Transcript USING STREET LAW-TYPE MOCK TRIALS TO TEACH ABOUT …

USING STREET LAW-TYPE MOCK TRIALS TO TEACH ABOUT
THE TRIAL PROCEDURES IN INQUISITORIAL CIVIL LAW
JURISDICTIONS
Professor David McQuoid-Mason,
University of KwaZulu-Natal,
Durban, South Africa
Introduction
• 17 Central and Eastern Europe and Central Asian countries 1997-2001.
• Albania, Belarus, Croatia, the Czech Republic, Estonia, Hungary,
Kazakhstan, Kyrgyzstan, Latvia, Macedonia, Moldova, Mongolia, Romania,
Russia, Slovakia, Ukraine and Uzbekistan.
• Street law mock trials prepare up to 31 students for their different roles in
a mock trial that will usually last for just over an hour.
• 6 x 45 minutes lessons or one full morning training.
• Mock trial lasts one hour.
Introduction (continued)
• The Street Law Inquisitorial Mock Manual (1999) 3 full length and 3
‘instant’ mock trials based on the same facts.
• Topics relevant today?
– ‘The Pub Murder Mock Trial’: A murder case arising from a xenophobic
attack ;
– ‘The Sex Slave’s Revenge Mock Trial’: A revenge killing case involving
trafficking of women for sexual purposes; and
– ‘The Controversial Dam Mock Trial’ : A case involving the arrest of
environmentalists demonstrating against the building of a hydroelectric dam that will destroy an important ecosystem , historical
buildings and villages.
Street Law Inquisitorial Mock Manual
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Part A of the Manual covers the following introductory topics:
– What is a Mock Trial?
– Lesson Outcomes for a Mock Trial.
– Different Types of Mock Trials.
– Pre-trial Investigations.
– Steps in an Inquisitorial Mock Trial.
– Establishing the Facts.
– Establishing the Law.
– Allocation of Teams.
– Analysis of Witnesses’ Statements.
– Work on Roles Preparing Questions and Arguments.
– Instructions for Presiding Judge, Judge’s Secretary and Court Orderly.
– Conducting the Mock Trial.
– Debriefing the Mock Trial.
Part B of the Manual provides lesson plans and fact patterns for the three mock
trials
Pre-trial investigations
• In criminal cases the pre-trial procedure can be divided into four phases:
– 1. The role of the police
– 2. The role of the investigator
– 3. The role of the prosecutor
– 4. The role of the investigating judge
• Each of these will be briefly discussed
Steps in an inquisitorial mock trial
• In inquisitorial criminal mock trials the following steps are usually
explained to students - although there may be local variations:
• 1. The accused is seated next to the defence lawyer on the left of the
judge.
• 2. The prosecutor is seated to the right of the judge.
• 3. The court orderly calls for silence and tells everyone to
stand.
• 4. The judge enters and takes the bench.
• 5. The judge checks the attendance of all interested
parties
(accused, witnesses, prosecutor and defence
lawyer), by asking for
proof of identity.
• 6. The judge sends the witnesses out of the court.
Steps in an inquisitorial mock trial
(continued)
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The judge opens the case.
The judge asks the prosecutor to read the charge to the
accused.
The judge explains the accused’s rights and asks how he or she
pleads.
The accused pleads guilty or not guilty.
The judge asks the accused whether he or she wishes to say
anything.
The accused says anything he or she wishes to say.
The judge questions the accused.
The prosecutor questions the accused.
The defence lawyer questions the accused.
Steps in an inquisitorial mock trial
(continued)
• 16. The judge requests the court orderly to call the first witness:
• (a)
Before questioning the judge explains that the witness has a
duty to tell the truth.
• (b)
The judge questions the witness.
• (c)
The prosecutor questions the witness.
• (d)
The defence lawyer questions the witness.
• (e)
The accused questions the witness (optional).
• (f)
Steps (p) (i) to (v) are repeated in respect of each witness.
• (g)
Closing argument by the prosecutor on the merits of the
case and sentence.
• (h)
Closing argument by the defence lawyer on the merits of
the case and sentence.
• (i)
Closing statement by the accused on the merits of the case
and sentence.
Steps in an inquisitorial mock trial
(continued)
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(j)
The judge deliberates on the verdict and sentence.
(k) The judge delivers the verdict and sentence of the court - everyone stands.
– [1. In many civil law jurisdictions assessors or lay judges are used in
criminal trials, and in some victims may also be entitled to question
witnesses and address the court.
– 2. In inquisitorial mock trials the rules of evidence are much more relaxed
than under the adversarial system because the judge has the statements of all
the witnesses beforehand.
– 3. The judge knows what the witnesses should say and can prepare questions
in advance: questions by the judge, prosecutor and defence focus on clearing
up ambiguities and contradictions to establish the reliability of the witnesses.
– 4. Much of this would have been cleared up during the pre-trial phase].
• [Devised by David McQuoid-Mason with the assistance of ex-Judge Jan
Hrubala of Slovakia].
Establishing the Facts
• In order to ensure that students understand all the facts of the case they
should be given a mock trial package which includes the indictment, a
summary of the facts, a summary of the law, a list of witnesses and the
witnesses’ statements.
• Individual students should be required to read out the indictment, the
summary of substantial facts, and the individual witness’ statements on
each side.
• The instructor should then discuss each in turn to make sure that the
students have a full understanding of the facts before proceeding to
explain the relevant law.
Establishing the Law
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Under the inquisitorial system the criminal law is usually codified and the
definitions of the different crimes and the sentences apportioned to them are
to be found in the criminal code.
The focus is on whether or not the provisions of the code have been breached.
The wording of the relevant articles of the criminal code needs to be explained
to the students.
The evidence necessary to be adduced by the prosecution to prove its case
should be discussed with the students.
Attention must also be drawn to the evidence that can be used by the
defence.
There is a conflation of the judgment on the merits of the case and the
sentencing process as many codes define the crime and at the same time
specify the range of the sentence that must be imposed by the court.
Students should prepare for both when presenting arguments at the
beginning and end of the trial.
[Personal observations made by me while developing mock trial packages in
Slovakia, Hungary and Poland].
Allocation of teams
• The Street law mock trial is designed to involve as many students as
possible in the preparation and presentation of the mock trial.
• All the participants need to understand the facts and the law that must be
established by the prosecution and defence.
• Participants should be divided into teams of prosecutors, defence lawyers
and judges and each team must be given the necessary background to
enable them to prepare their questions, arguments or judgments.
• To achieve this individual participants should be chosen to read out the
statements of each witness, and then all the participants should help to
identify those aspects of each statement that can be used by the
prosecution and defence respectively.
• Participants should be asked to note them for subsequent use when
preparing their questions, arguments or judgments.
Allocation of teams
(continued)
• Under the inquisitorial system the judge plays an active role.
• The judge takes the lead in asking questions and also controls the process.
Therefore to design a successful Street law inquisitorial mock trial scope as
many students as possible should be involved in the roles of judges.
• Participants can be divided into four teams:
• 1. Witnesses team
• 2. Judges team
• 3. Prosecution team
• 4. Defence team
• In a criminal case involving six witnesses (including the accused) the
following tasks are involved:
Work on roles preparing questions and arguments
• Participants should work in their teams to prepare for the questions that
each designated person will have to ask the accused or witness allocated
to them for questioning.
• Prosecutors and defence lawyers will also have to assist designated team
members who will make statements and closing arguments.
• Judges will have to prepare questions for designated witnesses and the
accused, while a designated judge will also be required to give the
judgement.
• The presiding judge, judge’s secretary and court orderly also have to be
familiar with their instructions (see below).
Time frames
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Strict time frames ensure the mock trial takes 1 hour:
1.
Judge checking attendance and identities, sending out the witnesses,
and opening the case - 2 minutes.
2.
Judge asking the prosecutor to read charge, and explaining accused’s
rights - 3 minutes.
3.
Accused’s opening statement - 2 minutes.
4.
Questioning of accused and each witness by judges – 18 minutes (3
minutes x six witnesses).
5.
Questioning of each witness by prosecutors - 12 minutes (2 minutes
x six witnesses).
6.
Questioning of each witness by defence lawyers – 12 minutes (2
minutes x six witnesses).
7.
Closing arguments by prosecution and defence - 6 minutes (3 minutes x
two arguments).
8.
Judgement - 5 minutes.
THE PUB MURDER MOCK TRIAL
Lesson plan for a four hour workshop
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The following agenda should be used for a four hour workshop:
– Definition of a mock trial. (5 min)
– Pre-trial investigation. (10 min)
– Steps in a mock trial. (15 min)
– Establishing the facts in the Pub Murder. (10 min)
– Establishing the law applicable in the Pub Murder. (15 min)
– Allocation of teams for judges, prosecution and defence, including
prosecutors, defence lawyers, witnesses, and court officials. (10 min)
– Analysis of witnesses’ statements. (40 min)
– Work on roles: witnesses, preparation of questions and arguments.(1
hour)
– Conducting the mock trial. (1 hour)
– Debriefing the mock trial. (15 min)
THE PUB MURDER
The facts
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The Pub Murder case involves the killing of a local person in a pub by a refugee.
On 1 April 2014 Strini Strangeri , a refugee from a neighbouring country went to
the very busy Peoples’ Pub with his friend, Viktor Verati at about 21h00.
The Bar Manager, Monika Musilova, had great difficulty trying to keep order.
After Strini and Viktor had been in the Pub for about half an hour, Arkan Aggrovic
and his friends, Rato Ratinsky and Terru Tantrimski, members of JCFA (the Jobs for
Citizens First Association), entered the Pub.
Arkan, Rato and Terru sat down at the table next to Strini and ordered drinks .
At about 22h00 after Arkan realized that Strini and Viktor were refugees, and
immediately started making remarks about Strini and the country he came from.
He said that Strini and his people were backward and should not be allowed into
the Pub, and Rato and Terru encouraged him with shouts and insults.
Arkan said that if the Pub Manager was not prepared to throw Strini out of the Pub
he would do so himself.
THE PUB MURDER
The facts (continued)
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Strini and Biktor tried to ignore the insults, but Arkan became more and more
aggressive and noisy.
Monika told Arkan to quieten down, but he shouted at her that she was a stupid
woman who did not know her job.
He said that if she knew how to run a Pub properly she would never have allowed
a dog like Strini to drink in it.
At about 23h00 Arkan suddenly got up from his chair and, closely followed by Rato
and Terru, moved towards Strini shouting: “If she won’t throw you out, I will!’
As Arkan moved close to Strini he suddenly put his hand in his pocket.
Viktor cried out: “Look out Strini he has a knife!’
Strini stood up and pulled out his own knife to defend himself.
Just as he was doing so Arkan either stumbled and fell on top of Strini , or Strini
lent forward and stabbed Arkan.
Strini’s knife stabbed Arkan in the heart and he died very soon afterwards.
A knife was later found clutched in Arkan’s hand which was still in his pocket.
Strini was arrested by the police and charged with murder.
THE PUB MURDER
The law
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Article 100(1) of the Criminal Code states the following:
– Anyone who intentionally and unlawfully kills another person is guilty
of murder and on conviction may be sentenced to a term of
imprisonment of from 10 to 25 years.
• Article 100(3) of the Criminal Code states:
– Notwithstanding the provisions of article 100(1) of the Criminal Code,
anyone who kills another person in self-defence in order to save his or
her life shall not be guilty of murder: Provided such killing of the other
person was the only method by which the first person could save his
or her own life.
THE PUB MURDER
The law (continued)
• In order to succeed with a conviction of Strini Strangeri the prosecution
will have to prove beyond reasonable doubt that Strini intentionally and
unlawfully killed Arkan Aggrovic.
• The prosecution will have to prove both elements:
– (a) Strini acted with the intention to kill at the time that Arkan was
stabbed, and
– (b) the stabbing was unlawful because it was not the only method he
could have used to save his life.
• In order for the defence to succeed they can raise a doubt in the court’s
mind by showing either that Strini did not intend to kill Arkan at the time
he was stabbed, or that stabbing him was the only way he could have
defended himself in the circumstances.
• The defence does not have to raise a doubt regarding both elements – a
reasonable doubt about one is sufficient for Strini to be found not guilty.
THE PUB MURDER
The indictment and evidence
• The Indictment
• Strini Strangeri is charged with murder and the indictment reads as
follows:
– Strini Strangeri is guilty of murder in that on 1 April 2014 in the
People’s Pub he did intentionally and unlawfully kill Arkan Aggrovic by
stabbing him in the heart with a knife.
• The Evidence
• The prosecutor may hand in Strini Strangeri’s knife as exhibit ‘A’. The
defence may request the prosecutor to hand in Arkan Aggrovic’s knife as
exhibit ‘B’.
Accused and list of witnesses
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Strini Strangeri, the accused.
Dr Rigova Rigamortiz, forensic pathologist (expert).
Yuri Yankimova, investigating officer.Rato Ratinsky, friend of
deceased.
Monika Musilova, bar manager.
Viktor Verati, friend of accused.
The roleplayers
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Participants should be divided into four teams:
1. Team of the accused and witnesses
2. Team of judges
3. Team for the prosecution
4. Team for the defence
Judges’ registrar (time keeper)
Court orderly
Accused and witness team
• 1. Strini Strangeri, the accused to answer questions, and to make an
opening statement on the merits of the case, and a closing statement on
the merits and sentence.
• 2. Dr Rigova Rigamortiz, first witness who will answer questions.
• 3. Yuri Yankimova, second witness who will answer questions.
• 4. Rato Ratinsky, third witness who will answer questions.
• 5. Monika Musilova fourth witness who will answer questions.
• 6. Viktor Verati, fifth witness who will answer questions.
Judges’ team
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Judge to check the attendance of accused, witnesses, prosecutors
and defence lawyers, to send the witnesses out of court and to open
the case.
Judge to ask the prosecutor to read the charge, and to explain to the
accused his or her rights.
Judge who questions Strini Strangeri, the accused.
Judge who questions Dr Rigova Rigamortiz, the first witness.
Judge who questions Yuri Yankimova, the second witness.
Judge who questions Rato Ratinsky, the third witness.
Judge who questions Monika Musilova, the fourth witness.
Judge who questions Viktor Verati, the fifth witness.
Judge who gives a judgment on the merits of the case and sentence.
Prosecution team
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Prosecutor who questions Strini Strangeri, the accused.
Prosecutor who questions Dr Rigova Rigamortiz, the first witness.
Prosecutor who questions Yuri Yankimova, the second witness.
Prosecutor who questions Rato Ratinsky, the third witness.
Prosecutor who questions Monika Musilova, the fourth witness.
Prosecutor who questions Viktor Verati, the fifth witness.
Prosecutor who makes a closing argument on the merits and
sentence.
Defence team
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Defence lawyer who questions Strini Strangeri, the accused.
Defence lawyer who questions Dr Regova Rigamortiz, State
pathologist, the first witness.
Defence lawyer who questions Yuri Yankimova, the second witness.
Defence lawyer who questions Rato Ratinsky, the third witness.
Defence lawyer who questions Monika Musilova, the fourth witness.
Defence lawyer who questions Viktor Verati, the fifth witness.
Defence lawyer who makes a closing argument on the merits and
sentence.
Court officials
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• 2.
Court orderly to keep order.
Judge’s secretary to keep time.