Lawyers Journal

The Fourth R: Why Mock Trial is the new civics

Toward the end of Sebastian Junger's A Death in Belmont, the author considers the value of reviewing an old murder conviction when the defendant, alternative suspect and (obviously) the victim are all dead. Junger concludes that ensuring that a capital murder trial was conducted skillfully is critical not only to the preservation of the integrity of the legal system, but also to the vitality of the democratic process. A trial, he notes,

"is just a microcosm of the entire political system." Jurors are the final arbiters of fact, just as voters ought to be the final arbiters of social policy. Junger explains:

The ability of citizens to scrutinize the theories insisted on by their government is their only protection against abuse of power and, ultimately, against tyranny. If ordinary citizens can't coolly and rationally evaluate a prosecutor's summation in a criminal trial, they won't have a chance at calling to task a deceitful government.

Junger has crystallized the need for quality law-related education. Good jurors are good citizens. Trials whose outcomes inspire confidence in our legal institutions are the product of citizens who, when not sitting in the jury box, are judging their leaders, coolly and rationally, and calling them to task when they are deceitful. This is the recipe for successful social institutions; trials that are done well are those heard by citizens who similarly insist on logic, proof and justice from their government.

The ability of ordinary citizens to evaluate a legal argument is not innate, and it is waning. Successful social institutions are the result of an investment in ordinary citizens, beginning at a time when they are not full citizens at all. If children are stripped of the opportunity '€” and responsibility '€” to learn how to be effective jurors, the quality of government is eventually diminished.

Indeed, the purpose for which the Department of Education was created was "to provide a public education system of sufficient quality to extend to all children... the opportunity to reach their full potential and to lead lives as participants in the political and social life of the commonwealth and as contributors to its economy." M.G.L. c. 69, § 1 (emphasis added). The "three R's" are valuable skills, ones that will allow children to contribute to the economy. But reasoning is what prepares high school graduates to be citizens. To the extent that public schools exist in part to produce better jurors and voters, "reasoning" must be the fourth R.

A few hundred Massachusetts high school students, and thousands nationwide, have elected to make legal reasoning a part of their education. They do so not out of any sense of civic obligation, nor because the subject will appear on the MCAS (it won't). In fact, in most cases, the students choose to study legal reasoning after school hours, in the evenings and on weekends. These students participate in the MBA's Mock Trial competition, and they do so because it's fun. Incredibly fun. The most fun you can have while learning about precedents, burdens of proof and the rules of evidence.

However, the fact that Mock Trial is an extra-curricular activity does not diminish its importance. Mock Trial is the new civics. All public education should include it. The universal benefits of participation in this program are myriad. These benefits are reflected in countless testimonials from participants and their parents. Students gain public speaking ability and confidence, learn the importance of teamwork, and, most importantly, develop their reasoning abilities.

One of the many illustrations of how competing in Mock Trial enhances reasoning skills essential to citizenship is the art of making objections '€” the ability to call to task a "deceitful" (or at least improper) question. Objections must be done quickly, convincingly and courageously. "Courageously" because objecting requires the courage to interrupt the flow of questions and answers, to make a spectacle of yourself by standing when you are supposed to sit, and to speak loudly enough so that the judge will permit you to be heard before another word is uttered. To combat the uncertainty and tenuousness with which my high school classmates objected, our attorney coach trained us with the fierceness of a drill sergeant: "On your feet! Object!"

Consider the rapid reasoning that must take place when an attorney considers whether to object to a question:

1. Does that question violate a rule of evidence?

2. If it is improper, should I object? What effect will this testimony have?

3. If I believe the testimony is harmless right now, is there nevertheless a way it can hurt me later? Why is the attorney asking this question? Is there something I'm missing here?

4. If the question is not technically improper, should I object to it anyway, to make a point? Should I use this opportunity to argue that this testimony should not be allowed, and that, if the law permits it, the law is unfair?

Processing these questions quickly must be practiced until it is automatic. If, after considering all of these factors, an attorney concludes that an objection should be raised, she has only a split second in which to stand up and speak before the opportunity is lost. "On your feet! Object!"

The real-world significance of this ability is profound. What questions should ordinary citizens raise reflexively when evaluating the theories set forth in a newspaper article, a political speech, an advertisement, a referendum, a cable news show, a declaration of war or a government program necessary for their protection? "Is it legal? What effect will it have, both short- and long-term? Is there a hidden agenda? Is it just? Should I speak out?" Mock Trial is the vaccine against the civil infection Junger fears; it prepares students to call to task a deceitful government. What should ordinary citizens do when they coolly and rationally evaluate a proposal and find it illogical, unsupported or unjust? What would we have them do?

"On your feet! Object!"

Joshua A. McGuire is an assistant attorney general for the Commonwealth of Massachusetts; this article is solely his work and does not necessarily reflect the views or opinions of the Massachusetts Attorney General's Office. Since 1988, McGuire has participated in the MBA's Mock Trial Program as a student, teacher-coach, attorney-coach, judge and member of the MBA's Mock Trial Committee.

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