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Professor David McQuoid -Mason, University of KwaZulu-Natal, Durban , South Africa

USING STREET LAW-TYPE MOCK TRIALS TO TEACH ABOUT THE TRIAL PROCEDURES IN INQUISITORIAL CIVIL LAW JURISDICTIONS. Professor David McQuoid -Mason, University of KwaZulu-Natal, Durban , South Africa. Introduction. 17 Central and Eastern Europe and Central Asian countries 1997-2001 .

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Professor David McQuoid -Mason, University of KwaZulu-Natal, Durban , South Africa

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  1. USING STREET LAW-TYPE MOCK TRIALS TO TEACH ABOUT THE TRIAL PROCEDURES IN INQUISITORIAL CIVIL LAW JURISDICTIONS Professor David McQuoid-Mason, University of KwaZulu-Natal, Durban, South Africa

  2. Introduction • 17 Central and Eastern Europe and Central Asian countries 1997-2001. • Albania, Belarus, Croatia, the Czech Republic, Estonia, Hungary, Kazakhstan, Kyrgyzstan, Latvia, Macedonia, Moldova, Mongolia, Romania, Russia, Slovakia, Ukraine and Uzbekistan. • Street law mock trials prepare up to 31 students for their different roles in a mock trial that will usually last for just over an hour. • 6 x 45 minutes lessons or one full morning training. • Mock trial lasts one hour.

  3. Introduction (continued) • The Street Law Inquisitorial Mock Manual (1999) 3 full length and 3 ‘instant’ mock trials based on the same facts. • Topics relevant today? • ‘The Pub Murder Mock Trial’: A murder case arising from a xenophobic attack ; • ‘The Sex Slave’s Revenge Mock Trial’: A revenge killing case involving trafficking of women for sexual purposes; and • ‘The Controversial Dam Mock Trial’ : A case involving the arrest of environmentalists demonstrating against the building of a hydro-electric dam that will destroy an important ecosystem , historical buildings and villages.

  4. Street Law Inquisitorial Mock Manual • Part A of the Manual covers the following introductory topics: • What is a Mock Trial? • Lesson Outcomes for a Mock Trial. • Different Types of Mock Trials. • Pre-trial Investigations. • Steps in an Inquisitorial Mock Trial. • Establishing the Facts. • Establishing the Law. • Allocation of Teams. • Analysis of Witnesses’ Statements. • Work on Roles Preparing Questions and Arguments. • Instructions for Presiding Judge, Judge’s Secretary and Court Orderly. • Conducting the Mock Trial. • Debriefing the Mock Trial. Part B of the Manual provides lesson plans and fact patterns for the three mock trials

  5. Pre-trial investigations • In criminal cases the pre-trial procedure can be divided into four phases: • 1. The role of the police • 2. The role of the investigator • 3. The role of the prosecutor • 4. The role of the investigating judge • Each of these will be briefly discussed

  6. Steps in an inquisitorial mock trial • In inquisitorial criminal mock trials the following steps are usually explained to students - although there may be local variations: • 1. The accused is seated next to the defence lawyer on the left of the judge. • 2. The prosecutor is seated to the right of the judge. • 3. The court orderly calls for silence and tells everyone to stand. • 4. The judge enters and takes the bench. • 5. The judge checks the attendance of all interested parties (accused, witnesses, prosecutor and defence lawyer), by asking for proof of identity. • 6. The judge sends the witnesses out of the court.

  7. Steps in an inquisitorial mock trial(continued) • 7. The judge opens the case. • 8. The judge asks the prosecutor to read the charge to the accused. • 9. The judge explains the accused’s rights and asks how he or she pleads. • 10. The accused pleads guilty or not guilty. • 11. The judge asks the accused whether he or she wishes to say anything. • 12. The accused says anything he or she wishes to say. • 13. The judge questions the accused. • 14. The prosecutor questions the accused. • 15. The defence lawyer questions the accused.

  8. Steps in an inquisitorial mock trial(continued) • 16. The judge requests the court orderly to call the first witness: • (a) Before questioning the judge explains that the witness has a duty to tell the truth. • (b) The judge questions the witness. • (c) The prosecutor questions the witness. • (d) The defence lawyer questions the witness. • (e) The accused questions the witness (optional). • (f) Steps (p) (i) to (v) are repeated in respect of each witness. • (g) Closing argument by the prosecutor on the merits of the case and sentence. • (h) Closing argument by the defence lawyer on the merits of the case and sentence. • (i) Closing statement by the accused on the merits of the case and sentence.

  9. Steps in an inquisitorial mock trial(continued) • (j) The judge deliberates on the verdict and sentence. • (k) The judge delivers the verdict and sentence of the court - everyone stands. • [1. In many civil law jurisdictions assessors or lay judges are used in criminal trials, and in somevictims may also be entitled to question witnesses and address the court. • 2.In inquisitorial mock trials the rules of evidence are much more relaxed than under the adversarial system because the judge has the statements of all the witnesses beforehand. • 3.The judge knows what the witnesses should say and can prepare questions in advance: questions by the judge, prosecutor and defence focus on clearing up ambiguities and contradictions to establish the reliability of the witnesses. • 4. Much of this would have been cleared up during the pre-trial phase]. • [Devised by David McQuoid-Mason with the assistance of ex-Judge Jan Hrubala of Slovakia].

  10. Establishing the Facts • In order to ensure that students understand all the facts of the case they should be given a mock trial package which includes the indictment, a summary of the facts, a summary of the law, a list of witnesses and the witnesses’ statements. • Individual students should be required to read out the indictment, the summary of substantial facts, and the individual witness’ statements on each side. • The instructor should then discuss each in turn to make sure that the students have a full understanding of the facts before proceeding to explain the relevant law.

  11. Establishing the Law • Under the inquisitorial system the criminal law is usually codified and the definitions of the different crimes and the sentences apportioned to them are to be found in the criminal code. • The focus is on whether or not the provisions of the code have been breached. • The wording of the relevant articles of the criminal code needs to be explained to the students. • The evidence necessary to be adduced by the prosecution to prove its case should be discussed with the students. • Attention must also be drawn to the evidence that can be used by the defence. • There is a conflation of the judgment on the merits of the case and the sentencing process as many codes define the crime and at the same time specify the range of the sentence that must be imposed by the court. • Students should prepare for both when presenting arguments at the beginning and end of the trial. • [Personal observations made by me while developing mock trial packages in Slovakia, Hungary and Poland].

  12. Allocation of teams • The Street law mock trial is designed to involve as many students as possible in the preparation and presentation of the mock trial. • All the participants need to understand the facts and the law that must be established by the prosecution and defence. • Participants should be divided into teams of prosecutors, defence lawyers and judges and each team must be given the necessary background to enable them to prepare their questions, arguments or judgments. • To achieve this individual participants should be chosen to read out the statements of each witness, and then all the participants should help to identify those aspects of each statement that can be used by the prosecution and defence respectively. • Participants should be asked to note them for subsequent use when preparing their questions, arguments or judgments.

  13. Allocation of teams(continued) • Under the inquisitorial system the judge plays an active role. • The judge takes the lead in asking questions and also controls the process. Therefore to design a successful Street law inquisitorial mock trial scope as many students as possible should be involved in the roles of judges. • Participants can be divided into four teams: • 1. Witnesses team • 2. Judges team • 3. Prosecution team • 4. Defence team • In a criminal case involving six witnesses (including the accused) the following tasks are involved:

  14. Work on roles preparing questions and arguments • Participants should work in their teams to prepare for the questions that each designated person will have to ask the accused or witness allocated to them for questioning. • Prosecutors and defence lawyers will also have to assist designated team members who will make statements and closing arguments. • Judges will have to prepare questions for designated witnesses and the accused, while a designated judge will also be required to give the judgement. • The presiding judge, judge’s secretary and court orderly also have to be familiar with their instructions (see below).

  15. Time frames • Strict time frames ensure the mock trial takes 1 hour: • 1. Judge checking attendance and identities, sending out the witnesses, and opening the case - 2 minutes. • 2. Judge asking the prosecutor to read charge, and explaining accused’s rights - 3 minutes. • 3. Accused’s opening statement - 2minutes. • 4. Questioning of accused and each witness by judges – 18 minutes (3 minutes x six witnesses). • 5. Questioning of each witness by prosecutors - 12 minutes (2 minutes x six witnesses). • 6. Questioning of each witness by defence lawyers – 12 minutes (2 minutes x six witnesses). • 7. Closing arguments by prosecution and defence - 6 minutes (3 minutes x two arguments). • 8. Judgement - 5 minutes.

  16. THE PUB MURDER MOCK TRIAL Lesson plan for a four hour workshop • The following agenda should be used for a four hour workshop: • Definition of a mock trial. (5 min) • Pre-trial investigation. (10 min) • Steps in a mock trial. (15 min) • Establishing the facts in the Pub Murder. (10 min) • Establishing the law applicable in the Pub Murder. (15 min) • Allocation of teams for judges, prosecution and defence, including prosecutors, defence lawyers, witnesses, and court officials. (10 min) • Analysis of witnesses’ statements. (40 min) • Work on roles: witnesses, preparation of questions and arguments.(1 hour) • Conducting the mock trial. (1 hour) • Debriefing the mock trial. (15 min)

  17. THE PUB MURDERThe facts • The Pub Murder case involves the killing of a local person in a pub by a refugee. • On 1 April 2014 StriniStrangeri, a refugee from a neighbouring country went to the very busy Peoples’ Pub with his friend, Viktor Verati at about 21h00. • The Bar Manager, Monika Musilova, had great difficulty trying to keep order. • After Strini and Viktor had been in the Pub for about half an hour, ArkanAggrovic and his friends, RatoRatinsky and TerruTantrimski, members of JCFA (the Jobs for Citizens First Association), entered the Pub. • Arkan, Rato and Terru sat down at the table next to Strini and ordered drinks . • At about 22h00 after Arkan realized that Striniand Viktor were refugees, and immediately started making remarks about Strini and the country he came from. • He said that Strini and his people were backward and should not be allowed into the Pub, and Ratoand Terru encouraged him with shouts and insults. • Arkansaid that if the Pub Manager was not prepared to throw Strini out of the Pub he would do so himself.

  18. THE PUB MURDERThe facts (continued) • Strini and Biktor tried to ignore the insults, but Arkan became more and more aggressive and noisy. • Monika told Arkan to quieten down, but he shouted at her that she was a stupid woman who did not know her job. • He said that if she knew how to run a Pub properly she would never have allowed a dog like Strini to drink in it. • At about 23h00 Arkan suddenly got up from his chair and, closely followed by Rato and Terru, moved towards Strini shouting: “If she won’t throw you out, I will!’ • As Arkan moved close to Strini he suddenly put his hand in his pocket. • Viktor cried out: “Look out Strini he has a knife!’ • Strinistood up and pulled out his own knife to defend himself. • Just as he was doing so Arkaneither stumbled and fell on top of Strini , or Strini lent forward and stabbed Arkan. • Strini’sknife stabbed Arkan in the heart and he died very soon afterwards. • A knife was later found clutched in Arkan’s hand which was still in his pocket. • Striniwas arrested by the police and charged with murder.

  19. THE PUB MURDERThe law • Article 100(1) of the Criminal Code states the following: • Anyone who intentionally and unlawfully kills another person is guilty of murder and on conviction may be sentenced to a term of imprisonment of from 10 to 25 years. • Article 100(3) of the Criminal Code states: • Notwithstanding the provisions of article 100(1) of the Criminal Code, anyone who kills another person in self-defence in order to save his or her life shall not be guilty of murder: Provided such killing of the other person was the only method by which the first person could save his or her own life.

  20. THE PUB MURDERThe law (continued) • In order to succeed with a conviction of StriniStrangeri the prosecution will have to prove beyond reasonable doubt that Strini intentionally and unlawfully killed ArkanAggrovic. • The prosecution will have to prove bothelements: • (a) Strini acted with the intention to kill at the time that Arkan was stabbed, and • (b) the stabbing was unlawful because it was not the only method he could have used to save his life. • In order for the defence to succeed they can raise a doubt in the court’s mind by showing either that Strini did not intend to kill Arkan at the time he was stabbed, or that stabbing him was the only way he could have defended himself in the circumstances. • The defence does not have to raise a doubt regarding both elements – a reasonable doubt about one is sufficient for Strini to be found not guilty.

  21. THE PUB MURDERThe indictment and evidence • The Indictment • StriniStrangeri is charged with murder and the indictment reads as follows: • StriniStrangeri is guilty of murder in that on 1 April 2014 in the People’s Pub he did intentionally and unlawfully kill ArkanAggrovic by stabbing him in the heart with a knife. • The Evidence • The prosecutor may hand in StriniStrangeri’s knife as exhibit ‘A’. The defence may request the prosecutor to hand in ArkanAggrovic’s knife as exhibit ‘B’.

  22. Accused and list of witnesses • 1. StriniStrangeri, the accused. • 2. DrRigovaRigamortiz, forensic pathologist (expert). • 3. Yuri Yankimova, investigating officer.RatoRatinsky, friend of deceased. • 4. Monika Musilova, bar manager. • 5. Viktor Verati, friend of accused.

  23. The roleplayers • Participants should be divided into four teams: • 1. Team of the accused and witnesses • 2. Team of judges • 3. Team for the prosecution • 4. Team for the defence • Judges’ registrar (time keeper) • Court orderly

  24. Accused and witness team • 1. StriniStrangeri, the accused to answer questions, and to make an opening statement on the merits of the case, and a closing statement on the merits and sentence. • 2. Dr RigovaRigamortiz, first witness who will answer questions. • 3. Yuri Yankimova, second witness who will answer questions. • 4. RatoRatinsky, third witness who will answer questions. • 5. Monika Musilova fourth witness who will answer questions. • 6. Viktor Verati, fifth witness who will answer questions.

  25. Judges’ team • 1. Judge to check the attendance of accused, witnesses, prosecutors and defence lawyers, to send the witnesses out of court and to open the case. • 2. Judge to ask the prosecutor to read the charge, and to explain to the accused his or her rights. • 3. Judge who questions StriniStrangeri, the accused. • 4. Judge who questions Dr RigovaRigamortiz, the first witness. • 5. Judge who questions Yuri Yankimova, the second witness. • 6. Judge who questions RatoRatinsky, the third witness. • 7. Judge who questions Monika Musilova, the fourth witness. • 8. Judge who questions Viktor Verati, the fifth witness. • 9. Judge who gives a judgment on the merits of the case and sentence.

  26. Prosecution team • 1. Prosecutor who questions StriniStrangeri, the accused. • 2. Prosecutor who questions Dr RigovaRigamortiz, the first witness. • 3. Prosecutor who questions Yuri Yankimova, the second witness. • 4. Prosecutor who questions RatoRatinsky, the third witness. • 5. Prosecutor who questions Monika Musilova, the fourth witness. • 6. Prosecutor who questions Viktor Verati, the fifth witness. • 7. Prosecutor who makes a closing argument on the merits and sentence.

  27. Defence team • 1. Defence lawyer who questions StriniStrangeri, the accused. • 2. Defence lawyer who questions Dr RegovaRigamortiz, State pathologist, the first witness. • 3. Defence lawyer who questions Yuri Yankimova, the second witness. • 4. Defence lawyer who questions RatoRatinsky, the third witness. • 5. Defence lawyer who questions Monika Musilova, the fourth witness. • 6. Defence lawyer who questions Viktor Verati, the fifth witness. • 7. Defence lawyer who makes a closing argument on the merits and sentence.

  28. Court officials • 1. Court orderly to keep order. • 2. Judge’s secretary to keep time.

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