Criminal Law



John Nourse and Ieva Butkute

Mock Trial Basics

May 8, 2008

Lesson: Closing, Direct Ex, and Cross Ex – Lecture & Exercises

Source: Original

Time: One 90 minute class period

I. Goals

A. Students will understand the basics mechanics and goals of Closing Arguments, Direct Examinations, and Cross Examinations.

B. Students will be complete their knowledge of the fundamental skills to get through the most basic of Mock Trials.

C. Students will begin to understand the basics of trial strategy and good trial advocacy technique.

II. Objectives

A. Knowledge Objectives: As a result of this lesson, students will understand:

1. The ways in which Closing Arguments are different from Opening Statements (Argumentation versus Statement of Facts, Evidence that was presented versus Evidence that will be presented)

2. Students will understand the concepts underlying Direct Examination versus Cross Examination and see Direct Ex and “Friendly Conversation” and Cross Ex and “Unfriendly Interrogation.”

B. Skill Objectives: As a result of this lesson, students will be better able to

1. Give a brief, impromptu or longer, prepared closing argument.

2. Give a direct examination of a witness with whose affidavit they are familiar.

3. Give a cross examination of a witness with whose affidavit they are familiar.

C. Attitude Objectives: As a result of this lesson, students will feel:

1. that proper trial technique is largely a matter of learning how to apply skills they already have

2. empowered by their ability to participate in a mock legal proceeding

3. fascinated by the drama of realistic court room procedure.

III. Classroom Methods (Opening and Closing)

A. Opening Review - 15 Minutes. Quick review of the basics of opening statements. Review of videos of openings statements from movies and television with the students.

B. Closing Lecture - 10 Minutes. Quick lecture reviewing the “Rule of 3” and the Rule of Primacy and Recency. People will remember what they here first and last, and remember things best in groups of three. Review and further develop the idea of theme and theory. Talk about what IS argumentation and how it is allowed and should be used in closing arguments. Talk about limitations to stating the law as it is, explaining/stressing burden of proof, and prohibition against bringing up facts that didn’t come in at trial. Quick overview of rebuttal.

C. Goldilocks Example – 5 minutes. Ask a student (either volunteer or at random) to stand and tell the story of goldilocks and the three bears. Explain that that is a good opening. Just a story based on the facts. Explain and give a brief example of how you can push further in a closing. From “Goldilocks entered the house, sat in and broke their chairs, at their food, and slept in their beds” to “Goldilocks has shown herself to be a spoiled young girl with disregard for both the law and the security and privacy of others.”

D. Exercise – 15 Minutes. Have students count off by 2. 1’s are opening, 2’s are closing. Have them give and opening and a closing of the Three Little Pigs to one another. Each side has 3 minutes.

E. Direct Examination and Cross Examination Icebreaker – 5 minutes. Ask a student (volunteer or random) to pretend that they are a friend of mine who hasn’t seen me in a month. Have them ask me about what I’ve been up to, how I’ve been. Generally to just have a conversation with me, trying to elicit information. Then, select another student (volunteer or random) and have them pretend to be my child sneaking in at 1:00 AM. They have a 10:00 PM curfew. Interrogate them as the angry parent using Cross Examination style leading questions. “Did you know that it’s 1:00?” “You’re curfew is 10:00, isn’t it?” “You were out with those friends of yours, weren’t you?” “Have you been drinking?” Explain that the first is basically a direct examination and the latter is basically a cross examination.

F. Direct and Cross Examination Lecture – 10 Minutes. Explain that direct examination is with a friendly witness. You just want to give them a chance to tell their story. Give them the Funny Man/Straight Man example. In a comedy duo, the straight man sets up the jokes for the funny man. In Direct Ex, the attorney is the straight man. They are simply giving cues and opportunities with their questions to allow the witness to tell their story. Explain the importance of open ended questions, what an open ended question is, and specificity in open ended questions (“What did the police officer do after finding the body on the ground?” rather than “What happened next”) to help guide the witness. Review the Rule of 3 and Primacy and Recency and explain that there should be three main points in each cross and your questions should lead up to each point. Most important and second most important point go first or last.

Explain that the “ideal cross examination” is a long statement by the attorney where the witness says “yes” after each new fact. Explain the idea of one fact per question and questions building on one another. Explain that you are not asking the witness anything on Cross Examination, but rather telling them. “…, isn’t it?” or rising tone at the end of what is basically a statement. Caution against the one question too many and quarrelling with witnesses.

G. Direct and Cross Examination Exercise – 15 minutes. Have students go around the room in turn initially direct examining one of the teachers who will be playing a witness. Stop as you go along to offer constructive criticism of questions that either do not build on the previous question or that are leading.

Switch and repeat the exercise with cross examination.

IV. Homework

A. Have students fill out their role request forms. Have students select either a direct or cross examination or a closing argument for the Mock Trial case and write it for the next class period.

V. EVALUATION:

a.      Student participation in class discussions on probable cause.

b. Cross or direct examination or closing argument.

THE CASE OF BILLY GREENWOOD

Billy Greenwood lived in Laguna Beach, California. Early in 1984, police there received information that Greenwood was a drug dealer. The information came from a federal drug enforcement agent who had been told by a criminal suspect that a large shipment of narcotics was on its way to Greenwood's house in a truck. In addition, one of Greenwood's neighbors complained to police of a large number of vehicles passing through the neighborhood late at night and stopping briefly at the Greenwood residence. The police watched Greenwood's house and verified what the neighbor had said. Police saw a truck leave the house and followed it to another residence that they had previously investigated as a drug dealing location. The police did not believe that they could get a search warrant without further evidence, however. The criminal informant was not seen as reliable.

On April 6, 1984, a police investigator who had been working on the case for several months asked the trash collector in Greenwood's neighborhood to pick up the opaque, sealed plastic trash bags that Greenwood placed on the curb in front of his house and to give her the bags without mixing their contents with refuse from other houses. The trash collector complied with this request. When the investigator searched through Greenwood's trash, she found items related to use of narcotics. She used this information to obtain a search warrant to search Greenwood's home, where they discovered quantities of cocaine and hashish. Greenwood and another person were arrested on felony narcotics charges.

Greenwood's lawyer argued that the search of his trash was unconstitutional and that the evidence obtained from the trash search and the later search of his house should be excluded from the trial court. He said that police would not have had probable cause for a warrant to search his house if they had not first obtained evidence illegally by searching his trash. Greenwood also said that the trash collector was acting as an agent of the police and at the request of the police when he singled out Greenwood's trash from other trash.

The State of California argued that Greenwood's trash was collected on the street where it had been left for the trash collector. Under these circumstances Greenwood had left his trash in plain sight and had no reason to expect that his trash would remain private. Therefore, the State of California claimed that its case against Greenwood was valid and so was the evidence.

The California Court of Appeals agreed with Greenwood and so did the California Supreme Court. Finally, the State of California appealed the case to the United States Supreme Court. It asked the Supreme Court to decide whether the rights of Greenwood had been violated in searching the trash in front of the house.

UNITED STATES CONSTITUTION FOURTH AMENDMENT

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

THE FOURTH AMENDMENT BANS:

• UNREASONABLE SEARCHES AND SEIZURES

• BY THE GOVERNMENT

• OF AREAS THAT FALL WITHIN A LEGITIMATE

• EXPECTATION OF PRIVACY.

General rule: Searches without a warrant are unreasonable unless the search falls within an exception to the warrant requirement.

INSTRUCTIONS FOR PETITIONER'S ATTORNEY

First, you will work in a group of 3 to 5 people who all represent the State of California to prepare arguments to support your position. After you have prepared, each of you will join a group of two other students, so that each group of three has an attorney for the state, an attorney for Greenwood, and a U.S. Supreme Court Justice. Each of you will then make a presentation of about three minutes to the Justice. You, as Petitioner, will go first. The Justice may interrupt you to ask questions. As Petitioner, you may have up to 1 minute to speak again after the attorney for Greenwood has made his or her argument.

The issue in the case is: Did the search of Greenwood's trash without a warrant violate the fourth amendment? Put another way: did Greenwood have a legitimate expectation of privacy in his trash?

First, make sure you understand the facts of the case. What facts help your side?

As Petitioner, you represent the State of California and will argue that the search was proper and that evidence seized in Greenwood's trash should not be excluded from consideration at trial.

Work with your team by considering and writing responses to the following:

• A clear, brief statement of your position.

• At least two facts from the case which support your position.

• An explanation of how each fact supports your position.

• How the Fourth Amendment, the exclusionary rule and any prior cases should be interpreted in relation to the position you are taking.

• One reason why your position is fair to the State.

• One reason why a court decision in your favor will benefit society.

Make an outline ordering all of this information so that it can be included in a three-minute presentation. You will also have the opportunity to make a final response after the attorney for Greenwood has argued.

Arguments Petitioner could make:

• It is common knowledge that trash placed on the street (a public area) is accessible to dogs, scavengers, snoops, children or others, so there is no reasonable expectation of privacy in trash.

• Once trash is placed on the street (a public area) for pick-up, it has been turned over to a third party - the trash collector. Since the trash collector authorized the police to look at the trash, Greenwood has no right to complain.

• Any member of the public could have looked at the trash, therefore, it may be used as evidence against Greenwood.

• The average person who places their trash on the street does not have an expectation that it will remain private.

1. INSTRUCTIONS FOR GREENWOOD'S ATTORNEY, THE RESPONDENT

First, you will work in a group of 3 to 5 people who all represent Greenwood, to prepare arguments to support your position. After you have prepared, each of you will join a group of two other students, so that each group of three has an attorney for the state, an attorney for Greenwood, and a U.S. Supreme Court Justice. Each of you will then make a presentation of about two or three minutes to the Justice. You, as Respondent, will go second. The Justice may interrupt you to ask questions.

The issue in the case is: Did the search of Greenwood's trash without a warrant violate the fourth amendment? Put another way: did Greenwood have a legitimate expectation of privacy in his trash?

First, make sure you understand the facts of the case. What facts help your side?

As Respondent, you represent Greenwood and will argue that the search was a violation of Greenwood' fourth amendment right of privacy and that evidence seized in Greenwood's trash should be excluded from consideration at trial.

Work with your team by considering and writing responses to the following:

• A clear, brief statement of your position.

• At least two facts from the case which support your position.

• An explanation of how each fact supports your position.

• How the Fourth Amendment and any prior cases should be interpreted in relation to the position you are taking.

• One reason why your position is fair to Greenwood.

• One reason why a court decision in your favor will benefit society.

Make an outline ordering all of this information so that it can be included in a three-minute presentation.

Arguments Greenwood could make:

• When a person seals personal items in a trash bag, they should be entitled to expect that it not going to be scrutinized by the trash collector or the police.

• Putting trash out for collection does not imply that Greenwood gave up his right of privacy in what the sealed trash bag contained. Does putting a letter in the mailbox for collection by the postman mean the sender gives up the right of privacy in the letter or package?

• Scrutiny of another's trash is contrary to commonly accepted notions of civilized behavior.

2. INSTRUCTIONS FOR THE JUSTICES

First, you will work in a group of 3 to 5 people who are all U.S. Supreme Court Justices, to prepare questions for oral argument by the attorneys. After you have prepared, each of you will join a group of two other students, so that each group of three has an attorney for the state, an attorney for Greenwood, and a Justice.

The issue in the case is: Did the search of Greenwood's trash without a warrant violate the fourth amendment? Put another way: did Greenwood have a legitimate expectation of privacy in his trash?

When preparing to hear arguments, Supreme Court Justices review written briefs submitted by each party with their clerks, and identify questions they want to ask the attorneys. Working with your team, write down the following information:

• What don't you understand about the case?

• What facts do you want clarified?

• Which of their client's actions would you like the attorneys to justify or explain?

Justices also prepare by reviewing previous court decision and the relevant provisions of the Constitution. Review the handout about the fourth amendment, and the 1986 case California v. Ciraolo.

Prepare at least three questions to ask each attorney during their argument. You may interrupt the attorney to ask questions. (Politely, of course.)

As Justice, you will also be responsible to keep time for the arguments, and tell the attorneys when to start and stop. The time and order will be:

Petitioner's Argument – 2 to 3 minutes, including your questions.

Respondent's Argument -- 2 to 3 minutes, including your questions.

Response by Petitioner -- 1 minute, including any questions.

Then, you will have time to reflect on the arguments, and make a decision. You may then tell the attorneys how you decided the case, and why. At the end, if there is time, all Justices will come to the front of the room to tell how they ruled and why.

Possible questions:

• Would it make a difference if the trash were in a trash can with a lid?

• What about if the trash were left for pick-up in the defendant's back yard, rather than the curb? Would that make a difference? Would it be more protected?

SEARCH & SEIZURE OPINION POLL

Circle the answer that most closely corresponds with your opinion.

1. A gun was found in a classroom in Angelie's school a month ago. In order to prevent students from bringing drugs or weapons into the building, the male principal has started randomly searching the contents of all student lockers on a regular basis. Angelie is keeping her secret sonogram in her locker and it is discovered by the principal when he searches her locker. The locker search violates Angelie's privacy.

 

Strongly Agree  Agree  Undecided  Disagree  Strongly Disagree

2. On the street, a police officer is conducting random searches of teens' possessions in order to identify drug users. Betty is not known for being a troublemaker and is always polite and respectful. The officer searches her bag as part of the random search and discovers a small bag of cocaine. The cocaine the officer found in Betty's bag should be used as evidence to prove that Betty committed the crime of drug possession.

Strongly Agree  Agree  Undecided  Disagree  Strongly Disagree

 

3. Recently in WA state, Governor Christine Gregoire suggested a law that would allow police to randomly stop drivers at intersections ("checkpoints") in Washington to find out whether they are driving drunk. Any checkpoint would have to be pre-approved by a judge and carried out at a specific time in a specific location with a history of drunk-driving accidents. These checkpoints do not violate people's privacy.

Strongly Agree Agree Undecided Disagree Strongly Disagree

4. Chris plays basketball, receives good grades in all of his classes, and volunteers as a tutor at a nearby grade school. Nonetheless, because he is a student athlete and the school has a strict "zero tolerance" policy that bars any drug-using student from playing sports, Chris must provide the school with urine samples for random drug tests whenever asked. This violates his privacy and is unfair.

Strongly Agree  Agree  Undecided  Disagree  Strongly Disagree

5. I would be willing to give up a few of my personal freedoms in order to greatly reduce the amount of crime and drug use in our society.

Strongly Agree  Agree  Undecided  Disagree  Strongly Disagree

State of the Law & Class Discussion Points

 

1.       QUESTION: A gun was found in a classroom in Angelie's school a month ago. In order to prevent students from bringing drugs or weapons into the building, the male principal has started randomly searching the contents of all student lockers on a regular basis. Angelie is keeping her secret sonogram in her locker and it is discovered by the principal when he searches her locker. The locker search violates Angelie's privacy.

a.       WASHINGTON LAW: In 1989, the Washington legislature adopted the following legislation: "No right nor expectation of privacy exists for any student as to the use of any locker issued or assigned to a student by a school and the locker shall be subjected to search for illegal drugs, weapons, and contraband." RCW 28A.600.220. "A school [official] may search a student, the student's possessions, and the student's locker, if she has reasonable grounds to suspect that the search will yield evidence of the student's violation of the law or school rules." RCW 28A.600.230. "In addition, a school [official] may search all student lockers at any time without prior notice and without reasonable suspicion that the search will yield evidence of any particular student's violation of the law or school rule."

i.      Some school districts in Washington have in fact adopted locker search policies.

1.       What do you think of locker searches?

2.       Do you know anyone who has had his/her locker searched?

3.       Does a locker seem like a private place?

b.      FEDERAL LAW: Federal courts have held that trained police dogs may sniff student lockers for drugs without obtaining a warrant. Zamora v. Pomeroy, 639 F.2d 662 (10th Cir. 1981), Horton v. Goose Creek Independent School District, 690 F.2d 470 (5th Cir. 1982). In the Horton case, though, the court held that a police dog could not sniff a student for drugs without individualized suspicion or a warrant.

 

2.    QUESTION: On the street, a police officer is conducting random searches of teens' possessions in order to identify drug users. Betty is not known for being a troublemaker and is always polite and respectful. The officer searches her bag as part of the random search and discovers a small bag of cocaine. The cocaine the officer found in Betty's bag should be used as evidence to prove that Betty committed the crime of drug possession.

a.   GENERALLY: Before searching a person's belongings for evidence of a crime, police must have what is called "probable cause" to believe a crime has been committed or "probable cause" to believe they will find evidence of a crime.

i.      What is probable cause? Get student input.

ii.      Display overhead continuum. Discuss examples of each level of "certainty."

b.   U.S. SUPREME COURT: The U.S. Supreme Court has developed a rule called the "exclusionary rule" that basically says when police conduct an illegal search that violates a person's Fourth Amendment rights, the evidence the police find cannot be admitted into evidence to show the person's guilt.

    i.      What do you think the purpose of the Exclusionary Rule is?

   ii.      The Exclusionary Rule under the federal constitution is designed to deter police from conducting illegal searches.

  iii.      If the cocaine found in Betty's bag was the only evidence that she committed a crime, she may get away with it under the Exclusionary Rule, which says that any evidence obtained illegally by officers cannot be used in court. Some people would say Betty "got off on a technicality." Rather than a technicality, it was the officer's violation of Betty's constitutional rights that would result in Betty's acquittal.

1.       Do you think it's fair for people to avoid being punished for crimes in situations like this?

2.       Can you think of reasons why the Exclusionary Rule might be good? Bad?

c.   In New Jersey v. T.L.O., 468 U.S. 325 (1985), the U.S. Supreme Court held that the Fourth Amendment's prohibition of unreasonable searches and seizures also applied to searches conducted by public school officials.

d.      WASHINGTON COURTS: In 1985, the Washington Supreme Court ruled that it is unconstitutional for public schools to search a student's possessions without individualized suspicion that he or she is breaking a law or school rule. Kuehn v. Renton School District, 103 Wash. 2d 594 (1985). In that case, the court struck down a school policy that required school officials to search students' luggage before the students left on a band concert tour.

 

3. QUESTION: Recently in WA state, Governor Christine Gregoire suggested a law that would allow police to randomly stop drivers at intersections ("checkpoints") in Washington to find out whether they are driving drunk. Any checkpoint would have to be pre-approved by a judge and carried out at a specific time in a specific location with a history of drunk-driving accidents. These checkpoints do not violate people's privacy.

a. FEDERAL LAW: Sobriety checkpoints are constitutional under the U.S. Constitution. Michigan v. Sitz, 496 U.S. 444 (1990).

b. WASHINGTON COURTS: However, it is not clear whether the Gregoire proposal will meet the stricter privacy laws under WA law. The rights provided for citizens in the U.S. Constitution represent the bare minimum that all citizens may enjoy. Each state may provide further protections for its citizens in its own constitution. The Washington State Constitution provides for greater privacy rights than does the U.S. Constitution, so even though sobriety checkpoints are constitutional under the U.S. Constitution, they may violate Washington's stricter privacy laws.

4.    QUESTION: Chris plays basketball, receives good grades in all of his classes, and volunteers as a tutor at a nearby grade school. Nonetheless, because he is a student athlete and the school has a strict "zero tolerance" policy that bars any drug-using student from playing sports, Chris must provide the school with urine samples for random drug tests whenever asked. This violates his privacy and is unfair.

a.       U.S. SUPREME COURT: In 1995, the United States Supreme Court ruled that public school athletes can be required to undergo drug testing even if they are not suspected of using drugs. In that case, a 7th grader refused to sign a form consenting to drug testing; the school district would not allow him to play on the football team without signing the form.

   i.      Justice Scalia gave two main reasons for testing student athletes before anyone else in the student body: 1) student athletes have lesser privacy expectations because they are accustomed to dressing and showering in locker rooms, and 2) student athletes are role models to other students. Vernonia School Dist. v. Acton, 115 S.Ct. 2386 (1995).

1.       What do you think of Justice Scalia's reasoning?

2.       Do you think student athletes are role models?

b.    WASHINGTON: The Washington State Court of Appeals ruled in 2002 that the random drug testing of student athletes is permissible under the WA State Constitution, because they are not necessarily "suspicionless searches." York v. Wahkiakum Sch. Dist. No. 200, 110 Wn. App. 383, 386, 40 P.3d 1198, 1200 (2002). This is true even though, as stated above, the Washington State Constitution provides its citizens with more privacy protections than does the U.S. Constitution.

      i.      What do you think of the lawsuit?

c.    FACTOID: Random drug testing of all Americans is not legal under either the federal or the Washington constitution. Nonetheless, 55% of respondents in a Washington Post poll agreed with this statement that random mandatory drug testing SHOULD be allowed.

 

5.    QUESTION: I would be willing to give up a few of my personal freedoms in order to greatly reduce the amount of crime and drug use in our society.

a.       FACTOID: In a Washington Post survey, 62% of respondents said they would be willing to give up some personal freedoms.

b.      DISCUSSION: What freedoms would you be willing to give up? What sorts of measures would help the police fight crime?

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