Something about Objections during Trial and Opening/ Closing Statements

Dear Students

What follows has been developed from Stae versus Monty Khanna--an exercise that we have done threadbare in the class.

It is an attempt to familiarise you with some tricks that might come in handy while submitting your written work on Mock for the assessment.

MOCK TRIAL-MODEL LESSON PLAN¹

1. For the purposes of MT Assessment, there are four aspects of a the mock trial that a student must know: opening statements, direct examination, cross-examination, closing arguments.
2. Interspersed between the entire process, is the aspect of raising ‘objections’, which has been popularized by movies as something fancy and hard-hitting. There is however a whole body of literature around raising objections properly during a mock. I am going to touch upon a few basics of this art.
   OBJECTING DURING TRIAL

What are OBJECTIONS? And why do they matter?

1. Objections² are allowed during the trial in order to KEEP OUT evidence that is hurtful to your client.
2. Objections and evidence rules were created to keep the process as fair as possible.
   1. Evidence Rule: Fair hearing and to keep out any evidence that
      1. doesn’t relate to the issue of the case, (@ whether Kashish had a boyfriend)
      2. isn’t reliable (@ most of the testimony of Poornima) or
      3. value of which, as evidence, is totally outweighed by how prejudicial it would be (@ if ask the MD Sanjiv Bhatia whether Monty Khanna could do anything of the sort Kashish is alleging)—such objections stop a witness from testifying to something that is probably not very trustworthy)

3. In the assessment, you as an advocate can object any time during the EIC/Cross if you are sure that the opposing counsel is violating the rules of evidence.
   1. When to object? You can object to 3 things broadly speaking…
      1. questions that the other side’s counsel is asking,
      2. answers that a witness is giving³, or
      3. to exhibits that the other side is attempting to admit into evidence
   2. How to Object⁴?:
      1. stand up; say OBJECTION, YOUR HONOR, _____(evidence rule)
      2. Wait, standing, for the ruling.
      3. No need to explain yourself, judge may agree with you! If he agrees he will say: “sustained”
      4. Judge may turn to the other advocate who asked the question or offered the exhibit, and that advocate usually will have a chance to explain why the objection should not be accepted by the judge.

3. There are TONS of evidence rules. Today let us learn at least 7 handy ones.
   1. Rule 1: Leading Questions
      1. A "leading" question is one which suggests the answer desired by the questioner, usually by stating some facts not previously discussed and asking the witness to give a "yes" or a "no" answer.
      2. Leading questions⁵ should not be asked when questioning one's own witness in direct examination.
      3. Leading questions should be used in cross examination.
      4. If it is used in Direct Examination and you want to object: Objection: "Objection, Your Honor, leading."

2. Rule 2: Argumentative Questions
   1. Advocates cannot argue with the witness. Questions cannot be argumentative in tone or manner. Badgering is harassing or asking again and again which is not allowed (later)
   2. Example: During the cross of Kashish--"So you were being harassed by Monty time and again and you decided not to tell the manager, not to anyone in the hotel, not even to your own mother!; How do you expect the court to believe that?/Perhaps there WAS nothing to tell"

This is being argumentative with the witness.

3. "Objection. That question is argumentative.”

3. Rule 3: Speculation
   1. You cannot ask questions that get witnesses to guess.

Ex: In the cross of Poornima--“Could it be that Kashish had developed feelings for Monty Khanna and that is what made her upset on learning about the latter’s marriage?

2. “Objection. Counsel is asking the witness to speculate.”

4. Rule 4: Narration (or non-responsive):
   1. Witnesses' answers must respond to the questions. A long story is objectionable. When the witness gives much more information than the question calls for.
   2. Objection: "Objection, Your Honor, narrative."

5. Rule 5: Relevance
   1. Questions or answers that add nothing to the understanding of the issue in dispute are objectionable.
   2. Questions and answers must relate to the subject matter of the case; this is called "relevance." Those that do not relate to the case are "irrelevant."
      1. Example: "Why does you mother not work Kashish?”

Objection: "Objection, Your Honor, relevance."

6. Rule 6: Badgering
   1. Similar to argumentative questioning, badgering the witness is when the opposing attorney asks the same question several times in order to harass the witness, usually done in a harsh manner.

Example—While cross of Monty—You have stated in your testimony that you had feelings for Kashish and found her to be an attractive woman...you even wanted to live together...what kind of strange and immoral ‘fatherly’ feelings are these? You have to accept that you encouraged and fanned the emotions of Kashish that made her delusional and totally besotted with you...YOU ARE THE ONE WHO ARE TRYING TO TAKE ADVANTAGE OF A HAPLESS GIRL!

2. When objecting, the attorney should stand and say “Objection. Counsel is badgering the witness.”

7. Rule 7: Beyond the Scope of the Packet
   1. Questions that ask about, or answers that supply, significant facts not contained in the packet are objectionable. However, minor obviously inferred details may be asked and added.
   2. Objection: "Objection, Your Honor, this is beyond the scope of the packet."

Now, something about the opening statement and the closing argument. Usually, the prosecution/plaintiff goes first.

4 tips to draft a good opening statement (to be taken in class by the teacher)

4. OPENING STATEMENT—State/Kashish’ side [might not be required for MT Assessment]

Your Honour, this case is about a 19 year old young and professionally inexperienced girl, who in such a tender age has been compelled by fate to fetch and fend for her family—family that has only dependent females in it. She has recently lost her father and trusted the accused to help her professionally. However, the accused being a seasoned womanizer used his charms to beguile the victim...used his influence to subdue her protests and tried to take advantage of her situation in the most heinous manner possible.

To prove this, I will call ---[these many] witnesses to stand…brief about each witness…

3 tips to draft a good closing (to be taken in class by the teacher)

5. CLOSING ARGUMENT-State/Kashish’ side

In my opening statement, I mentioned that I would call ---witnesses to testify as to the defendant’s guilt. Each witness testified as I explained and we have established the following facts beyond a reasonable doubt: 1); 2) AND 3).

We would ask you to reject the defense theories of the case. [Address each argument THAT YOU WANT TO DEMOLISH and explain why you disagree.

Argue why your witnesses (Poornima and Manager, Happy Hotel ) are credible, how they have nothing to gain by lying, and were consistent with each other.

Argue how the defense witnesses lack credibility—The driver for instance has been inconsistent in his statement; similarly, the MD does not want bad reputation for his company etc.

Explain that it is an important principle that people in our society be held accountable for their actions.

In conclusion, we would ask that you find the defendant guilty of breaching the trust of the victim and guilty of attempting an assault on the latter.

6. OPENING STATEMENT—Monty Khanna’s side⁶[might not be required for MT Assessment]

Your Honour, the case is about a thorough gentleman and a professional with a clean record of 15 years. 15 years of blemish-free service has been most horrendously tainted by his colleague—the most unsuspecting colleague who had designs on my client the moment she set her eyes on him.

It is also a case about how greed and uninhibited ambitions can make the life of a helping and ever motivating professional like the defendant, miserable. The Defendant has been artfully deceived into this situation just because he was steely enough to resist the immoral advances of the woman in question. The latter, scorned in love is wanting to settle a score against my client.

To prove this, I will call ---[these many] witnesses to stand…brief about each witness…

CONTRADICT THE OPPOSITE PARTY’S THEORIES:

The Plaintiffs hope that their witnesses will say…. However, in fact, the testimony will show…(that the plaintiff’s testimony is nothing but a bag full of lies. She is deceit personified and has clearly taken advantage of my client in all possible ways/that Poornima has nothing of her own to state and has been parroting whatever has been fed to her by her friend )

7. CLOSING STATEMENT-Defendant Monty Khanna’s side

In the case that the plaintiff has presented to you today there is insufficient proof to conclude that Monty Khanna is guilty of any assault. The plaintiff on the other hand is clearly guilty of misjudging my client's behaviour and imposing herself in the most immoral way on him. We would ask for a favourable verdict—the defendant is not guilty. [Echo or refer to the theme that you referenced in your opening statement—that he has been taken advantage of.]

Point out any inconsistencies in the statements of the opposite sides witnesses, and explain why witnesses might have a motive to lie…(may be used)

1 By Dr Sunanda Bharti.

2 Objections are for protection of the client against following strategies of the opposite party:

1) To bring such facts which may mislead the material on record;

2) Manipulative tactics to influence witness;

3) Create altogether new fact to confuse and divert attention from the subject matter;

4) Delaying tactics to prolong trial so that convict with death penalty could get the grace of more life;

5) Used as pressure tactics to demoralize the opposite party so that he/she can withdraw from the case or become hopeless for the justice, so that entire material on record could be interpreted differently without much protest or objections from the opposite party.

3 The counsel of In-Chief is not permitted to speak to his witness during Cross, but he can only raise an objection over the questions of opposing counsel on their Cross-Examination.

4 Examination-In-chief Counsel is also standing during Cross-examination and he will carefully listen to the counsel on Cross Exam, points objections immediately, even before the witness can answer.

5 Leading questions are permitted only during Cross examination, i.e. by Opposite Counsel only. During Examination in chief, if the witness counsel is asking a Leading question, then the opposite counsel can raise an objection.