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Thurgood Marshall Mock Trial Competition 2013-2014 Responses to Competitor Questions The purpose of the following responses is to provide clarification to the competitors regarding matters that are unclear in the problem materials. This includes clarifying certain procedural matters that occur as instances of trial and corrections and/or clarifications to substantive issues of fact and law in the problem materials. However, where competitors have raised questions that address matters of strategy, matters of law that competitors must research for themselves, or, otherwise, are already explained by the competition rules, the Mock Trial Review Board (the “Board”) will not provide a substantive response. Respectfully, TMMTC Review Board Corrections/Amendments to Problem 1. Which weapon is the .44 caliber firearm and which is the .45 caliber firearm. Answer: The silver and black firearm is a .45 caliber pistol. Exhibit P has been modified to read that Sherrod purchased a .45 caliber pistol from Emerald’s Pawn Shop.

2. Did the interview with Stacey Mills occur on April 7, 2013? Answer: The interview with Stacey Mills occurs on April 7, 2013. The detective’s notes regarding Mills coming in to speak about an event taking place “the night before” are in error. Mills came in to speak about a crime that occurred a “week before.” The investigator’s notes have been modified.

3. Statute section 9.1-142(6) on page 59 reads “Institute proceedings to…any lawful act enumerated in…” Should it read “unlawful”? Answer: Yes. This has been modified.

4. In Exhibit A, assuming “DOC” means “date of conviction”, the DOC is 9/12/06 but the date under the judge’s signature is 4 years later in July 2010. Is that accurate? Answer: No. Exhibit A has been modified to reflect accurate dates and names.


5. On pg. 5, Det. Davis refers to the school as Fontaine Junior High School but on pg. 25 he calls it Fontaine High School. Also, on pg. 15, Cal Ellis calls it Fontaine High School and on pg. 18 Sherrod calls it Fontaine High School. Are they one in the same? Answer: No. The school is Fontaine High School. The investigator’s notes have been modified.

6. Page 17, lines 8-9 Ellis describes his location by saying, “We stood between the back of our vehicle and the front of ours.” Is this in error? Answer: This line should read “We stood between the back of our vehicle and the front of theirs.” This has been modified. 7. The statement that exists in Count Two which says “[i]f you find that the State has failed to prove either crime, then you should find the Defendant not guilty” doesn’t exist in Count One. Is that an error? Answer: That statement has been added to the jury instructions for Count One. 8. There is a statement as to the burden on the defense (i.e. “preponderance of the evidence” language and definition) for the affirmative defense of Defense of Necessity but the same instruction is not included in the Defense of Others. Answer: The burden of proof has been added to the Defense of Others jury instruction. 9. In Count Five on page 77, there are definitions given for “knowingly” and “intentionally” but those words are not listed in the elements given above the definitions. It simply says “[t]hat the defendant possessed a firearm”. Should it read “that the defendant knowingly and intentionally possessed a firearm”? Answer: The elements have been modified to reflect that the State must prove the Defendant knowingly and intentionally possessed a firearm. 10. The portions regarding “Knowing and Intentional Possession – Definition” and “Controlled Substance – Knowledge of Character” are listed in Count One on page 72 but not in Count Two on page 73 where knowingly and intentionally possessing marijuana is listed as a level of the offense. Should those two definitions in Count One be included for Count Two as well? Answer: The definitions of “Knowing and Intentional Possession” and “Knowledge and Character” have been added to Count Two. 11. Pg. 77, last paragraph The description of the crime says that the defendant “knowingly and intentionally attempted to purchase, and consequently possess, a firearm.” Therefore, is attempting to purchase the firearm a required element of Count Five? Answer: No. That language has been removed from Count Five. 12. Should the text message stamped 7:39 AM read 7:39 PM?


Answer: Yes. Procedural Questions 1. Is the defense team allowed to change witnesses before round based on the witnesses the state is calling? Answer: The Defense may adjust its witnesses based upon whether the State chooses to Nolle Pros any charges. 2. Is Angel’s citizen complaint supposed to be marked as an exhibit? Answer: This document is not pre-marked. All other pre-marked exhibits are marked for identification purposes and can be marked or re-marked as necessary and appropriate. 3. Special Instruction #6 states, “aside from the Defendant, all individuals that are included or mentioned in the facts, but not listed as potential witnesses, are unavailable to testify at trial, pursuant to FRE 804.” Since each party may only call two of their three permitted witnesses, is the third witness, who does not testify, considered an unavailable witness under FRE 804? Answer: Please re-read Special Instruction #6. 4. Since motions to suppress are considered motions in limine pursuant to the competition rules, can motions to suppress be brought only at the beginning of trial, or may they be renewed during trial? Answer: The Mock Trial Review Board chooses not to answer this question as it finds sufficient information in the problem to address this issue. 5. Special Instruction #9 states that the State may Nolle Pros charges prior to trial without consent of the Court. May the State also amend charges to charge the lesser included instead of the crime currently charged without consent of the Court? Answer: Yes. Substantive Factual and Legal Questions 1. Explain what it means when exhibits A, L, M, N, and P are admitted. Answer: “Admitted” means admitted as evidence in the trial. Where the identity and meaning of the exhibits are not self-explanatory, the parties may argue their weight and meaning based on a witness’s identification and explanation of the particular exhibit insofar as those identifications and explanations are reasonable inferences from the facts in the case.

2. Is the gun a Revolver or “reveler” as the fact pattern states? If the gun is in fact a “reveler” what is that? Answer: “Reveler” is a fictitious brand name for the firearm.

3. Are the inconsistencies in Mills’ statement regarding “Juan” and “Mark” in error?


Answer: Stacy Mills’ statements purposefully contain the names “Juan” and “Mark.”

4. On page five of the facts at the end of the last paragraph, the officer said that he said stop and then for a second "I did." My question is did he mean "I" or Monroe. Answer: The Mock Trial Review Board chooses not to answer this question as it finds sufficient information in the problem to address this issue.

5. Is the duplicate message on the top of 39 an error? Answer: No.

6. Was Stacey Mill’s cocaine possession conviction a felony? Answer: The Mock Trial Review Board chooses not to answer this question as it finds sufficient information in the problem to address this issue.

7. Which person is sending the green text messages in Exhibit K? Answer: The Mock Trial Review Board chooses not to answer this question as it finds sufficient information in the problem to address this issue. 8. On page 10, none of the times specify whether they are AM or PM. We’ve made the assumption based on the shift Officer Alexis was working but just wanted clarification if possible. Answer: The Mock Trial Review Board chooses not to answer this question as it finds sufficient information in the problem to address this issue. 9. In Exhibit C (on pg. 28), there is an addendum to Officer Alexis’ Incident Report that is dated June 12 but there is no other occurrence on that date that would show why Officer Alexis would have made the addendum on that date. Is that date correct? Answer: The date of the addendum is correct. 10. Are exhibits F(1), F(2), H, I, and J photographs of the objects or the actual objects? Answer: They are pictures of the objects. 11. The stipulations indicate that a police officer, (Detective Davis) may testify as an expert regarding indicia of intent to distribute narcotics based o their training and experience as a law enforcement officer. However, it is possible for Detective Davis to serve as an expert in regards to serious assaults or any other matters in which he has experience in? Answer: The Mock Trial Review Board chooses not to answer this question as it finds sufficient information in the problem to address this issue.


12. Can any of the exhibits be redacted? For example could we redact Exhibit L, the drug forensic analysis, to exclude any mention of the crack cocaine? Answer: The Mock Trial Review Board chooses not to answer this question as it finds sufficient information in the problem to address this issue. 13. Stipulation of Fact #1 says that physical evidence from the crime scene “may” be admitted through Officer Alexis, Ellis and Detective Davis. Does use of the word “may,” instead of “shall,” infer that this privilege is not exclusively reserved to those three witnesses? Answer: The Mock Trial Review Board chooses not to answer this question as it finds sufficient information in the problem to address this issue. 14. Can we bring in the incident report as evidence? Answer: The Mock Trial Review Board chooses not to answer this question as it finds sufficient information in the problem to address this issue. 15. Does Officer Alex have a policy as private security Officer? She did not tell Monroe Miranda rights before talking to him. I wanted to see whether she has an obligation to do that or not since she may not have that obligation as private security officer. Answer: The Mock Trial Review Board chooses not to answer this question as it finds sufficient information in the problem to address this issue. 16. On Exhibits L and M, the report lists Devon as the suspect. Does this mean it is admitted that these are Devon’s drugs/guns? Or that Devon is being charged with owning them? Answer: The Mock Trial Review Board chooses not to answer this question as it finds sufficient information in the problem to address this issue. 17. Stipulated fact # 2 states evidence is “pre-authenticated." What does that mean? Does it mean that the foundation requirements have been stipulated to and are not contested by either side; or does it mean it is admissible, should either party wish to enter it, without objection? Answer: These documents are true and accurate copies of what they purport to be on their face. Competitors may choose to lay additional foundation before offering them for admission through further testimony where they deem such foundation necessary and appropriate. 18. What level crimes are on the indictment? What are the possible punishments? This information should be known if you want to dismiss a count or concede a count. Answer: Please review the law of the case. Otherwise, the Mock Trial Review Board chooses not to answer this question as it finds sufficient information in the problem to address this issue. 19. The fact pattern has an exhibit which indicates DNA was found on the gun. What biological material produced the DNA (blood/hair/saliva/etc)? Answer: The Mock Trial Review Board chooses not to answer this question as it finds sufficient information in the problem to address this issue. 20. Were any of the other witnesses arrested in regards to their conduct in this case? Was the individual who allegedly purchased the drugs arrested? Was the complaining witness arrested?


Answer: The Mock Trial Review Board chooses not to answer this question as it finds sufficient information in the problem to address this issue. 21. On p. 7, Devon was charged with the intent to distribute marijuana. Was this based on what was found in the paper bag in the car? Or the amount that was found on Cameron? or both? Answer: The Mock Trial Review Board chooses not to answer this question as it finds sufficient information in the problem to address this issue. 22. What is Exhibit Q1 a map of? The school does not appear to be on this since Pacer Street is not on the map. Answer: The Mock Trial Review Board chooses not to answer this question as it finds sufficient information in the problem to address this issue. 23. What is Exhibit Q2 a street view of? Where the alleged fight occurred? Where the arrest occurred? Answer: The Mock Trial Review Board chooses not to answer this question as it finds sufficient information in the problem to address this issue. 24. In Exhibit J, are these the bags of marijuana found in the paper bag? Answer: The Mock Trial Review Board chooses not to answer this question as it finds sufficient information in the problem to address this issue. 25. What is Exhibit R? Is this in the trunk? Answer: The Mock Trial Review Board chooses not to answer this question as it finds sufficient information in the problem to address this issue.

26. In the Jury Instructions for Count One on page 72, there is no definition for “distribute” or “distribution.” Answer: The Mock Trial Review Board chooses not to answer this question as it finds sufficient information in the problem to address this issue. 27. Statute 18.2-248 on pg. 61 seems to cover controlled substances as well as imitation controlled substances. However, the factors that are given to determine intent in subsection B seem to only apply to imitation controlled substances. Is that correct? Answer: The Mock Trial Review Board chooses not to answer this question as it finds sufficient information in the problem to address this issue. 28. Count Four requires the defendant to have knowingly used a firearm but there is no definition for knowingly in this Count. Answer: The Mock Trial Review Board chooses not to answer this question as it finds sufficient information in the problem to address this issue.

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