Table of Contents

Introduction—Debate in School and Society . Unit 1—Debate Basics
Chapter 1 Chapter 2 Chapter 3 Chapter 4 Chapter 5 Chapter 6 Chapter 7 Chapter 8 Chapter 9 Introduction to Competitive Debate Debate Ethics . . . . . . . Where to Begin . . . . . . Traditional Research Fundamentals Electronic Research Fundamentals . Recording and Filing Evidence . . Argumentation Strategies . . . Flowing . . . . . . . . Delivery . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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4 18 23 29 41 47 59 68 75

Unit 2—Understanding the Affirmative
Chapter 10 Chapter 11 Chapter 12 Chapter 13 Chapter 14 Chapter 15 Affirmative Debate Terms . . . . . . . . Preliminary Steps in Affirmative Case Construction . The Affirmative Need-Plan Case . . . . . . The Affirmative Comparative Advantage Case . . Miscellaneous Affirmative Case Types . . . . Writing the Affirmative Case . . . . . . .
. . . . . .

84 94 99 105 114 119

Unit 3—Understanding the Negative
Chapter 16 Negative Debate Terms . . . . . . . . . Chapter 17 Attacking the Affirmative Case: Stock Issues Analysis . . . . . . . . . Chapter 18 Attacking the Affirmative Plan . . . . . . . Chapter 19 Developing a Negative Position . . . . . . Chapter 20 Negative Adaptation to Affirmative Case Structures . Chapter 21 The Negative Counterplan . . . . . . . .
. . . . . .

136 139 148 157 162 166

Unit 4—Defending Your Position
Chapter 22 Chapter 23 Chapter 24 Chapter 25 Basic Steps in Defending the Affirmative Case Advanced Strategies . . . . . . . . Negative Rebuttals . . . . . . . . Cross-Examination Techniques . . . . .
. . . . . . . . . . . .

172 180 188 191

Chapter

28

Mock Trial
The training of lawyers

After completing this chapter debaters will be able to: 1. Explain what a mock trial is. 2. Identify and describe the basic general rules of evidence and trial procedure. 3. Demonstrate how to conduct a mock trial. New Words and Phrases
affidavit civil trial criminal trial cross-examination defendant depositions direct examination discovery exhibit hearsay evidence interrogatories litigants mock trial overruled plaintiff redirect examination sustained

is a training in logic. ~Oliver Wendell Holmes, Jr.

Introduction
The role of public speaking and debate in courts of law can’t be overemphasized. Virtually every skill and strategy used in competitive debate is applicable to a trial. As a result, many students interested in competitive debate and the law also participate in mock trial competitions. Many states have such competitions, often associated with Law Day activities. In 1985, an annual national Mock Trial Tournament began and is held in May each year. Mock trial cases for students of all ages are available. A mock trial resembles an actual trial. It begins with a conflict or a dispute that the parties are unable to resolve. Students are organized into teams and take the role of either a witness or an attorney. Some mock trials are reenactments of historical trials, and the students rely heavily on scripts (see the American Bar Association’s “The Trial of John Peter Zenger” as an example). In other instances, teams are given a hypothetical case that includes a set of stipulated facts, witness affidavits, and

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exhibits related to the case. A statute related to the dispute is also part of the case. Occasionally decisions about related court cases are included. Cases for elementary students are based on fairy tales with characters such as “Golden Locks” being sued by the three bears for bad manners. Most mock trials rely on basic rules of evidence and procedure. One important feature of mock trial is that when you arrive at the actual stage of competition, only the materials you are given to start with will be used in the trial. Unlike policy or Lincoln-Douglas debate, mock trials force you to concentrate on the specific facts of a case and the given legal precedents. It is from these sources alone that you must make your case. Students compose opening statements and closing arguments and prepare for direct examination and cross-examination of witnesses. Participants learn the procedures for objecting to questions or testimony that violate the standards for a fair trial. Judges offer decisions based on performance. Teachers, law students, lawyers, or actual judges serve as judges for mock trials. Just as with other forms of debate, there are time limits for the competition. The following is one example of a format that takes approximately two hours. Opening Statements .
.

The purpose of this chapter is to provide an overview of mock trial competition procedures. The first step is to develop an understanding of the unique vocabulary and basic concepts used in a trial.

Who Are the Participants?
Rather than the affirmative and negative, the two sides arguing against each other in a civil mock trial are called the plaintiff and the defendant. The plaintiff is the person bringing the action or filing the lawsuit; the defendant is the person being sued. Both are frequently referred to as the litigants. In a criminal trial, the government, represented by a prosecutor, brings the action against a defendant, who has been accused of a crime. Each side in a mock trial is composed of a team of attorneys and a set number of witnesses (usually three on each side). The teams present their arguments to a judge or a panel of judges. A sample judging form is included in Appendix C. Judges may be asked to render two decisions: one on the merits of the case, declaring a winning side; the other on the way the cases were argued by declaring a winning team.

Civil and Criminal Cases
A mock trial case can be either civil or criminal. There is an important difference between the two. In civil cases, a plaintiff wins by convincing a judge or by a “preponderance of evidence.” If the jury or judge is 51% sure the plaintiff’s claim is true, the plaintiff wins. In a criminal case, the prosecution must prove a defendant’s guilt “beyond a reasonable doubt.”

4 min. for each side

Direct & Redirect Examinations . . 30 min. for three witnesses Cross-Examinations .
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15 min. for three witnesses Re-cross is allowed
. .

Closing Arguments .

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6 min. for each side

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Discoveries, Interrogatories, Depositions, and Affidavits
Discovery is the name for the formal investigation about the facts of a case. Interrogatories are the written questions that the litigants must answer under oath. Depositions are oral questions asked under oath. The affidavit is the written statement of facts made under oath.

Conducting a Mock Trial
Mock trials follow an established procedure, beginning with opening statements and moving through direct examination, cross-examination, and ending with closing arguments.

The opening statement and the closing statement are the only two times during the trial you will be allowed to make real speeches. Taken together, these 10 minutes are the most important in the trial. It is at the beginning and the end of your presentation of the case that you will have the most power to frame testimony, cast doubt, and challenge the other side to overcome any obstacles to the decision they want. It is important to follow a general rule in your opening statement (and in your summation). M. Donna Ross, a coach of many champion mock trial teams, calls the rule simply KISS for “Keep it Simple Stupid” (Ross, An Open and Shut Case 13). Try to boil down complex statutory and case-based facts into an easy to understand story. Just as in a policy of Lincoln-Douglas debate round, you must put everything together in a cohesive and concise way. Your arguments may be independently strong, but they mean nothing if they are not well articulated and clearly explained. Ross points out some common themes that appear in both sides’ opening statements (An Open and Shut Case 13): Prosecution— 1. MOM—The defendant had means, opportunity, and motive. 2. The defendant was the only one who could have done it. 3. The preponderance of evidence points to the accused. 4. The defendant is guilty beyond reasonable doubt.

Opening Statements
After the bailiff calls the case, the prosecutor in a criminal case or the plaintiff’s attorney in a civil case begins the mock trial by presenting an opening statement. This statement explains the issues, what the evidence will be, and what you hope to prove. The opening statement is important because it is your first opportunity to preview the case. Such a road map is important. Defendants may choose to make an opening statement immediately following the plaintiff’s or may wait until after the plaintiff has presented all evidence and the defendant has cross-examined. It must be made before any defense witnesses are called. To begin an opening statement, say, “May it please the court?” then introduce yourself, client, co-counsel, and witnesses. The opening statement should set forth the issue, detail what occurred, summarize your evidence, and state the relevant statute. You should also tell the judge(s) specifically what you want in the way of a decision.

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Defense— 1. [My client is a] Victim of circumstance. 2. [My client was] Set up by others. 3. The real culprit could have been anybody. 4. No credible evidence [exists]. In addition, Ross suggests a method for laying out your case in light of the above themes (An Open and Shut Case 13): …Tease them—that is—T’s ’em. As you walk through the…opening, tick off these t’s. Theme Timeline Testimony Target Tie up This simple approach is excellent in that it gives you a way to present your case to anyone, regardless of how well versed they are in actual law or mock trial. You should try to “tease” the judge(s) by introducing the important themes presented above and then by laying out the timeline of factual events in your case. Make sure to forecast the important ways in which your witnesses’ testimonies will help prove your case. You should then give the judge(s) a target—tell what you want done. Then, tie it all together in a neat and easily digestible package.

consists of your client’s own testimony and the testimony of your witnesses. A plaintiff calls the first witness, asks questions, and then the defendant cross-examines the witness. All of the plaintiff’s witnesses are called and crossexamined by the defendant’s attorneys before the defense calls any of the defense witnesses. The plaintiff has the opportunity to crossexamine all defense witnesses. Advance preparation is necessary for effective direct examination. Outline your questions and then rehearse each witness’s testimony. Like cross-examination in debate, this is not a time to make speeches. The story must unfold from questions. It is usually advisable to begin with background questions, and it is important to establish a witness’s personal knowledge of the facts. Witnesses may not be asked leading questions by the attorneys who call them. A leading question suggests the answer to the witness. Direct questions should be phrased to elicit a set of facts. For example, “Ms. North, when did you become acquainted with the defendant?” is an acceptable question. An example of a leading question might be, “Ms. North, you haven’t known the defendant for very long, have you?” While the purpose is to get the witness to tell a story, questions must be specific and witnesses are not allowed to narrate. Narrative questions are objectionable. An example of a narrative question might be: “Ms. Lane, what went wrong with your job at the bank?” Direct examination may cover only relevant facts of which the witness has first-hand knowledge. As a general rule, witnesses are not allowed to give opinions unless they are quali-

Direct Examination
Following the opening statements, witnesses are called to testify in direct examination. Other physical evidence is also introduced. Direct examination is your main opportunity to explain your client’s version of events. It

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fied as “experts” or unless the opinion is based on the common experience of laypersons in the community. A witness must have personal knowledge about all to which he or she testifies. For mock trial purposes, evidence about a witness’s character may not be introduced unless the person’s character is an issue in the case. If a witness is unable to recall a statement made in the affidavit, the attorney may introduce the portion of the affidavit into evidence that will help the witness remember. Any factual areas covered in direct examination may be subject to cross-examination. There are some important things to take into account when considering your witnesses. Ross puts witnesses into three categories (listed from most to least important) (Ross, Who Goes Where 17): 1. Big Yahoo (that’s the defendant or respondent on defense and the key witness or plaintiff on the other side). 2. Big Mouth (that’s the expert witness or at least the one that seems to know it all). 3. Little Sidekick (that’s often a character witness and many times may be a liability to the side he’s supposed to be testifying for). While being cast as a witness may not seem to be as interesting or as challenging as being an attorney, witnesses play a crucial role in the mock trial. Ross and others point out that since most of your judges will themselves be actual attorneys, “they tend to be overly impressed with good witnesses—probably because they are burdened by their own clients’ lack of acceptable looks and speech” (Who Goes Where 17).

It is important to treat witnesses in ways that will build on your case and diminish the other side’s. To build credibility, always be sure to make the court understand how qualified a witness is and therefore how solid their testimony is. Use formal titles to build credibility—if you have a highly qualified expert, such as a scientist or a doctor, address them as such. Ross notes that if you wish to make a colder, factual witness seem friendlier or accessible, you may want to downplay their credentials and use first names or even nicknames (Getting Down to Cases 9).

Introducing Exhibits and Physical Evidence
Exhibits are the tangible objects that are presented to establish your case. The physical evidence must be relevant to the case, and you must be able to defend its use on that basis. Procedurally, follow these steps: A. “Your honor, I ask that this knife be marked for identification as Plaintiff’s Exhibit A.” Show the article and hand it to the bailiff for marking. B. Show the knife to the opposing counsel, who may object to its offering. C. Show the knife to the witness and proceed to have the witness identify it. D. If you wish to place it into evidence, say, “Your honor, I offer this knife for admission into evidence as Plaintiff’s Exhibit A, and ask the court to so admit it.” E. The judge then rules on its admissibility. Hand the knife to the judge.

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Cross-Examination
Once your adversary has no further questions, the judge tells you that it is time for crossexamination. Cross-examination questions must pertain to topics explored on direct examination. The first goal of cross-examination is to pursue questions to produce evidence that supports your version of the case. This is usually fairly easy. Seldom does a witness’s testimony support only one version. Explore the part of the testimony that supports your case. The second goal of cross-examination is to impeach adverse witnesses. Impeaching an adverse witness is accomplished in several ways. A. Showing that the witness is biased in favor of your adversary. B. Showing that the witness is prejudiced against you. C. Asking questions about prior conduct that makes the witness’s credibility suspect. D. Asking about evidence of prior criminal convictions. E. Introducing affidavits that prove that the witness has made inconsistent statements. To avoid giving a witness a chance to retell a story during cross-examination, ask leading questions. Remember, questions are leading when they suggest the desired answer. While they are improper during direct examination, they are permissible during cross-examination. It is appropriate to prompt nonresponsive witnesses and interrupt hostile witnesses. It is advisable to ask only questions to which you feel you know the answers. You don’t want to inadvertently hurt your case in the course of

your cross-examination. At the same time, never bully witnesses. That is simply not necessary. Asking a series of questions that will elicit yes/no answers will get you where you want to go without a lot of pushing. Don’t try to summarize what the witness has said during your cross-examination. Summarizing is saved for your closing remarks. You can ask questions in a way that will paint the picture you want the judge(s) to see and draw out the facts you want them to understand. Let them make the necessary connections. Watch and adapt to their responses in just the same way you would do during a policy debate round.

Redirect Examination
If the credibility of your witness has been attacked on cross-examination, you may ask several more questions. These questions must be limited to issues raised during cross-examination and should be limited to the damage you think has been done. Questions should be phrased to try to reestablish the witness’s truthfulness.

Closing Arguments
An attorney for each side reviews the evidence and asks for a favorable decision. It is your opportunity to tell the judge(s) why you should win. While you shouldn’t argue during the opening statement, it is important to make the strongest case possible during closing arguments. Prepare and rehearse your closing argument. Make introductory comments, identify the issues to be resolved and marshal the evidence for each element you must prove. Discuss the credibility of your witnesses and evidence. Explain the plaintiff’s burden of proof. Use exhibits and other visual aids and always tell the judges what you want. Show why you should prevail on the merits.

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It is important to return to the “tease” method mentioned in the section on opening remarks. Instead of forecasting what will happen, now you are summarizing what has happened. In the very same way the rebuttals in a policy debate round are used for summarizing and succinctly shutting off issues, your closing remarks are the final opportunity you have to cast arguments and witnesses as you want them to be remembered by the judges. Your closing statement should also lay out any of the burden you want the other side to meet. Depending upon the type of trial you are in, civil or criminal, the standards you apply will be different. In a criminal trial, both sides will try to contend that either their client is innocent beyond reasonable doubt or that, in the prosecution’s case, the defendant is guilty beyond reasonable doubt. In a civil case, both sides will rely on the preponderance of evidence to prove their sides. Just as in a policy round you must give the judge(s) in a mock trial tools with which to evaluate the key issues at stake. Don’t count on good memories. Instead, use the tease method and, as always, remember KISS. Keep whatever you say simple to make it understandable.

It is important to object promptly, but don’t argue the merits of the objection. An objection can be sustained (upheld) or overruled (denied). If the objection is sustained, ask the judge to strike improper evidence. The two most common objections are: 1. Objections to the form of question. Is it leading and thus improper? Is it vague or argumentative? 2. Objections to the content of testimony. Regardless of the question, this objection argues that the testimony is improper. It may be improper because of a lack of a witness’s personal knowledge or requires speculation on the part of the witness. It may also be objectionable because it is irrelevant or is hearsay. Hearsay is any evidence of a statement made by someone who is not present in the court and is offered to prove a fact, piece of evidence, or a witness’s testimony. Hearsay evidence is not permitted.

Resources
The Internet has numerous resources to assist students and coaches in learning more about this activity. The American Mock Trial Association’s site at www.collegemocktrial.org has valuable information that underscores and enhances the material in this chapter. The Web site for high school competitions also includes access to a newsletter (www.nationalmocktrial.org). It provides valuable information on how to get started including state coordinator contact information. A source of practice cases is found at www.andersonkill.com/titanic/ facts.htm. Street Law, an organization of law teachers and students, has long supported the

Objections
It is the attorney’s responsibility to object to important inadmissible evidence or statements. An objection should be made anytime you believe that the opposing attorney has violated the rules of evidence. The judge may consider anything you don’t object to. Use the following procedures when making an objection. 1. Stand up to make the objection. 2. Speak only to the judge. 3. State your objection succinctly and explain the reason for the objection.

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mock trial movement by preparing scenarios for competition and practice. Their Web site at www.streetlaw.org/mockt2.html is an excellent source of material.

Summary
A mock trial provides an opportunity to gain useful knowledge about the law and to hone argumentation and communication skills.

It follows the pattern of an actual trial but with simplified rules of evidence and procedure. Many of the same strategies employed in policy and Lincoln-Douglas debate are also effective in a mock trial. Scenarios are provided to students who play the roles of attorneys and witnesses. At the conclusion, a judge renders a decision.

Notes
Ross, M. Donna, “Mock Trial Part V, An Open and Shut Case, That is — How to Open and How to Shut,” The Rostrum, (January, 1998), p. 13. (debate.uvm.edu/NFL/rostrumlibmocktrial.html). Ross, M. Donna, “Try Mock Trial: Part III – Who Goes Where?” The Rostrum, (June, 1997), p. 17. (debate.uvm.edu/NFL/rostrumlibmocktrial.html). Ross, M. Donna, “Try Mock Trial: Part IV – Getting Down to Cases,” The Rostrum, (October, 1997), p. 9. (debate.uvm.edu/NFL/rostrumlibmocktrial.html).

Activities
Starting Out 1. Review the mock trial scenarios available from the American Bar Association and select a trial suggested for elementary students. Use this trial as a way of learning the procedures in a mock trial before preparing for a more realistic case. 2. Reenact a famous local trial. Using facts researched by examining the court transcripts in the public record at the courthouse, prepare your own scenario for the trial. While each side may get ideas from the way the trial was actually conducted, develop your own strategies. 3. Using the Midland v. Pence, et al. case scenario on pages 229–231, conduct a mock trial as a class. Have class members participate as jurors and complete the observation form found in appendix C. 4. Attend a trial in a city, county, state, or federal court. Observe how the attorneys approach each stage of the trial. What did you learn that can benefit you? What practices did you see that were not successful?
continued

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Activities continued
Experience Counts 1. With a partner, review the comment sheets you receive from a competition and work on the areas most in need of improvement. Assist one another through drills, revising opening statements, or reviewing your questioning techniques. Web Savvy 1. Go to the college division mock trial Web site at www.collegemocktrial.org and select some of the old cases to use for practice. 2. Hone your skills online by going to British online mock trial site at www.abc.net.au/mocktrial/default.htm. How do trial procedures in Britain differ from American procedures? How are they similar?

Midland v. Pence, et al. FACTS A number of Midland citizens had become dissatisfied with the Superintendent of Prisons, John Sharp, because he was not dealing with such problems as overcrowding, unsanitary conditions, and guard brutality. Since the group believed that the mayor, Herbert Umbard, could fire Sharp, they organized a demonstration designed to force the Mayor to act. In the late afternoon, about 80 protestors began a march from the city hall to the Mayor’s home, about five miles away. They were accompanied by a police lieutenant, four police sergeants, and about 40 policemen, in addition to their own attorney and an assistant city counsel. They arrived at the Mayor’s home at 8:00 p.m. They immediately began to march around his block, chanting phrases such as: “The Superintendent must go, snake Umbard also”; “We are going to the home of the snake, the snakepit is down the street”; “Hey, hey, what do you know, John Sharp must go.” They carried signs which read, “Umbard Fire Sharp!” and “Sharp Must Go—Now.” They also sang civil rights songs such as “We Shall Overcome” and “We Shall Not Be Moved.” During this time, protest leader Jim Pence instructed everyone to keep marching, but not to “answer anyone back.” He also told them, “Don’t worry about anything that is going to be said to you. Just keep marching. If anyone hits you or anything, try to remember what they look like, but above all, do not hit them back. Keep the lines straight and keep them tight.” As the marchers continued around the block, neighbors began coming out of their homes. Some of them placed lawn sprinklers onto the sidewalk, forcing the demonstrators to walk into the streets. Others yelled out of their windows and doorways. By 9:00 p.m., 100 to 150
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spectators had formed a line of march ahead of the demonstrators, and by 9:20 p.m., a group of over 1,000 people had gathered. There were shouts and threats, such as: “Get the hell out of here”; “Get the hell out of here or we’ll break your ___ head open.” Rocks and eggs were thrown at the marchers from the crowd, and there were numerous attempts by members of the crowd to break out from behind police lines which were protecting the demonstrators. Despite Jim Pence’s instructions, there was evidence of some demonstrators shouting back to counter-demonstrators, and there were reports of several fights. About 9:30 p.m., Police Lieutenant Tom Judson told Pence that the situation was dangerous and becoming riotous. He offered a police escort for any who wished to leave. Three of the marchers did so, but the remaining demonstrators refused. After a number of unsuccessful attempts to persuade them to leave, the police arrested the demonstrators and took them away in police vans. They were charged with violating a Midland disorderly conduct ordinance which read: All persons who shall make, aid, countenance, or assist in making any improper noise, riot, disturbance, breach of peace, or division tending to a breach of the peace, within the limits of the city, and all persons who shall collect in bodies or crowds for unlawful purposes to the annoyance or disturbance of other persons...shall be deemed guilty of disorderly conduct, and upon conviction shall be fined not less than $1.00 or more than $200.00 for each offense. The First Amendment to the United States Constitution reads: Congress shall make no law...abridging the freedom of speech...or the right of the people peacefully to assemble... WITNESSES AND THEIR AFFIDAVITS For the Prosecution— 1. Police Lieutenant Tom Judson 2. Mary Conway, a neighbor of Mayor Umbard For the Defense— 1. Protest leader Jim Pence 2. Diana Robinson, a demonstrator who was one of the three escorted from the scene by the police Judson: From the outset, we knew there would be trouble. That is why we had 45 policemen as well as attorneys on the scene. Generally speaking, the demonstrators were peaceful. However, by about 9:15 p.m., the situation was getting pretty tense. I felt that the demon-

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strators had had more than ample time to voice their protest. The crowd was getting larger, darkness had descended, and there was only so much that my men could do to keep the situation under control. When the demonstrators repeatedly refused to be escorted out of the area, they left me no choice but to arrest them. Conway: Ours is a quiet neighborhood. When the scores of demonstrators started marching and chanting, not to mention the many police with them, it was like an invasion. Naturally, there was no way for me to relax with all this going on and I was really in fear for my personal safety and the safety of my family. I could see what was going on from my window, and it looked like everyone was yelling at each other, there was some pushing and shoving, and all sorts of chaos. The police were doing their best to keep the two groups separated and I was sure glad when the police finally rounded up the demonstrators and took them away. Some ugly things could have happened if they hadn’t acted as they did. Pence: Throughout the march, the demonstrators had been peaceful and orderly. We were very careful to avoid confrontation, but we wanted to state our opinion as clearly and effectively as possible. It was the Mayor’s neighbors who were violating the ordinance—they were shouting profanities, hurling rocks and eggs, and trying to break through police lines— they’re the ones who should have been arrested. It was our right to refuse the police escort...we had not done anything unlawful. Robinson: Sure I was scared—it was like walking into the lion’s den. But we believed that Sharp was not carrying out the law, and that Umbard could do something about getting him to act. At no time did I see or hear any of us egging Umbard’s neighbors on. Jim had told us to turn the other cheek and we were doing that. Yes, the police protected us, but that’s what they’re supposed to do. We were just exercising our freedom of speech. It was the others who were unruly and causing trouble. JUDGE’S INSTRUCTIONS “The questions posed by this case are by no means simple. On the one hand, we have the precious right to freedom of speech, an absolute necessity in our open and democratic form of government. On the other hand, we have the need to maintain public order and insure the safety and general welfare of our citizens. Your difficult task, members of the jury, will be to determine whether the defendants did in fact violate the ordinance in question beyond a reasonable doubt. I want to emphasize that under our law, the police do not have the right to stop a peaceful demonstration merely because a hostile crowd may not agree with the views of the demonstrators. However, if you decide that the police made all reasonable efforts to control the situation, then an arrest for an otherwise lawful demonstration may be made. You have heard the arguments of both the prosecution and defense in this case. You may now adjourn to consider the arguments presented and return to the court once a verdict is reached.” This scenario was reprinted with permission from the Kansas Bar Association.

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