PEOPLE v. COBEY - The Lyceum of Monterey County

Constitutional Rights Foundation 1 People v. Cobey

Murder and Manslaughter

Featuring a pretrial argument on the Fourth Amendment

OFFICIAL MATERIALS FOR

THE CALIFORNIA MOCK TRIAL COMPETITION

A Program of Constitutional Rights Foundation

Co-Sponsored by:

American Board of Trial Advocates Foundation Daily Journal Corporation

PEOPLE v. COBEY


ACKNOWLEDGEMENTS

Developed by: Keri Doggett, CRF, Vice President of Program and Operations Damon Huss, CRF, Senior Editor and Curriculum Specialist Lourdes Morales, CRF, Senior Program Director Jonathan Shapiro, CRF Board Member Laura Wesley, CRF, Associate Director of Program Caitlyn Cochran, Law Student Intern Special Thanks to: Hon. Raquel Márquez, Superior Court of California, Riverside County Justice Steven Z. Perren, California Second District Court of Appeal Case Reviewers: Hon. George Bird, Los Angeles County Robin Bernstein-Lev, Esq., Los Angeles County Commr. Doreen Boxer, Los Angeles County David A. Carrillo, Esq., San Francisco County Linda Dunn, Esq., San Luis Obispo County Carla Garrett, Esq., Contra Costa County Jon Garzoli, Esq., San Joaquin County Sharon Matsumoto, Los Angeles County Nathalie Miller, Esq., San Diego County Senior Lead Officer Maligi A.”Junior” Nua, Jr., Los Angeles County Hon. Ron Rose, Retired, Los Angeles County Hon. Randall Sherman, Orange County Michael Tiktinsky, PhD., San Francisco County Alexander Wesley, Los Angeles County Joseph Whitton, Riverside County

CRF Staff and Board Contributors: Kimberly Dunne, Chair, Board of Directors Amanda Susskind, President

Gregorio Medina, Senior Program Director Sarah Badawi, Senior Program Director Andrew Costly, Senior Publications Manager Sean-Michael Ramirez, Program Coordinator

Jasmin Espinoza, Program Assistant Cover Drawing: Grace Kim, 2021 California Mock Trial Courtroom Art Contest Finalist

Copyright 2021, Constitutional Rights Foundation. All Constitutional Rights Foundation (CRF) publications, including these California Mock Trial materials, are protected by copyright. The California Mock Trial case and characters are fictional. These California Mock Trial materials are intended for use solely by teachers, coaches, students, and other participants in the 2021-2022 California Mock Trial competition. It is a violation of this copyright to forward, print, or distribute the mock trial materials to individuals or groups that are not participants in the 2021-2022 California Mock Trial competition, or to use these materials for commercial purposes or financial gain, without prior express permission from CRF. Any team in violation of this copyright may be disqualified from participation in the competition. All rights reserved. CRF, 601 S. Kingsley Dr., Los Angeles, CA 90005. 213.487.5590 - www.crf-usa.org - [email protected]


__________________________________________

Justice James A. Cobey ____________________________________________

The 2021-2022 California Mock case is dedicated to the Cobey Family, Justice James A. Cobey, his wife Virginia Cobey, and his children Christopher Cobey and Lisa Cobey Kelland. Justice Cobey was a former Constitutional Rights Board Chair who cared deeply about the principles and mission of Constitutional Rights Foundation (CRF). He served as Board Chair of CRF from 1974–1975 and remained actively involved until his death in 1993. After his death, Justice Cobey’s friends and family established the Justice James A. Cobey Endowment at CRF. The endowment supports the annual Justice James A. Cobey volunteer reception, where CRF recognizes those volunteers who have made outstanding contributions to CRF. Lisa Cobey Kelland, her husband Peter Kendall, and Christopher continue to support CRF and our mission by representing their family at the annual event. Additionally, Christopher Cobey is a longtime volunteer of CRF’s mock trial program locally and at the state level. It is with great pleasure that we honor the family’s legacy and belief in a strong democracy, by dedicating this year’s case to the Cobey family.


TABLE OF CONTENTS

Acknowledgements ...........................................................2

Program Objectives ..........................................................5

Code of Ethical Conduct ...................................................6

Introduction to 2021–2022 Mock Trial Competition ...........7

California Mock Trial Fact Situation ..................................8

Sources for the Trial ........................................................13

Statement of Charges .....................................................13

Physical Evidence ...........................................................13

Stipulations .....................................................................13

Legal Authorities .............................................................15

Pretrial Motion .................................................................20

Prosecution Witnesses Statements ................................29

Defense Witnesses Statements ......................................40

Exhibits ...........................................................................52

Forms and Substance of a Trial ......................................57

Team Role Descriptions ..................................................58

Procedures for Presenting a Mock Trial Case ................63

Diagram of a Typical Courtroom .....................................68

Mock Trial Simplified Rules of Evidence .........................69

Allowable Evidentiary Objections ....................................70

Summary of Allowable Evidentiary Objections................85


2021-2022 CALIFORNIA MOCK TRIAL PROGRAM

Each year, Constitutional Rights Foundation creates the mock trial case for students across the state of California. The case provides students an opportunity to wrestle with large societal problems within a structured forum and designed to provide a powerful and timely educational experience. It is our goal that students will conduct a cooperative, vigorous, and comprehensive analysis of these materials with the careful guidance of teachers and coaches.

Program Objectives For the students, the mock trial program will:

1. Increase proficiency in basic skills (reading and speaking), critical- thinking skills (analyzing and reasoning), and interpersonal skills (listening and cooperating).

2. Develop an understanding of the link between our constitution, our courts, and our legal system.

3. Provide the opportunity for interaction with positive adult role models in the legal community.

For the school, the program will:

1. Provide an opportunity for students to study key legal concepts and issues.

2. Promote cooperation and healthy academic competition among students of varying abilities and interests.

3. Demonstrate the achievements of young people to the community.

4. Provide a hands-on experience outside the classroom that enables students to learn about law, society, and themselves.

5. Provide a challenging and rewarding experience for teachers.


CODE OF ETHICAL CONDUCT All participants (including observers) are bound by all sections of this Code and agree to abide by the provisions. 1. All competitors, coaches, and other participants, including

observers will show courtesy and respect for all team members and participants, including their opponents and all courthouse staff, judges, attorney coaches, teacher coaches, and mock trial staff and volunteer personnel. All competitors, coaches, and participants, including observers, will show dignity and restraint, irrespective of the outcome of any trial. Trials, contests and activities will be conducted honestly, fairly, and with civility.

2. Team members and all student participants will conform to the highest standards of deportment. Team members and participants will not employ tactics they believe to be wrong or in violation of the Rules. Members and participants will not willfully violate the Rules of the competition in spirit or in practice. All teams and participants are responsible for ensuring that all observers are aware of the Code.

3. Teacher Coaches agree to focus on the educational value of the Mock Trial Competition. They shall discourage willful violations of the Rules and/or this Code. Teachers will instruct students as to proper procedure and decorum and will assist their students in understanding and abiding by the letter and the spirit of the competition’s Rules and this Code of Ethical Conduct.

4. Attorney Coaches agree to uphold the highest standards of the legal profession and will zealously encourage fair play. Attorney Coaches are reminded that they must serve as positive role models for the students. They will promote conduct and decorum among their team members and fellow coaches in accordance with the letter and the spirit of the competition’s Rules and this Code of Ethical Conduct and will demonstrate the same through their own behavior. They will emphasize the educational value of the experience by requiring that all courtroom presentations (e.g., pretrial, questions, objections, etc.) be substantially the work product of the student team members.

By participating in the program, students, teacher coaches and attorney coaches are presumed to have read and agreed to the provisions of the Code. Violations of this Code of Ethical Conduct may be grounds for disqualification from a contest and/or suspension or expulsion from the program.


INTRODUCTION TO 2021–2022 MOCK TRIAL COMPETITION

This packet contains the official materials required by student teams to prepare for the 41st Annual California Mock Trial Competition. In preparation for their trials, participants will use information included in the People v. Cobey case packet. The competition is sponsored and administered by Constitutional Rights Foundation. The program is co-sponsored by the Daily Journal Corporation and American Board of Trial Advocates.

Each participating county will sponsor a local competition and declare a winning team from the competing high schools. The winning team from each county will be invited to compete in the state finals in Los Angeles, March 18-20, 2022. The winning team from the state competition will be eligible to represent California at the National High School Mock Trial Championship in Kalamazoo, Michigan, May 5–7, 2022.

The Mock Trial is designed to clarify the workings of our legal institutions for young people. As student teams study a hypothetical case, conduct legal research, and receive guidance from volunteer attorneys in courtroom procedure and trial preparation, they also learn about our judicial system. During Mock Trials, students portray each of the principals in the cast of courtroom characters, including counsel, witnesses, court clerks, and bailiffs. Students also argue a pretrial motion. The motion has a direct bearing on the evidence that can be used at trial.

During all Mock Trials, students present their cases in courtrooms before actual judges and attorneys. As teams represent the prosecution and defense arguments over the course of the competition, the students must prepare a case for both sides, thereby gaining a comprehensive understanding of the pertinent legal and factual issues.

Because of the differences that exist in human perception, a subjective quality is present in the scoring of the Mock Trial, as with all legal proceedings. Even with rules and evaluation criteria for guidance, no judge or attorney scorer will evaluate the same performance in the same way. While we do everything possible to maintain consistency in scoring, every trial will be conducted differently, and we encourage all participants to be prepared to adjust their presentations accordingly. The judging and scoring results in each trial are final.


CALIFORNIA MOCK TRIAL 1

FACT SITUATION 2

Burnsley, California, is an unincorporated community in 3 Burnsley County in the high desert of Eastern California. It 4 is a semi-rural town with a population of 3,000 people. 5 Jamie Cobey lives in a small, two-bedroom rental house at 6 46603 Raptor Road in Burnsley. For the past 10 years, 7 Cobey lived there along with Cobey’s mother. Cobey’s 8 mother had a chronic respiratory disorder that disabled 9 her and required her to use an oxygen machine. Cobey 10 has lived in the desert for many years and is well-known 11 in the town as a committed gardener and specialist in 12 succulents and cacti. Cobey is also known outside of 13 Burnsley as an award-winning horticulturist having 14 received several ribbons and trophies in regional 15 horticulture shows for Cobey’s cacti and succulents. 16 Cobey owned several different gardening tools, including 17 a medium-sized (16” x 8.5” x 7”), rectangular, metal-wire 18 animal trap. 19

Before the 2020 pandemic, Cobey had worked for years at a 20 local restaurant in Burnsley, The Blue Agave. When the 21 restaurant had to close during the pandemic lockdown, 22 Cobey lost Cobey’s job. By necessity, Cobey became the full-23 time caregiver for Cobey’s mother and collected 24 unemployment. 25

Erik Smith was Cobey’s 70-year-old landlord who lived 26 next door to Cobey on the same two-acre parcel of land at 27 46601 Raptor Road in Burnsley. Their respective 28 backyards were each surrounded by a six-foot-high 29 wooden fence through which no one could see. The fence 30 extending around Cobey’s backyard had a four-foot-tall by 31 three-foot-wide chain-link fence-gate in the back of the 32 property that opened to a state park that abutted the entire 33 parcel. The gate did not have a locking mechanism. The 34 front yard of each property was surrounded by a four-foot-35 tall chain-link fence, and each had a similar chain-link 36 fence-gate in the front. 37

Smith had other tenants at three other small rental properties 38 in Burnsley in addition to the one where Cobey lived. Most 39 houses and mobile homes in the town of Burnsley are on 40 one- or two-acre parcels and are often spread far apart, so 41 that one’s “neighbors” are often not close by. 42

Though Cobey was unable to pay rent after losing the 43 restaurant job, the state enacted an eviction moratorium 44


to help people weather the economic hardships the 1 pandemic caused. The moratorium saved Cobey and 2 Cobey’s mother from eviction. Even so, Cobey paid part of 3 Cobey’s rent from time to time. 4

Cobey had been aware for years that Smith was a daily 5 user of recreational cannabis and that Smith grew several 6 cannabis plants in his own garage. Smith told Cobey it 7 was for Smith’s high blood pressure, but Smith also once 8 told Cobey that Cobey’s house and yard would be ideal for 9 a large-scale, unlicensed “pot farm.” But during the 10 pandemic, Cobey’s neighbor Dani Emling told Cobey that 11 it was well-known that Smith sold cannabis to people in 12 town. Emling also told Cobey that Smith sold cannabis to 13 minors. Cobey strongly disapproved of Smith’s use and 14 growing of the plants, but even more so the idea that 15 Smith was an illegal seller. 16

Between 2017 and 2021, the local sheriff’s deputies 17 responded to over a dozen calls from either Cobey or 18 Smith, each complaining about a nuisance from the other. 19

On one of the calls from Smith, on October 10, 2020, 20 Deputy Sheriff Toni Garrett walked around Smith’s 21 property and gave Smith a free smart camera. The deputy 22 explained that the camera could help Smith gather 23 evidence against Cobey. The deputy suggested Smith hang 24 the camera (which was 12” x 8” x 10”), on a 10-foot-tall 25 post in Smith’s backyard. Smith placed the camera high 26 on the post angled toward Cobey’s backyard in a way that 27 captured all of Cobey’s fenced-in backyard. Above the 28 camera on the post was a 24” x 36” sign that depicted a 29 smiley face and the message: “Smile, You’re On Camera.” 30 Garrett explained that the smart camera (which is also 31 publicly available for purchase), could track a person’s 32 movement, could record people from “head to toe,” and 33 could detect motion from up to 125 feet away. 34

In exchange for the free smart camera, Smith agreed to 35 share the information it gathered directly with the sheriff’s 36 department. All of the footage collected by the camera was 37 stored digitally in the cloud, in a searchable format, such 38 that police could comb through it at will with Smith’s 39 permission. Smith adjusted the sharing settings so that the 40 footage was automatically shared to the sheriff’s 41 department cloud account. 42

The relationship between Cobey and Smith deteriorated in 43 recent years with both engaging in unneighborly behavior. 44 The tension between the two intensified once the 45 pandemic eviction moratorium went into effect. Often 46


Smith would say to Cobey “I want you and your mother 1 off my land.” 2

Shortly thereafter, Smith shut off the electricity on 3 multiple occasions throughout the pandemic, which 4 caused Cobey’s mother to temporarily lose power to her 5 oxygen machine. In addition, Smith shut off the water 6 despite the harsh, dry conditions of the desert. Cobey 7 informed Smith that Cobey needed the water and 8 electricity for the health and well-being of Cobey’s mother 9 and asked Smith to stop these harmful actions. 10

Smith shut off the electricity again on April 22. The lack of 11 oxygen sent Cobey’s mother into cardiac arrest, and 12 Cobey called 911. Due to the remoteness of the location 13 (the hospital was 45 minutes away), Cobey’s mother died 14 on the way to the hospital. 15

On April 28, Cobey’s mother was laid to rest at a church 16 cemetery in the town of Burnsley. Witnesses at the funeral 17 say Cobey was visibly angry, verbally blaming Smith for 18 having killed Cobey’s mother. Cobey and Smith shouted at 19 each other, and Cobey returned home around 6:00 PM. 20

One witness at the funeral, Terry Edwards, was concerned 21 about Cobey’s mental state and drove to Cobey’s house 22 later that night. There, Edwards stopped and briefly spoke 23 with Cobey, who was in the front-yard garden. 24

The next day, on April 29, a lineworker named Angel 25 Russell was working about 100 feet from Smith’s home at 26 the top of a utility pole. Russell saw Smith walk to Smith’s 27 mailbox in front of the parcel on which Smith lived. The 28 mailbox has a slot in the top, into which envelopes can be 29 dropped, that is about one-and-three-fourths-inch wide 30 and six-inches-long. As Smith opened the mailbox door, a 31 snake that was coiled in the box bit deep into Smith’s left 32 wrist. 33

Russell saw Smith step back from the mailbox, swinging 34 the left arm to shake off the snake. Smith collapsed and 35 fell to the ground next to the mailboxes, the snake 36 hanging from Smith’s wrist. Russell climbed down the 37 pole and rushed to Smith’s side. Russell called out for 38 help, but no one came. Smith attempted to stand up and 39 walk home, but Russell convinced Smith to remain still. 40 Smith sat back down on the ground. 41

Russell killed the snake by beating it with a breaker bar, 42 one of the tools Russell had been working with. Russell 43 also attempted first aid by sucking the venom out of the 44


wound. Then, as Smith stood up to return home, Russell 1 heard Smith say, “Jamie!” Smith then told Russell that 2 Smith felt okay, just startled by the bite. Russell kicked the 3 snake’s carcass into a shrub in front of Smith’s house. 4

The following morning on April 30, around 8:00 AM, 5 Russell returned to the area to complete work on the 6 powerlines. Russell saw Smith, wearing pajamas, lying 7 face down in Smith’s front yard. Smith’s front door was 8 open. Russell checked for a pulse but did not feel one. 9 Russell called 911 for an ambulance. 10

Deputy Sheriff Garrett responded to the 911 call, arriving 11 at 8:40 AM. Garrett confirmed that Smith had no pulse. 12 The paramedics and ambulance arrived at 8:50 AM. 13 Deputy Garrett escorted the paramedics to the Burnsley 14 hospital, where Smith was pronounced dead at 9:45 AM. 15 Deputy Garrett returned to the scene on Raptor Road, 16 Garrett interviewed Russell. From Russell, Garrett learned 17 that at approximately 12:00 PM the day before, Smith 18 opened his mailbox and was bitten by a snake that was 19 inside it. Garrett saw the snake that Russell had killed and 20 identified it as a Mojave rattlesnake. Garrett noted that the 21 snake’s rattle was missing. 22

Garrett also knocked on Cobey’s door and briefly 23 interviewed Cobey, who told Garrett that Cobey had seen 24 nothing of the snake bite incident. Cobey explained that 25 Cobey had had an ongoing landlord-tenant dispute with 26 Smith. 27

The next day, Garrett interviewed Terry Edwards, who 28 lived down the road from Smith. Edwards told Garrett that 29 Edwards had observed a heated argument the evening 30 before Smith’s death between Cobey and Smith at the 31 funeral for Cobey’s mother. Edwards also told Garrett that 32 Edwards heard Cobey say, “I am going to kill him!” 33

[On May 2, Garrett retrieved Smith’s smart camera footage 34 from the morning of April 29, the last footage available. 35 The brief footage of only a few seconds showed an image 36 of 15-inch snake-feeding tongs in the northwest corner of 37 Cobey’s backyard, next to a small object, visible to anyone 38 who could lean their head over the back chain-link gate 39 and look around.] 40

41 On May 2, at about 3:00 PM on the same day, Garrett 42 went to Cobey’s home and asked to look around, and 43 Cobey consented. In Cobey’s house, Garrett found a 44 gallon-sized plastic tub with four or five rattlesnake 45


rattles, books about desert snakes, and a vial of liquid 1 labeled “antivenom.” Garrett asked Cobey about Cobey’s 2 interest in snakes, and Cobey explained that Cobey owned 3 these items because, as a gardener in the desert, it is 4 essential to be well-informed about rattlesnakes. Cobey 5 claimed that Cobey collects the rattles when Cobey finds 6 them around the desert. 7

Before leaving, Garrett inspected Cobey’s garage, which 8 was closed but connected to Cobey’s kitchen by a door. In 9 the garage, Garrett found long-sleeved animal handling 10 gloves and knee-high “snake-proof” boots on a table near 11 the door to Cobey’s kitchen. 12

Garrett obtained an arrest warrant for Jamie Cobey in the 13 murder of Erik Smith. Garrett served the warrant on June 14 3, 2021, and took Cobey into custody. 15

16 17 18 19 20 21 22 23 24


SOURCES FOR THE TRIAL 1

The sources for the mock trial are a “closed library,” 2 which means that Mock Trial participants may only use 3 the materials provided in this case packet. The materials 4 for the trial itself include Statement of Charges, Physical 5 Evidence, Stipulations, California Penal Code, Jury 6 Instructions, Fact Situation, Witness Statements, and the 7 Mock Trial Simplified Rules of Evidence. 8

STATEMENT OF CHARGES 9

The prosecution charges Jamie Cobey with: 10

First Degree Murder — Cal. Pen. Code § 187 — 11 Unlawful killing with malice aforethought, express or 12 implied, premeditated first degree; or 13

Voluntary Manslaughter — Cal. Pen. Code § 192a — 14 The unlawful killing of a human being without 15 malice, during a sudden quarrel, in the heat of 16 passion. 17

PHYSICAL EVIDENCE 18

Only the following physical evidence may be introduced at 19 trial. The prosecution is responsible for bringing: 20

Exhibit A | Photograph Cobey’s Snake-Feeding Tongs 21

Exhibit B | Photograph of Smith’s Mailbox 22

Exhibit C | Aerial Map of the Crime Scene 23

Exhibit D | Photograph of the Mojave Desert Snake That 24 Bit Smith 25

Exhibit E | Photograph of Cobey’s Humane Animal Trap 26

*All reproductions can be as small as the original 27 document found in the case materials but no larger than 28 22” X 28”. 29

STIPULATIONS 30

Stipulations shall be considered part of the record. 31 Prosecution and defense stipulate to the following: 32

1. All witness statements were taken in a timely manner. 33

2. For the purpose of the pretrial argument, the photo of 34 the snake tongs (Exhibit A) may be used ONLY if the 35 defense motion to exclude the photo is denied. If the 36


defense motion is granted, the photo cannot be 1 admitted into evidence, nor can it be used for 2 impeachment purposes. 3

3. If the bracketed information is excluded from trial, it 4 may not be used for impeachment purposes. 5

4. All physical evidence and witnesses not provided in 6 the case packet are unavailable and their availability 7 may not be questioned. This includes but is not 8 limited to the video footage from Smith’s camera. 9

5. Dr. Charlie Dunn and Dr. Tyler Clay are qualified 10 expert witnesses and can testify to each other’s 11 statements. They may also testify to any relevant 12 information they would have reasonable knowledge of 13 from the fact situation, witness statements, and 14 exhibits. 15

6. [Exhibit A is a photograph of Cobey’s snake-feeding 16 tongs found in Cobey’s backyard.] Exhibit B is a 17 photograph of Smith’s mailbox. Exhibit C is an aerial 18 map of the crime scene created by Deputy Garrett. 19 Exhibit D is a photograph of the Mojave Desert Snake 20 that bit Smith. Exhibit E is a photograph taken by 21 Cobey of a humane animal trap that Cobey used to 22 own. 23

7. During the investigation, the officer properly collected 24 the evidence listed as Exhibit [A], B, C, D and E. 25

8. The search of Jamie’s garage was a valid search and 26 may not be objected to. 27

9. Jamie Cobey, the defendant, is present during the trial. 28 Under the conditions of an online trial, any witness 29 that knows or should know the defendant, is assumed 30 to have correctly identified Jamie Cobey as the 31 defendant in this case. 32

10. Angel Russell, the lineworker, can correctly identify 33 the defendant as the person Russell saw near the 34 mailbox, hours before the rattlesnake-bite incident. 35

11. The weather in April for the city and county of 36 Burnsley is generally a low of 50 degrees Fahrenheit 37 and a high of 72 degrees Fahrenheit. On April 29, 2021 38 at 12:00 PM, the temperature was 68 degrees 39 Fahrenheit. 40

12. It is estimated that the temperature inside the mailbox 41 on April 29, was 68 degrees Fahrenheit. 42


13. On April 29, 2021, sunset in Burnsley was at 7:36 PM. 1

14. Jamie Cobey’s house is located at 46603 Raptor Road 2 and Erik Smith’s house is located at 46601 Raptor 3 Road. 4

15. The defendant’s humane animal trap was large 5 enough to transport a three-foot long snake. 6

16. The snake that bit Erik Smith was two feet long and 7 two inches wide at its widest point and was 8 photographed by Dr. Charlie Dunn at the coroner’s 9 office. Dr. Dunn did not perform an autopsy of the 10 snake. 11

17. The victim’s body temperature when found, put the 12 approximate time of death between 3:00 AM and 6:00 13 AM on April 30. 14

18. The arrest warrant of Jamie Cobey was based on 15 sufficient probable cause and properly issued. 16

19. Any resemblance to real persons or entities is purely 17 coincidental. 18

LEGAL AUTHORITIES 19

Statutes 20

California Penal Code § 187. Murder defined 21

Murder is the unlawful killing of a human being with 22 malice aforethought. 23

California Penal Code § 188. Malice defined 24

Such malice may be express or implied. It is express when 25 there is manifested a deliberate intention unlawfully to 26 take away the life of a fellow creature. It is implied, when 27 no considerable provocation appears, or when the 28 circumstances attending the killing show an abandoned 29 and malignant heart. 30

California Penal Code § 189. Degrees of murder 31

All murder which is perpetrated by means of a destructive 32 device or explosive, a weapon of mass destruction, 33 knowing use of ammunition designed primarily to 34 penetrate metal or armor, poison, lying in wait, torture, or 35 by any other kind of willful, deliberate, and premeditated 36 killing…is murder of the first degree. 37

38


California Penal Code § 192a. 1

Manslaughter is the unlawful killing of a human being 2 without malice. 3

(a) Voluntary — upon a sudden quarrel or heat of 4 passion. 5

6

Jury Instructions 7

CALCRIM 223 (Direct and Circumstantial Evidence) 8

Facts may be proved by direct or circumstantial evidence 9 or by a combination of both. Direct evidence can prove a 10 fact by itself. For example, if a witness testifies, he saw it 11 raining outside before he came into the courthouse, that 12 testimony is direct evidence that it was raining. 13 Circumstantial evidence also may be called indirect 14 evidence. Circumstantial evidence does not directly prove 15 the fact to be decided but is evidence of another fact or 16 group of facts from which you may logically and 17 reasonably conclude the truth of the fact in question. For 18 example, if a witness testifies that he saw someone come 19 inside wearing a raincoat covered with drops of water, 20 that testimony is circumstantial evidence because it may 21 support a conclusion that it was raining outside. Both 22 direct and circumstantial evidence are acceptable types of 23 evidence to prove or disprove the elements of a charge, 24 including intent and mental state and acts necessary to a 25 conviction, and neither is necessarily more reliable than 26 the other. Neither is entitled to any greater weight than 27 the other. You must decide whether a fact in issue has 28 been proved based on all the evidence. 29

CALCRIM 224 (Circumstantial Evidence: Sufficiency of 30 Evidence) 31

Before you may rely on circumstantial evidence to 32 conclude that a fact necessary to find the defendant guilty 33 has been proved, you must be convinced that the People 34 have proved each fact essential to that conclusion beyond 35 a reasonable doubt. Also, before you may rely on 36 circumstantial evidence to find the defendant guilty, you 37 must be convinced that the only reasonable conclusion 38 supported by the circumstantial evidence is that the 39 defendant is guilty. If you can draw two or more 40 reasonable conclusions from the circumstantial evidence 41 and one of those reasonable conclusions points to 42 innocence and another to guilt, you must accept the one 43 that points to innocence. However, when considering 44


circumstantial evidence, you must accept only reasonable 1 conclusions and reject any that are unreasonable. 2

CALCRIM 520 (Murder with Malice Aforethought) 3

The defendant is charged with murder. To prove that the 4 defendant is guilty of this crime, the People must prove 5 that: 6

1. The defendant committed an act that caused the death 7 of (another person/[or] a fetus); and 8

2. When the defendant acted, (he/she) had a state of mind 9 called malice aforethought; and 10

3. (He/She) killed without lawful (excuse/[or] 11 justification). 12

There are two kinds of malice aforethought, express 13 malice and implied malice. Proof of either is sufficient to 14 establish the state of mind required for murder. The 15 defendant acted with express malice if (he/she) 16 unlawfully intended to kill. 17

The defendant acted with implied malice if: 18

1. (He/She) intentionally committed an act; 19

2. The natural and probable consequences of the act were 20 dangerous to human life; 21

3. At the time (he/she) acted, (he/she) knew (his/her) act 22 was dangerous to human life; and 23

4. (He/She) deliberately acted with conscious disregard 24 for (human/ [or] fetal) life. Malice aforethought does not 25 require hatred or ill will toward the victim. It is a mental 26 state that must be informed before the act that causes 27 death is committed. It does not require deliberation or the 28 passage of any particular period of time. 29

CALCRIM 521 First Degree Murder (Pen. Code, § 189) 30

The defendant has been prosecuted for first degree murder 31 under the theory that the murder was willful, deliberate, 32 and premeditated. 33

The defendant is guilty of first-degree murder if the People 34 have proved that (he/she) acted willfully, deliberately, 35 and with premeditation. The defendant acted willfully if 36 (he/she) intended to kill. The defendant acted deliberately 37 if (he/she) carefully weighed the considerations for and 38 against (his/her) choice and, knowing the consequences, 39 decided to kill. The defendant acted with premeditation if 40


(he/she) decided to kill before committing the act that 1 caused death. 2

The length of time the person spends considering whether 3 to kill does not alone determine whether the killing is 4 deliberate and premeditated. The amount of time required 5 for deliberation and premeditation may vary from person 6 to person and according to the circumstances. A decision 7 to kill made rashly, impulsively, or without careful 8 consideration is not deliberate and premeditated. On the 9 other hand, a cold, calculated decision to kill can be 10

reached quickly. The test is the extent of the reflection, 11 not the length of time. 12

CALCRIM 570 Voluntary Manslaughter: Heat of Passion 13 — Lesser Included Offense (Pen. Code, § 192(a)) 14

A killing that would otherwise be murder is reduced to 15 voluntary manslaughter if the defendant killed someone 16 because of a sudden quarrel or in the heat of passion. The 17 defendant killed someone because of a sudden quarrel or 18 in the heat of passion if: 19

1. The defendant was provoked; 20

2. As a result of the provocation, the defendant acted 21 rashly and under the influence of intense emotion that 22 obscured (his/her) reasoning or judgment; AND 23

3. The provocation would have caused a person of 24 average disposition to act rashly and without due 25 deliberation, that is, from passion rather than from 26 judgment. 27

Heat of passion does not require anger, rage, or any 28 specific emotion. It can be any violent or intense emotion 29 that causes a person to act without due deliberation and 30 reflection. In order for heat of passion to reduce a murder 31 to voluntary manslaughter, the defendant must have acted 32 under the direct and immediate influence of provocation 33 as I have defined it. While no specific type of provocation 34 is required, slight or remote provocation is not sufficient. 35 Sufficient provocation may occur over a short or long 36 period of time. 37

It is not enough that the defendant simply was provoked. 38 The defendant is not allowed to set up (his/her) own 39 standard of conduct. You must decide whether the 40 defendant was provoked and whether the provocation was 41 sufficient. In deciding whether the provocation was 42 sufficient, consider whether a person of average 43


disposition, in the same situation and knowing the same 1 facts, would have reacted from passion rather than from 2 judgment. 3

If enough time passed between the provocation and the 4 killing for a person of average disposition to “cool off” and 5 regain his or her clear reasoning and judgment, then the 6 killing is not reduced to voluntary manslaughter on this 7 basis. 8

The People have the burden of proving beyond a 9 reasonable doubt that the defendant did not kill as the 10 result of a sudden quarrel or in the heat of passion. If the 11 People have not met this burden, you must find the 12 defendant not guilty of murder. 13

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PRETRIAL MOTION 1

(Middle school students do not argue the pretrial motion 2 and therefore the bracketed information and Exhibit A may 3 be used at trial.) 4

This section of the mock trial contains materials and 5 procedures for the preparation of a pretrial motion on an 6 important legal issue. The presider’s ruling on the pretrial 7 motion will have a direct bearing on the admissibility of 8 certain pieces of evidence and the possible outcome of the 9 trial. The pretrial motion is designed to help students learn 10 about the legal process and legal reasoning. Students will 11 learn how to draw analogies, distinguish a variety of 12 factual situations, and analyze and debate constitutional 13 issues. These materials can be used as a classroom activity 14 or incorporated into a local mock trial competition. The 15 pretrial motion is the only allowable motion for the 16 purposes of this competition. 17

The pretrial issue involves the Fourth Amendment 18 protection against unreasonable searches and seizures. 19 The question is whether Erik Smith’s use of the smart 20 camera provided by Deputy Sheriff Toni Garrett to capture 21 an image of snake-feeding tongs on the property of 22 defendant Jamie Cobey on the morning of April 29 23 constituted a search under the Fourth Amendment and 24 therefore required a search warrant by the Burnsley 25 Sheriff’s Department, or if it was a search, it fell outside 26 the warrant requirement. 27

The defendant seeks to exclude the image of the snake 28 tongs (Exhibit A) from evidence admitted at trial as the 29 product of a search in violation of the Fourth Amendment. 30 If the use of the camera was unconstitutional, Exhibit A 31 may not be used at trial, and neither may the evidence 32 within brackets in the Fact Situation and witness 33 statements. In that case, neither the attorneys nor 34 witnesses may refer to or discuss Exhibit A or the 35 bracketed information during the subsequent trial. 36

Legal issues are matters exclusive to the pretrial hearing. 37 For trials in which there is no pretrial hearing, evidence in 38 brackets and Exhibit A may be admissible at trial. 39

In the area of criminal due process, the Fourth 40 Amendment protects individuals, their homes, and 41 belongings from unreasonable police searches and 42 seizures. (“Police” here refers to any law enforcement 43 agency.) The Fourth Amendment originally protected 44


citizens from actions by the federal government, but 1 Fourth Amendment protections are applied to the states 2 through the due process clause of the 14th Amendment. 3 Law enforcement officers often must search or seize 4 persons or their property when investigating crimes or 5 apprehending suspects. The tension between personal 6 freedom and governmental power has led to numerous 7 debates and court decisions over the years. The key issues 8 for both the defense and prosecution are (1) whether there 9 was a search or seizure; and (2) whether the search or 10 seizure was lawful. 11

In this case, the court must consider whether the 12 defendant’s backyard was part of the curtilage 13 surrounding the defendant’s home and therefore entitled 14 to the heightened Fourth Amendment protection 15 traditionally afforded to the home; and whether the video 16 surveillance that produced the still photo of the snake-17 feeding tongs (Exhibit A) constituted a search in violation 18 of the Fourth Amendment. 19

Pretrial Arguments 20

The prosecution will argue that a private citizen may place 21 a video camera on their property and can voluntarily 22 provide footage captured by a video camera to the police. 23 Therefore, the video surveillance from the smart camera 24 was not a search by law enforcement requiring a warrant. 25 Furthermore, the still image taken from the video 26 surveillance footage is admissible because the image was 27 taken from an area that was not part of the curtilage of 28 Cobey’s home. (Curtilage is private land connected to a 29 home, usually within an enclosure.) The prosecution will 30 also argue that Cobey’s backyard was partially open to 31 public land that bordered the parcel on which Cobey’s 32 home was located and was therefore in a law enforcement 33 officer’s plain view, making the search an exception to the 34 warrant requirement. 35

The defense will argue that the smart camera was 36 provided to Smith by the sheriff’s deputy, and that the 37 deputy told Smith where to place the camera. 38 Furthermore, the deputy had constant and permanent 39 access to the video captured by the camera, thus making 40 Erik’s conduct surveillance as an agent of law 41 enforcement and not in the role of private citizen. The 42 backyard itself constitutes the curtilage of Cobey’s home 43 and therefore entitled Cobey to the heightened Fourth 44 Amendment protection traditionally afforded to the home. 45 The defense will also argue that the image of the snake-46


feeding tongs must be excluded because Cobey had a 1 reasonable expectation of privacy in Cobey’s own backyard, 2 requiring the deputy to obtain a search warrant prior to 3 accessing the video footage taken from the smart camera. 4

Sources 5

The sources for the pretrial motion arguments are a 6 “closed library,” which means that Mock Trial participants 7 may only use the materials provided in this case packet. 8 These materials include: any relevant testimony to be 9 found in any witness statements, excerpts from the U.S. 10 Constitution, and edited court opinions. Relevant witness 11 testimony is admissible in the pretrial hearing without 12 corroborative testimony for the purposes of the pretrial 13 motion only. 14

The U.S. Constitution, U.S. Supreme Court holdings, 15 California Supreme Court and California Appellate Court 16 holdings, as well as Ninth Circuit Court of Appeals 17 holdings are all binding and must be followed by 18 California trial courts. All other cases are not binding but 19 are persuasive authority. In developing arguments for this 20 Mock Trial, both sides should compare or distinguish the 21 facts in the cited cases from one another and from the 22 facts in People v. Cobey. 23

SOURCES FOR PRETRIAL HEARING 24

CONSTITUTIONAL 25

U.S. Constitution, Amendment IV 26

The right of the people to be secure in their persons, 27 houses, papers, and effects, against unreasonable searches 28 and seizures, shall not be violated, and no Warrants shall 29 issue, but upon probable cause, supported by Oath or 30 affirmation, and particularly describing the place to be 31 searched, and the persons or things to be seized. 32

U.S. Constitution, Amendment XIV 33

“Section 1. All persons born or naturalized in the United 34 States, and subject to the jurisdiction thereof, are citizens 35 of the United States and of the States wherein they reside. 36 No State shall make or enforce any law which shall 37 abridge the privileges or immunities of citizens of the 38 United States; nor shall any State deprive any person of 39 life, liberty, or property, without due process of law; nor 40 deny to any person within its jurisdiction the equal 41 protection of the laws.” 42


Federal Cases 1

Katz v. United States, 389 U.S. 347 (1967) 2

Facts: FBI agents attached an electronic listening device to 3 the outside of a public phone booth in order to hear the 4 defendant’s end of the conversation in which the 5 defendant transmitted gambling information in violation 6 of a statute. 7

Issue: Did the government’s eavesdropping technique 8 violate the privacy which the defendant relied on, thus 9 constituting a search and seizure within the meaning of 10 the Fourth Amendment? 11

Holding: Yes. The government’s activities in electronically 12 listening to and recording the defendant’s words 13 constituted a search and seizure requiring a warrant. The 14 court established a two-part test to determine what 15 protection the Fourth Amendment gives to people. First, 16 has the person shown an actual (subjective) expectation 17 of privacy in the object searched or seized? Second, does 18 society view that expectation as reasonable? “Objects, 19 activities, or statements that [a person] exposes to the 20 ‘plain view’ of outsiders are not protected because no 21 intention to keep them to himself has been exhibited.” 22

Kyllo v. U.S. 533 U.S. 27 (2001) 23

Facts: During an investigation of a suspected marijuana-24 growing operation, police used a thermal imaging device 25 to detect heat through the walls of the defendant’s home. 26 The device detected heat that was consistent with the 27 presence of heat-lamps used to grow cannabis illegally 28 indoors. 29

Issue: Was the use of a thermal-imaging device an 30 unreasonable search of the defendant’s home? 31

Holding: Yes. The defendant did have a reasonable 32 expectation of privacy in what takes place within the 33 defendant’s own home. The thermal imager was not readily 34 available for general public use, and it explored “details of a 35 private home that would previously have been unknowable 36 without physical intrusion.” Even though the thermal 37 imaging was not a “‘significant’ compromise of the 38 homeowner’s privacy,” the court looked to the original 39 meaning of the Fourth Amendment, which was “a firm line 40 at the entrance to the house.” Therefore, “the surveillance is 41 a Fourth Amendment ‘search,’ and is presumptively 42 unreasonable without a warrant.” 43


United States v. Dunn, 480 U.S. 294 (1987) 1

Facts: During the course of surveillance of the defendant’s 2 truck, DEA agents took aerial photographs of the truck 3 backed up to the defendant’s barn on the premises of the 4 defendant’s ranch. The ranch was completely enclosed by 5 a fence. Based on the surveillance, agents crossed the 6 perimeter of the fence. At the barn, they smelled 7 chemicals and shined a flashlight through the locked gate 8 of a barn and saw evidence of an illegal narcotics 9 laboratory. 10

Issue: Was a search warrant needed for the DEA agents to 11 peer into the open side of a barn that is located in a field 12 on private property? 13

Holding: No. The court held that the Fourth Amendment 14 protects a home and its curtilage and established a four-15 part test to use when examining issues of curtilage. The 16 test includes: the proximity of the area claimed to be 17 curtilage to the home; whether the area is included within 18 an enclosure surrounding the home; the nature of the uses 19 to which the area is put; and the steps taken by the 20 resident to protect the area from observation by people 21 passing by. The Fourth Amendment does not protect 22 “open fields” (land outside the curtilage). Open fields 23 need not be “open” nor “fields;” they can be unoccupied 24 or undeveloped land. They are not houses or effects as 25 specified in the Fourth Amendment. The barn was 26 separated from the house by a fence and was a substantial 27 distance away from the house. The agents had other data 28 that led them to suspect the defendant, and the defendant 29 did little to protect the barn from observation. Even if the 30 defendant did have a reasonable expectation of privacy in 31 the barn, the search still did not violate the Fourth 32 Amendment because the officers never entered the barn. 33

United States v. Jones 565 U.S. 400 (2012) 34

Facts: Without a warrant, officers attached a tracker to the 35 defendant’s vehicle and used it to follow him for a month. 36 Evidence from the 24-hour per day, month-long 37 surveillance was used to convict the defendant of a 38 criminal conspiracy. 39

Issue: Did the warrantless use of a tracking device on the 40 defendant’s vehicle used to monitor its movements on 41 public streets violate the defendant’s Fourth Amendment 42 rights? 43

Holding: Yes. The court held that the installation of a GPS 44


tracking device on the defendant’s vehicle, without a 1 warrant, constituted an unlawful search under the Fourth 2 Amendment. The court emphasized that the Fourth 3 Amendment provided some protection for trespass onto 4 personal property. The court also emphasized that a 5 Fourth Amendment search occurs whenever the 6 government violates a subjective expectation of privacy 7 that society recognizes as reasonable, which is particularly 8 important in an era where physical intrusion is 9 unnecessary to many forms of surveillance. 10

California v. Ciraolo 476 U.S. 207 (1986) 11

Facts: The police received an anonymous tip that the 12 defendant was growing marijuana in his backyard. Unable 13 to observe the yard from the ground due to a high fence 14 which encircled it, the police secured a private plane and 15 flew over Ciraolo’s house at an altitude of 1,000 feet. The 16 fly-over confirmed the presence of marijuana and the 17 evidence was used to charge the defendant for illegally 18 growing marijuana. 19

Issue: Did the warrantless, aerial observation of the 20 defendant’s back yard constitute a search and violate the 21 Fourth Amendment? 22

Holding: No. Fourth Amendment protections regarding 23 the home are not absolute. Since the observations were 24 “nonintrusive” and “took place within public navigable 25 airspace,” their actions were consistent with the Fourth 26 Amendment. “Any member of the public,” the court’s 27 decision read, “flying in this airspace who glanced down 28 could have seen everything that these officers observed.” 29

United States v. Karo 468 U.S. 705 (1984) 30

Facts: Defendants ordered fifty gallons of ether from a 31 government informant, intending them to be used to 32 extract cocaine from clothes imported into the United 33 States. The informant and owner of the ether gave consent 34 to the police to install a tracking device into one of the 35 cans containing the ether before delivery to the 36 defendants. 37

Issue: Did the installation of a tracking device into a 38 container, with the permission of the original owner, 39 constitute a seizure within the meaning of the 4th 40 Amendment? 41

Holding: No. The Court found that although the cans of 42 ether may have contained an unknown and unwanted 43 object, no meaningful interference with the defendants’ 44


interest in their possessions occurred, and therefore it did 1 not violate the defendants’ Fourth Amendment rights. 2

United States v. Knotts, 460 U.S. 276 (1983) 3

Facts: The defendant’s employer suspected the defendant 4 was stealing chemicals that could be used to make drugs. 5 With the consent of the employer, the police installed a 6 radio transmitter in the container of chloroform that the 7 defendant would receive. By tracking the radio 8 transmitter, officers were able to track the chemicals to a 9 cabin and obtained a search warrant for the cabin. During 10 the search of the cabin they found a fully operable drug-11 manufacturing lab. 12

Issue: Did the police planting and tracking of a radio 13 transmitter violate the Fourth Amendment? 14

Holding: No. The Court held that since the radio 15 transmitter was used primarily to track where the 16 chloroform traveled and where it stopped, the surveillance 17 did not violate the defendant’s right to privacy in his 18 home. Additionally, the use of the radio transmitter did 19 not serve any function that the police could not have 20 performed visually; the transmitter merely made the 21 process easier. 22

U.S. v. Romero-Bustamente, 337 F.3d 1104 (9th Cir. 2003) 23

Facts: Border Patrol agents saw two people jump a border 24 fence and enter Romero’s backyard. Romero’s property 25 was surrounded by, in parts, a brick wall and, in other 26 parts, a wire link fence. In the enclosed backyard behind 27 the house was a shed, and there was a space of about two 28 and half feet between the shed and the fence. The 29 following day, the agents entered Romero’s yard and 30 found two undocumented individuals hiding behind the 31 defendant’s shed. The defendant (Romero) was charged 32 with harboring illegal aliens. 33

Issue: Was the agent’s warrantless search of the 34 defendant’s backyard a violation of the Fourth 35 Amendment? 36

Holding: Yes. The defendant’s backyard was small, 37 enclosed, adjacent to his house, and located behind his 38 house. Under United States v. Dunn (480 U.S. 294), as a 39 matter of law, the warrantless search of the defendant’s 40 backyard was a violation of the defendant’s Fourth 41 Amendment rights. 42


Shafer v. City of Boulder, 896 F. Supp. 2d 915 (D. Nev. 1 2012) 2

Facts: Based on information from Shafer’s neighbors, the 3 police initiated a narcotics investigation suspecting Shafer 4 of selling drugs. The police gave Shafer’s neighbor four 5 infrared, long-range, weatherproof, silent video 6 surveillance cameras, provided to their department from 7 the Department of Homeland Security. One of the cameras 8 was pointed at Shafer’s bathroom window and one at his 9 backyard. The cameras were on 24 hours per day for 56 10 days. When Shafer learned the police provided the 11 cameras, he sued the police for unconstitutional video 12 surveillance of Shafer’s home. 13

Issue: Was the defendant’s backyard included in the 14 curtilage of his home, and if so, was the video 15 surveillance of plaintiff’s backyard a search under the 16 Fourth Amendment? 17

Holding: Yes. The court held that Shafer’s backyard 18 constitutes the curtilage of his home. The yard was in close 19 proximity to the house and was surrounded by a solid-20 paneled, four-to-five-foot-high wooden fence. Shafer called 21 the police after he saw the cameras were focused on his 22 property and after he asked his neighbor to take down the 23 cameras multiple times. Shafer even added additional feet of 24 plywood to his backyard fence to block the cameras. As to 25 the question of whether or not the video surveillance of 26 Shafer’s backyard on behalf of the police violated Shafer’s 27 Fourth Amendment protection against unreasonable 28 government searches, the court looked at (1) the duration of 29 the surveillance, and (2) the government’s ability to collect 30 information they would otherwise have been able to 31 observe. The court found that the cameras provided by the 32 police undoubtedly contained video-recording capabilities 33 superior to a video camera purchased from a department 34 store. As such, this case presents similar facts to Kyllo where 35 “the Government uses a device that is not in general public 36 use to explore details of a home that would previously have 37 been unknowable without physical intrusion.” Additionally, 38 the court found that the duration and intensity of the 39 surveillance violated Shafer’s reasonable expectation that his 40 home would not be the subject of unwarranted government 41 video surveillance. 42

43


1

State Cases 2

People v. Weaver (12 N.Y. 3rd. 433) NY Court of 3 Appeal 4

Facts: Without a warrant, police placed a GPS device on 5 the defendant’s van while the van was parked on a public 6 street. The GPS monitored the van’s locations for a total of 7 65 days. The tracking history was transmitted to and 8 saved by a computer in the investigator’s vehicle. The 9 police used the data collected to convict the defendant of 10 two burglaries. 11

Issue: Was the police use of the tracking device for 65 12 days a violation of the defendant’s Fourth Amendment 13 rights? 14

Holding: Yes. Unlike United States v. Knotts, where the 15 device was installed for a single trip, here officers used the 16 device for 65 days where they would not normally have 17 that much access to surveillance data. In the absence of 18 exigent circumstances, the installation and use of a GPS 19 device to monitor an individual’s whereabouts requires a 20 warrant supported by probable cause. The court further 21 stated that “technological advances have produced many 22 valuable tools for law enforcement and, as the years go 23 by, the technology available to aid in the detection of 24 criminal conduct will only become more and more 25 sophisticated. Without judicial oversight, the use of these 26 powerful devices presents a significant and, to our minds, 27 unacceptable risk of abuse.” 28


WITNESS STATEMENTS 1

PROSECUTION WITNESSES 2 Prosecution Witness 𑁒 Dr. Charlie Dunn (Medical Expert) 3

My name is Dr. Charlie Dunn. I earned a bachelor’s degree in 4 biology at the University of Central California in 2001. After 5 graduation I attended medical school at the university and 6 finished in 2005. I completed my residency, specializing in 7 clinical toxicology in 2009. I completed a fellowship in forensic 8 toxicology in 2010 during which I became familiar with 9 venomous and poisonous animals. I have an interest in poisons, 10 and as a desert resident myself, I am particularly interested in 11 toxins from animals that live in desert communities. 12

In 2015, I became the chief medical examiner for Burnsley 13 County. I am still in this position today. In my time in this 14 position, I have seen three deaths due to venomous bites (one 15 from a snake and two from spiders) in the area. It is true that 16 it is rare to die from a rattlesnake bite because most people 17 seek immediate medical care. Nationally, it is estimated that 18 7,000 to 8,000 people are bitten by venomous snakes each 19 year, and about five of those people die. Without proper 20 medical care, the number of deaths would be much higher. 21

On May 31, I began the autopsy of Erik Smith. When I 22 conducted a visual examination of the body, I found two 23 puncture wounds on the body’s left wrist. Around the 24 wounds the skin was red and swollen. It was clear that the 25 wound site was where the snake had bitten the victim. From 26 Deputy Garrett, I learned that the snake had been inside the 27 victim’s mailbox when the snake bit the victim. Snakes are 28 known to squeeze into tight spaces, and even into 29 mailboxes, although that is rare. Usually, desert snakes seek 30 more easily accessible cool spaces to hide in, such as under 31 rocks or in crevices. I am familiar with wire humane animal 32 traps like the one Jamie Cobey claims to have had. Though 33 snake-tongs are the best way to handle deadly rattlesnakes, I 34 have seen a few reptile specialists and park rangers (wearing 35 gloves) open a humane animal trap and dump out a 36 rattlesnake from inside the trap onto the ground or into 37 another space, such as a terrarium. If Cobey had placed a 38 small amount of food in the mailbox, that would have made 39 luring the snake out of the humane animal trap much easier. 40

I was also given the body of a dead rattlesnake. I did a 41 quick visual examination of the rattlesnake but did not 42 conduct an autopsy of the snake. I noted it was two feet 43 long and two inches wide at its widest point in diameter and 44 that it was missing its rattle. Based on my studies, I know that 45 a snake’s rattle can come off in the wild, but it takes a good 46


amount of force. [I was asked to view a photo of tongs located 1 at the defendant’s property. The small object located near the 2 tongs is consistent with the size and shape of the rattle that 3 could have come off the snake I examined — though I can’t be 4 sure.] I further inspected the snake and recognized it to be a 5 Mojave rattlesnake. These types of snakes have venom which 6 contains a mixture of neurotoxins, which can cause paralysis, 7 and hemotoxins that enter the bloodstream and can cause 8 swelling and hemorrhages. The venom from these snakes is 16 9 times more potent than other rattlesnake species. 10

As I continued the autopsy of the victim’s body, I found 11 that the kidneys showed acute tubular necrosis, which is a 12 kidney disorder that can lead to kidney failure. The 13 rattlesnake’s toxins can exacerbate a pre-existing 14 condition. However, in most cases of death by snake bite, 15 necrosis happens as a direct cause of the bite. 16

Upon examination of the heart, I found the heart had 17 experienced epicardial hemorrhaging, which causes bleeding 18 within the pericardium (the membrane surrounding the 19 heart). Epicardial hemorrhaging is often a direct byproduct 20 of the hemotoxins within the snake’s venom which causes 21 red blood cell death and thinning of the blood. 22

The neurotoxins in the venom from this species of snake 23 also attacks both the nervous system as well as the 24 respiratory system. When neurotoxins enter the body, 25 they can cause paralysis and unconsciousness because of 26 the enzymes and peptides emitted through the venom. 27 Based on the state of the body when I examined it, I 28 believe that after the bite, Smith may have felt relatively 29 fine except for local pain in the left wrist and 30 arm. However, as the venom spread throughout his body, 31 Smith likely began to fall in and out of consciousness but 32 did not die instantly. 33

Based on the victim’s body temperature taken during 34 intake and the state of rigor mortis, I would estimate that 35 the victim succumbed to lethal envenomation and died 36 somewhere between 3:00 AM and 6:00 AM on April 30. 37

Based on the wound site and autopsy, I believe that Smith 38 was killed by the snake bite and would not have been able 39 to survive the bite, regardless of any underlying health 40 conditions. Any intervening factors, namely Smith’s 41 getting up and moving around, Angel’s sucking the venom 42 out of the wound, and Angel taking a few minutes to look 43 for the snake, all were ill-advised but well-intentioned. 44 However, they would not have changed the fact that the 45 bite itself was lethal without Smith having almost 46 immediate access to the antivenom. 47


Prosecution Witness 𑁒 Deputy Sheriff Toni Garrett 1

My name is Toni Garrett, and I have been a deputy sheriff 2 with the department for the last 20 years here in 3 Burnsley. 4

I have known Erik Smith for the entire time I have worked 5 for the sheriff’s department here in Burnsley. All I know is 6 that Smith grew up in Northern California but moved east 7 to Burnsley as a young man, working as a contractor for 8 construction jobs before acquiring a few properties here 9 that he rented out for the last 15 or so years. Smith was 10 well-known in town for his expertise in desert living. He 11 also served on the town council off and on for most of the 12 time he lived in Burnsley. Smith had a reputation for 13 being rude to some fellow council members and to 14 residents speaking in front of the council. But several local 15 businesses liked the policies he promoted. 16

I became aware of Jamie Cobey when Cobey moved here 17 with Cobey’s mother about 10 years ago. I was aware that 18 Cobey’s mother had a disabling respiratory illness and that 19 Cobey was her primary caretaker. About four years ago, our 20 department received a call from Smith complaining that 21 Cobey was refusing to move Cobey’s car from Smith’s 22 driveway. I responded to the call, and we resolved the 23 dispute. But since then, I have personally responded to half a 24 dozen or so calls from either Smith or Cobey, each 25 complaining about the other. Cobey’s calls were usually noise 26 complaints about Smith in the morning hours. On at least two 27 occasions, Smith complained that Cobey left animal feces on 28 Smith’s doorstep. Cobey admitted to it, but then Smith would 29 also admit to provoking Cobey with rude outbursts or playing 30 loud music and damaging Cobey’s prized cacti and 31 succulents. Frankly, I was tired of wasting my time 32 responding to these calls. Both parties were acting Iike 33 children. I strongly suggested they seek mediation, but I doubt 34 they ever did. 35

Last October, I responded to one of Smith’s calls in which 36 he suspected that Cobey had broken into his house. There 37 was no evidence of that, but I provided Smith with a state-38 of-the-art security camera from our department. I showed 39 Smith how to set it up on a pole on the property and, with 40 the motion-detector, catch Cobey coming into Smith’s 41 yard through the gate. The camera feed would 42 automatically upload to Smith’s data storage, and I 43 explained how Smith could change the settings so that it 44 could share with our department, too, if Smith chose. 45


I responded to a call on April 30, 2021, in the morning at 1 about 8:40 AM after an older man’s body was reported 2 found at 46601 Raptor Road. I was well aware that it was 3 Smith’s address. At the scene I found a lineworker, Angel 4 Russell standing next to Smith’s face-down body. I did a 5 quick pulse check and was unable to find one. I 6 conducted a visual inspection of the body, and I noticed 7 the distinctive puncture marks of a rattlesnake on Smith’s 8 left wrist. Russell directed me to the body of a dead 9 rattlesnake in some shrubs by the road in front of the 10 house. I say it was a rattlesnake because of its fangs and 11 markings, but its rattle was missing. The ambulance 12 arrived about 10 minutes after I did. The paramedics 13 carefully loaded Smith into the ambulance, and I escorted 14 them to the hospital. I learned shortly after we arrived at 15 the hospital that Smith had been pronounced dead. 16

I returned to the scene and asked the lineworker, Angel 17 Russell, if Russell had seen anyone in the area or seen 18 what happened to Smith. Russell had witnessed Smith get 19 bitten by a rattlesnake that was in Smith’s mailbox the 20 day before, at around 12:00 PM. I asked if Russell knew 21 how the snake died, and Russell said that Russell killed it 22 with a breaker bar the day before, hitting the snake on its 23 head and then throwing it into a shrub. 24

On the day Smith was bitten, Russell said Russell had just 25 arrived at work, when Russell had seen someone come 26 out of 46603 to stand near the mailbox. The person was 27 holding what looked like a small, wire-looking cage and a 28 canvas gardening tool bag. Russell said the bag appeared 29 to have items in it, but that Russell could not identify 30 what was in the bag. Russell had not seen anyone else on 31 the road that day, except Smith. 32

I investigated the mailbox and saw a slot opening about 33 six inches long and one-and-three-fourths inches wide on 34 top. I did not see any patent (visible) fingerprints on the 35 mailbox, so I dusted and then lifted latent fingerprints 36 (which are not visible to the naked eye) from the exterior 37 of the mailbox and the handle of the mailbox. 38

The mailbox was open and empty. In Smith’s home, I 39 found three envelopes on the kitchen counter, which I 40 later learned contained rent checks from Smith’s renters, 41 except Cobey, all of whom I interviewed and determined 42 were not involved in Smith’s death. I took all of these 43 items as well as the lifted prints back to the station. I also 44 made a cursory visual search of the ground around the 45 mailbox and saw nothing out of the ordinary. I asked 46


Russell if Russell knew Smith, and Russell did not. 1

I knocked on Cobey’s door and spoke with Cobey. I asked if 2 Cobey had seen or heard anything yesterday, relating to 3 Smith. Cobey said no. I asked about what Russell told me 4 about the day before. Cobey said Cobey was gardening the 5 morning before and had an animal trap, looking to trap snails 6 or rabbits. Cobey said Cobey had the trap when Cobey went 7 to drop off Cobey’s rent in Smith’s mailbox slot. Cobey also 8 said Cobey was still grieving over Cobey’s mother who died 9 recently, and whose funeral had been a few days before. 10

I left the scene with the dead snake’s carcass and the lifted 11 prints from the mailbox. I also took a photo of the 12 mailbox. Something about the situation just did not sit 13 right with me. It seemed that if the mailbox was high off 14 the ground and closed, how would a snake get in? 15 Knowing what I knew about the two neighbors, I believed 16 the snake bite may not have been an accident. 17

On May 1, I returned to Raptor Road and interviewed 18 another neighbor of Smith’s named Terry Edwards. 19 Edwards lived about half a mile down the road from 20 Smith. Edwards had been a friend of Smith and an 21 acquaintance of Cobey. Edwards had hired Cobey for 22 some gardening work that Cobey apparently never 23 finished. Edwards told me that Smith often complained 24 about Cobey because Cobey could not pay rent. I noticed 25 that the other tenants Edwards mentioned were named on 26 the envelopes, but I did not see one from Cobey. I asked if 27 Edwards knew if Cobey paid rent, and Edwards 28 mentioned that there was a constant dispute between 29 Smith and Cobey over rent. 30

Edwards told me that Edwards saw Cobey looking 31 disoriented at the funeral on April 28. Edwards also 32 overheard an argument between Cobey and Smith at the 33 funeral. Edwards heard Cobey yell at Smith, “Leave! You 34 weren’t invited here! My mom hated you!” Edwards also 35 heard Smith yell at Cobey, “It’s your fault your mom 36 died!” 37

Edwards said that a few hours after the funeral, Edwards 38 drove to Cobey’s home to check on Cobey’s well-being. 39 Edwards drove up in front of the home and saw Cobey 40 gardening in Cobey’s front-yard cactus garden. Edwards 41 rolled down Edwards’s side window and asked if Cobey 42 was okay. Cobey blurted out, “I am going to kill him!” 43 Edwards thought Cobey was just venting and left. 44


I also went to speak to another neighbor of Smith’s, 1 Francis Yazzie. Francis told me that Francis was good 2 friends with Cobey, and they both hung out most 3 evenings. I asked Francis about the dispute at the funeral, 4 and Francis told me that Francis witnessed the dispute. 5

[The next day on May 2, I remembered the video feed 6 from Smith’s security camera. I went into the cloud 7 account we’d set up for Smith to share video feed with 8 our department. I saw a video from 7:00 AM on April 29. 9 An animal or person nearby may have triggered the 10 camera’s motion detector, but I did not see anyone in the 11 video. The video showed Cobey’s backyard and on the 12 ground, there was what I recognized to be snake tongs 13 which is a tool people use out here in the desert to grip 14 deadly snakes safely from a distance. We even have a pair 15 in our department. There was also a small unidentifiable 16 object next to the tongs. It could be a piece of wood or 17 even a rattle. It is hard to tell from the photo.] 18

Later on May 2, I went to interview Cobey at Cobey’s 19 home. I asked Cobey if Cobey had heard the news of 20 Smith’s death and Cobey said that it was a “shame” and 21 that it sounds like a “tragic accident.” Cobey appeared 22 jittery and told me that Cobey was very busy and asked if 23 we could stop the interview. I asked Cobey if I could take 24 a look around. Cobey gave me permission to look around 25 as Cobey tended to the garden. 26

In Cobey’s living room, I saw books on cacti and 27 succulents, a couple of books about venomous snakes and 28 another about poisonous desert animals. A small tub was 29 on the shelf, which contained what appeared to be five 30 rattlesnake rattles, and next to it was a small vial of liquid 31 with a handwritten label on it saying “antivenom.” I went 32 out to the garden and asked Cobey about those items. 33 Cobey responded by saying it was normal for gardeners to 34 be well-informed on pests, including which snakes are 35 most and least venomous in order to protect themselves 36 on the job. Cobey told me that Cobey found the snake 37 rattles in the desert from time to time. 38

[At that point, I asked if Cobey had any snake tongs. 39 Cobey abruptly said that Cobey had snake tongs up until a 40 few days before.] Cobey explained that someone bought 41 some of Cobey’s tools, including Cobey’s humane animal 42 trap, [snake tongs,] hunting knife, and some other tools. 43

I told Cobey that I was just about finished looking around 44 and asked if Cobey knew of anyone who might have 45 wanted to see Smith dead. Cobey responded, “Look. Erik 46


was a bad person. It is a shame Erik is dead, but I was not 1 involved.” Cobey told me about Cobey’s mother, and 2 about Smith shutting the electricity off, leading to the 3 mother’s death. I asked if Cobey paid rent, and Cobey said 4 only a little bit, whatever Cobey could afford when rent 5 was due, but never the whole amount during the 6 pandemic. 7

On my way out, I glanced into the garage, which was 8 located off the kitchen. There I saw a table on which I 9 found a pair of animal handling gloves, a long-sleeved 10 shirt, and what I recognized to be “snake proof” boots, or 11 thick-skinned boots meant to protect against most snake 12 bites. I also saw a large canvas tool bag that looked 13 empty. The bag was about 17 inches long, 8 inches wide, 14 and 10 inches tall. I asked Cobey why the items were 15 together in the garage, and Cobey claimed that Cobey kept 16 the items there when Cobey wanted to garden. 17

On May 31, I received the report from forensics that 18 fingerprints belonging to Cobey, Smith, and Dani Emling 19 were found on the front mailbox-door as well as the top of 20 Smith’s mailbox. There is no method to determine the 21 precise time when fingerprints may have been left on a 22 surface, but the mere presence of Cobey’s fingerprints 23 became a factor in my consideration of Cobey as a suspect 24 in Smith’s death. Based on my interview with Dani 25 Emling, I determined that Emling had an alibi and was not 26 a suspect. 27

Based on evidence collected, I requested and received a 28 warrant and arrested Cobey on June 3, 2021. 29

30 31 32 33 34 35 36 37 38 39 40 41 42


Prosecution Witness 𑁒 Angel Russell (Lineworker) 1

My name is Angel Russell and I have been a lineworker in 2 Burnsley County for 15 years. I have worked on just about 3 every line in the town of Burnsley and know many of the 4 residents there. I recognize Smith from around town but 5 not any more than that. I was working on a powerline 6 pole on Raptor Road from morning into the evening of 7 April 29 and again on April 30. 8

On April 29, 2021, I was working on the power lines about 9 100 feet down the road from Smith’s home. In the 10 morning, just after 8:30 AM, I had just climbed up the 11 powerline pole. I looked over the nearest houses, which 12 were 46601 and 46603. I saw someone come out of 46603 13 and walk toward the mailboxes in front of the buildings. I 14 waved, but I guess the person did not see me. The person 15 was wearing jeans and a long-sleeved T-shirt. I noticed 16 the person was carrying something, like a medium-sized 17 wired cage. I do not remember if there was anything 18 inside the cage, but I did see the person look down at the 19 cage a few times. I also saw the person carrying a 20 gardening-type tool bag with some items that I could not 21 identify from where I was working, but the bag looked 22 bulky. I assumed it was full of gardening tools. I looked 23 down at my own tools for a second, then I looked back 24 and saw the person standing next to the mailbox in front 25 of 46601. I went back to my work and did not notice 26 when the person left the scene. 27

At around 12:00 PM as I was finishing up for the day, I 28 saw an older man come out of 46601, walking to the 29 mailbox. I saw it was Smith. I waved at Smith and turned 30 around to wrap up my work. A moment later I heard a 31 loud scream coming from Smith’s direction. I looked over 32 and saw Smith stepping away from the mailbox and trying 33 to shake off what looked like a snake from Smith’s hand 34 or wrist. I noticed a few envelopes falling to the ground. I 35 climbed down the pole and ran over to the mailbox and 36 saw Smith sitting on the ground, groaning. I looked 37 around and saw what looked like a rattlesnake, but I 38 noticed immediately that it had no rattle. I yelled for help. 39

In a panic, I looked around to find something to hit the 40 snake with. I had a four-foot steel breaker bar in the back 41 of my truck which was parked next to the powerline pole. 42 I ran to get the breaker bar, and when I came back, the 43 snake was slithering slowly in the middle of the road. 44 Smith stood up and screamed “Jamie!” and started to 45 walk away, kind of in a daze. I told Smith to stay still, and 46 Smith just sat on the ground, near the mailbox. 47


I hit the snake with the breaker bar and killed it before it 1 could get away. I kicked its body into some shrubs in 2 front of Smith’s place. I could see that Smith was in a lot 3 of pain when all of a sudden, I remembered seeing 4 something on T.V. about sucking the venom out of a 5 wound. I bent down and tried sucking the venom out of 6 Smith’s wound, but I do not know if it did much good. His 7 wrist was swollen, and I got mostly blood and spit it out. I 8 thought maybe I should wait and was still feeling 9 panicked, not sure what to do. 10

Smith then stood up again and said that even though his 11 wrist hurt terribly, he felt okay. I suggested he go to a 12 doctor immediately, but Smith said it wasn’t necessary. 13 He said he was going to put ice on the wrist and “tough it 14 out.” Then, he grabbed the envelopes off the ground, 15 went inside his house, and shut the door. I packed up my 16 things and left. I knew I would be back in the morning to 17 finish up a few tasks on the powerlines. 18

When I came back at about 8:00 AM the next day, I was 19 shocked to see Smith wearing pajamas, lying face down in 20 the dirt in his front yard. The front door of his house was 21 open, as if he walked out in a hurry but then fell over. I 22 checked for a pulse on his neck, but I felt nothing. I called 23 911 immediately. I called out for help, too, but no one 24 responded. 25

At about 8:40 AM, a sheriff’s car pulled up. The sheriff 26 asked me what I knew. I told the sheriff that I had been 27 working at the top of the powerline the day before and 28 had seen Smith getting bitten and refusing help for the 29 bite. I also told the deputy that someone came out of 30 46603 the day before in the morning and stood near the 31 mailbox closest to 46601, but I did not see them open or 32 close the mailbox-door. Other than that, I had been 33 focused on my work both days and did not see anyone 34 else or anything else unusual. 35

36 37 38 39


Prosecution Witness 𑁒 Terry Edwards (Neighbor) 1

My name is Terry Edwards. I’m a retired lawyer. A few 2 years ago, I moved to the desert to get away from it all. 3

I have known Jamie and Erik for a long time as we all live 4 near each other. I have lived down Raptor Road from Erik 5 for ten years. Erik and I were friends. I was there when 6 Jamie and Jamie’s mom moved in. Jamie’s mom was a 7 nice person. Jamie, however, could be a real pain. Erik 8 was not the easiest to get along with either, but Erik 9 would never intentionally hurt anyone. Still, Jamie threw 10 animal droppings on Erik’s front porch once or twice. 11 That is unacceptable. I even saw Jamie throw stuff into 12 Erik’s yard, block Erik’s driveway with Jamie’s car, and 13 make tire tracks in Erik’s yard. They did not like each 14 other, and yet Jamie never moved away. It must be 15 because of Jamie’s mom. 16

I had Jamie do some gardening for me about a year ago, 17 but Jamie did not finish planting succulent cuttings and 18 small cactus in my drought-tolerant garden. I have called 19 Jamie and been over to Jamie’s house multiple times to 20 ask Jamie to finish the work, but Jamie ignored me every 21 time. Jamie asked me to pay more money for the work. 22 However, it was a large sum of money that I paid the first 23 go around, and I wasn’t going to finish paying it off until 24 the job was done, Anyway, I would see Jamie around 25 town, but Jamie always avoided me. 26

I ran into Jamie at the grocery store in town just a couple 27 of days after Jamie’s mother died. Jamie told me about the 28 funeral on the afternoon of April 28. Since it is a small 29 town, I decided I would stop by the funeral to give my 30 condolences and put aside our differences for the day. 31

At the funeral reception, I saw Jamie looking angry. I 32 overheard Jamie telling people that “this was it” and 33 Jamie was “finally going to do it.” I did not know what 34 this meant, so I asked Jamie what they were going to do. 35 Jamie did not want to speak to me and told me, “Go 36 away.” I gave Jamie some space and figured this was just 37 Jamie’s grief. 38

I noticed Erik Smith was there. Over the last year, Erik 39 would tell me how frustrated Erik was with Jamie for not 40 paying rent. I reminded Erik about the pandemic 41 moratorium, but Erik said the rent was so low, Jamie 42 could afford it if Jamie just “hustled more gardening 43 work.” Erik had told me that Jamie stopped paying except 44 for a little bit every couple of months, but that Erik had 45 ways to make Jamie pay. Whenever I asked what Erik 46 meant, Erik changed the subject. That is as much as I 47


know about their relationship. At the funeral, though, Erik 1 seemed civil, at first, and seemed to want to pay his 2 condolences with everyone else. 3

After a while, I met with a few more people I knew in 4 town. At one point, I saw Jamie run outside the church. 5 After a minute or so, I heard yelling outside and went to 6 check it out. I saw Jamie was yelling at Erik: “Leave! You 7 weren’t invited here! My mom hated you!” I worried that 8 the argument was going to escalate into a fight. At first, 9 Erik kept responding with statements like “I’m sorry for 10 your loss.” This seemed to only further enrage Jamie. 11 Then, Erik calmly asked Jamie, “So when are you going to 12 move out?” 13

Jamie’s face turned red. Jamie yelled, “You killed my 14 mom!” Erik suddenly pointed at Jamie and yelled, “Me? 15 It’s your fault your mom died! You should have been 16 more responsible and taken care of her!” 17

At that moment, I saw Jamie clench a fist. Then Erik 18 laughed, turned, and threw up Erik’s arms. I know Erik 19 could be rude to people and made some enemies in town, 20 but I thought that was over the line. This was a funeral. 21

I was concerned the argument would escalate into 22 violence, so I stepped up and suggested they separate and 23 discuss this at another time. Jamie said, “Never!” Then, 24 Jamie hurried off in Jamie’s car, and Erik told me Erik 25 decided to go home. Erik got into Erik’s truck and drove 26 off. That was the last time I saw Erik. 27

A few hours after the emotional funeral, at around dusk, I 28 was concerned about Jamie, so I drove to Jamie’s 29 residence to check up on Jamie. When I arrived at the 30 house, I saw Jamie in Jamie’s front-yard garden. I rolled 31 my window down with the intention to talk to Jamie, 32 when suddenly I heard Jamie scream, “I am going to kill 33 him!” Jamie seemed emotionally drained. I ignored the 34 comment and suggested Jamie get some rest. Jamie said 35 Jamie was exhausted and would be heading to bed shortly 36 after Jamie had finished something “important” that Jamie 37 was working on. I told Jamie I would check-in on Jamie 38 the following day, and then I drove home. 39

Thinking back, it was odd seeing Jamie gardening at dusk. 40 Everyone who lives here knows that snakes are more 41 active early in the morning and at dusk. I just assumed 42 that Jamie was trying to stay busy to keep Jamie’s mind 43 off of the intensely emotional day. 44

45


DEFENSE WITNESSES 1

Defense Witness 𑁒 Jamie Cobey (Defendant) 2

My name is Jamie Cobey. I was a tenant of Erik’s for 3 about 10 years at 46603 Raptor Road. For the past 10 4 years, I lived with my mom here and paid Erik rent. The 5 rent was cheap and did not even go up in the first three 6 years we lived there. But Erik was as bad a landlord as the 7 rent was cheap. Erik rarely fixed anything I requested, and 8 even wandered into my garden and house sometimes as if 9 he lived there. It took me years to figure out that a 10 landlord can’t do that without 24 hours’ written notice. I 11 guess I was pretty naive. 12

That was not the worst thing about Erik. Erik would also 13 blast the loudest music in the morning hours. It really 14 disturbed my mom. We live really close to Erik. I would 15 confront Erik about it, but Erik refused to turn it down 16 and would even turn it up. Once Erik yelled, “I own this 17 town!” I called the police several times on Erik, but it 18 never seemed to result in Erik getting arrested or 19 anything. 20

I got so mad at Erik sometimes, that out of anger I did 21 leave dried coyote scat I found in the desert on Erik’s 22 doorstep. I am embarrassed now that I did that. Erik 23 called the sheriff, which I thought was unnecessary. But I 24 still had to realize it was wrong of me. [I guess Erik 25 wasn’t amused with my prank because some time back in 26 October, Erik put up a video camera in Erik’s backyard 27 with an image of a smiley face that said “Smile, You’re On 28 Camera.” I thought the camera was creepy and weird, 29 since it was pointed toward my yard. I told him he didn’t 30 have my permission to aim the camera into my backyard. 31 After a while, I forgot the camera was there.] 32

When the pandemic hit, our lives, and the lives of many 33 people in Burnsley were turned upside down. Within a 34 couple of weeks, the entire county seemed to shut down, 35 including the restaurant, The Blue Agave, where I had 36 worked for years. The owner, Francis Yazzie, decided to 37 do other work instead of doing take-out food like other 38 places. I was out of a job and could not find anything else 39 nearby. My mom needed me, so I could not find a job 40 where I would have to commute far away or be exposed 41 to a lot of people. It was a scary time for sure. I was 42 especially concerned for people like my mother who had 43 preexisting health conditions. I also knew that Erik had a 44 preexisting health condition and needed to be isolated 45


from others due to the pandemic. Although I did not like 1 Erik, I would not wish COVID-19 on my worst enemy. 2

I decided I would try to make ends meet by stepping up 3 my part-time xeriscape work. (That is landscaping that 4 uses very little water, especially good for the desert.) I 5 have a certificate in xeriscaping in addition to my biology 6 degree. But as it turns out, most people in Burnsley and 7 other nearby towns could not afford to pay me for 8 xeriscaping because of the pandemic. A lot of my reliable 9 clients lost their jobs, too. I only had a few jobs during the 10 pandemic. 11

Consequently, my mom and I lived mostly off her modest 12 state disability check. Thankfully, the state provided a 13 pandemic eviction moratorium, so Erik could not just kick 14 us out onto the street when I could not pay rent. That was 15 a huge relief for my mom. Still, I found a way to pay a 16 portion of the rent every few months in good faith just to 17 let Erik know we needed to live there. 18

I hated the fact that Erik used cannabis. In college, I had a 19 dear friend who became very dependent on cannabis. She 20 was depressed and the cannabis did not help her. She just 21 dropped out of my life and the lives of our friends. It was 22 sad. But since Erik was my landlord, I kept my mouth 23 shut about the cannabis plants in Erik’s garage. Erik even 24 told me that Erik had high blood pressure, a kidney 25 condition, and had suffered from congestive heart failure, 26 but Erik chose to use cannabis rather than take Erik’s 27 prescribed medications. Inside, I seethed at how 28 irresponsible Erik was for growing and using this drug. 29

I recall in December 2020, many of my prize-winning 30 variegated succulent plants had been cut at their roots and 31 removed from their pots in my garden. I asked Smith 32 about it, and he told me that he had destroyed the plants 33 because he thought they attracted “pests.” 34

Worse was the time in early January 2021 when Erik told 35 me that the eviction moratorium was a curse because Erik 36 wanted us off the property. Erik said Erik wanted to tear 37 our house down and start a big, desert “pot farm” on the 38 land. I knew that was illegal and said to Erik that would 39 be criminal. Erik laughed and said I would not be able to 40 stop him. “This town is mine,” he told me. 41

One day, I learned from Dani Emling that Erik sold 42 cannabis to people in town, and that Dani spotted Erik in 43 town selling the cannabis to a minor. I was horrified. Erik 44 was on the town council, which did not have a lot of 45


power, but it meant Erik needed to be ethical. Selling the 1 pot illegally and especially to minors was a deeply 2 immoral thing to do, but I knew that his law-enforcement 3 buddies would not do anything about it. 4

I suspect Erik meant what he said when he said he 5 wanted to tear our house down for an illegal cannabis 6 farm. He really meant to drive us off the land. Erik shut 7 off our electricity and water on multiple occasions. I 8 explained that it was detrimental for my mom’s health 9 and asked Erik to stop. Erik said I should take my mom to 10 a safer, better home. Erik would turn everything back on 11 after I got really mad. I think Erik liked to see me mad. 12

Erik continued to shut off my power in the middle of the 13 spring and summer which are the hottest times of the 14 year. On April 22 this year (I will never forget the date), 15 Erik shut off my power again, and my mother’s oxygen 16 tank shut down. I was out gardening and could not hear 17 my mom gasping and trying to call for help inside the 18 house. The lack of oxygen had sent her into cardiac arrest. 19 I happened to come inside and see her struggling. I 20 realized that the power was off again. I knew the hospital 21 was 45 minutes away, so it would take that much time for 22 an ambulance to arrive, so I got mom into my car and 23 sped toward the hospital. She fell unconscious on the way 24 there, and when we arrived, they were not able to 25 resuscitate her. She died on the way there. I was 26 devastated. Over the next couple of days, I made 27 arrangements for her funeral the following week. I became 28 numb and funneled my energy into planning the funeral. 29

I cannot say that I was not angry at Erik, because I was. 30 But I did not blame Erik entirely for my mom’s death. She 31 had been very ill, and I was extremely sad to lose her. It 32 had only been a matter of time. 33

I held it together until the funeral where I admit I got 34 angry at Erik. I never invited Erik and did not want him 35 there. The pain was still fresh, and we got into a very 36 heated argument. I do not remember everything I said to 37 Erik, but Erik asked me when I was moving out. That was 38 so cruel and not lawful, I just lost my temper. I do recall 39 telling Erik that he killed my mother. I regret having said 40 that. Our neighbor Terry separated us from arguing, and I 41 had to get out of there and go home. 42

I left the funeral in a rush and went to my neighbor 43 Francis Yazzie’s house to unwind. We often had tea and 44 talked in the late afternoons and evenings. But I needed 45 space to be alone that day, so I did not spend as much 46


time as usual there. Being a gardener, there is always 1 work to do. I went back home to do some gardening and 2 get my mind off things. 3

I take a lot of pride in my gardens and have a beautiful 4 front yard, including a small bird pond. Working in my 5 front or backyard gardens is very relaxing. In my front 6 garden, I noticed that snails and rabbits had ruined some 7 of my favorite succulents. Even though this frustrated me 8 greatly, it was good to be angry at something other than 9 Erik. I might have said out loud I was going to kill the 10 snails or rabbits: that I was “going to kill them.” But I 11 really did not mean it literally. Sometimes I say things out 12 of frustration, but I have never killed a snail or a rabbit or 13 any living thing for that matter. When I find snails or 14 rabbits in my gardens, I trap them and take them out into 15 the desert to release them. I got over my anger at Erik 16 through talking it out with Francis and through gardening. 17 I just want to continue my gardening. Business in 18 Burnsley for my gardening and xeriscaping has picked up, 19 and I feel I can contribute a lot of good to the environment 20 and to my community in that way. 21

I have been a gardener for a long time out here, so I am 22 very familiar with the different species of snakes. I spend 23 a lot of time researching rattlesnakes and knowing how to 24 spot Mojave rattlesnakes because they are the most 25 dangerous and therefore important to stay away from. 26 From my reading about poisonous desert animals, 27 including scorpions and snakes, I have learned that long-28 sleeved animal-handling gloves and knee-high “snake 29 proof” boots are good protection, especially in the spring 30 and summer months when rattlesnakes are most active. 31 Those and the canvas gardening-tool bag the deputy 32 found are just some of the things I use occasionally when 33 I garden. I am a member of a couple of animal rights 34 organizations, and my first priority is handling animals 35 humanely and with respect. I would never cut off a 36 snake’s rattle, as I explained to the sheriff, and I only 37 collect rattles that I have found while gardening and 38 hiking. 39

On the morning of April 29, I went to drop off an envelope 40 with $48.00 in cash to pay Erik for part of the rent. I 41 dropped it in the top mail slot in Erik’s mailbox. I am not 42 sure why my envelope was missing later. I know for a fact 43 I put it in Erik’s mailbox. I do not recall touching the 44 mailbox itself on that day, but I may have touched it in 45 the past. At the time, I was holding a humane animal trap 46 in my hand and my canvas gardening tool bag. The trap 47


was a metal, wired, rectangle-shaped, that had a latching 1 wire-door on one side. When I’m gardening, I might leave 2 the trap out and if I catch a snail or rabbit or even a garter 3 snake in it, I can humanely release them in the desert, 4 away from home. I do not remember ever touching Erik’s 5 mailbox on that day, though I have in the past, a couple of 6 times a week. 7

The next day, I put a flier up at the town hardware store 8 that I was selling a bunch of gardening tools. I needed 9 money to pay for the funeral expenses. Someone took my 10 flier and showed up a few days later with cash for the 11 tools. I sold my humane animal trap, [my snake tongs,] 12 hunting knife, and a few other spades and rakes and 13 things. I sold it all too cheap, but anything helps right now 14 to offset my debts. I had a photo of the trap that I 15 provided to Deputy Garrett when I was first questioned. I 16 had nothing to hide by providing it. 17

Again, I did not like Erik. That is not a secret. But I did 18 not kill Erik. 19

20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37


Defense Witness 𑁒 Francis Yazzie (Neighbor) 1

My name is Francis Yazzie. I live at 401 Raptor Road, 2 about a half mile or so down the road from Jamie Cobey 3 and Erik Smith. I owned the Blue Agave restaurant, which 4 celebrated my culture and cuisine. I was forced to close it 5 because of the pandemic. These days I make a living 6 selling my desert-landscape watercolor paintings and 7 handmade jewelry and belt buckles. I do not make as 8 much as I did with the restaurant, but I’m an artist at 9 heart and I enjoy the work tremendously. I work from 10 early morning until about 4:00 PM each day. 11

I have been good friends with Jamie since Jamie moved in 12 about 10 years ago. Jamie and I started to hang out in the 13 early evening during the pandemic, after I was done 14 painting and jewelry making for the day. Often, after 15 Jamie’s mom had been cared for, Jamie would come over 16 around 4:00 PM for a cup of tea made from herbs from my 17 garden. Jamie started to help me in my cactus and 18 succulent garden for free, teaching me about all the 19 characteristics of cacti and succulents, how to take care of 20 the plants and how to build a drought-tolerant landscape. 21 Jamie was always a very patient teacher. Jamie and I 22 talked about maybe going into business together once the 23 pandemic ended. 24

On two occasions, I was at Jamie’s home when the 25 electricity was shut off. I asked if Jamie had paid the bills, 26 and Jamie informed me that Erik would shut the power off 27 to get Jamie to move. I told Jamie that was unfair and 28 probably illegal harassment. Jamie said Jamie was 29 handling it. 30

Erik was not well liked by many in town. He often sold 31 marijuana illegally, even to minors, and he was not kind. I 32 talked to Erik a few times and explained how Jamie’s 33 situation was tough with a sick mom. I asked Erik to stop 34 turning Jamie’s electricity off and demanding rent, as it 35 was probably not even legal during the pandemic eviction 36 moratorium. Erik would always refuse and said he wanted 37 his property back so he could start a big cannabis grow-38 operation. I advised Jamie to hang tight and maybe once 39 Jamie found a new job, Jamie could afford to rent 40 somewhere else. However, Erik continued to shut off 41 electricity and make Jamie miserable. I offered for Jamie’s 42 mom to stay with me until Jamie figured things out, but 43 Jamie said they would be fine. Jamie was a loving 44 caregiver devoted to Jamie’s mom, so they wanted to be 45 close. 46


From what Jamie told me, Jamie spent most of each day 1 caring for Jamie’s mom. Jamie would garden early in the 2 morning, care for Jamie’s mom throughout the day, and 3 maybe do a little more gardening in the afternoon. Again, 4 Jamie sometimes would come over in the late afternoon to 5 hang out and wind down. I appreciated the company. 6

Last week, on the day of the funeral, Jamie came by 7 around 4:00 PM and seemed in an agitated state. I 8 understood why because of the verbal argument Jamie 9 and Erik had earlier that day. Jamie was very quiet but 10 once in a while would mention how hurt Jamie felt, and 11 of course about how much Jamie missed Jamie’s mom. 12 After an hour or so, Jamie seemed pretty calm to me. 13 Jamie even laughed at how absurd the fight from earlier 14 that day seemed. “Erik is just being Erik,” Jamie said. 15 Jamie only stayed for an hour or so before saying Jamie 16 was exhausted and just wanted to unwind in Jamie’s 17 garden. By the time Jamie left, Jamie seemed like Jamie’s 18 usual even-tempered self. 19

I did not see Jamie the following few days. I assumed 20 Jamie was just dealing with the loss of Jamie’s mother. 21 Jamie is such a kind, creative, and gentle person, I was 22 surprised to learn that the police charged Jamie with 23 Erik’s death. I can’t imagine that Jamie is capable of 24 killing anyone. Erik was such a jerk; I would not be 25 surprised to learn that someone else Erik angered in town 26 might have something to do with Erik’s death. 27

28 29 30 31 32 33 34 35 36 37 38 39 40


Defense Witness 𑁒 Dr. Tyler Clay (Herpetologist) 1

My name is Tyler Clay, and I am the director of the 2 Southland Zoological Museum in California. I earned a 3 Bachelor of Science degree in biology at Central State 4 University in California in 2000, and I later earned my 5 master’s degree and Ph.D. at University of Central 6 California in biology with a specialization in herpetology, 7 or the study of snakes. I recently authored my first book, 8 “The Snake Whisperer: Life Among the Snakes.” I have 9 worked as a resident naturalist at a couple of different 10 national parks before taking my current position. Being 11 from the desert myself, I have a lot of experience with 12 snakes and have even had a few snake bites. That might 13 explain my current career. 14

I have examined the medical examiner’s report about the 15 death of Erik Smith and was able to examine the Mojave 16 rattlesnake specimen that had bitten Erik Smith. I have 17 reached the following conclusions. 18

From my research, I can say that it is extremely unlikely 19 for a person to be killed by a rattlesnake bite. The Mojave 20 rattlesnake, as we have in this case, is easily the most 21 venomous rattlesnake in North America. But even the 22 Mojave rattlesnake’s bite rarely kills a human being. 23 Antivenom is widely available, and when administered 24 promptly it saves lives. The danger of Mojave snake bites, 25 though, is the fact that serious symptoms do not manifest 26 sometimes until hours after the bite. Victims can be lulled 27 into thinking the bite was not that bad, when in reality, 28 they need the antivenom immediately. 29

The Mojave’s venom contains neurotoxins, which are 30 poisons that attack nerve tissue. After a few hours, the 31 victim may experience a host of terrible symptoms, like 32 difficulty breathing, loss of vision, and muscle spasms. 33 Cardiac arrest can result. In my research, I have seen 34 plenty of cases in which someone waited too long to get 35 help. 36

But not everyone dies from the bite alone. There can be 37 intervening and exacerbating causes of death. For 38 example, moving around after a rattlesnake bite makes the 39 venom course through one’s bloodstream faster, whereas 40 staying still is a way to slow the venom until help arrives. 41 People also waste time trying to find the snake instead of 42 administering first aid or getting emergency assistance. A 43 common mistake, too, is trying to suck the venom out of a 44 wound. That also gives a false sense of security when, in 45


actuality, it has done nothing but put the poor person 1 sucking the wound in danger of poisoning. 2

I concur with Dr. Dunn that the wound on Erik’s wrist 3 was a snake bite caused by a Mojave rattlesnake. But the 4 missing rattle is more common than you might think. 5 Snakes shed their skin frequently when they are young, 6 and about twice a year as they get older. When they shed 7 their skin, they scrape their bodies against rocks in the 8 desert to pull the old skin off. While scraping against 9 rocks, they can inadvertently pull their rattles off when 10 the rattles get stuck on a sharp rock or wedged between 11 two rocks. Rattles are made of keratin, just like your 12 fingernails. Although rattles look sturdy, they are actually 13 very fragile. The missing rattle here is entirely consistent 14 with a natural occurrence common to all species of 15 rattlesnakes. It is also entirely possible that the snake lost 16 its rattle while squeezing into the mailbox slot. [The 17 picture of the tongs in Erik’s backyard was taken from a 18 distance and of poor quality. I cannot identify the small 19 object located near the tongs — it could be any number of 20 things. I guess it’s possible it can be a snake rattle but it 21 could also be a piece of wood. I can’t tell for sure.] 22

Although the snake bit Erik, and there was no immediate 23 medical attention, it is more likely that Erik’s death was 24 due to his pre-existing kidney disease and congestive heart 25 failure. The snake’s neurotoxins attack the nervous and 26 respiratory system, which causes less oxygen to be 27 transmitted to the organs. I also saw in the report Erik’s 28 acute tubular necrosis, which is seen in medical patients 29 with long-term kidney failure. These findings are 30 indicative of an underlying and untreated kidney 31 condition, which I have seen before in at least a couple of 32 reports of deaths after rattlesnake bites. 33

Mojave rattlesnakes are most active in California between 34 April and October. These snakes are not known to be 35 overly aggressive and are usually only aggressive if 36 disturbed. All rattlesnakes should be handled with great 37 care. I am very familiar with humane animal traps and 38 own several myself. Though people with basic knowledge 39 of snakes might handle non-venomous snakes with or 40 without gloves when moving snakes out of such a trap, 41 they also know that tongs and bite-resistant gloves are the 42 only way to ensure safety when handling a rattler in those 43 circumstances. Dumping a rattler into an open mailbox 44 door, even with gloves as Dr. Dunn has suggested, would 45 be an extremely risky action for someone holding the trap. 46 While it is possible to transport venomous snakes in a 47


variety of ways with different types of containers, I 1 recommend using snake tongs, long bite-resistant gloves, 2 and snake carriers like a humane animal trap to avoid 3 injury. 4

I know the snake that bit the victim was found in a 5 mailbox. It is not unusual for snakes to hide out in dark 6 places during the day to get out of the sun and wait until 7 later to hunt for prey, like small rodents and lizards. 8 Snakes are masterful at finding and squeezing into hiding 9 places. Some places where snakes have been found 10 include BBQ appliances, stacked wood piles, under 11 outdoor patio furniture, rock piles, garages, and under car 12 hoods. I have seen a couple of cases before in which a 13 snake has crawled into someone’s mailbox and attacked 14 someone opening the mailbox, and in those cases, the 15 victims tried to grab the snakes. It is likely here that Erik 16 either tried to grab the snake or his mail, and either way it 17 would be entirely in the snake’s nature to bite defensively. 18 Most people living in the area — including myself — 19 make sure to be very careful when opening any closed 20 space like a mailbox. 21

I viewed the picture of the mailbox where Russell saw the 22 victim get bitten. Given the size of the mailbox, Deputy 23 Garrett’s description and the snake’s dimensions, the 24 snake could climb into the mailbox through the front 25 mailbox door, if it were open, or even squeeze into the 26 slot on top of the mailbox. 27

It is extremely unlikely that the Mojave rattler’s venom 28 would have killed Erik if he had gotten medical treatment 29 for the snake bite. Death from Mojave rattlesnake bites are 30 very rare, especially in desert communities, because bite 31 victims generally seek out an antivenom as soon as 32 possible. 33

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Defense Witness 𑁒 Dani Emling (Neighbor/Tenant) 1

My name is Dani Emling, and I am the neighbor of Jamie 2 and Erik. I live in a one-bedroom house across the road 3 from them on Raptor Road. Erik is my landlord, too. I run 4 a convenience store in town which, thankfully, has stayed 5 in business throughout the pandemic. I spend most of my 6 days there. Before the pandemic, I hired Jamie once to 7 make my garden drought-tolerant with cacti and 8 succulents. It’s beautiful! Jamie used a variety of cacti and 9 succulents. Each spring, some of the cacti bloom with 10 multiple vibrant colorful flowers. Jamie is a gifted 11 xeriscape artist and should probably do that for a living. 12

I do not like to speak ill of the dead, but Erik was a 13 terrible person. He was usually rude and offered critical 14 opinions that you never asked for. Some people are just 15 like that, I guess. We have had arguments in the past, 16 almost always about rent and the fact that Erik took 17 forever to do simple repairs and maintenance on my 18 house. If I was a day late, which was rare, Erik would 19 shut off my utilities. But the rent was cheap and living in 20 the desert is my idea of heaven. It is beautiful and quiet 21 out here. We did not fight too often, but I witnessed 22 arguments between Erik and Jamie as well as Erik’s other 23 tenants who did not live on Raptor Road but who came by 24 once in a while. All of us tenants put our checks in Erik’s 25 mailbox, and Jamie’s mailbox is almost right next to it. 26

Erik and Jamie lived close together, and I witnessed many 27 fights between Jamie and Erik. I have seen a sheriff out 28 here many times. Sometimes, I would hear music blaring 29 out of Erik’s house as I drove off to work. It was really, 30 really loud. It does not surprise me that Jamie would call 31 the sheriff about that. That was how Jamie chose to deal 32 with Erik most of the time, by calling the sheriff, or 33 coming to vent to me. Jamie could be angry, but every 34 time I saw Jamie mad after one of Erik’s shenanigans, 35 Jamie always cooled off. Many times, I saw Jamie 36 apologize to Erik, including the time I saw Jamie leave 37 some animal waste on Erik’s front porch. 38

Jamie once in a while would complain to me that Erik 39 shut off electricity. I said I knew the feeling, but that Erik 40 would turn it on again. Erik was just having a power trip, 41 showing us that he was in control. It may sound crazy, 42 but it was worth it to live in such a beautiful place. 43

One day, when I went to drop off my rent in Erik’s 44 mailbox, I saw Erik walk outside to the space between 45


their properties to speak to Jamie. I heard hushed 1 speaking between them. Erik was angry to be there and 2 threatened that if Jamie did not drop whatever it was, 3 they were talking about, Erik said he “would make the 4 situation worse.” They had multiple arguments like this 5 throughout the past few weeks. 6

I was at Jamie’s mom’s funeral. There was an argument 7 there between Jamie and Erik. I couldn’t believe that Erik 8 showed up, since Erik killed Jamie’s mother; Erik was 9 such a despicable person, with little redeeming value. I 10 did not hear most of it, but I did hear Jamie yelling that 11 Erik had not been invited and should leave. It was yet 12 another fight between the two. Immediately following the 13 funeral, I left to visit my family in a neighboring county 14 for a few weeks. While I was gone, I received a call from 15 Deputy Garrett telling me that Erik was dead from a 16 rattlesnake bite. I told the deputy what I knew about 17 Jamie’s and Erik’s relationship. The deputy asked about 18 my fingerprints on the mailbox, and I explained that I 19 dropped off my rent check into the slot on Erik’s mailbox 20 before I left town. I do not recall touching the mailbox. 21

I was shocked to learn that Erik died. I had nothing to do 22 with Erik’s death. When I returned on June 5, I could not 23 believe it when I heard from a couple of customers in my 24 store that Jamie was arrested for Erik’s murder. Clearly it 25 was an accident. In the desert, everyone knows 26 rattlesnakes crawl into small spaces. Erik should have 27 been more careful, and certainly should have gotten 28 medical treatment. Erik’s death was so avoidable. Jamie is 29 a great person. I do not believe Jamie had anything to do 30 with Erik’s death. Jamie is an animal lover. Jamie will not 31 even hurt mosquitos or other pests. Jamie especially loves 32 snakes and has a tremendous respect for them. Jamie 33 would never use a creature to hurt anyone. 34

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EXHIBITS 1

2

Exhibit A 3

Cobey’s Snake-Feeding Tongs 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47


Exhibit B 1

Smith’s Mailbox 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47


1

Exh

ibit

C

Ae

rial

Map

of

the

Cri

me

Sce

ne

1 2 3 4 5 6 7 8 9 10 11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


Exhibit D 1

The Mojave Desert Snake That Bit Smith 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45


Exhibit E 1

Cobey’s Humane Animal Trap 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48

49


FORM AND SUBSTANCE OF A TRIAL 1

The Elements of a Criminal Offense 2

The penal (or criminal) code generally defines two aspects 3 of every crime: the physical aspect and the mental aspect. 4 Most crimes specify some physical act, such as firing a 5 gun in a crowded room, and a guilty, or culpable, mental 6 state. The intent to commit a crime and a reckless 7 disregard for the consequences of one’s actions are 8 examples of a culpable mental state. Bad thoughts alone, 9 though, are not enough. A crime requires the union of 10 thought and action. 11

The Concept of Reasonable Doubt 12

Despite its use in every criminal trial, the term 13 “reasonable doubt” is hard to define. The concept of 14 reasonable doubt lies somewhere between probability of 15 guilt and a lingering possible doubt of guilt. A defendant 16 may be found guilty “beyond a reasonable doubt” even 17 though a possible doubt remains in the mind of the judge 18 or juror. Conversely, triers of fact might return a verdict of 19 not guilty while still believing that the defendant probably 20 committed the crime. Reasonable doubt exists unless the 21 triers of fact can say that they have a firm conviction of 22 the truth of the charge. 23

Jurors must often reach verdicts despite contradictory 24 evidence. Two witnesses might give different accounts of 25 the same event. Sometimes a single witness will give a 26 different account of the same event at different times. 27 Such inconsistencies often result from human fallibility 28 rather than intentional lying. The trier of fact (in the Mock 29 Trial competition, the judge) must apply his or her own 30 best judgment when evaluating inconsistent testimony. 31

A guilty verdict may be based upon circumstantial 32 (indirect) evidence. However, if there are two reasonable 33 interpretations of a piece of circumstantial evidence, one 34 pointing toward guilt of the defendant and another 35 pointing toward innocence of the defendant, the trier of 36 fact is required to accept the interpretation that points 37 toward the defendant’s innocence. On the other hand, if a 38 piece of circumstantial evidence is subject to two 39 interpretations, one reasonable and one unreasonable, the 40 trier of fact must accept the reasonable interpretation, 41 even if it points toward the defendant’s guilt. It is up to 42 the trier of fact to decide whether an interpretation is 43 reasonable or unreasonable. 44

Proof beyond a reasonable doubt is proof that leaves you 45 firmly convinced of the defendant’s guilt. 46


TEAM ROLE DESCRIPTIONS 1

Attorneys 2

The pretrial-motion attorney presents the oral argument 3 for (or against) the motion brought by the defense. You 4 will present your position, answer questions by the judge, 5 and try to refute the opposing attorney’s arguments in 6 your rebuttal. 7

Trial attorneys control the presentation of evidence at 8 trial and argue the merits of their side of the case. They do 9 not themselves supply information about the alleged 10 criminal activity. Instead, they introduce evidence and 11 question witnesses to bring out the full story. 12

The prosecutor presents the case for the state against the 13 defendant(s). By questioning witnesses, you will try to 14 convince the judge or jury (juries are not used at state 15 finals) that the defendant(s) is guilty beyond a reasonable 16 doubt. You will want to suggest a motive for the crime 17 and try to refute any defense alibis. 18

The defense attorney presents the case for the 19 defendant(s). You will offer your own witnesses to present 20 your client’s version of the facts. You may undermine the 21 prosecution’s case by showing that the prosecution’s 22 witnesses are not dependable or that their testimony 23 makes no sense or is seriously inconsistent. 24

Trial attorneys will: 25 ● Conduct direct examination. 26 ● Conduct cross-examination 27 ● Conduct redirect examination, if necessary. Make 28

appropriate objections: Only the direct and cross-29 examination attorneys for a particular witness may 30 make objections during that testimony. 31

● Conduct the necessary research and be prepared to act 32 as a substitute for any other attorneys. 33

● Make opening statements and closing arguments. 34

Each student attorney should take an active role in some 35 part of the trial. 36

Witnesses 37

You will supply the facts of the case. As a witness, the 38 official source of your testimony, or record, is composed 39 of your witness statement, and any portion of the fact 40 situation, stipulations, and exhibits, of which you would 41 reasonably have knowledge. The fact situation is a set of 42


indisputable facts that witnesses and attorneys may 1 refer to and draw reasonable inferences from. The 2 witness statements contained in the packet should be 3 viewed as signed statements made to the police by the 4 witnesses. 5

You may testify to facts stated in or reasonably inferred 6 from your record. If an attorney asks you a question, and 7 there is no answer to it in your official testimony, you can 8 choose how to answer it. You can either reply, “I don’t 9 know” or “I can’t remember,” or you can infer an answer 10 from the facts you do officially know. Inferences are only 11 allowed if they are reasonable. Your inference cannot 12 contradict your official testimony, or else you can be 13 impeached using the procedures outlined in this packet. 14 Practicing your testimony with your attorney coach and 15 your team will help you to fill in any gaps in the official 16 materials (see Unfair Extrapolation on p. 70). 17

It is the responsibility of the attorneys to make the 18 appropriate objections when witnesses are asked to 19 testify about something that is not generally known or 20 that cannot be reasonably inferred from the Fact 21 Situation or a Witness Statement. 22

Court Clerk, Court Bailiff, Unofficial 23

Timer 24

We recommend that you provide two separate people for 25 the roles of clerk and bailiff, but if you assign only one, then 26 that person must be prepared to perform as clerk or bailiff 27 in any given trial. 28

The unofficial timer may be any member of the team 29 presenting the defense. However, it is advised that the 30 unofficial timer not have a substantial role, if any, during 31 the trial so they may concentrate on timing. The ideal 32 unofficial timer would be the defense team’s clerk. 33

The clerk and bailiff have individual scores to reflect their 34 contributions to the trial proceedings. This does NOT 35 mean that clerks and bailiffs should try to attract 36 attention to themselves; rather, scoring will be based 37 on how professionally and responsibly they perform 38 their respective duties as officers of the court. 39

In a real trial, the court clerk and the bailiff aid the judge 40 in conducting the trial. The court clerk calls the court to 41 order and swears in the witnesses to tell the truth. The 42 bailiff watches over the defendant to protect the security 43 of the courtroom. 44


In the Mock Trial, the clerk and bailiff have different 1 duties. For the purpose of the competition, the duties 2 described below are assigned to the roles of clerk and 3 bailiff. (Prosecution teams will be expected to provide 4 the clerk for the trial; defense teams are to provide the 5 bailiff.) 6

Duties of the Court Clerk 7

When the judge and scoring attorneys arrive in the 8 courtroom, introduce yourself, explain that you will assist 9 as the court clerk and distribute team roster forms to the 10 opposing team, each scoring attorney, and the judge. 11

In the Mock Trial competition, the court clerk’s major 12 duty is to time the trial. You are responsible for bringing a 13 stopwatch to the trial. Please be sure to practice with it 14 and know how to use it when you come to the trials. 15

An experienced timer (clerk) is critical to the success of 16 a trial. 17

Interruptions in the presentations do not count as time. 18 For direct, cross, and redirect examination, record only 19 time spent by attorneys asking questions and witnesses 20 answering them. 21

Do not include time when: 22

● Witnesses are called to the stand. 23

● Attorneys are making objections. 24

● Judges are questioning attorneys or witnesses or 25 offering their observations. 26

When a team has two minutes remaining in a category, 27 hold up the two- minute sign; when one minute remains, 28 hold up the one-minute sign; when 30 seconds remain, 29 hold up the 30-second sign; when time for a category has 30 run out, hold up the stop sign and announce, “Stop!” The 31 only verbal warning during the trial should be “Stop!” 32 Remember to speak loud enough for everyone to hear 33 you. 34

Time allocations: Two Minutes, One Minute, 30 Seconds, 35 Stop 36

There is to be no allowance for overtime under any 37 circumstance. This will be the procedure adhered to at the 38 state finals. After each witness has completed his or her 39 testimony, mark down the exact time on the time sheet. 40 Do not round off the time. 41


Duties of the Bailiff 1

When the judge arrives in the courtroom, introduce 2 yourself, explain that you will assist as the court bailiff 3 and distribute team roster forms to the opposing team, 4 each scoring attorney, and the judge. 5

In the Mock Trial competition, the bailiff’s major duties 6 are to call the court to order and to swear in witnesses. 7 Please use the language below. When the judge has 8 announced that the trial is beginning, say: 9

“All rise, Superior Court of the State of California, County 10 of ______ Department______, is now in session. Judge 11 presiding, please be seated and come to order. Please turn 12 off all cell phones and refrain from talking.” 13

When a witness is called to testify, you must swear in the 14 witness as follows: 15

“Do you solemnly affirm that the testimony you are about 16 to give will faithfully and truthfully conform to the facts and 17 rules of the Mock Trial competition?” 18

In addition, the bailiff is responsible for bringing to 19 trial a copy of the “Rules of Competition.” In the event 20 that a question arises and the judge needs further 21 clarification, the bailiff is to provide this copy to the 22 judge. 23

Duties of the Unofficial Timer 24

Any official member of the team presenting defense may 25 serve as an official timer. This unofficial timer must be 26 identified before the trial begins and sit next to the official 27 timer (clerk). 28

If timing variations of 15 seconds or more occur at the 29 completion of any task during the trial, the timers will 30 notify the judge immediately that a time discrepancy has 31 occurred. Any time discrepancies less than 15 seconds are 32 not considered a violation. NO time discrepancies will be 33 entertained after the trial concludes. 34

Any objections to the clerk’s official time must be made 35 by this unofficial timer during the trial, before the verdict 36 is rendered. The judge shall determine whether to accept 37 the clerk’s time or make a time adjustment. 38

If the times differ significantly, notify the judge and ask 39 for a ruling as to the time remaining. You may use the 40 following sample questions and statements: 41


“Your honor, before bringing the next witness, may I 1 bring to the court’s attention that there is a time 2 discrepancy.” 3

“Your honor, there is a discrepancy between my records 4 and those of the official timekeeper.” 5

Be prepared to show your records and defend your 6 requests. 7

Team Manager 8

Your team may also select a member to serve as team 9 manager. Any team member, regardless of his or her 10 official Mock Trial role, may serve as team manager. The 11 manager is responsible for keeping a list of phone 12 numbers of all team members and ensuring that everyone 13 is informed of the schedule of meetings. In case of illness 14 or absence, the manager should also keep a record of all 15 witness testimony and a copy of all attorney notes so that 16 another team member may fill in if necessary. 17


PROCEDURES FOR PRESENTING A 1

MOCK TRIAL CASE 2

Introduction of Physical Evidence 3

Attorneys may introduce physical exhibits, if any are 4 listed under the heading “Evidence,” provided that the 5 objects correspond to the description given in the case 6 materials. Below are the steps to follow when introducing 7 physical evidence (maps, diagrams, etc.) All items are 8 presented prior to trial. 9

1. Present the item to an attorney for the opposing team 10 prior to trial. If that attorney objects to the use of the item, 11 the judge will rule whether the evidence is appropriate or 12 not. 13

2. Before beginning the trial, mark all exhibits for 14 identification. Address the judge as follows: “Your honor, 15 I ask that this item be marked for identification as Exhibit 16 # .” 17

3. When a witness is on the stand testifying about the 18 exhibit, show the item to the witness and ask the witness 19 if he/she recognizes the item. If the witness does, ask him 20 or her to explain it or answer questions about it. This 21 shows how the exhibit is relevant to the trial. 22

Moving the Item into Evidence 23

Exhibits must be introduced into evidence if attorneys 24 wish the court to consider the items themselves as 25 evidence, not just the testimony about the exhibits. 26 Attorneys must ask to move the item into evidence during 27 the witness examination or before they finish presenting 28 their case. 29

1. “Your honor, I ask that this item (describe) be moved 30 into evidence as People’s (or Defendant’s) Exhibit # 31 and request that the court so admit it.” 32

2. At this point, opposing counsel may make any proper 33 objections. 34

3. The judge will then rule on whether the item may be 35 admitted into evidence. 36

The Opening Statement 37

The opening statement outline the case as you intend to 38 present it. The prosecution delivers the first opening 39


statement. A defense attorney may follow immediately or 1 delay the opening statement until the prosecution has 2 finished presenting its witnesses. A good opening statement 3 should: 4

Explain what you plan to prove and how you will 5 prove it. 6

Present the events of the case in an orderly sequence 7 that is easy to understand. 8

Suggest a motive or emphasize a lack of motive for the 9 crime. 10

Begin your statement with a formal address to the judge: 11

“Your honor, my name is (full name), the prosecutor 12 representing the people of the state of California in this 13 action,” or 14

“Your honor, my name is (full name), counsel for 15 Reagan Croddy, the defendant in this action.” 16

Proper phrasing includes: 17

“The evidence will indicate that…” 18

“The facts will show that…” 19

• “Witness (full name) will be called to tell…” 20

• “The defendant will testify that…” 21

Direct Examination 22

Attorneys conduct direct examination of their own 23 witnesses to bring out the facts of the case. Direct 24 examination should: 25

Call for answers based on information provided in the 26 case materials. 27

Reveal all of the facts favorable to your position. 28

Ask the witnesses to tell the story rather than using 29 leading questions, which call for “yes” or “no” answers. 30 (An opposing attorney may object to the se of leading 31 questions on direct examination.) 32

Make the witnesses seem believable. 33

Keep the witness from rambling about unimportant 34 issues. 35

Call for the witness with a formal request: 36

“Your honor, I would like to call (name of witness) to 37 the stand.” 38

The witness will then be sworn in before testifying 39

40


After the witness swears to tell the truth, you may wish to 1 ask some introductory questions to make the witness feel 2 more comfortable. Appropriate inquiries include: 3

The witness’s name. 4

Length of residence or present employment, if this 5 information helps to establish the witness’s credibility. 6

Further questions about professional qualifications, if 7 you wish to qualify the witness as an expert. Examples 8 of proper questions on direct examination: 9

“Could you please tell the court what occurred on 10 (date)?” 11

“What happened after the defendant slapped you?” 12

“How long did you see…?” 13

“Did anyone do anything while you waited?” 14

“How long did you remain in that spot?” Conclude 15 your direct examination with: 16

“Thank you, Mr./Ms. (name). That will be all, 17 your honor.” (The witness remains on the stand 18 for cross-examination.) 19

Cross-Examination 20

Cross-examination follows the opposing attorney’s direct 21 examination of the witness. Attorneys conduct cross-22 examination to explore weaknesses in the opponent’s 23 case, test the witness’s credibility, and establish some of 24 the facts of the cross-examiner’s case whenever possible. 25 Cross- examination should: 26

• Call for answers based on information given in Witness 27 Statements or the Fact Situation. 28

• Use leading questions, which are designed to get “yes” 29 and “no” answers. 30

• Never give the witness a chance to unpleasantly 31 surprise the attorney. 32

In an actual trial, cross-examination is restricted to the 33 scope of issues raised on direct examination. Because 34 Mock Trial attorneys are not permitted to call opposing 35 witnesses as their own, the scope of cross- examination in 36 a Mock Trial is not limited in this way. 37

Examples of proper questions on cross-examinations: 38

• “Isn’t it a fact that…?” 39

• “Wouldn’t you agree that…?” 40


• “Don’t you think that…?” 1

• “When you spoke with your neighbor on the night of 2 the murder, weren’t you wearing a red shirt?” 3

Cross examination should conclude with: 4

“Thank you, Mr./Ms. (name of witness). That will be all, 5 your honor.” 6

Impeachment During Cross-Examination 7

During cross-examination, the attorney may want to show 8 the court that the witness on the stand should not be 9 believed. This is called impeaching the witness. It may be 10 done by asking questions about prior conduct that makes 11 the witness’s credibility (believability) doubtful. Other 12 times, it may be done by asking about evidence of 13 criminal convictions. 14

A witness also may be impeached by introducing the 15 witness’s statement and asking the witness whether he or 16 she has contradicted something in the statement (i.e., 17 identifying the specific contradiction between the 18 witness’s statement and oral testimony). 19

The attorney does not need to tell the court that he or she 20 is impeaching the witness, unless in response to an 21 objection from the opposing side. The attorney needs only to 22 point out during closing argument that the witness was 23 impeached, and therefore should not be believed. 24

Example: (Using signed witness statement to impeach) In 25 the witness statement, Mr. Jones stated that the suspect 26 was wearing a pink shirt. In answering a question on 27 direct examination, however, Mr. Jones stated that the 28 suspect wore a red shirt. 29

On cross-examination, ask, “Mr. Jones, you testified that 30 the suspect was wearing a red shirt, correct?” 31

Mr. Jones responds, “Yes.” 32

Show Mr. Jones the case packet opened up to Mr. Jones’ 33 statement. Ask Mr. Jones, “Is this your witness statement, 34 Mr. Jones?” (Mr. Jones has no choice but to answer, 35 “Yes.”) 36

Then ask Mr. Jones, “Do you recognize the statement on 37 page __________, line _____________of the case packet? 38

Read the statement aloud to the court and ask the witness: 39 “Does this not directly contradict what you said on direct 40 examination?” 41


After you receive your answer (no matter what that 1 answer is) move on with the remainder of your argument 2 and remember to bring up the inconsistency in closing 3 arguments. 4

Redirect Examination 5

Following cross-examination, the counsel who called the 6 witness may conduct redirect examination. Attorneys conduct 7 redirect examination to clarify new (unexpected) issues or 8 facts brought out in the immediately preceding cross-9 examination only. They may not bring up any issue brought 10 out during direct examination. Attorneys may or may not 11 want to conduct redirect examination. If an attorney asks 12 questions beyond the scope of issues raised on cross, they 13 may be objected to as “outside the scope of cross- 14 examination.” It is sometimes more beneficial not to conduct 15 re-direct for a particular witness. To properly decide whether 16 it is necessary to conduct redirect examination, the attorneys 17 must pay close attention to what is said during the cross-18 examination of their witnesses. 19

If the credibility or reputation for truthfulness of a witness 20 has been attacked on cross-examination, the attorney 21 whose witness has been damaged may wish to ‘save” the 22 witness through re-direct. These questions should be 23 limited to the damage the attorney thinks has been done 24 and enhance the witness’s truth-telling image in the eyes 25 of the court. Work closely with your attorney coach on 26 redirect strategies. 27

Closing Arguments 28

A good closing argument summarizes the case in the light 29 most favorable to your position. The prosecution delivers 30 the first closing argument. The closing argument of the 31 defense attorney concludes the presentations. A good 32 closing argument should: 33

● Be spontaneous, synthesizing what actually happened 34 in court rather than being “prepackaged.” NOTE: 35 Points will be deducted from the closing argument 36 score if concluding remarks do not actually reflect 37 statements and evidence presented during the trial. 38

● Be emotionally charged and strongly appealing (unlike 39 the calm opening statement). 40

● Emphasize the facts that support the claims of your 41 side, but not raise any new facts. 42

● Summarize the favorable testimony. 43

● Attempt to reconcile inconsistencies that might hurt 44 your side. 45


● Be well-organized. (Starting and ending with your 1 strongest point helps to structure the presentation and 2 gives you a good introduction and conclusion.) 3

● The prosecution should emphasize that the state has 4 proven guilt beyond a reasonable doubt. 5

● The defense should raise questions that suggest the 6 continued existence of a reasonable doubt. 7

● Proper phrasing includes: 8

● “The evidence has clearly shown that…” 9

● “Based on this testimony, there can be no doubt 10 that…” 11

● “The prosecution has failed to prove that…” 12

● “The defense would have you believe that…” 13

● Conclude the closing argument with an appeal to 14 convict or acquit the defendant. 15

An attorney has one minute for rebuttal. Only issues 16 that were addressed in an opponent’s closing argument 17 may be raised during rebuttal. 18

19

DIAGRAM OF A TYPICAL 20

COURTROOM 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41

42


MOCK TRIAL SIMPLIFIED 1

RULES OF EVIDENCE 2

Criminal trials are conducted using strict rules of evidence 3 to promote fairness. To participate in a Mock Trial, you 4 need to know its rules of evidence. The California Mock 5 Trial program bases its Mock Trial Simplified Rules of 6 Evidence on the California Evidence Code. 7

Studying the rules will prepare you to make timely 8 objections, avoid pitfalls in your own presentations, and 9 understand some of the difficulties that arise in actual 10 court trials. The purpose of using rules of evidence in the 11 competition is to structure the presentation of testimony to 12 resemble a real trial. 13

Almost every fact stated in the materials will be 14 admissible under the rules of evidence. All evidence will 15 be admitted unless an attorney objects. To promote the 16 educational objectives of this program, students are 17 restricted to the use of a select number of evidentiary rules 18 in conducting the trial. 19

Objections 20

It is the responsibility of the party opposing the evidence 21 to prevent its admission by a timely and specific objection. 22 Objections not raised in a timely manner are waiver or 23 given up. An effective objection is designed to keep 24 inadmissible testimony, or testimony harmful to your 25 case, from being admitted. A single objection may be 26 more effective than several objections. Attorneys can, and 27 should, pay attention to objections that need to be made 28 to questions and those that need to be made to answers. 29 Remember, the quality of an attorney’s objections is 30 always more important than the quantity of the 31 objections. 32

For the purposes of this competition, teams will be 33 permitted to use only certain types of objections. The 34 allowable objections are found in the case packet. Other 35 objections may not be raised at trial. As with all 36 objections, the judge will decide whether to allow the 37 testimony, strike it, or simply not the objection for later 38 consideration. 39

The rulings of the trial judge are final. You must continue 40 the presentation even if you disagree. A proper objection 41 includes the following elements. The attorney: 42


Addresses the judge, 1

Indicates that he or she is raising an objection, 2

Specifies what he or she is objecting to, i.e., the 3 particular word, phrase, or question, and 4

Specifies the legal grounds for the objection. 5

Example: “(1) Your honor, (2) I object (3) to that 6 question (4) because it is a compound question.” 7

Throughout this packet, you will find sections titled “Usage 8 comments.” These comments further explain the rule and 9 often provide examples of how to use the rule at trial. 10

ALLOWABLE EVIDENTIARY 11

OBJECTIONS 12

1. Unfair Extrapolation (UE) 13

This objection is specific to California Mock Trial and is 14 not an ordinary rule of evidence. 15

Each witness is bound by the facts contained in his or her 16 own official record, which, unless otherwise noted, 17 includes his or her own witness statement, the Fact 18 Situation (those facts of which the witness would 19 reasonably have knowledge), and/or any exhibit relevant 20 to his or her testimony. The unfair extrapolation (UE) 21 objection applies if a witness creates a material fact not 22 included in his or her official record. A material fact is 23 one that would likely impact the outcome of the case. 24

Witnesses may, however, make fair extrapolations from 25 the materials. A fair extrapolation is one in which a 26 witness makes a reasonable inference based on his or her 27 official record. A fair extrapolation does not alter the 28 material facts of the case. 29

If a witness is asked information not contained in the 30 witness’s statement, the answer must be consistent with 31 the statement and may not materially affect the witness’s 32 testimony or any substantive issue of the case. 33

Unfair extrapolations are best attacked through 34 impeachment and closing argument. They should be dealt 35 with by attorneys during the course of the trial. (See page 36 58 on how to impeach a witness) 37

When making a UE objection, students should be able to 38 explain to the court what facts are being unfairly 39


extrapolated and why the extrapolation is material to the 1 case. Possible rulings by a presiding judge include: 2

1. No extrapolation has occurred; 3

2. An unfair extrapolation has occurred; 4

3. The extrapolation was fair. 5

The decision of the presiding judge regarding 6 extrapolations or evidentiary matters is final. 7

Usage comments — The most common example of an 8 unfair extrapolation would be if an expert witness or 9 police officer is questioned about research and 10 procedures that require them to have specialized 11 knowledge outside what is contained in their official 12 records. This type of unfair extrapolation is illustrated 13 in Example #1 below. 14

Example #2 provides a set of facts and an example of 15 fair and unfair extrapolation based on a sample fact 16 scenario. 17

Example #1: 18

A defense expert witness testifies about using 19 fluorescent light when collecting fingerprints, which is 20 described in her witness statement. On cross-21 examination, the prosecutor asks, “Did you also use a 22 superglue processing technique to collect fingerprints?” 23 While a superglue processing technique is an actual 24 way to collect fingerprints, the procedure was not 25 mentioned anywhere in the case materials. The defense 26 could object that the question calls for an unfair 27 extrapolation. 28

Example #2: Sample Fact Scenario 29

John Doe, who is being charged with buying stolen 30 goods on a particular night, states the following in his 31 witness statement: “On the night in question, I pulled 32 into the parking lot of the Acme Grocery Store and 33 parked my car. I walked into the store with the other 34 customers, picked up some items, went to the checkout 35 stand, and left the store with my shopping bag.” 36

Fair Extrapolation: At trial, John Doe testifies to the 37 following: “On the night in question, around 9:00p.m., 38 I went to the Acme Grocery Store, parked my car, went 39 into the store and purchased milk and a box of cereal. 40 The fact that John Doe said he “purchased milk and a 41 box of cereal” is a fair extrapolation. Even though there 42


is no mention of what John purchased in his witness 1 statement, it can be reasonably inferred from the 2 context of his witness statement that he entered the 3 store and purchased groceries. Furthermore, the items 4 he purchased (milk and cereal) do not impact any 5 substantive issue in the case. 6

Unfair Extrapolation: At trial, John Doe testifies to the 7 following: “I pulled into the parking lot of the Acme 8 Grocery Store and parked my car. I walked into the 9 store, purchased some groceries, and withdrew $200 10 from the ATM.” The fact that John Doe withdrew cash 11 is an unfair extrapolation because the fact John 12 withdrew $200 on the night of the crime is material to 13 the charge of buying stolen goods because it impacts 14 the substantive issues of his motive and means to later 15 buy stolen goods. 16

Form of Objection: “Objection, your honor. This is an 17 unfair extrapolation,” or, “That question calls for 18 information beyond the scope of Mr. Doe’s witness 19 statement.” 20

NOTE: The Unfair Extrapolation objection replaces the 21 Creation of a Material Fact objection used in previous 22 years in California Mock Trial. 23

2. Relevance 24

Unless prohibited by a pretrial motion ruling or by some 25 other rule of evidence listed in these Simplified Rules of 26 Evidence, all relevant evidence is admissible. Evidence is 27 relevant if it has any tendency to make a fact that is 28 important to the case more or less probable than the fact 29 would be without the evidence. Both direct and 30 circumstantial evidence may be relevant and admissible in 31 court. 32

Example: Eyewitness testimony that the defendant shot 33 the victim is direct evidence of the defendant’s assault. 34 The testimony of a witness establishing that the witness 35 saw the defendant leaving the victim’s apartment with a 36 smoking gun is circumstantial evidence of the 37 defendant’s assault. 38

Usage Comments — When an opposing attorney objects 39 on the ground of relevance, the judge may ask you to 40 explain how the proposed evidence relates to the case. 41

You can then make an “offer of proof” (explain what the 42 witness will testify to and how it is relevant). The judge 43


will then decide whether or not to let you question the 1 witness on the subject. 2

Form of Objection: “Objection, your honor. This 3 testimony is not relevant,” or, “Objection, your honor. 4 Counsel’s question calls for irrelevant testimony.” 5

3. More Prejudicial than Probative 6

The court in its discretion may exclude relevant evidence if 7 its probative value (its value as proof of some fact) is 8 substantially outweighed by the probability that its 9 admission creates substantial danger of undue prejudice, 10 confuses the issues, wastes time, or misleads the trier of 11 fact (judge). 12

Usage Comments — This objection should be used 13 sparingly in trial. It applies only in rare circumstances. 14 Undue prejudice does not mean “damaging.” Indeed, the 15 best trial evidence is always to some degree damaging to 16 the opposing side’s case. Undue prejudice instead is 17 prejudice that would affect the impartiality of the judge, 18 usually through provoking emotional reactions. To 19 warrant exclusion on that ground, the weighing process 20 requires a finding of clear lopsidedness such that 21 relevance is minimal and prejudice to the opposing side is 22 maximal. 23

Example: A criminal defendant is charged with 24 embezzling money from his employer. At trial, the 25 prosecutor elicits testimony that, several years earlier, the 26 defendant suffered an animal cruelty conviction for 27 harming a family pet. 28

The prosecution could potentially argue that the animal 29 cruelty conviction has some probative value as to 30 defendant’s credibility as a witness. However, the defense 31 would counter that the circumstances of the conviction 32 have very little probative value. By contrast, this fact 33 creates a significant danger of affecting the judge’s 34 impartiality by provoking a strong emotional dislike for 35 the defendant (undue prejudice). 36

Form of Objection: “Objection, your honor. The 37 probative value of this evidence is substantially 38 outweighed by the danger of undue prejudice (or 39 confusing the issues, or misleading the trier of fact).” 40

4. Laying a Proper Foundation 41

To establish the relevance of direct or circumstantial 42


evidence, you may need to lay a proper foundation. 1 Laying a proper foundation means that before a witness 2 can testify about his or her personal knowledge or opinion 3 of certain facts, it must be shown that the witness was in 4 a position to know those facts in order to have personal 5 knowledge of those facts or to form an admissible opinion. 6 (See “Opinion Testimony” below.) 7

Usage Comments — Example: A prosecution attorney calls 8 a witness to the stand and begins questioning with “Did 9 you see the defendant leave the scene of the crime?” The 10 defense attorney may object based upon a lack of 11 foundation. If the judge sustains the objection, then the 12 prosecution attorney should lay a foundation by first 13 asking the witness if he was in the area at the 14 approximate time the crime occurred. This lays the 15 foundation that the witness was at the scene of the crime 16 at the time that the defendant was allegedly there in order 17 to answer the prosecution attorney’s question. 18

Form of Objection: “Objection, your honor. There is a 19 lack of foundation.” 20

5. Personal Knowledge/Speculation 21

A witness may not testify about any matter of which the 22 witness has no personal knowledge. Only if the witness 23 has directly observed an event may the witness testify 24 about it. Personal knowledge must be shown before a 25 witness may testify concerning a matter. 26

Usage Comments — Witnesses will sometimes make 27 inferences from what they actually did observe. An attorney 28 may properly object to this type of testimony because the 29 witness has no personal knowledge of the inferred fact. 30

Example: From around a corner, the witness heard a 31 commotion. The witness immediately walked toward the 32 sound of the commotion, found the victim at the foot of the 33 stairs, and saw the defendant at the top of the landing, 34 smirking. The witness then testifies that the defendant 35 pushed the victim down the stairs. Even though this 36 inference may seem obvious to the witness, the witness did 37 not personally observe the defendant push the victim. 38 Therefore, the defense attorney can object based upon the 39 witness’s lack of personal knowledge that the defendant 40 pushed the victim. 41

Form of Objection: “Objection, your honor. The witness 42 has no personal knowledge to answer that question.” 43 Or, “Objection, your honor, speculation.” 44


6. Opinion Testimony (Testimony from 1

Non-Experts) 2

Opinion testimony includes inferences and other 3 subjective statements of a witness. In general, opinion 4 testimony is inadmissible because the witness is not 5 testifying to facts. Opinion testimony is admissible only 6 when it is (a) rationally based upon the perception of the 7 witness (five senses) and (b) helpful to a clear 8 understanding of his or her testimony. Opinions based on 9 a common experience are admissible. Some examples of 10 admissible witness opinions are speed of a moving object, 11 source of an odor, appearance of a person, state of 12 emotion, or identity of a voice or handwriting. 13

Usage Comments — As long as there is personal 14 knowledge and a proper foundation, a witness could 15 testify, “I saw the defendant, who was crying, looked 16 tired, and smelled of alcohol.” All of this is proper lay 17 witness (non-expert) opinion. 18

Form of Objection: “Objection, your honor. Improper lay 19 witness opinion.” Or, “Objection, your honor. The 20 question calls for speculation on the part of the 21 witness.” 22

7. Expert Witness 23

A person may be qualified as an expert witness if he or 24 she has special knowledge, skill, experience, training, or 25 education in a subject sufficiently beyond common 26 experience. An expert witness may give an opinion based 27 on professional experience if the expert’s opinion would 28 assist the trier of fact (judge) in resolving an issue relevant 29 to the case. Experts must be qualified before testifying to a 30 professional opinion. 31

Qualified experts may give an opinion based upon their 32 personal observations as well as facts made known to 33 them at, or before, the trial. The facts need not be 34 admissible evidence if they are the type reasonably relied 35 upon by experts in the field. Experts may give opinions on 36 ultimate issues in controversy at trial. In a criminal case, 37 an expert may not state an opinion as to whether the 38 defendant did or did not have the mental state at issue. 39

Usage Comments — Examples: 40

1. handwriting comparison expert testifies that police 41 investigators presented her with a sample of the 42 defendant’s handwriting and a threatening letter 43


prepared by an anonymous author. She personally 1 conducted an examination of both documents. Based 2 on her training, her professional experience, and her 3 careful examination of the documents, she concluded 4 that, in her opinion, the handwriting in the 5 anonymous letter matches the handwriting in the 6 sample of the defendant’s handwriting. This would be 7 an admissible expert opinion. 8

2. A doctor testifies that she based her opinion upon (1) 9 an examination of the patient and (2) medically 10 relevant statements of the patient’s relatives. Personal 11 examination is admissible because it is relevant and 12 based on personal knowledge. The statements of the 13 relatives are inadmissible hearsay (hearsay is defined in 14 Section 9 below) but are proper basis for opinion 15 testimony because they are reasonably relevant to a 16 doctor’s diagnosis. A judge could, in her discretion, 17 allow the expert witness to describe what the relatives 18 told her and explain how that information supports her 19 opinion. Although those statements would not be 20 admissible to prove the statements are true, they can be 21 used to explain how the statements A support the 22 doctor’s opinion. 23

Form of Objection: “Objection, your honor. There is a 24 lack of foundation for this opinion testimony,” or, 25 “Objection, your honor. Improper opinion.” 26

8. Character Evidence 27

“Character evidence” is evidence of a person’s personal 28 traits or personality tendencies (e.g. honest, violent, 29 greedy, dependable, etc.). As a general rule, character 30 evidence is inadmissible when offered to prove that a 31 person acted in accordance with his or her character 32 trait(s) on a specific occasion. The Simplified Rules of 33 Evidence recognize three exceptions to this rule: 34

Defendant’s own character 35

The defense may offer evidence of the defendant’s own 36 character (in the form of opinion or evidence of reputation) 37 to prove that the defendant acted in accordance with his or 38 her character on a specific occasion (where the defendant’s 39 character is inconsistent with the acts of which he or she is 40 accused). The prosecution can rebut the evidence (See 41 Usage Comments below). 42

43


1. Victim’s character 1

The defense may offer evidence of the victim’s character 2 (in the form of opinion, evidence of reputation, or specific 3 instances of conduct) to prove the victim acted in 4 accordance with his or her own character on a specific 5 occasion (where the victim’s character would tend to 6 prove the innocence of the defendant). The prosecution 7 can rebut the evidence (See Usage Comments below). 8

2. Witness’s character 9

Evidence of a witness’s character for dishonesty (in the 10 form of opinion, evidence of reputation, or specific 11 instances of conduct) is admissible to attack the witness’s 12 credibility. If a witness’s character for honesty has been 13 attacked by the admission of bad character evidence, then 14 the opposing party may rebut by presenting good 15 character evidence (in the form of opinion, evidence of 16 reputation, or specific instances of conduct) of the 17 witness’s truthfulness. 18

Admission of Prior Acts for Limited Non-Character 19 Evidence Purposes 20

Habit or Custom to Prove Specific Behavior 21

Evidence of the habit or routine practice of a person or an 22 organization is admissible to prove conduct on a specific 23 occasion in conformity with the habit or routine practice. 24 Habit or custom evidence is not character evidence. 25

Prior Act to Prove Motive, Intent, Knowledge, Identity, 26 or Absence of Mistake 27

Nothing in this section prohibits the admission of evidence 28 that the defendant committed a crime, civil wrong, or 29 other act when relevant to prove some fact (such as 30 motive, intent, knowledge, identity, or absence of mistake 31 or accident) other than his or her disposition to commit 32 such an act. 33

Usage Comments — If any prosecution witness testifies to 34 the defendant or victim’s character, the defense may object. 35 But the prosecution may then request to make an offer of 36 proof, or an explanation to the judge, that the prosecution 37 (a) anticipates the defense will introduce evidence of 38 defendant’s or victim’s character, and (b) Mock Trial rules 39 do not allow for rebuttal witnesses or recalling witnesses. If 40 the judge allows, the prosecution may present evidence in 41 the form of opinion, evidence of reputation, or specific 42 instances of conduct to rebut the defense’s anticipated use 43


of character evidence. If this evidence does not come in 1 during the defense, the defense attorney can move to strike 2 the previous character evidence. 3

Examples: 4

Admissible character evidence 5

The defendant is charged with embezzlement (a theft 6 offense). The defendant’s pastor testifies that the 7 defendant attends church every week and has a reputation 8 in the community as an honest and trustworthy person. 9 This would be admissible character evidence. 10

Inadmissible character evidence 11

The defendant is charged with assault. The prosecutor 12 calls the owner of the defendant’s apartment to testify in 13 the prosecution’s case-in-chief. She testifies that the 14 defendant often paid his rent late and was very unreliable. 15 This would likely not be admissible character evidence for 16 two reasons: 17

(1) This character evidence violates the general 18 rule that character evidence is inadmissible (and it does 19 not qualify under one of the three recognized exceptions 20 above), and (2) the character train of “reliability” is not 21 relevant to an assault charge (by contrast, propensity for 22 violence or non-violence would be relevant character traits 23 in an assault case). 24

Form of Objection: “Objection, your honor. Inadmissible 25 character evidence,” or, “Objection, your honor. The 26 question calls for inadmissible character evidence.” 27

9. Hearsay 28

Hearsay evidence is evidence of a statement that was 29 made other than by a witness while testifying at trial and 30 that is offered to prove the truth of the matter stated. (This 31 means the person who is testifying to another person’s 32 statement is offering the statement to prove it is true.) 33 Hearsay is considered untrustworthy because the 34 declarant (aka the speaker) of the out-of-court statement 35 did not make the statement under oath and is not present 36 in court to be cross-examined. Because these statements 37 are unreliable, they ordinarily are not admissible. 38

Usage Comments — Testimony not offered to prove the 39 truth of the matter stated is, by definition, not hearsay. 40 For example, testimony to show that a statement was said 41 and heard, or to show that a declarant could speak a 42


certain language, or to show the subsequent actions of a 1 listener, is admissible. 2

Examples: 3

1. Joe is being tried for murdering Henry. The witness 4 testifies, “Ellen told me that Joe killed Henry.” If 5 offered to prove that Joe killed Henry, this statement is 6 hearsay and would likely not be admitted over an 7 objection. 8

2. A witness testifies, “I went looking for Eric because 9 Sally told me that Eric did not come home last night.” 10 Sally’s comment is an out-of-court statement. 11 However, the statement could be admissible if it is not 12 offered for the truth of its contents (that Eric did not 13 come home), but instead is offered to show why the 14 witness went looking for Eric. 15

Form of Objection: “Objection, your honor. Counsel’s 16 question calls for hearsay.” Or, “Objection, your 17 honor. This testimony is hearsay. I move that it be 18 stricken from the record.” 19

Hearsay Exceptions 20

Out of practical necessity, the law recognizes certain types 21 of hearsay that may be admissible. Exceptions have been 22 allowed for out-of-court statements made under 23 circumstances that promote greater reliability, provided 24 that a proper foundation has been laid for the statements. 25 The Simplified Rules of Evidence recognize only the 26 following exceptions to the hearsay rule: 27

a. Declaration against interest: a statement which, 28 when made, was contrary to the declarant’s own 29 economic interest, or subjected the declarant to the 30 risk of civil or criminal liability, or created a risk of 31 making the declarant an object of hatred, ridicule, or 32 social disgrace in the community. A reasonable person 33 in the declarant’s position would not have made the 34 statement unless the person believed it to be true. 35

b. Excited Utterance: a statement that describes or 36 explains an event perceived by the declarant, made 37 during or shortly after a startling event, while the 38 declarant is still under the stress of excitement caused 39 by the event. 40

c. State of mind: a statement that shows the declarant’s 41 then-existing state of mind, emotion, or physical 42 condition (including a statement of intent, plan, motive, 43 mental state, pain, or bodily health). 44


d. Records made in the regular course of business 1 (including medical records): writings made as a 2 record of an act or event by a business or governmental 3 agency (Mock Trial does not require the custodian of 4 the records to testify). To qualify as a business record, 5 the following conditions must be established: 6

1. The writing was made in the regular course of 7 business; 8

2. The writing was made at or near the time of the 9 act or event; and 10

3. The sources of information and method of 11 preparation are trustworthy. 12

e. Official records by public employees: writing made 13 by a public employee as a record of an act or event. 14 The writing must be made within the scope of duty of 15 a public employee. 16

f. Prior inconsistent statement: a prior statement made 17 by the witness that is inconsistent with the witness’s 18 trial testimony. 19

g. Prior consistent statement: a prior statement made by 20 a witness that is consistent with the witness’s trial 21 testimony. Evidence of a prior consistent statement 22 can only be offered after evidence of a prior 23 inconsistent statement has been admitted for the 24 purpose of attacking the witness’s credibility. To be 25 admissible, the consistent statement must have been 26 made before the alleged inconsistent statement. 27

h. Statements for the purpose of medical diagnosis or 28 treatment: statements made for purposes of medical 29 diagnosis or treatment, describing medical history, 30 past or present symptoms, pain, or sensations. 31

i. Reputation of a person’s character in the 32 community: evidence of a person’s general reputation 33 with reference to his or her character or a trait of his 34 or her character at a relevant time in the community in 35 which the person then resided or in a group with 36 which the person habitually associated. 37

j. Dying Declaration: a statement made by a dying 38 person about the cause and circumstances of his or 39 her death, if the statement was made on that person’s 40 personal knowledge and under a sense of immediately 41 impending death. 42

k. Co-Conspirator’s statements: statements made by the 43 declarant while participating in a conspiracy to 44 commit a crime or civil wrong. To be admissible, the 45 following must be established: 46


● The statement was made in furtherance of the 1 objective of that conspiracy; 2

● The statement was made prior to or during the time 3 that the declarant was participating in that 4 conspiracy; and 5

● The evidence is offered either after admission of 6 evidence sufficient to sustain a finding of the facts 7 specified in (1) or (2) or, in the court’s discretion as 8 to the order of proof, subject to the admission of 9 this evidence. 10

l. Adoptive admission: a statement offered against a party, 11 that the party, with knowledge of the content of that 12 statement, has by words or other conduct adopted as true. 13

m. Admission by a party opponent: any statement by a 14 party in an action when it is offered against that party 15 by an opposing party. The statement does not have to 16 be against the declarant’s interest at the time the 17 statement was made. 18

Objections for inappropriately phrased 19

questions 20

10. Leading Questions 21

Attorneys may not ask witnesses leading questions during 22 direct examination or re-direct examination. A leading 23 question is one that suggests the answer desired. Leading 24 questions are permitted on cross- examination. 25

Usage Comments — Example: during direct examination, 26 the prosecutor asks the witness, “During the conversation 27 on March 8, didn’t the defendant make a threatening 28 gesture?” Counsel could rephrase the question, “What, if 29 anything, did the defendant do during your conversation 30 on March 8?” 31

Form of Objection: “Objection, your honor. Counsel is 32 leading the witness.” 33

11. Compound Question 34

A compound question joins two alternatives with “and” or 35 “or,” preventing the interrogation of a witness from being 36 as rapid, distinct, or effective for finding the truth as is 37 reasonably possible. 38

Example: “Did you determine the point of impact form 39 conversations with witnesses and from physical remarks, 40 such as debris in the road?” If an objection to the 41 compound question is sustained, the attorney may state 42


“Your honor, I will rephrase the question,” and then break 1 down the question into two separate questions: 2

Q1: “Did you determine the point of impact from 3 conversations with witnesses?” 4

Q2: “Did you also determine the point of impact from 5 physical marks in the road?” 6

Remember that there may be another way to make your 7 point. 8

Form of Objection: “Objection, your honor, on the 9 ground that this is a compound question.” 10

12. Narrative 11

A narrative question is too general and calls for the 12 witness in essence to “tell a story” or give a broad and 13 unspecific response. The objection is based on the belief 14 that the question seriously inhibits the successful 15 operation of a trial and the ultimate search for the truth. 16

Usage Comments — Example: The attorney asks A, “Please 17 describe all the conversations you had with X before X 18 started the job.” This question calls for the witness to give 19 a long narrative answer. It is, therefore, objectionable. 20

Form of Objection: “Objection, your honor. Counsel’s 21 question calls for a narrative.” Or, “Objection, your 22 honor. The witness is providing a narrative answer.” 23

13. Argumentative Question 24

An argumentative question challenges the witness about 25 an inference from the facts in the case. The cross-26 examiner may not harass a witness, become accusatory 27 toward a witness, unnecessarily interrupt the witness’s 28 answer, or make unnecessary comments on the witness’s 29 responses. These behaviors are also known as “badgering 30 the witness.” (If a witness is non-responsive to a question, 31 see the non-responsive objection, #16 below). 32

Usage Comments — Example: Questions such as “How 33 can you expect the judge to believe that?” are 34 argumentative and objectionable. The attorney may argue 35 the inferences during summation or closing argument, but 36 the attorney must ordinarily restrict his or her questions to 37 those calculated to elicit relevant facts. 38

Form of Objection: “Objection, your honor. Counsel is 39 being argumentative.” Or, “Objection, your honor. 40 Counsel is badgering the witness.” 41


14. Asked and Answered 1

Witnesses should not be asked a question that has 2 previously been asked and answered. This can seriously 3 inhibit the effectiveness of a trial. 4

Usage Comments — Examples: On direct examination, the 5 prosecution attorney asks, “Did the defendant stop at the 6 stop sign?” Witness answers, “No, he did not.” Then, 7 because it is a helpful fact, the direct examining attorney 8 asks again, “So the defendant didn’t stop at the stop 9 sign?” Defense counsel could object on asked-and-10 answered grounds. 11

On cross-examination, the defense attorney asks, “Didn’t 12 you tell a police officer after the accident that you weren’t 13 sure whether X failed to stop for the stop sign?” Witness 14 answers, “I don’t remember.” Defense attorney then asks, 15 “Do you deny telling the officer that?” If the prosecution 16 attorney makes an asked-and-answered objection, it 17 should be overruled. Why? In this example, defense 18 counsel rephrased the question based upon the witness’s 19 answer. 20

Form of Objection: “Objection, your honor. This 21 question has been asked and answered.” 22

15. Vague and Ambiguous Questions 23

Questions should be clear, understandable, and concise as 24 possible. The objection is based on the notion that 25 witnesses cannot answer questions properly if they do not 26 understand the questions. 27

Usage Comments — Example: “Does it happen at once?” 28

Form of Objection: “Objection, your honor. This question 29 is vague and ambiguous as to .” 30

16. Non-responsive Witness 31

A witness has a responsibility to answer the attorney’s 32 questions. Sometimes a witness’s reply is vague or the 33 witness purposely does not answer the attorney’s 34 question. Counsel may object to the witness’s non- 35 responsive answer. 36

Usage Comments — Example: The attorney asks, “Did 37 you see the defendant’s car in the driveway last night?” 38 The witness answers, “Well, when I got home from work I 39 hurried inside to make dinner. Then I decided to watch 40 TV, and then I went to bed.” This answer is non- 41


responsive, as the question is specifically asking if the 1 witness saw the defendant’s car on the night in question. 2

Form of Objection: “Objection, your honor. The witness 3 is being non- responsive.” 4

17. Outside the Scope of Cross-5

Examination 6

Redirect examination is limited to issues raised by the 7 opposing attorney on cross-examination. If an attorney 8 asks questions beyond the issues raised on cross-9 examination, opposing counsel may object to them. 10

Form of Objection: “Objection, your honor. Counsel is 11 asking the witness about matters beyond the scope of 12 cross-examination.” 13


SUMMARY OF ALLOWABLE EVIDENTIARY OBJECTIONS FOR THE

CALIFORNIA MOCK TRIAL 1. Unfair Extrapolation: “Objection, your honor. This question is

an unfair extrapolation,” or, “That information calls for information beyond the scope of the statement of facts.”

2. Relevance: “Objection, your honor. This testimony is not

relevant,” or, “Objection, your honor. Counsel’s question calls for irrelevant testimony.”

3. More Prejudicial than Probative: “Objection, your honor. The probative value of this evidence is substantially outweighed by the danger of undue prejudice (or confusing the issues, or misleading the trier of fact).”

4. Foundation: “Objection, your honor. There is a lack of foundation.”

5. Personal Knowledge/Speculation: “Objection, your honor. The witness has no personal knowledge to answer that question.” Or, “Objection, your honor, speculation.”

6. Opinion Testimony (Testimony from Non-Experts): “Objection, your honor. Improper lay witness opinion.” Or, “Objection, your honor. The question calls for speculation on the part of the witness.”

7. Expert Opinion: “Objection, your honor. There is a lack of foundation for this opinion testimony,” or, “Objection, your honor. Improper opinion.”

8. Character Evidence: “Objection, your honor. Inadmissible character evidence,” or, “Objection, your honor. The question calls for inadmissible character evidence.”

9. Hearsay: “Objection, your honor. Counsel’s question calls for hearsay.” Or, “Objection, your honor. This testimony is hearsay. I move that it be stricken from the record.”

10. Leading Question: “Objection, your honor. Counsel is leading the witness.”

11. Compound Question: “Objection, your honor, on the ground that this is a compound question.”

12. Narrative: “Objection, your honor. Counsel’s question calls for a narrative.” Or, “Objection, your honor. The witness is providing a narrative answer.”


13. Argumentative Question: “Objection, your honor. Counsel is being argumentative.” Or, “Objection, your honor. Counsel is badgering the witness.”

14. Asked and Answered: “Objection, your honor. This question has been asked and answered.”

15. Vague and Ambiguous: “Objection, your honor. This question is vague and ambiguous as to .”

16. Non-Responsive: “Objection, your honor. The witness is being non-responsive.”

17. Outside the Scope of Cross-Examination: “Objection, your honor. Counsel is asking the witness about matters beyondthe scope of cross-examination.


NOTES


The American Board of Trial Lawyers (ABOTA) provides its members with a Code of Professionalism. Consider this code as you participate in Mock Trial. Excerpt from the American Board of Trial Advocates Code of Professionalism Always remember that the practice of law is first and foremost a

profession. Encourage respect for the law and the courts. Always remember that my word is my bond and honor my

responsibilities to serve as an officer of the court and protector of individual rights.

Be respectful in my conduct towards my adversaries. Honor the spirit and intent, as well as the requirements of

applicable rules or codes of professional conduct, and should encourage others to do so.

For more about ABOTA, visit: www.abota.org


2021–2022 California Mock Trial Competition Participating Counties

Alameda Marin Sacramento Shasta

Butte Mariposa San Bernardino Solano

Contra Costa Mendocino San Diego Sonoma

El Dorado Merced San Francisco Stanislaus

Fresno Mono San Joaquin Tulare

Imperial Monterey San Luis Obispo Tuolumne

Kern Napa San Mateo Ventura

Lake Orange Santa Barbara Yolo

Los Angeles Placer Santa Clara

Madera Riverside Santa Cruz

601 South Kingsley Drive Los Angeles, CA 90005 213.487.5590 [email protected] / www.crf-usa.org

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PEOPLE v. COBEY - The Lyceum of Monterey County

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Transcript of PEOPLE v. COBEY - The Lyceum of Monterey County