Part of Lesson Plan: How to Conduct a High School Mock Trial
Activity Overview / Details
From Offense to Arrest
When an offense is committed (or alleged to be committed), there are two main ways that it comes to the attention of the prosecutor. The most common way is through the arrest of the defendant by a police officer who observed the crime or who, after investigation, has probable cause to charge and arrest the defendant. The second way is through police investigation followed by the filing of a criminal complaint (written charges), after which point a warrant for the arrest of the defendant is issued. The prosecutor may also act unilaterally by issuing an "information" (similar to a complaint) following an investigation. The prosecutor has the discretion to prosecute, drop charges, or plea bargain with the defendant.
The Private Sector Initiates the Response to the Crime
This first response may come from individuals, families, neighborhood associations, business, industry, agriculture, educational institutions, the news media, or any other private service to the public. It involves crime prevention as well as participation in the criminal justice process once a crime has been committed. Private crime prevention is more than providing private security or burglar alarms or participating in neighborhood watch. It also includes a commitment to stop criminal behavior by not engaging in it or condoning it when it is committed by others.
Citizens take part directly in the criminal justice process by reporting crime to the police, by being a reliable participant (for example, a witness or a juror) in a criminal proceeding and by accepting the disposition of the system as just or reasonable. As voters and taxpayers, citizens also participate in criminal justice through the policymaking process that affects how the criminal justice process operates, the resources available to it, and its goals and objectives. At every stage of the process from the original formulation of objectives to the decision about where to locate jails and prisons to the reintegration of inmates into society, the private sector has a role to play. Without such involvement, the criminal justice process cannot serve the citizens it is intended to protect.
The response to crime and public safety involves many agencies and services
Many of the services needed to prevent crime and make neighborhoods safe are supplied by noncriminal justice agencies, including agencies with primary concern for public health, education, welfare, public works, and housing. Individual citizens as well as public and private sector organizations have joined with criminal justice agencies to prevent crime and make neighborhoods safe.
Criminal cases are brought by the government through the criminal justice system
We apprehend, try, and punish offenders by means of a loose confederation of agencies at all levels of government. Our American system of justice has evolved from the English common law into a complex series of procedures and decisions. Founded on the concept that crimes against an individual are crimes against the State, our justice system prosecutes individuals as though they victimized all of society. However, crime victims are involved throughout the process and many justice agencies have programs which focus on helping victims.
Once the defendant is arrested, an arraignment hearing will be held in which the defendant is formally charged in open court. If the defendant refuses to plead, a plea of "not guilty" will be entered on his behalf. If the defendant pleads guilty, no trial will be held and the process will proceed directly to sentencing. In either case, the presiding judge will set a bail amount. Bail is the amount of money that the defendant must deposit with the court to guarantee his appearance at trial. If bail is met, the defendant will be released until and unless he is convicted. If the judge believes that there is a great risk that the defendant will flee the jurisdiction or commit a crime while out on bail, she will deny bail. If the defendant pleads guilty to the crime charged, no trial is held. In many cases, the defendant will reach a deal with the prosecutor to plead guilty to a less serious charge ("plea bargaining"). Prosecutors may agree to a plea bargain in order to save the time and expense of a trial.
Crimes are usually statutorily defined by several elements - for example, some jurisdictions define first degree murder as the "unjustified killing of a human being with malice aforethought", in which case the prosecution must prove (1) that a killing occurred, (2) that it was unjustified (not done in self-defense, for example), (3) that the victim was human, and (4) that the defendant acted with "malice aforethought." The prosecution must prove every element of the charged crime beyond a reasonable doubt in order to convict the defendant. The defendant may demand a jury trial, in which case the question of guilt is determined by a jury. It is the judge, however, who will determine the sentence, within maximum and minimum ranges set by statutory law.
Types of Mock Trials
The mock trial begins where actual trials begin with a conflict or a dispute that the parties have been unable to resolve on their own. Mock trials may draw upon historical events, trials of contemporary interest, school and/or classroom situations, or hypothetical fact patterns. Most mock trials use some general rules of evidence and procedure, an explanation of the basic facts, and brief statements for each witness. Other mock trial formats range from free-wheeling activities where rules are created by the student participants (sometimes on the spot) and no scripts are used, to serious attempts to simulate the trial process based on simplified rules of evidence and procedure to dramatic reenactments of historical trials in which scripts are heavily relied upon.
Preparing for a Mock Trial
Distribute mock trial materials to the students. The facts and basic law involved should be discussed with the entire class. Teachers may develop fact patterns and witness statements (e.g., brief summaries of each witness' testimony), have students develop them, or use the materials provided in this package.
Try to match the trial to the skills and sophistication of your students. For example, if your students are unfamiliar with mock trials, you probably should begin with a simple exercise. Remember that the aim of mock trials isn't always to imitate reality, but rather to create a learning experience for students. Just as those learning piano begin with simple exercises, so those learning mock trials can begin simply and work up to cases which more closely approach the drama and substantive dimensions of the real thing.
Students should be selected to play attorneys and witnesses, and then groups formed to assist each witness and attorney prepare for trial. A case could easily involve the entire class. For example, at least two could be assigned as attorneys for each side. In addition, four students are needed as witnesses and twelve students can serve as the jury. Such a division of tasks directly involves approximately two dozen students1 and others can be used as bailiff, court reporter, judge, and as possible replacements for participants, especially witnesses, in the event of an unexpected absence. Still other students may serve as radio, television or newspaper reporters who observe the trial and then "file" their reports by making a presentation to the class in the form of an article or editorial following the trial.
Students work in the above mentioned task-groups in class for one or more class periods, with the assistance of the teacher and an attorney or law student. During the preparation time, jurors might explore the role of the jury, the historical development of the jury system, and other topics related to their part in the mock trial. Student attorneys should use this time to outline the opening statements they will make. Because these statements focus the attention of the jury on the evidence, which will be presented, it will be important for these students to work in close cooperation with all attorneys and witnesses for their side.
Student attorneys should develop questions to ask their own witnesses and rehearse their direct examination with these witnesses. Witnesses should become thoroughly familiar with their witness statements so that their testimony will not be inconsistent with their witness statements. (These statements which may be considered to be sworn to pretrial depositions or affidavits can be used by the other side to impeach a witness who testifies inconsistently with the statement.)
On direct examination (that is, either the plaintiff's or defendant's attorneys questioning their own witnesses), questions should not be leading - - they should not have the answer included as part of the question. Leading questions may, however, be used in cross-examining a witness in order to impeach the witness' credibility in the testimony.
While some attorney-witness groups are constructing the questions and testimony for direct examination, other attorneys should be thinking about how they will cross-examine the witnesses for the other side. As mentioned, the purpose of cross-examination is to make the other side's witnesses seem less believable if the eyes of those determining the facts of the case (i.e., the jurors in a jury trial or the judge if no jury is used). Leading questions, sometimes requiring only a yes or no answer, are permitted. Frequently it is wise to ask relatively few questions on cross-examination so that the witness will not have an opportunity to reemphasize strong points to the jury.
During cross-examination, for example, the attorneys for the plaintiff might try to suggest that the testimony of the defense witnesses is inconsistent.
The closing arguments are rather challenging since they must be flexible presentations, reviewing not only the evidence presented for one's side but also underscoring weaknesses and inconsistencies in the other side's case which arise out of the trial proceedings.
Conducting a Mock Trial
Once all preparation has been completed, convert the classroom into a courtroom by rearranging desks as shown in the diagram. It is also helpful to have long tables for each attorney's team to work from; the teacher's desk can serve as the judge's bench.
Conduct the trial with a teacher, students or resource person (perhaps a law student, lawyer or actual judge) as a judge. A student jury may be used. The role of the jury is often minimized in television trials. Students should understand that the jury determines the facts in a case, primarily through their acceptance or rejection of the testimony offered by various witnesses for both sides. The judge deals with questions of law and explains to the jurors the key legal issue in the case.
Judge (could be a visitor to class with legal experience), prosecutor(s) or plaintiff's attorney(s) in a civil case defense attorney(s), Witnesses for the prosecution, witnesses for the defense, bailiff (swears in witnesses and marks evidence), Jury composed of twelve persons, one of whom should be named jury foreman; alternates may also be designated.