How To Run A Successful Mock Trial

Welcome back to our YouTube channel. I’ve got a great topic for today. I had a high school teacher who subscribes to our YouTube channel asking Mike do you think you could do a video about how to run a successful mock trial because in a lot of high schools and universities, too, they do mock trials. I’m just going to give an overview of how I think it should be set up.  First of all, I think you want to select an interesting topic. For example, someone charged with murder. You’re going to want to have a fact pattern with witness statements typed out for the select witnesses your students, for example.  You can have a prosecution team of say one to two people and defence team. You need to follow the structure of a trial and I’m going to kind of break it down as well. What makes it even more exciting is if you have a jury, get 12 students for example. And a lot of cases, some Judges might even volunteer their time to have a real Judge preside and make objections and make rulings, etc. and I always suggest as well if there’s some lawyers in your community, some experienced criminal lawyers, maybe they can coach the teams and show them about trial advocacy and what not. 

So the Crown team once they have all the fact patterns and their witness statements, and by the way you’ll probably also give them a little bit about the law of murder maybe given them a case or written type feats about setting out first-degree, second-degree murder, Manslaughter, these different options for the for the crown. So the crown for the students will start with an Opening statement for the court to the Judge. In that opening statement they’re going to review the anticipated evidence in chronological order. Trying to paint a compelling version events in a story telling way so that the jurors or the Judge understand what’s going to unfold. That’s the purpose of an opening statement. 

The Crown then starts calling their witnesses, and that’s called examination-in-chief. So they will call for example a forensic police officer. Open ended questions. It has to be you’re allowed to, first of all, introduce the witness, name, what they do for a living, etc. but from then on, it has to be, who, where, what, why type questions you can’t suggest answers and that’s called examination-in-chief. 

For example, officer, I want to direct your attention to April 12, 1972 I understand you attended a particular location.  What did you first see when you arrived? And the short, open ended questions, who, what, where, when, why, you’re allowed to direct them to a subject area but you can’t suggest the answer. That’s called examination-in-chief. So after that, one of the defence team is allowed to cross -examine. And in cross-examination, you’re trying to create a reasonable doubt.  You’re trying to weaken the person’s credibility meaning whether they’re a believable witness or whether they are reliable. Now a truthful witness might not be reliable.  Reliability means that they’re not accurate in their testimony. These are cleverly structured bit by bit questions where you’re doing questions in this manner. It’s called cross-examination leading questions. Officer when you were at the scene you agree with me that the lighting was not good or Officer the lighting was not good when you arrive. You see how you’re suggesting the answer and each question needs to be structured in this manner and your questions should be kind of structured so that they give yes or no answers kind of leading the person down the garden path in a clever way. So that’s called cross-examination.

 After that, if the crown or the judge rules actually that a question that the Crown didn’t anticipate or could not anticipate it, they’re allowed to re examine the witness only on that point or if something needs clarification that arose, you’re allowed to re examination. So, re-examination questions are fairly limited. The crown proceeds in that fashion through all their witnesses. Same structure. Examination-in-chief by the Crown, cross examination  by defence counsel followed by re-examination if appropriate, okay, if appropriate, because not all cases require re-examination. The Crown completely finishes their case. 

At that point,  one of the students then stands up for the defense and is allowed to give an opening statement about evidence that they want or anticipate they call and the defence doesn’t have to call any evidence. The burden of proof is on the Crown. The accused has the right to remain silent but depending on the case the defence may want to call more witnesses including their client but their client has a right to remain silent. That’s a Charter right. You don’t have to call that witness and in fact if the defence perceives there’s already reasonable doubt they may not want to call that witness, their client. So every case is different. 

Same structure. Defence examines their witness in chief, open ended, non-leading questions, who, what, where, when, why? Directing them to the topic, area chronologically going through events to tell a compelling story bit by bit by bit. Okay, it’s not like we are having a conversation here. They have to take their time and walk the witness through it beautifully to tell that narrative to the jury so that it’s compelling and a clear vivid story telling manner. So the Crown examines with a view showing that witness is not credible meaning they’re not believable under oath or not reliable. Maybe they’re telling the truth but their just not accurate. That’s what reliability means and again re-examination to clarify unanticipated areas that arose or to clarify an answer that was given. In re-examination by the way you have to ask open ended questions. You can direct their attention to the clarification area and ask them please clarify that issue for example. Proceeds that way and what happens then at the end of the Crown case the defense counsel will stand up and tell his or her Honour, Your Honor, that completes the evidence for the defense. 

Now, what happens then? So if the defense called evidence, then the defence must go first in their closing arguments to the Judge or jury and it’s exciting if there’s 12 students in the jury. I love that. I’ve seen cases like that where there’s an actual real presiding Judge who knows the laws of evidence and it’s great. So then that defence counsel would then argue reasonable doubt. They’ll talk about the key points from each witness that raise reasonable doubt and I like to talk about Reasonable Doubts to the way I structure my closing arguments, I will argue that point A, B, C, D, raises a reasonable doubt. They may want to talk a little bit about the law, how the law applies to the facts and suggest to the Court, submit my respectful submission there are reasonable doubts on these areas your Honour and you have to go through that in a compelling persuasive manner to review it, and you don’t sit there reviewing all the evidence. You don’t recruit all the evidence. You select the key points that you suggest raise a reasonable doubt. 

Conversely, then the crown will go second if the defense called evidence on closing submissions. And their job, of course, is to point to those areas of evidence that prove the case beyond a reasonable doubt. The burden is always on the Crown in these type of cases, if the accused testifies, there’s a three step process and the defence will argue that this. If you believe the evidence of the accused, let’s say they testify or call evidence, you must acquit..  If you’re left in a reasonable doubt step two, this called the WD test, if you’re left in a reasonable doubt in the evidence of the accused you must acquit. Even if completely reject, this is step three the evidence of the accused. In other words you don’t find that they are credible or believable, on the remaining evidence has the case been proved beyond a reasonable doubt? So the defence gets the key benefit of the doubt. The Burden of proof, those scales of justice have to be pushed all the way down beyond a reasonable doubt, not mathematical certainty, of course, but reasonable doubt. You know, those scales of justice is the reasonable doubt is far closer to certainty than it is to you know, a civil lawsuit, where you just have to who’s more likely telling the truth. The defense has no burden. 

So then, of course, the jury, if it’s a jury trial the Judge is going to charge the jury, what the law and evidence is, review a bit about the facts. And then, of course, the jury can go out to deliberate. And the way that works, of course, if there’s 12 jury members, in order to convict the accused all 12, must be able to find that they’re guilty beyond reasonable doubt. 

Conversely, in order to acquit the accused, all 12 must find that there is not guilty. If one or more juries holds out during the deliberations, if one or two holds out and that’s fun have them deliberate for a half hour or an hour if one or two holds out, the jury might come back to class and say we can’t make a decision. The Judge would then export the jury to try again within reason and if there’s a holdout that’s called a mistrial, so the trial ends, and in a murder case, they would have a new trial. Now typically in Canada on a sexual assault matter, if there’s one mistrial, followed by another trial, another mistrial. Typically, most prosecutors will give up but I’ve seen some jury matters tried three times after two mistrials for example. So it’s exciting for the kids, whether it’s university or high school, that’s the basic structure. It’s very helpful if you get some good lawyers coaching all of this and maybe in a future video I’ll consider breaking down each step to explain it a bit more thoroughly. Strategy and how to conduct examination-in-chief. Anyway I had some positive feedback from some high school teachers and students who follow our YouTube channel and I just thought I’d give a quick overview to make to hopefully make their mock trials go a little bit more successfully, and they can enjoy it because I know it’s an exciting time for the kids to do these type of cases. Thank you for watching our video.