bar mock trial competition 2017/18 … · bar mock trial competition 2017/18 student role guide:...

Bar Mock TrialCompetition2017/18Student Role Guide: BarristerEngland, Wales and Northern Ireland

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Bar Mock Trials CompetitionStudent Role Guide: Barrister

© Citizenship Foundation 2017 • Charity Reg. No. 801360

Introduction

In any trial, two students from your team will play the role of prosecution or defence barristers. The workmust be shared equally and each barrister should deliver:

A speech (opening or closing);

An examination-in-chief of a friendly witness;

A cross-examination of an opposition witness.

Role of the ProsecutionThe Prosecution represents the Crown and presents the case on their behalf. It is their job to ensure thatthe correct verdict is reached.

Burden of Proof

It is for the prosecution to prove the defendant’s guilt to the jury. The defendant does not have to provehis/her innocence.

Beyond Reasonable Doubt

This is the standard of proof required by the prosecution and it is a very high one. This means that noother logical explanation can be derived from the facts except that the defendant committed the crime.The prosecution must prove to the jury the defendant’s guilt so that they cannot reach any verdict otherthan guilty. If they are not completely sure, the jury must acquit the defendant.

Role of the DefenceThe Defence represents the defendant and must stick to their version of events. Their job is toundermine the prosecution’s case and create reasonable doubt in the minds of the jury as to thedefendant’s guilt.

Rules for the competition

The barristers must share the work equally between them;

No objections can be made;

There are no re-examinations of witnesses;

Never give your opinion;

Do not read from scripts or speak from a memorised script;

Stick within the time limits;

Do not introduce new evidence.

Court Etiquette

The following information is taken from ‘Advocacy in Court, A Beginner’s Guide’ by Keith Evans.

Dress

Wear dark colours;

Hair must be neat and tidy;

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Keep jewellery to a minimum;

Wigs, if worn, should cover hair to the forehead.

Posture

Stand up straight when you address the court;

Never put your hands in your pockets;

Try not to fiddle with your pen or notes;

Never interrupt during an oath taking.

Language

Always refer to the judge as ‘Your Honour’ or ‘His/Her Honour’ eg ‘Your Honour, I don’t know if YourHonour has been given a copy of the sketch of the road at the time of the incident?’;

The term ‘my learned friend’ (pronounced ‘learn-ed’) is a courteous way to address other barristers. Itjust means qualified as a lawyer.

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Preparing your speeches and questionsStatement AnalysisWhen you are reading the statements:

Annotate the strengths, weaknesses and contradictions (where people’s stories don’t match);

Write down the key points in the table below;

Remember that only the underlined portions of the statements can be disputed;

You can only refer to contradictions in statements when you have heard from both witnesses. Forexample if there is a contradiction between prosecution witness 1 and the accused you can onlyaddress the accused on this after you have heard from the other witness.

Name Pros/Def StrengthsWeaknesses/Contradictions

Eg. Mr Clyde DefHad clear view of attacker from hisbedroom window.

Some inconsistencies, eg time hesaid the attack took place is wrong.

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How to write an opening speechAims

To give the jury a basic outline of the case;

To set the scene for the court.

What to include

An explanation of the burden of proof;

A brief outline of the facts of the case;

An explanation of the issues in the case – the issues in dispute.

Structuring your opening speech

Only give the basic facts of the case, not too much detail;

Make sure you get the gender of the witnesses right! Check this before the trial starts;

Write your speech as notes so that you don’t just read it out (don’t forget you lose marks if you use ascript);

Use large text, bullet points and sub-headings in your notes.

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Opening Speech - An ExampleMembers of the jury, I appear for the prosecution in this trial and my learned friend Miss Jones appearsfor the defendant Mr Fearon. I would like to take this opportunity to explain to you what the prosecutionclaims this case is all about.

On 14th September last year, at about 6.30 in the morning, a number of police officers attended thedefendant’s address in order to look for illegal drugs. The police officers forced entry to the defendant’sone-bedroom flat and while they didn’t find the defendant, what they did find forms the basis of thisprosecution.

In his sitting room there were three cling film wraps of a hard yellow substance. These items were laterforensically examined and found to contain cocaine. In addition, a small amount of cannabis was found inthe defendant’s bedroom. A number of other items were also seized, including two sets of digital scales,four mobile phones and two laptops. The defendant went to Kennington police station later that eveningwhere he was arrested and then interviewed in the presence of his solicitor.

In his interview, the defendant said that he lived at the flat alone, but claimed that he did not spendmuch time there as he did not feel safe at that address, having been burgled earlier that year. He alsosaid that he had seen men with guns outside his front door a few weeks before.

He said that the last time he had been there was four days before and that he had been staying with hisfather in Wembley. He said that he had left the front door locked but that his spare key had been missingsince the burglary. He denied any knowledge of the items seized from his flat, and suggested thatperhaps someone put them there in order to set him up.

When asked if he had ever been arrested for Class A drugs or cannabis, he said no. However, during thiscase you will hear that the defendant does have previous convictions for drug-related offences.

Mr Fearon is charged with possessing a controlled drug under section 5(3) and intending to supply thatdrug to another under section 4(1) of the Misuse of Drugs Act 1971.

There is no doubt that the drugs and associated paraphernalia were in Mr Fearon’s flat. What you need todecide is whether you believe that the drugs belonged to the defendant, and that he intended to sellthem to other people or whether the drugs were placed in his flat by another person.

I would like to take this opportunity to remind you of the burden of proof. The Crown brings this caseagainst the defendant, and it is for the Crown to prove it. The defendant need not prove anything.Furthermore, the Crown must satisfy you so that you are sure that Mr Fearon is guilty, nothing less thanbeing sure will suffice. So if you merely suspect or have a hunch that the defendant is guilty but are notsure, then you must return verdicts of not guilty. On the other hand, if you are completely sure that he hascommitted the alleged offences, then you must find him guilty.

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How to write a closing speechAims

To persuade the jury to find in favour of your verdict;

To remind the jury of the burden of proof.

What to include

A brief outline of the law in the case;

A summary of the evidence that has been heard in court that proves your case;

A short reminder of the burden of proof.

Structuring your closing speech

You must only rely on the evidence heard in court. You cannot include things that were not talkedabout in questioning, even if they are in the witness statements

Write your speech as notes not as a script. You could write it in full and then turn it into notes if this iseasier. In your notes, include all of the possible things that you might say but ensure you do not saythem unless mentioned in court;

Use large text, bullet points and sub-headings in your notes;

During the trial, you can tick any points of evidence that are mentioned by witnesses and cross outany that are not. You can also add any new points;

Make sure you get the gender of the witnesses right! Check this before the trial starts.

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Closing Speech - An ExampleSummary of Facts

The defendant is charged with theft. The prosecution case is that the accused was found in possession ofstolen children’s clothes on the 12th November 2015. The store manager of a Next store on Long Acre inCovent Garden, Mr Acton, claims that the items that were stolen from his store. The accused, RobertHarding, denies that he committed this offence and described how he was sleeping rough at the timedue to unfortunate personal circumstances and that on his way through Bull Inn Court he saw packs ofclothes in an alleyway that he believed were rejects. He placed them in his holdall without thinking ofwhat use he could make of them.

The Law

Section 1.1 of the Theft Act (1968) provides that a person is guilty of theft if he dishonestly appropriatesproperty belonging to another with the intention to permanently deprive the other of it.

When preparing to give your closing speech you should produce a checklist such as the one below.Check off the items when they become relevant. Remember you cannot refer to evidence unless it hasbeen stated by the witness.

OffenceCommon law crime of Theft

Witness 1Clothes found on Robert Harding were similar to those stolen from Mr Acton’sstore. Could he be sure they were from his store and not another?

DefendantWas sleeping rough and found the clothes in an alley;Took the clothes without thinking what use he could make of them;Wrong place at the wrong time?Burden of proofThe burden of proof is the duty of one party in a legal case to convince thedecision-maker (jury) that their version of the facts is true.

Speech

Members of the jury, you have now heard all of the evidence in this case, of which I would like to takethis opportunity to remind you. The Defendant, Robert Harding is accused of Theft contrary to section 1.1of the Theft Act (1968).

The first witness you heard from today was PC Barclay, who caught Mr Harding apparently red-handedwith supposedly stolen items in his holdall. It would be easy to look no further into the other evidence inthis case and convict him straight away. But it’s not as simple as that, is it, members of the jury?

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If we all sit down and analyse what we have heard during this trial you may think that we start to getniggling doubts. You may suspect, believe or are unsure that Mr Harding committed the alleged offence,but if that’s the case, members of the jury, then you will be obliged to acquit. Why?

The Crown brings this case and it is for them to prove it. Mr Harding need not prove anything at all, letalone his innocence. The Crown must satisfy you so that you are sure of his guilt - nothing less than surewill suffice. So if you find yourself saying ‘might’ or ‘possibly’ or even ‘probably’ when you retire toconsider the evidence then you know what the appropriate verdict would be – not guilty.

There are three topics I would like to discuss with you which concern the evidence that the prosecutionhave put before you, firstly…

1) Evidence that items were stolen2) Assumptions made by the prosecution3) The strengths in the defence case

Take each point in turn

1. EVIDENCE THAT THE ITEMS WERE STOLEN

Having heard the statement of Mr Acton, you may think that his account is incapable of making you surethat Mr Harding is guilty. First of all we heard that he recognised that the items found in Mr Harding’spossession as those sold by Next. You would be forgiven for thinking ‘so what?’ Members of the jury, howcould that prove they had been stolen?

Second, we were told that the Next store on Long Acre in Covent Garden had four of each of the styles ofclothing found on Mr Harding missing from the store, once again you would be forgiven for thinking‘so what?’ Whilst Mr Acton stated that, in his opinion, the items were likely to have been stolen from hisstore, ask yourselves whether that is enough to Mr Harding - after all he isn’t an expert, it’s just hisopinion.

Furthermore, you will remember that you have to be sure before you can return a guilty verdict and sosomething being more likely than not falls well below that requisite standard. The fact of the matter is thatthere is no evidence to suggest those items were taken from the store. Third, we have seen that there isanother Next store on the Strand. We have heard nothing about any enquiries being made by police atthat nearby shop. Therefore, can you rule out the possibility that the items may have originated from thatstore and been discarded? You may think that you cannot. So what are we left with members of the jury?You may think that we are left with no evidence to prove the items were stolen.

A witness, who in their non-expert opinion thought a theft was likely but can put it no higher than that. Awitness who at the most can say that items similar to those on Mr Harding were missing and aninvestigation which didn’t include any enquiries at the Next store around the corner from where MrHarding says he found the items.

All in all, you may think that the evidence that the items were stolen is simply too weak to sustain theweight placed on it by the prosecution.

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2. ASSUMPTIONS MADE BY THE POLICE AND PROSECUTION

Members of the jury, you may think that the Crown’s case is based almost entirely upon assumptions.We’ve heard that PC Barclay merely assumed that Mr Harding was trying to avoid him because hestarted to cross the road after he thought he had noticed him.

We also heard that PC Barclay merely assumed that Mr Harding may have stolen the items in hisholdall as he had arrested him previously for a similar offence. But that is all that they are, members ofthe jury; they are assumptions. You may think that these assumptions are simply not enough to resultin a guilty verdict.

You may think that the Crown has merely assumed that Mr Harding has committed the alleged offencebecause he has relevant previous convictions. They have rounded up their usual suspects instead ofconducting a proper investigation.

You may think that if they have to rely on things that Mr Harding has done in the past -- which havenothing to do with this allegation -- in order to prove their case, then it speaks volumes about howstrong they think their evidence is.

You may think that if we strip away the police and prosecution’s assumptions the Crown is left withnothing concrete to support their case, raising real doubts about whether Mr Harding is guilty of thealleged offence.

3. STRENGTHS IN THE DEFENCE CASE: You may wish, therefore, to consider the strengths of thedefence case.

Mr Harding gave a coherent explanation during his testimony regarding his difficult personalcircumstances at the time. He told us that he was sleeping rough and that, after he had gone to church,he decided to cut through the Bull Inn Court to get to the Strand. He saw packs of clothes in thatalleyway, and believing that they had been discarded as seconds or rejects -- as he knew oftenoccurred -- placed them in his holdall without thinking of what use he could make of them.

We’ve heard that he was arrested soon after, and whilst PC Barclay claimed that Mr Harding said that hehad been given them back after being released from prison, you may think that it just doesn’t makesense that he said that as he doesn’t have any children. You may think that this testimony shows thathe has nothing to hide and that his account of the events in question is an honest one.

4. STANDARD AND BURDEN OF PROOF

The burden of proof lies with the prosecution. If they have convinced you so that you are absolutelysure that the defendant is guilty, then you must convict. However, if there is any doubt in your mind asto whether the defendant committed this act of theft after hearing the evidence in court today, youmust find him ‘not guilty’.

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How to write an Examination-in-ChiefAims

To help your witness explain to the jury what they saw, heard or did;

To persuade the jury to find the verdict you want.

Structuring your examination-in-chief

Start by asking the witness their name and occupation;

Write notes instead of writing your questions out in full;

Work together with the witnesses you will be questioning.

Important information

Leading Questions

You must not ask leading questions during examination-in-chief;

These put words into the witness’s mouth and are usually yes/no questions;

To avoid leading questions, ask questions that start:

What/Why/When/How/Where and Who.

Witnesses

Witnesses must talk to the jury when they answer your questions, not you!

Remind them if they forget to do this.


Examination-in-Chief - An ExampleLawyer Could you state your name and occupation for the court?

Robert Robert Harding, I am currently unemployed.

Lawyer Where were you on 12th November 2015?

Robert I was walking through Bulls Inn Court in Covent Garden.

Lawyer Is there anything in particular that you remember about that day?

Robert Yes, I found some clothes in an alleyway.

Lawyer What time was this?

Robert About 6.30pm.

Lawyer What do you remember thinking when you saw the clothes?

Robert That they must have been dumped there by the shop because they were rejects.

Lawyer Why would you think that?

Robert Because it often happens, that clothes are thrown out if they aren’t okay by theshops standards.

Lawyer What were the clothes like?

Robert They were children’s clothes.

Lawyer Do you have children Mr Harding?

Robert No.

Lawyer Why did you pick them up?

Robert I don’t know; I didn’t really think about what I’d do with them I just picked themup and put them in my holdall.

Lawyer What happened next?

Robert I walked to the end of the alley way and crossed the road, then a police officercame up to me and arrested me.

Lawyer What did you do?

Robert I told him I didn’t steal them and that I found them in the alleyway behind theshop.

Lawyer What did the policeman say?

Robert He said he didn’t believe me because he had arrested me for stealing before. Isaid I had just got out of prison and didn’t want to go back so why would I stealanything.

Lawyer Had you visited the Next store that day?

Robert No.

Lawyer Had you visited any Next store that day?

Robert No.

Lawyer Thank you Mr Harding, I have no further questions.

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How to write a Cross-ExaminationAims

To point out the problems and inconsistencies in the opposition’s case;

To put your case to the opponent’s witness.

Structuring your examination-in-chief;

Write notes instead of writing your questions out in full

Be prepared for the unexpected! You will be questioning someone from the other team and you don’tknow what they will say;

A flow chart is a good way to write your questions so you can prepare for the unexpected, an exampleis below.

Important Information

Leading Questions

You can ask leading questions in cross-examination;

You can bring up inconsistencies with other witnesses that have given evidence;

Be polite instead of aggressive so the witness will help you;

Make sure you get the witnesses’ gender right! Check this before the trial starts.

YES

NO

YES

NO

Drunk

Had 2 bottles of wine– must have been

Didn’t really see then?

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Cross-Examination - An ExampleLawyer Mr Harding, could you just remind the court of your initial reaction when you saw

the clothes lying in the alleyway, as you say they were.

Robert I wasn’t really surprised, they do that a lot. If clothes are faulty or seconds they justthrow them out.

Lawyer To the extent that you picked up these clothes that you believed to be faulty andput them in your bag?

Robert Yes.

Lawyer Yet they were children’s clothes? Do you have children Mr Harding?

Robert No.

Lawyer So why would you pick them up? What use are they?

Robert I’m not sure. I didn’t really think it through; I saw them so I picked them up.

Lawyer Did you steal the clothes Mr Harding?

Robert No, I told you I picked them up from the alley way.

Lawyer You stole them to sell them didn’t you? To make money. You had after all just leftprison, and by your own admission were not in the best of circumstances

Robert No. I didn’t steal them.

Lawyer When you saw PC Barclay why did you try to avoid him and cross the road?

Robert I didn’t try to avoid him I just needed to cross the street.

Lawyer You needed to cross the street at that very moment, when if you had stayed onthe same path, just 90 meters away you could have cut through an alleyway tothe station you were heading for, is that correct?

Robert I don’t know.

Lawyer You don’t know? Are you familiar with that area Mr Harding? Had you beensleeping around that area for long?

Robert Yes, the officer knew me so he just made assumptions.

Lawyer Did he make assumptions because he had seen you around that area before?

Robert Yes.

Lawyer Is it fair to say Mr Harding that you are familiar with that area?

Robert Yes.

Lawyer So familiar, in fact, that you would have known that if you had stayed on thatpath for another 90 meters you would have come to an alleyway that would takeyou straight to the station rather than crossing the road to avoid Mr Barclay andadding several minutes to your journey?

Robert I don’t know. I wasn’t avoiding him, I just crossed the road. I don’t like him anyway;he arrested me before, I thought he would again.

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Lawyer But if you’re innocent as you claim you are Mr Harding, you would have nothingto hide would you?

Robert I don’t have anything to hide, but I knew what he would think. He would see theclothes and think I’d stolen them.

Lawyer So you admit that you crossed the road because you knew he would want tosearch you and would find the clothes on your possession?

Robert I suppose so. I didn’t want him to get the wrong idea.

Lawyer Is it correct that you have previously been arrested for theft?

Robert Yes.

Lawyer In fact all your previous convictions are for theft aren’t they Mr Harding?

Robert Yes.

Lawyer So we could forgive PC Barclay for assuming you had stolen these items as it issomething he knows you have done before?

Robert Well yes but I didn’t do it this time.

Lawyer Is it the case that it was an impulse that you just took them because that’s whatyou do when you want things? You just take them?

Robert No, not at all. They’re kid’s clothes why would I want them.

Lawyer That’s precisely my point, as you say you found them on the floor why would youpossibly want them?

Robert I don’t know. I just picked them up, I told you.

Lawyer Ok, thank you Mr Harding. I have no further questions.

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