CLEVELAND MOCK TRIAL COMPETITION

Modified for Remote Learning

Cuyahoga River City v. Sydney Taylor1

Case Summary

Seventeen-year-old Ashton Day, a student at Cuyahoga River City High School in Northeast Ohio, along with their friends Carmen Sanchez and Brady Davis, attended a school football game on September 23, 2019. After the game, Day broke the lock on the south gate to the field and drove their car under the home side bleachers to join up with Sanchez and Davis. CRCH Principal Jaden Mathis and Officer Sydney Taylor, employed by the school as a security guard, were completing their rounds checking the field after the game when they heard the screeching of tires and noises coming from under the bleachers on the home side of the field. Principal Mathis headed to the telephones on the opposite side of the field to call for help, while Officer Taylor headed to the bleachers to investigate. Recognizing Day’s BMW, Officer Taylor called out to the students and drew their weapon. Soon after, Officer Taylor shot Day in the leg. Officer Taylor is now on trial for attempted murder, attempted voluntary manslaughter, aggravated assault, and assault under Ohio Law. Officer Taylor was hired as a security guard for CRCH in the summer of 2018, as part of Principal Mathis’s efforts to crack down on what school officials and local law enforcement perceived as the rising threat of gangs in their town. Cities and towns with high levels of gang activity experience violence, drug dealing, and disruption to students’ education. According to experts on gang activity, including witness for the defense Detective Logan Thomas, gang members can often be identified by the clothing they wear, whether they socialize with other known gang members, and whether they possess luxury items such as sports cars that they would not ordinarily be able to afford without the proceeds from selling illegal drugs. Officer Taylor had stated many times that they believed Ashton Day and Carmen Sanchez were members of the notorious Main Street Gang, which had caused trouble in the school and community before. That night immediately after the shooting, Sergeant Shay Medina was called to the scene along with emergency medical personnel. Sergeant Medina found graffiti on the stadium wall near where Day’s car was parked under the bleachers, along with discarded cans of spray paint and several empty beer bottles, one of which later was found to have Day’s fingerprints on it. At the hospital where Day was treated for their leg wound, they were found to have a blood alcohol level of .06, an indication that they had been drinking that night. Ashton Day says that while they and their friend Carmen may have gotten into trouble with the law in the past, they have now made an effort to turn their life around and stay clean. Day says that Officer Taylor just has a vendetta against them and that Day was shot during a night of innocent fun. Officer Taylor claims that they had a reasonable belief that Day either had drawn or was about to draw a firearm, and that they shot Day in the leg in legal self-defense. Witnesses for the prosecution include Ashton Day, Carmen Sanchez, and Sergeant Medina. Witnesses for the defense include Officer Taylor, Principal Mathis, and Detective Thomas.

1 Case hypothetical adapted from the New Hampshire Bar Association Mock Trial Competition Case

Materials, 2005-2006, developed by the Mock Trial Sub-Committee of the Law Related Education Special Committee (http://www.nhbar.org/uploads/pdf/statevtaylormocktrial.pdf). Names, legal authority, and other details have been changed for the purposes of the Cleveland Mock Trial Competition.

Police Encounters2 Police encounters have been a “hot button” topic locally and nationally. In 2014, there were riots in Ferguson, Missouri in the aftermath of the shooting of an unarmed young man named Michael Brown by a police officer, and news that state criminal charges would not be brought against the officer. Locally, a Cleveland officer was tried in 2015 for felony manslaughter stemming from his role in the shooting of Timothy Russell and Malissa Williams in their vehicle after a long chase in 2012. The officer was found not guilty by the judge hearing the case. Also locally, Tanisha Anderson’s death in 2015 arose from an encounter with the Cleveland Police, who were called to the scene by her family when they were seeking help with her mental health issues. And in 2014, a 12-year-old boy named Tamir Rice died after a police encounter on the west side of Cleveland, which sparked rallies and protests after the police officer who shot him was not brought to trial. In these incidents and more nationally, those who died were African-American, raising questions of whether race played a role and whether bias affects police interactions with citizens in many communities. And in many of them, questions were also raised about whether violence could have been avoided when the victims initially encountered the police. The Fourth Amendment of the U.S. Constitution guarantees citizens the right to be free of unreasonable searches and seizures, which includes stops by police as part of their duty to protect citizens and prevent and investigate crime. The Fourth Amendment reads:

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

Case law under the Fourth Amendment has developed what is known as a “Terry” or “pat-down” search, after a landmark case originating in Cleveland, Ohio called Terry v. Ohio, 392 U.S. 1 (1968). In Terry, a Cleveland policeman did a stop and frisk/pat-down search of a suspect outside a jewelry store in the Playhouse Square area (there is a plaque marking the spot). The U.S. Supreme Court held that if police have a reasonable suspicion of criminal activity, they can conduct a limited search for weapons to protect the officer and others from possible harm. The Fifth Amendment guarantees the right of citizens to “due process,” the requirement that the government must take certain action before taking their life (i.e. capital punishment), their property (e.g. confiscation of material goods or real estate as in eminent domain), or their liberty (e.g. arrest or sentencing to prison). The Fifth Amendment reads in relevant part: “No person shall be … deprived of life, liberty, or property, without due process of law.” Case law from these amendments has given rise to procedures and requirements of law enforcement officers well-established over the years, including that staple of TV police procedurals: the reading of a suspect’s Miranda rights. Arising from the Miranda v. Arizona U.S. Supreme Court case in 1966 (Miranda v. Arizona, 384 U.S. 436 (1966)), this is the requirement that the accused must be told of certain rights upon arrest, including their right to an attorney and to not make incriminating statements, and that if the rights are not communicated, any information obtained may not be used against the accused. But what happens when a situation occurs between citizens and law enforcement in which the citizen’s rights appear not to be recognized? The reality is, in the heat of the moment, police officers may act in what they feel is self-defense or in defense of others, in a way that violates citizen’s constitutional rights, causes injury, or even death. Many people, including those who have protested in Ferguson, New York

2 Adapted from the Police Encounters lesson of The 3Rs: Rights●Responsibilities●Realities, a program of

the Cleveland Metropolitan Bar Association in partnership with the Cleveland and East Cleveland schools (full lesson available online at www.clemetrobar.org/3Rs).

City, and here in Cleveland, believe that systemic biases have resulted in the targeting of minorities and citizens from poorer communities. Government officials and law enforcement have said that in cases where officers have been accused of excessive force, they are performing a dangerous job and that use of force is justified to carry out their duties. As with any issue, there is more than one side, and many ways to analyze it. The laws in the U.S. provide for several remedies if citizens’ rights have been violated by police misconduct, including 1) civil lawsuits: hiring an attorney to sue the police involved and their employer; 2) criminal charges: government prosecutors pursue charges against the police officers in a criminal trial; and 3) administrative proceedings: a review process to investigate claims of police misconduct, the results of which may include suspension, demotion, and/or firing of police officers. With this in mind, it is still important to note that citizens may be able to protect themselves at the time of their encounter with police officers. What can you do to protect your safety and avoid misunderstandings? The brochure included in these case materials – “The Law and You” – was developed by the NAACP, the National Organization of Black Law Enforcement Executives, and Allstate Insurance Company. It provides guidelines for young people to follow in police encounters. Consent decree: The U.S. Department of Justice (DOJ) conducted -- at the request of Cleveland Mayor Frank Jackson -- a two-year investigation of the Cleveland Division of Police (CPD) use-of-force policies and practices. The investigation included review of 600 use-of-force incidents from 2010-2013 and thousands of interviews. The DOJ investigation revealed systematic patters of insufficient accountability, inadequate training, ineffective polices, and inadequate community engagement. On May 26, 2015, the DOJ and the city of Cleveland entered into a consent decree (another term for a settlement agreement) enforceable by Chief U.S. District Judge Solomon Oliver. The full language of the consent decree can be found at http://tinyurl.com/ClevelandConsentDecree, but a few highlights are:

There will be an emphasis on de-escalation of incidents and use of force, through policies, training, and improved guidance.

Officers will face higher standards on unholstering and firing weapons and no longer will be allowed to use guns to strike suspects. Taser use will be revised to require more reporting and justification for use.

All uses of force must be described in detail in police reports and must be subject to more than a perfunctory review by their supervisors. Retaliatory force — such as tussling with a suspect at the end of a chase or to mete out punishment for disrespecting an officer — is to be explicitly prohibited. Officers will be required to take immediate steps to provide or secure first aid for suspects they injure.

Revision of policies and training to ensure that all stops and searches are conducted in accordance with the Constitution and in a manner that takes into account community values.

Development of a bias-free policing strategy — with community input — that prohibits detention solely on racial stereotypes.

Development of a recruiting plan with specific strategies for attracting a diverse group of applicants.

A Force Investigation Team and Force Review Board will be established to look into the most serious cases of use of force.

A 13-member Community Police Commission (CPC) composed of Cleveland-area citizens will be created to create a bias-free policing strategy and take aim at racial profiling and discrimination. Stricter search and seizure policies to protect against unjust police stops will also be a CPC focus. The CPC will conduct public hearings to obtain input from the community regarding its work.

The city of Cleveland will expand a computer database to better track police conduct.

An independent monitor will be appointed who will report to the court on progress in implementing the consent decree.

Optional Additional Activities Learn more about the issues by completing the following optional activities. 1. Research the current status of the DOJ/Cleveland consent decree since it was entered into. What progress if any has been made? What issues have arisen and how have they been addressed? What is your opinion regarding the status of the consent decree? Interview police, neighbors, friends, community leaders, fellow students and others regarding it — including knowledge of it and likelihood it will result in positive change. 2. Why has minority recruitment and retention for police officers been a problem in Cleveland and other urban cities? What are the percentages of minorities on the police force? What have been the trends? What recruitment and retention polices are in place now? What policies might be adopted to increase minority recruitment and retention? Are there cities that have had success increasing minority recruitment and retention? If so, how did they do it? Does an increase in the percentage of minority police officers lead to better police/community relations and a reduction of deadly use of force incidents? What research exists regarding that question? What are the findings? 3. Read the court’s opinion in the Officer Brelo case (Cleveland officer found not guilty in the Russell/Williams shooting in East Cleveland), which is at: https://localtvwjw.files.wordpress.com/2015/05/odonnell-ruling.pdf. Do you agree with the verdict? Why? Why not? The Cuyahoga County Prosecutor appealed the verdict. Why? What was the result of the appeal? What difference would it make if the County Prosecutor won, as the officer cannot be tried again for violations of state law (because of the constitutional right to be free from double jeopardy)? Why did Brelo waive (choose not to insist on) his right to a jury? Should defendants be permitted to waive a jury trial? Why? Why not? 4. Research the Hough and Glenville riots in the late 1960s in Cleveland. What were their causes? What was the cost to Cleveland and those neighborhoods? What was the impact on businesses? What role did the race of our mayor play in both riots, if any? Interview people who lived through the riots — including residents, police, and business owners — and gain their perspectives. Why have we not had any race riots in Cleveland since then? 5. The additional use of cameras during police encounters has been advocated by some as a way to better document problematic encounters. Body cameras are now available that police can wear that would document encounters. Further explore this technology and draft an essay that discusses the pros and cons of their use and then take a position on whether their use should be required. Consider making your position known to your local police department and/or city council. 6. Research the police policies in your community that cover automobile chases, automobile stops, and the use of deadly force during them. What are the policies and do you agree with them? Why or why not? What alternative policies would you propose, if any? Are there any nationally recognized guidelines and if so, do they compare to those in your city? What are your thoughts about any such national guidelines? 7. Interview a police officer regarding their job, including police encounters with citizens, a “Terry Stop,” an automobile stop, a domestic dispute, and an arrest. Include in your interview questions about the officer’s background, reasons for becoming an officer, and likes/dislikes about the job. 8. Research police encounters that have resulted in claims of excessive force, including the following: Michael Brown’s death in Ferguson, Missouri; the 2012 Cleveland Police shooting of Timothy Russell and Malissa Williams after a long car chase; the 2014 death of 12-year-old Tamir Rice on the west side of Cleveland; the New York City death of Eric Garner, who died after being put in a chokehold during his

arrest; the videotaped death of Walter Scott, who was shot while fleeing after fighting with a policeman in the Charleston, South Carolina area; Freddie Gray in Baltimore, who was arrested and died of spinal injuries sustained during his ride to the police station in the back of a police van; Tanisha Anderson, who died during an encounter with the Cleveland Police when her family sought help with her mental health issues; Philando Castile, whose girlfriend videotaped interactions with police following their fatal shooting of Castile during a traffic stop near St. Paul; Alton Sterling, whose death by police shooting led to protests in Baton Rouge, Louisiana and requests for civil rights investigations; and/or Korryn Gaines, who was shot and killed by police following an hours-long stand-off when she refused to allow police to enter her apartment in Baltimore. In each case, what happened? Identify what is known and unknown at this point. What are objective and subjective facts? What are opinions and what are facts? What does the police department say happened? What do those who feel the force was unjustified say happened? What were the police encounter policies in place and were they followed? What civil and criminal charges could or have been brought against the officer(s) involved? Any resolution to date and if so, what was the resolution? What are your thoughts regarding what happened, and what if any action(s) should be taken against the officer(s)? Compare and contrast the incidents, noting similarities and differences. 9. Research public opinion polls regarding police/citizen encounters. What do the most recent polls show? How can age, gender, race, and other factors account for any differences shown in the polls of those interviewed? Poll your classmates, teachers, and school administrators, asking the same questions. Before starting, determine how to properly conduct a poll so that it is a representative sample of those questioned. With the poll you conducted, what differences do you find by age, gender, race, or other factors? Are your results similar or different than the national polls? Why or why not? 10. Research police questioning/interrogation during the types of police encounters referenced in The Law and You. What information must be provided to the police? Section 2921.29 of the Ohio Revised Code addresses the issue and requires some basic information be shared and in what context. What is that information and what context? Name, address, ID? Anything beyond that? Must you answer all of the police officer’s questions? What if your response to the questions might incriminate you? What if your response could incriminate someone else? At what point can you or should you exercise your Fifth Amendment right to not incriminate yourself, and how do you do so properly? What are the rules about when you can end police questioning? How can you determine when that point is reached and how can you or should you tell the police you want to leave? Does Ohio’s law align with the U.S. Supreme Court’s decision in Kolender v. Lawson (a 1983 case where a man refused to provide basic identification information and alleged the police questioning was unconstitutional)? 11. Police encounter guidelines have been published by the American Civil Liberties Union (ACLU), the Criminal Defense Attorney’s Association, as well as police and related organizations. Research these guidelines and list what the differences are among them. Why do you think those differences exist? What would you change? 12. The Black Lives Matter and Say Her Name movements began as a way for people to protest, document, and challenge systemic racial bias in police interactions and reduce violence. Research these groups and others like them. How did they start? Who leads them? What are their goals? How do they say they will achieve them? Do you agree with their beliefs? What protests/actions have they taken in the past? Do you agree with their methods? What are some of the criticisms people have against them? What would you do if you were a leader of these groups? 13. Do a report on the City of Cleveland Office of Professional Standards and Civilian Police Review Board. How does the process work, does it work properly in your opinion, and would you recommend that citizens utilize it? If it is not working properly in your opinion, what changes are necessary so that it does? Do other cities have similar programs and are there aspects of their systems Cleveland should consider?

WITNESS STATEMENTS FOR THE PROSECUTION

Statement of Ashton Day

1. My name is Ashton Day. I am 17 years old. I will be 18 in June, and I am a senior at Cuyahoga River High School. I have lived with my mom since she and my dad got divorced. My parents thought it would be best for me to live with her because my dad travels a lot for work. I don’t know exactly what he does – some kind of consulting thing, I think. 2. I grew up in Jersey City, New Jersey, just outside of New York City. I liked living in Hoboken. I had lots of friends there and there were plenty of things to do. All the great bands came to NY, and I’m also a big Knicks fan. 3. When I found out we had to move to Ohio, I was really upset. At first, I thought my mom didn’t have a choice about moving – she works for ABC Processing and got transferred here to the new recycling plant when the one in New Jersey was closed down. Then later she told me we would have probably moved anyway because she didn’t like who I was hanging out with and she had been wanting to get me out of that environment anyway. It wasn’t as bad as she thought. My friends and I would get rowdy sometimes, but we never got into any serious trouble – just things like drag racing in the car I had then which was a 2010 Camaro, and a couple of fights. 4. I also didn’t like having to move so far away from my dad. He is really cool – not all uptight like my mom. He sent me a Knicks jacket and a Knicks bandana for Christmas this past year. I really like my jacket, and I sort of wear it everywhere I go, along with the bandana I wear most often as a do-rag, but sometimes just around my neck. My dad even gave me a great cell phone. 5. I admit that when I got here almost two years ago, I wanted to hang around with the group that my mom would hate the most. I was glad I drove my car here when we moved. It would have been lousy to be stuck in this dumb Midwest town with no wheels. Anyway, I started going to the Main Street Gang’s parties. That’s where I met Carmen Sanchez. I guess they used to be a member, but I never was. Even though we knew a lot of the members, and we’d hang out with them about three or four times a week, we never got involved in any of their stuff. 6. As a matter of fact, I never got popped for anything more serious than shoplifting, and that was a bogus charge. It was last year just before winter break, and I had gone to UDF to get a pack of cigarettes. I saw someone I knew, and I accidentally slipped the cigarettes into my pocket out of habit. Then, boom, I got busted. I still think that happened because I was so upset about that letter Ms. McDonald – she’s my counselor – said Principal Mathis was going to send to my mom. I’d been trying real hard in school and then Ms. McDonald called me into her office to tell me all my teachers said I had a bad attitude, that I was breaking school rules by wearing my Knicks jacket and bandana and some other stuff that wasn’t true. I don’t have a bad attitude – I just get tired of my teachers hassling me about my Knicks gear. She said that she was going to write a memo to the principal and suggest that they send a copy to my mom. In the end, I guess they never sent it because my mom never said anything to me, and if she had gotten it, she would have blasted me. 7. I knew who Officer Sydney Taylor was almost from the first day of school after winter break. They stuck to me like white on rice. If I went to my locker, there was Sydney. If I went to the mall, there was Sydney. I remember a bunch of times being in my car at stoplights. I would just be minding my own business, and who would be in the next lane? Sydney, of course. I got sick and tired of having them watch me like a hawk.

8. Sydney was always nervous. I have to admit I enjoyed making them sweat. They were such a loser. Everyone knew they were barely making it on the police force. I heard the other cops would rather shoot themselves in the foot and go on medical leave than have them for a partner. 9. I guess they thought that just because I went to some of the Main Street Gang’s parties that I was a gang member and into drugs and guns. I wasn’t, and that’s why they could never pin anything on me. If you ask me, that attitude really stinks. It especially bugged me because by that time, Carmen had been busted, and I had decided that even just hanging around with gang members could get me into a lot of trouble, so I quit going to their parties and tried to do better at school. I don’t want to be stuck in a lousy job like my mom, so I’m going to college, and so is Carmen. 10. Sydney’s attitude really got worse when I came back from visiting my dad with my new BMW. Sydney wigged out; they just couldn’t handle it that someone like me from the “wrong side of the tracks” was driving a car that was nicer than any car they’d ever set foot in. I know it bugged them. But, I earned that car – my dad was real proud of me for cleaning up my act, and he got a great deal on it from a guy he used to work with. The problem is if your family is poor, you can’t have nice things because the cops will just assume you stole them or bought them with drug money. 11. On the night of the homecoming game, I told Carmen that I’d pick them up. They had been released and were back in school. I drank a couple of beers that afternoon, but we didn’t take any drugs or alcohol with us to the game. Carmen had barely gotten out, so they were being super careful because they never wanted to be locked up again. Besides, my dad had told me I could only keep the BMW as long as I stayed out of trouble, and I knew my mom would tell him if I did anything really bad. 12. When I picked up Carmen I was wearing my Knicks jacket and do-rag, as usual. We left their house and drove to the school. As soon as we pulled into the parking lot, we saw Sydney taking money. As I pulled up, I rolled down the window just a little bit because I knew it would bug them. They kind of stuttered and said that we had to pay a dollar to park. I said or did something to make Sydney mad, and they just spaced out. They totally forgot what they were doing, so I pulled forward a little bit and then backed up and said, “Didn’t you forget something, Sydney?” I admit I was sarcastic, but is that a death penalty offense? 13. About halfway through the game a friend of mine from NY, Brady Davis, who was in town for the weekend, got there; I had invited Brady to the game. Sydney was sitting down with Principal Mathis at that point, and I saw Sydney looking at us when Brady sat down. I think they were staring at Brady because Brady was wearing a Knicks cap, and Sydney thinks that if you wear a cap or do-rag you’re in a gang; and, if you’re from a poor family – you’re in a gang. So Brady, Carmen, and I are all in gangs the way Sydney sees it. 14. During the game, we went to the concession stand to get something to drink. When we went back to our seats, we were messing around with the sophomores who were sitting in front of us. Some soda spilled on one of the girls, but it was just an accident. Sydney got all bent out of shape. They came over to “straighten me out,” but I just saluted them and said something like, “Whatever you say, Syd.” 15. After the game, Brady wanted to go for a ride in my car. I told Carmen and Brady, “Don’t move, I’ll bring it to you.” They were still up in the grandstand, so I decided to really bring the car to them. I cut the lock on the south gate with some wire cutters – no one would ever know I had done it. Then I drove my car right under the stands. Brady and Carmen couldn’t believe it! Even though the stadium lights were still on, I left my parking lights on and my car running so that we could listen to my new Nicki Minaj CD. Carmen and Brady came down to where my car was. I put the CD on, got out of my car and we all just stood on the passenger side about ten feet from the front of my car. There were some empty beer bottles on the ground right next to my car. I moved them away because I didn’t want to risk a flat tire. 16. We were minding our own business when we heard Sydney call out, “What are you kids doing?” We were kind of surprised partly because we didn’t know they were there, but mostly because we couldn’t

believe they asked what we were doing; they should have been able to see that we weren’t doing anything since they weren’t more than 20 feet away from us. I told Carmen and Brady that Sydney ought to get a life, but we didn’t say anything to Sydney; we just stood there. We knew they would be standing there nervous and sweaty and stuff, and we thought if we didn’t say anything they’d get even more paranoid. Carmen and I were laughing and telling Brady how the cops probably wanted Sydney scheduled at the school to keep them off the streets. 17. After we heard Sydney call out, we were kind of laughing again, and then Brady started to laugh out loud. You know how you don’t want to laugh, but you can’t help it? Well, then Carmen and I started to laugh too. Right after that we heard a bang, and I felt this real bad pain in my leg. I fell down on the ground, and Carmen was holding me. I don’t know where Brady went. Sydney came running over to us, and Carmen was yelling stuff at them. 18. I heard Sydney say something to me like – you kids scared me. Where is the gun? After that, I must have passed out because I don’t remember anything else. I hereby swear that the facts and information contained herein are true to the best of my knowledge and belief.

/s/ Ashton Day

The personally appeared the above named Ashton Day and made oath that the foregoing affidavit subscribed is true.

/s/ Notary Public, State of Ohio

Statement of Carmen Sanchez 1. My name is Carmen Sanchez, and I live at 58 Ridge Place, Cuyahoga River City, Ohio. 2. I am seventeen years old, and I attend Cuyahoga River City High School, where I am a senior. 3. I live with my parents and my brother and sister who are both younger than me. I like sports and watching TV, and I’m pretty good at art. 4. Ashton Day and I met each other last year at a Main Street Gang party. I wasn’t a member of the gang, and neither was Ashton. We both just hung around with them because they gave great parties. Ashton and I got to be good friends during the summer before I got busted and sent away. That bust was a complete rip; just because I happened to be there when the cops came to break up a fight, I got charged with assault and possession of a firearm. The gun they found didn’t even belong to me; it belonged to one of the other people, but I was there, and I already had a record, so I got convicted. 5. I hated being locked up, so while I was in detention I decided that when I got out I would really try to stay out of trouble. I learned a good lesson, and I don’t ever want to go back there again. Besides, my father is in the military, and he was already pretty strict before that happened. I knew that when I got out, he would keep me on a very short leash. 6. Right after I got out of detention in June, I got busted again – this time for DWI. My dad was furious, but after we talked, he was convinced that I wanted to turn over a new leaf and not get into any more trouble. He let me keep hanging around with Ashton because he knew that Ashton wanted to live up to this promise they made to their dad earlier in the summer. While Ashton was in New Jersey visiting him, their dad gave Ashton this great BMW. There was some condition about Ashton having to stay out of trouble if they wanted to keep the car. They loved that car and wouldn’t do anything to risk losing it, and I sure didn’t want any more heat from my dad or the cops. I especially didn’t want to hear any more from Sydney Taylor, who warned me after the DWI bust that I should stop hanging around with Ashton because we would just get into more and more trouble, and eventually, somebody was going to get killed. I didn’t know when Sydney said that they meant that they were going to try to kill Ashton. 7. On September 23, 2019, Ashton and I got together during the day at school and made plans to go to the homecoming game. They are really a sports fan – basketball, football, it doesn’t matter what so long as it’s exciting to watch and a lot of people will be there. We knew everybody would be going to the game, so we decided to go too. They said they would pick me up at my house. 8. They came to pick me up around 7:00 p.m. We headed straight to the stadium, and as we pulled into the parking lot, we saw Sydney Taylor. Sydney and Ashton don’t really get along because Sydney thinks that Ashton is a big-time drug dealer at our school. Ashton sort of gave Sydney a little bit of a hard time in the parking lot where they were collecting money. I think it probably made Sydney mad; just about anything Ashton does makes Sydney mad. 9. Ashton and I were together during the whole game. They never left my side, and they didn’t have anything to drink. They drove fine on the way to the game, and they didn’t do anything weird at the game. They definitely were not intoxicated. I told you they came to pick me up at my house, and believe me, if my dad had suspected that Ashton was drunk, there is no way he would have let me get into the car with them. No way. 10. About halfway through the game, a friend of Ashton’s from New York, named Brady Davis, came to sit with us. I saw Principal Mathis and Sydney watching all of us when Brady sat down. 11. Some younger kids who were sitting in front of us started hassling us and throwing popcorn. Ashton had a soda in their hand and was pretending that they were going to soak them when somebody came from behind and hit Ashton’s arm. Soda flew all over the place, and I guess one of the kids got mad

because she went and talked to Sydney, who came up to give us a hard time. I didn’t say anything to them, but Ashton saluted them, which didn’t seem to make Sydney too happy. 12. After the game ended, Brady wanted to go for a ride in Ashton’s car. Ashton told us to wait in the grandstand while they went to get the car. The next thing we knew, the car was underneath the stands. I knew they had to have broken in through a gate to get there, but I figured since everyone had left the stadium, no one would ever know it was Ashton who had done it, so I didn’t worry about it. 13. Brady and I went down to Ashton’s car. We were just standing around talking and listening to music. We didn’t have anything in our hands. I heard the cops found some spray paint cans and empty beer bottles near where the car was parked and that they lifted Ashton’s fingerprint from one of the empty beer bottles, but those bottles weren’t ours. They were there when we went down there. Ashton just moved them away from the car so they wouldn’t run over any of them. Lots of kids hang around there during and after school, so they could have been left by anyone. 14. We were pretty surprised when we heard Sydney call out. We didn’t even know that Sydney was in the stadium, much less standing right next to us. Well, I don’t really mean standing right next to us, but they couldn’t have been more than 35 to 40 feet away. They wanted to know what we were doing. Just to give them a hard time, we didn’t answer. Little did we know it would make them so mad that they would shoot at us. 15. We were all trying not to laugh, but first Brady cracked up, and then Ashton and I did too. The next thing we knew, there was a shot, and Ashton went down screaming. Sydney ran up to us saying something about a gun. “What gun?” I yelled at them. I couldn’t believe they shot at us. That shot was wild – could have killed any one of us, easy. Right then, Brady ran off. I haven’t seen or heard from Brady since that night. 16. Ashton didn’t do anything to cause Sydney to believe that they were in danger. They’re just a terrible cop who shouldn’t have a gun. In fact, I’m surprised they haven’t shot anyone before. Sydney has had it in for Ashton and me from Day 1 – I should have expected they would try to take us out of commission one day. 17. I was really shook up. I was glad I got to see Ashton that night, and they were doing good. We spent about a half an hour, just the two of us, in their hospital room. 18. I didn’t give a statement to the police the night Sydney shot Ashton because I was too weirded out. My main concern was making sure that Ashton was okay. But, I went down to the police station the next day and gave one. 19. I know the cops probably didn’t believe a word I said because they think I’m in a gang with Ashton and just trying to protect them. That’s so stupid. Nobody can prove that we’re in a gang. Just because Ashton has a nice car and wears a do-rag, everybody assumes that they’re dealing drugs. If you ask me, that’s nothing but discrimination, and it’s completely bogus. I hereby swear that the facts and information contained herein are true to the best of my knowledge and belief.

/s/ Carmen Sanchez

The personally appeared the above named Carmen Sanchez and made oath that the foregoing affidavit subscribed is true.

/s/

Statement of Sergeant Shay Medina 1. My name is Sergeant Shay Medina, and I have been a member of the Cuyahoga River City Police Department for 12 years. I attended the Police Academy in 2007 and have spent all of my years since graduating from the Academy in Cuyahoga River City. 2. I have a perfect record with the Cuyahoga River City Police Department. I have neither been sued nor has anyone lodged even a complaint against me for excessive force. I am familiar with Officer Sydney Taylor. They and I attended the academy together. I believe that they have been used as a scapegoat in a case where evidence was lost. I am also familiar with the civil case in which they were charged with excessive force. From the facts of that case, it’s my understanding that there was little merit to it and that the Department’s lawyers figured it would be more expensive to go to trial and win then to just pay the other side $10,000. 3. I wouldn’t call Officer Taylor a friend of mine, but they and I were on the Fraternal Order of Police volleyball team, and we have gone out for beers several times. 4. I was called to a disturbance on September 23, 2019, at Cuyahoga River City High School football stadium. I was close to the stadium, and I arrived there within five minutes after being dispatched. That particular neighborhood is notorious for gang activity, so I also called for backup. 5. When I arrived at the scene the lights were still on in the stadium. I entered through the south gate, which was open. I noticed that a cut lock was on the ground by the gate. I immediately proceeded north, where I encountered Ashton Day, Carmen Sanchez, and Officer Taylor. Day had been shot and was lying on the ground toward the front passenger side of the BMW which had its parking lights on. The first thing I did was radio for an ambulance. I advised them to enter through the south gate. 6. I approached Ashton Day and attempted to make them comfortable. The ambulance arrived shortly. The ambulance personnel immediately cut open their right pant leg. They had been shot in the right knee area and were bleeding profusely. They seemed to be in shock at that point and not aware of what was going on. 7. I then proceeded to talk to Carmen Sanchez, who was visibly shaken. I got a blanket out of my unit and put it around them. I told Sanchez to just sit down and that they could give a statement to me later. I arranged for radio to call both Carmen Sanchez’s and Ashton Day’s parents to advise them that Carmen was still at the scene and that Ashton was en route to County Hospital. 8. I then approached Officer Taylor who was also visibly shaken. They were sweating profusely and pacing. They were muttering, “Why couldn’t they have just answered? I thought they had a gun.” When I asked Officer Taylor if they would give a formal statement, they replied that they would later but were too shook up to do so then. Out of professional courtesy, I did not arrest Officer Taylor that night. Instead, I asked them to come down to the station the next day to give a statement which they did. 9. I also talked briefly with Jaden Mathis, principal of Cuyahoga River City High School, who had placed the call for backup, but Mathis had not seen the incident in question and had little to add. 10. After the ambulance left, my backup and I began to the comb the scene for possible evidence. I placed into evidence the lock that was near the gate, two spray paint cans located immediately behind the BMW, and three empty beer bottles that were located approximately three feet from the passenger side of the BMW. 11. I did not order that the spray paint cans be printed because it is hard to lift prints from that kind of surface. However, I did request that the lab run fingerprints on the beer bottles. It is my understanding that they were able to make a match on one of the beer bottles. The fingerprint on the beer bottle was Ashton Day’s. The remaining beer bottles had no intact prints.

12. I also noticed gang writing on the west wall of the grandstand approximately ten feet south of the driver’s side of the BMW. The paint was fresh and appeared to be in the same colors as the two cans of spray paint I seized, although no lab tests were performed on the paint. That night, I made a diagram of the scene that was later confirmed by the other backup officers who were there that night. 13. The following day, I went to the hospital. At that time, I seized Ashton Day’s pants because I had hoped that the lab could conduct powder residue tests to determine how close or how far Officer Taylor was from Day at the time of the shooting. Unfortunately, because of the rescue personnel’s handling of the pants, the lab was unable to do any positive tests of distance. I searched the pants, and I did find a knife in the right front pocket. It was a switchblade-type knife, which I tagged into evidence. I also seized the jacket that Ashton Day was wearing, which was a New York Knicks jacket, along with a Knicks bandana Ashton was wearing around their neck that night. Clothing with major sports teams’ logos is sometimes indicative of gang involvement. The BMW was searched prior to releasing it to Ashton Day’s mother. It contained no contraband, weapons, or alcohol. 14. I obtained a report on Ashton Day from the Medical Records Department of County Hospital: a bullet was taken from their knee. The report also shows a blood alcohol level that indicates Day had been drinking. 15. I have attempted to locate Brady Davis, who had also been present at the scene. I learned Davis was from New York City, so I contacted N.Y.P.D. and requested they run a check. They found nothing, and I have been unable to find anyone in Cuyahoga River City who has seen Davis since that night or who knows Davis’s whereabouts. 16. I am familiar with gang activity in Cuyahoga River City. The police department has been particularly concerned with gang activity in the last five years. Cuyahoga River City has experienced tremendous growth within that time. 17. The police department has given us some training on how to spot gang members. The things we are trained to look for include age, certain types of clothing, and hand gestures. In addition, if they come from poorer families and are in possession of highly expensive items that could be an indication that they are involved in illegal activities. Gangs, as you probably know, are oftentimes involved in illegal sales of drugs or contraband. 18. With the growth of gangs in Cuyahoga River City, police officers have been very concerned about getting injured on the job. When we encounter a situation in which we suspect the presence of gang activity, we know to be particularly cautious. Gang activity increases the chances of weapons being present. It also increases the possibility that illegal drug activity is going on. Many gang members will go to great lengths, even shooting a police officer, to protect their contraband. 19. But I also think a lot of officials, law enforcement and the government, in Cuyahoga River City have overreacted to the gang problem, and when that happens, you get a situation like this one. Police officers start to shoot first and ask questions later, because they’re afraid that every group of kids that they run across that meet their gang profile are gang members doing a deal and that every move the kids make may be reaching for a gun. Yes, we have a gang problem in Cuyahoga River City. It doesn’t justify, however, the kind of hysteria we’ve seen over the past couple of years in the newspapers, parent meetings, and so on – and, although it’s not going to make me popular to say it, even on the police force. 20. I had grown increasingly concerned about Officer Taylor ever since they became a security guard at Cuyahoga River City High School. It got to where they talked about nothing but how gangs were ruining Cuyahoga River City and that they had to be eliminated once and for all. On more than one occasion, I heard Officer Taylor call the high school a “cesspool of gang activity” and say, “It’s up to me to do something about it.” It was like they were on a moral crusade to clean up Cuyahoga River City and was going to start with the school.

21. It was common knowledge on the police force that Officer Taylor was completely convinced that Ashton Day was a member of the Main Street Gang, a big narcotics dealer who was often armed, and the source of most of the problems at the high school. One evening in late August 2019, as school was about to start for the year, Officer Taylor and I had a few beers after work, and they talked about how frustrating it had been to know that Day was “supplying the whole school with crack” but to have been unable, despite months of surveillance to catch “them in the act.” Officer Taylor also said to me that evening, “One way or another, I’m going to get Ashton Day this year if it’s the last thing I do. They’re not going to make an idiot out of me any longer. I’m going to teach that thug a lesson. They won’t get away with it this time.” I asked Sydney what they meant by “they,” but I never got a clear answer. 22. I then warned Sydney to chill out, that if they didn’t calm down and get some perspective on this, they were going to do something they would regret. I reminded Sydney that they didn’t have a shred of evidence against Day and that it was anybody’s guess whether the informants who had implicated Day were telling the truth or lying through their teeth to get Day for some reason or another. I told Sydney that except maybe for Detective Thomas, our big-city gang expert, I don’t think there’s another officer on the force who’s convinced that Day is some kind of dangerous drug kingpin. A wannabe maybe, a hanger on – but no Al Capone. It’s no secret that there’s no love lost between Detective Thomas and me. I think the last thing we needed in Cuyahoga River City was somebody from L.A. to tell us how to do things here. Detective Thomas knew I felt that way and that’s why I wasn’t invited to join their elite gang unit. I’m glad, in retrospect, that I didn’t. 23. Sydney wouldn’t listen and just got more agitated, finally saying, “Look, Shay, sooner or later someone is going to die at Cuyahoga River City High School. Maybe it will be a drug overdose, maybe a shooting or knifing. I just don’t want it to be some innocent kid who gets tangled up in all this. I want to make sure that if someone has to die, that someone is Ashton Day.” I knew we had big trouble, and I told them so but I was getting nowhere. I left and did not talk to Sydney again until the night of September 23, 2019. I must say that when I arrived at the scene and discovered that Sydney had almost killed Ashton Day, I was not surprised. I hereby swear that the facts and information contained herein are true to the best of my knowledge and belief.

/s/ Sergeant Shay Medina

The personally appeared the above named Shay Medina and made oath that the foregoing affidavit subscribed is true.

/s/

FOR THE DEFENSE

Statement of Defendant: Officer Sydney Taylor I, Officer Sydney Taylor, being duly sworn upon oath do hereby state: 1. My name is Sydney Taylor, and I am an officer with the Cuyahoga River City Police Department and also a security guard at Cuyahoga River City High School. My uncle was a police officer from the time he graduated from the academy with honors in the 1970s until he was shot in the line of duty when I was just a kid. They never caught the thugs who did that to him, but based on the side of town he was in, the time of night it was, and the fact that he was in the narcotics and organized crime unit, I would bet my life it was members of the gang that was big in those days, the Reaper Kings. After his death I hated the thought of all violence, but my uncle was my hero and idol, so I made it my life’s goal to become a police officer just like him and to carry out justice, to protect and serve the innocent. I attended the Police Academy in 2007, and for the next 12 years, I worked full-time law enforcement in the field. I learned a tremendous amount both at the academy and on the street. I knew what to look for to locate possible criminal activity: nervousness, furtive glances, and bulges that might signify dangerous weapons. 2. In the last few years, given all of the new people who have moved to Cuyahoga River City, I have also learned a significant amount about gang activity. I know that gang members are often connected to drug dealing and that some gang members make huge sums of money selling drugs. I believe that people at a lower socioeconomic level are attracted to gangs because of the potential to make a fast buck. Out on the street these last couple of years and during my tenure as a security guard at the high school, I have come to believe that gang activity is serious here in Cuyahoga River City. It is also my belief that the Cuyahoga River City Police Department is not taking seriously enough the threat of gang activity. 3. One of the reasons I was so excited when Principal Mathis approached me about working at Cuyahoga River City High School is that I felt I could have autonomy. I could focus on certain students who I believed were members of gangs and possibly selling contraband. I could slowly, day by day, put together a case against these people who are ruining Cuyahoga River City. During my years as a police officer and security guard, I learned, through trial and error, who was engaging in criminal activity. One thing I was surprised about when I went to Cuyahoga River City High was the number of students who carried burner cell phones – these cheap phones that are meant to be used just for a while then thrown away. I know that that’s a method for them to receive calls from their connections or potential purchasers. I also keep an eye out for gang wear – do-rags, or jackets from certain sports teams from big cities, including the Cleveland Cavaliers or the New York Knicks. 4. I have to admit that when Principal Mathis approached me about working at Cuyahoga River City High School, things were not going great with the Police Department. I had stepped on some toes when I led a drug bust against a powerful city official. Many people felt that kind of aggressive police work would hurt the department in the end, by alienating other city officials. I placed all the pills that were seized in the Evidence Room but someone got to them. The police department has been trying to pin it on me. They have absolutely no evidence that I stole those drugs, and I can say right now that I didn’t. However, certain high-up officials in the department, those who were cozy with the city official who was busted, have done their best to try to force me out of the department. 5. The department had to drop the case against the city official and has been blaming it on me. As a result, my hours were significantly cut back. I was happy that Principal Mathis offered me a job, and I felt that it was a job I could really excel at. If I were terminated from the Cuyahoga River City Police Department, or forced to quit because of lack of hours, I could be very happy as a security guard at the high school.

6. I have known Principal Mathis for many years. We had gone to high school together and later played on the same softball team. We were both very concerned about what was happening to our community. 7. Nevertheless, when I was hired at Cuyahoga River City High I knew that I had to prove myself to Principal Mathis and that breaking the drug ring/gang connection that we both felt was present in the high school would go a long way to ensuring a permanent job for me. Principal Mathis knew the extent of the drug dealing and gang activity that was going on at Cuyahoga River City High School, and when I started, they gave me a memorandum that pinpointed certain individuals, among them Ashton Day and Carmen Sanchez, as sources of the problem. They basically gave me free rein to look for weapons possession, drug dealing, drug use, and any other possible gang activity. When I started, I was briefed extensively by the C.R.C.P.D. gang specialist, Detective Logan Thomas, who again warned me specifically about Day and Sanchez. 8. I usually worked from approximately 11:00 a.m. to 3:30 p.m. at the high school. I would also work the extra-curricular activities. Even though I was a Cuyahoga River City police officer, I was considered off-duty during those hours. I always wore my Cuyahoga River City Police Department uniform and carried my radio with a microphone attached to the shoulder of my shirt, with the department’s permission. I never had to use the radio during my time as a security guard, but it was nice to know that it was available, if I needed it. 9. When I started working at the high school at the beginning of the 2018-2019 school year, I knew that the only way I would get information was to develop a network of informants. I did this by trading information for candy or Red Bull and, if the information was good enough, for money. It was from these sources that I confirmed that Ashton Day and Carmen Sanchez were members of the Main Street Gang, that Ashton Day was the main source at Cuyahoga River City for cocaine, and that they often carried weapons and would do anything to protect their stash. I received this information from two different informants, and I paid them $100 each. I paid it out of my own money. I received the information in January of 2019. At about the same time, I researched Day’s and Sanchez’s juvenile records and discovered that Sanchez was then in juvenile detention on a weapons charge for having assaulted another kid with a gun. Nobody had been able to get Day for anything more than shoplifting. It was then I decided to do something about that. 10. I began to keep a closer eye on Ashton Day. I knew they were driving a late model Camaro, which suggested to me that they were earning a significant amount of money from illegal activities. I knew where Ashton Day lived, and it was in one of the poor sections of town. During that time, from January of 2019 until the end of the school year, I also noticed that Day regularly wore a do-rag and New York Knicks jacket, and carried a fancy cell phone. However, Day was very smooth. They’ll even appear smooth to you on the witness stand like they were the innocent person that night. 11. I continued to hear stories on the street that confirmed my suspicions of Day, but I could not catch them committing any illegal acts. I pulled their school schedule and would sometimes follow them after class out to the parking lot or to where they were going to lunch. They’re smart though, and they knew I was doing it. 12. They would always make fun of me when I was following them, and I have to admit that it made me mad. They were just a punk who was getting these students hooked on cocaine. I also have to say that they made me a little nervous because I know people look for any excuse to sue a police officer. I was sued for excessive force back in 2012. It involved a guy who was drunk and had a knife. There were many people around, and I used my nightstick to knock the knife out of his hand. Unfortunately, I broke his hand in the process. The City Attorney settled the case for $10,000, which made me mad because it was such a frivolous lawsuit, but they told me it would cost much more than $10,000 to try the case. It was my reputation that was hurt. 13. I didn’t see Ashton Day between June when school let out and early August, 2019. I drove by their house several times but didn’t see the Camaro. By asking around I found out that Day was in New Jersey with their father for the summer. I called the Jersey City Police Department and got an officer to check out

Day’s father. I was told that Day’s father was currently unemployed, lived in a poorer section of Jersey City, but did not have a police record. Then, just before the new school year started on August 25, 2019, Day reappeared driving a fancy BMW and, from what I heard, throwing a lot of money around. Once again, my suspicions of Day were confirmed and I thought it quite likely that they had returned from New Jersey with a trunk full of crack, or maybe guns, that would soon find their way into Cuyahoga River City High School. I decided that I was going to redouble my efforts to nail Ashton Day. 14. On September 23, 2019, I worked in the morning for the Cuyahoga River City Police Department. I worked a 7:00 a.m. to 11:00 a.m. shift. I got to school a little bit after 11:00 a.m. and worked until 3:00 p.m. I did the usual that day – roaming the hallways, the parking lot and the remote areas of the school grounds. I noticed nothing unusual. I went home after the end of the school day and returned to the school at 6:30 p.m. to begin my work at the football game. Initially, my job was to collect a dollar from each car that entered the parking lot. I was also to make sure that students were not bringing in alcohol, weapons, or drugs. 15. At about 7:00 p.m., I saw Day’s BMW pull towards me. The windows were tinted as dark as they could legally be tinted. The driver’s window went down just a little bit, and Day said, “Hey, Syd, how’s it hangin’?” Carmen Sanchez, who I knew had recently been released on parole from juvenile detention, was in the front seat and they both started to laugh loudly; I just ignored them. I was very disappointed to see Carmen with Ashton; shortly after their release, they had been busted for DWI, and I had warned them at that time that they should stop hanging around with Day because they were just going to get into more and more trouble. Day pulled forward a little bit in their car and said, “Haven’t you forgotten something Syd?” Then they and Sanchez began to laugh again. They rolled down the window only about three inches, and threw a dollar bill out of the window onto the ground. I didn’t ask to search the car, but I was certain that I smelled the strong odor of marijuana coming from it. I was angry at Day, but I had gone to a stress management class and learned that deep breathing helped control my stress better than the muscle relaxants that I had been taking occasionally. After a few deep breaths, I had forgotten about the run-in with Day. 16. During the game, I ate a few hot dogs, watched the students and enjoyed the game. I sat with Principal Mathis for part of the game, and I kept an eye on Day and their friends as I always do. About halfway through the game, I saw a teenager wearing a Knicks cap approach Sanchez and Day and sit down with them. I had not seen this person before but learned later that it was Brady Davis. The three huddled together and appeared to talk in hushed tones about something important, but I was not close enough to overhear what they were saying. The three then got up and left; I tried to follow them because I suspected that they were leaving either to do drugs or to do a drug deal, but I lost them in the crowd. After about fifteen minutes, they returned to their seats. 17. A girl came up to me in the second half of the game and asked if I could get Day and Sanchez to lay off. She looked really upset because apparently they had thrown a soda into her hair. When I approached Ashton Day, they, Sanchez, and Davis all appeared to be either intoxicated or under the influence of a narcotic. Day simply saluted me and said, “Whatever you say, Syd.” It is my belief that Day has no respect for authority figures. However, that is not why they were shot on September 23, 2019. 18. Although I watched them closely for the remainder of the game, I observed nothing else unusual. After the game, my job was to make sure that the students left. Principal Mathis and I secured the visitors’ side of the football stadium and started walking towards the home side. We heard a screeching of tires and saw a car pulling in under the grandstand. I knew that the only way that a car could get into the south area was if the lock, which Principal Mathis and I had secured earlier, was cut or if the gate had been totally torn down. I asked Principal Mathis to go call for backup and they did. 19. The car pulled in so that it was facing north, and its parking lights were on. I approached with caution from the south. It appeared to be Ashton Day’s BMW. When I was about 60 feet from the car, I saw someone wearing a jacket getting out of it and two others who had either just gotten out of the car or who were already there. Although the stadium lights were still on, it was pretty dark under the stands, and I couldn’t see who they were, but I could see them talking, and I saw an object change hands that could

have been either a weapon or a parcel of narcotics. I did overhear what I thought was a discussion of prices. The car was still running. I could see that there were three individuals, one of whom was wearing a cap. I was not yet sure, but I thought that the three were Day and Sanchez and the kid that I had seen them with earlier. 20. I formed a belief that a possible drug deal was going down. I was nervous because I thought they probably had weapons, and if I was correct in my earlier hunch that they had been doing drugs during the game, there was no telling what they might do. I was also excited because I heard a voice, which I recognized as that of Ashton Day, say, “Sydney, get a life.” They all began to laugh. I told them to put their hands up and identify themselves. None of them did what I had advised them to do. 21. I saw a reflection off a shiny object that one of them was holding; it looked like a revolver. They were all three very close together, and I couldn’t tell exactly who had the gun, but the lighting was good enough that I was, and still am, certain that it was a revolver. It was pointed in my direction. I immediately drew my weapon and fired in the direction of the gun. 22. I did not shoot to kill, obviously. I’m a very good shot, and I shot toward the lower part of the body, which is why I hit Ashton Day’s knee. Believe me, if I had wanted to kill them, I would have been able to do so. That’s what we are trained to do. Because I aimed at the person with the weapon, and it was Day whom I shot, I feel strongly that it was they who pulled the gun. I am also sure that the reason that no weapon was found at the scene is because Davis picked it up and ran with it. I didn’t actually see that happen, but there’s no other explanation. 23. I ran over right away and was very upset. No police officer wants to shoot a citizen. However, I believe that if I hadn’t shot Ashton Day, I would be dead today. 24. I was certain at that time that these kids were negotiating a drug deal. Based on my experience and my education, I know that drug dealers will go to great lengths to protect their profits and their drugs, including murder if necessary. For these reasons, I knew that I had to act quickly and without hesitation. I am sorry that I had to shoot a student, but I know that I would do it all over again. I hereby swear that the facts and information contained herein are true to the best of my knowledge and belief.

/s/ Sydney Taylor

The personally appeared the above named Sydney Taylor and made oath that the foregoing affidavit subscribed is true.

/s/

Statement of Detective Logan Thomas

I, Detective Logan Thomas, being duly sworn upon oath do hereby depose and state: 1. I have been with the Cuyahoga River City Police Department for the past two years. Prior to that, I spent eight years with the Los Angeles Police Department, the last three of which were in the Gang Unit. 2. I was hired by the Cuyahoga River City Police Department to form a gang unit here in response to the trouble the city was having dealing with the influx of outsiders brought in by the ABC Plant. The Department was looking for someone experienced in handling gang problems, and I was looking for a way to get out of L.A. It had become just too dangerous for my family and me. L.A. is a goner as far as I’m concerned. The city is being completely taken over by people who couldn’t care less about obeying the law or behaving like civilized human beings. 3. I took the job in Cuyahoga River City because I thought I could make a difference here and nip these gangs in the bud before they could really take root. In L.A. it seems that no matter how hard you try, you just can’t make a dent in the problems. I thought it might be different here, and in fact, I think we’re beginning to have an effect. 4. Prior to my job in Cuyahoga River City, I was with the Los Angeles Police Department for eight years, and I spent my last three years in L.A. working for the Department’s Gang Unit. During those years, I attended a 40-hour weeklong institute at the New York City Police Department’s Gang School. In addition, I have been certified as an Inner City Gang Specialist by the National Law Enforcement Institute in Washington, D.C. I also served on a Federal Task Force where we developed a manual about gangs for use in cities with populations larger than one million. Since moving to Cuyahoga River City, I have received training from the Cuyahoga River City Department of Public Safety in traffic control during hazardous waste clean-up situations. 5. I have attended numerous conferences regarding the detection and eradication of gang activity and have read all available literature on gang problems. I have arrested literally hundreds of gang members in L.A. and a dozen or so in Cuyahoga River City. I have testified in numerous other proceedings regarding the detection and eradication of gang activity. 6. Based on my training, education, and experience, I have learned that gang wear includes do-rags in gang colors, and gear like jackets and hats from major cities’ sports teams, like the Cavs or the L.A. Lakers. I have also determined that age and clothing are important factors as to whether or not a person is in a gang. The gangs in Cuyahoga River City are just like the gangs in L.A. 7. I have been retained as an expert witness by the attorneys for Officer Sydney Taylor. Based on my review of the statements, memos, rap sheets, and other available discovery in this case, it is my belief that Officer Taylor was completely reasonable in assuming that Ashton Day, Carmen Sanchez, and Brady Davis are members of a gang. I base that opinion on the clothing worn by Ashton Day and Brady Davis, the fact that fresh spray paint was found at the scene as well as gang writing which I inspected and identified as a tag of the Main Street Gang. Spray paint cans were removed from the scene by officers. 8. I was familiar with the Main Street Gang from my days in L.A., and believe you me, they are one of the worst. They are into selling crack cocaine big time, and they would as soon shoot you as look at you. And it’s not only the boys who are involved; it’s girls too, and I mean the kind you sure don’t want to tangle with. When I began seeing Main Street graffiti here in Cuyahoga River City, I knew we were in for trouble, and that’s what I told Principal Mathis. 9. Principal Mathis asked to meet with me when I first came to Cuyahoga River City because they were concerned about gang problems at the high school. They showed me a memorandum that they had distributed to school personnel at the beginning of the school year, which banned gang-related clothing

and pinpointed several students as potential gang members. I told them that I thought that the memo was an excellent idea and, at their request, began to keep my eyes and ears open for gang-related activity at Cuyahoga River City High. Based upon what I have been able to learn since then from my confidential sources, I have concluded that the Main Street Gang has developed a following at the school and that Day and Sanchez, among others, are involved. 10. Just prior to the beginning of school in August, 2018, the Department had been able to nail Carmen Sanchez for beating up another kid and threatening the kid with a gun. We got them off the streets for a while – they were committed to detention – but they were out on parole before you could turn around and back at Cuyahoga River City High by the next school year. 11. In April, 2018, we busted two other kids – both were wearing do-rags and were carrying burner cell phones, so I was pretty sure they were drug dealers from the Main Street gang. We got them right on the school grounds at Cuyahoga River City High during school hours – one for possession of crack and the other for carrying a loaded .45-caliber weapon. A loaded .45! I mean, this was getting completely out of control, but it was happening all over Cuyahoga River City, and I couldn’t be everywhere at once. The parents were in an uproar, and they demanded immediate action. Principal Mathis called an emergency meeting of the PTO and invited me to present recommendations for dealing with the situation. 12. I was really glad when they accepted my recommendations to implement before the new school year started in the fall and decided to install metal detectors at the entrances to the high school and to hire Officer Taylor to keep an eye on things everyday. When they were hired, I briefed Officer Taylor thoroughly on the situation at Cuyahoga River City. We discussed in detail Principal Mathis’s memorandum, what my investigation had turned up during the past couple months and the arrests of Carmen Sanchez and the other two kids. I specifically warned them about Ashton Day and explained that although I hadn’t been able to develop any hard evidence, I sure had a hunch, and that if they kept a close eye on Day, Sydney could end up with a real important bust. 13. I also warned Sydney to be careful, that gang members in Cuyahoga River City, just like in L.A., are known to carry weapons and that they should approach every suspected gang member assuming that the member is armed and dangerous. In my expert opinion, it was completely reasonable for Officer Taylor to believe that the object they saw in Ashton Day’s hand on the night of September 23, 2019, was a gun. 14. Given the secrecy associated with gangs, it is not unusual for members of gangs to deny that they are members. The fact that Ashton Day and Carmen Sanchez claim that they were never in a gang does not surprise me. It does not mean, however, that they are not gang members. 15. It is highly unusual for gangs to allow non-members to socialize with them. If an individual goes to gang parties three to four times per week, there is absolutely no doubt in my mind that he or she is a member of that gang. 16. Officer Taylor isn’t the world’s greatest cop, if you know what I mean. They doesn’t have the experience I have and is, well, sort of nervous for this kind of job. But they makes up for all that in dedication. I’ve never known anyone as single-minded as Officer Taylor when it comes to these gangs. They were convinced they were going to be the ruin of Cuyahoga River City, that the Cuyahoga River City Police Department wasn’t taking this whole thing seriously enough and that it was up to them to rescue the high school from the Main Street Gang. So maybe they got carried away talking about it sometimes. But I thought they were pretty much right about it; they definitely worked like a demon to bust these punks; and I admire them for it. 17. As for Shay Medina, they still have their nose out of joint because I refused to take them into the gang unit. To be honest, I really don’t think much of Medina’s police skills, and they have never appreciated the serious threat that gangs pose to the City of Cuyahoga River City.

I hereby swear that the facts and information contained herein are true to the best of my knowledge and belief.

/s/ Detective Logan Thomas

The personally appeared the above named Logan Thomas and made oath that the foregoing affidavit subscribed is true.

/s/

Statement of Principal Jaden Mathis

I, Jaden Mathis, being duly sworn upon oath do hereby depose and state: 1. My name is Jaden Mathis, and I have lived in Cuyahoga River City all my life. I am the principal of Cuyahoga River City High School. I am married and have two children with whom I spend as much time as possible. I believe it is absolutely necessary to spend a lot of time with your children in order to instill in them the kinds of family values I consider important. 2. I first met Officer Sydney Taylor when we attended high school together. We lost track of each other over the years, but we became reacquainted in June of 2015 when we played on a city league softball team together. One night when we went out after a game, Sydney was telling me about their job with the Cuyahoga River City Police Department. We discovered we shared a common interest. As a result of the opening of the ABC Processing Plant, we believed our city was experiencing all the problems associated with any influx of newcomers. 3. Several times over the next couple of years, Sydney and I had dinner or went out for coffee together. They always asked me if I would go pick them up. Sydney didn’t like driving at night; I’m not exactly sure why. Anyway, we often discussed the increase in gang-related activity they noticed as a member of the police force and I noticed at CRCH. I told Sydney about the many new students in my school who were being raised by single mothers, including Ashton Day; without the benefit of a father in the home, it was no wonder these kids had no understanding of real family values and were turning into criminals left and right. They and I agreed that something had to be done. 4. In April of 2018, Detective Thomas arrested two known members of the Main Street Gang at Cuyahoga River City, one for possession of crack cocaine and the other for bringing a loaded gun to school. All the parents were very upset, so we had a PTO meeting at which Detective Thomas gave us some advice about what to do. Based on their recommendations, over the summer break I had metal detectors installed at the school entrances, and I offered Sydney Taylor a job as a security guard for CRCH. 5. Sydney was delighted with the job offer. Their job with the police department apparently wasn’t going that well. Other members of the department didn’t take the gang crisis seriously enough in Sydney’s mind. They told me that they were so stressed out that their doctor had prescribed muscle relaxants, but they were reluctant to use them. So, I thought it was perfect that they accepted the offer. Sydney could then work in an environment where they would really be supported in their crusade against gangs, and I knew they and I could get something accomplished with both of us working at the school everyday. I was sure we could really clean things up. 6. We both believed that we had an obligation to do what we could to protect our community, so in July 2018, they and I attended the same Ohio Law-Related Education Summer Institute. We had heard that it was going to be about “Teens, Crime and the Community.” That sounded like exactly what we needed to learn skills to both recognize and combat gang activities. 7. The Institute provided a lot of valuable information about how to deal with juveniles and how to turn students away from delinquent or gang activity by involving them in law-related education programs like the mock trial competition or the Summer Legal Academy in Cleveland instead. We liked what the Institute trainers had to say, but I was pretty sure educational techniques wouldn’t work with the likes of Ashton Day and Carmen Sanchez. I was sure those two were probably going to be bringing drugs and weapons into my school, and I became increasingly convinced that what I needed to do was get rid of those types. 8. Just before school started in the fall, I instructed my staff in a memorandum to watch out for them and certain other students, and I banned the wearing of gang-related clothing. I had previously met with Detective Logan Thomas after they had been hired by the local police for their gang unit and asked that

they keep in contact with Sydney to see what they could learn. Detective Thomas liked my memo and thought it was a good idea. 9. Sydney did discuss with me how difficult it was for them to use violence. They said sometimes they had to do it, but they always waited until it was absolutely necessary. In fact, they told me that one police captain had told them that they needed to respond more quickly or else their life would be in danger. I told them I agreed with the captain. Everyone who knows Sydney knows that they are a really peaceful, sometimes almost passive, person. That’s just their reputation. I also reminded them of the crack cocaine and loaded gun incidents and why they were working at Cuyahoga River City High. 10. Officer Taylor was completely dedicated in their role as the school’s security guard. Although they and I were both pretty disappointed that they couldn’t pin anything on Ashton Day, Sydney never gave up trying. 11. On September 23, 2019, Taylor and I both attended the Cuyahoga River City High School homecoming game. Sydney was working, so I didn’t see them during the first part of the game. They did come and sit with me for awhile, but left when a student came to ask for help in getting Ashton Day and their friends to stop throwing soda. I watched when Sydney went to speak with Ashton. Ashton was sitting with Carmen Sanchez and some kid in a Knicks cap. I had never seen the kid before. I saw Ashton salute Sydney, and knowing Ashton, they probably made some smart comment. 12. After the game, Sydney’s duties included securing the school grounds, so they and I began a patrol of the stadium area. We heard tires squealing and saw a car driving under the grandstand. We had already secured the gate, so we knew the only way that could have happened was if someone had cut the lock. Sydney told me to go call for a backup for them, so I ran to the bank of phones on the visitor’s side of the field. I was told by dispatch that a unit was in the area and would arrive within a few minutes. I was very hopeful that it would get there before some gang member shot my security guard. 13. As I was returning to the home side of the stadium, I heard a gunshot. I began running, and as I got close, I saw Sydney standing by Ashton Day’s car with Carmen Sanchez. Behind them, I also saw that same kid who was with them earlier running away. I gave chase but I lost him right away. 14. I finally gave up and went back to the stadium. I saw Ashton Day being loaded into an ambulance. There was another police officer, Officer Medina, at the scene when I returned. They told me that Sydney had shot Ashton Day. 15. I wasn’t a bit surprised to learn that Ashton was the gang member Sydney shot. They have been nothing but trouble ever since coming to Cuyahoga River City. Last winter Ashton’s counselor advised me in her monthly report that all of Ashton’s teachers had reported failing grades and attitude problems. I sent a copy of her report to Ashton’s mother along with my handwritten request that she schedule a conference with me. Ms. Day did not respond to my request, but I reviewed Ashton’s record regularly, and they continued to reflect poor grades and attitude problems throughout the remainder of the school year. 16. Although I did not actually see the shooting or most of what led up to it, I am sure that Sydney did what they did in self-defense; it was definitely the right thing to do. We have got to stop these people who are ruining our schools. I hereby swear that the facts and information contained herein are true to the best of my knowledge and belief.

/s/ Jaden Mathis

The personally appeared the above named Jaden Mathis and made oath that the foregoing affidavit subscribed is true.

/s/

Stipulations The parties have stipulated to the following facts and conclusions. They may be relied upon by both parties in the presentation of the case and may not be contested. 1. Sydney Taylor was indicted on one (1) count of Attempted Murder, one (1) count of Attempted Voluntary Manslaughter, one (1) count of Aggravated Assault, and one (1) count of Assault under Ohio law. 2. All pertinent Miranda rights were validly waived on all statements. 3. All exhibits were obtained in conformity with all pertinent search and seizure requirements, including consents to blood testing. 4. Chain of custody is proper with respect to each of the exhibits. 5. All signatures on the witness statements and other documents are authentic. 6. The arrest and disposition and hospital records are those of the person whose name appears thereon and are records kept in the normal course of business. 7. The Defendant was at all material times authorized by law to carry a firearm in the course of their employment. 9. Testimony as to the character or criminal record of all witnesses who will present in court does not violate the Mock Trial Rules of Evidence. 10. Under most circumstances, the prosecution in criminal trials bears the burden of proving beyond a reasonable doubt that the defendant is guilty. However, for an affirmative defense of self-defense under Ohio law, the burden of proof by a preponderance of the evidence is placed on the accused. Therefore the burden of proving self-defense in Cuyahoga River City v. Sydney Taylor is on the defense. (See Martin v. Ohio, 480 U.S. 228 (1987): “Under the Ohio Revised Code (Code), the burden of proving the elements of a criminal offense is upon the prosecution, but, for an affirmative defense, the burden of proof by a preponderance of the evidence is placed on the accused. Self-defense is an affirmative defense under Ohio law, and therefore must be proved by the defendant.”)

EXHIBIT 1

EXHIBIT 2

EXHIBIT 3

EXHIBIT 4 EXCERPTS FROM TESTIMONY OF DETECTIVE LOGAN THOMAS STATE OF CALIFORNIA V. POOLE SACRAMENTO COUNTY SUPERIOR COURT JULY 17, 2017 DIRECT EXAMINATION (By the District Attorney) Q. What is your name? A. Logan Thomas. Q. What is your occupation? A. I am employed as a detective with the Gang Unit of the Los Angeles Police Department. Q. What is the Gang Unit? A. It is made up of police officers trained to detect and eradicate gang activity. Q. What kinds of things do you look for to determine whether gang activity is present? A. It’s a simple fact that inner-city neighborhoods are where you find gang activity. Then, I look for any visible drug paraphernalia or the presence of weapons. I do this not only to attempt to confirm that the people are in a gang, but also for my own safety. I also watch for signs of nervousness or actions that indicate they are trying to hide something. Of course, another thing that I look at is whether the people are wearing any gang-related clothing. Q. Have you had any experience with gangs outside of the Los Angeles area? A. Not directly, but my extensive training and study in gang behaviors have led me to certain professional opinions about gangs in other communities. Q. Have you formed such an opinion about the similarities and differences in gangs between larger cities such as Los Angeles and smaller metropolitan areas such as Sacramento? A. Yes, I have. It’s part of my job to keep up on developments in gangs wherever they exist. You can’t know too much when you’re dealing with a situation as complicated as gang psychology. Q. How do gangs differ in larger and smaller cities? A. Well, in larger cities you have certain sections which you might say are known gang areas, like South Central in L.A. There, you see a bunch of kids in Lakers jackets hanging around a nice car, and you can just bet there’s something going down. The same is true in East L.A. It doesn’t matter even if there are some girls in the crowd. A gang unit detective gets to where he can tell what’s happening just by careful observation. If you walk up to a group like that unprepared, you’re a dead man. Q. And how does that differ from the situation in a smaller city? A. You can’t be as sure what you’re dealing with. You’ve still got to be careful, particularly in the poorer parts of any city, whenever you see a group of kids hanging around, especially when they’re wearing what you know to be gang insignia. But in smaller cities, the gangs generally aren’t as powerful and able to control their neighborhoods as completely, so you get a lot more kids who aren’t really gang members – they’re not into the guns and drugs – but they like the style. Q. How does that difference between larger and smaller cities affect the role of the police? A. I don’t know how it does, but I know how it should. Again, I’m speaking generally here, but normally the smaller the city, the less certain you can be of the situation. Not that you can afford to be any less careful. But you can’t be as sure that just because a kid in a Bulls jacket is in a suspicious situation that the kid has his pockets full of crack. In South Central L.A., yes. In Sacramento, maybe not. So for police officers, it’s less dangerous in some ways because not all of these encounters are going to be life-or-death situations. But in other ways, it’s even more dangerous because you can’t be as certain about the situation, and you’re much more likely to make a mistake. END OF EXCERPTS FROM TESTIMONY OF LOGAN THOMAS I hereby certify that this is a true and correct copy from the official records of the Superior Court of the County of Sacramento, State of California.

_/s/___________________________ Superior Court Clerk

EXHIBIT 5

CONFIDENTIAL CUYAHOGA RIVER CITY HIGH SCHOOL MEMORANDUM TO: All teachers and counselors FROM: Principal Mathis DATE: August 15, 2018 RE: Gang Activity I wish to welcome you all back to Cuyahoga River City High School for what I hope is a productive new school year. I have several items of concern, one of which I would like to bring up with you in this memo. As you know, gang activity throughout the city is increasing. The writing is on the wall. Excuse the pun. The gang activity in the Cuyahoga River City High School neighborhood became noticeable last year and escalated toward the end of the year. In order to keep the gangs out of the school, we took several steps. The first step was to ban all gang-related clothing at the school during school hours. At the present time such clothing includes known gang indicators such as bandanas or “do-rags,” or any item bearing the insignia of major city sports teams such as the Cleveland Cavaliers, the New York Knicks, or the Chicago Bulls. The purpose behind this rule is to ensure that students at Cuyahoga River City High School are not unknowing victims of gang violence. Oftentimes, members of rival gangs will shoot someone simply because they have on what might be construed to be gang-related clothing. If you see students wearing gang-related clothing, please advise them of the ban, take the item of clothing, and advise them that they can pick it up at the end of the school day. Please announce to your first period class each day during the first week of school and every Monday thereafter that the wearing of such items of clothing is strictly forbidden and that you will confiscate any such items. We have also attempted to develop a list, which I request that you keep confidential, of students who may possibly be involved in gang activity. This list was developed from information provided by teachers and various members of the Cuyahoga River City Police Department. The students who we have determined may be involved in gang activity include Kelly Watson, Andrea Green, Carl Puckett, Ashton Day, and Carmen Sanchez. I repeat that this list should be confidential and is for informational purposes only. You should not act differently towards these students than towards any other students. They have not been convicted of gang activity in any way, and these are only suspicions on our part.

EXHIBIT 6

CUYAHOGA RIVER CITY HIGH SCHOOL MEMORANDUM TO: Principal Mathis FROM: Ms. McDonald, Junior Class Counselor DATE: December 18, 2018 RE: Ashton Day This memo is my monthly report about the students with whom there have been problems at school, which are severe enough to warrant their being called into my office to receive formal notice of those problems. I am pleased to advise you that for the period of November 18 to December 18 the only student with whom I have had to meet is Ashton Day. Ashton’s grades have fallen steadily since the beginning of the school year in every class. As you review their transcript you will see that Ashton’s teachers are primarily concerned with what they describe as a surly, uncooperative attitude and little or no effort on Ashton’s part to improve either grades or behavior. In addition, Ashton’s chemistry teacher, Mr. Cheney, notified me yesterday that for the fifth time during the nine weeks, he has had to confiscate Ashton’s jacket and bandana, which bear the insignia of the New York Knicks. Ashton has been advised on numerous occasions of the ban against wearing clothing that could put CRCH students at risk for retaliatory acts from gangs. In spite of the ban, Ashton continues to regularly wear the jacket and bandana. Ashton’s refusal to abide by this particular school rule supports the claim of Ms. Saunders, Ashton’s world history teacher, who is convinced that Ashton is a member of the Main Street Gang. She insists that she has seen Ashton with known members of the Main Street Gang, including the student who was arrested on campus last April for possession of crack cocaine. In addition, she says that a number of students are afraid of Ashton. My concern is the implied threat Ashton made during our conference. When I informed Ashton that I would be writing this report to you and I would suggest you send a copy to his mother, Ms. Day, I was told I was making a big mistake because Ashton knows “a whole gang of people who could make you very sorry for sticking your nose in where it doesn’t belong.” As I stated above, I would strongly suggest that you notify Ms. Day immediately and schedule a meeting to discuss the situation with her.

EXHIBIT 7 Excerpt from the Cuyahoga River City Police Department Manual of Rules and Regulations: 12.550 DISCHARGING OF FIREARMS BY POLICE PERSONNEL

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Reference: Manual of Rules and Regulations - 1.23, 1.24, 1.25 Policy: The most serious act in which a police officer can engage is the use of deadly force. The authority to carry and use firearms in the course of public service also carries with it the highest level of responsibility. Respect for human life requires that police officers exhaust all other reasonable means before resorting to the use of firearms and then only when an officer reasonably believes that such use of firearms is necessary to protect the officer or another from the risk of serious physical harm or loss of life. In considering the use of firearms, understand that you are responsible for your acts and that you may be required to justify your acts in a court of law. The Cuyahoga County Prosecutor’s Office will determine the legality of actions taken. You are not required to retreat in lieu of the justifiable use of deadly physical force. The safety of innocent persons is of paramount importance. Where there is substantial risk to the safety or life of an innocent citizen, the safety of the citizen should take precedence over the apprehension of the suspect. Police officers may not use deadly force merely to prevent escape in misdemeanor cases. The use of deadly force to prevent escape of felony suspects is constitutionally unreasonable except where the escape presents an immediate risk of death or serious physical harm to another. Where the suspect poses no immediate threat of death or serious physical harm to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. If an officer uses unnecessary and/or excessive force, or acts wantonly and maliciously, he could be found guilty of assault, even of culpable homicide if he kills the person he is attempting to arrest. At such time as a police officer perceives what he interprets to be a threat of loss of life or serious physical harm to himself or others at the hands of another, he has the authority to display a firearm, with finger outside the trigger guard and have it ready for self-defense. The finger is only to be placed on the trigger when on target and ready to engage a threat. Self-Defense: A police officer is authorized to use that force reasonably necessary to protect himself or others from death or serious physical harm at the hands of another.

There must be an apprehension of real or immediate danger based on an overt and/or constructive act by another.

Warning Shots: Officers should only use warning shots if convinced a warning shot will possibly save a life or alleviate the need of taking a life. As with any shot an officer fires, the officer must know it will not endanger innocent bystanders. Supervisors should report and investigate warning shots as outlined in Section A. Felonies: When all other reasonable means at the officer's disposal have failed, the use of firearms is authorized, only under the following circumstances, as a last resort to apprehend a fleeing felon:

3 Adapted from the City of Cincinnati Police Dept. Manual of Rules and Regulations, updated 10/16/14

(http://www.cincinnati-oh.gov/police/assets/File/Procedures/12550.pdf), for the purposes of the Cleveland Mock Trial Competition.

The officer has probable cause to believe the suspect has committed or is committing a felony, and

The suspect presents an immediate risk of death or serious physical harm, either to the officer or another person if not immediately apprehended.

If possible, the officer will give verbal warning before using the firearm. By itself, notification by Emergency Communications Center (ECC) resulting from a general information broadcast or computer query that a subject is wanted will not provide authority for the police officer to use a firearm. All Other Felonies and Misdemeanors: In all other felonies or misdemeanors, police personnel will not fire shots even if the perpetrator attempts or succeeds in his attempt to flee. Juveniles: A police officer will not discharge a firearm at a person known to be or suspected of being a juvenile (person less than 18 years of age) except under circumstances which come within the provisions of the self-defense policy.

Exhibit 8 Photo of knife found in Ashton Day’s pants on Sept. 23, 2019

(photo credit wowphotos, www.freeimages.com)

Exhibit 9

Photo of graffiti on west wall under bleachers, home side, approx. 10’ from Ashton Day’s BMW on Sept. 23, 2019

(photo credit mid-day meeting2, www.freeimages.com)

Exhibit 10

Diagram made by Sergeant Shay Medina on Sept. 13, 2019

Exhibit 11

Diagram made by Sergeant Shay Medina on Sept. 13, 2019

The Law In the state of Ohio, murder in the second degree is the intentional killing of another person, or a death caused while committing a felony. But unlike first degree murder, it is not premeditated or planned. And unlike voluntary manslaughter, it is not committed in the "heat of passion." Ohio statute defines the crime as either:

1. An unplanned, purposeful killing; or 2. A death cause during the commission of certain felonies

The victim may be any person, or even an unborn fetus. As a practical matter, second-degree murder is usually referred to as simply "murder" and is punishable by a prison term of 15 years to life. For example, Bob and James get in a heated argument at a bar. They go out into the parking lot and get into a physical fight. Bob pulls out a knife and stabs James to death. While Bob wasn't planning on killing James before he went out, he also wasn't provoked in such a manner that it could be called a "heat-of-the-moment" killing.

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Ohio assault laws include the offenses of both “assault” and “battery.” Causing or attempting to cause harm to another person or to an unborn child is an assault in Ohio. To commit "battery" is to intentionally or negligently cause offensive physical contact or bodily harm. The crime of assault is broken down into two separate degrees: "simple" and "aggravated." Simple and negligent assault are misdemeanor crimes. Aggravated assault is a felony depending upon who is the victim.

Prohibited Conduct Simple Assault: Knowingly causing or attempting to cause physical harm to another or to another’s unborn. Recklessly causing serious physical harm to another or to another’s unborn. Negligent Assault: Negligent assault occurs when physical harm is caused through the negligent use of a deadly weapon. A common example of negligent assault is hunting accidents. Felony Assault: Causing serious harm to someone or an unborn child, or Causing or attempt to cause harm through the use of a deadly weapon. Aggravated Assault: Causing serious harm to someone or an unborn child, or Causing or attempt to cause harm through the use of a deadly weapon And does this while in “under the influence of sudden passion or in a sudden fit of rage.”

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From the Ohio Revised Code (ORC): ORC 2923.02 Attempt to commit an offense.

(A) No person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct that, if successful, would constitute or result in the offense.

4 Findlaw (http://statelaws.findlaw.com/ohio-law/ohio-second-degree-murder-laws.html)

5 Id. (http://statelaws.findlaw.com/ohio-law/ohio-assault-and-battery-laws.html)

(B) It is no defense to a charge under this section that, in retrospect, commission of the offense that was the object of the attempt was either factually or legally impossible under the attendant circumstances, if that offense could have been committed had the attendant circumstances been as the actor believed them to be. (C) No person who is convicted of committing a specific offense, of complicity in the commission of an offense, or of conspiracy to commit an offense shall be convicted of an attempt to commit the same offense in violation of this section. (D) It is an affirmative defense to a charge under this section that the actor abandoned the actor's effort to commit the offense or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of the actor's criminal purpose. (E)

(1) Whoever violates this section is guilty of an attempt to commit an offense. An attempt to commit aggravated murder, murder, or an offense for which the maximum penalty is imprisonment for life is a felony of the first degree. An attempt to commit a drug abuse offense for which the penalty is determined by the amount or number of unit doses of the controlled substance involved in the drug abuse offense is an offense of the same degree as the drug abuse offense attempted would be if that drug abuse offense had been committed and had involved an amount or number of unit doses of the controlled substance that is within the next lower range of controlled substance amounts than was involved in the attempt. An attempt to commit any other offense is an offense of the next lesser degree than the offense attempted.

ORC 2903.02 Murder.

(A) No person shall purposely cause the death of another or the unlawful termination of another's pregnancy. (B) No person shall cause the death of another as a proximate result of the offender's committing or attempting to commit an offense of violence that is a felony of the first or second degree. (C) Division (B) of this section does not apply to an offense that becomes a felony of the first or second degree only if the offender previously has been convicted of that offense or another specified offense. (D) Whoever violates this section is guilty of murder, and shall be punished as provided in section 2929.02 of the Revised Code.

ORC 2903.03 Voluntary manslaughter.

(A) No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly cause the death of another or the unlawful termination of another's pregnancy. (B) No person, with a sexual motivation, shall violate division (A) of this section. (C) Whoever violates this section is guilty of voluntary manslaughter, a felony of the first degree.

ORC 2903.12 Aggravated assault.

(A) No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly:

(1) Cause serious physical harm to another or to another's unborn;

(2) Cause or attempt to cause physical harm to another or to another's unborn by means of a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code.

(B) Whoever violates this section is guilty of aggravated assault. Except as otherwise provided in this division, aggravated assault is a felony of the fourth degree.

ORC 2903.13 Assault. (A) No person shall knowingly cause or attempt to cause physical harm to another or to another's unborn. (B) No person shall recklessly cause serious physical harm to another or to another's unborn. (C)

(1) Whoever violates this section is guilty of assault, and the court shall sentence the offender as provided in this division. Assault is a misdemeanor of the first degree.

ORC 2923.11 Weapons control definitions.

(A) "Deadly weapon" means any instrument, device, or thing capable of inflicting death, and designed or specially adapted for use as a weapon, or possessed, carried, or used as a weapon.

ORC 2901.01 General provisions definitions.

(A) As used in the Revised Code: (1) "Force" means any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing. (2) "Deadly force" means any force that carries a substantial risk that it will proximately result in the death of any person.

ORC 2921.29 Failure to disclose personal information.

(A) No person who is in a public place shall refuse to disclose the person's name, address, or date of birth, when requested by a law enforcement officer who reasonably suspects either of the following:

(1) The person is committing, has committed, or is about to commit a criminal offense. (2) The person witnessed any of the following:

(a) An offense of violence that would constitute a felony under the laws of this state; (b) A felony offense that causes or results in, or creates a substantial risk of, serious physical harm to another person or to property; (c) Any attempt or conspiracy to commit, or complicity in committing, any offense identified in division (A)(2)(a) or (b) of this section; (d) Any conduct reasonably indicating that any offense identified in division (A)(2)(a) or (b) of this section or any attempt, conspiracy, or complicity described in division (A)(2)(c) of this section has been, is being, or is about to be committed.

(B) Whoever violates this section is guilty of failure to disclose one's personal information, a misdemeanor of the fourth degree.

(C) Nothing in this section requires a person to answer any questions beyond that person's name, address, or date of birth. Nothing in this section authorizes a law enforcement officer to arrest a person for not providing any information beyond that person's name, address, or date of birth or for refusing to describe the offense observed. (D) It is not a violation of this section to refuse to answer a question that would reveal a person's age or date of birth if age is an element of the crime that the person is suspected of committing.

Case Law Graham v. Connor, 490 U.S. 386, 394 (1989) The U.S. Supreme Court in Graham sets forth a “reasonableness” test of the Fourth Amendment: an officer must apply constitutionally appropriate levels of force, based on the unique circumstances of each case. The officer's force should be applied in the same basic way that an "objectively reasonable" officer would in the same circumstances. The Supreme Court has repeatedly said that the most important factor to consider in applying force is the threat faced by the officer or others at the scene. The case reads in relevant part:

Any use of force by law enforcement officers needs to take into account the "severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." "The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation."

6

The court provided directive guidance in the Tennessee v. Garner case, providing factors to aid in describing the totality of the circumstances. Along with these factors new guidance was given to fact finders (courts) analyzing uses of force:

1) “Proper application requires careful attention to the facts and circumstances of each particular case.

2) Must be judged from the perspective of a reasonable officer on scene not 20/20 hindsight. 3) Must embody allowance for split-second decisions in tense, uncertain, and rapidly evolving

situations. 4) An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively

reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional.”

7

The essence of the reasonableness inquiry in defense-of-life cases is whether the officer who used force reasonably perceived a threat. That is, whenever law enforcement officers use force, the legal evaluation will focus on whether they reasonably perceived a threat at the time they used force and whether the force used was a response that an objectively reasonable law enforcement officer might have selected.

8

State v. Robbins (1979), 58 Ohio St. 2d 74 -- Paragraph two of the syllabus sets forth the elements of self-defense in a homicide case or other case where deadly force has been used: "To establish self-defense, the following elements must be shown: (1) the slayer was not at fault in creating the situation giving rise to the affray; (2) the slayer has a bona fide belief that he was in imminent danger of death or

6 From Graham v. Connor, 490 U.S. 386, 394 (1989)

7 From Tennessee v. Garner, 471 U.S. 1 (1985), as quoted by POLICE Magazine (Id.)

8 FBI Law Enforcement Bulletin - November 2002 Volume 71 Number 11

(http://www.spiritofthelaw.org/sol3art5print.html)

great bodily harm and that his only means of escape from such danger was the use of such force; and (3) the slayer must not have violated any duty to retreat or avoid the danger.

9

Norwood v. Dismuke (Hamilton County Court of Appeals 1979) 13 Ohio Ops. 3d 152 -- In an assault case, as in a homicide case, the defendant is entitled to introduce evidence as to the character and reputation of both himself and victim to show was justified in acting in self-defense.

10

State v. Austin (1996), 115 Ohio App. 3d 761, 764-765 -- A defendant claiming self-defense may testify as to instances of the victim's prior conduct which tend to show why he believed it was necessary to defend himself.

11

Enhance Your Case

Use relevant exhibits to establish certain important facts.

Determine if there are any facts to impeach (discredit) a witness’s testimony.

Determine if there are any facts that can be used to show a witness’s testimony was motivated by

bad or impure reason (for example, is Sergeant Shay Medina’s testimony motivated in part by

anger at being excluded from the police department’s elite gangs unit?).

Try to manipulate facts to conform to your theory of the case (for example, does the presence of

fresh graffiti in gang colors on the bleacher wall near Ashton Day’s car indicate that Ashton Day

was a drug dealer and/or gang member?).

9 Office of the Ohio Public Defender (http://www.opd.ohio.gov/RC_Casebook/self.htm)

10 Id.

11 Id.

COMPETITION INSTRUCTIONS

Team Membership and Roles

At the competition a mock trial team may consist of a minimum of six and up to 17 students.* In

this case, there are three possible witnesses who may be called for the prosecution and three for the

defense. Each team may use up to five attorneys for each side played. Each team will also have a bailiff

who will also serve as the timekeeper. Thus, the possible roles for each team are as follows:

Prosecution Defense

1. Attorney (Opening Statement) 2. Attorney (Opening Statement)

3. Attorney (Witness Examination) 4. Attorney (Witness Examination)

5. Attorney (Witness Examination) 6. Attorney (Witness Examination)

7. Attorney (Witness Examination) 8. Attorney (Witness Examination)

9. Attorney (Closing Argument) 10. Attorney (Closing Argument)

11. Prosecution (Witness #1) 12. Defense (Witness #1)

13. Prosecution (Witness #2) 14. Defense (Witness #2)

15. Prosecution (Witness #3) 16. Defense (Witness #3)

17. Bailiff/Timekeeper

Although each team is encouraged to maximize student participation, at the discretion of each

teacher, attorney roles may be combined and one student may, for example, conduct more than one

witness examination or do both a witness examination and make one of the arguments. Each team,

however, must use all three witnesses, use at least two attorneys for each side played and supply a

bailiff/timekeeper. Only the attorney who conducts the direct examination of a witness may make

objections during the cross-examination of that witness.

The student presentations should be the work product of the students themselves – guided, of

course, by the teacher and team legal advisor(s). It is important that the opening, direct examination,

testimony or whatever the particular presentation should be the student’s work rather than having the

student simply read the words prepared by an adult.

At competition, each team will conduct the mock trial twice, once as the prosecution and once as

the defense.

Time Limits

A trial is scheduled to last no longer than two hours. The presiding judge will enforce the time limit

and may at his or her discretion grant a time extension in the interest of fairness. Each team will supply a

student timekeeper who will show cards with 2:00, 1:00 or 0:00 minutes remaining. The time clock will

stop for objections and responses.

* Please include any additional student who participates in the training for the mock trial competition regardless of whether they play a role at the actual competition so they may also receive a Certificate of Participation.

Conduct During Trial and Trial Sequence

The presiding judge controls the courtroom. The judge may ask anyone to leave, if necessary.

During the trial, teachers, legal advisors and all other observers may NOT talk to, signal or otherwise

communicate with or coach their teams. This restriction includes any breaks during the trial.

Only furnishings and equipment available in the courtroom may be used during the trial. At the

conclusion of the trial, all tables, chairs and any other courtroom furniture and equipment are to be

returned to the place where they were found at the beginning of the proceedings. Nothing is to be

removed from the courtroom.

The bailiff will open court by saying:

All rise. Hear ye, hear ye, this Honorable Court for the City of Cleveland is open pursuant to adjournment. All

having business before this Honorable Court draw near, give attention and you shall be heard. You may be

seated.

All judges are to be addressed as “Judge ______” or “Your Honor.”

The bailiff will swear in each witness by saying:

Please raise your right hand. Do you solemnly swear that the testimony you are about to give is the truth,

the whole truth and nothing but the truth and that your testimony will comply with the Rules of the Cleveland

Mock Trial Competition?

Witnesses answer and sit down. They will remain in the courtroom during the trial. No motion for

separation of witnesses will be entertained.

Opening Statements (3 minutes maximum)

The presiding judge should ask counsel for the prosecution if they wish to make an opening

statement. Prosecution counsel should introduce themselves and their team members and the roles they

are playing and then present the opening statement. The same procedure is used with defendant’s

counsel.

Testimony of Witnesses

The prosecution will present its case first. The presiding judge will ask counsel to call their first

witness. The witness will then testify in the following examination sequence:

Direct (6 minutes)

Cross (5 minutes)

Redirect (2 minutes)

Re-cross (2 minutes)

The prosecution will call its remaining two witnesses using the same sequence for each.

Upon conclusion of the prosecution’s case, the prosecution will rest. The presiding judge will then

ask counsel for the defense to call their first witness. The defense team will follow the same sequence as

noted above.

Witnesses are bound by their written statements. If there is inconsistency or ambiguity between

the case summary and the witness statement, the witness is to rely upon the information contained in the

witness statement.

Fair extrapolations are permitted if they are consistent with the facts contained in the case

materials and do not materially affect the witness’s testimony. If a witness invents an answer that is likely

to affect the outcome of the trial, the opposition may object. Teams that intentionally and frequently stray

outside the case materials may be penalized.

If an attorney who is cross-examining a witness asks a question, the answer to which is not

included in the witness’s written statement, the witness is free to “create” an answer as long as it is not

contrary to the statement. If the answer is contrary to the statement, the cross-examination attorney may

impeach, or in other words, attack the credibility of the witness.

The trial proceedings are governed by the Modified Rules of Evidence found in this casebook.

Closing Argument (4 minutes maximum for each)

The prosecution will be allowed 2 minutes rebuttal.

Objections

In addition to evidentiary objections, objection may be made during trial by an attorney who

believes that any rule set forth in the Competition instructions has been violated. As with evidentiary

objections, the objection must be made as soon as the claimed violation occurs. If no objection is made at

the time of the claimed violation, the attorney knew or should have known of the violation at that time, the

right to object is waived.

The presiding judge may make rulings as appear appropriate. All judges will not interpret the

rules and guidelines in the same way. The judge’s decision, however, is final and no appeals procedure is

available.

Conclusion of Trial

The judicial panelists will retire to chambers to discuss their decision and complete the score

sheets upon conclusion of the trial and return it to the competition coordinator. The scoring panelists will

announce the outstanding witness and attorney awards, discuss the highlights of their performances, and

present their certificates. The judicial panelists may discuss the case and make remarks to the teams at

the conclusion of the trial but will not discuss the scoring.

The bailiff will close the proceedings at the judicial panelists’ signal with:

“All rise. This honorable court is hereby adjourned.”

Judging and Scoring

Each trial will be presented before a judicial panel consisting of a Presiding Judge and two Scoring

Judges. The Presiding Judge will control the courtroom and rule on motions and objections, and will

complete a ballot along with the ballots of the two Scoring Judges, based on their evaluations of the team

and individual performances.

The trial will be judged based on team and individual performances, not the merits of the case. The two

scoring panelists and the presiding panelist will separately rate the Prosecution and Defense teams,

assigning points from 6-90 based on the following factors:

1. Opening Statement (1-10 points possible)

2. Witnesses’ Performances (1-30 points possible)

3. Attorneys’ Performances on Direct (1-10 points possible)

4. Attorneys’ Performances on Cross (1-10 points possible)

5. Closing Statement (1-10 points possible)

6. Team Performance (1-20 points possible)

Judicial panelists will score individual performances based on the following guidelines:

Ability to think well on feet, be logical, keep poise under duress

Ability to sort out essential from the nonessential and use time effectively to accomplish major

objectives

Mastery of elements of the case: utilization of all resources to contribute to the team’s position

Quality of communication in terms of fluency, persuasiveness, clearness and understandability

Depth of performance in terms of knowledge of task and materials

Judicial panelists will score team performances based on the following guidelines:

The development and validity of the case theory (Did the prosecution/defense team establish a

theme for their argument? Was the theme valid?)

The choice and development of case strategy (Did the prosecution/ defense team select the

appropriate form of questioning used for direct examination and cross-examination?)

The degree of a team’s persuasiveness (Was the team’s case carefully crafted and skillfully

delivered? Were team members prepared and direct in their roles?)

The quality and authenticity of the student’s own work product (Does the student presentation

appear to be the work product of the student?)

In judging the performance of witnesses, judges should consider whether the witness was:

Believable in his/her characterizations and convincing in testimony

Articulate and responsive

Observant of proper courtroom decorum

Knowledgeable of the case facts and theory of the team’s case

Faithful to the case facts and did not invent new facts

In judging the performance of attorneys, judges should consider the following elements:

A creative, organized, and convincing presentation

Observation of proper courtroom decorum

A clear understanding of the facts, issues, law and rules of Cleveland Mock Trial

Ability to apply authority and law to facts

Proper phrasing of questions and objections

Appropriate presentation style

Poise and ability to think on his/her feet, extemporaneous (not scripted) delivery, eye contact

(ability to proceed without reading from prepared materials)

Bonus Points for exceptional attorneys and witnesses (1-20 additional points possible but NOT

mandatory): Judges at their discretion may award an attorney and/or witness who they feel has given an

extraordinary performance 1-20 bonus points, to be indicated in the Bonus Points section of the score

sheet along with the student(s) name(s). These points are NOT mandatory, and are NOT to be

included with the team’s overall score. The points are to aid the judges in determining among their

fellow panelists which students should be awarded Best Attorney and Best Witness. If there is a clear

winner based on points among the judges’ ballots, that student shall be declared Best Attorney or Best

Witness. If there is a tie, judges shall determine the winner in each category by discussion and mutually

agreed upon conclusion.

Sample Scoresheet

SIMPLIFIED OHIO RULES OF EVIDENCE

Rules Unique to Mock Trial I. Invention of Facts and Extrapolation (special rules for the Mock Trial Competition) The object of these rules is to prevent a team from “creating” facts not in the material to gain an unfair advantage over the opposing team. Invention of Facts - Direct Examination. On direct examination the witness is limited to the facts given in his/her own written statement. If the witness goes beyond the facts given (adds new facts or speculates about facts), the testimony may be objected to by the opposing counsel as speculation or as invention of facts outside the case materials. If a witness testifies in contradiction of a fact given in the witness statement, opposing counsel should impeach the witness’s testimony during cross-examination. [See also, Competition Instructions, “Testimony of Witnesses—Guidelines.”] Invention of Facts - Cross-Examination. If on cross-examination a witness is asked a question, the answer to which is not contained in the facts given in the witness statement, the witness may respond with any answer, so long as it is responsive to the question, does not contain unnecessary elaboration beyond the scope of the witness statement, and does not contradict the witness statement. An answer which is unresponsive or unnecessarily elaborate may be objected to by the cross-examining attorney. An answer which is contrary to the witness statement may be impeached by the cross-examining attorney. [See also, Competition Instructions, “Testimony of Witnesses—Guidelines”]. Example The limits on fair extrapolation apply only to cross examination, and no extrapolation is permitted on direct examination. An accident reconstruction expert (Mr. Smith) has testified that the accident was caused by the failure of the defendant to maintain an assured clear distance ahead. The defendant has claimed that he was undergoing a type of epileptic seizure when the driver ahead stopped abruptly. The accident reconstructionist testifies that even a person experiencing this kind of epileptic seizure would have seen the car brake abruptly. 1. Unnecessary Elaboration Cross-examiner: “But you’re not a neurologist, are you, Mr. Smith?” Mr. Smith: “As a matter of fact, I have a Ph.D. in Neurology from Johns Hopkins University

and have written extensively on epileptic seizures...” If there is no hint in the case materials that Mr. Smith has expertise in neurology, it would be regarded as an unnecessary elaboration 2. Elaboration necessitated by the Question Cross-examiner: “Have you testified before as an expert in accident reconstruction, or is this the

first time that you have ever testified?” Mr. Smith: “I have testified in 27 trials.” It may be reasonable for the expert to claim he has testified in 27 trials, if his age and background make that plausible, even if there is nothing in the case materials to reflect an answer to that question. It is an elaboration necessitated by the question.

II. Scope of Examinations Scope of Direct Examination An attorney questions the witness she/he has called to stand. On direct examination an attorney may inquire as to any relevant facts of which the witness has first-hand, personal knowledge.

Scope of Cross Examination The scope of 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’s 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. Redirect Examination After cross examination, additional questions may be asked by the direct examining attorney, but such questions are limited to matters raised by the opposing attorney on cross-examination. Just as on direct examination, leading questions are not permitted on redirect. Comment: If the credibility or reputation for truthfulness of the witness has been attacked successfully on cross-examination, the attorney whose witness has been damaged may wish to ask questions to “rehabilitate” the witness (save the witness’s truth-telling image). Redirect examination may also be used to strengthen a positive fact that was weakened by the cross-examination. Redirect examination is not required. A good rule to follow is: if it isn’t broken, don’t fix it. Examples: 1. Cross-examination of physician called by Plaintiff in murder case:

Attorney: Doctor, you testified on direct that the defendant died of arsenic poisoning, correct?

Witness: Yes. Attorney: Isn’t it true that you have a deposition in which you

testified that you did not know the cause of death? Witness: Yes, that’s true.

Redirect: Attorney: Doctor, why did you testify in your deposition that

you did not know the defendant’s cause of death? Witness: I had not yet received all of the test results which

allowed me to conclude the defendant died of arsenic poisoning. 2. Cross-examination:

Attorney: Doctor, isn’t it true the result of test X points away from a finding of arsenic poisoning?

Witness: Yes. Redirect: Attorney: Doctor, why did you conclude that the defendant died of arsenic

poisoning even though test X pointed away from arsenic poisoning? Witness: Because all of the other test results so overwhelmingly pointed toward

arsenic poisoning, and because test X isn’t always reliable. Comment: Neither one of these redirect examinations should have been conducted unless the attorney had a good idea of what the witness’s response would be. As a general rule, it is not advisable to ask a question if you don’t know what the answer will be. Re-cross Examination After redirect, additional questions may be asked by the cross examining attorney, but such questions are limited to matters raised on redirect examination. Re-cross is not mandatory and should not be used simply to repeat points that have already been made. Example: Assume the cross-examination in the example above has occurred. A good re-cross-examination would be the following: Attorney: Doctor, isn’t it true that when you gave your deposition you

had received all of the test results except the result of test X? Witness: Yes, that’s true. Comment: The cross-examining attorney would then argue in the closing argument that the doctor testified in his deposition that he did not know the cause of death at that time and the only test result received after the deposition pointed away from arsenic poisoning.

III. Hostile Witness Rule- Mode and Order of Interrogation and Presentation

1. Control by court. The court shall exercise reasonable control over the mode and order of

interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

2. Scope of cross-examination. Cross-examination shall be permitted on all relevant matters and matters affecting credibility.

3. Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the 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.

4. When is a witness hostile? “Where a witness is an unwilling one, hostile to the party calling him, or stands in such a situation as to make him necessarily adverse to such party, his examination in chief may be allowed to assume something of the form of cross-examination, at least to the extent of allowing leading questions to be put to him.” 44 OH Jurisprudence 3d 241, “hostile witness” §. 869

The issue is whether the witness’s hostile attitude toward the party calling them is likely to make the witness reluctant to volunteer facts helpful to that party. Hostility may be demonstrated by the witness’s demeanor in the courtroom, by other facts and circumstances, or by a combination thereof. Whether a witness is hostile is confided to the sound discretion of the presiding judge. IV. Voir Dire Voir Dire examination of a witness is not permitted. V. No offer of proof No offers of proof may be requested or tendered.

Article I. GENERAL PROVISIONS

RULE 101. Scope of Rules: Applicability; Privileges; Exceptions Applicability. These rules govern proceedings in the Ohio Mock Trial Program and are the only basis for objections in the Ohio Mock Trial Program.

No directed verdict or dismissal motion may be entertained. Article II. RELEVANCY AND ITS LIMITS RULE 201. 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 202. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible Evidence which is not relevant is not admissible. RULE 203. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Undue Delay

(A) Exclusion mandatory. Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury. (B) Exclusion discretionary. Although relevant, evidence may be excluded if its probative value is substantially outweighed by considerations of undue delay, or needless presentation of cumulative evidence.

RULE 204. Character Character evidence. Evidence of a person's character, other than his/her character for truthfulness, may not be introduced. Evidence about the character of a party for truthfulness or untruthfulness is only admissible if the party testifies. Article III. WITNESSES RULE 301. General Rule of Competency Every person is competent to be a witness. RULE 302. Lack of Personal Knowledge A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that S/he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses. RULE 303. Who May Impeach (A) Who may impeach. The credibility of a witness may be attacked by any party except that the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of surprise and affirmative damage. This exception does not apply to statements admitted pursuant to Evid.R. 801(D)(1)(A), 801(D)(2), or 803. RULE 304. Evidence of Character and Conduct of Witness 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. RULE 305. Mode and Order of Interrogation and Presentation

(A) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment. (B) Scope of cross-examination. For Ohio Mock Trial Rules, see Simplified Ohio Rules of Evidence (Section II). (C) Leading questions. Leading questions should not be used on the direct examination of a witness. Leading questions are permitted on cross-examination. When a party calls a hostile witness interrogation may be by leading questions.

RULE 306. Writing Used to Refresh Memory If a witness uses a writing to refresh his memory while testifying, an adverse party is entitled to have the writing produced at the hearing. He/she is also entitled to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. RULE 307. Bias of Witness In addition to other methods, a witness may be impeached by any of the following methods:

(A) Bias. Bias, prejudice, interest, or any motive to misrepresent may be shown to impeach the witness either by examination of the witness or by extrinsic evidence. (B) Sensory or mental defect. A defect of capacity, ability, or opportunity to observe, remember, or relate may be shown to impeach the witness either by examination of the witness or by extrinsic evidence. (C) Specific contradiction. Facts contradicting a witness's testimony may be shown for the purpose of impeaching the witness's testimony.

Article IV. OPINIONS AND EXPERT TESTIMONY RULE 401. Opinion Testimony by Lay Witnesses If the witness is not testifying as an expert, his/her testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of his testimony or the determination of a fact in issue. RULE 402. Testimony by Experts A witness may testify as an expert if: (1) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony; and (2) The witness's testimony is based on reliable scientific, technical, or other specialized information. RULE 403. 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 the expert or admitted in evidence at the hearing. RULE 404. Opinion on Ultimate Issue

Testimony in the form of an opinion or inference otherwise admissible is not objectionable solely because it embraces an ultimate issue to be decided by the trier of fact. RULE 405. Disclosure of Facts or Data Underlying Expert Opinion The expert may testify in terms of opinion or inference and give his/her reasons therefore after disclosure of the underlying facts or data. The disclosure may be in response to a hypothetical question or otherwise. Article V. HEARSAY RULE 501. Definitions The following definitions apply under this article:

(A) Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him 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 trial or hearing and is subject to cross-examination concerning the statement, and the statement is (a) inconsistent with his testimony, and was given under oath subject to cross-examination by the party against whom the statement is offered and subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (b) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive, or (c) one of identification of a person soon after perceiving him, if the circumstances demonstrate the reliability of the prior identification. (2) Admission by party-opponent. The statement is offered against a party and is (a) his own statement, in either his individual or a representative capacity, or (b) a statement of which he has manifested his adoption or belief in its truth, or (c) a statement by a person authorized by him to make a statement concerning the subject, or (d) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship, or (e) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy upon independent proof of the conspiracy.

RULE 502. Hearsay Rule Testimony which is hearsay is inadmissible. RULE 503. 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 unless circumstances indicate lack of trustworthiness. (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 condition. 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) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, 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 data compilation, all as shown by testimony.

RULE 504. Hearsay Exceptions; Declarant Unavailable

(A) Definition of unavailability. "Unavailability as a witness" includes any of the following situations in which the declarant:

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

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

(1) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant, while believing that his or her death was imminent, concerning the cause or circumstances of what the declarant believed to be his or her impending death. (2) Statement against interest. A statement that 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 the declarant believed it to be true. A statement tending to expose the declarant to criminal liability, whether offered to exculpate or inculpate the accused, is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

RULE 505. Hearsay Within Hearsay Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules. Article VI. AUTHENTICATION AND IDENTIFICATION RULE 601. Requirement of Authentication or Identification General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

EXAMPLES OF COMMON OBJECTIONS AND TRIAL PROCEDURE

I. Procedure for Objections An attorney may object if they believe that the opposing attorney is attempting to introduce improper evidence or is violating the Simplified Rules of Evidence. The attorney wishing to object should stand up and object at the time of the claimed violation. The attorney should state the reason for the objection, and if possible, cite by rule number the specific rule of evidence that has been violated. (Note: Only the attorney who questions a witness may object to the questions posed to that witness by opposing counsel.) The attorney who asked the question may then make a statement about why the question is proper. The judge will then decide whether a question or answer must be discarded because it has violated a simplified rule of evidence (objection sustained), or whether to allow the question or answer to remain in the trial record (objection overruled). Objections should be made as soon as possible; however, an attorney is allowed to finish his/her question before an objection is made. Any objection that is not made at the time of the claimed violation is waived. When an objection has been sustained, the attorney who asked the question may attempt to rephrase that question. Judges may make rulings that seem wrong to you. Also, different judges may rule differently on the same objection. Always accept the judge’s ruling graciously and courteously. Do not argue the point further after a ruling has been made. II. Examples of Common Objections The following are examples of common objections. This is not a complete list. Any objection properly based on the simplified Ohio rules of evidence is permitted:

1. Irrelevant evidence: "Objection. This testimony is irrelevant." 2. Irrelevant evidence that should be excluded:

"Ob-jection. This is unfairly prejudicial (or a waste of time) and should be excluded because…” 3. Leading question: "Objection. Counsel is leading the witness."

(Remember, leading is only objectionable if done on direct or redirect examination). 4. Narrative Answer: "Objection, this witness's answer is narrative" Commonly used on direct

examination when a witness's answer has gone beyond the scope of the initial question 5. Non-responsive Answer: "The witness is nonresponsive, your honor. I ask that this answer be

stricken from the record." The witness's answer does not answer the question being asked. Commonly used by the cross-examining attorney during cross examination. Example: Attorney: Isn’t it true that you hit student B? Witness: Student B hit me first. He/she was asking for it, acting like a jerk and humiliating

me in front of all my friends. Attorney: Your Honor, I move to strike the witness’s answer as non-responsive and ask

that he/she be instructed to answer the question asked. (Another option is to impeach the witness with prior testimony if he/she testified in his his/her deposition that he/she hit student B.)

6. Beyond the scope of cross or redirect: "Objection. Counsel is asking the witness about matters that were not raised during the cross or redirect examination."

7. Improper character testimony: "Objection. This is testimony about character that does not relate to truthfulness or untruthfulness."

8. Improper opinion: "Objection. Counsel is asking the witness to give an expert opinion, and this witness has not been qualified as an expert." OR "Objection. Counsel’s question calls for an opinion which would not be helpful to understanding the witness’s testimony (or which is not rationally based upon what the witness perceived.)"

9. Invention of facts: "Your Honor, we object on the basis that opposing counsel’s question seeks evidence that is outside the record in this case. Witness X has never given testimony in this case

concerning…" If the witness gives testimony on direct that is beyond the scope of materials, the cross-examining attorney should say "move to strike the testimony concerning…as beyond the scope of the case materials." Example: If witness X did not personally see arsenic in the medicine cabinet of the decedent’s wife, he cannot testify that she had arsenic in her medicine cabinet.

10. Lack of personal knowledge: “Objection.” The witness has no personal knowledge that would allow her to answer this question.

11. Speculation: "Objection. The witness is speculating/this question calls for speculation." A hybrid between lack of personal knowledge and improper opinion.

12. Hearsay: "Objection. Counsel’s question calls for hearsay." If a hearsay response could not be anticipated from the question, or if a hearsay response is given before the attorney has a chance to object, the attorney should say, "I ask that the witness’s answer be stricken from the record on the basis of hearsay." Example: Witness X testifies that “Mrs. Smith said that the decedent’s wife had a bottle of arsenic in her medicine cabinet.” This testimony is inadmissible if offered to prove that the decedent’s wife had a bottle of arsenic in her medicine cabinet, since it is being offered to prove the truth of the matter asserted in the out-of-court statement by Mrs. Smith. If, however, the testimony is offered to prove that Mrs. Smith can speak English, then the testimony is not hearsay because it is not offered to prove the truth of the matter asserted in the out-of-court statement. However, the testimony is only admissible if Mrs. Smith’s ability to speak English is relevant to the case. Comment: Why should the complicated and confusing condition be added that the out-of-court statement is only hearsay when “offered for the truth of the matter asserted”? The answer is that hearsay is considered untrustworthy because the speaker of the out-of-court statement has not been placed under oath and cannot be cross-examined concerning his/her credibility. In the previous example, Mrs. Smith cannot be cross-examined concerning her statement that the decedent’s wife had a bottle of arsenic in her medicine cabinet, since witness X, and not Mrs. Smith has been called to give this testimony. However, witness X has been placed under oath and can be cross-examined about whether Mrs. Smith actually made this statement, thus demonstrating that she could speak English. When offered to prove that Mrs. Smith could speak English, witness X’s testimony about her out-of-court statement is not hearsay. Remember, there are responses to many of these objections that the examining attorney can make after the objection is raised and he or she is recognized by the judge to respond.

III. Other Trial Procedures A. Opening Statement

An opening statement has been defined as “a concise statement of [the party’s] claim [or defense] and a brief statement of [the party’s] evidence to support it.” Judge Richard M. Markus, Trial Handbook for Ohio Lawyers (Thomson-West, 2006 Edition), §7:1, p. 305. A party seeking relief should indicate the nature of the relief sought. It may be useful to acknowledge the applicable burden, or burdens, of proof. An opening statement is not supposed to be argumentative, and should be used by attorneys to present their theories of the case. Legal authorities can be cited, to show what issue or issues are before the court for decision. It is appropriate to lay out what the attorney expects the evidence will show, but the wise attorney will be conservative in this regard. The most important aspect of the opening statement is to frame the issues. The attorney wants to frame the issues so that there is a compelling narrative (the theory of the case) in his/her client’s favor into which all the favorable facts and all favorable legal authority neatly fit. A well-crafted opening statement tells a story that will dominate the trial that follows.

B. Closing Statements

Closing statements, “are permitted for the purpose of aiding the [finder of fact] in analyzing all the evidence and assisting it in determining the facts of the case.” Markus, op. cit., §35:1, at p. 1013. In a bench trial (to a judge, rather than to a jury), the closing statement is also the time to argue the law to the judge. The attorney should point out to the court that his/her side has proven everything that it promised to prove, while pointing out that the other side failed to prove what it promised it would. It can now be shown how the evidence that was presented fits into the narrative (the theory of the case) that was introduced in opening statement, which, in turn, applying the law, compels a result in that side’s favor. Remind the court what that favorable result is; i.e., the particular relief your client is seeking from the court. On occasion, your evidence won’t survive an objection, or the attorney’s best witness will be forced to equivocate on an important point on cross-examination. When this occurs adjustments have to be made to the closing statement to fit the evidence actually presented in the trial. The closing statements are the final opportunities to persuade the judge. In oral presentation, the statements having the most impact are the first statements, and the final statements. The attorney should try to make the first and last things said in closing argument the most vivid and persuasive, while reserving those points that have less emotional impact, but need to be said, for the middle of the statement.

C. Direct Examination - Form of Questions

Witnesses should be asked neutral questions and may not be asked leading questions on direct examination. Neutral questions are open-ended questions that do not suggest the answer and that usually invite the witness to give a narrative response. A leading question is one that suggests to the witness the answer desired by the examining attorney and often suggests a “yes” or “no” answer.

Examples:

1. Proper direct examination questions: a. What did you see? b. What happened next? 2. Leading questions (not permitted on direct): a. Isn’t it true that you saw the defendant run into the alley? b. After you saw the defendant run into the alley, you called the

police, didn’t you?

D. Cross Examination - Form of Questions An attorney should usually, if not always, ask leading questions when cross-examining the opponent’s witness. Open-ended questions tend to evoke a narrative answer, such as “why” or “explain,” and should be avoided. (Leading questions are not permitted on direct examination because it is thought to be unfair for an attorney to suggest answers to a witness whose testimony is already considered to favor that attorney’s side of the case. Leading questions are encouraged on cross-examination because witnesses called by the opposing side may be reluctant to admit facts that favor the cross-examining attorney’s side of the case.) However, it is not a violation of this rule to ask a non-leading question on cross-examination. Examples:

1. Good leading cross-examination question: Isn’t it true that it was almost completely dark outside when you say you saw the defendant run into the alley? (This is a good question where the witness’s statement says it was “almost completely dark,” but a potentially dangerous question when the statement says it was “getting pretty dark out.”

2. Poor cross-examination question: How dark was it when you saw the defendant run into the alley? (The witness could answer, “It wasn’t completely dark. I could see him.”)

E. Opinion Testimony by Non-Experts For mock trial purposes, most witnesses are non-experts. If a witness is a non-expert, the witness’s testimony in the form of opinions is limited to opinions that are rationally based on what the witness saw or heard and that are helpful in explaining the witness’s testimony. Non-experts (lay witnesses) are considered qualified to reach certain types of conclusions or opinions about matters which do not require experience or knowledge beyond that of the average lay person. Note, however, that the opinion must be rationally based on what the witness saw or heard and must be helpful in understanding the witness’s testimony.

Examples: 1. Witness X, a non-expert, may testify that the defendant appeared under

the influence of alcohol. However, it must be shown that this opinion is rationally based on witness X’s observations by bringing out the facts underlying the opinion, e.g., the defendant was stumbling; his breath smelled of alcohol; his speech was slurred. If witness X thinks the defendant was under the influence because he had a strange look in his eye, then the opinion should not be permitted because it is not sufficiently rational and has potential for undue prejudice.

2. Witness X, a non-expert, may not testify that in his opinion the decedent died of arsenic poisoning, since this is not a matter that is within the general knowledge of lay persons. Only an expert, such as a forensic pathologist, is qualified to render such an opinion.

F. Opinion Testimony by Experts

Only persons who are shown to be experts at trial may give opinions on questions that require special knowledge beyond that of ordinary lay persons. An expert must be qualified by the attorney for the party for whom the expert is testifying. Before a witness can testify as an expert, and give opinions in the area of his/her expertise, a foundation must be laid for his/her testimony by introducing his/her qualifications into evidence. In a sense, every witness takes the stand as a non-expert, and the questioning attorney must then establish the witness’s expertise to the court’s satisfaction for the witness to be able to testify as an expert. This is usually accomplished by asking the expert himself/herself about his/her background, training and experience.

Example: Attorney: Doctor, please tell the jurors about your educational background.

Witness: I attended Harvard College and Harvard Medical School. Attorney: Do you practice in any particular area of medicine?

Witness: I am board-certified forensic pathologist. I have been a forensic pathologist for 28 years. It is up to the court to decide whether a witness is qualified to testify as an expert on a particular topic.

G. Refreshing Recollection (Rule 306)

If a witness is unable to recall information in his/her witness statement or contradicts the witness statement, the attorney calling the witness may use the witness statement to help the witness remember.

Example: Witness cannot recall what happened after the defendant ran into the alley or contradicts witness statement on this point:

1. Mr./ Mrs. Witness, do you recall giving a statement in this case? 2. Your Honor may I approach the witness? (Permission is granted.)

I’d like to show you a portion of the summary of your statement, and ask you to review the first two paragraphs on page three.

3. Having had an opportunity to review your statement, do you now recall what happened after the defendant ran into the alley?

H. Impeachment (Rule 303)

On cross-examination, the cross-examining attorney may impeach the witness. Impeachment is a cross-examination technique used to demonstrate that the witness should not be believed.

Impeachment is accomplished by asking questions which demonstrate either (1) that the witness has now changed his/her story from statements or testimony given by the witness prior to the trial, or (2) that the witness’s trial testimony should not be believed because the witness is a dishonest and untruthful person. Impeachment differs from the refreshing recollection technique. Refreshing recollection is used during direct examination to steer a favorable, but forgetful, witness back into the beaten path. Impeachment is a cross-examination technique used to discredit a witness’s testimony. Examples:

1. Impeachment with prior inconsistent statement: Attorney: Mr. Jones, you testified on direct that you saw the two cars before they

actually collided, correct? Witness: Yes.

Attorney: You gave a deposition in this case a few months ago, correct? Witness: Yes.

Attorney: Before you gave that deposition, you were sworn in by the bailiff to tell the truth, weren’t you?

Witness: Yes. Attorney: Mr. Jones, in your deposition, you testified that the first thing that drew

your attention to the collision was when you heard a loud crash, isn’t that true?

Witness: I don’t remember saying that. Attorney: Your Honor, may I approach the witness?

(Permission is granted.) Mr. Jones, I’m handing you the summary of your deposition and I’ll ask you to read along as I read the second full paragraph on page two, “I heard a loud crash and I looked over and saw that the two cars had just collided. This was the first time I actually saw the two cars.” Did I read that correctly?

Witness: Yes. Attorney: Thank you Mr. Jones. 2. Impeachment with prior dishonest conduct:

Attorney: Student X, isn’t it true that last fall you were suspended from school for three days for cheating on a test?

Witness: Yes.

I. Introduction of Physical Evidence (Rule 601) Generally, physical evidence (objects) must be relevant and authentic (shown to be what they appear to be) in order to be admissible. Exhibits are generally presented to the court through witness testimony. Specifically, for mock trial purposes, all exhibits contained in the case materials have already been stipulated as admissible evidence and may not be altered to give either side an unfair advantage. This means that both sides have agreed that all exhibits are admitted. Therefore, it is not necessary to demonstrate through a witness’s testimony that an exhibit is authentic, an accurate representation or admissible, nor is it necessary to move the court for the admission of the physical evidence. Example:

Attorney: Your honor, we have marked this one-page document as Plaintiff Exhibit 1 (or Defendant’s Exhibit A). Let the record reflect that I am showing Plaintiff Exhibit 1 (or Defendant’s Exhibit A) to opposing counsel. (Exhibit is shown to opposing counsel.) Your Honor, may I approach the witness?

Judge: You may. Attorney: Witness X, I’m showing you what has been marked as Plaintiff Exhibit 1.

Do you recognize that exhibit? Witness: Yes. Attorney: Could you explain to the Court what that is? Witness: It’s a map of the accident scene.

(At this point, the attorney may ask the witness any additional relevant questions about the exhibit, and then give it to the judge.)

Courtroom pointers to make the most of your presentation:

I. Dress appropriately: Your personal appearance affects the way people view you and your

performance. Appropriate clothing means business (not casual) dress: for example, a dress, a skirt and jacket, slacks and a jacket, slacks and a shirt and tie.

II. Pre-trial preparation

1. Arrive at the courtroom at least 15 minutes early so that you can acquaint yourself with the layout, make any necessary adjustments and be ready to start the trial exactly on time.

2. The prosecution team sits at the table closest to the jury box, and the defense team sits at the other table.

3. Attorneys should neatly organize their materials on the tables. Get rid of all unnecessary papers, briefcases, pencils and other clutter.

4. Witnesses should seat themselves in separate areas of the spectators’ section. 5. Make sure no team members are chewing gum.

III. Posture: Participants should remember that from the elevated bench, the judge has a good

view of the entire courtroom. Your seating posture has a definite impact on the judge’s impression of you. Attorneys especially need to be conscious of how they are seated. Sit straight but not so stiff as to be uncomfortable. Put your feet flat on the floor or cross your legs in a professional manner. Avoid nervous mannerisms, such as shaking your leg or tapping your pencil.

IV. Decorum

1. Be polite and courteous to the judges, both presiding and scoring. 2. Always stand when talking in court and when the judges enter or leave the room. 3. Always refer to the presiding judge as “Your Honor” and accept rulings graciously

and politely even if they are not in your favor. 4. Behave courteously and respectfully toward the opposing team before, during

and after the trial. 5. Be cordial to witnesses. 6. Emotions are not banned from the courtroom; however, they must be controlled.

It is okay (and may even be part of your trial strategy) to be appropriately indignant, puzzled, etc., but uncontrolled outbursts or wild theatrics are not appreciated by the judging panels and may cost you valuable points.

V. Speak effectively

1. All participants should speak clearly and carefully enunciate each word. 2. For attorneys, all speaking is done from a standing position. For witnesses,

speaking is done in a seated position from the witness stand. 3. If you are an attorney and are addressed by the court, stand promptly before

responding. VI. Deliver your best opening statement or closing argument

1. Organize any materials before beginning. 2. Rise slowly. 3. With confidence, walk slowly, yet deliberately, to the podium or the area from

which you will deliver the opening or closing. 4. Assume good speech-making posture. Your feet should be set apart a bit and

your weight balanced on the balls of your feet. 5. Before your first word, look the judge directly and say, “May it please the court”

and begin to speak directly to the members of the jury (scoring judges).

6. Try for a conversational tone in your voice. Speak to the judges in a clear voice that is slow enough and loud enough for them to follow your ideas without straining.

7. Avoid using slang and always use your very best vocabulary. 8. Use variety in your delivery. You can emphasize major points in several different

ways, e.g. pause before an important idea, raise your volume slightly to accentuate an important idea, or slow down to draw attention to an important idea.

9. Natural gestures are always good to emphasize ideas. They will come instinctively if your focus is on talking to the judges. Do not force gestures and always avoid repetitive or unnecessary gestures.

10. Be aware that judges may interrupt during your closing statement and ask you a question. Pause, listen carefully to the question, then answer to the best of your ability. The most important thing is to maintain your poise.

11. When you have concluded your presentation, say, “Thank you, your honors,” while looking directly at the presiding judge. Pause briefly and then take your seat. Show no signs of relief and do not immediately turn to speak to co-counsel. Always maintain that aura of poise and confidence.

VII. Question witnesses skillfully

1. Always rise to do the questioning. 2. You may have questions written out, but be ready to adapt when objections are

made or when a witness does not respond as you had expected. 3. Speak slowly and clearly. 4. Listen to the witness’s response. S/he may not say what you had anticipated and

thus you may have to insert or reword questions for clarification. 5. If opposing counsel makes an objection, stop speaking and give them the floor. 6. Be prepared to respond to an objection. Do so as articulately and confidently as

you possibly can. Do not ramble. Not all judges will expect you to respond, and, in fact, sometimes you will have to ask if the judge will allow you to do so.

7. If the judge rules against you on an objection, show no signs of dismay. Simply proceed with another question. The key is to maintain your poise.

8. If you are stumped on how to proceed, ask the judge if you may confer with your co-counsel. Make the conference brief. Use this conference technique only when absolutely essential. Judges may become frustrated if you hold up the trial too often. Remember: this conference counts as part of your time allotment.

9. Never ask a question to which you do not know the answer. 10. When you have finished your questioning, say, “No further questions, your

honor,” and take your seat in a confident manner. VIII. Be a great witness

1. Generally, all witnesses will be sworn at the beginning of the trial as one group. 2. When you are called, go to the witness stand. When the judge indicates that you

may take your seat, respond by saying, “Thank you.” 3. Seat yourself in the witness box in a professional manner. 4. Position yourself so that you can comfortably give your responses to the scoring

judges. 5. Speak loudly and clearly and in a manner best fitting the character you are

portraying. 6. Stay in character! 7. Do not allow any unnecessary movement or gestures to distract from your

testimony. 8. When an objection is made, immediately stop talking. 9. Wait until the objection is decided and even then do not respond until the

attorney doing the questioning indicates that you should do so.

10. Do not attempt to answer a question that you do not understand. Ask for clarification to be sure that you understand the question that is being asked.

11. Never argue with the judge or the opposing counsel. Keep a cool head! 12. Do not leave the witness box until the judge directs you to “step down.” 13. Walk slowly and confidently back to your seat. 14. Do not speak to anyone along the way or when you are seated.

IX. Maintain your demeanor during recess and debriefing

1. Rise when the judges leave the courtroom; maintain order and quiet while they are out; rise when the judges re-enter the courtroom.

2. Listen quietly and respectfully during the debriefing. When all the judges have concluded their comments, feel free to applaud, not only for them, but also for your opponents and yourselves.

X. Demonstrate fair play and integrity: Walk over to the other team members. Shake hands and

introduce yourself. It is always appropriate to congratulate them on a particularly good aspect of their performance. Remember, being a good sport is part of being a good winner. Not everyone can win the competition, so learn as much as you can and have fun while participating in the project.

THE WRITING COMPETITION Most judges will agree that writing effectively is perhaps the most important lawyering skill there

is. While courtroom skills are essential, judges rely extensively on briefs and memoranda submitted by

lawyers on behalf of their clients. It is through briefs and memoranda that legal issues are framed and

argued. Judges frequently decide many cases, particularly in civil matters, solely on the briefs filed.

Because the court believes that writing skills are at least as important as other lawyering skills promoted

in the Cleveland Mock Trial Competition, this writing portion continues to be an important, and

independent, component of the competition.

Once again, the writing competition this year is a solo competition and individual awards will be

given. Although students are not required to participate, the court strongly encourages all students to

participate. At a minimum, by writing on these issues, students will be better prepared to argue their

respective positions at trial. Papers should be between four and ten pages in length. Please be

conscientious about grammar, spelling, and neatness, as well as substantive content.

This year, students may write a persuasive essay based on any of the optional activities outlined

in the case materials on page 4. They may also write a sentencing memorandum for Cuyahoga River City

v. Sydney Taylor using the assumption that Officer Taylor was convicted of one or more of the charges.

The essays are due on Monday, May 25, 2020, and must be clearly marked with students’

names, teachers, and schools. The essays may be emailed to:

Jessica Paine, Director of Community Programs Cleveland Metropolitan Bar Association Email: jpaine@clemetrobar.org