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Student: Jay Corker Free Class: Street LawLesson Plan: Mock Trial Preparation. Model Lesson Plan.Source: Youtube, WA Practice Series, NY , and Mock Trial Preparation - Preparing Direct and Cross?(2000).Caveat: (a) This lesson plan presumes a basic understanding of the format and purpose of a criminal trial but can also be conducted as a stand-alone lesson. (b) This lesson plan involves graphic material (the shooting of Mr. Walter Clark by Officer Slager in 2015) and consequently, should only be used with a class that has the emotional maturity to handle the content of the video. These materials were used for a 12th grade class at Ballard High School with no issues and in fact, the topic generated the most excitement and enthusiasm of any of the semester’s issues.LESSON: Developing Case Theory and Conducting Direct and Cross-Examinations TIME: 100 minutes (two class periods)GOALS - By participating in the class the students will:Understand the concept of the story or theme of the case. Understand the purpose of a direct and cross-examination.Know how to choose the subject material for a direct and cross-examination.Be able to write a direct and cross-examination.Understand how to conduct a direct and cross-examination. Including, but not limited to, the concept of leading questions.OBJECTIVESKnowledge Objectives – As a result of this lesson, the students will know:That a direct examination is meant to tell the story of your case.That the witness should be the star of the direct examination.That a cross-examination is meant to show bias or weakness in the witness’s testimony.That the lawyer is the star of the cross-examination.Skills Objectives – As a result of this lesson, the students will be better able to:Write set of questions for a direct and cross examination.Conduct a direct examination by:Using transition/sign-post sentences;Asking open questions;Maintaining a likable demeanor;Handling the witness’s weaknesses before they are attacked on cross.Conduct a cross examination by:Asking short, leading and pointed questions;Asking build-up questions that paint the witness into a corner.Walking the fine line between effective challenging of the witness without alienating the jury.Attitudinal ObjectivesStudents will have better understanding about the role of race in the criminal justice system. Students will have a better awareness of the serious and pressing societal issue of police brutality. CLASSROOM METHODS:Introduction Potential Ice Breaker: To get the students interested in the topic immediately, consider showing the video of the shooting (link included below) to start off the class. We did this in the original lesson and it immediately got the students interested in the topic. Explain to Students: Today will be learning (1) Theme of the Case, (2) How to Prepare and Conduct a Cross-Examination, and (3) How to Prepare and Conduct a cross-examination. Only if doing mock trial later in semester: Instruct them that when they do the mock trial they will be following this basic structure for developing their case but that the facts will be more complicated for their case. Make sure to instruct the students that for the purposes of this exercise they are limited to the evidence we show them: (a) the two videos and (b) Officer Slager’s statement after the shooting. They cannot ask questions designed to go outside of this information (the “evidence”). Note: In class prior, should discuss what will be doing in this class and that what are viewing will contain graphic material but that is of critical social importance that are aware of these type of issues.B. Introduction of Evidence for use in the caseInstruct students that should be taking notes when viewing evidence (writing down key facts for both sides). Evidence for use in the case:FIRST piece of evidence: In Car Video: piece of evidence: The shooting video piece of evidence: Provide Handout or Powerpoint with the following statement by Officer Slager which was take immediately following the shooting: Officer Slager said the man ran on foot from the traffic stop and that he deployed his department-issued Taser in an attempt to stop him. That did not work, Officer Slager said, and an altercation ensued as the men struggled over the device. Officer Slager said that?during the struggle the man gained control of the Taser and attempted to use it against the officer. Officer Slager said he then resorted to his service weapon and shot him. Officer Slager was not aware of the person using a video camera. Consider including in facts: Part of general officer training is to shoot center mass (i.e. do not shoot to wound but to kill) and to shoot until the threat has ended. Consider including in facts: Standard training is for officers to yell “Taser, Taser, Taser” prior to using their taser.Provide The Students with the Handout and review only the charges and the legal standard for conviction.Re-review the evidence (i.e. step 7) in light of the criminal charges and legal standard. DEVELOPMENT OF THE CASE ITSELFA. Develop List of Key FactsHave the students develop a list of key facts and write those down on the board as you go. When students list a key fact, facilitate to try and get them to explain why that fact matters, which side it helps or hurts, and finally, either (a) what is a counter-argument that can minimize the damage of that fact or a different interpretation of that fact. Example list of key facts:Was pulled over for a broken taillight Possible relevance: minor infraction. No reason to suspect Mr. Scott was a risk or was armed. Officer Slager was courteous and respectful during the traffic stop interaction.Walter Scott was courteous and respectful during the traffic stop interaction.Officer Slager instructed Mr. Scott to stay in the car.Walter Scott ran away in the opposite direction of Officer Slager.You can hear Officer Slager yell “Taser, Taser, Taser” while they are off camera.There is an unknown segment of time that is not captured on video. Potential Relevance: It is unknown what occurred between Officer Slager and Walter Scott during that period.Despite Mr. Scott starting with a lead, Officer Slager was able to catch up to him before the second recording picks up.Potential Relevance: (a) Mr. Scott turned to confront Officer Slager, (b) Officer Slager is significantly faster than Mr. Scott (c) Mr. Scott fell down, or (d) Mr. Scott attempted to surrender.When the second video captures the scene, it appears that they are both getting up from the ground.There is a black object (taser?) that appears to fly in the air and land on the ground.Potential Relevance: The taser was out and had been attempted to be used. That it went in the air and landed on the ground may suggest the possibility that Officer Slager believed Mr. Scott had possession of the Taser.Walter Scott is running away and approximately four feet away when Officer Slager begins to pull his gun.Walter Scott is approximately eight feet away when the first shot is fired.Walter Scott continues to run in the opposite direction and Officer Slager continues to fire. Firing eight times total. With Mr. Clark approximately 30 feet away at the time of the final shot.Officer Slager slowly walks over to Mr. Scott while looking around him in different directions.Officer Slager handcuffs Mr. Scott.Potential Relevance: can this be used to show he was scared of Mr. Scott?Counter: Shows depravity of Officer Slager.Officer Slager jogs back to area where video picked up and picks up object (taser?) and jogs back to Mr. Scott and drops taser next to his body.Facilitate: Can defense use to show that he thought the taser was possessed by Mr. Scott when he ran away and when he saw Mr. Scott did not have it, yes he made a mistake when he panicked and tried to cover up the murder afterwards; but that does not make him guilty of murder and the fact that he thought Mr. Scott had the taser (otherwise he would have picked up the taser immediately after shooting him?) shows that he was reasonably in fear for his life when he shot Mr. Scott.Officer Slager did not attempt to provide medical aid to Mr. Scott Facilitate relevance: can argued Officer Slager had depraved to attempt the get the jury to be on the prosecution’s side.Provide the Students with the Handout Explain that will go through the handout section by section. First, will develop the theory of the case for both the defense and prosecution.Second, will work on direct examination questions that the Defense would ask Officer Slager if they called him as a witness.Finally, will work on cross-examination questions that the Prosecution would ask Officer Slager. Emphasize that this will teach them to see both sides of the issue as will be approaching the issues from both a defense and prosecution perspective. Proceed Through Handout. The handout is your primary tool during this lesson and you should go through it step by step (out loud) with the students. Complete each section and have the students fill it out before moving on to the next section. Be sure to have students (either cold call or volunteer) to read all the entries and examples out loud as you go through to keep them engaged.Also facilitate throughout to have students explain the concepts in their own words (i.e. don’t let them just read the handout back to you. E.g. once one student reads a lengthy paragraph ask for another student to summarize the concept in a sentence or less).Theory of the case.Have students read the sections out loud. Tell the students that its not just “the story of the case is that Officer Slager murdered Walter Scott” but rather that they want to be sure to supplement the story with facts and to use descriptive terms that evoke emotion (e.g. instead of merely saying he shot Mr. Scott in the back a student could say he shot an unarmed, defenseless and fleeing Mr. Scott in the back over and over and over.Tell them to fill out ONLY the prosecution entry and to look up at you when done. Call on students to read their examples and give praise and feedback. Show the students possible example if necessary:Tell them to fill out ONLY the prosecution entry.Call on students to read their examples and give praise and feedback. Show the students possible example at end:Example of possible theory of the case:Prosecution: This is the story of a rogue officer pulling his gun when a man was already running away and then shooting the fleeing man once when he was nine feet away, a second time when he was ten feet away and then the officer continued to shoot, not just three times, not just four times, but eight times and then attempting to plant evidence to cover up his guilt.Defense: This is the story of an officer who was scared for his life and who made a split second decision under extreme pressure. Mr. Clark had already indicated he was willing to break the law when he ran, he showed he was willing to break the law further when he attempted to take Officer Slager’s taser, and given Mr. Clark’s disregard for the law, it was reasonable for Officer Slager to fear for his life as he did not know what Mr. Clark would be willing to do next and only had a split second to react. CLASS TWO: Direct Examination Solicit volunteers to have the students read the document out loud.The direct is when you tell your side of the story.You want your evidence in story form, so you ask open-ended questions.Not allowed to ask leading questions.If necessary, supplement handout with additional information regarding direct as you go at appropriate points. (E.g. can incorporate into lecture or when reviewing the concept of leading questions use the following examples or as student reads samples, if does not comply with these points, can provide the following advice). PreparationOrganize the topics to be covered with the witness in a logical fashion:Always start with an introduction of the witness – how are they related to the case?If witness’s testimony is in story fashion go in chronological order.If dealing with issues that are not related chronologically:Put the most important issues in the beginning and end.Put the most damaging issues in the middle of the direct.Prepare the witness so that they know every question you will ask and you know every answer they will give.Be prepared to handle evidentiary objections.You want the jury to focus on the witness.You should stand in a position so that the witness is facing both you and the jury when they speak.Advanced Technique: You can use signposts to tell the jury where you are going next in the examination.For example: Mr. Jones, now that we have talked a little about your background, lets move-on and discuss the night of the shooting…Where were you on the night of Dec. 17th 2004?For each new topic, you should have an introductory sign-post.Advanced Technique: To help the jury remember what the witness said, you can restate their answer in your next question (especially helpful to do this when the witness mentions a KEY fact that you want the jury to remember)For example: Question: Mr. Jones, what color was the car you saw drive by immediately after you heard the gunshots? [Assumes witness had already told about gunshots]Answer: It was blue.Question: You remember the car was blue, do you remember what type of wheels it had?Answer: It had shiny wheels.Question: Do you know how fast the blue car with shiny wheels was moving?Be sure and address your witness’s weaknesses – information that the other side is sure to cross-examine on.Do not overreact to bad information.Always keep such information in the middle of your direct.Always end on a strong note.If necessary, supplement handout with additional information on cross-examination: Cross-Examination There are many purposes for cross-examining the other side’s witness.One purpose of cross-examination is to highlight or introduce evidence through the other side’s witness.Evidence in your side’s favor is more powerful when introduced through a hostile witness – more credible.PreparationSelect any testimony that may be beneficial to your client.Identify weaknesses in the witness’s story:Inconsistent statements;Holes in their story;Reasons why their observations or statements may be unreliable:Difficulty in observation: distance, darkness, etc.Likelihood of mistake: common characteristics (e.g. defendant is very average looking).Recognize circumstances that may show the witness has prejudice or bias in their testimony. Organization of CrossStart with information that benefits your client.End with most damaging issues.The lawyer is the star of cross-examinationYou want to put yourself right in front of the jury.All of the questions should be close-ended – leading.You should know the answer to every question.The answer to every question should be yes or no.Force the witness to commit to your question – do not let them be ambiguous. THE BEST QUESTIONS MEAN THEY MUST ANSWER YES OR NO. Advanced Technique: When making a critical or key point, ask a similar question but phrased differently to with just enough change in the substance of the question to avoid an “asked and answered” objection. E.g. if when questioning a teacher to make the point that a student has no violent history you can ask the following questions:You never saw Mark hit another student, isn’t that correct?You never saw Mark slap another student, isn’t that correct?You never saw Mark push another student, isn’t that correct.In fact, you never saw Mark engage in any type of violent or physical confrontation, isn’t that correct?Each question should add one small piece of information.For example:Do not ask: Mr. Smith you drive a blue Ford Mustang with shiny wheels, correct?If he answers “no” you will not be sure what part he is answering no to.Ask: Mr. Smith you drive a car, isn’t that correct?That car is blue, isn’t that correct?And it has shiny wheels?And that car is made by Ford?And the model is a mustang?Advanced Technique: Can use a summary question to hammer home the point (but the judge may sustain an “asked and answered” objection).For example:After all of the questions above, ask: So, Mr. Jones you drive a blue Ford Mustang with shiny wheels?Always close with your strongest issues.Example Questions for Officer Slager. Consider having a student or another teacher play the role of Officer Slager as an example of how cross is done after students have created questions:Walter was running away from you when you pulled your gun, isn’t that correct?Walter was eight feet away from you when you pulled fired your first shot, isn’t that correct?Walter kept running away but you kept firing, isn’t that correct?You fired not once, not twice, not three times, but eight times, isn’t that correct? Walter was thirty feet away when you fired the final time, isn’t that correct?On direct testimony, you testified that you were scared for your life isn’t that correct?I want to clarify, is your testimony here today that when Walter was running the other direction, carrying no weapons, and eight feet away you were scared for your life?And your testimony here today is that when you fired your final shot you were scared for your life even though Walter was unarmed, running away from you, his was back facing you, and thirty feet away he was a threat and you were scared for your life (pause) is that correct?Can coach witness to fight you on this by saying “I thought he was armed because at that time I thought he had stolen my taser and could use it against me.”You respond: Q: “Officer Slager, you were trained on the use of Taser’s isn’t that correct?” A: Yes.Q: You practiced using them on people? A: YesA Taser’s maximum distance is 15 feet isn’t that correct?” A: Yes.Q: You practiced using them on people 15 feet away isn’t that correct? A: Yes. Q: And, just to be clear, it is impossible for a taser to be used against someone more than fifteen feet away, isn’t that correct? Q: Walter was thirty feet away or twice that distance, isn’t that correct? A: Yes.Q: And he was running the opposite direction and had already been shot 7 times, isn’t that correct? A: Yes. EVALUATION: Will determine whether students have learned what they are supposed to have learned by (a) having students submit handouts after completed assignment and (b) evaluation as interact while going through the handout.ASSIGNMENT: (a) Complete any portion of the handout that was not completed in class and (b) to better understand the role that race and our unconscious biases play in the law and society as a whole, take the race implied biases test available at FOR MINI TRIAL OF OFFICER SLAGERSummary of Handout: This Exercise will teach you how to (1) develop a case theory, (2) prepare direct examination questions, and (3) prepare cross-examination questions. We will go over the handout together and fill it out as we go.Charges: Officer Michael Slager has been charged with Murder in the First Degree in regards to the death of Walter Scott. Legal Standard:A person is guilty of Murder in the First Degree when, with a premeditated intent to cause the death of another person, he or she causes the death of such person.In the legal test of whether an officer is justified in shooting a fleeing person, certain factors must be present, including a belief by the officer that the suspect committed or was about to commit a dangerous and serious felony such as an assault (using a Taser on an officer would qualify as a serious felony). The other factors include whether the suspect threatens the officer with a weapon or whether the officer believes the suspect will cause death or serious injury to the officer, other officers or to the public if not apprehended.THEORY OF THE CASEThe theory of the case consists of a short (one to three sentences), simple, logical story explaining your version of “what really happened.” It must be consistent with the evidence you have, and with the jury’s common-sense notions about how things occur. What is your theory of the case? For example, you could start the theory of the case with: “this is a story of ____”Determine the prosecution’s theory of the case: _____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________Determine the defense’s theory of the case: _____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________When preparing direct and cross-examination questions, you should attempt to tailor your questions to fit to the theory of the case. DIRECT EXAMINATIONYou are the defense, you are calling Officer Slager as a witness to try and prove your theory of a case and raise a Reasonable Doubt as to whether Officer Slager is guilty of Murder in the First Degree.When conducting a direct examination, one of the most important things to remember is that you called this witness because they help prove your side of the case so you want the witness to be the star of the show. Consequently, you should encourage story telling with open-ended questions. Questions generally begin with: Who, What, Where, Why, and How. For example, in a case where you wanted to know what time a witness left his home on September 3rd, you would ask your witness “what time did you leave the house on September 3rd?” On direct, you cannot ask a question that suggests the answer (this is called a “leading question” and under normal circumstances leading questions can only be asked on cross examination). For example, you could not ask: “you left the house at 3 pm?”First, you want ask questions to have the witness introduce themselves and give brief background about themselves and their relationship to the parties in the case (we won’t be practicing this as its very simple. Questions such as “Where are you currently employed?”)Next, in forming your list of questions you should think: What are the main points or facts you want the jury to understand after hearing this witness testify (from the defense perspective)? (Remember, it should support your theory of the case).__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________Also, if there are any weaknesses or inconsistencies in your witness’s story, you want to bring them out on direct yourself rather than letting your opponent do it and to “lessen the blow” and give the witness a chance to explain the weaknesses or inconsistencies. Write a list of questions designed to address the weaknesses and inconsistencies in your witness’ testimony in a light most favorable to your case. Think of ways your witness can explain these weaknesses to the jurors in a truthful way that will generate empathy for the witness. After you write a question, also write down what you would expect the witness’s answer to be based on the evidence you have.__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________Write a list of questions about the actions your witness observed, actions he took, or how he felt. Start at the beginning. Avoid jumping around in time and instead design questions that get the witness to tell the story chronologically one step at a time. Use the evidence (the video and statement of Officer Slager) to help form your questions. Think about what you would expect the Officer’s answer to be. Your last question should be designed to leave a lasting impression (e.g. a fact you think is really important) for the jury. Always end strong on closing. In other words, end with what you want the jury to remember.________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________During the mock trial, you would then compile these different sections into a list of questions designed to elicit a chronological story.CROSS EXAMINATIONYou are the prosecution, you are cross-examining Officer Slager to try and prove your theory of the case and prove beyond a Reasonable Doubt that he is guilty of Murder in the First Degree:When conducting a cross-examination, one of the most important things to remember is that you generally do not want to ask a question you do not know an answer to. Consequently, you should use the evidence (pictures, videos, prior statements, what he just said on the stand etc) to form the base of your question. Remember, you are the star of the cross exam. You want to phrase your questions so that the witness has to give a short answer. The best attorneys phrase their cross-exam questions so the witness has no choice but to give a yes or no answer. For example, if Witness X previously said “I left the house at 11:15 am” instead of asking “what time did you leave the house” like you would on direct, on cross examination, you could use a leading question (in that it suggests the answer) and ask “you left the house at 11:15 am, isn’t that correct”Use the evidence in the case to write at least five (feel free to write more) leading questions for the cross examination of Officer Slager: List all inconsistencies and potential weaknesses the witness’ story/testimony:__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________List the two or three of the best ways you think you can attack this witness (inconsistencies, a specific fact, perception, credibility, memory, bias, prejudice, interest, inconsistencies, a specific fact). Be specific (e.g. don’t just write “inconsistencies” or “a specific fact” write which inconsistencies or facts. Include why this is a key (i.e. why it matters). (1)_____________________________________________________________________________________________________________________________________________________________________________________________(2)_____________________________________________________________________________________________________________________________________________________________________________________________(3)____________________________________________________________________________________________________________________________________________________________________________________________Write a list of LEADING questions (seeking only yes or no answers) focused on the first way you intend to attack the witness.____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________Write a list of LEADING questions (seeking only yes or no answers) focused on the second way you intend to attack the witness.____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________What is the information you want the jury to hear last, in order to make a lastingimpression? Write a leading question designed to drive home the main thing youwant the jury to learn from this witness.____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ ................
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