Responses to questions posed. This update memorandum will be circulated as additional questions are posed and answered.

1. Question posed: Is the Statement of the Case an official document and may it be used in the mock trial? No, it is not an official part of the mock trial materials. Rely solely on the affidavits and exhibits in forming your case.

2. Question posed: Is the 3^rd Street Gate the same as the walk-in gate? Yes.

Updated 3. Question posed: Stipulation 1 says, "The event being prosecuted occurred on the evening of September 28 and the early morning of September 29." Does this mean the gravestone damage had to take place during the night? Or does it refer to Skeeter's sighting of three people? Both. If it was vandalism, the damages occurred after dark on the night of the 28^th, when Skeeter can testify to seeing the three kids in the cemetery students in question.

4. Question posed: The Daylight Savings Time is throwing us off. When Skeeter says 2:00 a.m. is this after taking into consideration Daylight Savings? Yes. See Stipulation 1. The case takes place on Friday afternoon, September 28 and the early morning hours of September 29.

5. Question posed: Exhibit A states that students (plural) are admitting to some damage. Who admits this? Obviously Shelby Cullom admits; also see Dowling affidavit, paragraph 8, which indicates that some damage may have occurred. Rely on the witness affidavits.

6. Question posed: We understand that only 10 students can be on a team. Does each student have to assume the same role in each trial (i.e. witness for both prosecution and defense cases) or can we assign the students to perform whatever roles from one trial to the next. Students may play different roles in different trials, but may not change roles within any given trial.

7. Question posed: Are the defense attorneys expected to defend both defendants or can the defense team just pick one of the two defendants to represent at the mock trial? If Dowling's statement is adjusted to admit being in the cemetery at night, it does not seem possible to properly represent both. Yes, you must defend both. See correction in Question 9, below.

8. Question posed: Defendants were charged with the lesser included offense of criminal defacement of property (pp 3-4 of the materials). Yet no pattern jury instruction was provided for that charge. Instead a pattern jury instruction for criminal trespass to a cemetery is provided (pp 33-34 of the materials) which is not charged in the information. Again, if there was some mistake, and the materials really intended to charge defendants with trespass, that needs to be clarified and the information modified, since again, that has tremendous impact on the preparation of both the prosecution and defense. Problem materials have been amended to address this issue, adding criminal trespass to the Information, and adding Criminal Defacement of Property to the jury instructions. See pages 4 and 34.

9. Question posed: Page 2 of the statement of the case (2^nd to last paragraph) and Pat Dowling's statement, page 15, paragraph 1, both say that defendants were at the cemetery the NIGHT in question. However, the rest of Dowling's statement directly contradicts that position in paragraphs 7, 9, and 10 where Dowling expressly states he was only in the cemetery in the afternoon and left way before dark and accuses Cullom of fabricating their presence there at night. It seems to me that it cannot be left both ways in Dowling's statement. Problem has been amended to address this conflict, making Dowling's statement consistent throughout in his/her denial of being on the cemetery property after hours. See pages 2 and 15.

10. We do not have a copy of Shelby Cullom's plea agreement, and we don't know exactly what he/she is actually pleading guilty to. As a minor, Cullom's plea agreement would not be public. You will need to refer solely to the witness affidavit.

11. We are not clear about Exhibit A and the indications of admission. We are confused as to whether this exhibit is intended to give us additional information about admissions by the students or if it's just intended to give information about damage amounts. Exhibit A is provided by the cemetery personnel and their listing breakdown is their own and may not accurately reflect what is stated in witness affidavits or forensics report (Exhibit B). This exhibit should be used only for purposes of confirming amounts of damages. Exhibit A has been changed. See attached.

12. We are really confused about paragraph 3 of the 12/13/05 Clarification Memorandum. The first part of the clarification says that "[d]amages occurred after dark on the night of the 28th ..." but it doesn't appear as though any witness (or anything else in the case) says that anyone was at the cemetery at night prior to midnight. If that is true, then how can the damage occur after dark on the night of the 28th? Along the same line, paragraph 3 says "[d]amages occurred after dark on the night of the 28th, when Skeeter can testify to seeing the three students in question." Yet, Skeeter seems to be saying that he/she didn't see the three people until sometime after midnight, which -- again -- would mean the 29th. Can you help us understand paragraph 3 of the 12/13/05 clarification? See the Information. All charges are for damages that were sustained on the evening of the 28^th and/or the early morning hours of the 29^th. This is a semantics issue.

13. Can we assume that the dates in the case correspond to the dates of the acutal calendar for 2005, as well as the actual astronomical chart for 2005 marking the actual time of sunset? Yes. Therefore, the moon was in its last quarter. All weather and lighting issues are strictly governed by the witness affidavits.

14. Is Cullum's plea agreement binding in this case even if Cullum is not called as a witness? Yes.

15. How do you pronounce DuBois? Use the French pronounciation: "Doo-Bwah"

Updated 16. One of my students wanted to know where Pat was after being in the cemetery that afternoon. His affidavit does not say where he went. Did he go to Jesse's house or did he go straight home? If none of the affidavits indicate where Pat or anyone else was during any specific time or gap in time, the students should NOT try to create a fact to fit their arguments; however, students may use other information contained in the problem materials consistent with Rule I.B., pages 7-8 of the Rules Handbook.

17. On what days of the week did this event occur? Even though we know this isn't accurate in reality, for purposes of this trial, the case takes place on Friday afternoon, Friday evening and the early morning hours of Saturday morning.

18. Exhibit B states that "Officer Reese Mathewson may testify as he was the arresting officer..." Does this mean that Officer Mathewson is allowed to testify about Exhibit B without facing foundation or hearsay objections? Exhibit B is Officer Mathewson's report. As such, the text is not hearsay. See page 22 on proper foundation.

18. Part B. I am confused by your number 18 in the update memo. Are you telling

everyone to accept Reece as a fingerprint/footprint expert who took the prints and studied them and then concluded they matched? Or are we to assume he was given those "conclusions" from some other expert and wrote those conclusions in his report? Officer Mathewson, as investigating officer, was present and assisted in accumulating and documenting evidence at the cemetery. Exhibit B is meant to reflect a forensics report by an expert, that has been accurately excerpted into Officer Mathewson's official report. We are adding a NEW STIPULATION that if Officer Mathewson is called to testify, he/she is qualified as an expert in the field of fingerprint and shoe print analysis and may testify as to the forensics report with a reasonable degree of scientific certainty.

19. Is there any stipulation as to the accuracy of the Exhibits? Page 8, Tournament Rules, Rule I.B. states, in part: "All affidavits and exhibits are authentic and may not be disputed at trial, signed or unsigned, dated or undated."

20. In Officer Mathewson's affidavit it states that the officer was present during some of the questioning of the suspects and that the officer personally arrested two of the suspects. It never says the suspects were Mirandized at anytime, that their parents were notified or present during questioning or when the search warrant was served or that the boys were represented by counsel when they gave statements to the police. If there is no evidence that the boys were Mirandized, represented by counsel or that the parents were present, could that be a problem?

21. Pat mentions that he was "caught shoplifting" and already has "a bit of a record"; is that an official record (i.e. arrest, conviction, etc.) or an unofficial incident where the store owner caught him and did not call the police or press charges? In that same regard, since he

is a juvenile, can this incident be brought up at trial? Please see Jesse DuBois statement, paragraph 3, which states that no charges were filed against Pat. Consider the "record" more a "reputation."

22. May we introduce Exhibit B without calling Officer Mathewson? No.

23. Is this a bench trial? The Rules Handbook states that this year's mock trial case will be handled as a bench trial. You do not have to concern yourself with the additional steps involved in a jury trial: voir dire (jury selection) and jury instructions (when the judge explains the law to the jury). Please address the presiding judge when addressing remarks to the court.

24. As witness Reece Mathewson may testify as to forensics, may he/she also testify as to damage amounts as contained in Exhibit A? Exhibit A is provided by the cemetery, and its admissibility is a question of strategy. Per stipulation 5, parties have agreed that damages exceed $500.

25. Can Officer Mathewson testify as to the time the fingerprints were made on the cemetery property. If there is no clear indication of a time that the officer can testify to without creating additional facts, then the answer is no.

26. Did Skeeter help prepare Exhibit A? No. Presume that Skeeter took no part in preparing this document.

27. What is the purpose of Exhibit A? Exhibit A is included to show cost of the damages and the presence of fingerprints on the markers in question in the cemetery.

28. What is next to the cemetery? Is it up for negotiation? Nope. The materials are silent on this and the kids should be too.

29. Given the "New #26" - it poses the question, "who CAN testify to the damages in Exhibit A?" If Skeeter Ferris was not involved in the creation of the document, and if there is no stipulation as to it, isn't it easily kept out as hearsay, since no other witness can testify to it? Or does the short line in Mathewson's affadavit that the police helped "ascertain" the damage means he can do that too? Not every exhibit we provide is necessarily germane. See stipulation 5 on damages.

New 31. Rule B.4 on page 24 says that it's not appropriate to cite case law or statutes. Are the statutes referred to here the ones on which the defendants are being tried? Is it a rules violation to cite? As to citing case law/statutes, the rule referenced, B4, applies to closing arguments. Yes, the statutes referred to would apply to this year's materials. Is it a violation to cite the statute? Depends on how you are using.

Please note: The mock trial problem has been amended to reflect these corrections and changes. Updated version dated December 14, 2005 may be found at http://www.isba.org/Sections/2006mocktrialinfo.html

#32 Dr. Gershom Jayne (damaged, fingerprints found)

REPAIR ESTIMATE - stone off base, base shifted requiring jacking and reinforcement of footings. Repair includes stone masonry work to refit after reinforcing footings.

REPAIR ESTIMATE - stone off base, base shifted requiring jacking and reinforcement of footings. Repair includes stone masonry work to refit after reinforcing footings.

Estimate - $775

REPAIR ESTIMATE - hand wash of entire monument to remove excessive mud, twigs, sod, etc. from seat area.

Estimate - $200

#11 Nellie Grant Jones (smeared with mud, scratched)

hand wash of entire monument to remove excessive mud, twigs, sod, etc. from seat area.

Estimate - $100

# 45 James Conkling (smeared with mud, scratched) hand wash of entire monument to remove excessive mud, twigs, sod, etc. from seat area.

Estimate - $100

Monument A, Unreadable due to age (smeared with mud) hand wash of entire monument to remove excessive mud, twigs, sod, etc. from seat area.

Estimate - $200

Monument B, Unreadable due to age (smeared with mud) hand wash of entire monument to remove excessive mud, twigs, sod, etc. from seat area.

Estimate - $200

Monument C, Unreadable due to age (smeared with mud) hand wash of entire monument to remove excessive mud, twigs, sod, etc. from seat area.

Estimate - $200

#57 Nicholas Vachel Lindsay (students deny--sunken on base, leaning)

Estimate to re-seat and secure - $300

#58 Moses Broadwell (students deny--sunken on base, leaning)

Estimate to re-seat and secure - $500