THE LYLE STROM HIGH SCHOOL MOCK TRIAL PROJECT 2014 …€¦ · THE LYLE STROM HIGH SCHOOL MOCK TRIAL PROJECT 2014 CASE State of Nebraska ... NE 68509-5103 402/475-1042 ... (b) The

THE LYLE STROM HIGH SCHOOL MOCK TRIAL PROJECT

2014 CASE

State of Nebraska vs.

Gayle/Gail Gardener

CR 13-1163

Sponsored by the Nebraska State Bar Foundation

and its State Center for Law-Related Education

www.nebarfnd.org/mock-trial

i

TABLE OF CONTENTS

MEMO TO PARTICIPANTS ................................................................................................................ ii ACKNOWLEDGEMENTS ................................................................................................................... iii GOALS, MOCK TRIAL OATH & CODE OF ETHICAL CONDUCT ......................................................... iv COMPETITION TIMELINE AND DATES .............................................................................................. v THE PROBLEM Information – Charging Document .......................................................................................... 1 Witnesses, Exhibits, and Stipulations ...................................................................................... 2 Jury Instructions ....................................................................................................................... 3 Nebraska Statutes .................................................................................................................... 4 WITNESS STATEMENTS For the Prosecution Ashley Empyrean ......................................................................................................... 5-6 Alex Firma .................................................................................................................... 7-9 Marion D’Amico ....................................................................................................... 10-11 For the Defense Gayle/Gail Gardener ................................................................................................ 12-14 Pat Murphy .............................................................................................................. 15-16 Shannon Stark .......................................................................................................... 17-20 EXHIBITS .................................................................................................................................. 21-39 RULES Index to Rules .................................................................................................................... 40-42 Rules of the Competition .................................................................................................. 43-49 Rules of Procedure ............................................................................................................ 49-51 Federal Rules of Evidence (Mock Trial Version) ............................................................... 51-61 FORMS Official Team Roster Form ..................................................................................................... 62 Trial Scoring & Deduction of Points ....................................................................................... 63 Presiding Judge's Score Sheet ................................................................................................ 64 Performance Judge's Score Sheet .......................................................................................... 65 Suggestions for Scoring and Constructive Critiques ......................................................... 66-67 Dispute Resolution Form -- Inside the Bar ........................................................................ 68-69 Dispute Resolution Form -- Outside the Bar .......................................................................... 70 COORDINATORS ........................................................................................................................ 71-74 FOUNDATION OFFICERS, DIRECTORS AND STAFF ......................................................................... 75

ii

NEBRASKA STATE BAR FOUNDATION P.O. Box 95103

Lincoln, NE 68509-5103 402/475-1042

MEMO

TO: ALL MOCK TRIAL PARTICIPANTS FROM: DORIS J. HUFFMAN, EXECUTIVE DIRECTOR RE: 2014 NEBRASKA HIGH SCHOOL MOCK TRIAL COMPETITION DATE: August 22, 2014 On behalf of the Nebraska State Bar Foundation, I welcome your participation in the 2014 Mock Trial competition. This year’s criminal case decides whether Gayle/Gail Gardener did cause the death of Cliff Stanley while s/he was intentionally damaging a building by starting a fire.

Students – You will experience what it is like to prepare for and present a case before a judge. Working with your team and coaches, you will learn to evaluate information and respond quickly. As you prepare, you will sharpen public speaking and presentation skills. The greatest benefit is the opportunity to learn how the legal system works. After the competition, you will have gained knowledge that will be helpful as you become an adult. By studying and understanding courtroom procedure, you should become more comfortable with federal and state laws as part of the legal system. Your interaction with some of Nebraska’s finest attorneys and judges will give you a glimpse of the different interpretations of trial procedure and different approaches of individual members of the judiciary. Teacher Coaches, Attorney Coaches and Judges – I strongly encourage you to focus on the goal of participation by students rather than stressing competition while preparing your case. Your contributions of time and talent are making many experiential educational opportunities available to over 1,000 Nebraska students. Your participation is an essential element to the success of this program. You can be proud of the positive impact you have made on the lives of these students. Thank you! Please note that Rule 15 and 21 have been modified. If you have any questions, please contact me. Good luck and have fun!

iii

ACKNOWLEDGEMENTS The High School Mock Trial Project is administered and funded by the Nebraska State Bar Foundation and supported by hundreds of volunteer lawyers each year. The Nebraska State Bar Foundation is a nonprofit corporation that was established in 1963. Its mission is to serve the citizens of Nebraska and the legal profession through the administration and funding of innovative and creative programs directed toward the improvement of justice and the fulfillment of the American vision of equal justice for all. Annually, the NEBRASKA STATE BAR FOUNDATION and the NEBRASKA COUNCIL OF SCHOOL ATTORNEYS help provide financial assistance for the winning Nebraska Mock Trial team to attend the National High School Mock Trial Championship.

A special thank you is extended to the Nebraska Council of School Attorneys. Since 1992, this statewide organization has given $1,000 annually to the winning State Champion. The Council’s continued support

is a testament of the positive impact Mock Trial has on young Nebraskans. A special thank you is also extended to the members of the Nebraska State Mock Trial Case Writing Committee:

Thomas E. Keefe, Lincoln (Chair) John L. Jelkin, Lincoln Kristi Egger-Brown, Lincoln Joel D. Nelson, Lincoln Michael D. Gooch, Omaha Lory Ann Pasold, Lincoln Stephanie R. Hupp, Lincoln Patrick J. Calkins, Seward

In addition, the Foundation would like to acknowledge and thank the following individual, who provided invaluable assistance to the Case Writing Committee:

Robb Gottsch Omaha Fire Department

Battalion Chief

The following organizations endorse the Nebraska High School Mock Trial Project:

Defense Counsel Association of Nebraska Nebraska Association of School Boards Nebraska Association of Trial Attorneys Nebraska Council of School Attorneys Nebraska County Attorneys Association

Nebraska County Judges Association Nebraska Criminal Defense Attorneys Association Nebraska District Judges Association Nebraska State Bar Association Nebraska State Council for the Social Studies

iv

NEBRASKA MOCK TRIAL GOALS

To increase student comprehension of the historical, ethical and philosophical bases of the American system of justice.

To clarify operation of the law, court procedures and the legal system.

To help students develop basic life and leadership skills, such as listening, speaking, writing, reading and analyzing.

To build bridges of mutual cooperation, respect and support between the community (teachers, students, parents and schools) and the legal profession.

To heighten appreciation for academic studies and promote positive scholastic achievements.

To bring law to life for students through active participation in the project.

To encourage participation and growth toward understanding the meaning of good citizenship in our democracy through the system of law. All students who participate are winners.

CODE OF ETHICAL CONDUCT

The purpose of the Nebraska High School Mock Trial Competition is to stimulate and encourage a deeper understanding and appreciation of the legal system. This is accomplished by providing students the opportunity to participate actively in the learning process. The education of students is the primary goal of the Mock Trial program, and healthy competition helps to achieve this goal. Other important objectives include improving proficiency in speaking, listening, reading, and reasoning skills; promoting effective communication and cooperation between the educational and legal communities; providing an opportunity to compete in an academic setting; and promoting cooperation among young people of diverse interests and abilities.

As a means of diligent application of the Nebraska High School Mock Trial Competition Rules, the Nebraska State Bar Foundation encourages all participants to follow the Code of Ethical Conduct:

1. Team members promise to compete with the highest standards of deportment, showing respect for their fellow team members, opponents, judges, evaluators, attorney coaches, teacher coaches and Mock Trial personnel. All competitors will focus on accepting defeat and success with dignity and restraint. Trials will be conducted honestly, fairly, and with the utmost civility. Members will avoid all tactics they know are wrong or in violation of the Rules, including the use of Invention of Facts. Members will not willfully violate the Rules of the competition in spirit or in practice.

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

3. Attorney Coaches agree to uphold the highest standards of the legal profession and will zealously encourage fair play. They will promote conduct and decorum in accordance with the competition Rules and this Code of Ethical Conduct. Attorney coaches are reminded that they are in a position of authority and thus serve as positive role models for the students.

4. All participants (including observers) are bound by all sections of this Code and agree to abide by the provisions. Teams are responsible for ensuring that all observers are aware of the Code.

MOCK TRIAL OATH

Do you promise that the testimony you are about to give will truthfully conform to the facts and

rules of the Mock Trial Competition?

v

2014-2015 MOCK TRIAL COMPETITION TIMELINE AND DATES

Entry deadline ...........................................................................................................September 8, 2014 Dates and Times Preference Form due to Regional Coordinator ......................... September 22, 2014 Local and regional competition ............................................................................................ October 1 - (7-week period in 12 regions) ................................................................ November 26, 2014 Regional winners announced ................................................................................. November 26, 2014 State Championships .......................................................................................... December 9 - 10, 2014 Sarpy County Courthouse Papillion, Nebraska Mock Trial Banquet .................................................................................................... December 9, 2014 Embassy Suites La Vista La Vista, Nebraska National Championship ............................................................................................... May 14-16, 2015 Raleigh, North Carolina

1

IN THE DISTRICT COURT OF WAGON WHEEL COUNTY, NEBRASKA State of Nebraska CR 13-1163 Prosecution ) ) vs. ) Gayle/Gail Gardener ) Information Defendant. ) )

Joe Justice, Wagon Wheel County Attorney by authority of the State of Nebraska, comes here in

person into Court at this, the 2013 term, thereof, and for the State of Nebraska, and gives the

Court to understand and be informed that Gayle/Gail Gardener on or about July 3, 2013, in the

County of Wagon Wheel and State of Nebraska, then and there being, did cause the death of

Cliff Stanley while s/he was intentionally damaging a building or property contained within a

building by starting a fire or causing an explosion, contrary to the form of the statutes in such

cases made and provided, and against the peace and dignity of the State of Nebraska.

JOE JUSTICE

WAGON WHEEL COUNTY ATTORNEY

_________________________________

Joe Justice

Wagon Wheel County Attorney

Joe Justice, Wagon Wheel County Attorney, says the facts stated in the foregoing

information are true as s/he verily believes.

___________________________________

Joe Justice


2

IN THE DISTRICT COURT OF WAGON WHEEL COUNTY, NEBRASKA

State of Nebraska CR 13-1163 Prosecution ) ) vs. ) Gayle/Gail Gardener ) Honorable Tom Calkins Defendant. ) Presiding Judge )

WITNESSES, EXHIBITS, AND STIPULATIONS

Witnesses for Prosecution 1: Ashley Empyrean 2: Alex Firma 3: Marion D’Amico

Witnesses for the Defense 1: Gayle/Gail Gardener 2: Pat Murphy 3: Shannon Stark

Exhibits 1. Fire Report prepared by Fire Investigator Ashley Empyrean 2. Photos of Gardener’s Garden Gnomes Factory 3. Autopsy Report 4. EMT License 5. Proffer Letter 6. Emails between D’Amico and Gardener 7. Emails between Ganoush and Gardener 8. Farm State Fire & Casualty Insurance Declarations Page 9. Gardener’s Garden Gnomes Employee Key Issuance Form

Stipulations Both sides stipulate to the following:

1. All exhibits included in the case are authentic and accurate in all respects. No objections to the authenticity of the exhibits will be entertained.

2. No objections for any reason shall be entertained to the admissibility of the Autopsy Report. The prosecution may introduce and offer the Autopsy Report through the testimony of the fire investigator. The Autopsy Report will be admitted into evidence without objection.

3

JURY INSTRUCTIONS Instruction #1

The material elements which the State must prove beyond a reasonable doubt in order to convict Gayle/Gail Gardener of the crime of first-degree murder are:

1. That on or about July 4, 2013, Gayle/Gail Gardener did cause the death of Cliff Stanley in Wagon Wheel County, Nebraska; and

2. That Gayle/Gail Gardener did so while s/he was intentionally damaging a building or property contained within a building by starting a fire or causing an explosion.

Instruction #2

The material elements which the State must prove beyond a reasonable doubt in order to convict Gayle/Gail Gardener of the crime of first-degree arson are:

That on or about July 3, 2013, Gayle/Gail Gardener intentionally damaged Gardener’s Garden Gnome Factory by starting a fire when Cliff Stanley was present in the building at the time and either:

(a) Gayle/Gail Gardener knew that fact, or

(b) The circumstances were such as to render the presence of Cliff Stanley there-in a reasonable probability.

4

IN THE DISTRICT COURT OF WAGON WHEEL COUNTY, NEBRASKA State of Nebraska CR 13-1163 Prosecution ) ) vs. ) Gayle/Gail Gardener ) Honorable Tom Calkins Defendant. ) Presiding Judge )

NEBRASKA STATUTES

28-303. Murder in the first degree; penalty

A person commits murder in the first degree if he or she kills another person (1) purposely and with deliberate and premeditated malice, or (2) in the perpetration of or attempt to perpetrate any sexual assault in the first degree, arson, robbery, kidnapping, hijacking of any public or private means of transportation, or burglary, or (3) by administering poison or causing the same to be done; or if by willful and corrupt perjury or subornation of the same he or she purposely procures the conviction and execution of any innocent person. The determination of whether murder in the first degree shall be punished as a Class I or Class IA felony shall be made pursuant to sections 29-2519 to 29-2524.

28-502. Arson, first degree; penalty

1: A person commits arson in the first degree if he or she intentionally damages a building or property contained within a building by starting a fire or causing an explosion when another person is present in the building at the time and either (a) the actor knows that fact, or (b) the circumstances are such as to render the presence of a person there-in a reasonable probability.

2: A person commits arson in the first degree if a fire is started or an explosion is caused in the perpetration of any robbery, burglary, or felony criminal mischief when another person is present in the building at the time and either (a) the actor knows that fact, or (b) the circumstances are such as to render the presence of a person therein a reasonable probability.

3: Arson in the first degree is a Class II felony.

28-105. Felonies; classification of penalties; sentences; where served; eligibility for probation

For purposes of the Nebraska Criminal Code and any statute passed by the Legislature after the date of passage of the code, felonies are divided into nine classes which are distinguished from one another by the following penalties which are authorized upon conviction:

Class I felony Death

Class IA felony Life imprisonment

Class II felony Maximum – fifty years imprisonment / Minimum – one year imprisonment

5



Witness Statement of Ashley Empyrean

My name is Ashley Empyrean, but everybody calls me Ash. I was named after my Mom’s favorite 1 character in Gone With The Wind – Ashley Wilkes. Plus, my Dad, who was a history buff, 2 respected Congressman James Mitchell Ashley. You may not know this, but Congressman Ashley 3 helped lay the foundation to pass the 13th Amendment. So, I had no choice but to be named 4 Ashley! 5 I currently live at 451 Kindling Court, in Goldenrod, Nebraska. I am single, but I have a 6 Dalmatian, Flame, who gives me comfort and joy. Flame has also been trained in fire 7 investigation techniques although she is not certified. She keeps fervently getting excited 8 whenever she thinks she smells accelerant; that is, too many false positives to be certified. 9 I am one of two certified fire investigators employed by the Goldenrod Fire Department. After 10 graduating from high school in 1982, I joined the United States Navy where I was rated a fire 11 protection inspector on board the USS Nebraska. As you might imagine, on board a submarine, 12 prevention is all there is. Once the boat fills with deadly gas and smoke, only those with 13 independent breathing equipment have a chance to survive. Unfortunately the heat from a fire is 14 contained within a submarine so if the gas doesn’t get you, the heat will. Fire Prevention is no joke. 15 It just toasts my roast when people act irresponsibly around fire. 16 After my service in the Navy, I returned to Goldenrod and applied to the Goldenrod Police 17 Department. I was accepted and completed my training at the Law Enforcement Academy in 18 Cottonwood City. I also completed a B.S. in Fire Protection Sciences, which I earned at Carson 19 University in Norfolk. The police department wanted someone to take over its arson squad 20 investigations, and I volunteered. I am cross certified as a state law enforcement officer (with 21 powers of arrest) and as a fire investigator. 22 On July 3rd, 2013, at 2310, I received a call from dispatch which provided barely an ember of 23 helpful information. Still, I burned rubber getting to the gnome factory. When I arrived, the 24 interior of the building was ablaze. I stayed out of the way of the firefighters while they 25 subdued the conflagration. In addition to making a visual inspection, I took samples and 26 photographs. I interviewed available and relevant witnesses. Finally, I prepared my fire report, 27 which has been marked as Exhibit #1 I have reviewed my report and it is a true and accurate 28 copy of the original on file with the Goldenrod Fire Department. The photographs, Exhibit #2 are 29 true and accurate copies of the ones I took on the scene the morning after the fire. The report and 30 the photographs truly and accurately depict my investigation and my observations during this 31 investigation. 32

6

I believe that the building owner, Gayle/Gail Gardener, was the responsible party. By that I 33 mean that s/he had means, motive and opportunity. Therefore, I arrested Gayle/Gail Gardener 34 for first degree arson. By the time I dictated this report, I was aware that the Janitor did in fact 35 die, and therefore I later recommended that Gardener be charged with first degree felony 36 murder too. I then reviewed the autopsy report which is included as Exhibit #3. 37 I know that some people think the fire might have been started by that recently terminated 38 employee, Bobby “Bubba” Ganoush. That is just a flash in the pan. I subsequently learned that 39 Bubba may also have had means, motive and opportunity. However, I arrested the owner first 40 and am not interested in changing fire engines mid fire so to speak. Besides, the accusation was 41 made to throw off suspicion by Gardener only after I asked Gardener if he had any recent 42 employee problems. 43 Well, pretty much everything is in my report so if you have any questions, just refer to it. 44 WITNESS ADDENDUM

I have reviewed this statement and I have nothing of significance to add. The material facts are true and correct.

Signed,

SIGNED AND SWORN to before me at 8:00 a.m. on this day of this round of the 2014-2015 Nebraska State High School Mock Trial Competition. __________________________________________________ Stephanie Egger Nelson, Notary Public My Commission Expires: December 31, 2014

xxxxxxxxxxx

xxx

xxxxxxxxxxx

xxx

7



Witness Statement of Alex Firma

Let me start out by saying, I am neither a hero, nor suicidal. After I ran into that burning gnome 1 factory and tried to save Cliff Stanley, a lot of people wanted to pat me on the back (which I 2 would have sincerely accepted when I came back from Afghanistan in 2005) and call me 3 courageous. Again, I say, I am not. I just did what any good American would have done given 4 the circumstances. I’m confident you would have done the same. 5 My name is Alex P. Firma. I live at 6319 Haystack Road just outside of Goldenrod. I have an old 6 black and brown mutt with a big white spot on his right leg named Pal. Named ole Pal this since 7 it is close to my middle name and then we’d be like twins. What can I say? I was young. Cut me 8 some slack. Sorry, sorta got off track. Anyway, I grew up about 10 miles outside Goldenrod on 9 a farm. Mom and Dad are both farmers and business people, so I was given chores (like the rest 10 of my siblings) at a young age. We wouldn’t have presumed an allowance came with the work. 11 And work we did. At a young age I could haul hay bales with the best of them, and, I must say, I 12 miss those old square bales. Although the big round bales are nice for windbreaks and the 13 occasional minion sculpture, there’s something satisfying about loading up bales on the trailer, 14 unloading and stacking them in the barn (and sometimes making a maze or a fort out of them, 15 once there was room). 16

After graduating from Goldenrod High School in May of 2000, I joined the Army and found out 17 that I had a knack for detective work - actually more like sniffing out and locating IED’s – but 18 detective work sounds so much more distinguished. I was sent to Afghanistan in 2002 and drove 19 an armored tank (and walked a lot), and looked. And located. And mostly detonated safely. 20 Until the last time. I missed that rendezvous with death when I walked away with only a ruptured 21 right eardrum, but others weren’t so fortunate. Three soldiers with me and a crowd of Afghan 22 civilians. I came back home in 2005 a different person – more aware, more alive one could say 23 – but affected in a way that is simply indescribable. So I won’t even try. I will just continue to live 24 until I don’t anymore. 25

Adding onto the skills I learned in the military, I trained to be an EMT. After all the carnage I saw 26 in Afghanistan, it seemed fitting. After the basic EMT course of about 100 hours classroom time 27 and some ride-alongs in the Goldenrod ambulance, I decided I wanted to learn more. I finally 28 got my EMT-P in 2007, which involved more classes and a lot of clinicals, including some in ER/ED, 29 ICU, OB/GYN, surgery, intubating and such. And more rides in the Goldenrod ambulance with 30 the crew with whom I worked. Met Ash Empyrean at some of the fire scenes through the 31 ambulance crews. Fires aren’t really great for a person’s health, so EMTs, ambulance crews, and 32 fire investigators get together often. Ash seems like a decent person and is very honest. I’d 33 vouch for that. Anyway, there’s a camaraderie in health care professionals (fire department 34

8

included) that was similar to my time in the Army; and there’s that sense of risk, always present, 35 yet inescapable. But necessary, like I said. I think the stress and risks finally got to me though, 36 and I ended up walking away during an ambulance call in a dead baby case and walked 37 directly to a bar. Stayed there longer than I should have and stayed away from my work too 38 long. Lost that job, but it taught me what I can and can’t handle. Went to inpatient alcohol 39 treatment at the VA Hospital here and now I only rarely drink. Nowadays, I’m working second 40 shift (2 p.m. to 11 p.m.) at the VA and volunteer at the church-funded soup kitchen and mission. 41 Most people are volunteers, but I was lucky enough when I got out of treatment to snag that job. 42 Kind of a “Jack/Jill of all trades” you could say. I do a little of everything. 43

It was kind of slow on July 3, 2013, and I got off work about 10 p.m. Preparing for the 4th of 44 July celebrations, my friends talked me into going out for a drink with them. They know I don’t 45 drink much anymore, but it was nice to be included, so we all met at the “Factory Works” bar, 46 down by the warehouse district. I only had a couple beers there and decided to walk home. It 47 was a nice night, not too muggy and not too buggy, so it felt like the right thing to do at the time. 48 Now, looking back, I’m sure I was there for a reason. I only wish I could have gotten there sooner 49 and saved Cliff Stanley’s life and maybe caught the jerk who started the fire. I really dislike 50 people who put other humans in harm’s way just to serve their own interests. Anyway, back to 51 that night. It was about 2300 hours, and I smelled smoke and not the “steaks on the grill” kind 52 that makes your mouth water. That acrid chemical and metal and tar smell of an old building on 53 fire. I knew it was close. Running toward the odor and haze of smoke, I could see by the nearly 54 full moon that the Gnome factory was burning. When I saw Cliff’s truck in the parking lot, I knew 55 he was probably in there. He was a nice, yet eclectic guy, about my age, who used to work at the 56 hospital in town and who certainly didn’t deserve to experience the suffocating feeling caused by 57 smoke-inhalation, not that anyone does. I called 911 while I scaled the fence and ran toward the 58 door next to Cliff’s truck and accurately bet that it was unlocked. Without a mask or any 59 protective gear, it was tough to see and smell, but I hunkered down by the floor, 60

I covered my mouth and nose with my shirt and headed toward the tipped over mop bucket I saw 61 near the middle of the room, about 20 feet away. When I got there, I found Cliff face down on 62 the floor. Exhibit #1 where it says ‘victim location’ on the map accurately reflects the area in the 63 factory where I found him. He was barely breathing, and I knew I had to get him out of there. I 64 grabbed him by the arms and drug him toward the exit, still staying close to the floor. It was 65 hard to see, but I’m sure I drug him through something – paper or some paper-like material – so I 66 probably screwed up the crime scene. Wasn’t thinking about it then. Anyway, as I reached the 67 door, I smelled some kind of fuel mixed in with the smell of burning paper. No time, however, to 68 stand (or crouch, I guess) around gawking. Had to get out of there with him! Once outside, I 69 flipped him over, and dragged him toward the edge of the parking lot, hopefully far enough 70 away if anything exploded. Nothing did, but you never know. When I got Cliff on the ground, I 71 saw he needed to be intubated. Having inhaled the hot gasses from the fire, his trachea swelled, 72 and he was gasping for air and could barely breathe. Because I always carry a pocketknife, I 73 used the blade to do a quick tracheotomy and used the case of the fountain pen I always carry 74 with me to intubate. In life and death situations, your mind sometimes calls you back to some 75 weird memory, and all I could think about was “this is just like ‘House’ and ‘Saw V’ without the 76 movie stars.” Dumb, I know. But before I could make the incision, he gasped “it finally happened 77 . . . money.”, so quiet I could barely hear it, but I am 100% positive that’s what he said. And 78 those were his last words ever, because I intubated him right after that, and you can’t talk with a 79 tube in your trachea. His breathing seemed to improve a bit, and the fact that my EMT license 80 lapsed didn’t make the emergency trache I did any less effective. See Exhibit #4. I heard he 81 died at the hospital from smoke inhalation, even though the ambulance got there about 10 82

9

seconds after I intubated him, and they took him to the hospital right away. I’m sure the 83 ambulance crew did their best – as I said before, I worked with some of them before and they 84 are top-notch. Wish I could have saved him. Wish I could have gotten there just a little sooner. 85 Wish the scumbag who started the fire would have had the common decency to make sure no one 86 was in the building. Wishing gets you squat apparently. 87

People have asked me what else I saw. I didn’t see anyone there but Cliff, and if anyone else 88 had been there, I sure didn’t see them. I did hear a vehicle with a loud muffler which sounded 89 like it was accelerating away from the area as I was running toward the burning factory, but 90 that’s all. The factory district is pretty quiet at night in a town the size of Goldenrod. No need 91 for a night shift. Murder is what this is. Plain and simple. Thought I could get away from it in 92 2005 when I came home from war. I thought wrong, but I’m still glad that I could at least try to 93 save him. It was worth the risk. That’s all I can say. 94

WITNESS ADDENDUM


Signed,


xxxxxxxxxxx

xxx

xxxxxxxxxxx

xxx

10


Witness Statement of Marion D’Amico

My name is Marion D’Amico. My work associates call me The Godparent. You see, I’m the 1 godparent for at least 15 children of my associates. I have two white Angora cats, Pollex and 2 Patella. They are very loyal. Loyalty is very important to me. Oh, yes, I live at 471 Mulberry 3 Street in an old palazzo built by the well known Giovanni da Contadino. Of course, you know 4 that “Contadino” means farmer in Italian. 5 I was born and raised in Little Sicily. Now I take care of lot of my business out of the back room 6 of Christiano’s Italian Restaurant over a nice bottle of Silician Nebbiolio and some tiramisu. 7 Brenda and Eddy make the best tiramisu this side of the pond. Everyone knows what goes on in 8 the back room. You know, business deals get made. 9 I come from a very big family. I didn’t go to college. I always worked for the family business. 10 When my father passed away, I took over the business. My father was murdered. His father 11 before him was murdered. It can be a dangerous business. I always sleep with one eye open. 12 You know, I have insomnia. It’s hard to sleep since I worry about the family business all the time. 13 I have been a legitimate family business person in Goldenrod for 25 years. I seem to be the 14 center of attention for the local police, but I don’t even have any speeding tickets. I have been 15 stopped and searched regularly by Sheriff Ness, but no tickets. I make sure that my hands never 16 get dirty. You see, I have OCD and carry hand sanitizer with me everywhere I go. I make sure 17 that I pay all my taxes on time as the good citizen that I am. Currently, I’m involved mostly in high 18 risk lending. When the people of Goldenrod need a loan and nobody else will give them any 19 money, they call me. It’s called “high risk,” because it is a high risk for the borrowers that can’t 20 pay me back on time. You see, I charge a slightly higher interest rate than conventional lenders. I 21 have a very high rate of clients that pay me back in full, plus interest, of course. Sometimes, my 22 associates, Moose and Rocko, go out to help encourage payment, if you know what I mean. 23 Pollex and Patella go along for the ride in the Caddy. They like the wind in their fur. Only 2 24 borrowers never paid me back and they were never seen again in Goldenrod. I can be very 25 persuasive. You see one of them got whacked, you know, was whacked out and apparently 26 ended up at the funny farm. The other one had cement shoes. You know, moved so slow it was 27 like he was wearing cement for shoes. 28

11

I wasn’t surprised when Gayle/Gail Gardener came knocking on my door. I had seen him/her at 29 the boats a lot. S/he had that look like s/he was gambling with his/her rent money. S/he was 30 always by himself/herself, stressed out, sweating, nervous, and didn’t seem to be having a good 31 time. When Gardener came in, s/he said business was down. I don’t know how s/he ever thought 32 anyone would buy enough overpriced, tacky goblins to make any money. I don’t care what s/he 33 needed money for. S/he needed 50 large and quick. I am always willing to help out a fellow 34 local business, for a fee. S/he owed me 65 Gs back in 60 days. Gardener couldn’t agree fast 35 enough. Oh, we don’t sign anything and there aren’t any payment books. Yeah, I kinda 36 remember exchanging emails. Exhibit #6 looks about right to me. Gardener knew how to pay 37 me back and that s/he would be sleeping with the fishes if s/he didn’t. You see, the homeless in 38 Goldenrod live under the bridge by Meadowlark Lake. If the business failed, s/he would lose 39 his/her house too. 40 I called Gardener the night of the fire. I made one last offer that Gardener couldn’t refuse to 41 pay me back. Gardener said s/he had “business to take care of” and then I would get my 42 money back. S/he didn’t say what it was and I didn’t ask. You know, don’t ask, don’t tell. 43 Once the gremlin factory burned down, I got my money back. Well, the 60 days were up, so I 44 got a little extra interest on top of my 65 grand. I should have asked for more, Gardener was 45 rolling in it and was just happy to be out of the troll business. 46 There seems to be a little misunderstanding between me and Sheriff Ness about my family 47 business. They have been snooping around ever since the night of the fire. I hired Lionel Hutz to 48 make Ness go away. Not sure what good he’s done for me, because now I have to take some 49 deal to not be prosecuted for things that I didn’t do. See Exhibit #5. Like I said, I’m just a 50 legitimate family business person who wants the best for Goldenrod.51

WITNESS ADDENDUM


Signed,


xxxxxxxxxxx

xxx

xxxxxxxxxxx

xxx

12


Witness Statement of Gayle/Gail Gardener

My name is Gayle/Gail Gardener. I live in the house that my great grandfather built back in 1 1888. Just love all the hand carved crown molding and oak bookcases in the place. Of course, 2 there are some issues with owning such a historic home! Oh, and my address is 4321Sheridan 3 Lane. 4

I have lived in Goldenrod, Nebraska, my entire life. I used to be married; however, that all 5 ended when I started spending so much time on my career! Fortunately, I have three kids who are 6 the apples of my eyes. My oldest is Betsy, a senior at Meadowlark University, who is majoring in 7 Criminal Justice. She wants to go on to law school. Next is Ben, who is a freshman at Sterling 8 Morton University. He is undecided at the moment; however, I believe he will follow in my 9 footsteps and go into business. Oh, by the way, I have a B.S. in Finance. Anyway, my baby is 10 Isabella, who is a junior in high school. She is a great volleyball player and also participates in 11 the High School Mock Trial program. Finally, we have a Siberian Husky named Rebel…ornery 12 dog! 13

My dream has always been to provide the citizens of Goldenrod with the highest quality lawn 14 and garden ornaments. Making the city of Goldenrod look as aesthetically pleasing as possible 15 has always been my highest priority. 16

I started my business back in 1994. Gardener’s Garden Gnomes located at 3150 West Bond 17 Drive. At first things were a little rough as I was trying to get my business going. Apparently not 18 everyone in town has the same passion for lawn and garden ornaments that I do. I just can’t 19 believe that some people think my products can be “creepy” or “tacky”. What is wrong with 20 these people?! I mean, who wouldn’t want a six-foot tall gnome? I know gnomes are normally 21 short, but my dad always taught me, “Go big or go home.” 22

Since business wasn’t exactly “booming” at first, I had to take out several loans to cover operating 23 expenses – nearly $400,000.00 worth! To add to that, it was a struggle to make the mortgage 24 payment each month for the factory. The bank owned more of that building that I did. I’ll be 25 honest, that kind of depressed me. Sometimes, when I was down, I would go across the river to 26 the “boats” to gamble. I always thought, “If I could just hit it big over here at the casino, all my 27 troubles would be over…” That line of thinking never served me very well. 28

Not being the luckiest soul, I ended up losing quite a bit of money over there. I soon realized that 29 I might have a problem so I contacted the gambling hotline, and I now go to Gamblers 30 Anonymous twice a week. I used to owe about $100,000.00 to various loan sharks around the 31 area. The “juice” (interest) was always running and they charge so much! It’s just not fair! 32

13

I vaguely remember the Godparent calling me sometime before the fire. Maybe it was an 33 e-mail. I don’t know. S/He wanted to know when I was going to pay back my loan. I told 34 him/her s/he would get the money. I was hoping I would hit it big one last time at the casinos 35 and could finally get him/her off my back. I didn’t tell him/her my plan because I didn’t think 36 s/he really cared where the money came from. As long as s/he got it back! I NEVER meant that 37 I would do something so desperate as to set fire to my own building! I loved that factory. 38

Still, at least part of my life is “under control.” I used to have to put up with pesky emails I was 39 always getting from the loan shark and his goons. See Exhibit #6. Looks accurate to me. They 40 were so demanding! They even threatened to break my legs if I missed my payment. I told them 41 that just wouldn’t work, as I was the anchor in our 4th of July sack race relay… Oddly, they didn’t 42 seem to care. 43

Bobby “Bubba” Ganoush was a loyal employee for several years. I think I hired him back in 44 2010. He worked hard for me up until about 2012, when he started getting a bit lazy. Around 45 that time, I also noticed that the books weren’t always adding up right. Profits weren’t as high as 46 they should have been given the number of items we were selling. I did some investigating and, 47 unfortunately, it turned out that Bubba was selling gnomes and other lawn ornaments at 48 discounted prices to members of our local book club. Bubba’s passion for literature apparently 49 clouded his judgment when it came to running a business, so I had to let him go on July 1, 2013. I 50 asked for the keys to the building but he said he didn’t have them. Bubba wasn’t too happy with 51 me and, on his way out the door, said to me, “I hope this place burns to the ground! Goldenrod 52 would be better off without all your stupid decorations!” Imagine that! 53

I have seen the e-mails between me and Bubba. See Exhibit #7. Look accurate to me. That’s all 54 I can say about that. 55

Over the last several months I wasn’t able to keep up with the bills, not to mention trying to get 56 my gambling debts paid off. After speaking with my attorney and accountant on several 57 occasions, I was seriously considering filing for bankruptcy and closing up shop. Maybe my 58 passion for garden gnomes makes a better hobby than a business… 59

Anyway, that all changed on July 3. I was having a Fourth of July poker party at my place. I 60 used to be a big party animal but, as I’ve gotten older, we’ve toned it down a bit. The party 61 broke up around 10:30 p.m. but Murph stuck around for a while. Talked about old times. Murph 62 is a true friend! 63

I’ve seen “Investigator” Ash Empyrean’s statement saying that I smelled like solvents. What can I 64 say? I don’t even notice it anymore. I work all day in a building filled with solvents. Even when I 65 take a shower, I’m told you can sometimes smell it. 66

I got a call from the local sheriff around midnight telling me that my business was on fire! I took a 67 quick shower and rushed down to the shop. I was devastated to see my life’s work going up in 68 flames. There was almost nothing left by the time the fire was put out! 69

It is such a tragedy about Cliff. I couldn’t figure out why he was there at the time of the fire. I 70 told him to take the night off and enjoy the Goldenrod fireworks display. He was always such a 71 hard worker that I wanted him to spend some quality time with his family. His wife later told me 72 he was going to meet the family at Goldenrod Park after he stopped by the shop to check on the 73 place. That was Cliff, making sure the work was done, even on his day off! I’m sure going to miss 74 that guy. 75

14

For the record, I DID NOT START THAT FIRE! 76

The fire happened only a few days after I fired Bubba and, if you ask me, he made good on his 77 threat and set my place on fire. How’s that for gratitude? You give someone a job, help support 78 his family, and when you fire him for essentially stealing (a legitimate reason, if you ask me…), 79 he goes and starts your business on fire! Thankfully, I had taken out an insurance policy recently 80 that covered fire damage. See Exhibit #8. I’ve taken a settlement check for $1.5 million, so now, 81 even though my life’s work went up in flames, at least I can pay off all my debts and still have a 82 nice chunk of change left over. Now I have to figure out what to do next. I think I’ll start with a 83 nice little vacation to Hawaii. I think I’ve earned it, don’t you? 84

WITNESS ADDENDUM


Signed,


xxxxxxxxxxx

xxx

xxxxxxxxxxx

xxx

15


Witness Statement of Pat Murphy

My name is Pat Murphy. Most of my friends just call me “Murph.” I grew up on a farm between 1 Omaha and Elkhorn, Nebraska. Life was tough growing up. We worked hard and put in long 2 hours. However, that all changed when my folks sold the farm to a developer. Land that was 3 sold by the acre became land that was sold by the square foot. Mom and Dad had enough 4 money to send each of us five kids to Meadowlark University. They even had some left over to 5 invest. Mom and Dad invested in a company called Berrkshire Haddeway. They have done very 6 well through the years. 7

Just some background information on me – I live on an acreage outside of Goldenrod. My 8 address is 1861 Rd 63. I just love the outdoors and being able to hike out in the hills. 9

I met the Defendant, Gayle/Gail Gardener at Meadowlark University. Gayle/Gail was from 10 old money. His/Her family owned the farm equipment factory that had been in the family for 11 years. Gayle/Gail eventually inherited the factory building in his/her hometown of Goldenrod 12 and immediately started a lawn ornament business. Gayle/Gail even talked me into moving to 13 Goldenrod. I met my spouse in Goldenrod. It’s where we were married. Our children’s names 14 are Bob and Julie. We also have two dogs named Grumpy and Sneezy. My spouse and I collect 15 and restore antique tractors. One of our favorite things to do is to take our 1910 Rumely 16 Oil-Pull kerosene tractor and our 1906 Hart-Parr tractor to fairs, farm shows and parades. 17

Gayle/Gail and I love to go fishing and boating at the WigWam State Recreation Area. We 18 also like sports and never miss an opportunity to support the local high school team, the “Prairie 19 Chickens.” In college, we used to hit the bars, but we don’t do that so much anymore. 20 Gayle/Gail is my good friend and through the years we’ve always had each other’s back. I 21 would do anything for Gayle/Gail and I believe that Gayle/Gail would do anything for me. 22

One tradition that Gayle/Gail and I started in college and which we still do today is our annual 23 3rd of July poker game. We usually have about six of us at the game, and sometimes, the game 24 runs late into the night. This year the game was at Gayle’s/Gail’s place and, for some reason, 25 the game got over early. Robin, Les, Chris and Sal left between 10:00 to 10:30 p.m. I stayed 26 around to help Gayle/Gail clean up. When we were finished, the two of us sat around and 27 talked about our college days. 28

I was there when Gayle/Gail got a call about the factory. Gayle/Gail was visibly shaken. S/he 29 didn’t tell me who the call was from, or what it was about. S/he only said that there was some 30 trouble at the factory that needed his/her attention. I immediately left Gayle’s/Gail’s house and 31 went straight home. I did not find out about the fire until the next day. 32

16

Through the years, Gayle/Gail has done a lot of good for the town of Goldenrod. S/he is 33 generous to a fault. One instance where Gayle’s/Gail’s generosity got him/her into trouble was 34 when s/he hired that no-good, hot-headed, train-wreck of an employee, Bobby “Bubba” 35 Ganoush. Gayle/Gail would often tell about all of the guff that s/he had to take from Bubba. 36 Some people treat a job like they have a right to get paid, but no corresponding duty to earn 37 that pay. Bubba was like that. Always telling Gayle/Gail how things should be done, but never 38 really doing any real work herself/himself. I was after Gayle/Gail to fire the slacker for months 39 before Bubba got caught with his/her hand in the till. Bubba finally screwed up so bad that 40 Gayle/Gail didn’t have a choice and had to let Bubba go. 41

Bubba is lying when s/he accused Gayle/Gail of mismanaging the business. Gayle/Gail did 42 really well in his/her business classes at Meadowlark. If Gayle/Gail ever did have financial 43 trouble s/he knew that all that s/he had to do was ask me. Between me and my family, we 44 would have given Gayle/Gail all the money that s/he would need. 45

It is also a lie that Gayle/Gail burned down the lawn ornament business. I was with Gayle/Gail 46 that night. There is no way that s/he could have set that fire. 47

Personally, I believe that it was Bobby “Bubba” Ganoush that torched the factory to get revenge 48 against Gayle/Gail. Everyone knows that Bubba had bad blood towards Gayle/Gail and that 49 he even threatened to burn the lawn ornament factory down.50

WITNESS ADDENDUM


Signed,


xxxxxxxxxxx

xxx

xxxxxxxxxxx

xxx

17


Witness Statement of Shannon Stark

My name is Shannon Stark. I worked at Gardener’s Garden Gnomes until it burned on July 3, 1 2013. I still can’t get over what happened. Now I’m working in the outdoor section at Green’s 2 Home Improvement out on the highway; you know, big box store and all. Every once in a while I 3 even help someone find the lawn ornaments at Green’s and they pick out one of the last gnomes 4 we shipped out before the fire. It’s kind of an eerie feeling given what happened and all. 5 I grew up in Goldenrod with my mother, older sister and younger brother. I graduated from 6 Goldenrod High School in 2005. People told me I should keep going in school – my Mom, my 7 baseball/softball coach, my great-uncle Leonard. You know, pretty much everyone said, “You 8 should go now, or you might never go.” On top of that, I was a pretty good defensive catcher 9 and hitter – batted .355 my senior year – and a couple smaller colleges offered me a little 10 scholarship money to come and play ball. 11 But -- stupid me – I knew it all, and working and making money seemed better at the time. I 12 could go to school later, right? I got this job right after graduation as a window washer – 13 commercial buildings and high-end residential homes. Making pretty good money. Played a lot 14 of slow pitch softball in the evenings and tournaments on the weekends. It was a pretty fun time. 15 Then, sure enough, one day I stepped wrong on a wobbly plank of scaffolding while I was 16 cleaning a second-story bay window. It was out in that really nice Fairvale neighborhood – you 17 know, by that golf course. Bam! Fell fifteen feet and came down on my left side on some rock 18 landscaping in the yard. Shattered the tibia and fibula in my left leg – took two plates and like 19 ten screws to put it all back together. Messed up my lower back pretty good for a while too. 20 Then I find out the guy who ran the window washing company didn’t have work comp coverage 21 and claimed I was an “independent contractor.” And I didn’t have health insurance – who needed 22 it when you were twenty years old and healthy? I talked to this lawyer about suing the owner, 23 but the owner up and declared bankruptcy a few months later so there wasn’t anything to get. 24 So then I’ve got about forty grand in medical bills I can’t pay, no job, and a messed up leg. Been 25 paying off those bills ever since. Some of the offices have been good about writing some of the 26 balances off. Others haven’t, and my credit report is pretty much junk at this point. 27 The good news is that my great-uncle Leonard had this old silver Airstream trailer parked behind 28 his house and has let me live there to save money. So my address is 2222 N. 34th Street in 29 Goldenrod. It works out okay – my great-aunt died a long time ago, and Leonard can use a 30

18

hand with some chores around the house. So I mow the yard, clear the snow, and check on 31 Leonard, and he only charges me $100 per month rent for the trailer. Oh, and there’s a 32 bathroom and shower in the basement of the house that I use, in case you were wondering about 33 that. 34 Plus, being around Leonard reminds me not to feel too sorry for myself. He was in the Navy in 35 World War II and saw combat in the Pacific theater. He still has shrapnel in his right side and 36 shoulder from a Japanese kamikaze attack on his destroyer, and he can’t hear out of his right 37 ear. But he’s the most easy-going and generous guy you’d ever want to meet. His war injuries 38 didn’t stop him from working forty years as a delivery driver for a local dairy company. So how 39 can I complain about my stiff leg and a few bills? 40 I did have some other good luck when I got a job at Gardener’s Garden Gnomes in 2008. I was 41 still really gimpy from my accident, and probably wouldn’t have hired myself. But Mr./Ms. 42 Gardener interviewed me and said if I thought I could handle being on my feet for eight hours, I 43 had a job there. Gardener isn’t perfect. I mean, everyone has heard the stories about gambling 44 problems, and the place isn’t run perfectly by any stretch. But not everyone would have given me 45 that job. So I’ll always be thankful for that. I made decent money – enough to start paying off 46 my debts. And there were benefits including decent health insurance. 47 I made it through the first half-year on the production line with my left leg killing me, and icing it 48 at night with a bag of frozen peas. My leg got to feeling better after a while -- now it really 49 only hurts bad when the weather changes. In 2009, they switched me to the warehouse and I 50 guess I did okay, because in 2010, I was promoted to warehouse supervisor. That basically 51 meant getting product off the line, packaging it, loading trucks, and storing inventory in the 52 warehouse. I’m pretty good driving a forklift, got down the inventory system, and we had it all 53 running pretty smoothly. For a while I supervised two other full-time workers and one part-time 54 college student. 55 In 2010, Bobby “Bubba” Ganoush was hired on the production line, and then sometime in 2012, 56 he became production leader for the gnome line. So we’d talk quite a bit every day. Bubba is 57 smart. But … I don’t know … just really different. Bubba’s eyes were like a caged animal, 58 pacing back and forth. It’s hard to put your finger on, but you never quite felt relaxed around 59 him. 60 Bubba seemed to know quite a bit about the processes for making product – the resin, the 61 chemicals, the ovens, the painting, all that – I guess because he had studied chemistry at 62 Goldenrod Community College. But he always seemed to have a grudge against somebody or 63 something. 64 I stopped eating lunch with Bubba because there was always some story about some old 65 significant other who had been disloyal, or some friend who turned on him, and how that person 66 would get theirs someday. To tell you the truth, it was a little disturbing. So I started eating my 67 PB & J in my truck to avoid Bubba. 68 And Bubba had this crazy anger. Out of nowhere, and over little stuff. One time I borrowed 69 Bubba’s tape measure because I had lost mine. Well, I forgot all about it and didn’t give it back 70 that same day. The next morning I walk in the door and Bubba comes across the warehouse floor, 71 right up to me all shaking and red-faced, and asks me what I’m planning to steal today. I didn’t 72

19

even get it for like a minute. Then Bubba finally says, “You stole my tape.” I’m like, “Whoa! 73 Take it easy – honest mistake,” and all that, got it from my desk and gave it back. Bubba starts 74 to walk off, looks back at me with this squint and says: “Don’t ever cross me again.” 75 The person Bubba really didn’t like was Gardener. I mean constantly complaining about no 76 raises, and having been promised some kind of profit-sharing plan, and Gardener gambling 77 away the money that should have gone to raises for us. 78 I remember we stood there one day, looking out the warehouse door, at this big long black 79 Caddy (Cadillac) parked in the lot. Gardener was walking away from it, and then it drove off, 80 and Bubba starts laughing. Kind of a sarcastic laugh, and says: “No raise for you this year, Stark 81 – boss had to pay up.” I saw the driver of the Caddy and recognized Marion D’Amico who I 82 don’t know personally but have seen around town and heard people talk about. 83 Yeah, it’s true--business was slipping by the second half of 2011. I knew it because we just 84 weren’t shipping as much product. In 2012 it got worse – we shipped about 30% less than we 85 had in 2011. 2013 was shaping up worse yet – down another 12% or so compared to 2012. A 86 couple production workers were laid off and not replaced in early 2013. By April 2013 one of 87 my warehouse workers was let go. 88 And yeah, Gardener looked pretty frazzled walking around the office and warehouse – kind of 89 haunted, you know. I saw that same Cadillac in the parking lot a couple more times in the month 90 or so before the fire. Speaking of vehicles, one way you could tell things were kind of down was 91 Gardener seemed to be skipping spending money on personal things to help the business. S/he 92 drove this nice Suburban, but it sounded awful those last few months because the muffler was 93 shot. 94 Bubba became even more of a spook as business got worse. Now it was this bizarre ranting 95 about Gardener and how the business was being run into the ground. Bubba talked about 96 Gardener being a fool who should have a cap with bells and who should dance for us. Bubba 97 called Gardener a thief, a maggot. And that was the nice stuff. I didn’t get it – if you just can’t 98 get along at a job, you quit. 99 One thing I remember as clearly as if it was five minutes ago. It was probably in mid-June, a few 100 weeks before the fire. I was walking through the production area and Gardener was talking to 101 Bubba. Then I guess they were done and Gardener turned away from Bubba to walk back to the 102 office. Bubba just stands there, then makes this slow hand motion, pulling his index finger across 103 his throat -- like a knife -- and smirked. Looking at Gardener the whole time. It was flat out 104 chilling. Guess I should have known then something was seriously wrong. 105 Then came that Monday morning, July 1. I was just finishing some paperwork near the loading 106 dock door and was on my way to the production area when I saw Gardener and Bubba standing 107 near Bubba’s work station. 108 It looked like Gardener was saying something. Gardener looked calm. Then Bubba slams his 109 clipboard down on the floor and it splinters in half. Then Bubba pulls off his work gloves, throws 110 them about three feet over Gardener’s head at a pretty high velocity, points right at Gardener 111 and yells in this trembling voice: “This place is going down in flames! And it is all on you!!” 112

20

Then Bubba turns and walks toward the door, with Gardener following and trying to still talk. I’m 113 pretty sure those were Bubba’s exact words, but I can’t be positive. 114 I stepped aside to let Bubba past, but I don’t think he even saw me. He was shaking and smirking 115 and staring through me, through the wall, through who knows what. Never seen that kind of look 116 before, and hope I never do again. I heard Bubba’s old Dodge Dart start up in the lot and tear 117 off. That car always ran a little rough and loud, but this time it was even louder than usual and 118 the tires squealed. 119 Bubba never came back. Never came back to turn in the keys that all supervisors have. We all 120 had keys to the main outside door and the office doors. I was actually in charge of keeping track 121 of keys and getting new ones cut as part of my warehouse management duties. If Bubba had 122 brought them back they would have come straight to me. Exhibit #9 is a copy of the log sheet I 123 kept for checking keys in and out to people; I have reviewed it and it is a true and correct copy 124 of the original sheet. 125 What happened over the next couple days I can’t tell you, and don’t really like to think about. 126 We ran product, packaged it, shipped it, on July 1, 2 and 3 just like normal. On the evening of 127 the third I closed the big loading dock door, shut off the warehouse lights, left the office lights on 128 for Cliff in case he showed up to clean before the holiday, locked the main door and a few of us 129 left the building together. 130 Later that night I was sitting in the driveway with a few neighbors, having a cold pop and 131 watching fireworks over the rooftops and treetops. Then my phone rang and a co-worker told me 132 what happened. I knew Cliff and liked him a lot. He worked hard and he treated everyone the 133 way you’d want to be treated yourself. Had a good sense of humor too. I just can’t believe 134 Gardener would ever do anything to put Cliff in danger like that. 135 WITNESS ADDENDUM


Signed,


xxxxxxxxxxx

xxx

xxxxxxxxxxx

xxx

21

Exhibit #1

Fire Report prepared by Fire Investigator Ashley Empyrean

Synopsis:

This report shall concern itself with an Industrial Occupancy fire that occurred on Wednesday, 3 July 2013 at approximately 2300 hours at 3150 West Bond Drive. In my expert opinion, to a reasonable degree of certainty consistent with the standards and as a member of the National Fire Protection Association, the fire was incendiary. The investigation revealed a fire in the middle of the manufacturing floor of the industrial occupancy. All accidental sources in the area were ruled out as potential ignition sources. In the area of origin I recognized the distinct odor of a volatile liquid (accelerant), saw a metal flammable liquid container, and the remains of some office files. I observed considerable damage in the middle of the structure. A sample was taken to confirm the volatile liquid present in the fire debris. One employee, a janitor, was transported to the Goldenrod Regional Trauma Center due to injuries from the products of combustion and later died. The janitor was able to give information prior to being intubated by Alex Firma. Due to eyewitness testimony, the incendiary nature of the fire, and actions that occurred prior to the fire, I arrested Gayle/Gail Gardener, the business owner, who will be charged with first degree arson and first degree felony murder, assuming

the prosecutor reads this report.

The value of the structure is estimated at $1,750,000. Damage to the structure is estimated to be $650,000. The value of the contents is estimated to be $3,500,000. Damage to the contents is

estimated at $1,200,000.

Persons and Places in this Report:

Details of the Investigation:

On Wednesday, 3 July 2013 at 2310 hours the reporting officer was notified by fire dispatch of a

working fire and that an investigator was needed at 3150 West Bond Drive, scene of a structure fire.

I arrived at 3150 West Bond Drive at 2322 hours and observed the damage to the structure. The fire attack was in the salvage & overhaul mode, with crews maintaining control of the scene, stating that no occupants or bystanders have entered the structure after the fire was extinguished. On location were

E21, E22, E24, T21, B1, B2, M21, M24, R30, R33, and the investigator, FC13.

I first spoke with the incident commander about the circumstances of the fire. He informed me that:

Upon arrival, crews had heavy black smoke coming from the front entrance and the loading dock areas of the structure.

A former EMT/passerby with some limited firefighting experience was encountered on the scene, to the side of the building. This person had entered the building, found the janitor, removed the janitor from the building, rendered first aid and performed a primitive tracheotomy in an attempt to open the airway and improve the breathing of the janitor.

Care for the janitor was turned over to a Fire Department paramedic who ordered him transported immediately to the trauma center.

Crews made an offensive attack through the loading dock door and were confronted by heavy fire in the middle of the manufacturing floor.

Crews were able to contain the fire in the area of origin; once the fire was out firefighting crews maintained custody of the scene and awaited my arrival.

22

I made a quick pre-inspection of the structure, noting no fire damage on the exterior, heavy fire damage on the manufacturing floor in one particular area, heat and smoke throughout the manufacturing floor. I noticed disruption in the office area but minimal heat or smoke damage. All debris and evidence was left in place until I arrived on scene due to the injured janitor and the likely incendiary nature of the fire. Structural stability was good and I could safely and efficiently process the scene. While a police detective was summoned to the scene, since I was already on the scene, I took command of the investigation. Patrol officers maintained control of the structure until my

investigation was complete.

I interviewed the following persons:

First in companies, E21 and T21:

Confirmed what the Incident Commander related to me concerning heavy smoke coming from the door on the side of the structure.

A victim was found on the inside and then removed by Alex Firma.

Firefighting crews completed extinguishing the fire.

Victim was given to M24 crews who immediately transported the victim to the trauma center for treatment.

Alex Firma:

I made contact with Alex Firma, who reported the fire to 911 dispatchers at 2300 hours.

Alex Firma admitted to disturbing the scene while removing the janitor from the building.

Alex Firma admitted to eliminating any chance that I might have tried to interview the janitor by doing an emergency tracheotomy at the scene.

Alex Firma reported that the janitor made a dying declaration implicating the owner of being at the scene when the fire started.

Alex Firma claimed to have been a certified paramedic with substantial combat experience. S/He also admitted that her/his certification is presently expired.

Alex Firma had a slight odor of alcohol about her/his person.

I gathered contact and personal information from Alex Firma for future questioning.

Business Owner, Gayle/Gail Gardener:

The business owner, Gayle/Gail Gardener, was on the scene when I arrived. As part of my investigation, I interviewed Gardener. Because s/he was not in custody, I did not provide Miranda warnings.

Gardener stated s/he is the owner of the structure and related her/his contact and personal information.

It is a family business, for 50 years, inheriting it from parents approximately 20 years ago.

There are 10 to 20 full and part time employees who work at the current business location.

Hours of business are from 0800 to 1700 hours and then a night janitor comes in and cleans up at about 2100 hours and works till 2300 to 0100 hours.

I asked questions about the business, such as whether it is doing well, which s/he hesitated and stated that s/he is a little behind on some bills, s/he owes money to vendors who supply the materials for her/his product. S/He is about 6 months behind but is going to catch up.

Gardener gave detailed information of the various vendors s/he owes money to along with contact numbers.

S/He has full coverage insurance for the structure and specific manufacturing equipment inside the structure.

23

Gardener claimed that the last time s/he was at the structure was around 1700 hours, when the manufacturing process shut down.

Gardener drives a 2013 grey Suburban as her/his primary vehicle.

I asked if Gardener has had any recent trouble with any employees, which s/he stated yes.

Gardener went into detail about a problem employee that was terminated on Monday, July 1, 2013, due to a personnel issue as well as downsizing. The employee made a threat about ruining the business. This confrontation took place at around 1700 hours, closing time. Gardener has not seen this employee since that night.

I asked about any other possible employees or people that the owner may have had issues with that resulted in a possible fire, which s/he stated there were no others that came to mind.

I asked if Gardener had anything to do with the fire, which s/he raised her/his voice and stated “absolutely not!”

It should be noted that when I first had contact with Gardener, s/he had a slight odor of kerosene about her/his person. When I asked about this odor, Gardener claimed that s/he has been grilling earlier at home.

And Gardener appeared to have wet hair. I specifically asked Gardener if s/he had recently showered. S/He paused and then nodded her/his head. When I asked why, s/he just shrugged his/her shoulders.

At this time I told Gardener that investigators would be processing the scene and at this time no entry would be allowed until it was completely documented.

On Thursday, 4 July 2013, 0015 hours, a Goldenrod Police Department detective arrived on scene and as previously reported, deferred to my investigation. The investigator offered to go to the trauma center to check on the janitor. I agreed and the detective went to the hospital to interview the victim

and medical personnel.

There were no other witnesses at the fire scene for me to interview so the documentation of the fire scene was started.

Area of Fire:

3150 West Bond Drive is a single story, heavy timber construction, industrial type occupancy. The structure is located on the east side of Main street with the “A” side of the structure facing west onto

main street.

I used the methodology of exterior to interior examination. Documenting from least to most damage.

Exterior Examination:

I documented the exterior of the structure noting the following:

“A” Side of the Structure (West):

Noted the front entrance where firefighters gained access into the structure.

Firefighters noted the structure was secure, having to force open a heavy metal door.

Noted soot staining on the exterior parts of the door.

The gas meter was noted on the front side, was intact and supplying natural gas into the structure during the time of the fire.

No other fire damage was noted.

24

“B” Side of the Structure (North):

No fire damage noted.

Electrical service entered the building from this side and was active during the fire.

There are no windows, openings or access into building on side B.

“C” Side of the Structure (East):

No fire damage noted.

Fence along the C side was approximately 3 to 4 feet from the building.

There are no windows or openings on the C side.

Noted no other paths of travel or access into the building.

“D” side of the Structure (South):

No fire damage although there was heavy soot on the overhead garage door.

There was a pickup truck parked facing west in the parking area adjacent to the loading dock. Witnesses explained that this pickup truck belonged to the janitor.

Overhead garage door was in the up position, probably opened by firefighters to remove heat and smoke from inside the structure when the fire was extinguished. Firefighters noted the overhead garage door was slightly open upon arrival and that thick black smoke was coming from this location.

Interior examination:

The occupancy was divided into two parts, an office area on the west end of the building and

a manufacturing area on the east end. See diagram for further details.

I documented the interior of the structure, noting the following:

Office Area:

Slight smoke and heat damage in each office, noting that the doors were open during the time of the fire.

All three doors leading into individual offices had been forced open. Fire crews stated that they did not force open any of the office doors and that they were open when they arrived on scene.

In each office, file drawers were open and files missing as well as files lying on the floor as if they were dropped or thrown on the floor.

On some of the manila colored files, there were footprints, some matching firefighter boots, but there was one distinct shoe pattern that needed to be verified on some of the folders. That shoe print was documented in place, marked as evidence and removed as possible evidence for verification.

I noticed that personnel files had been disturbed. I noticed that many business folders had been disturbed. However, the file cabinet containing insurance information did not appear to have been disturbed.

All offices were documented as to their current condition when firefighters arrived on scene. Manufacturing area:

The manufacturing floor made up 85% of the building space, with machines, manufacturing products, supplies stored on the various walls and a flammable materials storage area located near the overhead garage door area and loading dock. I noted a shipping/packaging area adjacent to the loading dock.

25

There was heat and smoke damage throughout, with the heaviest fire damage between the office area and machinery area.

The structure was of heavy timber building components, which were not significantly affected by the fire in the middle of the manufacturing floor, but wood beams in close proximity did sustain slight charring of the wood.

The equipment on the manufacturing floor sustained soot and smoke damage, with the machinery in close proximity to the fire origin noting melting of wiring, oxidation of metal components, and ignition of combustible products in the area.

The area of focus was a debris pile found between the offices and manufacturing area of the occupancy.

Heavy black smoke originated in the area of ignition and was the product of the combustion of manufacturing products such as oils and paints.

The structure had a fire suppression system, consisting of sprinkler heads and water pipes linked to the external water source. However this system was shut off with the valve head being set in the closed or off position. Accordingly, no water was deployed through this system during the fire.

I observed the odor of a possible accelerant.

I observed paper and office files had been ransacked and moved into the manufacturing area. I observed the residue of these materials located at the area of origin for the fire.

I observed a can, which may have contained an accelerant near the origin of the fire.

The manufacturing process itself uses resins which are themselves flammable and subject to incineration if their ignition temperature is reached.

Area of Origin Note lowest burn Look for more than one low burn Note heaviest damage / other burn patterns Determine true low burn (by ignition / heat source) Rule out your accidentals (electrical and etc.)

Point of Origin Determine Ignition Source Find ignition source Eliminate other ignition sources Determine Fuel First Material Ignited Reason for fire/act that brought ignition source and fuel together.

Conclusion:

It is my Conclusive opinion, based on the information available at the time of this report that the incident that occurred at 3150 West Bond Drive on Wednesday, 3 July 2013 to be Incendiary at this

time due to the following facts.

Accidental or environmental causes ruled out.

Motive for deliberate ignition identified

Presence of possible accelerant

Fuel moved to location of fire

Time of fire End of Report

Signed by:____________________________________Date:________________________________

26

27

Exhibit #2

B

A

28

C

D

29

30

Exhibit #3

ME-13-321

Stanley, C l i f f

DOB: 5-30-70

( 44) Male

AUTOPSY PERFORMED AT:

Wagon Wheel County Morgue

AUTOPSY AUTHORIZED BY:

Joe Justice


Goldenrod, NE

TIME OF AUTOPSY:

12:00 noon 07-05-13

PROSECTOR: Kim Irish, M.D.

GROSS ANATOMIC DIAGNOSES:

Third degree burns and charring of the extremities, back and head;

involving approximately 40% of the total body surface area.

Soot deposition identified in the trachea, larynx and main stem bronchi.

SUMMARY:

The cause of death in this 44-year old male is carbon monoxide and soot

inhalation, resulting in carbon monoxide toxicity, with a postmortem level

greater than 75%. Please refer to the attached copy of the Husker

Toxicology Laboratory’s forensic toxicology report.

___________________________ Kim Irish, M.D.

31

Husker

Husker Toxicology Laboratories

548 Maple Lane Suite 650

Goldenrod, Nebraska 68000 phone; 308- 333-3333 website: www.huskerlabs.com

TOXICOLOGY LABORATORIES

FORENSIC TOXICOLOGY REPORT

AUTOPSY#: ME 13-321

NAME: Stanley, Cliff

DATE RECEIVED: 07/08/2013

SPECIMEN RECEIVED: blood, vitreous humor

DOCTOR: Irish

COUNTY: Wagon Wheel

CARBOXYHEMOGLOBIN: Greater than 75 %

Note: The carboxyhemoglobin analysis was performed at Husker Toxicology Laboratories.

BLOOD ETHANOL LEVEL: Less than 0.010 g/100 mL

DRUG TESTING RESULTS:

The blood immunoassay screen was negative for the following drugs/drug classes:

Amphetamtnes

Phencyclidine

Methadone

Cannabinoids

Propoxyphene

Barbiturates

Cocaine metabolite

Benzodiazepines

Opiates

Date 7-14-13

________________________________

Joyce Smartee, Ph.D, DABCC

Director of Toxicology

32

ME-13-321 GROSS

EXTERNAL EXAMINATION: The body is received in a black body bag with the zipper sealed with a

red plastic zip tie lock with the number "000787" and "State Fire Marshall Lock" imprinted on it. There is a

yellow Wagon Wheel County Morgue identification tag with the name "Cliff Stanley" and other identifying

information printed on it. The body is that of an adult male that has undergone burning and charring. The

body is clothed in a green collared shirt with a Garden Gnome factory patch on the front and a pair of blue

denim pants. There are some other partially burned clothes in the bag with the body, but not on the body.

The hair appears to be soot-stained, but dark brown, straight and measures up to 2 inches in length. Third

degree burns and charring of the extremities, back and head; involving approximately 40% of the total body

surface area. Soot deposition identified in the trachea, larynx and main stem bronchi. The body is

contorted by both the fire (heat contractions) and by rigor mortis. The body measures approximately 72

inches in length and weighs an estimated 225 pounds.

THORACIC CAVITY: The chest plate is removed. There is no significant soft tissue or bone

trauma. The musculature of the chest wall is bright pink. The heart and lungs are in the normal

anatomic locations. There is no significant fluid in either thoracic cavity or the pericardial sac. The

lungs are reddish-pink and have well aerated cut surfaces.

The major airways of the right and left lungs have obvious soot deposition. The coronary arteries

have no atherosclerosis or narrowing. The myocardium is firm and red-brown, without focal lesions.

The cardiac valves are unremarkable.

NECK: The neck shows evidence of a tracheotomy done prior to death. The neck is dissected and the

epiglottis, larynx, trachea, thyroid cartilage and thyroid gland are

removed. The hyoid bone is palpated in place and is intact. The upper airways are opened and are

soot-stained.

SPECIMENS SAVED/ADDITIONAL STUDIES: 49 mL of heart blood, 3 mL of vitreous humor are

obtained. A blood alcohol, drug screen and carbon monoxide testing will be performed.

ADDITIONAL AUTOPSY NOTES: Representatives of the State Fire Marshall were present for the

autopsy and took photographs of the autopsy. X-rays were taken and are unremarkable. Medical

records are not available at the time of autopsy.

CLINICAL HISTORY: The deceased was apparently in the Gardener Garden Gnome factory when a

fire started. The deceased was removed from the building by a bystander and transported to the

hospital where he died, according to hospital records at 0012 hours on July 4, 2013.

33

Exhibit #4

34

Exhibit #5

Marion D’Amico

c/o Lionel Hutz

Attorney at Law

Goldenrod, NE

June 5, 2014

Dear Mr./Ms. D’Amico:

Based upon your representations that: (1) You are willing to cooperate with the state government in the prosecution of the

case of State of Nebraska v. Gayle/Gail Gardener, and (2) The representations you made to law enforcement agents are true to the

best of your knowledge, the Office of the County Attorney will enter into an agreement with you on the following conditions:

1. You shall truthfully disclose all information regarding your activities and those of others in all matters about which the

offices of the County Attorney, the Goldenrod Police Department, State Fire Marshall, or other law enforcement agencies inquire

of you relating to the events surrounding the investigations conducted by the Department regarding forgeries and other frauds

occurring in Wagon Wheel County, Nebraska. Further, you shall truthfully testify, if subpoenaed at any trial or other court

proceedings regarding any matters about which the County Attorney's Office may request your testimony. You must answer all

questions concerning this case and must not withhold any information. You must neither attempt to protect any person or entity

through false information or omission, or falsely implicate any person or entity. You must furnish any documents in your custody

or possession or under your control that are relevant to the investigation. You must also make yourself available for interview by

attorneys and law enforcement officers of the State of Nebraska upon request and reasonable notice.

2. If subpoenaed, you shall, at all times, give complete, truthful, and accurate information and testimony. Should it be

judged by the County Attorney's Office, in its sole discretion, that you have given false, incomplete, or misleading testimony or

information or have otherwise violated any provision of this agreement, you shall thereafter be subject to prosecution for any state

or federal criminal violation of which either office has knowledge, including, but not limited to, perjury and obstruction of justice.

Any such prosecutions may be premised upon any information, statements, or testimony provided by you and such information

deduced and derived there from. You expressly waive your objection to the use of any such statements, testimony or information to

which you may otherwise be entitled to object in any federal or state prosecution now or at any time in the future.

3. You shall not violate any local, state or federal law during the pendency of this agreement. Any law violation, with the

exception of speeding or parking tickets, committed by you will constitute a breach of this agreement and may result in the

revocation of the entire agreement or any of its terms. You or your attorney shall notify the County Attorney’s Office within 48

hours if you are questioned, charged, or convicted for any law violation.

4. This agreement is limited to the Office of the County Attorney, and cannot bind any other federal, state or local

prosecuting authorities although your cooperation will be brought to the attention of other prosecuting authorities or any

sentencing judge if so requested.

35

5. In exchange for your cooperation as set forth in the above-numbered paragraphs, the State agrees not to file further

charges relating to the forgeries and frauds which the State is investigating as of the date of this agreement.

6. This agreement is limited to those statements and acts of criminal conduct committed by you and known of by the

County Attorney's Office as of the date of this agreement and does not limit in any way the right or ability of the County

Attorney's Office to investigate or prosecute crimes occurring outside the scope of this agreement.

7. No promises, agreements, or conditions have been entered into other than those set forth in this letter and none will

be entered into unless in writing and signed by all parties.

8. This agreement will become effective upon your signing of this letter agreement thereby stating your agreement to all

terms and conditions therein. This agreement may be withdrawn at any time prior to acceptance by you. Acceptance is deemed to

occur when this document has been signed by you and your attorney and has been received by the County Attorney’s Office. If this

agreement has not been received back from you properly executed by July 1, 2014, this proposed plea agreement is automatically

withdrawn.

9. Marion D’Amico and his/her Counsel hereby agree not to disclose, directly or indirectly, the negotiations for nor the

terms of this agreement to any other person until Marion D’Amico has testified in open court, without the written consent of the

County Attorney. The County Attorney's Office may disclose this agreement and anything which witness says as it sees fit.

_____________________ _________________________________

Date Marion D’Amico, Defendant

______________________ _________________________________

Date Lionel Hutz, Defense Counsel

_____________________ _________________________________

Date Joe Justice, Wagon Wheel County Attorney

36

Exhibit #6

37

Exhibit #7

38

Exhibit #8

39

Exhibit #9

40

NEBRASKA HIGH SCHOOL MOCK TRIAL RULES I. RULES OF THE COMPETITION

A. THE PROBLEM ................................................................................................. 43-44 1 Rules 2 The Problem 3 Witness Bound by Statements 4 Invention of Facts 5 Gender of Witnesses 6 Voir Dire

B. THE TRIAL ........................................................................................................ 44-47 7 Team Eligibility

8 Team Composition 9 Team Presentation

10 Team Duties 11 Swearing of Witnesses

12 Trial Sequence and Time Limits 13 Timekeeping 14 Time Extensions and Scoring 15 Prohibited Motions 16 Sequestration 17 Bench Conferences 18 Supplemental Material/Illustrative Aids 19 Trial Communication 20 Viewing a Trial 21 Videotaping/Photography

C. JUDGING ......................................................................................................... 47-48 22 Decisions

23 Composition of Panel 24 Score Sheets/Ballots 25 Courtroom Decorum 26 Pre-Trial Conferences

27-29 Reserved for future use

D. DISPUTE RESOLUTION ..................................................................................... 48-49 30 Reporting a Rule Violation/Inside the Bar

31 Dispute Resolution Procedure 32 Effect of Violation on Score 33 Reporting a Rule Violation/Outside the Bar

II. RULES OF PROCEDURE A. BEFORE THE TRIAL ................................................................................................ 49

34 Courtroom Setting 35 Team Roster

Exhibit #11

41

36 Stipulations 37 The Record

B. BEGINNING THE TRIAL .......................................................................................... 50 38 Jury Trial

39 Standing During Trial 40 Objection During Opening Statement/Closing Argument

C. PRESENTING EVIDENCE .................................................................................... 50-51 41 Argumentative Questions

42 Lack of Proper Predicate/Foundation 43 Procedure for Introduction of Exhibits 44 Use of Notes/Exhibits 45 Redirect/Recross

D. CLOSING ARGUMENTS .......................................................................................... 51 46 Scope of Closing Arguments

E. DEBRIEFING/CRITIQUE ......................................................................................... 51 47 The Debriefing/Critique

III. THE FEDERAL RULES OF EVIDENCE (Mock Trial Version) ARTICLE I. GENERAL PROVISIONS .................................................................... 51-52

101 Scope 102 Purpose and Construction

ARTICLE IV. RELEVANCY AND ITS LIMITS .......................................................... 52-54 401 Definition of "Relevant Evidence" 402 Relevant Evidence Generally Admissible;

Irrelevant Evidence Inadmissible 403 Exclusion of Relevant Evidence on Grounds

of Prejudice, Confusion, or Waste of Time 404 Character Evidence Not Admissible to Prove Conduct;

Exceptions; Other Crimes 405 Methods of Proving Character 406 Habit; Routine Practice 407 Subsequent Remedial Measures 408 Compromise and Offers to Compromise 409 Payment of Medical or Similar Expenses 410 Inadmissibility of Pleas, Plea Discussions, and Related Statements 411 Liability Insurance

ARTICLE V. PRIVILEGES ......................................................................................... 54 501 General Rule

ARTICLE VI. WITNESSES ................................................................................... 54-57 601 General Rule of Competency

602 Lack of Personal Knowledge

42

607 Who May Impeach 608 Evidence of Character and Conduct of Witness 609 Impeachment by Evidence of Conviction of Crime 610 Religious Beliefs or Opinions 611 Mode and Order of Interrogation and Presentation 612 Writing Used to Refresh Memory 613 Prior Statements of Witnesses

ARTICLE VII. OPINIONS AND EXPERT TESTIMONY ............................................ 57-58 701 Opinion Testimony by Lay Witness

702 Testimony by Experts 703 Bases of Opinion Testimony by Experts 704 Opinion on Ultimate Issue 705 Disclosure of Facts or Data Underlying Expert Opinion

ARTICLE VIII. HEARSAY .................................................................................... 58-61 801 Definitions

802 Hearsay Rule 803 Hearsay Exceptions, Availability of Declarant Immaterial 804 Hearsay Exceptions, Declarant Unavailable 805 Hearsay within Hearsay

ARTICLE XI. OTHER ............................................................................................... 61 1103 Title

43

I. RULES OF THE COMPETITION

The Rules of the Competition are based on the rules of the National High School Mock Trial Competition. Some additions or modifications have been made for Nebraska.

A. THE PROBLEM

Rule 1. Rules All trials are governed by the Nebraska High School Mock Trial Rules of the Competition, the Rules of Procedure, and the Federal Rules of Evidence (Mock Trial Version). The Nebraska Code of Criminal Procedure applies to this trial. Questions or interpretations of these rules are within the discretion of the mock trial coordinators, whose decisions are final.

Rule 2. The Problem The problem is an original fact pattern, which may contain any or all of the following: statement of facts, indictment, stipulations, witness statements/affidavits, jury charges, exhibits, etc. Stipulations may not be disputed at trial. Witness statements may not be altered.

Rule 3. Witness Bound by Statements Each witness is bound by the facts contained in her/his own witness statement, the statement of facts, if present, and/or any necessary documentation relevant to her/his testimony.

If, on direct examination, an attorney asks a question which calls for an invention of facts, the question is subject to objection under Rule 4.

If, on cross-examination, an attorney asks a question which calls for an invention of facts, the witness may or may not respond, so long as any response is consistent with the witness' statement or affidavit. The question is not subject to objection. See Rule 4 for further clarification.

A witness is not bound by facts contained in other witness statements.

Rule 4. Invention of Facts Inventions of facts are best attacked through impeachment and closing arguments and are to be dealt with in the course of the trial. The purpose of this rule is to keep the case as even as possible by not allowing either side to create an advantage for their side by inventing facts. In real trials this rule is not necessary because all of the facts are within the knowledge of the witnesses. Since mock trials use created fact situations, all of the necessary facts may not be within the knowledge of the witnesses. Therefore, for mock trials we need a rule to prevent inventions of facts that are not included in the case materials.

When an attorney objects to an invention of facts, the judge will rule in open court to clarify the course of further proceedings. The decision of the presiding judge regarding invention of facts or evidentiary matters is final.

Direct and Redirect Examination Attorneys shall not ask questions calling for an invention of facts and witnesses shall not provide answers that involve an invention of facts. Attorneys for the opposing team may refer to Rule 4 in a special objection, such as: "Objection, Your Honor. The question calls for an invention of facts."

44

Cross and Recross Examination An invention of facts may only be allowed on cross or recross examination and only if the question being asked calls for facts that are not included in the case materials. If a witness is asked a question calling for an invention of facts, the witness may respond:

1. "I do not know the answer to that question because that information is not contained in the Nebraska Mock Trial case materials." OR

2. With any answer which is consistent with the witness' affidavit and other substantive issues of the case.

An answer that is contrary to the witness’ affidavit may be impeached.

Rule 5. Gender of Witnesses All witnesses are gender neutral. Personal pronoun changes in witness statements indicating gender of the characters may be made. Any student may portray the role of any witness of either gender. In certain years the Nebraska case may have a specific gender witness role. This may be portrayed by any student on the team.

Rule 6. Voir Dire Voir dire examination of a witness is not permitted. This is the preliminary questioning of a witness or juror to determine competency, prejudices, biases, or personal knowledge.

B. THE TRIAL

Rule 7. Team Eligibility Each team competing in the Nebraska High School Mock Trial Project must be composed of students who are registered in grades 9-12 in a Nebraska public, private or home school. Schools may enter as many teams as they can effectively organize and properly supervise. [Special permission may be granted for two schools to register a combined team. Contact the State Mock Trial Coordinator.] Exceptions on eligibility issues will be considered on a case-by-case basis.

A team that earns the right to compete at the State Championship shall be composed of the same students (including alternates) that participated at the Regional competition. If any student participant from the Mock Trial team is unable to compete and there are no alternates, another student may substitute for such participant as provided herein. The individual acting as the substitute must be enrolled as a student at the school and not have served on any other Mock Trial team at that school. Participation by an ineligible team member shall result in forfeiture of each trial in which the ineligible team member participated.

To be a part of the competition, schools must register their teams by completing and mailing the Official Mock Trial Entry Form to the State Coordinator, along with a check for $35 PER TEAM (made payable to the Nebraska State Bar Foundation) no later than September 8, 2014. Registrations received after Monday, September 8th will be charged $70.00. Also by September 19, 2014, each school should forward to the Regional Coordinator, a time and date preference form and if possible a school activities calendar for October and November.

Rule 8. Team Composition Teams may consist of a minimum of six and a maximum of eight students. Only SIX members may participate in any given trial. The duties of the two alternate team members may be assigned at the discretion of the coaches. Students may only participate on one team per school year. Student

45

timekeepers may be provided, but are not considered "official timekeepers" unless so designated by the trial judge.

Rule 9. Team Presentation Teams must be prepared to present both the Plaintiff and Defense sides of the case, using SIX team members per trial. For each trial, teams shall use three students as attorneys and three students as witnesses.

In the event of an emergency that would cause a team to participate with less than six members, the team must notify the Regional Coordinator as soon as possible. If the Regional Coordinator agrees that an emergency exists, he or she will decide whether the team will forfeit a trial or take appropriate measures to continue a trial round with less than six members. Trials may be rescheduled at the discretion of the Regional Coordinator. If the Regional Coordinator is unavailable, the presiding judge will make these decisions. A team proceeding with fewer than six team members may have points deducted from their point totals at the discretion of the scoring judges.

A team that forfeits a trial shall be given zero points, zero judges' ballots and a loss on their trial record. A team that was to have competed against a forfeiting team shall receive a win on their trial record.

The starting time of any trial may not be delayed longer than 15 minutes, unless agreed to by both teams and the presiding judge.

Rule 10. Team Duties Each of the three attorneys shall conduct one direct examination and one cross examination. In addition, one attorney shall present the opening statement and a different attorney shall present the closing argument.

Opening Statements must be given by both sides at the beginning of the trial.

The attorney who will cross-examine a particular witness is the only one permitted to make objections during the direct examination of that witness, and the attorney who questions a particular witness on direct examination is the only person who may make objections during cross-examination of that witness. Each team must call three witnesses. Witnesses shall be called only by their own team. Witnesses shall be examined by both teams. Witnesses may not be recalled by either team.

Rule 11. Swearing of Witnesses Witnesses shall be sworn, either individually or as a group, by the presiding judge, using the following oath:

"Do you promise that the testimony you are about to give will faithfully and truthfully conform to the facts and rules of the mock trial competition?"

Rule 12. Trial Sequence and Time Limits The trial sequence shall be as follows:

1. Plaintiff’s opening statement 2. Defense’s opening statement 3. Plaintiff’s direct examination and Defense’s cross-examination of Plaintiff’s three witnesses 4. Defense’s direct examination and Plaintiff’s cross-examination of Defense’s three witnesses 5. Plaintiff's closing argument

46

6. Defense’s closing argument 7. Plaintiff may reserve a portion of its closing argument time for rebuttal if it does so at the

beginning of its closing argument. The Plaintiff's rebuttal, if any, is limited to the scope of the Defense’s closing argument.

Time Limits 1. Each team shall have a total of 10 minutes for Opening Statement and Closing Argument. For

example, a 3 minute opening and a 7 minute closing. 2. Each team shall have a total of 25 minutes for Direct and Redirect Examination. 3. Each team shall have a total of 20 minutes for Cross and Recross Examination.

Attorneys are not required to use the entire time allotted to each part of the trial. Time remaining in one part of the trial may not be transferred to another part of the trial, except as allowed by this rule.

Rule 13. Timekeeping Time limits are mandatory and shall be enforced by the presiding judge. Time for objections, extensive questioning from the judge, or administering the oath shall NOT be counted as part of a team's allotted time. Time does not stop for introduction of exhibits. Each team may have its own timekeeper for the benefit of the team.

Rule 14. Time Extensions and Scoring The presiding judge has sole discretion to grant time extensions. If time has expired and an attorney continues without permission from the presiding judge, the scoring judges may determine individually whether or not to deduct points in a category because of the overrun in time.

Rule 15. Prohibited Motions The only motion permissible is one requesting the judge to strike testimony following a successful objection to its admission. Other motions, for example, a motion for directed verdict, acquittal, or dismissal of the case at the end of the Plaintiff’s case, may not be used. A motion for a recess may be used only in the event of an emergency or before closing arguments. Should a recess be called, team members are to remain in place and shall not communicate with any observers, coaches, or instructors regarding the trial.

Rule 16. Sequestration Teams may not invoke the rule of sequestration of witnesses (exclusion of witnesses from the courtroom).

Rule 17. Bench Conferences Bench conferences may be granted at the discretion of the presiding judge, but should be made from the counsel table in the educational interest of handling all matters in open court.

Rule 18. Supplemental Material/Illustrative Aids During the trial teams may refer only to materials included in the mock trial case packet. No physical evidence, illustrative aids, enlargements, props or costumes are permitted unless authorized specifically in the case materials.

Rule 19. Trial Communication Teacher sponsors, attorney coaches, non-participating team members (the two alternates), and observers shall not talk to, signal, communicate with, or coach their teams during trial. Team members (defined as the three student attorneys and three student witnesses) participating in the trial may, among themselves,

47

communicate during the trial; however, no disruptive communication is allowed. Signaling of time by the teams' timekeeper(s) shall not be considered a violation of this rule. Timekeeper(s) may verbally communicate the remaining time to their teammates during a recess. Non-participating team members serving as the timekeeper(s) and/or the videographer may sit in the jury box if space allows.

Teacher sponsors, attorney coaches, and observers must remain outside the bar in the spectator section of the courtroom.

This rule remains in force during any recess time that may occur.

Rule 20. Viewing a Trial Local and Regional Trials Check with the Regional Coordinator for your county regarding persons not associated with the competing teams viewing a trial. Coordinators may choose one of the following options:

A. All trials are open to the public. Trials may be videotaped only by the competing schools or local media, OR

B. Only team members, alternates, attorney-coaches, teacher-sponsors, observers or other persons directly associated with the competing teams may view a trial. Videotaping is allowed only by the competing teams IF both teams agree to permit it.

State and National Championships Team members, alternates, attorney-coaches, teacher-sponsors, and any other persons directly associated with a mock trial team, except those authorized by the State Coordinator or the National Board, are not allowed to view other teams in competition, so long as their team remains in the competition.

Rule 21. Videotaping/Photography

Local and Regional Trials -- See Rule 20.

State and National Championships -- Any team has the option to refuse participation in videotaping, tape recording, still photography, or media coverage, except that media coverage will be allowed by the two teams in the state championship round and at the national championship.

C. JUDGING

Rule 22. Decisions All decisions of the judging panel are FINAL.

Rule 23. Composition of Panel The judging panel shall consist of one presiding judge and two scoring judges, all of whom shall complete individual score sheets. No mock trial shall proceed without three judges, unless one mock trial judge is unavoidably, unexpectedly absent. [Contact your coordinator if a mock trial judge is absent.]

If one mock trial judge is unavoidably, unexpectedly absent, the other two judges may proceed to score the trial and determine a winner by mutual agreement. If the two judges cannot agree on a winner, then the two teams shall retry the case at a mutually agreeable later date. Any mock trial with less than two judges shall be rescheduled by the two participating schools at a mutually agreeable later date.

48

The state championship trial may have a panel of five to twelve jurors (mock trial judges) at the discretion of the State Coordinator. Rule 24. Score Sheets/Ballots The term "ballot" will refer to the decision made by a presiding or scoring judge as to which team made the best presentation in the trial. The term "score sheet" is used in reference to the form on which speaker and team points are recorded. Score sheets are to be completed individually by all three judges. Scoring judges are not bound by the rulings of the presiding judge. The team that earns the highest points on an individual judge's score sheet is the winner of that ballot. The team that receives the majority of the three ballots wins the trial.

Whether or not teams receive copies of the score sheets from their trials is up to the discretion of the local coordinators.

Rule 25. Courtroom Decorum Mock trials are meant to simulate real trials in a courtroom atmosphere. Participants should act and dress accordingly. Check with your local coordinator for guidelines.

Rule 26. Pre-trial Conferences Each mock trial should begin with a pretrial conference held in open court with all participants, coaches and spectators present. Mock trial attorneys may ask the presiding judge to mark exhibits and clarify rules of procedure or rules of evidence. Roster forms should be presented to all three judges.

D. DISPUTE RESOLUTION

Rule 30. Reporting a Rule Violation/Inside the Bar Alleged rule violations that involve students competing in a trial and occur during the trial should be brought to the attention of the presiding judge by a student attorney through an objection at the time of the alleged violation. The presiding judge shall rule on the objection and the trial shall continue. Any alleged rule violation known, or through the exercise of reasonable diligence should have been discovered during the trial and which is not brought to the attention of the judge, is waived.

If an alleged material rule violation could not reasonably have been discovered until after the trial has concluded, the alleged violation should be brought to the attention of the presiding judge immediately at the conclusion of the trial. The scoring judges will be excused from the courtroom and the presiding judge will provide the student attorney with a dispute form on which the student will record in writing the nature of the alleged rule violation. The student attorney may communicate with co-counsel and student witnesses before preparing the form. At no time in this process may teacher sponsors, attorney coaches or observers communicate with the students.

Rule 31. Dispute Resolution Procedure The presiding judge will review the written dispute form and determine whether the dispute should be heard or denied. If the dispute is denied, the judge will record the reasons for this, announce her/his decision in open court, retire to complete her/his score sheet and turn the dispute form in with the score sheets. If the presiding judge feels the grounds for the dispute merit a hearing, the form will be shown to opposing counsel for their written response. After the team has recorded its response and transmitted it to the judge, the judge will ask each team to designate a spokesperson. After the spokespersons have had time (not to exceed three minutes) to prepare their arguments, the judge will conduct a hearing on the

49

dispute, providing each team's spokesperson three minutes for a presentation. The spokespersons may be questioned by the judge. At no time in this process may teacher sponsors, attorney coaches or observers communicate with the students. After the hearing the presiding judge will adjourn the court and retire to consider her/his ruling on the dispute. That decision will be recorded in writing on the dispute form, with no further announcement.

Rule 32. Effect of Violation on Score If the presiding judge determines that a material rule violation has occurred, the judge will inform the scoring judges of the dispute and provide a summary of each team's argument. The scoring judges will consider the rule violation before reaching their final decisions. The dispute may or may not affect the final decision, but the matter will be left to the discretion of the scoring judges.

Rule 33. Reporting of Alleged Rule Violation /Outside the Bar Disputes that involve people other than student team members and occur outside the bar during a trial round may be brought by teacher sponsors or attorney coaches exclusively. Such disputes must be made promptly to the appropriate local coordinator who will ask the complaining party to complete a dispute form. The form will be taken by the coordinator. The coordinator will (a) notify all pertinent parties; (b) allow time for a response, if appropriate; and (c) rule on the charge. The coordinator will notify all pertinent parties of her/his decision.

II. RULES OF PROCEDURE

The Nebraska Rules of Procedure are based on the Rules of the National High School Mock Trial Competition.

A. BEFORE THE TRIAL

Local coordinators will schedule trials once the school activities forms are completed by the individual teams. Twelve teams will compete at the state championship – one from each of twelve regions.

Rule 34. Courtroom Setting The Prosecution/Plaintiff team shall be seated closest to the jury box. No team shall rearrange the courtroom without prior permission of the judge.

Rule 35. Team Roster Before beginning a trial the teams must exchange copies of the Team Rosters. The form shall identify the gender of each witness so that references to such parties shall be made in the proper gender. Copies of the Team Rosters shall be made available to all three judges during the pretrial conference. A copy of the team roster shall be provided to the Regional Coordinator at the start of the regional competition.

Rule 36. Stipulations The attorney assigned the Plaintiff’s opening statement shall offer any stipulations into evidence prior to beginning the opening statement.

Rule 37. The Record The stipulations, indictment and charge to the jury shall not be read into the record.

50

B. BEGINNING THE TRIAL

Rule 38. Jury Trial The case shall be tried to a jury; arguments are to be made to judge and jury. Teams may address the scoring judges as the jury. Rule 39. Standing During Trial Based on the Rule 4.16 of the National High School Mock Trial Competition Rules all attorneys shall stand when addressing the court or the jury, including opening statements, closing arguments, direct and cross-examination, and for the making of objections. Direct and cross-examination may be conducted from counsel table, a podium, or with leave of the court, from any place in the well of the court. Counsel shall obtain permission from the court before approaching a witness.

Rule 40. Objection During Opening Statement/Closing Argument No objections may be raised during opening statements or closing arguments.

If a team believes an objection would have been proper during the opposing team's closing argument, one of its attorneys may, following the closing argument, raise her/his hand to be recognized by the judge and say, "If I had been permitted to object during closing arguments I would have objected to the opposing team's statement that ________." The presiding judge shall not rule on this "objection." Judges shall weigh the "objection" individually for purposes of determining their scores. No rebuttal by opposing team shall be heard.

C. PRESENTING EVIDENCE

Rule 41. Argumentative Questions An attorney shall not ask argumentative questions. However, the Court may, in its discretion, allow limited use of argumentative questions on cross-examination.

Rule 42. Lack of Proper Predicate/Foundation Attorneys shall lay a proper foundation prior to moving for the admission of evidence. After motion has been made, the exhibits may still be objected to on other grounds.

Rule 43. Procedure for Introduction of Exhibits As an example, the following steps effectively introduce evidence.

1. All evidence shall be pre-marked as exhibits. 2. Ask for permission to approach the bench. Show the presiding judge the marked exhibit. "Your

honor, may I approach the bench to show you what has been marked as Exhibit No.__?" 3. Show the exhibit to opposing counsel. 4. Ask for permission to approach the witness. Give the exhibit to the witness.

"I now hand you what has been marked as Exhibit No.___ for identification." 5. Ask the witness to identify the exhibit. "Would you identify it please?"

Witness answers with identification only. 6. Offer the exhibit into evidence. "Your Honor, we offer Exhibit No.__ into evidence at this time.

The authenticity of this exhibit has been stipulated." 7. Presiding Judge: "Is there an objection?"

51

If proper foundation has not been laid, opposing counsel should object at this time. 8. Opposing Counsel: "No, your Honor," or "Yes, your Honor proper foundation has not been laid

for Exhibit No. ." 9. Presiding Judge: "Is there any response to the objection?" 10. Presiding Judge: "Exhibit No. __ is/is not admitted."

Rule 44. Use of Notes/Exhibits Attorneys may use notes in presenting their cases. Witnesses are not permitted to use notes while testifying during the trial. Attorneys may consult with each other at counsel table verbally or through the use of notes.

Exhibit Binders: Teams may prepare a binder of some or all of the exhibits, but at no time during the trial shall the binder be left on or near the witness stand. If an exhibit is admitted into evidence, only the copy of the exhibit authenticated by the witness and admitted by the presiding judge shall be used in evidence. Teams shall use only the exhibit actually admitted into evidence for the duration of the trial, including publication to the jury, during further testimony by any witness, and during closing argument.

Rule 45. Redirect/Recross Redirect and recross examinations are permitted, provided they conform to the restrictions in Rule 611(d) in the Federal Rules of Evidence (Mock Trial Version).

D. CLOSING ARGUMENTS

Rule 46. Scope of Closing Arguments Closing arguments must be based on the actual evidence and testimony presented during the trial.

E. DEBRIEFING/CRITIQUE

Rule 47. Debriefing/Critique The judging panel is allowed 10 minutes for debriefing. Presiding judges shall limit debriefing sessions to the 10 minutes total time allotted.

III. FEDERAL RULES OF EVIDENCE (Mock Trial Version)

In American trials, complex rules are used to govern the admission of proof (i.e., oral or physical evidence). These rules are designed to ensure that all parties receive a fair hearing and to exclude evidence deemed irrelevant, incompetent, untrustworthy, unduly prejudicial, or otherwise improper. If it appears that a rule of evidence is being violated, an attorney may raise an objection to the judge. The judge then decides whether the rule has been violated and whether the evidence must be excluded from the record of the trial. In the absence of a properly made objection, however, the judge will probably allow the evidence. The burden is on the mock trial team to know the Nebraska High School Mock Trial Rules of Evidence and to be able to use them to protect their client and fairly limit the actions of opposing counsel and their witnesses.

For purposes of mock trial competition, the Rules of Evidence have been modified and simplified. They are based on the Federal Rules of Evidence and its numbering system. Where rule numbers or letters are skipped, those rules were not deemed applicable to mock trial procedure. Text in italics or underlined represent simplified or modified language.

52

Not all judges will interpret the Rules of Evidence (or procedure) the same way, and mock trial attorneys should be prepared to point out specific rules (quoting, if necessary) and to argue persuasively for the interpretation and application of the rule they think appropriate.

The Mock Trial Rules of Competition and these Nebraska High School Mock Trial Rules of Evidence govern Nebraska High School Mock Trial competition.

ARTICLE I. GENERAL PROVISIONS

Rule 101. Scope

These National High School Mock Trial Rules of Evidence govern the trial proceedings of the National High School Mock Trial Championship.

Rule 102. Purpose and Construction

These Rules are intended to secure fairness in administration of the trials, eliminate unjust delay, and promote the laws of evidence so that the truth may be ascertained.

ARTICLE IV. RELEVANCY AND ITS LIMITS

Rule 401. Definition of “Relevant Evidence”

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

All relevant evidence is admissible, except as otherwise provided by these Rules. Evidence which is not relevant is not admissible.

Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes

(a) Character evidence generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1) Character of accused - In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the Plaintiff to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2), evidence of the same trait of character of the accused offered by the Plaintiff;

(2) Character of alleged victim - In a criminal case evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the Plaintiff to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the

53

Plaintiff in a homicide case to rebut evidence that the alleged victim was the first aggressor;

(3) Character of witness - Evidence of the character of a witness, as provided in Rules 607, 608 and 609.

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Rule 405. Methods of Proving Character

(a) Reputation or opinion. - In all cases where evidence of character or a character trait is admissible, proof may be made by testimony as to reputation or in the form of an opinion. On cross-examination, questions may be asked regarding relevant, specific conduct.

(b) Specific instances of conduct. - In cases where character or a character trait is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct.

Rule 406. Habit, Routine Practice

Evidence of the habit of a person or the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization, on a particular occasion, was in conformity with the habit or routine practice.

Rule 407. Subsequent Remedial Measures

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Rule 408. Compromise and Offers to Compromise

(a) Prohibited uses. Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:

(1) furnishing or offering or promising to furnish--or accepting or offering or promising to accept--a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

(b) Permitted uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or

54

prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or Plaintiff. Rule 409. Payment of Medical or Similar Expenses

Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury. Rule 410. Inadmissibility of Pleas, Plea Discussions, and Related Statements

Except as otherwise provided in this Rule, evidence of the following is not, in any civil or criminal proceeding, admissible against a defendant who made the plea or was a participant in the plea discussions:

(1) a plea of guilty which was later withdrawn; (2) a plea of nolo contendere; (3) any statement made in the course of any proceeding under Rule 11 of the Federal Rules

of Criminal Procedure or comparable state proceeding regarding either of the foregoing pleas; or (4) any statement made in the course of plea discussions with an attorney for the

prosecuting authority which does not result in a plea of guilty or which results in a plea of guilty which is later withdrawn.

However, such a statement is admissible (1) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought, in fairness, be considered with it, or (2) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.

Rule 411. Liability Insurance (civil case only)

Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

ARTICLE V. PRIVILEGES

Rule 501. General Rule

There are certain admissions and communications excluded from evidence on grounds of public policy. Among these are:

(1) communications between husband and wife; (2) communications between attorney and client; (3) communications among grand jurors; (4) secrets of state; and (5) communications between psychiatrist and patient.

ARTICLE VI. WITNESSES

Rule 601. General Rule of Competency

Every person is competent to be a witness.

55

Rule 602. Lack of Personal Knowledge

A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony. This rule is subject to the provisions of Rule 703, related to opinion testimony by expert witnesses. (See Rule 2.2) Rule 607. Who May Impeach

The credibility of a witness may be attacked by any party, including the party calling the witness.

Rule 608. Evidence of Character and Conduct of Witness

(a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused or the witness' privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness.

Rule 609. Impeachment by Evidence of Conviction of Crime

(a) General rule. For the purpose of attacking the character for truthfulness of a witness, (1) evidence that a witness other than an accused has been convicted of a crime shall be

admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and

(2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.

(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

56

(c) Effect of pardon, annulment, or certificate of rehabilitation. Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime that was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

(d) Juvenile adjudication. Evidence of juvenile adjudication is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

Rule 610. Religious Beliefs or Opinions

Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness’ credibility is impaired or enhanced.

Rule 611. Mode and Order of Interrogation and Presentation

(a) Control by Court. - The Court shall exercise reasonable control over questioning of witnesses and presenting evidence so as to:

1. make the interrogation and presentation effective for ascertaining the truth, 2. avoid needless consumption of time, and 3. protect witnesses from harassment or undue embarrassment.

(b) Scope of cross examination. - The scope of the cross examination shall not be limited to the scope of the direct examination, but may inquire into any relevant facts or matters contained in the witness’ statement, including all reasonable inferences that can be drawn from those facts and matters, and may inquire into any omissions from the witness statement that are otherwise material and admissible.

(c) Leading questions. - Leading questions should not be used on direct examination of a witness except as may be necessary to develop the witness’ testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

(d) Redirect/Re-cross. - After cross examination, additional questions may be asked by the direct examining attorney, but questions must be limited to matters raised by the attorney on cross examination. Likewise, additional questions may be asked by the cross examining attorney or re-cross, but such questions must be limited to matters raised on redirect examination and should avoid repetition.

Rule 612. Writing Used to Refresh Memory

If a written statement is used to refresh the memory of a witness either while testifying or before testifying, the Court shall determine that the adverse party is entitled to have the writing produced for inspection. The adverse party may cross examine the witness on the material and introduce into evidence those portions, which relate to the testimony of the witness.

57

Rule 613. Prior Statements of Witnesses

(a) Examining Witness Concerning Prior Statement. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.

(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2).

ARTICLE VII. OPINIONS AND EXPERT TESTIMONY

Rule 701. Opinion Testimony by Lay Witness

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Rule 702. Testimony by Experts

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Rule 703. Bases of Opinion Testimony by Experts

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.

Rule 704. Opinion on Ultimate Issue

(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the

58

mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

Rule 705. Disclosure of Facts or Data Underlying Expert Opinion

The expert may testify in terms of opinion or inference and give reasons therefore without first testifying to the underlying facts or data, unless the Court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross examination. ARTICLE VIII. HEARSAY

Rule 801. Definitions

The following definitions apply under this article:

(a) Statement. - A “statement” is an oral or written assertion or nonverbal conduct of a person, if it is intended by the person as an assertion.

(b) Declarant. - A “declarant” is a person who makes a statement.

(c) Hearsay. – “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

(d) Statements which are not hearsay. A statement is not hearsay if--

(1) Prior statement by witness. - The declarant testifies at the trial or hearing and is subject to cross examination concerning the statement and the statement is (A) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person; or

(2) Admission by party-opponent. The statement is offered against a party and is (A) the party's own statement in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).

Rule 802. Hearsay Rule

Hearsay is not admissible except as provided by these Rules.

59

Rule 803. Hearsay Exceptions, Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(1) Present sense impression. - A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

(2) Excited utterance. - A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

(3) Then existing mental, emotional, or physical conditions. - A statement of the declarant’s then

existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.

(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

(5) Recorded recollection. - A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

(6) Records of regularly conducted activity. - A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or date compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

(8) Public records and reports. - Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

(18) Learned treatises. - To the extent called to the attention of an expert witness upon cross examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

60

(21) Reputation as to character. - Reputation of a person’s character among associates or in the community.

(22) Judgment of previous conviction. - Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal Plaintiff for purposes other than impeachment, judgments against persons other than the accused.

Rule 804. Hearsay Exceptions, Declarant Unavailable

(a) Definition of unavailability. “Unavailability as a witness” includes situations in which the declarant

(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement; or

(2) persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so; or

(3) testifies to a lack of memory of the subject matter of the declarant’s statement; or

(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

(5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant’s attendance or testimony) by process or other reasonable means. A Declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.

(b) Hearsay exceptions: The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

(2) Statement under belief or impending death. In a Plaintiff for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible

61

unless corroborating circumstances clearly indicate the trustworthiness of the statement.

(4) Statement of personal or family history. (A) A statement concerning the declarant’s own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other’s family as likely to have accurate information concerning the matter declared.

(5) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

Rule 805. Hearsay within Hearsay

Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statement conforms with an exception to the hearsay rule provided in these rules.

ARTICLE XI. OTHER

Rule 1103. Titlle

These rules may be known and cited as the Nebraska High School Mock Trial Federal Rules of Evidence.

62

OFFICIAL TEAM ROSTER FORM Before beginning a trial the teams must exchange copies of the Team Rosters. The form shall identify the gender of each witness so that references to such parties shall be made in the proper gender. Copies of the Team Rosters shall also be made available to all three judges during the pretrial conference. At the conclusion of each trial, the presiding judge shall forward a copy of each team's roster to the local coordinator. No changes in a team's roster should be made after the first round of local competition. Contact your local coordinator with questions. NAME OF SCHOOL: Name of Team (if school has more than one team):

During this trial our team (Circle One) will be representing the: Plaintiff Defense

STUDENT ATTORNEYS

Name Direct Examination Cross Examination Other 1. 2. 3.

WITNESSES Name (Circle One) Trial Name 1. Male/Female _______ 2. Male/Female _______ 3. Male/Female _______

NAMES OF ALTERNATES 1. 2. Teacher-Coach(es):____________________________________________________________________________ Attorney-Coach(es): ______ Signature of Teacher(s): _______

63

TRIAL SCORING & DEDUCTION OF POINTS TRIAL SCORING: Trial winners are determined by which team earns the most judges' ballots. Do NOT add the two performance judges’ team totals together to determine the trial winner. Each of the performance judges should total their scores separately. If an individual judge's team totals are the same for both teams, that judge should indicate on the line If my total scores are tied, the win goes to , which of the teams s/he feels gave the best overall performance. The team which earns the greatest number of points on a judge's score sheet (or receives the judge's vote if the numbers were tied) wins that judge's ballot. TO WIN A TRIAL, A TEAM MUST WIN AT LEAST TWO JUDGES' BALLOTS. In other words, if each of the performance judges has awarded the greatest number of points to the same team, that team is the winner. If the performance judges have made a "split" decision (i.e., each awarded the most points to a different team) then the presiding judge must determine the winner based on which team gave the best overall performance. Example A: Judge Smith's: Team #1 83 points & Judge Jones' Team #1 80 points & score sheet shows: Team #2 76 points score sheet shows: Team #2 78 points In Example A, Team #1 is the clear winner because both performance judges gave them a greater number of points than the judges gave to Team #2 -- 83 and 80 versus 76 and 78. Example B: Judge Smith's: Team #1 83 points & Judge Jones' Team #1 79 points & score sheet shows Team #2 76 points score sheet shows: Team #2 80 points In Example B, Judge Smith has chosen Team #1 as the winner. Judge Jones has chosen Team #2 as the winner. Even though one team has more total points than the other, it is the number of judges' ballots NOT the total points which determines a trial winner. Therefore, this is a situation in which the performance judges have given a "split" decision. The presiding judge must determine the winner based upon overall team performance. In example B the team which earns the presiding judge's vote/ballot is the trial winner. DEDUCTION OF POINTS: Performance judges may, at their discretion, consider subtracting points from an individual's score because of rule violations. For example, if a team violates its time limits, the performance judges MAY decide to reduce the points given to each of the three attorneys, or reduce the point total of the attorney who appeared to be the greatest cause of the time limit violation. Other rule violations for which performance judges may wish to deduct points may be brought to the judges’ attention during a dispute settlement (see Rules 30-33). For example, if it is brought to the judges' attention that a team member was improperly coached by a teacher or attorney-coach during the trial round, the judges may wish to reduce the points given to that particular team member. Whatever rule violations are brought to the attention of the judges, it is entirely within the judges' discretion whether or not they will deduct points from any participant's score. The decision of the judges is final.

64

PRESIDING JUDGE'S SCORE SHEET

Date: Round: _______________ Prosecution: ____________________ Defense: ___________________ Indicate your decision regarding which team made the best overall performance independent of the decisions of the performance judges. If the decisions of the performance judges are split, your decision as to the best overall performance will be used to decide which team wins the trial. If the two performance judges agree regarding which team gave the better performance, your score sheet will not be used in the calculation of the winner, but at the regional or state championships your score sheet may decide pairings and round advancement. The criteria for BEST OVERALL PERFORMANCE are, among other things, whether ALL team members: -- complied with all rules of the competition and spirit of fair play; -- were poised and spoke clearly and distinctly; -- observed courtroom decorum; -- used their time effectively and stayed within their allotted time; and -- were courteous of their opponent. PERFORMANCE EVALUATION In my opinion, the team which gave the BEST OVERALL PERFORMANCE is the: CIRCLE ONE: Prosecution OR Defense COMMENTS (optional): ______ Judge’s Signature Date

65

PERFORMANCE JUDGE'S SCORE SHEET

Date: Round: Prosecution: __ Defense: Name of School Name of School Rate the performance of each team member on a scale of 1 to 10, recording one score in each box. Do NOT use fractions. 1-2= not effective 3-4= fair 5-6= good 7-8= excellent 9-10= outstanding

Ballot Plaintiff Defense

Opening statements ( ) ( )

Prosecution first witness Direct Examination ( )

Cross Examination

( )

Witness Performance ( )

Prosecution second witness Direct Examination ( )

Cross Examination

( )


Prosecution third witness Direct Examination ( )

Cross Examination

( )


Defense first witness Direct Examination

( )

Cross Examination ( )

Witness Performance

( )

Defense second witness Direct Examination

( )


Witness Performance

( )

Defense third witness Direct Examination

( )


Witness Performance

( )

Closing Arguments ( ) ( )

TEAM TOTALS (add scores in each column) ( ) ( )

Please deliver ballot to coordinator before critique. Tiebreaker (in case of tie, circle the party that won this round.) (Signature of Judge) PROSECUTION DEFENSE

66

SUGGESTIONS FOR SCORING MOCK TRIALS

Nebraska High School Mock Trial Competition

POINTS

PERFORMANCE

CRITERIA FOR EVALUATING STUDENT PERFORMANCE

1-2 Not Effective Unsure of self, illogical, uninformed, not prepared, speaks incoherently, definitely ineffective in communication.

3-4 Fair Minimally informed and prepared. Performance is passable but lacks depth in terms of knowledge of task and materials. Communications lack clarity and conviction.

5- 6 Good Good, solid, but less than spectacular performance. Can perform outside the script but with less confidence than when using script. Logic and organization are adequate, but not outstanding. Grasps major aspects of the case, but does not convey mastery of same. Communications are clear and understandable, but could be stronger in fluency and persuasiveness.

7-8 Excellent Fluent, persuasive, clear and understandable. Organizes materials and thoughts well and exhibits mastery of the case and materials.

9-10 Outstanding Superior in qualities listed for "Excellent" rating. Thinks well on feet, is logical, and keeps poise under duress. Can sort out essential from the nonessential and use time effectively to accomplish major objectives. Demonstrates the unique ability to utilize all resources to emphasize vital points of the trial.

Factors to Consider in Scoring

OPENING STATEMENTS Provided a case overview; mentioned the key witnesses; stated the relief requested; and provided a clear and concise description of their case.

DIRECT EXAMINATION Used properly phrased questions (who, what, where, when, how); used proper courtroom procedure; demonstrated understanding of issues and facts; proper introduction of evidence; defended objections in clear, concise terms; used time effectively; and complied with all rules of the competition and spirit of fair play.

CROSS EXAMINATION Used leading questions; properly impeached witnesses; raised proper objections and stated reasons clearly; knew Rules of Evidence and did not overuse objections; courteous of opponent; and complied with rules of competition and spirit of fair play.

WITNESSES Credible; understood facts; responded spontaneously; poised and observed courtroom decorum.

CLOSING ARGUMENTS Summarized the evidence; emphasized the supporting points of their own case and damaged

67

the opponent's; concentrated on the important, not the trivial; applied the applicable law; and used arguments that followed a logical pattern, in direct and easily understood language.

CONSTRUCTIVE CRITIQUES An important aspect of the educational process of mock trials is the critique provided by the presiding and performance judges at the conclusion of the trial. The comments and suggestions on this page are meant to assist judges in their roles as educators about the law and our legal system.

Please read these comments and try to give students positive suggestions that will help them 1) do better next time, and 2) understand how our justice system works.

For many students the critique is the most valuable part of the competition. They learn from hearing specifically what they did wrong, as well as from hearing your approval of what they did well.

Humor is a welcome tension reliever during the critique.

Your comments should bear in mind the educational goals of the mock trial project.

Remember that you are helping educate, guide and nurture these young people. Treat them with the respect you expect to receive from them.

Encourage questions during the critique.

Be realistic about the legal system. It is not perfect.

Let students see you as a real human being. Share your interests, concerns, and satisfactions.

Remember you are a role model for the students and an ambassador for your profession.

Maintain eye contact.

Keep your critique to the time suggested (15 minutes for the entire panel).

Let your personality come across. Let students know that not all attorneys use the same methods and techniques. Differences of opinions regarding style of trial presentations are common.

POSITIVE APPROACHES FOR SUGGESTIONS TO STUDENTS

"Perhaps an alternative way of handling the questioning of that witness would have been to..."

"Your opening statement was good, but it may have been even better if you had..."

"I cannot recall hearing evidence about ..., which would have helped your client's case. If you did include such evidence I suggest that next time you make it somehow stand out stronger by..."

DO NOT:

Criticize students about their attire. Expect high school students to understand all that law students or lawyers understand. Talk down to students.

68

DISPUTE RESOLUTION FORM -- INSIDE THE BAR (See Rules 30 & 33)

DATE PLACE OF TRIAL

SCHOOLS COMPETING

NAME OF STUDENT ATTORNEY FILING DISPUTE

SCHOOL OF STUDENT ATTORNEY FILING DISPUTE

NATURE OF DISPUTE. Explain briefly why you are filing this dispute. When finished, give

this form to the PRESIDING JUDGE.

PRESIDING JUDGE I have read this dispute form and determined that the dispute should be DENIED. My reasons for denying this dispute are

OR

I have read this dispute form and determined that the dispute should be HEARD. I will now present this form to opposing counsel and ask for their written response on the reverse side of this form.

SIGNATURE OF PRESIDING JUDGE DATE & TIME

69

DISPUTE RESOLUTION FORM -- INSIDE THE BAR (Page Two)

Opposing sides' RESPONSE TO DISPUTE. NAME OF STUDENT ATTORNEY RESPONDING

SCHOOL OF STUDENT ATTORNEY

RESPONSE TO DISPUTE. Write a brief response to the opposing side's dispute claim. When finished, return this form to the presiding judge.

PRESIDING JUDGE (please print): The respective teams have submitted a dispute and a response to the dispute in writing. Both sides have now had an opportunity to argue the dispute in an open hearing in my presence. After reviewing the dispute, the response, the oral arguments, and the relevant mock trial rules, I have reached a decision in this matter. My decision is:

SIGNATURE OF PRESIDING JUDGE DATE AND TIME

70

DISPUTE RESOLUTION FORM -- OUTSIDE THE BAR (See Rule 33)

Date Place of trial

Schools Competing

Name of TEACHER OR ATTORNEY COACH filing dispute

School of Teacher or Attorney Coach filing dispute

NATURE OF DISPUTE: Explain briefly why you are filing this dispute. When complete, give this form to the REGIONAL COORDINATOR.

COORDINATOR (please print) I received this Dispute Resolution Form on (date) and have notified all pertinent parties of the nature of the dispute. I DID DID NOT feel that a response was necessary for me to make a decision. (circle one) If received, the response is attached to this form. My decision in the dispute is

I have notified all pertinent parties of my decision. REGIONAL COORDINATOR'S SIGNATURE DATE & TIME

71

2014 MOCK TRIAL COORDINATORS & REGIONS

REGION 1 Coordinator: Honorable Leo Dobrovolny 1725 10th St.

Gering, NE 69341 (308) 436-6660 Fax: (308) 436-6759 [email protected]

Counties: Banner, Box Butte, Cheyenne, Dawes, Deuel, Garden, Kimball, Morrill, Scotts Bluff, Sheridan and Sioux

REGION 2

Coordinators: Lindsay Pedersen Jennifer L. Wellan 116 Dewey 301 N. Jeffers #101A P.O. Box 38 North Platte, NE 69101 North Platte, NE 69108 (308) 534-4350 (308) 532-2202 Fax: (308) 532-2741 Fax: (308) 535-3541 [email protected] [email protected]

Counties: Arthur, Custer, Dawson, Grant, Hooker, Keith, Lincoln, Logan, McPherson and Thomas

REGION 3 Coordinators: Honorable David W. Urbom Deb League

P.O. Box 847 102 7th Ave. West McCook, NE 69001 P.O. Box 378 (308) 345-4539 Benkelman, NE 69021 Fax: (308) 345-7907 (308) 423-2374 [email protected] Fax: (308) 423-2325 [email protected] Victoria Barnett P.O. Box 413 Beaver Crossing, NE 68926 (308) 268-4015 Fax: (308) 268-4025 [email protected]

Counties: Chase, Dundy, Frontier, Furnas, Gosper, Hayes, Hitchcock, Perkins and Red Willow

mailto:[email protected]






72

REGION 4 Coordinator: Honorable Mark D. Kozisek P.O. Box 225 Ainsworth, NE 69210 (402) 387-2162 Fax: (402) 387-0918 [email protected]

Counties: Boyd, Brown, Cherry, Holt, Keya Paha, and Rock Coordinator: Mike S. Borders

940 S D St. P.O. Box 133 Broken Bow, NE 68822 (308) 872-3311 Fax: (308) 872-2255 [email protected]

Counties: Blaine, Garfield, Greeley, Howard, Loup, Sherman, Valley, and Wheeler

REGION 5 Coordinators: Honorable Teresa K. Luther Justin R. Herrmann

111 W. 1st Street P.O. Box 1060 Grand Island, NE 68801 Kearney, NE 68848 (308) 385-5666 308-234-5579 Fax: (308) 385-5669 Fax: (308) 234-9305 [email protected] [email protected]

Counties: Buffalo & Hall Coordinator: Amy Skalka

303 N. Burlington, Ste. C P.O. Box 907 Hastings, NE 68902 (402) 834-3300 Fax: (402) 463-3110 [email protected]

Counties: Adams, Clay, Franklin, Harlan, Kearney, Nuckolls, Phelps, and Webster






73

REGION 6 Coordinators: Honorable Donna Farrell Taylor Honorable Paul J. Vaughan

501 Main – Courthouse P.O. Box 566 Neligh, NE 68756 Dakota City, NE 68731 (402) 887-4650 (402)-987-2111 Fax: (402) 887-4160 Fax: (402) 987-2117 [email protected] [email protected]

Counties: Antelope, Burt, Cedar, Cuming, Dakota, Dixon, Dodge, Knox, Madison, Pierce, Stanton, Thurston, Washington and Wayne

REGION 7

Coordinator: Honorable Robert R. Steinke

P.O. Box 1188 Columbus, NE 68602 (402) 563-4956 Fax: (402) 562-6718

[Kay – (402) 563-4953] [email protected]

Counties: Boone, Colfax, Merrick, Nance and Platte Coordinators: Honorable James C. Stecker PO Box 36 Seward, NE 68434 (402) 643-4895 – Seward District Court (402) 362-4038 – York District Court Fax: (402) 643-2950 [email protected]

Counties: Butler, Hamilton and Polk

REGION 8 Coordinator: Honorable Robert B. O'Neal 1210 Golden Gate Drive, Suite 2165

Papillion, NE 68046 (402) 593-5918 Fax: (402) 593-2158 [email protected]

Counties: Cass, Otoe and Sarpy





74

REGION 9

Coordinator: Honorable Daniel E. Bryan, Jr. 1824 “N” Street Auburn, NE 68305

(402) 274-5559 Fax: (402) 274-5583 [email protected]

Counties: Fillmore, Gage, Jefferson, Johnson, Nemaha, Pawnee, Richardson, Saline and Thayer

REGION 10

Coordinators: Honorable John A. Colborn Honorable Laurie J. Yardley 575 South 10th Street 575 South 10th Street Lincoln, NE 68508 Lincoln, NE 68508 (402) 441-7303 (402) 441-7275 Fax: (402) 441-3833 Fax: (402) 441-6055 [email protected] [email protected] Counties: Lancaster, Saunders, Seward and York

REGIONS 11 & 12 Coordinator: Honorable Thomas K. Harmon 1701 Farnam Street Omaha, NE 68183 (402) 444-5432 Fax: (402) 444-6890 [email protected] County: Douglas





75

NEBRASKA STATE BAR FOUNDATION

Officers

Gary W. Radil, President Stanley C. Goodwin, Vice President Charles F. Gotch, Secretary Steven E. Guenzel, Treasurer Robert D. Mullin Jr., Assistant Treasurer

Board of Directors Jill E. Robb Ackerman, Omaha Patricia J. Bramhall, Papillion Thomas B. Fischer, Omaha Richard G. Folda, Schuyler **Keith I. Frederick, Papillion Stephen S. Gealy, Lincoln **Deryl F. Hamann, Omaha **Kile W. Johnson, Lincoln **Harold W. Kay, Lincoln **Richard A. Knudsen, Lincoln **Dean G. Kratz, Omaha William J. Lindsay Jr., Omaha Thomas M. Locher, Omaha

** Past President and Lifetime Member

Christine A. Lustgarten, Omaha John B. McDermott, Grand Island Melany S. O’Brien, Omaha Forrest F. Peetz, O’Neill Steven G. Seglin, Lincoln Julie Shipman-Burns, Lincoln Richard D. Sievers, Lincoln Paul W. Snyder, Scottsbluff Susan J. Spahn, Omaha Galen E. Stehlik, Grand Island Hon. Lyle E. Strom, Omaha **Charles Thone, Lincoln Charles E. Wright, Lincoln Ex-Officio Members G. Michael Fenner, Omaha Amie C. Martinez, Lincoln Elizabeth M. Neeley, Lincoln Luke M. Simpson, Kearney

Staff Members and Contact Information Doris J. Huffman, Executive Director Sue Moderow, Program Assistant Maggie Killeen, Law-Related Education Assistant Chris Burge, IT Consultant Cindy Lilleoien, Law-Related Education Consultant P.O. Box 95103 Lincoln, NE 68509-5103 Phone: (402) 475-1042 Fax: (402) 475-7106 Email: [email protected] Website: www.nebarfnd.org Nebraska State Bar Foundation


http://www.nebarfnd.org/

Documents

THE LYLE STROM HIGH SCHOOL MOCK TRIAL PROJECT 2014 …€¦ · THE LYLE STROM HIGH SCHOOL MOCK TRIAL PROJECT 2014 CASE State of Nebraska ... NE 68509-5103 402/475-1042 ... (b) The