence (Section II).
(C) Leading questions. Leading questions should not be used on the direct examination of a
witness. Leading questions are permitted on cross-examination. When a party calls a hostile
witness interrogation may be by leading questions.
RULE 612. Writing Used to Refresh Memory
If a witness uses a writing to refresh his memory while testifying, an adverse party is entitled to have
the writing produced at the hearing. He/she is also entitled to inspect it, to cross-examine the
witness thereon, and to introduce in evidence those portions which relate to the testimony of the
witness.
RULE 616. Bias of Witness
In addition to other methods, a witness may be impeached by any of the following methods:
(A) Bias.
Bias Bias, prejudice, interest, or any motive to misrepresent may be shown to impeach the
witness either by examination of the witness or by extrinsic evidence.
(B) Sensory or mental defect.
defect A defect of capacity, ability, or opportunity to observe, remember, or
relate may be shown to impeach the witness either by examination of the witness or by extrinsic
evidence.
(C) Specific contradiction.
contradiction Facts contradicting a witness's testimony may be shown for the purpose
of impeaching the witness's testimony.
Article VII. OPINIONS AND EXPERT TESTIMONY
RULE 701. Opinion Testimony by Lay Witnesses
If the witness is not testifying as an expert, his/her testimony in the form of opinions or inferences
is limited to those opinions or inferences which are (1) rationally based on the perception of the
witness and (2) helpful to a clear understanding of his testimony or the determination of a fact in
issue.
RULE 702. Testimony by Experts
Experts
A witness may testify as an expert if: (1) The witness is qualified as an expert by specialized
knowledge, skill, experience, training, or education regarding the subject matter of the testimony;
and (2) The witness's testimony is based on reliable scientific, technical, or other specialized
information.
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RULE 703. Bases of Opinion Testimony by Experts
The facts or data in the particular case upon which an expert bases an opinion or inference may be
those perceived by him/her or admitted in evidence at the hearing.
RULE 704. Opinion on Ultimate Issue
Testimony in the form of an opinion or inference otherwise admissible is not objectionable solely
because it embraces an ultimate issue to be decided by the trier of fact.
RULE 705. Disclosure of Facts or Data Underlying Expert Opinion
The expert may testify in terms of opinion or inference and give his/her reasons therefore after
disclosure of the underlying facts or data. The disclosure may be in response to a hypothetical
question or otherwise.
Article VIII. HEARSAY
RULE 801. Definitions
The following definitions apply under this article:
(A) Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a
person, if it is intended by him as an assertion.
(B) Declarant. A "declarant" is a person who makes a statement.
(C) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.
(D) Statements which are not hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The declarant testifies at trial or hearing and is subject to
cross-examination concerning the statement, and the statement is (a) inconsistent with his
testimony, and was given under oath subject to cross-examination by the party against
whom the statement is offered and subject to the penalty of perjury at a trial, hearing, or
other proceeding, or in a deposition, or (b) consistent with his testimony and is offered to
rebut an express or implied charge against him of recent fabrication or improper influence
or motive, or (c) one of identification of a person soon after perceiving him, if the
circumstances demonstrate the reliability of the prior identification.
(2) Admission by party
partyty-opponent. The statement is offered against a party and is (a) his
own statement, in either his individual or a representative capacity, or (b) a statement of
which he has manifested his adoption or belief in its truth, or (c) a statement by a person
authorized by him to make a statement concerning the subject, or (d) a statement by his
agent or servant concerning a matter within the scope of his agency or employment, made
during the existence of the relationship, or (e) a statement by a co-conspirator of a party
during the course and in furtherance of the conspiracy upon independent proof of the
conspiracy.
RULE 802. Hearsay Rule
Testimony which is hearsay is inadmissible.
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RULE 803. Hearsay Exceptions; Availability of Declarant Immaterial
The following are not excluded by the hearsay rule, even though the declarant is available as a
witness:
(1) Present sense impression. A statement describing or explaining an event or condition made
while the declarant was perceiving the event or condition, or immediately thereafter unless
circumstances indicate lack of trustworthiness.
(2) Excited utterance. A statement relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or condition.
(3) Then existing,
existing, mental, emotional, or physical condition. A statement of the declarant's then
existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive,
design, mental feeling, pain, and bodily health), but not including a statement of memory or belief
to prove the fact remembered or believed unless it relates to the execution, revocation,
identification, or terms of declarant's will.
(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of
medical diagnosis or treatment and describing medical history, or past or present symptoms, pain,
or sensations, or the inception or general character of the cause or external source thereof insofar
as reasonably pertinent to diagnosis or treatment.
(5) Records
Records of regularly conducted activity. A memorandum, report, record, or data compilation,
in any form, of acts, events, or conditions, made at or near the time by, or from information
transmitted by, a person with knowledge, if kept in the course of a regularly conducted business
activity, and if it was the regular practice of that business activity to make the memorandum, report,
record, or data compilation, all as shown by testimony.
RULE 804. Hearsay Exceptions; Declarant Unavailable
(A) Definition of unavailability.
unavailability. "Unavailability as a witness" includes any of the following situations
in which the declarant:
(1) is unable to be present or to testify at the hearing because of death or then-existing
physical or mental illness or infirmity;
(B) Hearsay exceptions.
exceptions. The following are not excluded by the hearsay rule if the declarant is
unavailable as a witness:
(1) Statement under belief of impending death. In a prosecution for homicide or in a civil
action or proceeding, a statement made by a declarant, while believing that his or her death
was imminent, concerning the cause or circumstances of what the declarant believed to be
his or her impending death.
(2) Statement against interest. A statement that was at the time of its making so far contrary
to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant
to civil or criminal liability, or to render invalid a claim by the declarant against another,
that a reasonable person in the declarant's position would not have made the statement
unless the declarant believed it to be true. A statement tending to expose the declarant to
criminal liability, whether offered to exculpate or inculpate the accused, is not admissible
unless corroborating circumstances clearly indicate the trustworthiness of the statement.
RULE 805. Hearsay Within Hearsay
Hearsay included within hearsay is not excluded under the hearsay rule if each part of the
combined statements conforms with an exception to the hearsay rule provided in these rules.
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Article IX. AUTHENTICATION AND IDENTIFICATION
RULE 901. Requirement of Authentication or Identification
(A)General provision. The requirement of authentication or identification as a condition precedent
to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is
what its proponent claims.
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EXAMPLES OF COMMON OBJECTIONS
AND TRIAL PROCEDURE
I.
Procedure for Objections
An attorney may object if he/she believes that the opposing attorney is attempting to introduce
introduce
improper evidence or is violating the Simplified Rules of Evidence. The attorney wishing to object should
stand up and object at the time of the claimed violation. The attorney should state the reason for the objection,
and if possible, cite by rule number the specific rule of evidence that has been violated. (Note: Only the
attorney who questions a witness may object to the questions posed to that witness by opposing counsel.) The
attorney who asked the question may then make a statement about
about why the question is proper. The judge will
then decide whether a question or answer must be discarded because it has violated a simplified rule of
evidence (objection sustained), or whether to allow the question or answer to remain in the trial record
(objection overruled). Objections should be made as soon as possible; however, an attorney is allowed to finish
his/her question before an objection is made. Any objection that is not made at the time of the claimed
violation is waived. When an objection has been sustained, the attorney who asked the question may attempt
to rephrase that question. Judges may make rulings that seem wrong to you. Also, different judges may rule
differently on the same objection. Always accept the judge’s ruling graciously
graciously and courteously. Do not argue
the point further after a ruling has been made.
A.
II. Examples of Common Objections
The following are examples of common objections. This is not a complete list. Any objection properly based
on the simplified Ohio rules of evidence is permitted:
1.
2.
3.
4.
5.
Irrelevant evidence: "Objection. This testimony is irrelevant."
Irrelevant evidence that should be excluded:
"Objection. This is unfairly prejudicial (or a waste of time) and should be excluded
because…"
Leading question: "Objection. Counsel is leading the witness."
(Remember, leading is only objectionable if done on direct or redirect examination).
Narrative Answer: "Objection, this witness's answer is narrative" Commonly used on direct
examination when a witness's answer has gone beyond the scope of the initial question
NonNon-responsive Answer: "The witness is nonresponsive, your honor. I ask that this answer
be stricken from the record."
being
ing asked. Commonly used by the crossThe witness's answer does not answer the question be
crossexamining attorney during cross examination.
Example:
Attorney:
Witness:
Attorney:
6.
7.
8.
Isn’t it true that you hit student B?
Student B hit me first. He/she was asking for it, acting like a jerk and humiliating
me in front of all my friends.
Your Honor, I move to strike the witness’s answer as non-responsive and ask that
he/she be instructed to answer the question asked. (Another option is to impeach
the witness with prior testimony if he/she testified in his his/her deposition that
he/she hit student B.)
Beyond the scope of cross or redirect: "Objection. Counsel is asking the witness about matters that
were not raised during the cross or redirect examination."
Improper character testimony: "Objection. This is
is testimony about character that does not relate
to truthfulness or untruthfulness."
Improper opinion: "Objection. Counsel is asking the witness to give an expert opinion, and this
Counsel’s
el’s question calls for an
witness has not been qualified as an expert." OR "Objection. Couns
opinion which would not be helpful to understanding the witness’s testimony (or which is not
rationally based upon what the witness perceived.)"
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9.
Invention of facts: "Your Honor, we object on the basis that opposing counsel’s question seeks
evidence that is outside the record in this case. Witness X has never given testimony in this case
concerning…" If the witness gives testimony on direct that is beyond the scope of materials, the
crosscross-examining attorney should say "move to strike the testimony concerning…as beyond the scope
of the case materials."
Example:
If witness X did not personally see arsenic in the medicine cabinet of the decedent’s wife, he
cannot testify that she had arsenic in her medicine cabinet.
10.
11.
12.
Lack of personal knowledge: “Objection.” The witness has no personal knowledge that would
allow her to answer this question.
Speculation: "Objection. The witness is speculating/this question calls for speculation." A hybrid
between lack of personal knowledge
knowledge and improper opinion.
Hearsay: "Objection. Counsel’s question calls for hearsay." If a hearsay
response could not be anticipated from the question, or if a hearsay response is given before the
attorney has a chance to object, the attorney should
should say, "I ask that the witness’s answer be stricken
from the record on the basis of hearsay."
Example:
Witness X testifies that “Mrs. Smith said that the decedent’s wife had a bottle of arsenic in her
medicine cabinet.” This testimony is inadmissible if offered to prove that the decedent’s wife
had a bottle of arsenic in her medicine cabinet, since it is being offered to prove the truth of the
matter asserted in the out-of-court statement by Mrs. Smith. If, however, the testimony is
offered to prove that Mrs. Smith can speak English, then the testimony is not hearsay because it
is not offered to prove the truth of the matter asserted in the out-of-court statement. However,
the testimony is only admissible if Mrs. Smith’s ability to speak English is relevant to the case.
Comment:
Why should the complicated and confusing condition be added that the out-of-court statement
is only hearsay when “offered for the truth of the matter asserted”? The answer is that hearsay
is considered untrustworthy because the speaker of the out-of-court statement has not been
placed under oath and cannot be cross-examined concerning his/her credibility. In the previous
example, Mrs. Smith cannot be cross-examined concerning her statement that the decedent’s
wife had a bottle of arsenic in her medicine cabinet, since witness X, and not Mrs. Smith has
been called to give this testimony. However, witness X has been placed under oath and can be
cross-examined about whether Mrs. Smith actually made this statement, thus demonstrating that
she could speak English. When offered to prove that Mrs. Smith could speak English, witness
X’s testimony about her out-of-court statement is not hearsay.
Remember, there are responses to many of these objections that the examining attorney can make
make
after the objection is raised and he or she is recognized by the judge to respond.
III. Other Trial Procedures
A. Opening Statement
An opening statement has been defined as “a concise statement of [the party’s] claim [or defense]
and a brief statement of [the party’s] evidence to support it.” Judge Richard M. Markus, Trial
Handbook for Ohio Lawyers (Thomson-West, 2006 Edition), §7:1, p. 305. A party seeking relief
should indicate the nature of the relief sought. It may be useful to acknowledge the applicable
burden, or burdens, of proof. An opening statement is not supposed to be argumentative, and
should be used by attorneys to present their theories of the case. Legal authorities can be cited, to
show what issue or issues are before the court for decision. It is appropriate to lay out what the
attorney expects the evidence will show, but the wise attorney will be conservative in this regard.
The most important aspect of the opening statement is to frame the issues. The attorney wants to
frame the issues so that there is a compelling narrative (the theory of the case) in his/her client’s
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favor into which all the favorable facts and all favorable legal authority neatly fit. A well-crafted
opening statement tells a story that will dominate the trial that follows.
B. Closing Statements
Closing statements, “are permitted for the purpose of aiding the [finder of fact] in analyzing all the
evidence and assisting it in determining the facts of the case.” Markus, op. cit., §35:1, at p. 1013.
In a bench trial (to a judge, rather than to a jury), the closing statement is also the time to argue the
law to the judge.
The attorney should point out to the court that his/her side has proven everything that it promised
to prove, while pointing out that the other side failed to prove what it promised it would. It can
now be shown how the evidence that was presented fits into the narrative (the theory of the case)
that was introduced in opening statement, which, in turn, applying the law, compels a result in that
side’s favor. Remind the court what that favorable result is; i.e., the particular relief your client is
seeking from the court.
On occasion, your evidence won’t survive an objection, or the attorney’s best witness will be forced
to equivocate on an important point on cross-examination. When this occurs adjustments have to
be made to the closing statement to fit the evidence actually presented in the trial.
The closing statements are the final opportunities to persuade the judge. In oral presentation, the
statements having the most impact are the first statements, and the final statements. The attorney
should try to make the first and last things said in closing argument the most vivid and persuasive,
while reserving those points that have less emotional impact, but need to be said, for the middle of
the statement.
C. Direct Examination - Form of Questions.
Witnesses should be asked neutral questions and may not be asked leading questions on direct
examination. Neutral questions are open-ended questions that do not suggest the answer and that
usually invite the witness to give a narrative response. A leading question is one that suggests to the
witness the answer desired by the examining attorney and often suggests a “yes” or “no” answer.
Examples:
1.
Proper direct examination questions:
a.
b.
2.
What did you see?
What happened next?
Leading questions (not permitted on direct):
a.
b.
Isn’t it true that you saw the defendant run into the alley?
After you saw the defendant run into the alley, you called the
police, didn’t you?
D. Cross Examination - Form of Questions
An attorney should usually, if not always, ask leading questions when cross-examining the
opponent’s witness. Open-ended questions tend to evoke a narrative answer, such as “why” or
“explain,” and should be avoided. (Leading questions are not permitted on direct examination
because it is thought to be unfair for an attorney to suggest answers to a witness whose testimony is
already considered to favor that attorney’s side of the case. Leading questions are encouraged on
cross-examination because witnesses called by the opposing side may be reluctant to admit facts that
favor the cross-examining attorney’s side of the case.) However, it is not a violation of this rule to
ask a non-leading question on cross-examination.
Examples:
1.
Good leading crosscross-examination question:
Isn’t it true that it was almost completely dark outside when you say you saw the defendant run into
the alley? (This is a good question where the witness’s statement says it was “almost completely
dark,” but a potentially dangerous question when the statement says it was “getting pretty dark out.”
2.
Poor crosscross-examination question:
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How dark was it when you saw the defendant run into the alley? (The witness could answer, “It
wasn’t completely dark. I could see him.”)
E. Opinion Testimony by NonNon-Experts
For mock trial purposes, most witnesses are non-experts. If a witness is a non-expert, the witness’s
testimony in the form of opinions is limited to opinions that are rationally based on what the
witness saw or heard and that are helpful in explaining the witness’s testimony. Non-experts (lay
witnesses) are considered qualified to reach certain types of conclusions or opinions about matters
which do not require experience or knowledge beyond that of the average lay person. Note,
however, that the opinion must be rationally based on what the witness saw or heard and must be
helpful in understanding the witness’s testimony.
Examples:
1. Witness X, a non-expert, may testify that the defendant appeared under
the influence of alcohol. However, it must be shown that this opinion is rationally based on
witness X’s observations by bringing out the facts underlying the opinion, e.g., the defendant
was stumbling; his breath smelled of alcohol; his speech was slurred. If witness X thinks the
defendant was under the influence because he had a strange look in his eye, then the opinion
should not be permitted because it is not sufficiently rational and has potential for undue
prejudice.
2. Witness X, a non-expert, may not testify that in his opinion the decedent
died of arsenic poisoning, since this is not a matter that is within the general knowledge of lay
persons. Only an expert, such as a forensic pathologist, is qualified to render such an opinion.
F. Opinion Testimony by Experts
Only persons who are shown to be experts at trial may give opinions on questions that require
special knowledge beyond that of ordinary lay persons. An expert must be qualified by the attorney
for the party for whom the expert is testifying. Before a witness can testify as an expert, and give
opinions in the area of his/her expertise, a foundation must be laid for his/her testimony by
introducing his/her qualifications into evidence. In a sense, every witness takes the stand as a nonexpert, and the questioning attorney must then establish the witness’s expertise to the court’s
satisfaction for the witness to be able to testify as an expert. This is usually accomplished by asking
the expert himself/herself about his/her background, training and experience.
Example:
Attorney:
Witness:
Attorney:
Witness:
Doctor, please tell the jurors about your educational background.
I attended Harvard College and Harvard Medical School.
Do you practice in any particular area of medicine?
I am board-certified forensic pathologist. I have been a forensic pathologist for 28 years.
It is up to the court to decide whether a witness is qualified to testify as an expert on a particular
topic.
G. Refreshing Recollection (Rule 612)
If a witness is unable to recall information in his/her witness statement or contradicts the
witness statement, the attorney calling the witness may use the witness statement to help the witness
remember.
Example: Witness cannot recall what happened after the defendant ran into the
alley or contradicts witness statement on this point:
1.
Mr./ Mrs. Witness, do you recall giving a statement in this case?
2.
Your Honor may I approach the witness? (Permission is granted.)
I’d like to show you a portion of the summary of your statement, and ask you to review the
first two paragraphs on page three.
3.
Having had an opportunity to review your statement, do you now
recall what happened after the defendant ran into the alley?
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H.
Impeachment (Rule 607)
On cross-examination, the cross-examining attorney may impeach the witness.
Impeachment is a cross-examination technique used to demonstrate that the witness should
not be believed. Impeachment is accomplished by asking questions which demonstrate
either (1) that the witness has now changed his/her story from statements or testimony
given by the witness prior to the trial, or (2) that the witness’s trial testimony should not be
believed because the witness is a dishonest and untruthful person.
Impeachment differs from the refreshing recollection technique. Refreshing recollection is
used during direct examination to steer a favorable, but forgetful, witness back into the
beaten path. Impeachment is a cross-examination technique used to discredit a witness’s
testimony.
Examples:
Impeachment with prior inconsistent statement:
1.
Mr. Jones, you testified on direct that you saw the two cars before
they actually collided, correct?
Witness:
Yes.
Attorney:
You gave a deposition in this case a few months ago, correct?
Witness:
Yes.
Attorney:
Before you gave that deposition, you were sworn in by the bailiff
to tell the truth, weren’t you?
Witness:
Yes.
Attorney:
Mr. Jones, in your deposition, you testified that the first thing that
drew your attention to the collision was when you heard a loud
crash, isn’t that true?
Witness:
I don’t remember saying that.
Attorney:
Your Honor, may I approach the witness?
(Permission is granted.)
Mr. Jones, I’m handing you the summary of your deposition and
I’ll ask you to read along as I read the second full paragraph on
page two, “I heard a loud crash and I looked over and saw that
the two cars had just collided. This was the first time I actually
saw the two cars.” Did I read that correctly?
Witness:
Yes.
Attorney:
Thank you Mr. Jones.
Attorney:
2.
Impeachment with prior dishonest conduct:
Attorney:
Witness:
I.
Student X, isn’t it true that last fall you were suspended from
school for three days for cheating on a test?
Yes.
Introduction of Physical Evidence (Rule 901)
Generally, physical evidence (objects) must be relevant and authentic (shown to be what
they appear to be) in order to be admissible. Exhibits are generally presented to the court
through witness testimony. Specifically, for mock trial purposes, all exhibits contained in
the case materials have already been stipulated as admissible evidence and may not be
altered to give either side an unfair advantage. This means that both sides have agreed that
all exhibits are admitted. Therefore, it is not necessary to demonstrate through a witness’s
testimony that an exhibit is authentic, an accurate representation or admissible, nor is it
necessary to move the court for the admission of the physical evidence.
45
Example:
Attorney:
Your honor, we have marked this one-page document as Plaintiff Exhibit
1 (or Defendant’s Exhibit A). Let the record reflect that I am showing
Plaintiff Exhibit 1 (or Defendant’s Exhibit A) to opposing counsel.
(Exhibit is shown to opposing counsel.) Your Honor, may I approach the
witness?
Judge:
You may.
Attorney:
Witness X, I’m showing you what has been marked as Plaintiff Exhibit 1.
Do you recognize that exhibit?
Witness:
Yes.
Attorney:
Could you explain to the Court what that is?
Witness:
It’s a map of the accident scene.
(At this point, the attorney may ask the witness any additional relevant questions about the
exhibit, and then give it to the judge.)
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Courtroom pointers to make the most
of your presentation:
I.
Dress appropriately: Your personal appearance affects the way people view you and your
performance. Appropriate dress means business (not casual) dress. For young women, this
could be a dress, a skirt and jacket, or slacks and a jacket. If a skirt or dress is worn, be
conservative in choice of hem length. For young men, it could be slacks and a shirt and tie,
or slacks with a jacket and tie, or a suit.
II. Pre-trial preparation
A. Arrive at the courtroom at least 15 minutes early so that you can acquaint
yourself with the layout, make any necessary adjustments and be ready to start
the trial exactly on time.
B. The prosecution team sits at the table closest to the jury box, and the defense
team sits at the other table.
C. Attorneys should neatly organize their materials on the tables. Get rid of all
unnecessary papers, briefcases, pencils and other clutter.
D. Witnesses should seat themselves in separate areas of the spectators’ section.
E. Make sure no team members are chewing gum.
III. Posture: Participants should remember that from the elevated bench, the judge has a good
view of the entire courtroom. Your seating posture has a definite impact on the judge’s
impression of you. Attorneys especially need to be conscious of how they are seated. Sit
straight but not so stiff as to be uncomfortable. Put your feet flat on the floor or cross your
legs in a professional manner. Avoid nervous mannerisms, such as shaking your leg or
tapping your pencil.
IV. Decorum
A. Be polite and courteous to the judges, both presiding and scoring.
B. Always stand when talking in court and when the judges enter or leave the room.
C. Always refer to the presiding judge as “Your Honor” and accept rulings graciously
and politely even if they are not in your favor.
D. Behave courteously and respectfully toward the opposing team before, during
and after the trial.
E. Be cordial to witnesses.
F. Emotions are not banned from the courtroom; however, they must be controlled.
It is okay (and may even be part of your trial strategy) to be appropriately
indignant, puzzled, etc., but uncontrolled outbursts or wild theatrics are not
appreciated by the judging panels and may cost you valuable points.
V. Speak effectively
A. All participants should speak clearly and carefully enunciate each word.
B. For attorneys, all speaking is done from a standing position. For witnesses,
speaking is done in a seated position from the witness stand.
C. If you are an attorney and are addressed by the court, stand promptly before
responding.
VI. Deliver your best opening statement or closing argument
A. Organize any materials before beginning.
B. Rise slowly.
C. With confidence, walk slowly, yet deliberately, to the podium or the area from
which you will deliver the opening or closing.
D. Assume good speech-making posture. Your feet should be set apart a bit and
your weight balanced on the balls of your feet.
47
E. Before your first word, look the judge directly and say, “May it please the court”
and begin to speak directly to the members of the jury (scoring judges).
F. Try for a conversational tone in your voice. Speak to the judges in a clear voice
that is slow enough and loud enough for them to follow your ideas without
straining.
G. Avoid using slang and always use your very best vocabulary.
H. Use variety in your delivery. You can emphasize major points in several different
ways, e.g. pause before an important idea, raise your volume slightly to
accentuate an important idea, or slow down to draw attention to an important
idea.
I. Natural gestures are always good to emphasize ideas. They will come
instinctively if your focus is on talking to the judges. Do not force gestures and
always avoid repetitive or unnecessary gestures.
J. Be aware that judges may interrupt during your closing statement and ask you a
question. Pause, listen carefully to the question, then answer to the best of your
ability. The most important thing is to maintain your poise.
K. When you have concluded your presentation, say, “Thank you, your honors,”
while looking directly at the presiding judge. Pause briefly and then take your
seat. Show no signs of relief and do not immediately turn to speak to co-counsel.
Always maintain that aura of poise and confidence.
VII. Question witnesses skillfully
A. Always rise to do the questioning.
B. You may have questions written out, but be ready to adapt when objections are
made or when a witness does not respond as you had expected.
C. Speak slowly and clearly.
D. Listen to the witness’s response. S/he may not say what you had anticipated
and thus you may have to insert or reword questions for clarification.
E. If opposing counsel makes an objection, stop speaking and give them the floor.
F. Be prepared to respond to an objection. Do so as articulately and confidently as
you possibly can. Do not ramble. Not all judges will expect you to respond, and,
in fact, sometimes you will have to ask if the judge will allow you to do so.
G. If the judge rules against you on an objection, show no signs of dismay. Simply
proceed with another question. The key is to maintain your poise.
H. If you are stumped on how to proceed, ask the judge if you may confer with your
co-counsel. Make the conference brief. Use this conference technique only
when absolutely essential. Judges may become frustrated if you hold up the trial
too often. Remember: this conference counts as part of your time allotment.
I. Never ask a question to which you do not know the answer.
J. When you have finished your questioning, say, “No further questions, your
honor,” and take your seat in a confident manner.
VIII. Be a great witness
A. Generally, all witnesses will be sworn at the beginning of the trial as one group.
B. When you are called, go to the witness stand. When the judge indicates that you
may take your seat, respond by saying, “Thank you.”
C. Seat yourself in the witness box in a professional manner.
D. Position yourself so that you can comfortably give your responses to the scoring
judges.
E. Speak loudly and clearly and in a manner best fitting the character you are
portraying.
F. Stay in character!
G. Do not allow any unnecessary movement or gestures to distract from your
testimony.
H. When an objection is made, immediately stop talking.
I. Wait until the objection is decided and even then do not respond until the
attorney doing the questioning indicates that you should do so.
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J.
K.
L.
M.
N.
Do not attempt to answer a question that you do not understand. Ask for
clarification to be sure that you understand the question that is being asked.
Never argue with the judge or the opposing counsel. Keep a cool head!
Do not leave the witness box until the judge directs you to “step down.”
Walk slowly and confidently back to your seat.
Do not speak to anyone along the way or when you are seated.
IX. Maintain your demeanor during recess and debriefing
A. Rise when the judges leave the courtroom; maintain order and quiet while they
are out; rise when the judges re-enter the courtroom.
B. Listen quietly and respectfully during the debriefing. When all the judges have
concluded their comments, feel free to applaud, not only for them, but also for
your opponents and yourselves.
X. Exhibit good sportsmanship: Walk over to the other team members. Shake hands and
introduce yourself. It is always appropriate to congratulate them on a particularly good aspect
of their performance. Remember, good sportsmanship is part of being a good winner. Not
everyone can win the competition, so learn as much as you can and have fun while
participating in the project.
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CLEVELAND MUNICIPAL COURT
CLEVELAND METROPOLITAN BAR ASSOCIATION
MOCK TRIAL COMPETITION
TEAM ENTRY FORM
It is necessary that we timely receive this form, one for each team you are entering, so that we will know
how many judges and courtrooms will be needed for the competition and so that we may prepare the
Certificates of Participation for the students. Please provide the names of any student who may be
participating whether or not their participation has been confirmed.
Due April 22, 2016
Send to:
Lavora “Gayle” Gadison
East Professional Center
1349 East 79th St.
Cleveland, Ohio 44103
[email protected]
School:
Teacher:
Team No.
Names of students
(Please print legibly or attach a typed list, making sure to identify school and team on the top of
the list):
1.
14.
2.
15.
3.
16.
4.
17.
5.
6.
7.
8.
9.
10.
11.
12.
13.
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CLEVELAND MUNICIPAL COURT/
CLEVELAND METROPOLITAN BAR ASSOCIATION
MOCK TRIAL COMPETITION
SUBPOENA
IN THE CASE OF:
CITY OF CLEVELAND
-vsDANA LEWIS
To: Judge Lauren C. Moore
Cleveland Municipal Court
Courtroom 14-A
Cleveland, OH 44101-4984
Tel.: (216) 664-4973
Fax: (216) 664-6735
You are commanded to have to appear before the (name of school)
____________________ mock trial team a (prosecutor, defense attorney, police
officer, victim advocate, social worker, probation officer, etc.) __________________ on (date)
____________, at (time) ____ in Room ______ to answer questions
and present information to our mock trial team to assist us in our
preparation of the case. (Contact person) ____________________ should
be contacted at (contact number) _______________ upon receipt of this
subpoena to confirm attendance and make arrangements.
By: _________________
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THE WRITING COMPETITION
Most judges will agree that writing effectively is perhaps the most important lawyering
skill there is. While courtroom skills are essential, judges rely extensively on briefs and
memoranda submitted by lawyers on behalf of their clients. It is through briefs and memoranda
that legal issues are framed and argued. Judges frequently decide many cases, particularly in
civil matters, solely on the briefs filed. Because the court believes that writing skills are at least
as important as other lawyering skills promoted in the Cleveland Mock Trial Competition, this
writing portion continues to be an important, and independent, component of the competition.
Once again, the writing competition this year is a solo competition and individual awards
will be given. Although students are not required to participate, the court strongly encourages all
students to participate. At a minimum, by writing on these issues, students will be better
prepared to argue their respective positions at trial. Papers should be between four and ten
pages in length. Please be conscientious about grammar, spelling, and neatness, as well as
substantive content.
This year, students may write a persuasive essay based on any of the topics outlined on
Pg. 22 of their case materials.
The essays are due on Monday, April 25, 2016 and must be clearly marked with
students’ names, teachers, and schools. The essays may be mailed, faxed, or emailed to:
Jessica Paine, Assistant Director of Community Programs & Information
Cleveland Metropolitan Bar Association
1375 East Ninth Street, Floor 2
Cleveland, OH 44114
Email: [email protected]
Fax: (216) 696-2413, Phone: (216) 696-3525, ext. 4462
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