32 nd annual statewide high school...

PUBLISHED BY THE MASSACHUSETTS BAR INSTITUTE

20 West St., Boston, MA 02111-1204 Mock Trial Central: (617) 338-0570 • [email protected]

http://MockTrial.MassBar.org

MockTrialPrograM

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3 2 n d A n n u A l StAt e w i d e H i g H S c H o o l

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2017 MOCK TRIAL CASE MATERIALSOctober 2016

2017 MOCK TRIAL COMMITTEEDonald L. Gibson, Esq., chair

Mary E. Bassett, Esq.

Joseph A. Condrick

Stephen B. Deutsch, Esq.

Gabriela F. Diller

Patrick J. Hannon, Esq.

Hale Yazicioglu Lake, Esq.

Elliott M. Loew, Esq.

The Massachusetts Bar Association expresses its sincere gratitude to this group of dedicated vol-unteers who spent countless hours developing this year’s case. It is their commitment to this program and to law-related education in Massachusetts that gives thousands of students this unique educational experience.

In addition, the Trial Court of the Commonwealth is a true partner in this effort, providing both staff and space to make this program possible. Please help us in thanking the courts after your competi-tions.

Funding is provided, in part, by the generous contributions from the Massachusetts Bar Foundation and the law firm of Morrison Mahoney LLP.

If you have general questions about the Mock Trial Program, please contact Mock Trial Central at (617) 338-0570 or email [email protected].

©2016, Massachusetts Bar Association. Any reproduction of this case packet or any portion is strictly prohibited without the written consent of the Massachusetts Bar Association.

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October, 2016

Dear Mock Trial Participant:Thank you for participating in the Massachusetts Bar Association’s 2017 Mock Trial Program, proudly sponsored, in part, by the generous contributions from the Massachusetts Bar Foundation and the law firm of Morrison Ma-honey LLP. We appreciate the generosity of this firm, of the hundreds of volunteer attorneys, judges and teachers throughout Massachusetts, and the high school students statewide who have the opportunity to learn about the fundamentals of the American judicial system and how it can impact their lives in ways they might not otherwise imagine.This year, teams will be presented with a criminal case in which the defendant is on trial for murder. The accused is a recent war veteran who raises as an insanity defense the medical condition known as Posttraumatic Stress Dis-order (PTSD) to the charge of first degree murder. The case explores whether the defendant is actually suffering from PTSD and whether PTSD is a complete or mitigating defense to the crime which the defendant is accused of committing. The task of the prosecution will be to prove the defendant’s culpability for his or her actions, while the defendant’s challenge will be to establish a defense that will excuse, in the eyes of the law, some or all of the defendant’s responsibility for his or her actions. This hypothetical case gives participants an opportunity not only to learn about a serious mental health issue which faces many returning veterans, but also how the current state of the law addresses or fails to address the effect of PTSD in explaining otherwise criminal behavior. The tournament begins in January. Schools will be divided into 32 geographic regions and will compete in three preliminary rounds, alternating between prosecution and defense. Each team will be the prosecution in at least one trial and the defense in at least one trial. The team with the greatest percentage of wins in each region will advance to the later rounds of the competition. If two or more teams within a geographic region have the same percentage of wins, tiebreaker contests will follow. The 32 regional winners will then compete against one another at a central location. The trials will be assigned by random draw. Later that same day, and at that same location, the 16 win-ners of the morning competition will complete by random draw against one another. The “Elite Eight” and “Final Four” competitions will also be conducted on a single day at a central location. The State Final will be held on Friday, March 24, 2017 at Faneuil Hall in Boston. All participating teams are invited and strongly encouraged to attend the State Final to observe the tournament’s two top competitors. The state champion — Team Massachu-setts — will then compete for the national title in Hartford, Connecticut, on May 11–13, 2017.We are grateful for the dedicated efforts and long hours spent by the members of the Mock Trial Committee. We must also thank the Administrative Office of the Trial Court for allowing us once again to use their courts, and the many attorneys and judges who volunteer their time to make this program such a success. We also would like to thank Anna Schleelein Richardson of Veterans Legal Services for her insight and knowledge surrounding veterans’ issues.We hope you find the experience challenging, enlightening, and fun. Please enjoy the Tournament!Sincerely,

Donald L. Gibson, Esq.Chair, Mock Trial Committee

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2017 MOCK TRIAL CASE MATERIALSTable of Contents

PART I: Mock Trial Statement of Philosophy, Code of Conduct and Highlighted Rules ............................1

PART II: Tournament Rules ........................................................................................................................3 1. General Contest Format ..................................................................................................................3 2. Team Composition ..........................................................................................................................3 3. Structure and Subsequent Scoring Issues ........................................................................................3 Assigning/Scoring Byes ......................................................................................................................... 3 Rescheduling Trials Resulting from Withdrawals ................................................................................... 3 4. Witness Performance ......................................................................................................................4 5. Attorney Performance .....................................................................................................................5 6. Trial Enactments ............................................................................................................................5 Court Decorum .................................................................................................................................... 5 Coin Toss .............................................................................................................................................. 5 7. Scouting ..........................................................................................................................................6 8. Judging ...........................................................................................................................................6 Bonus/Penalty Points ............................................................................................................................ 7 Tiebreaker Points .................................................................................................................................. 7 9. Performance Rating Sheets and Grievance Procedure .....................................................................7 Authority of Mock Trial Coordinator/Administration .......................................................................... 7 10. Time Limits ....................................................................................................................................7 Two-Hour Time Limit .......................................................................................................................... 7 Monitoring Time Limits ....................................................................................................................... 8 Judges Decision on Abuse of Time ........................................................................................................ 8 11. Objections ......................................................................................................................................8 12. The Schedule ...................................................................................................................................9 Unexcused Absences .............................................................................................................................. 9 Late Drop-out Fee ................................................................................................................................. 9 Weather Emergencies ............................................................................................................................ 9 Confirming Trials .................................................................................................................................. 9 Calling in Scores ................................................................................................................................... 9 13. Mock Trial Date Book ...................................................................................................................10 Dropout Date to Avoid Penalty ........................................................................................................... 10 Winter Break ...................................................................................................................................... 10 Preliminary Rounds ............................................................................................................................ 10 Snow Make-up Dates .......................................................................................................................... 10 Tie-breakers ........................................................................................................................................ 10 Regionals ............................................................................................................................................ 10 Elite Eight and Final Four ................................................................................................................... 10 State Championship ............................................................................................................................ 10 14. Mock Trial Website .......................................................................................................................10

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PART III: Hints on Preparing for a Mock Trial .........................................................................................11

PART IV: Trial Procedures ........................................................................................................................13 1. Courtroom Layout ........................................................................................................................13 2. Steps in a Mock Trial .....................................................................................................................13 Opening of the court .......................................................................................................................... 13 Opening statements ............................................................................................................................ 13 Direct examination by plaintiff/prosecution ........................................................................................ 14 Cross-examination by defense ............................................................................................................. 14 Redirect examination by plaintiff/prosecution ..................................................................................... 14 Re-cross-examination by defense ......................................................................................................... 14 Direct and redirect by plaintiff/prosecution ......................................................................................... 14 Cross and re-cross by plaintiff/prosecution .......................................................................................... 14 Closing arguments (attorneys)............................................................................................................. 14 Burden of proof .................................................................................................................................. 14 Judge’s role and decision ...................................................................................................................... 14

PART V: Simplified Rules of Evidence and Procedure ...............................................................................15 Article I. General Provisions ...............................................................................................................15 Rule 101—Scope ................................................................................................................................ 15 Rule 102—Objections Beyond the Scope of these Rules ..................................................................... 15 Article II. Mode and Order of Interrogation and Presentation ...........................................................15 Rule 201—Form of Question During Direct Examination ................................................................. 15 Rule 202—Scope of Direct Examination ............................................................................................ 15 Rule 203—Narration .......................................................................................................................... 15 Rule 204—Form of Question During Cross-examination ................................................................... 16 Rule 205—Scope of Cross-examination .............................................................................................. 16 Rule 206—Redirect Examination ....................................................................................................... 16 Rule 207—Re-cross-examination ........................................................................................................ 16 Rule 208—Recalling Witnesses Prohibited ......................................................................................... 16 Article III. Invention of Facts (Special Rules for Mock Trial Program) ...............................................16 Rule 301—“Invented Fact” Defined ................................................................................................... 16 Rule 302—Invention of Facts on Direct Examination ........................................................................ 16 Rule 303—Methods of Redressing Invention of Facts on Direct Examination .................................... 16 Rule 304—Invention of Facts on Cross Examination .......................................................................... 17 Article IV. Relevance ...........................................................................................................................17 Rule 401—Definition of “Relevant Evidence” .................................................................................... 17 Rule 402—Irrelevant Evidence Inadmissible ....................................................................................... 17 Rule 403—Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion or Waste of Time .... 17 Rule 404—Character Evidence Not Admissible to Prove Conduct, Exceptions, Other Crimes ........... 17 Rule 405—Methods of Proving Character .......................................................................................... 18 Rule 406—Subsequent Remedial Measures ......................................................................................... 18 Rule 407—Compromise and Offers to Compromise .......................................................................... 18

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Article V. Physical Evidence ................................................................................................................18 Rule 501—Prerequisites for Admission of Physical Evidence............................................................... 18 Rule 502—Procedure for Introducing Physical Evidence .................................................................... 18 Rule 503—Use of a Writing to Refresh Recollection ........................................................................... 19 Rule 504—Publishing Documents to the Court ................................................................................. 19 Rule 505—Use of a Witness’ Affidavit to Impeach .............................................................................. 19 Article VI. Witnesses ...........................................................................................................................19 Rule 601—General Rule of Competency ............................................................................................ 19 Rule 602—Lack of Personal Knowledge ............................................................................................. 19 Rule 603—Who May Impeach ........................................................................................................... 19 Rule 604—Evidence of Character and Conduct of a Witness ............................................................. 19 Rule 605—Impeachment by Evidence of Conviction of Crime........................................................... 19 Rule 606—Religious Beliefs or Opinions ............................................................................................ 19 Article VII. Opinions and Expert Testimony .......................................................................................19 Rule 701—Opinion Testimony by Lay Witnesses ............................................................................... 19 Rule 702—Testimony by Experts ........................................................................................................ 20 Rule 703—Bases of Opinion Testimony by Experts ............................................................................ 20 Rule 704—Opinion on the Ultimate Issue ......................................................................................... 20 Article VIII. Hearsay ...........................................................................................................................20 Rule 801—Definitions ........................................................................................................................ 20 Rule 802—Hearsay Rule ..................................................................................................................... 21 Rule 803—Hearsay Exceptions, Availability of Declarant Immaterial ................................................. 21 Rule 804—Hearsay Exceptions, Declarant Unavailable ....................................................................... 21 Rule 805—Hearsay Within Hearsay ................................................................................................... 22 Article IX. Procedural Rules ...............................................................................................................22 Rule 901—Authority to Object .......................................................................................................... 22 Rule 902—Procedure for Objections .................................................................................................. 22 Rule 903—Motion to Strike ............................................................................................................... 22 Rule 904—Other Motions .................................................................................................................. 22 Rule 905—Closing Arguments ........................................................................................................... 22 Rule 906—Objections During Opening Statements and Closing Arguments ..................................... 22

PART VI: Trial Script and Exhibits ...........................................................................................................23 1. Stipulations of the Parties ................................................................................................................ 24 2. Affidavit of Gill Graham ................................................................................................................. 26 3. Affidavit of Det. Daveigh F. Wallace ................................................................................................ 29 4. Exhibit A: Sketch of Sammlee Park Shooting, July 4, 2016 ............................................................. 32 5. Affidavit of Dr. Dana Piltch ............................................................................................................ 33 6. Cirriculum Vitae of Dr. Dana Piltch ................................................................................................ 36 7. Affidavit of of Sazer Larsen .............................................................................................................. 38 8. Affidavit of Alex Cofman ................................................................................................................ 41 9. Affidavit of Dr. Carla/Carl Li .......................................................................................................... 43 10. Cirriculum Vitae of Dr. Carla/Carl Li ............................................................................................ 45 11. 309.81 Posttraumatic Stress Disorder Diagnostic Criteria ............................................................. 47

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PART VII: Pertinent Information, Statutory Case Law and Evidentiary Standards ...................................48

APPENDICESA. Guidelines for Attorneys .....................................................................................................................53B. Guidelines for Tournament Judges ......................................................................................................54C. Matrix on Judging Criteria .................................................................................................................56D. MBA Mock Trial Website Log-in Instructions ....................................................................................59E. Performance Rating Sheet ...................................................................................................................60F. Student Rosters ...................................................................................................................................61

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PART I:MBA Mock Trial Statement of Philosophy, Code of Conduct and Highlighted Rules

The Massachusetts Bar Association annual Mock Trial Program is governed by the rules set forth herein. Please pay particular attention to the following:

PURPOSE OF PROGRAM:The purpose of the tournament rules is to create a

level playing field so that all students can derive max-imum educational benefit. To that end, teacher and attorney/coaches are encouraged to emphasize the educational rather than the competitive aspect of the tournament.

KNOWLEDGE OF THE RULES:Teams are responsible and accountable for knowing

and abiding by all the tournament rules. Rules may not be waived even by mutual consent of the parties. Any violation of the rules could result in disciplinary action that may consist of forfeiture or disqualification for the offending team(s). Any violation of the rules could result in disciplinary action that may consist of forfeiture or disqualification for the offending team(s), as well as suspension or expulsion of individual team members from the current or from future tournaments and mock trial competitions.

COURTROOM COURTESY/DECORUM:To allow students to experience first-hand how a real

courtroom operates, the MBA schedules all trial en-actments before sitting judges in district courthouses, whenever possible. While mock trials are taking place, the court is conducting its regular business. Accord-ingly, all students, teachers, and spectators are expect-ed to conduct themselves with maturity and decorum, and to treat host judges and all courthouse personnel with all due respect.

TRIAL SPACE COURTESY:Trial enactments are subject to the physical con-

straints of the individual courtrooms. Students and spectators may not rearrange courtroom furniture or remove equipment from any other courthouse office unless they have received the permission of the court. Teams are responsible for restoring the courtroom to its original condition at the conclusion of the trial, ready for the next day’s business.

PLAGIARISM:Arguments presented in court are expected to be the

team’s own effort. As with all academic work, plagia-rism is prohibited. With the ready availability of video-tapes of the trials, a team might inadvertently appro-priate another team’s strategy or arguments. Coaches should exercise supervision over the use of videotapes to ensure that they are used properly.

WITHDRAWAL/CANCELLATIONS:The decision to participate in the Mock Trial Pro-

gram is a serious commitment and should not be un-dertaken lightly. It is inconsiderate when a school with-draws from a trial and/or the tournament at the last minute, after the other side has prepared carefully for the trial, made plans to leave school early and arranged for transportation.

Withdrawing on the day of the trial is also insensi-tive to the courts, which have agreed to clear court-room space, and to the judges and attorneys who have volunteered to hear the cases. Please consider carefully your decision to participate in the tournament and then honor your commitment.

CODE OF CONDUCT FOR STUDENT TEAM MEMBERS:

Mock trial is a competition, and like all competi-tions, the behavior of mock trial students and coaches should reflect the highest standards of student conduct. Participation in the mock trial program is intended to be a positive experience. Student members of the mock trial program are expected to conduct themselves at all times in the best traditions of legal advocacy, includ-ing, but not limited to, while in the courtroom, while in the courthouse, while on any portion of the court-house premises and while traveling to and from mock trial competitions. Respect must always be shown by students for the presiding judges and for their decisions and rulings. Mutual respect and courtesy must also be shown to opposing teams, their coaches, their attorneys and their witnesses. Reported instances of improper student behavior such as physical altercations, taunt-ing, the use of profanity or other improper language, mean spirited or hurtful teasing, undue criticism, sex-

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ually explicit insults or racially or ethnically charged comments will not be tolerated and will be the subject of appropriate disciplinary action and sanctions issued by the Mock Trial Committee. Depending upon the origin, nature, and degree of such code violations, the Mock Trial Committee may suspend or expel from the current and future mock trial competitions and tourna-ments individual team members, coaches or the entire team itself. All such disciplinary actions and decisions taken by the Mock Trial Committee are final.

CODE OF CONDUCT FOR TEACHER AND ATTORNEY COACHES:

Mock Trial is a competition, and like all competi-tions, the behavior of coaches should reflect the high-est standards of conduct. Just as in athletic competi-tions, the officials must be shown respect at all times. As part of teaching students about our legal system, we

must emphasize that respect must always be shown to the judges and their decisions. While a coach may pri-vately report perceived egregious misconduct of a judge to the Mock Trial Committee, the students should be shown at all times by word and by example that the judge and judge’s decision are to be respected. Coaches should likewise show the same respect to each other. In a difficult situation, coaches are expected to conduct themselves so as to move the competition and the tour-nament schedule forward.

If a coach fails to observe this code of conduct, the Mock Trial Committee may prohibit the coach from further participation in the tournament or impose such other appropriate sanctions. All decisions of the com-mittee are final. The goal of the Mock Trial Program is to provide a positive experience of the legal system for coaches, students and volunteers.


PART II:Tournament Rules

New, modified or highlighted rules appear in bold.

1. GENERAL CONTEST FORMATThe commonwealth will be divided into 16 geo-

graphical regions. Within each region, each team will participate in three preliminary round trials, alternat-ing between plaintiff/prosecution and defense. The team with the greatest number of victories will advance to the quarterfinals. In the event of a tie, there will be a single elimination tiebreaker to determine the regional representative. (See Section 3, Structure and Subsequent Scoring Issues, later in this section for more information on how byes affect scoring.) Regional representatives then will face off in the single elimination quarterfinals, with the winning teams advancing to the single elimi-nation semifinals. The two remaining teams will face each other in the state finals.

2. TEAM COMPOSITION2.1 Schools that wish to participate in the tourna-

ment may enter one team, which must be com-prised of students currently attending that school and a teacher-coach, administrator, or other re-sponsible party who is also from that school. No team may be comprised of students representing more than one school. Only high school students, grades 9–12 or its equivalent, are eligible to com-pete in trial enactments. Students who are not in grades 9–12 or its equivalent may participate in the Mock Trial Program by attending the meet-ings and trial enactments of a single high school team, but may not themselves compete or partici-pate in trial enactments.

2.2 Each school’s overall team may be comprised of any number of students, but no fewer than six and no more than nine students (three to six at-torneys and three witnesses) may participate in any one trial. Violation of this rule is considered gross misconduct and will result in a 10 point re-duction. All teams have the option of providing an official student timekeeper during the trial. The Defense’s timekeeper will be referred to as the clerk, and the Prosecution/Plaintiff’s timekeeper will be referred to as the bailiff.

2.3 A team may use its members in several differ-ent ways. It may use the same roster of students throughout all trial enactments or it may rotate students after the first trial to give others a chance to participate in the tournament. Students may play different roles (attorney or witness) at dif-ferent trial enactments, as long as no fewer than six and no more than nine students appear in any one trial. (See Part II, Sections 4 and 5, Witness Performance and Attorney Performance and Part III, Hints on Preparing for a Mock Trial.)

2.4 During the preliminary trials, at no time will any team play the same side three times. If you notice that your team is playing one side three times on your schedule, please contact Mock Trial Central immediately.

2.5 Use of a podium shall not be required of the par-ticipants at any level of competition unless other-wise instructed by the judge.

2.6 All teams are to work with their assigned attorney-coaches in preparing their cases. It is suggested that they meet with their attorney-coach at least twice prior to the first trial. For some suggestions regarding the attorney-coach’s role in helping a team prepare for the tournament, see Appendix A Guidelines for Attorneys.

2.7 Prior to the first trial of the tournament, all teams are required to conduct one full trial enactment or dress rehearsal based on the case. (Several addi-tional sessions devoted to the attorneys’ question-ing of individual witnesses are suggested also.)

3. STRUCTURE AND SUBSEQUENT SCORING ISSUES

3.1 The total pool of registrants and where schools are geographically located determines into which region schools will be placed. We will make every effort to ensure that each region has enough teams for three trials. Inevitably, some regions will have an odd number of teams. Teams for whom there is no opponent within their region for a given tri-al will receive a bye. Byes are randomly assigned.


3.2 Any team having a bye will receive a “win” for pur-poses of determining advancement in the tourna-ment.

3.3. Any team having a bye that does not win its region or compete in a tie-breaker will, if possible, be giv-en the opportunity to compete in a bye make-up trial. Bye make-up trials will take place after snow make-ups, and are intended to give schools having a bye the opportunity to take part in at least three trial enactments. Because participation in a bye make-up trial is optional, the MBA cannot guar-antee that bye make-up trials will be scheduled for every eligible team; however, every effort will be made to do so. Bye make-up trial results will not be used for purposes of determining which teams advance in the competition.

3.4 If multiple tie-breaker trials are required to de-termine a regional winner, any team having had a bye will automatically compete in the first tie-breaker trial.

For example: After the preliminary rounds, Teams A, B, and C

each have a record of 3-0. One of Team B’s “wins,” however, came as a result of a bye.

Because two tie-breaker trials are required to deter-mine the regional winner, Team B will automati-cally compete in the first tie-break trial. Teams A and C will be randomly assigned by the MBA to either the first or second tie-breaker trial.

The team losing the first tie-breaker trial is elimi-nated from the tournament. The winner advances to the second tie-breaker trial, which determines the regional winner.

4. WITNESS PERFORMANCE4.1 A student shall not perform both as a witness and

as an attorney during the same trial enactment. Witnesses may take the stand in any order, but all witnesses must take the stand. Violation of this rule is considered gross misconduct and will result in a 10 point reduction.

4.2 Each witness is bound by his or her written af-fidavit. Witnesses are not to invent facts material to the case (See Simplified Rules of Evidence, Rules 301 and 302). Neither should cross-examining at-torneys ask questions that require the witness to invent facts material to the case.

4.3 The witness affidavits are to be treated as sworn to under oath. If a witness testifies in contradic-tion of a fact in the witness statement, the op-position may impeach the testimony of the wit-ness, that is, point out the contradiction on cross-examination in accordance with Rules 303a and 601.

4.4 If a witness invents an answer which is likely to materially affect the outcome of the trial, the op-position may object and ask for a bench confer-ence; the judge will decide whether to allow the testimony.

4.5 The case materials provide sufficient legal points on which to question each witness without the witness inventing, or the cross-examining attorney requiring the witness to invent, facts. Judges will be instructed to deduct penalty points from wit-nesses for serious or repeated invention of facts, especially if the behavior appears to be intended to disrupt the presentation of the opponent’s case or to eat into their time allotment. Judges also will be instructed to deduct penalty points from cross-examining attorneys who repeatedly ask questions which require the witness to invent facts. (See Simplified Rules of Evidence, Rules 301 and 302.) Teachers should monitor witness and attorney preparation and stress the importance of a spirit of fair play.

4.6 Unless otherwise permitted by an advisory ruling issued by the Mock Trial Committee specifically relating to this rule, there shall be no use of props and/or any intentional alteration of students’ phys-ical appearance and/or clothing in order to mimic the appearance of a trial character in the case. The witness’ appearance is assumed to be as she/he ap-pears in the case in accordance with the character-istics provided in the trial materials. Judges have been advised not to award either bonus points or penalty points for any unintentional use of props and/or alteration of appearance and/or clothing. Any witness who clearly and intentionally uses a prop and/or alters her/his appearance and/or clothing in order to mimic the appearance of a trial character (e.g., wearing a theatrical wig and/or makeup, police uniform, badge, etc.) may be subject to penalty points at the judge’s discretion.

4.7 Witnesses shall stay in the courtroom at all times during the mock trial proceedings unless permis-


sion for a student to leave has been obtained from the opposing coach prior to the match.

4.8 Witnesses, whether plaintiff/prosecution’s or de-fendant’s, shall not sit at the attorneys’ table.

4.9 Witnesses are not permitted to use notes when testifying during the trial.

4.10 Voir dire of expert witnesses shall not be permit-ted; any questions directed to an expert about her/his credentials must be raised on cross-exam-ination. However, nothing in this rule precludes appropriate objections to an expert’s testimony if proper foundation has been laid.

4.11 There shall be no sequestration of witnesses. If such a motion is made, it will be denied.

5. ATTORNEY PERFORMANCE5.1 Each team must prepare an opening statement,

three direct examinations, three cross-examina-tions and a closing argument.

5.2 The attorney presenting the opening statement may not make the closing arguments in the case. No attorney may conduct more than one direct examination. No attorney may conduct more than one cross-examination. Only one attorney from each side may conduct the examination of an individual witness, including re-examinations. Violation of this rule shall result in the offending player receiving a score from the judge but the team shall also receive a deduction of 10 PENALTY POINTS.

5.3 A team with three attorneys will perform the tasks as follows:• AttorneyAdoestheopeningstatement,a

direct examination and a cross-examination.• AttorneyBdoestheclosingargument,a

direct examination and a cross-examination.• AttorneyCdoesadirectexaminationanda

cross-examination. A team with four, five or six attorneys will divide

the tasks in any way consistent with rule 5.2.5.4 Attorneys may use notes in presenting their cases,

i.e., opening arguments, direct examinations of witnesses, etc. However, undue reliance on notes is not encouraged. (See Appendix C, Matrix on Judging Criteria.)

5.5 Only attorneys who will conduct an opening

statement, a closing argument, a direct ex-amination or a cross examination during the course of the actual trial may sit at counsel table or in the well of the courtroom.

6. TRIAL ENACTMENTS6.1 The trial proceedings are governed by the Sim-

plified Rules of Evidence found in this packet of materials. Procedural motions shall not be raised at trial.

6.2 Usual rules of courtroom decorum apply to all participants and spectators. Appropriate dress is required. The judge should give verbal warning without penalty points to students whose jackets are not buttoned, whose ties are not tied properly, or who are otherwise not appropriately attired. If the matter is not remedied, there may be further sanction involving the deduction of penalty points. No spectator signs or banners are permitted.

6.3 No photographs, or audio or video recording of the proceedings by anyone, including spectators and parents, is permitted without the permission of both the other side and the court.

6.4 No electronic devices may be used to assist in a team’s presentation during a trial. This includes video cameras, laptop computers, tape recorders, PDA’s, Blackberries and other similar devices.

6.5 Immediately prior to each trial enactment, the attorneys and witnesses for each team must be physically identified to the opposing team.

6.6 In all tiebreaker and subsequent rounds, teams must conduct a coin toss to determine which side the teams will argue. The coin toss is to be con-ducted as soon as both teams have arrived at the trial location and prior to the judge taking the bench. The coin toss procedure is as follows:a. Each team will designate a single represen-

tative who will participate in the coin toss process.

b. The representatives will need to decide which team will toss the coin and which team will call “heads” or “tails.”

c. The winner of the coin toss chooses which side her/his team will play (plaintiff/prosecu-tion or defendant).

6.7 Immediately prior to each trial enactment, the coaches shall submit a prepared Student Roster


and Performance Rating Sheet to the presiding judge.

6.8 The Stipulations of the Parties may not be dis-puted at the trial.

6.9 The presiding judge may interrupt an attorney’s opening and closing statements and ask questions.

6.10 Students may read other law, cases and materials in preparation for the mock trial. However, they may cite only the law and cases given and may introduce as evidence only those documents that are provided in this packet.

6.11 Exhibits and affidavits may be reproduced or en-larged and used during the trial; however, the con-tents of exhibits and affidavits may not be altered or redacted, except to reflect revisions posted on the Mock Trial website. This shall also apply to the use of the case materials as demonstrative aids or chalks.

6.12 During the actual trial (including any recesses, up to and until after both closing statements have been made) teacher-coaches, attorney-coaches, student witnesses, student observers and all other observers may not talk to, signal, or otherwise communicate with, or in any way coach their team. If brought to the attention of the presiding judge during the trial and before he or she has announced the two decisions he or she must render at its conclusion (See Rule 8.5), serious and intentional violations of this rule may result in the assessment by the presid-ing judge of penalty points or deductions from a team’s score. Violations of this rule which are reported to the presiding judge after he or she has announced his or her two decisions can-not result in the assessment of penalty points or deductions from a team’s score and must instead be reported to the Mock Trial Com-mittee for further review, although such re-view cannot change the numerical score of the trial. To eliminate the appearance of any such improper communication, signaling or coach-ing during the actual trial, all teacher-coaches and attorney-coaches are encouraged to sit in or near the rear or back of the courtroom and not directly behind the student-witnesses or student-attorneys and not in their direct line of vision. When any such violations are brought to the attention of the presiding judge, regard-

less of any decision by the judge, both teams shall be required to provide a written report to the Mock Trial Committee of the alleged viola-tions.

7. SCOUTING7.1 Coaches, students and other people associ-

ated with the team’s preparation may not scout or create the appearance of scouting. No coach, student or other person associated with a team’s preparation may attend an actual trial enactment or scrimmage of any possible future opponent in the tournament. This rule prohibits, among other things, giving substantive information concern-ing an actual trial enactment or scrimmage to other teams through social media, the Internet, by telephone, in person or otherwise. This rule does not prohibit any activity allowed by Rule 7.2.

7.2 While teams are encouraged to scrimmage each other before the tournament begins, a team may not participate in a scrimmage after its first trial has taken place. The only exception to this rule is that a team may, after winning its region, scrim-mage any team that has been eliminated from the competition, so long as the eliminated team did not compete against any of the other teams re-maining in the competition.

7.3 Any violation of the scouting rules, whether in-tentional or unintentional, should be brought to the attention of the Mock Trial Committee and may result in disciplinary action.

8. JUDGING8.1 The Mock Trial Program depends on the generous

support of hundreds of volunteers. Please thank your judges for their time, regardless of their de-cisions. With approximately 50 trials a week for five weeks, we simply would not have a program without their assistance.

8.2 Under no circumstances should teacher-coaches, attorney-coaches, or students debate with the judge after she/he gives a decision. We encourage you to provide feedback to the MBA on particular judges by using the evaluation forms provided.

8.3 The mock trials are designed to be hearings or bench trials, that is, trials held before a judge act-ing as finder of fact.


8.4 Judges must be provided with a prepared Student Roster Form (see back of packet) before each trial, that is, one on which the coaches have entered the names of all the participating witnesses and attorneys.

8.5 The presiding judge will render two decisions at the conclusion of the trial. The first decision ren-dered by the presiding judge is based on the mer-its of the legal case and the applicable law. The decision of guilt or innocence in a criminal case or finding in favor of the plaintiff or defendant in a civil case, does not determine which team wins or advances to the next round.

8.6 The second decision will be based on the quality of the students’ performances. The judges have been instructed to rate the performance of all witnesses and attorneys on the team. They also have been instructed to award points based on total performance. No consideration should be given to age or grade level. (See Appendix C for the Performance Rating Sheet and Matrix on Judging Criteria.)

8.7 At the sole discretion of the presiding judge, BO-NUS POINTS (a total of up to five points) may be awarded to a team’s total score to recognize superior team performance, exceptionally thor-ough preparation, a particularly professional and mature level of conduct, an especially sophisti-cated legal argument, well-made objections and responses and an outstanding ability to think and respond extemporaneously.

8.8 At the sole discretion of the presiding judge, PENALTY POINTS (a total of up to five points) may be deducted from a team’s total score for un-sportsmanlike behavior. Such behavior might in-clude, but would not be limited to, a team strat-egy of excessive objections, serious or repeated witness invention of facts designed to disrupt the presentation of the opponent’s case or to eat into their time allotment or any other behavior which, in the presiding judge’s opinion, is inconsistent with proper courtroom demeanor and the spirit of this tournament. Penalty points also may be deducted from cross-examining attorneys who repeatedly ask questions which require the wit-ness to invent facts or for other behavior of par-ticipants, which, in the opinion of the presiding judge, is inappropriate and deserving of punitive

action.8.9 In case of a mathematical tie, a tiebreaker point

will be awarded. This is explained on the perfor-mance rating sheet. The total number of points awarded, including the tie breaker point if it is needed, determines which team prevails.

9. PERFORMANCE RATING SHEETS AND GRIEVANCE PROCEDURE

9.1 The criteria used to evaluate students’ perfor-mances are located in the Matrix on Judging Cri-teria in Appendix C of the case packet.

9.2 Judges have been encouraged to call opposing coaches into chambers at the conclusion of the trial enactment so that the coaches may review the scoring sheet and check the scores for math-ematical accuracy. Coaches must sign the scoring sheet at that time. Even if the judge does not call the coaches into chambers, they are responsible for reviewing the scoring sheet and checking its accuracy at the conclusion of the trial. It is also the coaches’ responsibility, if they choose to do so, to copy the scores onto a clean copy of the Performance Rating Sheet so that students can review their individual performances. The MBA does not keep track of individual scores.

9.3 The scoring decision of the court is final. We ask that you accept the decision of the judges with dignity and remember that they are volunteering their time. As your attorney-coach will tell you, we don’t always agree with the judge’s decisions. For the correct procedure to follow in the event of a gross rule violation by a student and/or coach, see Section 11, Objections.

9.4 There is no formal grievance procedure. Failure or refusal to check the accuracy of the scores or to sign the scoring sheet will not preserve a right to appeal the decision of the court, which is final.

10. TIME LIMITSThe script for the trial enactment is designed to be

completed within a two-hour time limit. The MBA has reserved a sufficient amount of time for the teams to be able to complete the trials. Teams that do not moni-tor their time and run longer than the two hour allot-ted time will bear sole responsibility for the inability to complete a trial. An incomplete trial will NOT be rescheduled. It will be counted as a loss to both teams.


10.1 The following time periods should be observed in preparing the case for trial.a. Opening statements: five minutes per sideb. Direct examination: seven minutes per wit-

nessc. Redirect examination: time limit left to

judge’s discretion; limit of three questions per witness

d. Cross-examination: five minutes per witnesse. Re-cross-examination: time limit left to

judge’s discretion; limit of three questions per witness

f. Closing arguments: seven minutes per side10.2 Time runs from the beginning of the witness ex-

amination, opening statement, or closing argu-ment until its conclusion. Introduction of counsel or witnesses prior to the opening statement shall not be included in the time allotted for opening statements. However, if counsel or witnesses are introduced once the opening statement has com-menced, such time shall be included in the time allotted for the opening statement. Time stops only for objections, questioning from the judge or administering the oath. Time does not stop for introduction of exhibits.

10.3 Both teams have the option of providing a stu-dent timekeeper for the trial enactment — a clerk for the defense and a bailiff for the prosecution/plaintiff. The clerk/bailiff must bring a stopwatch or other silent timing device, and time cards to each trial. The clerk/bailiff may only use the time cards provided on the MBA website printed out on white paper. The time cards will be printed with: 2 minutes, 1 minute, 30 seconds, 15 sec-onds and STOP.

10.4 The clerk/bailiff will be responsible for monitor-ing its own and the other team’s time, however the timekeeper should only provide time signals for its respective team. If a time limit is exceeded, the clerk/bailiff may hold up the STOP time card and state, “time.” Ultimately, the judge is respon-sible for moving the trial along and may adjust time at his/her discretion. Deliberate abuse of the time limits may result in deduction of points.

10.5 During the rounds of the competition, timekeep-ers are to act as a neutral entity. Timekeepers are

not to communicate with their respective teams during the course of the trial presentation. If any significant time discrepancy between the clerk and bailiff occurs, the clerk/bailiff should notify the judge. The determination of the abuse of the time periods is a discretionary decision of the judge. The judge’s decision on abuse of time is final and cannot be appealed.

11. OBJECTIONS11.1 Physical constraints of the courtroom may pre-

vent all counsel from sitting together at the coun-sel table.

11.2 Any objections, even to gross rule violations, must be raised during the course of the trial or they are lost. A gross rule violation might consist of a teacher, parent, school official or lawyer coaching or signaling the students on the team during the course of the trial. Such coaching could include a verbal message, hand or facial gestures or cough-ing, and other noise making intended to convey a message to the students.

11.3 The proper procedure to follow in objecting to a gross rule violation is to request a bench confer-ence and bring the objection to the attention of the presiding judge.

11.4 Coaches may raise objections, but only in the event of improper behavior on the part of op-posing coaches or spectators. The intent of this rule is to allow coaches to object to behavior on the part of other adults when it might be difficult for students to object to or even to see an adult’s behavior. Coaches must raise objections immedi-ately at the time of the infraction. This rule does not allow coaches to make objections on behalf of their student attorneys regarding the substance of the trial. It applies only to gross rule violations such as coaching or signaling time that occur dur-ing the course of the trial.

11.5 Unless circumstances require otherwise (i.e. the physical constraints of the trial location) in order to avoid even the appearance of coaching, coaches and other spectators shall not sit in jury boxes or other seating which is forward of the attorney’s tables. Students should be reminded not to com-municate in any way with their coaches, witnesses or non-participating students during the course of the trial.


12. THE SCHEDULE12.1 The times and dates of the trials are set by the

court and, except under extreme circumstances, i.e., dangerous weather conditions, they cannot be changed. An unexcused absence from a trial will result in a forfeit for the absent team and a win for the opposing team.

12.2 Most trials will be scheduled between 1 and 2 p.m. Because courts are closed for business at 4:30 p.m., please keep an eye on the clock. We have asked judges to do the same.

12.3 The MBA will assess a fee of $250 to any school that drops out of the competition after the “latest dropout date to avoid penalty” listed in the Mock Trial Datebook, found in Rule 13 of the case ma-terials.

12.4 A team that does not participate in an assigned trial shall have forfeited that trial.

A team forfeiting a second trial during a tourna-ment year will be considered to have dropped out of the tournament. Upon its second forfeit, the team will be assessed the drop out fee and may no longer compete in trials for the remainder of the tournament year.

A team which forfeits a trial is also subject to be-ing suspended from the Mock Trial Program for the following year at the discretion of the MBA Mock Trial Committee. The team will have the opportunity to explain the reasons for the forfeit(s) before the decision of the committee. The amount of notice provided by the team in advance of the forfeit shall be considered by the committee as part of its deliberation.

Forfeiting a trial deprives another team of the op-portunity to compete. Additionally, the trials for the tournament take many hours of staff time to coordinate. Please make sure you and your team members are committed to completing the tour-nament before you register.

12.5 Accommodations in the Mock Trial schedule will be considered for academic testing and/or reli-gious reasons if the request is submitted before the deadline date provided on the registration form. Other requests for accommodations will be considered only for extraordinary circumstances. Please make sure that your team is available to

commit to the entire Mock Trial competition.12.6 The state police, the court or other authority of

the trial location, the school district, or the prin-cipal of a participating school are the only rele-vant authorities who may declare a weather emer-gency. A weather emergency may not be declared by a teacher or team coach. A weather emergency may either reflect the closure of a school or trial venue, or the determination by a relevant au-thority that it is unsafe for students to travel. If a weather emergency has not been declared by a relevant authority, teams wishing to cancel a trial due to inclement weather must forfeit the trial. Except under exceptional circumstances, weather emergencies must be declared by 11 a.m. on the day of the trial. A coach of the team of a cancel-ling school is responsible for informing both the coach of the other team and Mock Trial Central of the cancellation. Mock Trial Central will in-form the judge and trial venue of the cancella-tion. The coach of the team giving notice must do so immediately after the emergency is declared, both by telephone and by email, and the team giving notice must receive prompt confirmation of the notice from the teacher coach or their adult (non-high school student) designee at the oppos-ing school in order for the notice to be effective. To avoid miscommunication between teams, please make every effort to make live telephone contact with a responsible adult at the opposing school. Court time permitting, trials cancelled due to weather emergencies will be rescheduled. Failure to comply with provisions for weather emergencies may result in a forfeit.

12.7 Coaches shall confirm with each other (three school days) in advance of any given trial. At that time, coaches shall confirm which side each team will be playing. To ensure effective communica-tion in the event of a weather, or other emer-gency, Mock Trial Central strongly recommends that coaches exchange emergency contact infor-mation—such as a cell phone, or other telephone number where they can be reached on the day of the trial. The website posting is final and official.

12.8 Teacher-coaches (of the winning team) must call in their scores to the MBA by 9 a.m. the next morning. Messages may be left on the MBA’s

1 0 M B A 2 0 1 7 H I G H S C H O O L M O C K T R I A L P R O G R A M

voice mail at (617) 338-0570. Scores also may be emailed to [email protected].

12.9 The teacher coach or their adult (non-high school student) designee must attend all trials with stu-dents. If not, the team will have to forfeit match.

13. MOCK TRIAL DATEBOOKA schedule will be prepared in early January indicat-

ing the time and place of your trials and the side your team must argue. This will be posted in a secure area on the website.Latest dropout date to avoid penalty . Nov. 10, 2016Preliminary rounds begin .......week of Jan. 23, 2017Snow make-ups ...................... week of Feb. 13, 2017Winter break .......................... week of Feb. 20, 2017Tiebreaker week ..................... week of Feb. 27, 2017Regionals (32 Regions and Sweet Sixteen trials) ......

Sunday, March 6, 2016 in Worcester (snow date: Sunday, March 13)

Elite Eight and Final Four trials ............................... ........................ week of March 13, 2017 in WorcesterState Championship..............Friday, March 24, 2017

14. MOCK TRIAL WEBSITEOur home page, http://MockTrial.MassBar.org,

serves as the most current and efficient source of in-formation regarding clarifications on stipulations, case updates, trial results and answers to frequently asked questions.

There is a “registrants only” area located on the web-site. Your team will be randomly assigned a password. This password will give you access to your schedule at any time. (See Appendix D for log-in instructions). This Web-based system was designed to complement the re-lay of information with regard to scheduling and pro-grammatic changes. While we will continue to contact you on the phone, staying abreast of your team’s trial schedule is your responsibility. We suggest you assign this task to one of your students.

If you have a question, comments or concerns, email [email protected]. We will post frequently asked questions to the website on a regular basis. Directions from your school to a specific court can also be accessed at MockTrial.MassBar.org.

If you do not have access to the Internet and/or email, and did not inform us on your registration form, please call us immediately at (617) 338-0570.

H T T P : / / M O C K T R I A L . M A S S B A R . O R G 1 1

PART III:Hints on Preparing for a Mock Trial

Review all of the materials in the case packet•All students should read the entire set ofmaterials

and discuss the information/procedures and rules used in the Mock Trial Program.

•The factsof the case,witnesses’ testimony, and thepoints for each side in the case then should be exam-ined and discussed. Key information should be listed on the chalkboard as discussion proceeds so that it can be referred to at some later time.

Assign roles early•Eventhoughateamhastorepresentonlyonesidein

the case during any single trial, all roles in the case should be assigned and practiced. This will help in practicing the case as well as in preparing for future trials.

•Schoolsshoulddesignatealternatesforbothstudentsand teacher-coaches in order to be prepared for un-expected illness or absence.

•The credibility of the witnesses is very importantto a team’s presentation of its case. Experience has shown that close decisions in the trial enactments often hinge on individual differences in witness per-formance. Therefore, students acting as witnesses really need to “get into” their roles and attempt to think like the persons they are playing. Students who are witnesses should read over their statements (af-fidavits) many times and have other members of the team or their class ask them questions about the facts until they know them cold.

Preparing opening/closing statements and witness questions•Teams should allow their students to prepare their

own questions, with the teacher-coach and attorney-coach giving the team continual feedback and assis-tance on the assignment as it is completed. Based on the experience of these practice sessions, attorneys should revise their questions and witnesses should restudy the parts of their witness statements where they are weak.

•Teammembers shouldprepare theiropeningstate-ments. Legal and/or non-legal language should be

avoided where its meaning is not completely under-stood by attorneys and witnesses.

•Closingargumentsshouldnotbetotallycomposedbefore trial, since they are supposed to highlight the important developments for the plaintiff/prosecu-tion and the defense which have occurred during the trial. The more relaxed and informal such statements are, the more effective they are likely to be. Students should be prepared for interruptions by judges who like to question the attorneys, especially during clos-ing arguments.

Practice, practice, practice•Asateamapproachesthedateof itsfirst trial, it is

required that the team conduct at least one complete trial as a kind of dress rehearsal. All formalities should be followed and notes taken by the teacher-coach and students concerning how the team’s presentation might be improved. A team’s attorney-coach should be invited to attend this session and comment on the enactment.

Prepare to adapt• The ability of a team to adapt to different situations

is often a key component in a mock trial enactment, since each judge or lawyer acting as a judge has her/his own way of doing things. Because the proceedings or conduct of the trial often depend in no small part on the judge who pre-sides, student attorneys and other team members should be prepared to adapt to judicial rulings and requests.

Some of the skills most difficult for team members to learn•Deciding which facts are the most important to

prove their side of the case and making sure such proof takes place.

•Statingclearlywhattheyintendtoproveinanopen-ing statement and arguing effectively in their closing statement that the facts and evidence presented have proven their case.

•Following the formalityof court, e.g., standingupwhen the judge enters, or when addressing the judge, calling the judge “Your Honor,” etc.


•Phrasing questions on direct examination that arenot leading (carefully review the Simplified Rules of Evidence and watch for this type of questioning in practice sessions).

•Refrainingfromaskingsomanyquestionsoncross-examination that well-made points are lost. When a witness has been contradicted or otherwise discred-ited, student attorneys tend to ask additional ques-tions, which often lessen the impact of the point pre-viously made.

(Stop and recognize which questions are likely to re-quire answers that will make good points for your

side. Rely on the use of those questions. Avoid point-less questions!)

•Thinkingquicklyontheirfeetwhenawitnessgivesan unexpected answer, an attorney asks unexpected questions, or a judge throws questions at the attor-ney or witness. (Practice sessions will help prepare for this)

For more tips on how to prepare for your mock trial, go to MockTrial.MassBar.org and click on the “Mock Trial Tips” link.


Before participating in a mock trial, it is important to be familiar with the physical setting of the court-room, as well as the events that generally take place during a trial and the order in which they occur. This section outlines the usual steps in a bench trial, that is, a trial without a jury.

1. COURTROOM LAYOUTParticipants

The judgeThe attorneys:•plaintiff/prosecutionanddefense

The witnesses:•threewitnessesfortheplaintiff/prosecution•threewitnessesforthedefense

2. STEPS IN MOCK TRIALThe opening of the court2.1 The plaintiff/prosecution team’s attorney-coach

or teacher-coach shall serve as the court crier2.2 The court crier shall first consult the judge as to

the desired method for her/his introduction and the opening of the court. The judge will have sole discretion as to whether or not there will be for-mal process employed for her/his introduction and the opening of the court.

2.3 If the judge confirms that she/he would like a for-mal process, as the judge enters the Courtroom and/or approaches the bench to begin the trial, the bailiff shall cry aloud “All rise and remain standing!”

2.4 When the judge has ascended to the bench, the bailiff shall cry aloud, “Hear Ye! Hear Ye! The Mock Trial Court of the Commonwealth of Mas-sachusetts is now in session. The Honorable Jus-tice [judge’s last name] presiding. All persons hav-ing business herein can now be heard. You may be seated.”

2.5 The judge will then ask the attorneys for each side if they are ready. Often the judge will begin the trial by asking if there are any preliminary matters or by requesting stipulations. The lawyers would offer stipulations, if any, in response to that ques-tion.

2.6 Stipulations of the parties are issues that both sides have agreed to prior to the trial. Only the docu-ment in the case packet labeled Stipulations of the Parties and/or additional stipulations designated by the Mock Trial Committee are considered to have been stipulated to and may be entered as such. A team may not object to the admission of stipulations.

2.7 The judge shall direct the bailiff when to recess or adjourn court; upon adjournment the bailiff shall require all present to rise and cry aloud, “This court is adjourned. Please remain standing until the judge leaves the courtroom.”

Opening statements2.8 Before proceeding with this opening statement,

each team of attorneys should have one of its members introduce the team to the presiding judge:

“Your Honor, my name is Mr./Ms. ________. My colleagues are Mr./Ms. _________ and Mr./Ms. ______.”

2.9 Only the co-counsel are introduced to the judge at the beginning of the trial. Witnesses should be introduced in character (not by actual name) as they are called to the stand.

2.10 Occasionally, the judge will have all witnesses stand at the beginning of the trial to be sworn in, but, most often, the judge or the court officer will swear in each witness as she or he is called to the stand. The judge will ask each witness:

PART IV:Trial Procedures

Judge

WitnessCourt

Officer

Defense Table Plaintiff/Prosecution Table

Jury Box

Audience SeatingAudience Seating


“Do you solemnly swear or affirm to tell the whole truth, and nothing but the truth, according to the Mock Trial Rules and Affidavits?

2.11 After introducing herself/himself and co-counsel to the judge, the plaintiff’s attorney/prosecutor summarizes the evidence that will be presented to prove the case.

2.12 After introducing herself/himself and co-counsel to the judge, the defendant’s attorney summarizes the evidence that will be presented to rebut the case the plaintiff/prosecution has made.

Direct examination by plaintiff/prosecution2.13 The plaintiff/prosecution’s attorneys conduct dir-

ect examination (questioning) of each of its own witnesses. At this time, testimony and other evi-dence to prove the plaintiff/prosecution’s case will be presented. The purpose of direct examination is to allow the witness to narrate the facts in sup-port of the case.

NOTE: The attorneys for both sides, on both direct and cross-examination, should remember that their only function is to ask questions. Attorneys them-selves may not testify or give evidence, and they must avoid phrasing questions in a way that might violate this rule.

Cross-examination by the defense2.14 After the attorney for the plaintiff/prosecution

has completed questioning a witness, the judge then allows the other party (i.e., defense attorney) to cross-examine the witness. The cross-examiner seeks to clarify or cast doubt upon the testimony of opposing witnesses. Inconsistent stories, bias and other damaging facts may be pointed out to the judge through effective cross-examination.

Redirect examination by the plaintiff/prosecution2.15 The plaintiff/prosecution’s attorneys may conduct

redirect examination of its witnesses to clarify any testimony that was cast in doubt or impeached during cross-examination. Each side is limited to three questions per witness on redirect.

Re-cross-examination by the defense2.16 The defense attorneys may re-cross examine the

opposing witnesses to impeach previous testi-mony. Each side is limited to three questions per witness on re-cross.

Direct and redirect examination by the plaintiff/prosecution2.17 Direct and redirect examination of each defense

witness follows the same pattern as the steps above which describe the process for direct and redirect examination of the plaintiff/prosecution witnesses.

Cross and re-cross-examination by the plaintiff/prosecution2.18 Cross and re-cross-examination of each defense

witness follows the same pattern as the steps above which describe the process for cross and re-cross-examination of the plaintiff/prosecution witness.

Closing arguments (attorneys)2.19 Defense: Defense’s closing statement is presented

first. It is essentially the same for both the defense and the plaintiff/prosecution. Counsel for the de-fense reviews the evidence as presented, stresses the facts favorable to the defense and shows how the plaintiff/ prosecution has failed to prove all the necessary elements of its case. Counsel con-cludes with a request that the court enter judg-ment on behalf of the defendant.

2.20 Plaintiff/Prosecution: The closing statement is a review of the evidence presented. It should review the evidence as presented, stress facts favorable to the plaintiff/prosecution and show how the plain-tiff/prosecution has met its burden of proving all the necessary elements of its case. Counsel con-cludes with a request that the court enter judg-ment on behalf of the plaintiff/prosecution.

Burden of proof2.21 Burden of Proof: In a civil case, the plaintiff is

required to prove its case by a preponderance of the evidence; in a criminal case, the prosecution is required to prove its case beyond a reasonable doubt.

The judge’s role and decision2.22 The judge is the person who presides over the trial

to ensure that the parties’ rights are protected and that the attorneys follow the Simplified Rules of Evidence and trial procedure. In trials held with-out a jury or in evidentiary hearings, the judge also serves as the fact finder, that is, she/he de-termines the facts of the case and renders a judg-ment.


In American trials, elaborate rules are used to regu-late the admission of proof (i.e., oral or physical evi-dence). These rules are designed to ensure that both parties receive a fair hearing and to exclude any evi-dence deemed irrelevant, incompetent, untrustworthy or unduly prejudicial. If it appears that a rule of evi-dence is being violated, an attorney may raise an objec-tion to the judge. The judge then decides whether the rule has been violated and whether the evidence must be excluded from the record of the trial. In the absence of a properly made objection, however, the judge prob-ably will allow the evidence. The burden is on the at-torneys to know the rules and to be able to use them to protect their clients by limiting the actions of opposing counsel and their witnesses.

Formal rules of evidence are complicated and differ depending on the court where the trial occurs. For pur-poses of the Mock Trial Program, the rules of evidence have been modified and simplified. Not all judges will interpret the rules of evidence or procedure in the same way, and you must be prepared to point out the specific rules (quoting them, if necessary) and to argue per-suasively for the interpretation and application of the rule you think proper. No matter which way the judge rules, you should accept his or her ruling with grace and courtesy.

ARTICLE I. GENERAL PROVISIONSRule 101. ScopeThese Simplified Rules of Evidence and Procedure gov-ern the trial proceedings of the Mock Trial Program. The only rules of evidence that may be cited are those included here.

Rule 102. Objections Beyond the Scope of These RulesAn objection which is not contained or referred to in these Simplified Rules of Evidence and Procedure shall not be considered by the court. Counsel responding to such an objection is responsible for pointing out to the judge that the objection raised is not contained in these rules. If counsel fails to do so, the court may exercise its discretion in considering such an objection.

ARTICLE II. MODE AND ORDER OF INTERROGATION AND PRESENTATIONRule 201. Form of Question During Direct ExaminationOn direct examination, witnesses may not be asked leading questions except as may be necessary to elicit background information or basic foundation to de-velop the witness’ testimony. A leading question is one that suggests to the witness the answer desired by the examiner, and often suggests a “yes” or “no” answer.Example of a direct (non-leading) question: “Ser-geant Brown, please describe what the defendant looked like the morning of the arrest.” (NOTE: This question is not leading provided that it has already been estab-lished that the defendant was arrested on a particular morning, and that Sgt. Brown observed the defendant on the morning of her arrest.)Example of a leading question: “Sergeant Brown, when the defendant was arrested, wasn’t she wearing a red sweatshirt, blue jeans and white sneakers?”

Rule 202. Scope of Direct ExaminationDirect examination may cover any relevant facts about which the witness has personal knowledge.

Rule 203. Narration(a) Questions Calling for Narrative Testimony Questions on direction examination must ask for

specific information, and may not be so broad that the witness is invited to wander or narrate a story. Questions calling for narrative testimony are objec-tionable.

Example of a question that calls for narration: “Please tell the court everything you know about the accident.”

(b) Narrative and Non-responsive Answers The witness’ answer to a question may not go be-

yond the facts about which the question was asked. Answers that go beyond the scope of the question are objectionable. If the judge sustains an objection on these grounds, the objecting attorney may make a motion to strike the improper testimony.

PART V:Simplified Rules of Evidence and Procedure


Rule 204. Form of Question During Cross- ExaminationOn cross-examination, an attorney may ask leading questions of the opponent’s witness.

Rule 205. Scope of Cross-examinationCross-examination may cover any relevant facts about which the witness has personal knowledge (whether or not raised during the direct examination) or matters relating to the credibility of the witness.

Rule 206. Redirect ExaminationAfter cross-examination, a maximum of three addi-tional questions may be asked by the direct examin-ing attorney, but questions must be limited to matters raised by the attorney on cross-examination. The judge has the discretion to limit the scope of redirect.

Rule 207. Re-cross-examinationAfter redirect examination, a maximum of three ad-ditional questions may be asked by the cross-examin-ing attorney, but questions must be limited to matters raised by the attorney on redirect examination. The judge has the discretion to limit the scope of re-cross.

Rule 208. Recalling Witnesses ProhibitedAfter a witness has been excused from further testify-ing, the witness may not be recalled by either party.

ARTICLE III. INVENTION OF FACTS (Special Rules for Mock Trial Program)Rule 301. “Invented Fact” DefinedAn “invented fact” is a material fact which is not con-tained anywhere in the stipulations, in the evidence, or in any witness’ affidavit, and which is not a “fair and reasonable extrapolation” of facts which are clearly found within such case materials. An “invented fact” is not permitted because it would promote the unfair creation of inferences which are not supported by the case materials. The case materials provide sufficient fac-tual and legal points on which to question each witness without the witness inventing, or the cross-examining attorney requiring the witness to invent facts.

A fair and reasonable extrapolation does not ma-terially affect the outcome of the case or the argu-ments in the case, and must be reasonably inferred to be within the personal knowledge of the witness.

Example of a fair and reasonable extrapolation: A witness/soccer player states in her/his affidavit that the final score of the game was 2–1. The coach of the team does not mention the score of the game in her/his af-

fidavit. It is reasonable to assume that the coach would have personal knowledge of the score, and it is a fair and reasonable extrapolation of the facts contained in the evidence (assuming the coach was at the game) to know the final score. The coach is permitted to testify that the final score of the game was 2–1.Example of an unfair and/or unreasonable extrapo-lation: In the above example, if a conversation between two players occurred during the soccer game, and the statements made during the conversation are impor-tant to the case, unless the coach’s affidavit contains sufficient information to provide a foundation for the coach to testify to what was said, it is not reasonable to assume that the coach heard the conversation just because she/he was at the game. It would be an unfair extrapolation for the coach to claim that she/he heard the conversation.

Rule 302. Invention of Facts on Direct ExaminationOn direct examination, each witness is bound by the facts contained within her/his written affidavit, but is not required when testifying to be limited only to facts contained in her/his affidavit. A witness may testify to knowledge of other facts contained within the case ma-terials, and to fair and reasonable extrapolations there-of, but such testimony must be reasonably based upon her/his personal knowledge.

Rule 303. Methods of Redressing Invention of Facts on Direct Examination(a) Traditional Impeachment If a witness testifies in contradiction to a fact in

the witness’ own affidavit, opposing counsel should impeach the witness during cross-examination. If a witness testifies to an “invented fact,” opposing counsel may elect to impeach the witness during cross-examination, by asking questions to confirm that the fact is not contained in the witness’ affidavit (or elsewhere in the case materials), or may elect to object to the “invented fact,” pursuant to Rule 303(b), at the time it is offered by the witness.

(b) Objection Raised at Bench Conference If a witness testifies to an “invented fact,” opposing

counsel may immediately request a bench conference, at which time counsel may object to the invention of facts (as defined above). After the bench conference, any fact deemed by the judge to be an “invented fact” shall not be permitted; the


“invented fact” shall be stricken, and the witness shall be instructed to answer counsel’s questions without reference to the “invented fact.”

Invention of facts objections should be raised at bench conferences to preserve the integrity and decorum of the trial atmosphere. However, the granting of a bench conference is a discretionary decision of the judge and a request for a bench conference may not always be granted. If the judge declines a request for a bench conference, the invention of facts objection may be raised in open court.

Sample objections that may be made at the bench conference:

“Your Honor, the witness is creating facts which are not in the record.”“Your Honor, the witness has invented facts which are not supported by the record.”“Your Honor, the facts offered constitute an unfair or unreasonable extrapolation from the facts contained in the record.”At a bench conference, counsel should be prepared to direct the judge to the invention of facts rules.

Rule 304. Invention of Facts on Cross-examinationOn cross-examination, if a witness is asked a question the answer to which is not contained in the stipula-tions, in the evidence or in any witness’ affidavit, the witness may respond with any answer as long as it is re-sponsive to the question, is not contrary to the witness’ affidavit and does not contain unnecessary elaboration. If the witness provides an answer that is contrary to the witness’ affidavit, the affidavit may be used to impeach the witness’ testimony.

A witness may not be impeached for failing to adopt facts from another affidavit or exhibit if she/he elects not to adopt such facts. If a witness is unable to respond in accordance with Rule 304, she/he may claim to have no recollection on which to base an answer. Questions calling for the invention of facts on cross-examination are not objectionable on those grounds.Example: If the soccer player in the examples under Rule 302 above claims that the soccer coach was pres-ent and heard the entire conversation, but the coach does not admit that in her/his affidavit, the coach is not required to adopt the player’s statement and is allowed to deny that she/he heard the conversation, or may tes-tify that she/he does not recall whether she/he heard

the conversation. The coach’s credibility may not be questioned (i.e., she/he may not be impeached) solely because she/he failed to adopt the assertion of the soc-cer player that the coach heard the conversation. If the coach is asked whether she/he heard the conversation, counsel’s objection on the grounds that the question calls for invention should be overruled.

ARTICLE IV. RELEVANCERule 401. Definition of “Relevant Evidence”“Relevant evidence” means evidence which tends to make the existence of any fact that is of consequence to the determination of the outcome of the case more or less probable than it would be without the evidence.

Rule 402. Irrelevant Evidence InadmissibleRelevant evidence is admissible, except as otherwise provided in these rules or other law provided in the case materials. Irrelevant evidence is not admissible.

Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion or Waste of TimeAlthough relevant, evidence may be excluded if (a) its probative value is outweighed by the danger of unfair prejudice; (b) if it confuses the issues; (c) if it is mis-leading; or (d) if it causes undue delay, wastes time, or is a needless presentation of cumulative evidence.

Rule 404. Character Evidence not Admissible to Prove Conduct, Exceptions, Other CrimesEvidence of a person’s character or character trait is not admissible for the purpose of proving action in con-formity therewith on a particular occasion, except for:(1) Character of accused. Evidence of a pertinent

character trait offered by an accused, or by the prosecution to rebut same; or

(2) Character of victim. Evidence of a pertinent char-acter trait of the victim of a crime offered by an accused, or by the prosecution to rebut same; or

(3) Character of witness. Evidence of the character of a witness as provided in Rules 603, 604 and 605.

NOTE: Although evidence of a person’s crimes or oth-er wrongs is not admissible for the purpose of proving action in conformity therewith on a particular occa-sion (except for the instances noted above), it may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.Example: Sam the Safecracker is on trial for a bank


robbery in which the bank vault was opened by using both a dentist’s drill and the Pip Diamond, a uniquely flawless jewel that had been stolen from a safe in the Famed Farmer Museum the previous year. Evidence that Sam participated in the Famed Farmer heist is not admissible to prove that Sam is guilty of the bank rob-bery, but may be admissible to show that Sam had the opportunity to open the safe (using the Pip Diamond) or that the Famed Farmer heist was part of the plan or preparation for the bank robbery (in which the Pip Diamond was used).

Rule 405. Methods of Proving Character(a) Reputation or Opinion In all cases where evidence of character or a

character trait is admissible, proof may be made by testimony as to reputation or in the form of an opinion. On cross-examination, questions may be asked regarding relevant, specific conduct.

(b) Specific Instances of Conduct In cases where character or a character trait is an

essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct.

Rule 406. Subsequent Remedial MeasuresWhen measures taken after an event which, if taken before, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of such subsequent remedial measures when offered for another purposes, such as proving ownership, control, or feasibility of precautionary measures (if controvert-ed), or for impeachment.Example: In a lawsuit for negligence arising out of a slip and fall in a grocery store parking lot, evidence that the grocery store added a sign after the accident, warning customers that the area may be slippery, will not be admissible to prove that the grocery store was at fault for the accident, but may be admissible to show that the parking lot is under the control of the grocery store (if the store owner denies it).

Rule 407. Compromise and Offers to CompromiseEvidence of compromise or offers to compromise a claim which was disputed as to either validity or amount is not admissible to prove liability of the claim or its amount. Evidence of conduct or statements made

in compromise negotiations is likewise not admissible. This rules does not require exclusion of such evidence when it is offered for another purpose.

ARTICLE V. PHYSICAL EVIDENCERule 501. Prerequisites for Admission of Physical EvidencePhysical evidence may be introduced if it is relevant. Physical evidence will not be admitted into evidence until it has been identified and shown to be authentic, or its identification and authenticity have been stipu-lated. That a document is authentic means only that it is what it appears to be, not that the statements in the document are necessarily true.NOTE: The exhibits in this mock trial are not auto-matically admissible at trial. While the authenticity of the exhibits has been stipulated, a proper founda-tion must be laid in order to introduce an exhibit in evidence.

Rule 502. Procedure for Introducing Physical EvidenceThe proper procedure to use when introducing a physi-cal object or document for identification and/or in evi-dence is as follows:• Showtheexhibittoopposingcounsel,sothatcoun-

sel is aware of what exhibit is being offered.• Askthejudgetomarktheexhibitforidentification.

“Your Honor, I ask that this document be marked as Exhibit A for identification.” At this point, you are not offering the exhibit as evidence, but rather marking it so that it is clear what document you are referring to when asking the witness questions about the exhibit.

• Hand the document to the witness and ask thewitness to identify it. “I show you what has been marked as Exhibit A for identification. Would you please identify that exhibit?”

• Ask thewitnessquestionsabout theexhibit toes-tablish its relevance and other pertinent informa-tion.

• Offer the exhibit into evidence. “Your Honor, atthis time I ask that the court admit Exhibit A in evidence as Exhibit 1.”

• Thejudgewillaskopposingcounselifthereisanyobjection, rule on any objection (after argument), and either admit the exhibit into evidence or not.


Rule 503. Use of a Writing to Refresh RecollectionIf a witness is unable to recall information contained in a document, the attorney, after requesting the Court’s permission and showing the document to opposing counsel, and if no objection is sustained, may show a document to the witness to help the witness remember the information without introducing the document into evidence. The witness cannot read the document to the court and must return the document to counsel before answering the question.

Rule 504. Publishing Documents to the CourtOnce a document has been admitted in evidence, counsel for either party may publish specific portions of the document to the court by directing the judge’s attention to the relevant portion and reading it aloud. Opposing counsel may object only if counsel has mis-read the document.Example: “I direct the court’s attention to the second page of Exhibit 1, at the top, where it says ‘Dolores is deceased.’”

Rule 505. Use of a Witness’ Affidavit to ImpeachUnless prohibited by Rule 802, a witness may be asked questions about her/his affidavit without introducing the document. If, after appropriate questioning, a wit-ness refuses to admit having made a statement con-tained within her/his affidavit, the attorney may, in conformance with Rule 502, enter into evidence the affidavit containing the statement for the purpose of impeachment. An affidavit admitted into evidence un-der this rule may be considered by the Court only for the limited purpose of impeachment; the document admitted will be deemed to contain only the alleged inconsistent statement(s).

ARTICLE VI. WITNESSESRule 601. General Rule of CompetencyEvery person is presumed to be competent to be a wit-ness.

Rule 602. Lack of Personal KnowledgeA witness may not testify to a matter unless the witness has personal knowledge of the matter; the witness may not speculate. This rule is subject to the provisions of Rule 703, related to opinion testimony by expert wit-nesses.

Rule 603. Who May ImpeachThe credibility of a witness may be attacked by any party, including the party calling the witness.

Rule 604. Evidence of Character and Conduct of a Witness

(a) Opinion and Reputation Evidence of Character The credibility of a witness may be attacked or

supported by evidence in the form of opinion or reputation, but subject to these limitations:(1) The evidence may refer only to character for

truthfulness or untruthfulness; and(2) Evidence of truthful character is admissible

only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence, or otherwise.

(b) Specific Instances of Conduct Specific instances of the conduct of a witness may not

be offered for the purpose of attacking or supporting the witness’ credibility, except on cross-examination either (1) to rebut testimony regarding the witness’ character for truthfulness or untruthfulness, or (2) to impeach the witness’ testimony regarding the truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

Rule 605. Impeachment by Evidence of Conviction of CrimeFor the purpose of attacking the credibility of a wit-ness, evidence that the witness has been convicted of a crime shall be admitted, but only if the crime was a felony or involved moral turpitude, regardless of pun-ishment, and the court determines that the probative value of this evidence as reliable proof outweighs its prejudicial effect to a party.

Rule 606. Religious Beliefs or OpinionsEvidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness’ credibility is impaired or enhanced.

ARTICLE VII. OPINIONS AND EXPERT TESTIMONYRule 701. Opinion Testimony by Lay WitnessesIf the witness is not testifying as an expert, the wit-ness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ tes-timony or the determination of a fact in issue.


Rule 702. Testimony by ExpertsIf scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, background, training, and/or education may testify in the form of an opinion. Prior to offering such an opinion the witness must be deemed qualified by the court, pur-suant to a request by the attorney conducting the examination.

Rule 703. Bases of Opinion Testimony by ExpertsThe facts or data upon which an expert bases an opin-ion may be those perceived by or made known to the expert at or before the trial. The facts or data supporting an expert’s opinion need not be admissible in evidence provided that they are of a type reasonably relied upon by experts in the field in forming opinions or inferences.

Rule 704. Opinion on the Ultimate Issue

(a) General Rule Opinion or inference testimony otherwise admis-

sible is not objectionable because it embraces an is-sue to be decided by the trier of fact.

(b) Opinion on Guilt or Innocence in a Criminal Case

In a criminal case, an expert witness shall not express an opinion as to the guilt or innocence of the accused.

ARTICLE VIII. HEARSAYRule 801. DefinitionsThe following definitions apply under this article:(a) Statement. A “statement” is an oral or written

assertion or nonverbal conduct of a person, if it is intended by the person as an assertion.

(b) Declarant. A “declarant” is a person who makes a statement.

(c) Hearsay. “Hearsay” is an out-of-court statement offered to prove the truth of the matter asserted.

Example of a statement which is offered for the truth of the matter asserted:

“Ralph Malph told me the light was green” when offered to prove that the traffic light was green.

Examples of statements not offered for the truth of the matter asserted:• Thestatementisofferedtoprovethattheper-

son to whom it was addressed had notice or knowledge of the contents of the statement (if relevant). In this case, whether the statement is true does not matter, what matters is that the listener heard the statement.

• Thestatementisofferedbecausethestatementitself constitutes a verbal act that is at issue, such as defamation or fraud. In this case, you may be even trying to show that the statement is false.

• Thestatementisofferedascircumstantialevi-dence of the declarant’s state of mind (e.g., “I am Napoleon” offered to show that the declar-ant is insane).

NOTE: This list is by no means exhaustive.(d) Statements which are deemed not to be hearsay

by rule. A statement is not hearsay if:(1) Prior statement by witness. The declarant testi-

fies at the trial and is subject to cross-examina-tion concerning the statement and the state-ment is: (A) inconsistent with the declarant’s testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in an affidavit; (B) con-sistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive; or (C) one of identification of a person made after perceiving the person.

(2) Statement by a party-opponent. The statement is offered against a party and is: (A) the party’s own statement in either an individual or rep-resentative capacity; (B) a statement of which the party has manifested an adoption or be-lief in its truth; (C) a statement by a person authorized by the party to make a statement concerning the subject; (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment made during the existence of the relationship; or (E) a statement by a co-conspirator of a par-ty during the course of and in furtherance of the conspiracy.

NOTE: The statement need not be an “admis-sion.”


Rule 802. Hearsay RuleHearsay is not admissible, except as provided by these rules.

Rule 803. Hearsay Exceptions, Availability of Declarant ImmaterialThe following are hearsay statements, but are not ex-cluded by the hearsay rule, even though the declarant is available as a witness:(1) Present sense impression. A statement describing

or explaining an event or condition made while the declarant was perceiving the event or condi-tion, or immediately thereafter. Example: “She said, ‘He sure is driving awfully fast.’”

(2) Spontaneous exclamation (also commonly re-ferred to as “excited utterance”). A statement made under the impulse of excitement or shock if its utterance was spontaneous to a degree that reasonably negated premeditation or possible fab-rication and if it tended to qualify, characterize, or explain the underlying event. Example: “I can’t believe I ate the whole thing!”

(3) Then-existing mental, emotional or physical “conditions.” A statement of the declarant’s then-existing state of mind, emotion, sensation or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health), but not including a statement of memory or be-lief to prove the fact remembered or believed. Ex-ample: “He said he had a terrible stomach ache.”

(4) Statements for purposes of medical diagnosis or treatment. Statements made for the purpose of medical diagnosis or treatment.

(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollec-tion to enable him to testify fully and accurately, shown to have been made or adopted by the wit-ness when the matter was fresh in his memory and to reflect that knowledge correctly.

(6) Records of regularly conducted activity (the “business records” rule). A memorandum, report, record or data compilation, in any form, of acts, events, conditions, opinions or diagnoses, made by a person with knowledge:

(1) If kept in the course of a regularly conduct-ed business activity; and

(2) If it was the usual course of business to make the record at the time of the event recorded or within a reasonable time there-after;

(3) Unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness of the re-cords in question.

The term “business” as used in this paragraph includes business, institution, association, pro-fession, occupation and calling of every kind, whether or not conducted for profit.

(7) Learned treatises. To the extent called to the at-tention of an expert witness upon cross-examina-tion or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals or pamphlets on a subject of history, medicine or other science or art, estab-lished as a reliable authority by the testimony or admission of the witness or by other expert testi-mony or by judicial notice.

(8) Reputation as to character. Reputation of a per-son’s character among associates or in the com-munity.

(9) Co-conspirator statements. Statements by a co-conspirator in a criminal conspiracy.

Rule 804. Hearsay Exceptions, Declarant Unavailable(a) Definition of Unavailability “Unavailability as a witness” includes situations in

which the declarant:(1) Is exempted by ruling of the court on the ground

of privilege from testifying concerning the sub-ject matter of the declarant’s statement; or

(2) Testifies to a lack of memory of the subject matter of the declarant’s statement; or

(3) Is unable to be present or to testify at the trial because of death or then-existing physical or mental illness or infirmity.

A declarant is not unavailable as a witness if any of the above is due to the wrongdoing of the proponent of a statement for the purposes of preventing the witness from attending or testifying.


(b) Hearsay exceptions The following are not excluded by the hearsay rule

if the declarant is unavailable as a witness:(1) Former testimony. Testimony given as a wit-

ness at another hearing of the same or a dif-ferent proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered or, in a civil action or proceeding, a predecessor in in-terest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

(2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declar-ant while believing that the declarant’s death was imminent, concerning the cause or cir-cumstances of what the declarant believed to be impending death.

(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary inter-est, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless be-lieving it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissi-ble unless corroborating circumstances clearly indicate the trustworthiness of the statement.

(4) Statement of personal or family history. (a) A statement concerning the declarant’s own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption or marriage, ancestry or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; (b) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption or marriage or was so in-timately associated with the other’s family as to be likely to have accurate information con-cerning the matter declared.

(5) Declaration of deceased person. In any action

or other civil judicial proceeding, a declaration of a deceased person shall not be inadmissible in evidence as hearsay or as private conversa-tion between husband and wife, as the case may be, if the court finds that it was made in good faith and upon the personal knowledge of the declarant.

Rule 805. Hearsay within HearsayHearsay included within hearsay is admissible only if each part of the combined statement conforms with an exception to the hearsay rule provided in these rules.

ARTICLE IX. PROCEDURAL RULESRule 901. Authority to objectObjections to an opening statement must be made and argued only by the attorney making the oppos-ing opening statement. Objections during the direct examination or cross-examination of a witness must be made and argued only by the opposing attorney cross examining or examining the same witness. Objections regarding a closing argument must be made and ar-gued only by the attorney making the opposing closing argument.

Rule 902. Procedure for ObjectionsThe attorney authorized to object may object any time any tournament rule or rule of procedure or evidence is violated, except as noted in Rule 906.

Rule 903. Motion to StrikeIf an answer is unresponsive or otherwise objection-able, the opposing counsel may ask the judge to strike the objectionable testimony.

Rule 904. Other MotionsMotions for directed verdict or dismissal or any other motions not specified in the Simplified Rules of Evi-dence and Procedure are not permitted.

Rule 905. Closing ArgumentsClosing arguments must be based on the evidence and testimony presented during the trial.

Rule 906. Objections During Opening Statements and Closing ArgumentsNo objections may be raised during the course of opening statements or closing arguments. An objection to an opening statement or to a closing argument may be made immediately following the opening statement or closing argument. A brief rebuttal or explanation is permitted at the discretion of the judge.


PART VI:TRIAL SCRIPT AND

EXHIBITS


COMMONWEALTH OF MASSACHUSETTS

MCINTYRE, ss SUPERIOR COURT DEPARTMENT CRIMINAL NO. 16-MT-9133796

***********************************)COMMONWEALTH OF )MASSACHUSETTS )v. ) )SAZER LARSEN, ) Defendant )***********************************

STIPULATIONS OF THE PARTIES

Now comes the parties in the above-captioned matter and hereby agree and stipulate to the following:

Summary of the CaseA criminal complaint has issued charging the defendant, Sazer Larsen, with first-degree murder in connection with the death of Jamie Frosh. The defendant admits to the killing, but claims to be not guilty by reason of insanity, or, alternatively, that the charges should be reduced as the result of the defendant’s diminished capacity.

Stipulations

1. The Mock Trial Simplified Rules of Evidence and Procedures are applicable to all aspects of this proceed-ing and, if conflicting with any other rules, shall control.

2. The jurisdiction and venue of this court are proper and may not be contested.

3. The defendant shot Jamie Frosh, who died from those injuries.

4. The defense has given proper notice that it intends to raise both insanity and lack of capacity as defenses.

5. All pre-trial issues have been resolved and are not at issue in this trial.

6. All named witnesses must testify and their appearance as witnesses is not subject to objection. Any other person not called in this hearing is unavailable and, except with respect to Jamie Frosh, no inquiry is per-mitted as to the reasons therefor.

7. If applicable, any photographs, videos, reports, statements, test results or any physical evidence referred to in any experts’ affidavits are not available; the information available from each item is limited to the facts provided in the affidavits, subject to cross-examination, but no witness may go beyond the facts therein provided regarding such information.

8. All documents and all signatures on documents are authentic. Notwithstanding this stipulation regarding authenticity, a party seeking to offer a document into evidence must establish that the document meets the other requirements of admissibility.

9. All persons, places and events described in the materials are completely fictional. Any resemblance to real persons, places or events is purely coincidental.

10. All witness roles in this case are gender-neutral.


STIPULATIONS OF THE PARTIES (cont.)

11. Any objections based upon the issue of Post-Traumatic Stress Disorder (PTSD) being a recognized disorder is waived.

12. Any applicable doctor/patient privilege has been waived.

13. The court allowed the prosecution’s pre-trial motion permitting Dr. Piltch to interview the defendant.

14. The parties hereby incorporate by reference any additional stipulations listed on the MBA Mock Trial website.

Witnesses for the Prosecution

1. Gill Graham

2. Det. Daveigh F. Wallace

3. Dr. Dana Piltch

Witnesses for the Defendant

1. Sazer Larsen

2. Alex Cofman

3. Dr. Carla/Carl Li

Trial Materials and Exhibits

1. Affidavit of Gill Graham

2. Affidavit of Det. Daveigh F. Wallace, with attached sketch of the Sammlee Park shooting, July, 4, 2016

3. Affidavit of Dr. Dana Piltch, with attachment

4. Affidavit of Sazer Larsen

5. Affidavit of Alex Cofman

6. Affidavit of Dr. Carla/Carl Li, with attachment

7. 309.81 Posttraumatic Stress Disorder Diagnostic Criteria


AFFIDAVIT OF GILL GRAHAM

1. My name is Gill Graham. I currently reside in Thihn (pronounced “tin”), Massachusetts, just west of Worcester, at 327 Mary Rose Way. I recently turned 25.

2. I grew up in Martin’s Landing, Massachusetts. Jamie Frosh and I had been friends since we were little kids. I can’t believe Jamie is gone. He was one of the brightest people I ever met. I first met Sazer Larsen when she/he transferred to the Pletner Cooperative Learning Center (PCLC). She/he wasn’t like most of the typical bookworms at PCLC. She/he was a hothead even back then, who was more interested in sports than school. She/he constantly gave Jamie a hard time because Jamie teased her/him about her/his poor academics and the rumors that Sazer got kicked out of public school. Since I was a decent pitcher, Sazer never really messed with me.

3. Jamie and I were the top two students at PCLC. Jamie was a computer geek, while I was more of a science geek. After graduation, Jamie went to MIT and I went to Harvard. We roomed together when we both decided to move off campus our junior and senior years. Even though we were both recruited by companies from around the world, we decided to come home to Martin’s Landing. Jamie started a computer soft-ware company and made his first million before he was 25. I work at Markalon. While I haven’t made my first million yet, I am already a department head. I run Markalon’s Green Division. My job is to help the company come up with innovative ways to be more environmentally responsible. It is important for future generations that we live our lives in more earth-friendly ways before our resources run out.

4. No one was shocked that Sazer joined the military after high school. She/he always loved guns. His/her father was one of those gun rights fanatics and kept a lot of guns around the house. She/he was always threatening some poor kid at school that she/he was going to shoot them. I heard that she/he actually showed off a gun to try and impress some kids and all they did was laugh at her/him. I never saw any actual guns.

5. There was one time at the DQ where Sazer was more menacing to Jamie than usual. There was a rumor that Sazer had not done well on her/his tests. Jamie walked over to Sazer and said that Sazer was neither smart enough to go to college, nor stupid enough to be a Marine. Sazer got really hot under the collar and swore she/he would kill Jamie. Sazer charged Jamie and three people had to restrain her/him. After Sazer calmed down, she/he turned to Jamie, put her/his fingers in the shape of a gun, pointed at Jamie and said, “Bullet in the head and you’re dead.” She/he repeatedly pulled her/ his finger like she/he was shoot-ing a gun. The look on Sazer’s face was almost homicidal. It scared Jamie so much he reported Sazer to the school. Sazer’s father was told about it and I am pretty certain Sazer really got it bad from her/his dad. Though Sazer’s father was a real gung-ho Second Amendment supporter, he also never tolerated those who used guns without just cause.

6. Neither Jamie nor I had seen Sazer for several years. We heard that she/he was injured in Afghanistan. We didn’t know how badly she/he had been hurt but her/his mom had told my parents that Sazer was being discharged and she was really worried about her/him. I saw Sazer for the first time in April of 2016. She/he wasn’t quite the same person I remembered from high school. Sazer was withdrawn and almost lethargic. She/he looked like someone who was not getting enough sleep. She/he was a little jumpy too.

7. Sazer mentioned to me that she/he was having trouble finding work. She/he joked that being trained to kill people didn’t translate into civilian life. I mentioned to Sazer that Markalon might need someone with her/his skills in its security division, and suggested she/he apply for a job. I suggested that she/he call some of her/his dad’s contacts (whom I knew had some connections to Markalon) for a recommendation. Sazer thanked me and said that she/he hoped what happened between Jamie and her/him during high school would not keep her/him from being hired. I told Sazer that it was a long time ago and not to worry.


8. I told Jamie that I had run into his old nemesis. When I told Jamie how bad Sazer was doing, his initial reaction was that it served Sazer right. I told him that he should not give Sazer a hard time, I had heard that she/he was wounded in a pretty nasty battle and spent months in the hospital. Jamie felt bad about what he had said, and told me that he would suggest to his uncle that Markalon should find something for Sazer. High school was a long time ago, and Jamie’s own brother had been in Iraq. While Jamie’s brother had not been hurt, he told us some pretty scary things about what it was like over there.

9. I really had not thought any more about Sazer until Jamie and I ran into her/him at Schneiders on July 4th. Schneiders is a pretty popular restaurant in Martin’s Landing. It is a nice break from all of the chains that have taken over the area. Plus, it is managed by an old friend, Alex Cofman. Alex and Jamie had not gotten along in high school, but they had become friends when Jamie and I moved back home after col-lege. Jamie even installed Schneiders’ computer system after their old one crashed. Jamie and I had made plans to go to Schneiders to grab a bite before the fireworks. That is when we ran into Sazer.

10. Alex seemed concerned when she/he saw us walk in. She/he immediately came up to me and said that Sazer had been going on about the old days and badmouthing Jamie. She/he also said that Sazer just wasn’t right, and that we might want to get out of there. Jamie, who could be oblivious to stuff like that, walked over to Sazer and said hello. Sazer got this weird look in her/his eye and told Jamie to go run home to his mother before there was trouble. She/he then pointed a finger at Jamie and shot it like a gun. Alex got us our food really fast. Alex told us that she/he threw in some new style wings for free so we could let her/him know how they tasted. Jamie was really shaken up. On the way out, he said to Alex and me that he hoped that he had not made a mistake when he told his uncle to give Sazer a job. I told Alex that we were going to eat at the Finnegan picnic area at Sammlee Park and that she/he should look for us there later on during the fireworks.

11. We walked over to Sammlee Park and had our dinner at the Finnegan picnic area. We wanted to get there early because there are usually several hundred people at the July 4th celebration and it is really crowded. The new bourbon wings were really good. We had a few beers and were really looking forward to the fireworks. We saw Alex, Sazer and some other people arrive around 8:30 p.m. The town concert band, led by Jen Creem, was playing and people were really getting into the spirit. There were kids with sparklers everywhere, and some people were setting off their own personal firecrackers on the baseball field at the far end of the park. It was pretty noisy. Since the picnic area was a great spot to watch the fireworks from, we put our chairs down near there.

12. Alex, Sazer and their group threw a blanket and some chairs down near the edge of the grass pretty close to the ice cream truck. They were probably about 50 feet away from us. I noticed that Sazer was looking around a lot. She/he appeared to be looking for someone. I also saw Sazer jump out of the chair after an M-80 went off nearby. She/he grabbed for her/his side, but then stopped and sat down again.

13. Alex came over a little before 9 p.m. to ask about the wings, and Jamie asked her/him if she/he was scared that Sazer would get mad that she/he was talking to us. That was when Alex told us that she/he had lied to Sazer about being friends with us. Alex felt bad but was trying to help Sazer. It seems that Sazer had been having a really bad time since being discharged. In addition to being unemployed, Alex told us that Sazer was worried that her/his PTSD symptoms were getting worse because she/he had almost shot her/his mom when she came into the basement where she/he was cleaning a gun.

14. As the fireworks were about to start, Alex went back to her/his chair next to Sazer. As Alex reached Sazer, the fireworks started. Then all hell broke loose. Sazer got up, spun around and started screaming. She/he pushed Alex away and started looking around.

AFFIDAVIT OF GILL GRAHAM (cont.)


AFFIDAVIT OF GILL GRAHAM (cont.)

15. I saw Sazer look directly at Jamie and yell, “You won’t get me again!” She/he pulled a gun, aimed it at Jamie and fired several shots. Alex screamed for Sazer to stop, and so did I. After hesitating for a moment and looking at Jamie lying dead on the ground, Sazer lowered her/his gun. It is a miracle that no one else was hit. Alex tackled Sazer and managed to get the gun away from her/him. Some of the police who were working a detail at the fireworks rushed over and immediately arrested Sazer. I couldn’t believe Jamie was dead. I really miss my friend.

16. Sazer had finally done what she/he had been threatening to do for years. Sazer finally shot Jamie in the head. Sazer is now claiming she/he has PTSD. That is such garbage. It was pretty clear that Sazer was looking for Jamie that night and is using some illness she/he probably doesn’t even have to get away with murder. I hope they lock Sazer up and throw away the key.

SIGNED UNDER THE PAINS AND PENALTIES OF PERJURY THIS 28TH DAY OF DECEMBER 2016.

GILL GRAHAM

Gill Graham


AFFIDAVIT OF DET. DAVEIGH F. WALLACE

1. My name is Daveigh Foster Wallace. I am 50 years old. I am a detective with the Martin’s Landing Police Department (MLPD). I was the detective in charge of investigating the shooting death of Jamie Frosh in July 2016.

2. I grew up in Penfield, Massachusetts. I was something of a tennis prodigy as a kid, but when I saw what recreational drug use was doing to my peers, I decided to join the police force to make a difference. At the time, Penfield was underwater financially, but there was an opening in Martin’s Landing, so I moved there to join the force. I attended the police academy, where I received training in patrol procedures, CPR, defensive tactics, defensive driving and the use of force. I also took classes in Constitutional and criminal law, ethics, domestic violence and civil rights.

3. I’ve been on the force in Martin’s Landing for 31 years. I started as a patrol officer, a “beat cop.” My beat included Sammlee Park, so I am very familiar with that area. After seven years as a patrol officer, I applied for a detective position that became available after some personnel shifts within the department when Lieutenant Yorrick passed away. I’ve been a detective ever since. During my years as a detective, I have re-ceived additional training and taken courses in ballistics, forensics, crime scene preservation and analysis, and witness interview techniques. The best training I’ve received is my many years on the job — there’s no substitute for experience.

4. Martin’s Landing is a quiet suburb. It has very little violent crime. We did have a series of murders in the late 1980’s in connection with a drug turf war, but an aggressive response by the MLPD convinced the gangs responsible to move their business elsewhere. Most of those homicides remain unsolved, but I learned quite a bit about piecing together a real crime scene from the work I did on those cases. Since that time, we’ve only had a handful of homicides in Martin’s Landing, and most of those have been the result of domestic disputes. Most of my work these days involves investigating property crimes — robberies, vandalism and the occasional motor vehicle theft.

5. I drew the short straw and was on duty on July 4, 2016. We had only a skeleton crew at the station, with most of the patrol officers assigned to crowd control for the parade, and later, at the fireworks at Sammlee Park. Most of the clerical staff had the day off, so things were pretty quiet. I was using the time to catch up on some paperwork.

6. At around 9 p.m., I received a radio call from a frantic patrol officer at Sammlee Park. At first I was afraid there had been some mishap with the fireworks, since I knew that was around the time the fireworks were going to take place. The officer — James Orin — informed me that there had been a shooting at the park, there was at least one confirmed fatality and they had a suspect in custody. I requested that Officer Orin quickly secure the area, wait for a crime scene team to arrive, and have another officer transport the suspect to the station for booking and questioning. Ordinarily, I would have sent another detective to the scene right away, but we were short-staffed and I figured the interrogation was of more immediate importance.

7. About a half hour later, Officer Ann Chu arrived at the station with the suspect, Sazer Larsen. I processed Larsen myself, with Officer Chu’s assistance. The booking went smoothly; Larsen put up no resistance. She/he didn’t talk at all, actually, and seemed very calm, almost bored. I had previously observed this sort of affect with criminals who are caught red-handed and arrested. They usually just accept their fate and want things to happen as quickly as possible.

8. Larsen had very little on her/his person: a set of keys, which I later confirmed were for an apartment and a car; a Swiss Army knife; a digital watch; a wallet; and the clothes she/he was wearing when arrested. The wallet contained her/his driver’s license (which had expired); a license to carry a concealed weapon; a bank card; six dollars (in singles); a Veteran’s Administration I.D. card; and two business cards. One of the busi-


ness cards was for an Olivia Cooper, Chief Financial Officer of Markalon Financial Services in Worcester. The other was for Dr. Dana Piltch, a psychologist with the Veteran’s Administration Hospital.

9. Officer Chu also provided me with Larsen’s pistol, which Officer Orin had taken from Larsen at the scene, secured in an evidence bag, and provided to Officer Chu for transportation to the station. I later confirmed that this pistol was registered to Sazer Larsen. I removed the pistol from the bag to inspect it. It was a Klagsbrun 9MM (millimeter) caliber semi-automatic, commonly referred to as the “St. Louis Spe-cial” model. This is a relatively small weapon, but quite powerful. It is easily concealed and has sufficient firepower to stop an assailant, but its relatively small magazine (the clip holds six) makes it best suited as a backup weapon for law enforcement officers. I inspected the pistol closely. The magazine had two rounds remaining in it. The weapon had been fired recently. It was apparent that it had been cleaned and oiled some time before that, probably within the last day or so.

10. I put Larsen in an interview room and Mirandized her/him. I then proceeded to interrogate Larsen about the shooting, but without much success. She/he told me her/his name, rank and the name of her/his military unit. I asked if she/he had shot anyone at the park, and Larsen just shook her/his head. She/he started to look very nervous, and muttered something about “neutralizing a threat.” By this time, I had the identity of the victim and I asked Larsen whether she/he knew Jamie Frosh. Larsen’s eyes showed a glimmer of recognition, and she/he said that she/he knew Frosh, but hadn’t seen him in a while. I asked Larsen whether she/he had shot Jamie Frosh and she/he said, “I shot Jamie Frosh? When did that happen?” I explained that several eyewitnesses had seen the shooting, and that there was no point in Larsen trying to pretend it was someone else. Larsen began to cry. She/he said, “I didn’t want to hurt anyone! You don’t know what I’ve been through!” Larsen was sobbing by this point, and kept saying, “All I did was neutralize a threat. I did what I had to do.” She/he repeated those two sentences over and over. It was obvious that this was a well-orchestrated show. I realized that we were going to need a good psych consult if Larsen was to be held accountable for what she/he had done.

11. Because of the holiday, there were no psychologists available immediately. After several phone calls, I hadn’t made any progress, so I took a shot at calling Dr. Piltch. She/he wasn’t in her/his office, but then I had her/him paged and got a call back a few minutes later. I asked Dr. Piltch if she/he had treated a Sazer Larsen, and Dr. Piltch said she/he couldn’t remember that name. I asked why Larsen would have one of her/his business cards, and she/he explained that she/he does evaluations of Marines when they’re discharged, and gives them each a card so they can follow up if they need help. I asked Dr. Piltch if she/he was aware that Larsen had violent tendencies when she/he released her/him, and she/he explained that while she/he couldn’t comment on any particular case, and did not remember Larsen, if she/he had ap-proved someone for discharge, that person did not have any psychological problems. I thanked Dr. Piltch and said that we might need her/him to do a further evaluation at some point. I later gave Dr. Piltch’s name to the D.A.’s Office, and suggested that they use her/him to evaluate Larsen.

12. After my conversation with Dr. Piltch, I went home to get some sleep. Based on what the officers told me, there was no question that we had our shooter in custody, and that she/he had killed Jamie Frosh. But it was also clear to me that the suspect was going to try for some sort of insanity defense, and that I would need to dig further to see if it was legitimate. I didn’t jump to any conclusions one way or the other at that stage; it wasn’t until later in my investigation that my suspicions were confirmed.

13. The next day I continued my investigation. Officer Orin had obtained statements from the eyewitnesses, the substance of which is reflected in the Cofman and Graham affidavits. After reviewing their statements, I contacted Olivia Cooper to confirm that there would have been a job offer, and that Jamie Frosh had an uncle at Markalon. Cooper was able to confirm all of this information, which, together with the informa-

AFFIDAVIT OF DET. DAVEIGH F. WALLACE (cont.)


AFFIDAVIT OF DET. DAVEIGH F. WALLACE (cont.)

tion contained in the witness statements, provided a motive for Larsen to kill Frosh. It wasn’t the strongest motive I’d ever encountered, but people in desperate situations have been known to act violently.

14. I went to have a look at Frosh’s body. The medical examiner had already done a preliminary autopsy, which confirmed that the death was the result of four gunshot wounds — two to the head, two to the chest. I looked at the wounds myself. The entry wounds were closely grouped; the shots had been very accurate. It was clear to me that this was not the result of wild firing — the shooter had taken careful aim.

15. I then went to Sammlee Park to observe the crime scene. I drew a quick sketch of the area and relevant positions of the individuals at the time of the shooting. A copy of that sketch is attached to this affidavit. It is not to scale, but accurately reflects the angles and sight lines as closely as I could determine them from my observations and the information provided to me by the officers on the scene.

16. At first, the scene I observed at Sammlee Park did not appear to be consistent with a well-planned homi-cide. The area where the shooting occurred was too public, and it would have been too easy for a poten-tial victim to flee. But when I remembered that the shooting took place during the fireworks, it all made perfect sense. The fireworks would have covered up the sound of a gunshot, making it unlikely that the shooting would have been noticed for some time, during which the assailant could have fled. Additionally, Larsen had selected a location in front of the victim, such that if Larsen turned around, the light from the fireworks behind her/him would have made it hard to see the gun in her/his hand. It is possible that the victim wasn’t even looking at Larsen, but instead was watching the fireworks in the sky.

17. I obtained a search warrant for Larsen’s apartment and searched it for additional evidence. The apartment was dirty and in disarray. There was a large stack of pizza boxes from a local delivery company and a pile of unopened mail. I also found a pile of rejection letters from companies where Larsen had applied for jobs recently. I also found a collection of books, articles and pamphlets about Post-Traumatic Stress Disorder (PTSD), detailing symptoms. One of the pamphlets had a checklist of symptoms, and someone had writ-ten checkmarks in the margin next to most of them and a question mark next to “hallucinations”.

18. Larsen had a beat-up laptop computer, which I also inspected. The web browser’s history revealed that Larsen had visited a number of Web sites with information about PTSD, including one with an account of a soldier who had experienced hallucinations and had stabbed his girlfriend believing that she was an enemy soldier. The files on the laptop also included numerous drafts of a resume and a large number of cover letters to prospective employers.

19. Finally, I found a closet containing Larsen’s extensive collection of weapons. He had several hunting rifles, a collection of a dozen pistols and a variety of knives. Several of the pistols were pretty serious — large caliber semi-automatic pistols that could hold more than 15 rounds in the clip. All of the weapons were in good shape; it was obvious that someone had been taking care of them and had been cleaning them on a regular basis. After collecting all relevant evidence from the house, I concluded my investigation.

20. I am aware that Larsen has claimed that she/he was hallucinating when she/he shot Jamie Frosh. Based on the evidence I’ve seen, that defense appears to be manufactured. In my opinion, the shooting at Sammlee Park was both deliberate and premeditated.

SIGNED UNDER THE PAINS AND PENALTIES OF PERJURY THIS 9TH DAY OF JANUARY 2017.

DETECTIVE DAVEIGH F. WALLACE

Det. Daveigh F. Wallace


EXHIBIT A

SKETCH OF SAMMLEE PARK SHOOTING, JULY 4, 2016(not to scale)

3 0 M a s s a c h u s e t t s B a r a s s o c i a t i o n

Mock Trial Program 2009

Sketch of Sammlee Park Shooting, 7/4/08 (not to scale)

N

Fireworks

Fireworks

Fireworks xx xx

x x

x xx

x x

x x F G

xL x

xC xx

x

x = Bystanders

C = Cofman

L = Larsen

F = Frosh

G = Graham

Treeline

Finnegan

Picnic tables

Path to exit

Path of bullets

(approx. 30 ft.)

Ice cream

truck

exhibit a


AFFIDAVIT OF DR. DANA PILTCH

1. My name is Dana Piltch and I am a clinical psychologist at the Veteran’s Administration Hospital in Jamaica Plain, Massachusetts. I live at 32 Resnick Road in Wolffville, Massachusetts. When I was 18, I joined the Marines and served my country from 1969 until 1974, completing two tours of duty in Viet-nam. When I got back to the States, I used the G.I. Bill to attend the University of Maryland, where I ma-jored in psychology. I went on to receive my doctorate in Psychology from Georgetown University in 1984 and started working at Bethesda Naval Hospital. In 1992 to transferred to the V.A. Hospital in Jamaica Plain.

2. My work as a psychologist has been focused in the areas of combat stress and Post-Traumatic Stress Dis-order (PTSD). Combat stress, which should not be confused with PTSD, includes ranges of behavior that negatively affect a soldier’s fighting ability. Usually this stress is the direct result of battle conditions and length of time spent in them. Some of the symptoms of combat stress are fatigue, indecision, slow reac-tion and disconnection from reality. Treatment for the stress-fatigued soldier is usually rest, shelter, moral support and counseling, if needed. Usually, the soldier suffering from combat stress recovers and is able to return to fighting. In fact, 98 percent of these soldiers eventually return to their units.

3. Great strides have been made within all divisions of the U.S. Military to implement new procedures to prepare, screen and treat soldiers for the psychological effects of war prior to, during and after service. I am proud that my career has been focused, in part, on developing some of these procedures.

4. I first encountered Sazer Larsen on Friday, Jan. 29, 2016 while she/he was in the process of being dis-charged from the Marines. I met her/him as a part of the comprehensive exit screening process called a Physical Evaluation Board that is now the policy of the U.S. Marine Corps. As a part of the discharge process, every combat soldier undergoes a psychological screening to address issues of polytrauma, read-justment and psychosocial stressors, anxiety, depression and PTSD. Many people who are not in the field of mental health think that any emotional or psychological stress that a soldier experiences must be PTSD. This is simply not the case. It is true that about 15 percent of soldiers returning from Afghanistan will show symptoms of posttraumatic stress, but 85 percent — the vast majority — do not.

5. Prior to my discharge interview with Ms./Mr. Larsen, I reviewed her/his file and learned that she/he had been injured in an Oct. 29, 2015 roadside blast. Accordingly, I reviewed the counseling notes that were written during rehabilitation from her/his injuries. I noted that the counseling psychologist followed the Marine Combat Stress Therapy precepts referred to as “PROUD.” I created this treatment therapy in 1998. The acronym stands for:

Purpose: Treatment is intended to renew the soldier’s sense of duty while restoring her/his sense of pride in his/her country and mission.

Rapidity: Treatment must be as efficient as possible so that the soldier returns to combat readiness, called “restoration,” as quickly as possible.

Order: Treatment must be simple and logical. Understanding: Treating psychologist should have served in the field and “knows combat.” Discretion: Treatment is set apart from the close proximity of other soldiers to reduce the potential stigma

a soldier might feel by seeking help.

6. Following the October injury, Larsen went through four one-hour individual counseling sessions in which she/he was taught deep breathing techniques and other methods to reduce her/his combat stress. The counseling therapist noted that after using the PROUD precepts, Larsen was restored to full combat readi-ness.


7. At her/his discharge screening, I noted that Larsen appeared to be in good spirits, having fully recovered from all physical injuries incurred during her/his tour. I spent 15 minutes with her/him and gave her/him several different routine psychological screenings for someone with her/his profile. The tests are designed to assess the need for further PTSD screening. The first was “The Short Screening Scale for PTSD.” This is a seven-item screen for all trauma survivors. The cut-off is four “yes” responses. Larsen gave two “yes” responses, which did not meet the criteria for a more structured interview for PTSD. I also gave Larsen the “SPAN” test, which is a four-item, self-reported questionnaire that assesses trauma levels. A total score of five necessitates further screening for PTSD. Larsen scored a three. The last test that I gave Larsen was the “SPRINT” interview. This is an eight-question interview report, which is designed to measure social and functional impairment. Individuals with a score of 14 or higher are recommended for further screening. Larsen scored a four on this test, which indicated no need for further PTSD screening at that time.

8. In the remaining time, I proceeded to have a brief conversation with Larsen about her/his post-discharge plans. When asked if she/he had a job to return to, she/he said no. I noted a heavy sigh and worried look. When I asked follow-up questions about her/his job plans, she/he seemed a bit agitated. When I asked Larsen if she/he had family and friends to return to, she/he seemed more relaxed and smiled and said yes. I felt comfortable that Larsen had passed the psychological exit screen and was fully ready to return to civil-ian life.

9. Before we ended our session, I spoke briefly about follow-up actions that Larsen should take should she/he feel any symptoms of anxiety or stress after her/his return to civilian life. One of the recommendations that I make to all soldiers — and Larsen was no exception — is to look for a counseling group run by the Department of Veteran’s Affairs, regardless of symptoms, so that if any future issues do arise, there is a support network in place. I provided Larsen with information about the health care available through the V.A., including counseling through the community-based Veterans’ Centers. To the best of my knowledge, Larsen never took this step.

10. As a part of a military-wide initiative, all service members receive a 90-day post-discharge health screening. It is at this time that the military can re-address any health symptoms that were not apparent at the time of the discharge screening. It is my understanding that Larsen did not show up for hers/his.

11. I have reviewed all of the pertinent medical records of Ms./Mr. Larsen. Based on the information in those records, and based on my personal interviews with Mr./Ms. Larsen, she/he was not suffering from PTSD at the time of her/his discharge from the Marines.

12. I have also reviewed all the affidavits in this case, except for Dr. Carl(a) Li’s. Based on the information con-tained within, and the other knowledge I have of Larsen’s condition, I am of the opinion that Larsen was not suffering from PTSD at any time after her/his return to civilian life. Larsen’s frustration at not being able to find work immediately, and her/his depression at the loss of comradery and routine that the Ma-rines provided, may have caused some readjustment stress, but her/his symptoms were not severe enough to constitute PTSD.

13. I met once with Sazer Larsen following the incident on July 4, 2016 at the request of the commonwealth. During this meeting, she/he recounted the events of the night of July 4, 2016, including a description of a hallucination, just as reported in the Larsen affidavit. Since this was the first time that Larsen reported hav-

AFFIDAVIT OF DR. DANA PILTCH (cont.)


ing a hallucination, I am inclined to believe that it was not a true hallucination. Her/his recitation sounded overly rehearsed and eerily similar to a scene in a recent television show. It was also apparent that she/he could discuss the symptoms of Chronic Combat PTSD quite readily, as if she/he had been reading about the condition.

14. At no time prior to her/his discharge from the Marines did Larsen meet the 309.81 Posttraumatic Stress Disorder Diagnostic Criteria, which require that the patient meet each diagnostic criterion. These criteria are contained in a published manual and are generally relied upon in the field of mental health. Although Ms./Mr. Larsen sought counseling for combat stress, and showed signs of Categories A and D while recov-ering from the Oct. 29, 2015 physical injuries, the attending clinician did not note symptoms of Category B or C, nor did she diagnose Larsen’s condition as PTSD. Additionally, at discharge, Larsen did not screen for PTSD. Upon her/his return to Soltoffville, it is evident by her/his behavior that she/he did not meet category C on the 309.81 Posttraumatic Stress Disorder Diagnostic Criteria. Nor do I believe that on July 4, 2016 Larsen was suffering from re-experienced trauma, as described in Category B, despite her/his con-veniently detailed alleged hallucination. In short, at no time did Larsen’s symptoms meet all the necessary diagnostic criteria.

15. I am of the opinion that Ms./Mr. Larsen was not suffering from PTSD on July 4, 2016. My opinion is based on Larsen’s medical history, her/his actions leading up to the incident and my further interview with Ms./Mr. Larsen. There is no research data to support the claim that someone suffering from PTSD is a danger to others, nor is there reason to conclude that someone suffering from a PTSD hallucination would be inclined to act out violently. Therefore, even if Ms./Mr. Larsen were to have PTSD, PTSD would not have caused Ms./Mr. Larsen to shoot Jamie Frosh.


DR. DANA PILTCH

ADDENDUM

I have now read the affidavit of Carl(a) Li and my opinion has not changed.

SIGNED UNDER THE PAINS AND PENALTIES OF PERJURY THIS 20TH DAY OF JANUARY, 2017.

DR. DANA PILTCH

AFFIDAVIT OF DR. DANA PILTCH (cont.)

Dr. Dana Pil tch

Dr. Dana Pil tch


DANA PILTCH, PH.D.Clinical Psychologist

32 Resneck Road, Wolffville, MA 01038(508) 555-2525

Curriculum Vitae

PROFESSIONAL EXPERIENCE

1992–present Clinical Psychologist, Veterans’ Administration Hospital, Jamaica Plain, Ma. Section Chief and Senior Clinical Psychologist treating veterans suffering from service-related trauma. Duties include periodic temporary assignment to MCB Quantico. Expertise:

•CombatStress •Post-TraumaticStress1984–1992 Clinical Psychologist, National Naval Medical Center, Bethesda, Maryland Clinical Psychologist

treating sailors and marines suffering from service-related trauma. Duties included periodic tem-porary assignment to MCB Camp Lejeune and MCB Quantico.

1969–1974 Combat Supply Specialist, 1st Marine Division, 48th Support Battalion, United States Marine Corps; Two tours in Vietnam

EDUCATION

1984 Ph.D., Clinical Psychology, Georgetown University, Dissertation: Comparing Combat Stress and PTSD

1983–84 Psychology Intern, Walter Reed Army Medical Center.1980 M.A., Psychology, Georgetown University, Thesis research: Are Combat Stress Incidents Predictors

of Post-Traumatic Stress Syndrome?1978 B.A., Psychology, University of MarylandPUBLICATIONS

Books

Marine Combat Stress Therapy Precepts Manual. PROUD Program Manual (Department of Defense, 1998) The PTSD Workbook: Simple Effective Techniques for Overcoming Traumatic Stress Symptoms (New Harbinger Pub-

lications, 2002)Advances in the Treatment of Post-Traumatic Stress Disorder: Cognitive-Behavioral Perspectives (Springer Publishing

Co., 2010)Articles

Jones, E., Piltch, D., Vermaas, R.H., McCartney, H. and Wessely, S., “Flashbacks and Post-Traumatic Stress Dis-order: The Genesis of a 20th Century Diagnosis,” The British Journal of Psychiatry, Feb. 1, 2008; 182(2): 158–163.

Kozarić–Kovacić, D. and Piltch, D., “Prevalence of Psychotic Co-morbidity in Combat-related Post-Traumatic Stress Disorder,” Mil Med. 2005 March; 170(3):223–6.

Miller, K. and Piltch. D., “Delayed and Immediate Onset Post-Traumatic Stress Disorder. I. Differential Clinical Characteristics,” Social Psychiatry and Psychiatric Epidemiology, 1995 Jan; 26(1):1–7.

Piltch, D., “Lifetime Psychiatric Co-morbidity Rate in Non-help-seeking Patients with Combat-related Post-Trau-matic Stress Disorder,” The Journal of Affective Disorders, 2000 Jan-Mar; 57 (1-3):185–8.


Piltch,D., and Benbenishty, R., “The Role of Proximity, Immediacy and Expectancy in Frontline Treatment of Combat Stress Reaction,” American Journal of Psychiatry, 1986 May; 143(5):613-7.

Piltch, D. and Chervy, M.S., “The Effectiveness of Different Forms of Music as Interventions in the Treatment of Combat Stress,” American Journal of Psychiatry, 1998 Mar; 155(3):334–7.

Piltch, D., Waysman, M., Ginzburg, K., “PTSD Among American Former Prisoners of War and Soldiers with Combat Stress Reaction: A Longitudinal Study,” American Journal of Psychiatry, 1994 Apr; 151(4):554–9.

Piltch, D., Weisenberg, D.M., Schwarzwald, J. and Mikulincer, M., “Post-Traumatic Stress Disorder Among Front-line Soldiers with Combat Stress Reaction,” American Journal of Psychiatry, 1987; 144:448–454.

Robert, J.A., Ryan, J.J., Piltch, D., McFarland, R.S., Lips, O.J. and Rosenberg. S.J., “MCMI Characteristics of DSMIII Post-Traumatic Stress Disorder in Vietnam Veterans,” J Pers Assess. 1985 Jun; 49(3):226–30.

Solomon, Z., and Piltch, D., “Combat Stress Reactions, Post-Traumatic Stress Disorder and Somatic Complaints Among Marines,” Journal of Psychosomatic Research, 1987; 31(1):131–7.

Weisenberg, M., Solomon, Z., Schwarzwald, J. and Piltch, D., “Assessing the Severity of Post-Traumatic Stress Dis-order: Relation Between Dichotomous and Continuous Measures,” Journal of Consulting and Clinical Psychology, 1987 Jun; 55(3):432–4.

CONFERENCES

Smith College Conference on Combat Stress, 2008. Activities Committee co-chair.Annual Boston Trauma Conference, 1997–2008. Committee 2001–06, Conference chair 2004–05, Presenter

2000, 2003, 2005–06.Annual Convention International Society for Traumatic Stress Studies. 1996–2007. Committee 1999–2001, 2003,

2008, Presenter 1998, 2000, 2004.Keeping Faith With Those Who Serve: How Can We Provide the Healthcare Our Military and Veterans Need—

and Deserve? September 2007, Washington, D.C. panelist.Annual International Civilian and Military Combat Stress Conference, 1993–2008. Camp Pendleton, CA. 2007

Conference Co-chair (15th) Supporting Our War Fighters and Their Families, Terrorism, Combat Stress, Op-eration Iraqi Freedom Issues, PTSD. presenter 1993–2000, 2002, 2008.

First International Conference on Psycho-Social Consequences of War. Dubrovnik, Republic of Croatia, 26–30 April 1998

AFFILIATIONS

• AmericanAcademyofExpertsinTraumaticStress• AmericanPsychologicalAssociation• AssociationofTraumaticStressSpecialists,editor,Traumatic StressPoints, Journal of Traumatic Stress • DepartmentofV.A.NationalCenterforPTSD,AdvisoryBoardmember• InternationalSocietyforTraumaticStressStudies• InternationalSocietyforPsychotherapyResearch

TEACHING ACTIVITIES

• VisitingInstructor,UnitedStatesNavalWarCollege,Newport,RI• Lecturer,UnitedStatesNavalAcademy,Annapolis,MD• GuestLecturer,Dr.BesselVanderKolk’sclasses,BostonUniversityMedicalSchool,Boston,MA• GuestLecturer,UniversityofMassachusettsMedicalSchool,Worcester,MA• ProgramDeveloperandInstructor,RSTCourses(ReductionofStressonTransitiontoCivilianLife)forvet-

erans and their families, V.A. Hospital, Jamaica Plain, MA

Dana Piltch, Ph.D. Curriculum Vitae (cont.)


AFFIDAVIT OF SAZER LARSEN

1. My name is Sazer Larsen. I currently reside in Soltoffville, Massachusetts, just outside of Worcester. Al-though I am now only 25 years old, I feel like I have already lived two entire lifetimes.

2. I grew up in Martin’s Landing, Massachusetts, the next town over from Soltoffville, and attended the Pletner Cooperative Learning Center (PCLC), a private secondary school (grades 7–12) in Central Mas-sachusetts. I began PCLC in the eighth grade, when my parents felt that my allegedly outrageous behavior in the local middle school warranted some special attention. I had been wrongly accused of bullying some younger students. I pleaded with my parents not to send me to PCLC, which always had a “nerdy” reputa-tion, but they said I’d stay out of trouble, get a great education, get into a great college and go to a great law school or business school. I could not have cared less about any of that.

3. Even though I was still in the midst of my senior year, on the day I turned 18, I signed up with the Ma-rines. The recruiter showed me all of the brochures and told me exactly what I’d be getting myself into. All of my questions were answered, and I was absolutely sure I was making the right decision for me. That was exactly six years after the beginning of the “shock and awe” campaign against the tyrant, Saddam Hussein. The week after graduation I was off to boot camp at Parris Island.

4. I have to say that I was not disappointed with the military. It was just my luck that, while being trained at Camp Lejeune in surveillance training and other special ops, my battalion was deployed to Afghanistan. Our first deployment was in Helmand Province, and our job was primarily to secure the major towns. Although I am not permitted to say with a lot of specifics what my job was, I drove some pretty big rigs and can certainly say that for 10 months straight I was always in harm’s way and saw plenty of bodies get blown apart. You cannot imagine, without having experienced it, how horrible it is to hold a fellow Marine in your arms as they take their last breath.

5. My second deployment was in Kandahar which, at the time, was still a hotbed of the Taliban insurgency and one of the most dangerous places in the world. It was the evening of Oct. 29, 2015 that I will never be able to forget. I was looking forward to coming home because our deployment was almost over. I was traveling in a convoy from a supply depot northwest of our base back to camp. The lead vehicle struck an Improvised Explosive Device (IED) — a tool commonly used by the insurgents. Often IEDs are placed along highways as roadside bombs. A lot of good Marines and other military and civilian personnel are being killed or severely injured by these devices.

6. I saw the explosion and the fireball from its aftermath, but did not know until weeks later that the IED killed two of my close friends. After the explosion, we came under heavy fire from insurgents along the road. They didn’t want to blow up our convoy because they wanted the supplies we were hauling. All they wanted to do was kill us.

7. There must have been 100 of them, and there were only about 15 of us left. I recall vividly, that for the ensuing eternity, I was sure that I was going to die. As my buddies were getting shot up and butchered, several of us kept mowing them down as they kept coming, and coming, and coming. I found out later that an air strike was called. That neutralized them, at least the ones that did not run away. I understand that they got nine of us, and we got 65 of them. Nine is nine too many.

8. It turned out that I had been hit several times and lost quite a bit of blood. The medics are phenomenal — best in the world. I have to say that they treated me like gold. All the way through all of the surgeries, rehab and counseling, the U.S. Military did everything to take care of their own. I believe I was no exception.

9. Because my enlistment had ended, I was discharged when I got back to the States. I’ll never forget the day, Feb. 3, 2016 — not a day to celebrate. Actually, since Oct. 29, 2015, I have never been the same.


AFFIDAVIT OF SAZER LARSEN (cont.)10. From the time I was seven years old, I was a pretty good athlete. Even though PCLC had more than their

share of nerds, one thing I’ll say is that some of us really made its sports programs get some notice. I was the WTAG second team all-league shortstop in my junior and senior years, and earned an honorable men-tion in my senior year as the league’s best goalie in soccer. I probably don’t have to mention that none of the teams I ever played on at PCLC ever had a winning record. That was one of the main reasons I had wanted to stay in public school.

11. That’s where Jamie Frosh enters the picture. Jamie began as a seventh grader the same year I arrived at PCLC. If you ever need to see a picture of a typical PCLC student, look at a picture of Jamie. He was always giving me a hard time because I was always more interested in sports, dating and partying, and he was your typical “nerdworm”. This kid could sleep during class and still get an “A.” Academics were never easy for me and Jamie kept reminding me and reminding me. I kept telling him I wasn’t stupid. He always made fun of the fact that I was not a very good student, and always embarrassed me about it. I am sure that I told Jamie to “shut up” at least 100,000 times over the years. This was the most relentlessly bothersome and annoying kid you would ever meet, and he taunted me every chance he got. It is true that I told him, on more than a few occasions, that I was going to kill him someday, but that was only because he was so infuriating that I had to tell him that just to get him to leave me alone.

12. It is also true that one Sunday evening during my senior year, when I was hanging out in the DQ parking lot after target practice, I pointed my fingers in the shape of a pistol aimed at Jamie’s head. I told Jamie that my pistols were right in the car. Jamie got the message that I wanted him to stay away from me. My father, rest his soul, was a staunch believer in the right to bear arms. We had all sorts of weapons in our house. Most were for hunting, but some were for protection. As soon as I turned 21 and was on leave, I got my permit to carry a concealed weapon.

13. I had been shooting with my dad since I was 13 years old and became a pretty good shot. I also had been trained by the military to use the right weapons for the proper situation, from assault-type weapons for maximum damage, to smaller-style weapons for the more personal effect. When my dad passed away in 2014, my mom told me she was going to sell all the firearms. I told her at the funeral that I wanted them all and to save them for me, and that’s just what she did. After my discharge, she gave them all to me. I have safely secured them since that time.

14. Life after the Marines has not been easy. As I have been telling the doctors, since the firefight in Kandahar in October 2015, I have never been able to get a good night’s sleep. I keep seeing the faces of my buddies as they are about to die. I continually see myself dead after imagining that the insurgents had killed me. Whenever I wake up, I am scared to death that I will be back in Kandahar, on the road, just before the IED gets us. This fear makes me constantly concerned about my own safety, and I have kept my license to carry active just in case I need to protect myself. I carry a sidearm at times. I am constantly frightened by loud noises, and react impulsively when I don’t expect them. Even at times when I am awake, I can sometimes visualize that dangerous situation, and I become afraid. This constant fear and panic has made me terribly irritable, and I know it. Unforgivably, I have even snapped at my mother for no reason at all. I have no patience, and I know that it is because I am always tired. I hate the way I feel and the way it makes me behave, but there is nothing I can do about it. This “fear of fright” consumes me. My friends don’t call me anymore, and I think the people I socialize with only talk to me because sometimes I buy a round of drinks. Even when we are out, nobody really talks to me and when they do, I really don’t pay much atten-tion to what they are saying. I know I have developed a real temper and a short fuse.

15. I moved to Soltoffville to be near my mother, who still lives in Martin’s Landing, and to be closer to fa-miliar surroundings. I thought that would help me to adjust. I knew that some people from my school days were still in the area. I thought that it would be a more comfortable situation and I might be able to


get a good job. In fact, in late June I had been recommended by one of my dad’s college friends for a high profile, high paying technical position at Markalon Financial Services in Worcester. I had gotten through the second interview and had a meeting with Ms. Cooper, the CFO, which went extremely well. I was told, off the record, to expect an offer.

16. I clearly recall the events of the evening of July 4, 2016. I remember that several of us were going to have a light dinner at Schneiders, an upscale restaurant/pub. The restaurant manager, Alex Cofman, was a second baseman at PCLC in my senior year. We were a great double-play combination in high school and both thought Jamie Frosh was a jerk. Alex’s parents owned the restaurant, and Alex was going to the local fire-works. When she/he asked me to come along, I told her/him that the crowds and loud noises made me very nervous, but she/he persuaded me to go and said not to worry because all of us were going to be there. A little later during dinner, we were reminiscing about what might have happened to Jamie after his gradua-tion. We enjoyed speculating that either he was making millions of dollars in royalties for letting Best Buy use the name “Geek Squad,” or had died of an overdose while taking too many anti-annoying pills.

17. Then, in a coincidence of historic proportions, Jamie walked in! He said he was visiting his mother, was getting some take-out, and then was going to see the fireworks. He started to come toward me in his typi-cal annoying way. I told him to get away from me, and pointed my fingers at him as if I were firing a pistol. He just turned and walked away with Alex, who was going to get him his take-out, and with another kid from high school, Gill Graham. While they were leaving with their food, Jamie told Alex he’d look for her/him at the picnic tables. I also heard Jamie say something to them about Markalon, and that Jamie had told his uncle that it would be a mistake to offer me a job. I was stunned. I asked Alex if I had heard Jamie correctly. Alex said that I did not hear correctly, and that Jamie had told his uncle to do what he could to get me the job. I wasn’t sure what to think. I didn’t want to believe that Alex was covering for Jamie.

18. After we left Schneiders, we made a quick stop at my house. Schneiders was a little more expensive than I expected, so I needed to pick up some extra cash for later. While I was home, I also grabbed my Klagsbrun “St. Louis Special.” The Klagsbrun was one of my dad’s most favorite and reliable sidearms, known for its power and accuracy. Despite Alex’s assurances, I knew that I’d feel a lot more comfortable in the crowd, in the dark, if I had the Klagsbrun.

19. We then headed for Sammlee Park for the fireworks. Every year, Martin’s Landing hosts these fireworks, which attract hundreds of people from all over Central Massachusetts. When we got there, it was already pretty crowded, but after walking around for a while looking for a good viewing location, we found a place on the grass not too far from the front. It had gotten dark, but the fireworks had not yet begun.

20. All of a sudden, a hail of bullets came at us from out of the brush, and we had to dive and take cover For-tunately, nobody got hit. I saw dozens of Taliban insurgents trying to storm our position, and remember telling my friends not to worry because I had my weapon. I heard someone yell, “Hold your fire!” The insurgents were advancing towards us. I drew my weapon and fired four rounds. I knew that I had neutral-ized my target, and that we were safe.

21. I was then arrested and taken to the police station where I was told what had actually happened. I never meant to kill Jamie Frosh.

SIGNED UNDER THE PAINS AND PENALTIES OF PERJURY THIS 26TH DAY OF DECEMBER 2016.

SAZER LARSEN

AFFIDAVIT OF SAZER LARSEN (cont.)

Sazer Larsen


AFFIDAVIT OF ALEX COFMAN

1. My name is Alex Cofman. I am 24 years old and have lived in Martin’s Landing, Massachusetts all my life. I still live with my parents in the house where I grew up.

2. My folks own Schneiders in Martin’s Landing. Schneiders is a very popular restaurant in the area and all the local people know that it is the best place to eat in a 50-mile radius. My parents work day and night at the restaurant. I have worked there since I was about nine years old, when I started busing tables.

3. I went to high school at the Pletner Cooperative Learning Center (PCLC) in Soltoffville, which is a pri-vate junior/senior high school. After graduation, I went to Roger Williams College in Providence, Rhode Island, majored in hotel/restaurant management and came right back to work at the restaurant.

4. I loved going to PCLC because I was one of the most popular students in the school. Although the school has a reputation as a “nerd” school, once you got to the ninth grade, the school offered some team sports. I think they may even recruit kids for the high school, because a lot of kids don’t even start at PCLC until 9th or 10th grade. Most of those kids seem to be on the sports teams.

5. I played second base on the school’s team. It wasn’t a championship team by any means, but we sure had a lot of fun. I was the second baseman for all four years of high school. My freshman year, I really got to know Sazer Larsen, who was probably the best shortstop the team had in last 20 years. Sazer was a natural athlete who kept in great shape and encouraged the rest of us to take better care of ourselves.

6. When it came to physical training, Sazer was the most disciplined person I knew in high school. I always knew that she/he would join the military because she/he just loved guns and she/he loved America. She/he just fit the advertisement for “The few, the proud, the Marines.”

7. Although Sazer was a great athlete, she/he was not the best student. At PCLC, grades were important to most of the students, but Sazer really didn’t seem to care about academics. I don’t think that Sazer was less intelligent than anyone else; she/he just didn’t seem to care about going to college and was more focused on a future in the military. Some students at PCLC regularly teased Sazer about being a “dumb jock.”

8. Sazer’s main tormentor in high school was Jamie Frosh, who, along with his cohort, Gill Graham, con-stantly put Sazer down because Sazer was more interested in guns and the military life than in computer programming and science projects. People like Frosh and Graham could only see the jock side of Sazer and never got to know what a great person and American Sazer really is. Frosh and Graham were always real big talkers when putting Sazer down, but as soon as Sazer fought back, they ran away.

9. There was a situation while we were in high school: At the DQ one night, Frosh was really taunting Sazer, and Sazer pretended to shoot him in the head using her/his hand as a gun. Frosh couldn’t resist reporting the incident to PCLC school officials, and Sazer got in all kinds of trouble with the school and her/his parents. Frosh knew that he was in the wrong and he should have ended his tormenting of Sazer, but he never did stop the harassment.

10. I know that my family and I, and lots of other folks in Martin’s Landing, knew how brave Sazer was to join the military and then be almost immediately shipped half-way around the world to fight for our country. I know that a lot of bad things happened to Sazer while she/he was in the Marines because when she/he came home, she/he never quite seemed the same. Sazer, who had always been active and involved, now appeared to be withdrawn and would turn down my invitations to go to a ball game or to the beach, but never seemed to miss an opportunity to meet up with us for a beer. I don’t know how to explain it, but Sazer seemed different after she/he came back from Afghanistan.

11. Sazer came back from Afghanistan in February 2016 and moved back to this area to Soltoffville. She/he said that she/he wanted to be near family and friends and figured that she/he would have an easier time


AFFIDAVIT OF ALEX COFMAN (cont.)

finding a job. We started hanging out together a bit that spring and I know that Sazer was having a hard time adjusting to being home. It seemed like she/he didn’t know what to do with herself/himself now that she/he wasn’t given instructions by someone else all the time.

12. On July 4th, Sazer came by Schneiders for dinner. We were planning to close early that night as everyone goes to the fireworks at Sammlee Park on the 4th for the fireworks display. While talking to Sazer, we decided to go over to the fireworks together. We were just talking about some old friends from high school when Frosh and Graham walked into the restaurant.

13. I hadn’t been friends with Frosh since high school, but he did some work for us at the restaurant on our computer system so we did see each other now and then. I knew that Sazer never got along with Frosh, so I decided to keep Frosh and Graham away from Sazer. Even though I tried to keep them apart, Frosh could not help but go over and say something lame to Sazer, who just gave him the old “finger to head like a gun” move and told yelled at him to “get lost.”

14. I kind of hustled Frosh out of the restaurant before there was any trouble and then left for the fireworks with Sazer. On the way, Sazer asked me if Frosh had killed his chances of getting a job at Markalon and I told him “no.” We stopped at Sazer’s place so he could run in and get some money and then went to Sam-mlee Park. We eventually found a spot near the ice cream truck, and set up our chairs for the show. There were lots of people there and some kids were setting off their own firecrackers before the fireworks show began. I noticed that Sazer seemed a bit agitated, jumpy or almost anxious about being there. Every time a firecracker went off in the vicinity, she/he seemed to jump a bit and was constantly looking around, like someone was sneaking up on us. I became concerned, because she/he seemed uncomfortable and fright-ened by all the noise and the people around us. She/he didn’t look like she/he was having any fun.

15. I saw Frosh and his buddies and went over to talk to them for a minute. I told them to back off because Sazer was having a really hard time adjusting to being back home and didn’t need a continuation of the high school harassment.

16. I went back over and sat down with Sazer. I asked Sazer if she/he was okay, and if she/he wanted to stay for the show or just go home. She/he just looked at me with kind of a blank stare. I don’t think that she/he ever answered me. She/he was fidgeting the entire time, like she/he couldn’t sit still. Just a few moments later, with the fireworks booming, Sazer jumped out of his chair, turned around and started screaming something like, “They are going to get us again!” By the time I got up, Sazer had pulled a gun from some-where and started shooting straight ahead. I yelled at him to stop. Sazer just looked blankly ahead and kept firing until I tackled her/him and held her/him to the ground.

17. While I was holding her/him, I looked up and saw that Frosh was bleeding and lying on the ground next to where his chair was. He was the only one hit. I will never forget that sight.

18. I held Sazer down until the police arrived, but Sazer was not fighting to get up, or reacting in any way. Sazer looked at me, but I felt that she/he was looking right through me; there was no life behind those eyes.

19. I know that Sazer did not mean to kill anyone, as she/he was just not in her/his right mind. The person behind that blank stare was not Sazer Larsen, but some stranger inside of her/him.

SIGNED UNDER THE PAINS AND PENALTIES OF PERJURY THIS 21ST DAY OF NOVEMBER 2016.

ALEX COFMANAlex Cofman


AFFIDAVIT OF DR. CARLA/CARL LI

1. My name is Carla/Carl Li, Psy.D. I am a clinical psychologist and veteran of the U.S. Army. I live at 400 N. Main St., West Boylston, Massachusetts. I attended Boston University and graduated with a degree in psychology. I then joined the Army and served in Vietnam from 1968 to 1971. After seeing the terrible psychological trauma the war inflicted on many of my buddies, and the way that the Army denied it or was prejudiced against it, I decided to become a clinical psychologist. It seems that all the people in the Army wanted to do was declare everyone and anyone fit for combat and send them back into battle. I saw what happened, and decided I wanted to help people who suffered battle-related psychological trauma.

2. I got my doctorate in Clinical Psychology from Antioch University New England in Keene, New Hamp-shire. The first year involved intensive academics in theory and research relevant to psychopathology, per-sonality and basic psychotherapeutic intervention. Over the next three years, I developed more and more therapeutic skills. After 2,000 hours of internship and the completion of my dissertation, I finally got my Psy.D. degree. I then obtained my license and eventually started my own clinical practice in Southbor-ough, Massachusetts.

3. Southborough is a wealthy town and I started doing very well financially. I decided to take on a certain number of psychologically wounded soldiers pro bono because I felt the United States government wasn’t doing enough for them. I wound up with many patients with Post-Traumatic Stress Disorder (PTSD), many of whom the Armed Services had failed to diagnose correctly.

4. I first met Sazer Larsen in late April, 2016 at an informational seminar I sponsored for Afghanistan veter-ans, the purpose of which was to outline the services available to them, including my own. Ms./Mr. Larsen seemed angry because she/he had not been able to find a job. She/he asked a lot of questions about PTSD, and asked about where she/he could find web sites with information. She/he wanted to know if she/he had PTSD. I gave her/him my card and told her/him to feel free to give me a call.

5. Ms./Mr. Larsen consulted me after her/his arrest. I conducted an extensive background interview, which included, among other things, the Minnesota Multiphasic Personality Inventory (MMPI) and the Wechsler Adult Intelligence Scale (WAIS). The MMPI is a comprehensive, gold-standard personality test, designed to give a basis for psychological diagnoses. She/he received a relatively high score on the intelligence test, which surprised me in light of her/his academic history. The MMPI showed elevated scores for anger, anti-social behavior, low positive emotions, cynicism, anxiety and depression. It showed a slightly elevated score for dysfunctional negative emotions and social alienation. Mental health professionals typically use both of these tests and patient interviews for clinical diagnoses.

6. My interview revealed a person knowledgeable about PTSD. Ms./Mr.Larsen had been reading authorita-tive sources in the area. She/he presented the typical symptoms: not enjoying the things she/he used to enjoy, depression, inability to concentrate, insomnia, difficulty in making decisions, nightmares, hyper-arousal, headaches and decreased libido. She/he had withdrawn socially and had difficulty performing productive work. She/he tended to blame others for her/his own misfortunes, and projected her/his feelings of vulnerability onto others. In particular, she/he had a markedly elevated startle response.

7. I diagnosed Ms./Mr. Larsen with PTSD based on the 309.81 Posttraumatic Stress Disorder Diagnostic Criteria as published in the Diagnostic and Statistical Manual of Mental Disorders of the American Psy-chiatric Association, which is the gold standard for such diagnoses. I concluded that she/he met Criterion A based on the following manifestations. Ms./Mr. Larsen suffered significant combat trauma. She/he struck an Improvised Explosive Device, saw the explosion and saw a fireball. She/he came under heavy fire and realized the insurgents were trying to kill her/him. She/he was outnumbered 100 to 15. She/he saw her/his buddies getting “shot up and butchered,” and got shot herself/himself. Ms./Mr. Larsen met Criterion A because she/he had been exposed to a traumatic incident in which she/ he had experienced and


witnessed an event or events that involved actual and threatened death and serious injury to herself/himself and to others, and she/he said that her/his response to the trauma involved intense fear, helplessness and horror.

8. I also concluded that Ms./Mr. Larsen met Criterion B, in that Ms./Mr. Larsen reported persistently reex-periencing the traumatic events in recurrent and intrusive distressing recollections of those events, includ-ing images, thoughts and perceptions, as well as nightmares. Ms./Mr. Larsen reported no hallucinations or dissociative flashback episodes prior to the July 4, 2016 incident. PTSD of the serious degree that Ms./Mr. Larsen experienced certainly could cause these conditions.

9. I concluded that Ms./Mr. Larsen met Criterion C based on the following four factors: her/his inability to recall important aspects of the trauma; report of markedly diminished interest or participation in signifi-cant activities; report of feeling of detachment or estrangement from others; and repeating complaints of her friends about an inability to have loving feelings.

10. I concluded that Ms./Mr. Larsen met Criterion D based on her/his reports of difficulty falling or staying asleep, and my observations of her/his considerable irritability and outbursts of anger, difficulty concen-trating, hyper-vigilance and exaggerated startle response. These symptoms were particularly strong. Car-ried a concealed weapon is consistent with hyper-vigilance.

11. I also based my diagnosis on the fact that Ms./Mr. Larsen reported experiencing symptoms consistent with Criteria A through D for more than three months, with delayed onset, meaning that the onset of the symptoms was at least six months after the stressful event. I also reviewed Ms./Mr. Larsen’s affidavit, and found that it reinforced my diagnosis of PTSD.

12. I suggested that Ms./Mr. Larsen undergo treatment for PTSD. Among other things, I encouraged her/ him to acknowledge and accept her/his painful feelings and actions and forgive her/himself for being un-able to save her/his buddies.

13. I have reviewed the affidavit of Dr. Piltch and take issue with several of Dr. Piltch’s methods and conclu-sions. The screening tests that Dr. Piltch used in assessing Ms./Mr. Larsen’s condition are inadequate tests of the presence of PTSD. These tests take only two to four minutes to administer and do not accurately measure the Diagnostic Criteria for Post-Traumatic Stress Disorder of the American Psychiatric Associa-tion. Furthermore, members of the armed forces frequently are reluctant to give information to members of the military because of prejudice against psychological injuries and fears that it might affect their ca-reers.

14. Based on my examination of Ms./Mr. Larsen, my review of all fact affidavits and my extensive experience treating the disease, in my opinion PTSD caused the shooting incident on July 4. Ms./Mr. Larsen’s violent outburst was triggered by fireworks that exploded immediately before she/he started hallucinating. In my opinion, Ms./Mr. Larsen did not have the ability to form an intent to kill or harm an actual human being, or to understand that what she/he was doing was wrong or unlawful because she/he was suffering from PTSD. Ms./Mr. Larsen experienced a hallucination symptomatic of PTSD that caused her/him to believe she/he was lawfully defending the United States on a battlefield during a war. As a result, Ms./Mr. Larsen was not able to conform her/his conduct to the requirements of law at that time. Therefore, she/he is not guilty of any crime.


DR. CARLA/CARL LI

AFFIDAVIT OF DR. CARLA/CARL LI (cont.)

Dr. Carla/Carl Li


CARLA/CARL LI, PSY.D.

Clinical Psychologist

400 N. Main Street

West Boylston, MA

CURRICULUM VITAE

EDUCATION

1968: B.A., Psychology, Boston University.1977: Doctor of Psychology in Clinical Psychology, Antioch University, Keene, NH • 1976–77:Internship,MassachusettsGeneralHospital(1,000hourseachyear) •Dissertation:Effects of Military Stigma on Reporting Behavior and Symptomology on

Combat Veterans

MILITARY SERVICE

1968–71: Combat, Vietnam

PROFESSIONAL EXPERIENCE

1985–present: Private Practice, Southbough, Ma.1980–1985: Worcester Forensic Psychologists LLP, staff psychologist. Provided psychological evaluations for

juvenile and adult alleged offenders, including psychological factors influencing juvenile criminal acts, child abuse, evaluations of diminished capacity allegations and competency to stand trial evaluations.

1977–1980: Staff psychologist, Worcester Psychotherapy Associates.

PUBLICATIONS

Li, Carl(Carla), Mukherjee, A. and Jason, P.: “A Case of Legal Ignorance: The Collision between Post-Traumatic Stress Disorder as Affecting Combat Veterans and Legal Punishment,” International Journal of Legal Medicine (1998).Lokinendi, P. and Li, C.: “Post-Traumatic Stress Disorder as a Causative Agent in Socially Dysfunctional Behavior,” Clinical Psychology and Psychotherapy (2005).Li, Carl(Carla) and Learsi, Kostsky: “An Analysis of Military Screening Tests as an Assessment Instrument for Diagnosis of Post-Traumatic Stress Disorder,” American Journal of Psychiatry (2013).

MEMBERSHIPS

American Psychological Association

CONFERENCESRegular attendant at Annual Smith College Conference on Combat Stress (1998–2016) •Attendedbymorethan400veterans •Workshopsattended: Traumatic Brain Injury: Understanding the Invisible Wound Coming Home: Refuge or a New Combat Zone for Warfighters, their Partners and Families The Response of Schools of Social Work to the Return of Uniformed Service Members and

Their Families


Challenges of Depression, Substance Abuse and Suicide for Soldiers, Veterans and their Families Beyond Combat: Complexity of Mental Health Responses Reaching Out to Reservists Secondary Trauma and Caregivers

CONSULTANCIES1984–present: Federal Bureau of Investigation, Boston Field Division1983–2000: Worcester Police Department

EXPERT TESTIMONYTestified as an expert witness in more than 20 cases in United States District Court District of Massachusetts, Boston and Worcester Divisions; Trial Court of the Commonwealth of Massachusetts; Superior Court Depart-ment; and Trial Court of the Commonwealth of Massachusetts, Juvenile Court Department.

Carla/Carl Li, Psy.D. Curriculum Vitae (cont.)


309.81 Posttraumatic Stress DisorderDiagnostic criteria for 309.81 Posttraumatic Stress DisorderA. The person has been exposed to a traumatic event in which both of the following were present: 1. The person experienced, witnessed, or was confronted with an event or events that involved actual or

threatened death or serious injury, or a threat to the physical integrity of self or others. 2. The person’s response involved intense fear, helplessness, or horror. Note: In children, this may be ex-

pressed instead by disorganized or agitated behavior.B. The traumatic event is persistently reexperienced in one (or more) of the following ways: 1. Recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions.

Note: In young children, repetitive play may occur in which themes or aspects of the trauma are expressed. 2. Recurrent distressing dreams of the event. Note: In children, there may be frightening dreams without

recognizable content. 3. Acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illu-

sions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated). Note: In young children, trauma-specific reenactment may occur.

4. Intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event.

5. Physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event.

C. Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not pres-ent before the trauma), as indicated by three (or more) of the following:

1. Efforts to avoid thoughts, feelings or conversations associated with the trauma. 2. Efforts to avoid activities, places or people that arouse recollections of the trauma. 3. Inability to recall an important aspect of the trauma. 4. Markedly diminished interest or participation in significant activities. 5. Feeling of detachment or estrangement from others. 6. Restricted range of affect (e.g., unable to have loving feelings). 7. Sense of a foreshortened future (e.g., does not expect to have a career, marriage, children or a normal life

span).D. Persistent symptoms of increased arousal (not present before the trauma), as indicated by two (or more) of

the following: 1. Difficulty falling or staying asleep 2. Irritability or outbursts of anger 3. Difficulty concentrating 4. Hypervigilance 5. Exaggerated startle responseE. Duration of the disturbance (symptoms in Criteria B, C and D) is more than one month.F. The disturbance causes clinically significant distress or impairment in social, occupational or other important

areas of functioning. Specify if: Acute: if duration of symptoms is less than three months Chronic: if duration of symptoms is three months or moreSpecify if: With Delayed Onset: if onset of symptoms is at least 6 months after the stressor

Reprinted with permission from the Diagnostic and Statistical Manual of Mental Disorders, Text Revision, Fourth Edition, (Copyright 2000). American Psychiatric Association.


PART VII:Pertinent Information,

Statutory Case Law and Evidentiary Standards


MURDER AND MANSLAUGHTER

“Murder committed with deliberately premeditated malice aforethought, or with extreme atrocity or cruelty, or in the commission or attempted commission of a crime punishable with death or imprisonment for life, is murder in the first degree. Murder which does not appear to be in the first degree is murder in the second degree ...” Mass. G.L. ch. 265, § 1.

The intentional killing without justification or excuse is the unlawful killing with malice aforethought, and is murder. Commonwealth v. Adrey, 397 Mass. 751 (1986).

To convict a defendant of first degree murder (other than felony murder), the commonwealth must prove that the defendant unjustifiably killed another and that he or she intended to kill or do grievous bodily harm to the victim, or that he or she intended to do an act creating a plain and strong likelihood that victim’s death or grievous harm would follow; in addition, the commonwealth must prove that the defendant acted with premeditation or that he or she acted with extreme atrocity or cruelty. Commonwealth v. Puleio, 394 Mass. 101 (1985).

Deliberate premeditation is a distinct element of the crime of murder in the first degree, and is different from malice aforethought. Commonwealth v. Skinner, 408 Mass. 88 (1990).

“The word ‘deliberately’ in the expression ‘deliberately premeditated malice aforethought’ has reference to the prior formation of a purpose to kill rather than to any definite length of time. In view of the quickness with which the mind may act, the law cannot set any limit to the time. It may be a matter of days, hours or even seconds. It is not so much a matter of time as of logical sequence. First the deliberation and premeditation, then the resolution to kill, and lastly the killing in pursuance of the resolution; and all this may occur in a few seconds.” Commonwealth v. McLaughlin, 352 Mass. 218, 230, cert. denied, 398 U.S. 916 (1967), quoting Commonwealth v. Tucker, 189 Mass. 457, 494-95 (1905).

The Supreme Judicial Court has “delineated a number of factors which a jury can consider in deciding whether a murder was committed with extreme atrocity or cruelty. These include indifference to or taking pleasure in the victim’s suffering, consciousness and degree of suffering of the victim, extent of physical injuries, number of blows, manner and force with which delivered, instrument employed, and disproportion between the means needed to cause death and those employed.” Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983).

Second degree murder has been defined as the unlawful killing with malice aforethought, and malice, as used in this definition, includes every unlawful and unjustifiable motive and it may be implied from any deliberate or cruel act against another. Commonwealth v. Boyajian, 344 Mass. 44 (1962).

Murder in the second degree is the intentional killing without justification or, otherwise stated, killing with un-premeditated malice aforethought. Commonwealth v. Johnson, 372 Mass. 185 (1977).

The difference between manslaughter and murder is whether the act was committed with malice. Commonwealth v. Kane, 388 Mass. 128 (1983).


An involuntary manslaughter conviction may be based on either of two theories: “an unintentional killing result-ing from ‘a battery not amounting to a felony which the defendant knew or should have known endangered hu-man life,’” or “wanton and reckless conduct causing death.” Commonwealth v. Sanna, 424 Mass. 92, 105 (1997), quoting Commonwealth v. Pierce, 419 Mass. 28, 33 (1994).

The commonwealth is not required to prove both premeditated malice aforethought and extreme atrocity or cru-elty to constitute first degree murder. Commonwealth v. Strother, 375 Mass. 462 (1978).

Intent to kill is not a necessary element of murder in second degree. Only the unlawful killing with malice afore-thought need be proved, and it can be inferred from the use of a deadly weapon. Commonwealth v. Soffen, 377 Mass. 433 (1979).

MALICE AFORETHOUGHT

Malice aforethought includes any unexcused intent to kill, to do grievous bodily harm, or to do an act creating a plain and strong likelihood that death or grievous harm will follow, and may be inferred from intentional use of a deadly weapon. Commonwealth v. Lowe, 391 Mass. 97 (1984).

The definition of malice aforethought has three prongs: (1) specific intent to cause death; (2) specific intent to cause grievous bodily harm; and (3) if the charge of murder in first degree is based on theory of extreme atrocity or cruelty, in the circumstances known to the defendant, a reasonably prudent person would know that acts were very likely to cause death. Commonwealth v. Morgan, 422 Mass. 373 (1996).

“It is well established that to convict a defendant of murder in the first or second degree, a jury must find that the defendant formed the mens rea of malice aforethought. … Without malice, an unlawful killing can be no more than manslaughter.” Commonwealth v. Judge, 420 Mass. 433, 437 (1995), quoting Commonwealth v. Sires, 413 Mass. 292, 296 (1992).

“Deliberate premeditation requires specific intent - that the defendant act with the intent that his actions will cause death or grievous bodily harm and that he acted with sufficient time (even if fleeting) to reflect on that conse-quence.” Commonwealth v. Podlaski, 377 Mass. 339, 345 (1979) (to convict on theory of deliberate premeditation jury must find “a conscious and fixed purpose to kill continuing for a length of time”), quoting Commonwealth v. Satterfield, 362 Mass. 78, 82 (1972). “The third prong of malice, which by definition permits an inference of intent under an objective (a reasonably prudent person) standard based on the jury’s determination of the defen-dant’s subjective awareness of the circumstances, does not satisfy the requirement of specific intent for a conviction of murder in the first degree on a theory of deliberate premeditation.” Commonwealth v. Judge, 420 Mass. 433, 441-442 (1995).

Intent to inflict injury may be inferred from the condition of victim’s body and the disposal of evidence. Com-monwealth v. Nadworny, 396 Mass. 342 (1985).

If the killing is caused by the intentional use of a deadly weapon, there arises a presumption of malice aforethought, but the presumption may be rebutted by showing that the homicide was committed in self-defense and therefore excusable, or by the showing of circumstances which, though insufficient to excuse or justify act, would mitigate the crime from murder to manslaughter. Commonwealth v. Kendrick, 351 Mass. 203 (1966).


In the context of deliberately premeditated murder, malice aforethought means an intent to cause death. Com-monwealth v. Marshall, 434 Mass. 358 (2001).

“[O]nly the first prong of malice supports a deliberate premeditation conviction.” Commonwealth v. Jenks, 426 Mass. 582, 585 (1998). Consequently, when prosecuting a defendant pursuant to a deliberate premeditation theory, the commonwealth must prove beyond a reasonable doubt that the defendant acted with the intent to cause death. Commonwealth v. Judge, 420 Mass. 433, 441 (1995).

The third prong of malice is satisfied if the defendant was fully aware of the circumstances at the time of the crime charged creating a plain and strong likelihood of death resulting from his acts. Commonwealth v. Delaney, 34 Mass. App. Ct. 732 (1993).

Evidence that the defendant stabbed the victim because of hatred, jealousy or desire for revenge could constitute sufficient evidence so that the jury could infer malice. Commonwealth v. Campbell, 375 Mass. 308 (1978).

“Extreme atrocity and cruelty is the only theory of murder in the first degree to which the third prong of malice is relevant. Unlike the theories of felony-murder and deliberate premeditation — which respectively require the jury to consider whether the defendant formed an intent to commit a felony or whether the defendant formed an intent to kill and reflected on the consequence — the theory of extreme atrocity or cruelty does not have a require-ment of specific intent. Rather, the determination whether an unlawful killing was perpetrated with extreme atroc-ity or cruelty ‘focuses both on the defendant’s actions, in terms of the manner and means of inflicting death, and on the resulting effect on the victim, in terms of the extent of physical injury and the degree of suffering endured.’” Commonwealth v. Judge, 420 Mass. 433, 442 (1995), quoting Commonwealth v. Lacy, 371 Mass. 363, 367 (1976).

Extreme atrocity or cruelty requires the jury to consider the defendant’s actions and their effect on the victim, but does not require that the defendant be aware of how shocking his actions were or how much suffering his conduct caused the victim. Commonwealth v. Lawrence, 404 Mass. 378, 393-94 (1989).

The third prong of malice may be established by showing that the defendant intentionally used a deadly weapon, because a reasonably prudent person would have known that death was plain and strong likelihood following that act. Commonwealth v. Matos, 36 Mass. App. Ct. 958 (1994).

Malice necessary for murder is negated when the intention to use a dangerous weapon is formed in the heat of sudden affray or combat. Commonwealth v. Jones, 366 Mass. 805 (1975).

If malice is negated by reasonable provocation or sudden combat, the crime committed is voluntary manslaughter, not murder. Commonwealth v. Boucher, 403 Mass. 659 (1989).

INSANITY DEFENSE

“A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law.” Commonwealth v. McHoul, 352 Mass. 544, 546-47 (1967).


“An insanity defense may be raised properly by the admission of any evidence which, if believed, might create a reasonable doubt concerning the defendant’s criminal responsibility at the time of the [crime].” Commonwealth v. Laliberty, 373 Mass. 238, 246-47 (1977).

DIMINISHED CAPACITY

While there is no diminished capacity defense in Massachusetts, the defense may produce psychiatric evidence that would allow a jury to consider whether the defendant lacked the mental capacity to premeditate the killing. Commonwealth v. Gaboriault, 439 Mass. 84 (2003).

A defendant may offer evidence at trial as to whether the impairment of his or her mental processes precluded him or her from being able to deliberately premeditate. Commonwealth v. Gould, 380 Mass. 672 (1980).

A defendant may offer evidence at trial as to whether the impairment of his or her mental processes negated the defendant’s ability to act with extreme atrocity and cruelty. Commonwealth v. Baldwin, 426 Mass. 105 (1997).

While the first two prongs of malice have a specific intent requirement that may be negated by mental impairment, the third prong has a knowledge requirement that may also be negated by a defendant’s mental impairment. Com-monwealth v. Hardy, 426 Mass. 725 (1998).

BURDEN OF PROOF

“[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970).

When a defendant claims that he or she is not criminally responsible for his or her acts, the commonwealth bears the burden of proving beyond reasonable doubt that the defendant is sane. Commonwealth v. Kappler, 416 Mass. 574 (1993).

REASONABLE DOUBT

“Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case which after the entire comparison and consideration of all the evidence leaves the minds of the jurors in that con-dition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.” Victor v. Nebraska, 511 U.S. 1, 8 (1994). See also Commonwealth v. Pinkney, 419 Mass. 341, 344 (1995).

INFERENCES

A defendant may be held to presume the ordinary and probable consequences of his or her actions. Commonwealth v. Rivera, 50 Mass. App. Ct. 532 (2000).

“A person’s knowledge or intent is a matter of fact, which is often not susceptible of proof by direct evidence, so resort is frequently made to proof by inference from all the facts and circumstances developed at the trial.” Com-monwealth v. Casale, 381 Mass. 167, 173 (1980). “The inferences drawn by the jury need only be reasonable and possible and need not be necessary or inescapable.” Commonwealth v. Longo, 402 Mass. 482, 487 (1988).


APPENDIX A:Guidelines for Attorneys

The preparation phase of the tournament is intended to be a cooperative effort of students, teacher-coach and attorney-advisor. For such cooperation to occur, it is important for attorneys to avoid even the appearance of talk-ing down to students or stifling discussion through the use of complicated legalese.

Experience has shown that students and teachers alike develop a better understanding of the case and learn more from the experience if the attorney-advisors do not dominate the preparation phase of the tournament.

Attorneys and witnesses may neither contradict the “Stipulation of the Parties” or “Witness Affidavit” sheets for the case (see Part V, Trial Script), nor introduce any evidence that is not included in this packet of materials.

All witnesses (three for each side) must take the stand.The rules of evidence governing trial practice have been modified and simplified for the purposes of this mock

trial tournament. (See Part IV of materials packet.) Other more complex rules are not to be raised during the trial enactment.

The first session with a student team should be devoted to the following tasks:• Answeringthequestionsthatstudentshaveconcerninggeneraltrialpractices;• Explainingthereasonsforthesequenceofevents/proceduresfoundinatrial;• Listeningtothestudents’approachtotheassignedcase;• Discussinggeneralstrategiesaswellasraisingkeyquestionsregardingtheenactment;• Discussingtherealitiesofthecourtroomsituation,thatis,thateachjudgewillconductthetrialdifferently.

Students and teacher-coaches should be prepared to accept a judge’s ruling, whatever it is, with grace and courtesy;

• Asecondandsubsequentsessionwithstudents shouldcenteronthedevelopmentofproperquestioningtechniques by the student attorneys and sound testimony by the witnesses. Here an attorney can best serve as a constructive observer and critical teacher—listening, suggesting and demonstrating to the team;

• Thedecisionofthejudgeinanymocktrialenactmentdetermineswhichteamadvancesinthesingleelimi-nation tournament. This decision is to be based on the quality of the students’ performances. Judges will be instructed to award points based on total performance and to give no consideration to age or grade level (see the Performance Rating sheet); and

• Yearsoftournamentexperiencehaveshownthat,exceptforopeningthecourt,generalproceduralinstruc-tions, and rulings on objections, etc., it is best to keep judicial involvement/participation to a minimum during the trial enactment.


APPENDIX B:Guidelines for Tournament Judges

It is essential that the presiding justice carefully rate each team on a clean Performance Rating sheet, since the best numerical score determines the prevailing team.

To avoid confusion, it is strongly recommended that judges award a score to each student immediately after her/his performance, rather than waiting until the trial is concluded.

The script for the trial enactment is designed for completion within a two-hour time limit. The MBA has reserved a sufficient amount of time for the teams to be able to complete the trials. Teams that do not moni-tor their time and run longer than the two-hour allot-ted time will bear sole responsibility for the inability to complete the trial. An incomplete trial will not be rescheduled. It will be counted as a loss to both teams. Due to our agreement with the courts, we ask that you help move the trials along. We encourage you to give the students a “post-competition pep-talk,” but please keep your eye on the clock.• Attorneys have been asked to keep their presenta-

tions within the following guidelines: Opening statements 5 minutes each Direct examinations 7 minutes/witness Cross-examination 5 minutes/witness Redirect/

re-cross-examinations 3 questions/witness Closing statements 7 minutes each• Eachteamwillberesponsibleformonitoringitsown

and the other team’s time. Objections may be raised if time limits are exceeded. Ultimately, the judge is responsible for moving the trial along. In keeping with the atmosphere and decorum of a courtroom trial, timekeepers, stopwatches, and buzzers are not permitted during the enactment of the trial.

• Thepurposeofthetournamentistohearbothsides;therefore, motions as to jurisdiction, to split the trial, or to dismiss for failure to establish a prima facie case, etc., should be denied. A foundation must be laid for admissibility of expert witness testimony, but no voir dire shall be allowed.

• Thereshallbenosequestrationofwitnessesatanytime during the trial. If such a motion is made, the

motion must be denied.• The rulesof evidencegoverning trialpracticehave

been modified and simplified for the purpose of this Mock Trial Program. (See Part V, Simplified Rules of Evidence.) They are to govern the proceedings. Other more complex rules are not to be raised during the trial enactment.

• Attorneysandwitnessesmayneithercontradictthe“Stipulation of the Parties” or “Witness Affidavit” sheets for the case (see Part VI, Trial Script), nor in-troduce any evidence that is not included in this packet of materials. (See Part V, Simplified Rules of Evidence, Rules 701 and 702.)

• Anattorneyforateampresentingtheopeningstate-ment may not make the closing arguments in the case, and no attorney shall conduct more than two examinations. Tournament procedures permit only one opening and closing statement for each party. (See Part II, section 5, Attorney Performance.)

• Under contest rules, student-attorneys are allowedto use notes in presenting their cases; witnesses may not use notes in testifying. However, undue reliance on notes should be reflected in the score. (Refer to Appendix C, Matrix on Judging Criteria.)

• Witnessstatementsmaybeusedbyattorneysto“re-fresh” a witness’ memory and/or impeach the wit-ness’ testimony in court.

• Students’performancesalsoshouldbeevaluatedontheir use of objections. Refer to Appendix C, Matrix on Judging Criteria for more information.

• Points should be awarded based on total perfor-mance. No consideration should be given to age or grade level.

• No fractions of points are allowed (i.e., 7.5). Scor-ing is on a 10-point scale.

• The judge should give a verbal warning withoutpenalty points to students whose jackets are not but-toned, whose ties are not tied properly or who are otherwise not appropriately attired. If the matter is not remedied, there may be further sanction involv-ing the deduction of penalty points.


• Coaches have been instructed that theymay raiseobjections, but ONLY in the event of improper be-havior on the part of opposing teachers or specta-tors. Coaches must raise objections immediately at the time of the infraction. This rule does not allow coaches to make objections on behalf of their stu-dent-attorneys regarding the substance of the trial. It applies only to gross rule violations (such as coach-ing or signaling time) that occur during the course of the trial.

• At the sole discretionof thepresiding judge,BO-NUS POINTS (a total of up to five points) may be awarded to a team’s total score to recognize superior team performance, exceptionally thorough prepara-tion, a particularly professional and mature level of conduct, an especially sophisticated legal argument, well-made objections which are sustained and an outstanding ability to think and respond extempo-raneously.

• Atthesolediscretionofthepresidingjudge,PEN-ALTY POINTS (a total of up to 5 points) may be deducted from a team’s total score for unsportsman-like behavior. Such behavior might include, but would not be limited to, a team strategy of excessive objections, serious or repeated witness invention of facts designed to disrupt the presentation of the op-ponent’s case or to eat into their time allotment or any other behavior which, in the presiding judge’s opinion, is inconsistent with proper courtroom de-meanor and the spirit of this tournament. Penalty points may also be deducted from cross-examining attorneys who repeatedly ask questions that require the witness to invent facts or for other behavior of students and adults, which, in the opinion of the pre-siding judge, is inappropriate and deserving of punitive action.

• Incaseofanarithmetictie,thetiebreakerpointistobe awarded to one of the teams. This point should indicate which team, overall, gave the better perfor-mance, and it will determine who prevails in the trial enactment. (See explanation on bottom of the Perfor-mance Rating sheet).

• Thedecisionofthejudgeinahighschoolmocktrialenactment determines which team advances in the tournament and which team is eliminated. (See the Performance Rating sheet and criteria for awarding points.)

• Judgesareencouragedtocalltheopposingcoachesinto chambers at the conclusion of the trial enact-ment so that they may review the scoring sheet and check the scores for arithmetic accuracy. Coaches have been instructed to sign the scoring sheets at that time. They have also been instructed that there is no formal grievance procedure. The decision of the court is final. The score sheet should be given to the coach of the prevailing team (after you have explained your verdict).

• In the event that you encounter unsportsmanlikebehavior from a teacher, lawyer-coach or student, contact us at (617) 338-0570 or email [email protected].

• Experiencehas shown thatbetterunderstanding ispromoted among students and teachers, and more good will generated, if the presiding judge in a mock trial takes a few minutes following the enactment to explain her/his decisions regarding the case and the teams’ presentations. Two decisions should be ren-dered: the first on the merits of the legal case, and the second, on the teams’ performance. As previ-ously mentioned, we encourage you to spend a few moments explaining your decisions to the students, but we ask that you remember that courts expect the teams to be out of the building shortly after the two-hour time period is up.


APPENDIX C:Matrix on Judging Criteria

Attorney Performance: Opening Statement

Content•Articulatesathemeforthecase.•Stateswhatthewitnessanddocumentary

evidencewillshow.•Givesthecourtaclearpictureofthecase.•Ispersuasivewithoutlapsingintoargument.Presentation•Speaksclearlyandwithasolidcommandof

thelanguage.•Presentationisorganized.•Rarely,ifever,referstonotes.•Usesappropriatebodylanguageandvoice

inflections.•Observespropercourtroometiquette.

Content•Thecourtcanextractthethemeforthecase.•Statessomeofwhatthewitnessanddocu-

mentaryevidencewillshow.•Givesthecourtacorrectbutincomplete

pictureofthecase.•Ispersuasiveyetincorporatessomethreadof

argument.Presentation•Speakssomewhatclearlyandwithagood

commandofthelanguage.•Presentationhassomeorganization.•Usesnotes,butdoesnotpresentasifmemo-

rized.•Usessomeappropriatebodylanguageand

voiceinflections.•Somewhatobservespropercourtroom

etiquette.

Content•DoesNOTstateathemeforthecase.•Stateslittleornoneofwhatthewitnessand

documentaryevidencewillshow.•DoesNOTgivesthecourtanypictureorgives

aconfusing/contradictorypictureofthecase.•Usesprimarilyargument.Presentation•DoesNOTspeakclearlyandhaslittlecom-

mandofthelanguage.•Presentationisnotorganized.•Over-dependentonnotes.•Useslittle,ifany,appropriatebodylanguage

andvoiceinflections.•DoesNOTobservepropercourtroometiquette.

9–10 Points 5–8 Points 1–4 Points

Content•Revisitsthetheme.•Usesrelevantlawtosupporttheargument.•Citesrelevanttestimonialanddocumentary

evidencethatwasenteredduringthetrial.•Doesnotcitetestimonialanddocumentary

evidencethatwasNOTenteredinattrial.•Usespersuasivelanguage.•Clearlystateswhatisrequestedofthecourt.Presentation•Speaksclearlyandwithasolidcommandof

thelanguage.•Referstonotesonlywhencitingtestimonial

evidenceandlawpresentedattrial,otherwisedoesnotreadfromnotes.

•Speakswithfluencyandnotasifreiteratingamemorizedspeech.

•Usesappropriatebodylanguageandvoiceinflection.

•Alwaysobservespropercourtroometiquette.

Content•Givessomereferencetothetheme.•Usessomerelevantlawtosupporttheargu-

ment.•Citessomerelevanttestimonialanddocumen-

taryevidencethatwasenteredduringthetrial.

•Citeslittle,ifany,testimonialordocumentaryevidencethatwasNOTenteredinattrial.

•Usessomewhatpersuasivelanguage.•Somewhat,butnotemphatically,stateswhat

isrequestedofthecourt.Presentation•Speakssomewhatclearlyandwithsomecom-

mandofthelanguage.•Referstonoteswhenpresentingtestimo-

nialevidenceandlawpresentedattrialandshowsunduerelianceonnotes.

•Speakssomewhatcomfortablyandseldom,ifever,lapsesintoreiteratingamemorizedspeech.

•Usessomeappropriatebodylanguageandvoiceinflections.

•Mostalwaysobservespropercourtroometiquette.

Content•Giveslittle,ifany,referencetothetheme.•Useslittle,ifany,relevantlawtosupportthe

argument.•Citeslittle,ifany,relevanttestimonialordocu-

mentaryevidencethatwasenteredduringthetrialand/orcitesasubstantialamountoftestimonialordocumentaryevidencethatwasNOTenteredinattrial.

•DoesNOTusepersuasivelanguage.•DoesNOTstatewhatisrequestedofthe

court.Presentation•DoesNOTspeakclearlyorcomfortablyand

haslittle,ifany,commandofthelanguage.•Primarilyreadsfromnotesorisclearlyreiter-

atingamemorizedpre-writtenspeech.•Useslittle,ifany,appropriatebodylanguage

andvoiceinflections.•DoesNOTobservepropercourtroometi-

quette.

Attorney Performance: Closing Argument 9–10 Points 5–8 Points 1–4 Points


Attorney Performance: Direct Examination 9–10 Points 5–8 Points 1–4 PointsContent•Allquestionsarerelevant.•Askswho,what,when,why,whereandhowques-

tions.•Thequestionsareorganizedtoclearlytellthewit-

ness’story.•Necessarydocumentaryevidenceisentered

throughtheappropriatewitnessandtheproperfoundationislaidwhentheevidenceisentered.

•Whenappropriate,thepropergroundworkislaidforanexpertwitnessandtheexpertwitness’testimonyisfullydeveloped.

•Makesandrespondstoobjectionsdemonstrat-ingknowledgeoftheRulesofEvidence.

•Showsknowledgeofcasetheoryandteamstrategy.

Presentation•Speaksclearlyandwithasolidcommandofthe

language.•Asksnoleadingquestionsexceptforbackground

questions.•Lawyer(s)is/areabletoeffectivelyrebutobjec-

tionsfromopposingsidewithoutlosingcomposure.•Rarelyreferstonotes.•Thewitnessisthefocusoftheexaminationatall

times,notthelawyer.•Usesappropriatebodylanguageandvoiceinflec-

tions.•Observespropercourtroometiquette.

Content•Mostquestionsarerelevant.•Mostlyaskswho,what,when,why,whereand

howquestions.•Questionsareorganizedtosomewhattellthe

witness’story.•Mostnecessarydocumentaryevidenceis

attemptedtobeentered,butproperfoundationsmaynotbelaideverytime.

•Whenappropriate,thepropergroundworkislaidfortheanexpertwitnessbuttheexpertwitnesstestimonyisNOTfullydeveloped.

Presentation•Speakssomewhatclearlyandwithsomecom-

mandofthelanguage.•Asksfew,ifany,leadingquestionsexceptfor

backgroundquestions.•Lawyer(s)is/areabletoeffectivelyrebutmost

objectionsfromopposingsideandloseslittlecomposure.

•Usesnotesbutdoesnotreadverbatimfromthemrepeatedly.

•Thewitnessisthefocusoftheexaminationatmosttimes.


•Observespropercourtroometiquette.

Content•Few,ifany,questionsarerelevant.•DoesNOTaskwho,what,when,why,where

andhowquestions.•ThequestionsareNOTorganizedtosome-

whattellthewitness’story.•Little,ifany,necessarydocumentaryevi-

denceisenteredand/orproperfoundationsareNOTlaidwhenevidenceisattemptedtobeentered.

•Whenappropriate,thepropergroundworkisNOTlaidforanexpertwitness.

Presentation•DoesNOTspeakclearlyandhaslittlecom-

mandofthelanguage.•Asksmanyleadingquestions.•Lawyer(s)is/areNOTabletorebutmost

objectionsfromoppositionand/orlosescomposure.

•Usesnotesandreadsverbatimfromthemquestionafterquestion.

•ThewitnessisNOTthefocusoftheexamina-tion.

•Useslittle,ifany,appropriatebodylanguageandvoiceinflections.

•DoesNOTobservepropercourtroometiquette.

Content•Allquestionsarepreciselyaimedatattackingthewit-

ness’testimonyortheotherside’scase.•Appropriatelyusesaffidavittoimpeachthewitness

whennecessary.•Makesappropriateuseofevidencewhennecessary.•Makesandrespondstoobjectionsdemonstrating

knowledgeoftheRulesofEvidence.•Showsknowledgeofcasetheoryandteamstrat-

egy.Presentation•Speaksclearlyandwithasolidcommandofthelan-

guage.•Examinationisconductedusingpredominantlyleading

questions.•Questionsarepointedtoelicityesornoanswersand

donesowithoutunduerepetitionofthewordingofthequestions.

•Lawyerquicklyandappropriatelyreactstothewitness’answers,especiallyifthewitnessisbeingevasive.

•Lawyer(s)is/areabletoeffectivelyrebutobjectionsfromopposingside.

•Usesappropriatebodylanguageandvoiceinflections.•Alwaysobservespropercourtroometiquette.

Content•Mostquestionsareaimedatattackingthe

witness’testimonyortheotherside’scase.•Usesaffidavittoimpeachthewitness

whennecessary.•Makesuseofevidencewhennecessary.Presentation•Speakssomewhatclearlyandwithsome

commandofthelanguage.•Examinationisconductedusingmostly

leadingquestions.•Questionsarepointedtoelicityesorno

answers,butthereissomerepetitionofthewordingofthequestions.

•Lawyersometimesandtoalesserdegreereactstothewitness’answers,especiallyifthewitnessisbeingevasive.

•Lawyer(s)is/aresomewhatabletorebutobjectionsfromopposingside.


•Mostalwaysobservespropercourtroometiquette.

Content•Few,ifany,questionsareaimedatattacking

thewitness’testimonyortheotherside’scase.

•DoesNOTusetheaffidavittoimpeachthewitnesswhennecessary.

•Makeslittle,ifany,useofevidencewhennecessary.

Presentation•DoesNOTspeakclearlyandhaslittlecom-

mandofthelanguage.•ExaminationisNOTconductedusingleading

questions.•QuestionsareNOTpointedtoelicityesorno

answers.•LawyerdoesNOTreactordoesNOTreact

appropriatelytothewitness’answers,especiallyifwitnessisevasive.

•Lawyer(s)is/areNOTabletorebutobjec-tionsfromopposingside.

•DoesNOTuseappropriatebodylanguageandvoiceinflections.

•DoesNOTobservepropercourtroometiquette.

Attorney Performance: Cross-Examination 9–10 Points 5–8 Points 1–4 Points


Witness Performance

9–10 Points 5–8 Points 1–4 Points

•Totalknowledgeandcommandofcaseandcharacter(directANDcross).

•Portrayspartinconvincingandcompellingway(directANDcross).

•Abletorespondtoquestionseffectivelyoncross-examination.

•Knowsaffidavitextremelywell.

•Alwaysgivesspecificresponsestoquestions.

•Isnotargumentativeunlessabsolutelyneces-saryandonlytotheextentneededtoclarifyaquestion.

•Alwayscomplianttojudge’sinstructions.

•Alwaysprojectsanswerstojudge.

•Responsetoquestionsisalwaysaudible.

•Goodknowledgeandcommandofcharacter(directANDcross).

•Someabilitytoportraythepart(directANDcross).

•Respondslesssecurelyoncross-examination.

•Goodknowledgeofaffidavit.

•Sometimesgivesspecificresponsestoques-tions.

•Somewhatargumentativewhennotneces-sary.

•Sometimescomplianttojudge’sinstructions.

•Sometimesprojectsanswerstojudge.

•Responsetoquestionsissometimesaudible.

•Verylittleknowledgeandcommandofchar-acter(directANDcross).

•Littleabilitytoportraythepart(directANDcross).

•Poorcross-examinationresponses.

•Poorknowledgeofaffidavit.

•Rarelygivesspecificresponsestoquestions.

•Overlyargumentative.

•Rarelycomplianttojudge’sinstructions.

•Rarelyprojectsanswerstojudge.

•Responsetoquestionsisrarelyaudible.

•Requiresrehabilitation.


APPENDIX D:MBA Mock Trial Website Log-in Instructions

1. Log onto the Mock Trial website by typing “http://MockTrial.MassBar.org” into your browser’s address field. Hit the “Enter” key.

2. In the upper right-hand corner, click the “Mock Trial Login” link.3. In the form field labeled “ID”, enter your 6 digit Mock Trial Team Login ID, issued by Mock Trial Central

at orientation.4. Enter your password in the “PASSWORD” field. This will be a randomly generated non-sense word, issued

by Mock Trial Central at orientation.5. Click the “Login” button or hit the enter key to submit the form.6. The “Mock Trial Login” link in the upper right hand corner will now read “Welcome” school next to it.

For example, “Welcome, Lunenburg High School Mock Trial Team.” Now you will be able to access your team’s schedule.

If you do not see the “Welcome…” in the upper right hand corner, or if an error message appears in red below the login box, repeat steps 3 through 5.

7. In order to log out of your school’s page, click the “LOG OUT” button below the “Welcome...” label in the upper right corner of the screen.

The ID and PASSWORD information will be given out at the Mock Trial orientations.


2017 MOCK TRIAL TOURNAMENT PERFORMANCE RATING SHEET

PHILOSOPHY OF THE MOCK TRIAL TOURNAMENTWhile the MBA’s Mock Trial Committee wishes this trial enactment to be as realistic an experience as possible, please

remember that this is for the educational benefit of the students. All participants are urged to compete in a spirit of fair play. Winners must call in their scores to (617) 338-0570 or email to [email protected] by 9 a.m. the next morning.

Students are to be judged upon their knowledge of procedure, the law and the facts of the case, in addition to the overall quality of their presentation. For each of the performance categories listed below, we ask that you rate each individual on a scale of 1 to 10. No fractions of points are allowed. Students are to be judged on their total performance. No consideration should be given to age or grade level. Note: All categories must be judged except discretionary points. Bonus or penalty points are to be awarded solely at the judge’s discretion.

HIGHEST SCORE = 10 LOWEST SCORE = 1

PROSECUTION/PLAINTIFF

ATTORNEY PERFORMANCE (TIME LIMITS)Opening statement (5 min.) ______________________Direct of Gill Graham (7 min.) ___________________Direct of Det. Daveigh F. Wallace (7 min.) __________Direct of Dr. Dana Piltch (7 min.) _________________Cross of Sazer Larsen (5 min.) ____________________Cross of Alex Cofman (5 min.) ___________________Cross of Dr. Carla/Carl Li (5 min.) ________________Closing argument (7 min.) _______________________

WITNESS PERFORMANCEGill Graham _________________________________Det. Daveigh F. Wallace ________________________Dr. Dana Piltch _______________________________

DISCRETIONARY POINTSBonus points (if applicable) ______________________Penalty points (if applicable) ______________________

TOTAL POINTS _____________________________

TIE BREAKER* (if applicable) ___________________

******************************************************************************************************************************TIE BREAKER—If, and only if, there is a tie resulting from the addition of the points, the judge must award a special point based on overall impression to determine the winner of the competition.

____________________________________________ _________________________________________Judge’s signature Date________________________________________ _________________________________________Prosecution/plaintiff coach’s signature** Defense coach’s signature****Please review the performance rating sheet carefully at the conclusion of the trial enactment. Your signature indi-cates that you have reviewed it and concur that it is arithmetically accurate. Failure or refusal to sign this sheet will not preserve a right to appeal the decision of the court, which is final.

DEFENSE

ATTORNEY PERFORMANCE (TIME LIMITS)Opening statement (5 min.) ______________________Cross of Gill Graham (5 min.) ____________________Cross of Det. Daveigh F. Wallace (5 min.) ___________Cross of Dr. Dana Piltch (5 min.) _________________Direct of Sazer Larsen (7 min.) ___________________Direct of Alex Cofman (7 min.) ___________________Direct of Dr. Carla/Carl Li (7 min.) _______________Closing argument (7 min.) _______________________

WITNESS PERFORMANCESazer Larsen __________________________________Alex Cofman _________________________________Dr. Carla/Carl Li ______________________________

DISCRETIONARY POINTSBonus points (if applicable) ______________________Penalty points (if applicable) ______________________

TOTAL POINTS _____________________________

TIE BREAKER* (if applicable) ___________________


2017 MOCK TRIAL STUDENT ROSTERSPrior to each trial, coaches for the two competing teams should fill in the roster below with the names of the students

who will be playing the roles for that particular trial. Only one performance rating sheet should be submitted to the judge. At the conclusion of the trial, the presiding judge will give the original performance rating sheet to the prevailing team. (Be sure to ask them for it if they do not give it to you). Upon request, the judge may allow the opposing team to copy the score sheet. The prevailing team’s coach must call in the score to the Mock Trial Central at (617) 338-0570 by 9 a.m. of the day following the trial. Messages may be left after business hours. Your cooperation is needed so that we can keep the scores on the web page up to date.

PLAINTIFF/PROSECUTIONOpening statement _________________________________________

Direct of Gill Graham _________________________________________

Direct of Det. Daveigh F. Wallace _________________________________________

Direct of Dr. Dana Piltch _________________________________________

Cross of Sazer Larsen _________________________________________

Cross of Alex Cofman _________________________________________

Cross of Dr. Carla/Carl Li _________________________________________

Closing argument _________________________________________

Witness — Gill Graham _________________________________________

Witness — Det. Daveigh F. Wallace _________________________________________

Witness — Dr. Dana Piltch _________________________________________

DEFENSEOpening statement _________________________________________

Cross of Gill Graham _________________________________________

Cross of Det. Daveigh F. Wallace _________________________________________

Cross of Dr. Dana Piltch _________________________________________

Direct of Sazer Larsen _________________________________________

Direct of Alex Cofman _________________________________________

Direct of Dr. Carla/Carl Li _________________________________________

Closing argument _________________________________________

Witness — Sazer Larsen _________________________________________

Witness — Alex Cofman _________________________________________

Witness — Dr. Carla/Carl Li _________________________________________

Rule 5.2: The attorney presenting the opening statement may not make the closing arguments in the case. No attorney may conduct more than one direct examination. No attorney may conduct more than one cross-examination. Only one attorney from each side may conduct the examination of an individual witness, including re-examinations. Violation of this rule shall result in the offending player receiving a score from the judge but the team shall also receive a deduction of 10 PENALTY POINTS.