Posted: February 28th, 2023

law

350 Words

Introduction: For your special activity, watch both videos (Resources folder)

·
(1)

”
State v.

Forrest,” and 

·
(2) Opening Statement – Your First Two Minutes During Opening Statement. 

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(3) Prepare an opening statement for either the prosecution or the defense based on the fact pattern from the case of “State v. Forrest” (below) and 

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(4) Prepare a minimum of ten cross-examination questions. The cross-examination questions should be written from the perspective of the prosecutor cross-examining the defendant, i.e. – the man who shot his dad. 

https://www.youtube.com/watch?v=fck0lZRtykQ&t=2s

https://www.bing.com/videos/search?q=opening+statement+-+Your+first+two+minutes+during+opening+statement&view=detail&mid=84B64BE305F95940A9D484B64BE305F95940A9D4&FORM=VIRE

Opening Statement Fact Pattern

Opening Statement Fact Pattern

The following facts are from the case of State v. Forrest, 362 S.E. 2d 252 (N.C. 1987)

“On 22 December 1985, defendant John Forrest admitted his critically ill father, Clyde Forrest, Sr., to Moore Memorial Hospital. Defendant’s father, who had previously been hospitalized, was suffering from numerous serious ailments, including severe heart disease, hypertension, a thoracic aneurysm, numerous pulmonary emboli, and a peptic ulcer. By the morning of 23 December 1985, his medical condition was determined to be untreatable and terminal. Accordingly, he was classified as “No Code,” meaning that no extraordinary measures would be used to save his life, and he was moved to a more comfortable room.

On 24 December 1985, defendant went to the hospital to visit his ailing father. No other family members were present in his father’s room when he arrived. While one of the nurse’s assistants was tending to his father, defendant told her, “There is no need in doing that. He’s dying.” She responded, “Well, I think he’s better.” The nurse’s assistant noticed that defendant was sniffling as though crying and that he kept his hand in his pocket during their conversation. She subsequently went to get the nurse.

When the nurse’s assistant returned with the nurse, defendant once again stated his belief that his father was dying. The nurse tried to comfort defendant, telling him, “I don’t think your father is as sick as you think he is.” Defendant, very upset, responded “Go to hell. I’ve been taking care of him for years. I’ll take care of him.” Defendant was then left alone in the room with his father.

Alone at his father’s bedside, defendant began to cry and to tell his father how much he loved him. His father began to cough, emitting a gurgling and rattling noise. Extremely upset, defendant pulled a small pistol from his pants pocket, put it to his father’s temple and fired. He subsequently fired three more times and walked out into the hospital corridor, dropping the gun to the floor just outside his father’s room.

Following the shooting, defendant, who was crying and upset, neither ran nor threatened anyone. Moreover, he never denied shooting his father and talked openly with law enforcement officials. Specifically, defendant made the following oral statements: “You can’t do anything to him now. He’s out of his suffering.” “I killed my daddy.” “He won’t have to suffer anymore,” “I know they can burn me for it, but my dad will not have to suffer anymore.” “I know the doctors couldn’t do it, but I could.” “I promised my dad I wouldn’t let him suffer.”

Defendant’s father was found in his hospital bed with several raised spots and blood on the right side of his head. Blood and brain tissue were found on the bed, the floor, and the wall. Though defendant’s father had been near death as a result of his medical condition, the exact cause of decedent’s death was determined to be the four point-blank bullet wounds to his head. Defendant’s pistol was a single-action .22 calibre five-shot revolver. The weapon, which had to cocked each time it was fired, contained four empty shells and one live round.”

“First-Degree murder is the intentional and unlawful killing of a human being with MALICE and with premeditation and deliberation. Premeditation means that the act was thought out beforehand for some length of time, however short, but no particular amount of time is necessary for the mental process of premeditation. Deliberation means an intent to kill, carried out in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation. The phrase, “cool state of blood” means that the defendant’s anger or emotion must not have been such as to overcome his reason.”

Cross Examination – Mock Trial Board

THE PURPOSE OF CROSS EXAMINATION

“Cross examination Is inherently risky.The witness may argue with you.The witness may fill in gaps that were left in the direct testimony.The witness may make you look bad.You may make yourself look bad.And whatever good you accomplish may be subject to immediate cure on redirect examination.None of these problems can be avoided entirely, but they can be minimized by conducting careful cross examinations and setting realistic goals.
To begin, cross examination should be undertaken only to serve some greater purpose within your theory of the case.Thus, it must tell your client’s story even though it is being elicited from opposing witnesses.A useful cross examination should fulfill at least one of the following objectives:

1) Repair or Minimize Damage Done on Direct

If a witness direct examination hurts your case, look to cross examination as your opportunity to rectify or minimize that damage whenever possible.Ask yourself whether the witness can be made to retract or back away from her testimony or whether additional facts can be elicited that will minimize its impact.If so, demonstrate the witness’s lack of certainty, confidence, or opportunity to observe, or highlight the internal inconsistencies or inherent implausibility of her testimony, or show that her testimony conflicts with the testimony of other, more credible witnesses.

2) Enhance Your Case

Opposing witnesses may also be able to provide positive facts that support or contribute to your version of the events.This helpful information can and should be brought out during your cross examination.

3) Detract from Your Opponent’s Case

There are also times when an opposing witness can establish facts that are detrimental to your opponent’s case.This information, which is likely to be left out of the direct examination, should be elicited during cross examination to create inconsistency among the other side’s witnesses.

4) Lay Foundation for the Introduction of Exhibits

This objective is particularly important in mock trials, which prohibit recalling adverse witnesses and, as a result allow exhibits to be offered during cross-examination.(Real trials often prohibit this practice since each side may call or recall any witnesses.)Only use cross examination for the introduction of exhibits, however, when an opposing witness is the only one able to lay the proper foundation for an exhibit.Admitting exhibits during cross examination is difficult and should be avoided if possible.

5) Discredit the Witness or Another Witness

You can also use cross examination to discredit the witness testifying by revealing his bias or interest in the outcome of the case, the reasons he has to stretch, misrepresent, or fabricate his testimony, and his past instances of untruthfulness.You might also be able to use the witness to elicit discrediting information about the other witnesses in the case.

6) **Stay in Control**

The essential technique of cross examination is witness control. Since the object of cross examination is to tell your client’s story, it is imperative that you set the agenda for the examination, that you determine the flow of information, and that you require the witness to answer your questions.In short, you must always be in control of the witness and the testimony.This does not mean, by the way, that you must be domineering, rude, or overbearing toward the witness.In this context, control means only that the examination follow the course that you have selected and that the information produced be only that which you have determined helpful.
With a cooperative witness, this may mean nothing more than asking the right questions and getting the right answers.A hostile, evasive, or argumentative witness may require you to employ more assertive means, however.Following the basic rules of cross examination is a good start toward achieving witness control.
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II.THE RULES OF CROSS EXAMINATION

As with direct examinations, the rules of evidence used in your mock trial govern the content of your cross examination; in order to elicit testimony from an opposing witness, you must have a reasonable theory of admissibility for that evidence.Beyond admissibility, you should adhere to the rules below to stay in control during you cross examination.
There is one rule that applies to cross examinations in actual trials that is not discussed here.That rules states that every cross examination must stay “within the scope” of the direct examination preceding it.Within the scope means that the subject matter of the questions asked on cross must be the same as the topics covered during the direct examination.There is an exception to this rule: questions that address the witness’s bias or character are always allowed.
This rule applies in actual trials if one side wants to question a witness on a subject not covered in the witness’s direct examination, that side is free to recall the witness during their case in chief or rebuttal case to conduct their own direct examination.
Remember to stand in the center of the courtroom while cross examining so that you can command the attention of everyone in the courtroom and better control the opposing witnesses.Also, remember that reliance on notes will harm your ability to make eye contact and to use movement for emphasis.

Ask Only Leading Questions

The cardinal rule of cross examination is to ask only leading questions; leading questions are those that contain or suggest their own answers.Although generally prohibited during direct examination, leading questions are allowed during cross examination since it is assumed that your adversary’s witnesses will not cooperate with you.The right to ask leading questions is also usually understood to include the right to insist on receiving a responsive answer from the witness.
Cross examination is no time to seek the witness’s interpretation of the facts; rather, it is the time for you to tell a story by obtaining the witness’s assent.Anon-leading question invites the witness to wander away from your story, taking you control away as well.For example, you can control a witness this way:
QUESTION:    You were thirty feet away from plaintiff’s car when you applied
                             your brakes, correct?
But you lose control when you ask:
QUESTION:    How far from the plaintiff’s car were you when you applied 
                             your brakes?
How can you be sure to ask only leading questions?The answer is preparation.Read through your case file thoroughly until you are confident of what testimony the witness must provide.If you are unsure of where the witness applied his brakes, of course you will not tell him that it was thirty feet.So be sure: Read his affidavit, scour the police report, and read the other witness’s affidavits.Then, once you are certain that there is no plausible denial, tell the witness exactly what he did.Because your leading question is based on a verifiable fact, the witness will have no choice but to agree with you.

Get In and Get Out

Brevity is an excellent discipline.Many trial lawyers suggest that cross examinations be limited to a maximum of three points.While there may often be reasons to depart from such a hard and fast rule, there is no doubt that short cross examinations have much to commend themselves.In terms of your own preparation, setting a mental limit for the length of the cross will help you concentrate and to organize your thinking. Conducting a short examination will minimize risk, add panache, and usually make the result more memorable.
The length of your cross examination will generally depend on how many of the above goals you expect to be able to fulfill.It is not necessary, and it may not be possible, to achieve them all.You will often stand to lose more than you can gain by overreaching.Therefore, be selective.

Ask Only Questions to Which You Already Know the Answers

This rule seems simple enough.If you do not know how a witness will answer a question, do not ask it.Do not go on a “fishing expedition” during cross examination.Resist every temptation to ask a witness any variation of a “how” or “why” question.If you already know the explanation, you should use leading questions to tell it to the witness.If you do not already know the explanation, then cross examination surely is not the time to learn it. No matter how assiduously you have prepared, no matter how well you think you know the limits of the witness’s testimony, a witness can always surprise you by explaining the seemingly unexplainable.The following scenario is not unrealistic:
QUESTION:    Your parking garage was located three blocks from your office,    
                             correct?
ANSWER:        Yes.

QUESTION:    And the sidewalks are always very crowded between 8:00 and 8:30
                             in the morning?
ANSWER:       That’s right.
QUESTION:    You usually have to wait for one or more traffic lights between the 
                             garage and your office, don’t you?
ANSWER:        I do.
QUESTION:    So you have to plan on at least ten minutes to get from your garage
                             to your office, right?
ANSWER:        No, that is not right.I usually make it in three to five minutes.

QUESTION:    Please explain how you can travel that distance, under those 
                             circumstances, in only three to five minutes. 
ANSWER:       It’s simple.There is an express bus that travels that route in a bus
                             lane.  I get on in front of the garage and its next stop is right in
                             front of the office.Even in heavy traffic, it never takes more than
                            five minutes since the bus lane is always clear and the traffic
                            lights are coordinated.
Can you see now why it would have been better not to ask the witness to explain?Even if the testimony about the express bus was not included in the witness’s affidavit or anywhere else in the case file, the witness is allowed to draw reasonable inferences from the case file.(Of course, whether or not the creation of an express bus is a reasonable inference is a matter of opinion; if given, all you can do now is combat the testimony by impeaching by omission, which we will discuss in the next chapter.)
The bottom line is that you should 
never give a witness the opportunity to explain during cross examination.Suppose you do refrain from asking the witness to explain and instead 
he asks you if he may explain.Again you must resist the temptation; if a witness is volunteering an explanation, there is no chance the answer will help your case.The best way to handle this awkward situation is to politely decline to respond to the witness’s question.For example:
QUESTION:    So you have to plan on at least ten minutes to get from your 
                             garage to your office, right?
ANSWER:        o, that is not right.I usually make it in three to five minutes. 
                              Would you like me to explain how?
QUESTION:    Your lawyer can ask you to explain that.I have other questions I’d
                             like to ask you instead.
In sum, asking or allowing a witness to explain is the equivalent of saying, “I’ve grown tired of controlling this cross examination. Why don’t you take over for a while?”

Do Not Invite Objections or Argument with Witnesses

Objections can be distracting and unsettling.Young attorneys often lose their stride when interrupted by an objection during cross examination.And objections are more common during cross examination than any other phase of the trial. This is a logical phenomenon; of course the other side will want to prevent you from making strides at the expense of their witnesses.While they may not always be successful in stopping the attack, they are bound to try.Thus, although you cannot prevent opposing counsel from objecting during your cross, you can make doing so more challenging.
The easiest objections to raise during cross are to the form of the questions asked.For instance, assume that if you represent the defendant in the fire truck case and the plaintiff’s attorney asks him on cross examination, “You had an important meeting that morning that you didn’t want to be late for, didn’t you?”The easiest way for you to prevent this question from being answered is to object that it is compound.The question is compound and counsel 
should be forced to rephrase it.Now, put yourself in the plaintiff’s attorney’s shoes.If the question can be rephrased (by breaking it into two separate questions) what was gained by asking it the wrong way to begin with?Nothing.
By asking questions in proper form, you force opposing counsel to object to the 
substance of your questions, which is a much more challenging task.

Ask short questions

Cross examination questions must be short in both execution and concept. If a question is more that fifteen words long, it is not short in execution.Make it shorter.If a question contains more than a single fact or implication, it is not short in concept. Divide it.
Short, single-fact, propositional questions enable attorneys to keep control of witnesses during cross examination.Long questions have an almost limitless capacity to deprive a cross examiner of witness control and to be easily forgotten or misunderstood.The more words you use, the more chance there is that a witness will become confused by them or refuse to adopt them all.
It is therefore preferable to divide areas of questioning into their smallest component parts.For example, assume that you are cross examining the defendant in the fire truck case.You want to establish the distance from his parking garage to his office in order to show that he was in a hurry to get to his meeting that morning.You could ask one question, “Your parking garage is located three blocks from your office, isn’t it?”If the witness says “yes” you will have achieved your purpose, but what will you do if the witness says “no”?You see, the defendant may decide that the distance is somewhere between two and three blocks, since his office building is not exactly on the corner, or he may quibble with you over whether you can call the parking lot “his” garage.You can head off such potential problems by asking incremental questions, such as these:
QUESTION:    You have a monthly parking contract at the Garrick garage?
QUESTION:    The Garrick garage is located at the northwest corner of Randolph
                             and Dearborn?
QUESTION:    Your office is located at 48 South Dearborn?
QUESTION:    The shortest distance from the Garrick to your office is to go south
                             on Dearborn, right?
QUESTION:    First you must cross Randolph?
QUESTION:    Then you must cross Washington?
QUESTION:    Then you must cross Madison?
QUESTION:    And your office is further south on that block, isn’t it?
This technique allows you to do two things.First, it cuts off the escape route for a witness who is inclined to argue or prevaricate.The incremental questions provide small targets for a witness’s inventiveness.More importantly, it lets you know early in the sequence whether the witness is likely to disagree with you.

Do Not Ask That Ultimate Question

It will often be tempting to confront an adverse witness with one last conclusory question: “So you just ignored the fire truck, didn’t you?”Resist this temptation.If you have already established all of the incremental facts that lead to your conclusion, then you will have little to gain by making the question explicit.At best you will repeat what has become obvious, and at worst you will give the witness an opportunity to recant or amend the foundational testimony.
Even worse, you may not have established the incremental facts as fully as you thought.Under these circumstances you can expect the witness not only to disagree with your ultimate proposition but to be prepared to explain exactly why you are wrong.
The classic approach to cross examination calls for the lawyer to elicit all of the facts that lead to the ultimate conclusion and to then stop.The final proposition is saved for final argument.By saving the ultimate point for final argument, you ensure that the witness will not be able to change or add to the testimony.To a certain extent you also avoid informing opposing counsel of your argument, and you diminish the likelihood of having your position refuted either on redirect or through another witness.

Correct the problem yourself

You can often correct an unresponsive answer by simply re-asking your question.Consider the following scenario from the fire truck case:
QUESTION:    Isn’t it true that all of the other traffic stopped for the fire truck?
ANSWER:       How would they know to stop?There was no horn or bell.
QUESTION:    You didn’t answer my question.All of the other cars did stop?
ANSWER:        Yes.
In the above example, the defendant decided that he did not want to respond to the cross examiner’s question so he deflected it by answering a different question.An inattentive lawyer might have interpreted that answer as a denial or otherwise let it go by.The advocate above listened more carefully, however, and was able to obtain the precise information sought,
There are other ways of accomplishing the same outcome.You can repeat your question but this time ask it slower or use simpler language to make sure you are being clear.You can stop, look at the jury and say, “I don’t think you gave the jury an answer to that question,” which is a bit more bold and direct.You can be polite and say, “I’m sorry, perhaps my question wasn’t clear… “ and then restate the question.The possibilities are endless.Whatever you do, pick a method with which you are comfortable and be consistent so that you can effectively train the witness to answer your questions.Using the second example, each time the witness sees you turn and face the jury, she’ll know you are about to accuse her of not giving the jury an answer to your question.If done effectively, eventually the witness will give you her answer as soon as she sees you turn toward the jury box and you may not even have to speak.
Your effectiveness in reining the witness back in will depend in large part upon the level of control that you established at the outset of your examination of the witness.A witness who has become accustomed to answering short, leading, propositional questions will be more likely to stop explaining.In contrast, a witness who repeatedly has been given latitude to explain wil be inclined to keep it up.Additionally, your own level of confidence, not to mention the witness’s natural degree of argumentativeness, will play a large part in your ability to reassert control through these and other means.
Notwithstanding your best efforts and preparation, every once in a while you will encounter an impermissibly uncooperative witness who, for whatever reason, cannot be trained.If you have followed all of the rules above and tried to rein the witness back in, this situation is not your fault – it is the witness’s and you should seek help from the judge to reassert control.

Enlist the judge’s help, if necessary

Not all witnesses are inclined to play fairly. Some witnesses are overtly partisan, some are subtly uncooperative, and some are just plain ornery.While there is no requirement that a witness facilitate or enhance the goals of your cross examination, there is a requirement that the witness, within her ability, provide fair answers to fair questions.When it is clear that a witness is utterly incapable of fulfilling this responsibility, you have earned the right to bring in the big gun: the judge.
It is the judge’s obligation to ensure not only that the witness responds to your questions, but also to “strike” any answers that are unresponsive.Thus, the ultimate solution to the problem of the impermissibly uncooperative witness is to seek the judge’s intervention:
QUESTION:    Your Honor, could you please instruct the witness to answer my
                             question?
QUESTION:    Your Honor, could you please direct the witness to answer my
                             question yes or no?
QUESTION:    I move to strike that answer as non-responsive to my question
                             and I request that the court instruct the jury to disregard it.
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III.  PLANNING CROSS EXAMINATION

Like direct examinations, the two fundamental aspects to planning your cross examination are content and organization.

Preparing your questions

Once you have selected the topics for each cross examination, write out short, single-thought, strictly factual sentences that develop each topic.For example, assume that the defendant’s affidavit in the fire truck case includes the following statements:
I awoke on the morning of the accident at 7:00 AM (page 3, line 5)
I had to be downtown later that morning to meet an important new client 
    (page 3, lines 5-6)
Yes, I wanted to get that client’s business (page 3, line 7) 
And yes, I stood to make a lot of money (page 3, lines 7-8)
The meeting was scheduled for 8:30 AM (page 3, line 12)
I live about 16 miles from my office (page 2, line 15)
I also rent a monthly parking spot in a garage two blocks form my office 
    (page 2, line 17)
I left my home at 7:55 AM that morning (page 1, line 20)
There was a lot of traffic that morning (page 2, line 2)
The accident occurred at an intersection seven miles from downtown (page 2, 
    line 11) 
The accident happened at 8:20 AM (page 2, lines 11-12)
Here, the cross examiner has laid out the facts in the defendant’s affidavit that underlie her theory that he was rushed that morning.It should now be a simple matter for counsel to convert this list into cross examination questions.To do this, all counsel needs to do is take each first-person sentence and rephrase it into a second-person question.In fact, it is often best to leave the sentence in the form of a declaration, technically making it a question through voice inflection or by adding an interrogative phrase at the end.The above list then becomes the following cross examination of the defendant:
QUESTION:    You awoke at 7:00 AM on the morning of the accident, isn’t that
                             right?(page 3, line 5)
QUESTION:    You had to be downtown later that morning, correct? (page 3,
                             lines 5-6)
QUESTION:    You were meeting an important new client? (page 3, lines 5-6)
QUESTION:    You wanted to get that client’s business? (page 3, line 7)
QUESTION:    You stood to make a lot of money? (page 3, lines 7-8)
QUESTION:    The meeting was scheduled for 8:30 AM, correct? (page 3, line 12)
QUESTION:    You lived about 16 miles from your office? (page 2, line 15)
QUESTION:    You rented a monthly parking spot? (page 2, line 17)
QUESTION:    That spot was in a garage located two blocks from your office?
                             (page 2, line 17)
QUESTION:    You left my home at 7:55 AM, right? (page 1, line 20)
QUESTION:    There was a lot of traffic that morning? (page 2, line 2)
QUESTION:    The accident occurred at an intersection 7 miles from downtown?
                             (page 2, line 11) 
QUESTION:    It happened at 8:20 AM, isn’t that right? (page 2, lines 11-12)
Note that the above questions also fit neatly into the usable universe.Many of the facts are not likely to be available from friendly witnesses.Most others are of the sort that will be most valuable if conceded by the defendant himself.Finally, and best of all, each of the facts are documented in the witness’s own prior sworn testimony.
This technique is useful for developing the content of your cross examination.The organization of the examination and the structure of your individual questions will depend upon additional analysis.

Organization

As with direct examinations, the organization of a cross examination can be based on the four principles of primacy and recency, apposition, repetition, and duration.Unlike direct examination, however, on cross examination you will often have to deal with a witness who is reluctant to help your case.You may therefore have to temper your plan in recognition of this reality, occasionally sacrificing maximum clarity and persuasion in order to avoid “telegraphing” your strategy to the uncooperative witness.
Recall that cross examination is your opportunity to tell part of your client’s story in the middle of the other side’s caser.Your object is to focus attention away from the witness’s direct testimony and onto matters that are helpful to your case.On cross examination, you want to tell the story.To do so, you must always be in control of the testimony and the witness.
Remember too that an effective cross examination often succeeds through the use of implication and innuendo.It is not necessary, and it is often harmful, to ask a witness that ultimate question.Final argument is your opportunity to point out the relationship between facts, make characterizations, and draw conclusions based upon the accumulation of details.Do not expect an opposing witness to do this for you.

Do not worry about starting strong

It would be desirable to be able to begin every cross examination with a strong, memorable point that absolutely drives home your theory and theme.Unfortunately, this will not always be possible.Many cross examinations will have to begin with a shake down period during which you acclimate yourself to the tenor of the witness’s responses and attempt to put the witness in a cooperative frame of mind.Unless you are able to start off with a true bombshell, it will usually be preferable to take the time necessary to establish predicate facts through indirection.

Save a zinger for the end

Always end with a zinger.You know why. The final moment of cross examination may well be the most important.No matter how low key or friendly your style, almost every cross examination will in some sense be viewed as a contest between you and the witness.Were you able to shake the adverse testimony?Did you do what you set out to do?In this regard the final impression that you leave is likely to be the most lasting.Were you able to finish on a high note, or did you simply give up?
It is therefore imperative that you plan carefully the very last point that you intend to make on cross examination.It must be a guaranteed winner.Then, if your entire examination seems to fail, if the witness denies every proposition and the judge sustains every objection, you can always skip to your last question and finish with a flourish.Satisfied that you have made this single, telling, case-sealing point, you may proudly announce, “No further questions,” and sit down.”

Resources:

Western Michican University, Cooley Law School, 

https://sites.google.com/a/cooley.edu/mock-trial-board/tampa-bay/resources/cross-examination

, Retrieved 9 Aug 2021.