The 2015 FLORIDA HIGH SCHOOL MOCK TRIAL Official Competition Packet HARPER SANDERS v. EVERGLADE COMPUTERS, INC. & CHARTECH TECH SERVICES, INC. Version 1.3 December 11, 2014 Adapted with permission from the Iowa State Bar Association Center for Law & Civic Education Original case materials developed by Davis, Brown, Koehn, Shors & Roberts, PC
Special thanks to Jeffrey Hammer of Alvarez Winthrop Thompson & Storey, P.A. and The Florida Bar Law Related Education Committee for their contributions to the development of this year’s case materials. Permission to reprint the packet is granted for educational use only. Any relationship of any character to an actual person, either living or dead, is completely coincidental and unintended. With funding from The Florida Bar Foundation
The Florida Law Related Education Association, Inc. 2930 Kerry Forest Parkway, Suite 202 Tallahassee, Florida 32309 Office (850) 386-8223 ▪ Fax (850) 386-8292 E-mail:
[email protected] ▪ Web site: http://www.flrea.org
TABLE OF CONTENTS I.
Trial Overview ......................................................................................................5
II.
Code of Ethical Conduct .......................................................................................6
III.
2015 Mock Trial Case A.
Complaint ........................................................................................................................... 7
B.
Stipulations ....................................................................................................................... 13
C.
Witness, Exhibit Lists ....................................................................................................... 14
D.
Witness Affidavits For the Plaintiff 1. Harper Sanders .......................................................................................................... 15 2. Mikey Blair ............................................................................................................... 21 3. Sydney Adams ........................................................................................................... 27 For the Defense 1. Hayden O’Brien ......................................................................................................... 33 2. Reese Charrington ...................................................................................................... 39 3. Morgan Parsons .......................................................................................................... 45
E.
Exhibits 1. A: Palm County High School One2One Program Information .................................. 52 2. B: Computer Lease Agreement .................................................................................. 54 3. C: One2One Program Information Flyer.................................................................... 57 4. D: Everglade Monitoring Notice Insert to Information Flyer .................................... 58 5. E: Interoffice E-mail .................................................................................................. 59 6. F: Screen Shot of eChat Conversation ....................................................................... 60 7. G: Webcam Photo ...................................................................................................... 61 8. H: Notification of Lost Computer Form..................................................................... 62 9. I: E-mail Thread ......................................................................................................... 63 10. J: E-mail between Sydney Adam and Reese Charrington .......................................... 65
F. Relevant Case Law ................................................................................................................... 66 G. Jury Instructions ……………………………………………………………………………. 69
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IV.
Rules of the State Competition Rule I: Team Composition/Presentation ...................................................................71 Rule II: The Case........................................................................................................71 Rule III: Trial Presentation ..........................................................................................72 Rule IV: Student Attorneys..........................................................................................73 Rule V: Swearing of Witnesses ..................................................................................73 Rule VI: Case Materials ...............................................................................................73 Rule VII: Trial Communication ....................................................................................74 Rule VIII: Trial Start Time .............................................................................................74 Rule IX: Conduct/Attire...............................................................................................74 Rule X: Videotaping/Photography .............................................................................74 Rule XI: Witnesses ......................................................................................................74 Rule XII: Jury Trial ......................................................................................................74 Rule XIII: Viewing a Trial .............................................................................................74 Rule XIV: Decisions ......................................................................................................75 Rule XV: Time Limits ...................................................................................................75 Rule XVI: Judging ..........................................................................................................76 Rule XVII: Dispute Settlement .......................................................................................77 Rule XVIII: Reporting a Rules Violation Outside the Bar ..............................................77 Rule XIX: Score Sheets/Ballot .......................................................................................78 Rule XX: State Competition Power Matching/Seeding Model ....................................78 Rule XXI: Completion of Score Sheet ..........................................................................79 Rule XXII: State Competition Team Advancement ........................................................79 Rule XXIII: Effect of a Bye/Default .................................................................................79 Rule XXIV: Eligibility......................................................................................................79 Rule XXV: State Competition Awards ............................................................................80 Rule XXVI: Interpretation of State Competition Rules ....................................................80 Rule XXVII:Circuit Competition ......................................................................................80
V.
Simplified Rules of Evidence and Procedure A. B. C. D.
Witness Examination/Questioning.........................................................................81 Objections ..............................................................................................................85 Trial Motions .........................................................................................................91 Attorney Demeanor ................................................................................................91
VI.
Guidelines for Teacher and Attorney Coaches .................................................92
VII.
Guidelines for Judges A.
Score Sheet/Ballot ..................................................................................................94
B.
Explanation of Ratings Used on Score Sheet ........................................................95
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VIII.
Ballots and Forms A. Presiding Judge Ballot .................................................................................................96 B. Most Effective Attorney Award Ballot ........................................................................97 C. Most Effective Witness Award Ballot .........................................................................98 D. Legal Professionalism Award Ballot ...........................................................................99 E. Complaint Form .........................................................................................................100 F. Team Dispute Form ...................................................................................................101 G. Team Roster Form .....................................................................................................102
IX.
Professionalism ...................................................................................................103
X.
Oath of Admission to The Florida Bar ............................................................104
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TRIAL OVERVIEW I.
The presiding judge will ask each side if they are ready for trial. Team rosters/roles should be presented to the judges.
II.
Presiding judge announces that all witnesses are assumed to be sworn.
III.
Opening Statements - no objections allowed; however, after each opening has concluded, the opposing counsel may raise his/her hand to be recognized and state that if they could have objected they would have objected to. The presiding judge does not need to rule on this. No rebuttals allowed.
IV. Cases presented. See Rule XV for the trial sequence and time limitations. V.
Closing Statements - no objections allowed; however, after each closing statement has concluded, the opposing counsel may raise his/her hand to be recognized and state that if they could have objected - they would have objected to...The presiding judge does not need to rule on this. An optional rebuttal (up to 1 minute) reserved in advance will be permitted for the Plaintiff.
VI. No jury instructions need to be read at the conclusion of the trial. Judges should complete score sheets before debriefing. This is crucial and ensures completed score sheets. VII. If a material rules violation is entered, scoring judges should exit the courtroom but stay in the vicinity. The presiding judge will follow the rules for this type of dispute. Scoring judges will return to the courtroom to determine if the presiding judge feels the dispute may be considered in scoring. Specific forms are needed. See Rule XVII - DISPUTE SETTLEMENT. VIII. Critique (One team exits the courtroom during the critiques). JUDGES DO NOT ANNOUNCE SCORES OR PERFORMANCE DECISIONS! IX. ALL DECISIONS OF THE JUDGES ARE FINAL. Debrief/Critique ONLY.
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CODE OF ETHICAL CONDUCT The purpose of the Florida High School Mock Trial Competition is to stimulate and encourage a deeper understanding and appreciation of the American legal system by providing students the opportunity to participate actively in the legal process. The education of young people is the primary goal of the mock trial program. Healthy competition helps to achieve this goal. Other important objectives include improving proficiency in speaking; listening, reading, and reasoning skills; promoting effective communication and cooperation between the educational and legal communities; providing an opportunity to compete in an academic setting; and promoting tolerance, professionalism, and cooperation among young people of diverse interests and abilities. As a means of diligent application of the Florida High School Mock Trial Competition's Rules of the Competition, the Mock Trial Advisory/Policy Committee has adopted the following Code of Ethical Conduct for all participants. 1. Team members promise to compete with the highest standards of ethics, showing respect for their fellow team members, opponents, judges, evaluators, attorney coaches, teacher coaches, and mock trial personnel. All competitors will focus on accepting defeat and success with dignity and restraint. Trials will be conducted honestly, fairly, and with the utmost civility. Members will avoid all tactics they know are wrong or in violation of the rules, including the use of unfair extrapolations. Members will not willfully violate the rules of the competition in spirit or in practice. 2. Teacher coaches agree to focus attention on the educational value of the Mock Trial Competition. They shall discourage willful violations of the rules. Teachers will instruct students as to proper procedure and decorum and will assist their students in understanding and abiding by the competition's rules and this Code of Ethical Conduct. 3. Attorney coaches agree to uphold the highest standards of the legal profession and will zealously encourage fair play. They will promote conduct and decorum in accordance with the competition's rules and this Code of Ethical Conduct. Attorney coaches are reminded that they are in a position of authority and thus serve as positive role models for the students. 4. All participants (including observers) are bound by all sections of this code and agree to abide by the provisions. Teams are responsible for insuring that all observers are aware of the code. Students, teacher coaches, and attorney coaches will be required to sign a copy of this code. This signature will serve as evidence of knowledge and agreement to the provisions of the code. Teams will receive scores on ethical conduct during each round. Staff and Mock Trial Advisory Committee members agree to uphold the rules and procedures of the Florida High School Mock Trial Competition while promoting ethical conduct and the educational values of the program.
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IN THE CIRCUIT COURT OF THE TWENTY-FIRST JUDICIAL CIRCUIT IN AND FOR PALM COUNTY, FLORIDA
Harper Sanders
) ) ) ) ) ) ) ) )
Plaintiff, vs. EVERGLADE COMPUTERS, INC. and CHARTECH TECH SERVICES, INC. Defendants.
CIVIL ACTION 2015-CA-1234
COMPLAINT AND DEMAND FOR JURY TRIAL Comes now the Plaintiff, Harper Sanders, and sues the Defendants, Everglade Computers, Inc., and CharTech Tech Services, Inc., and alleges as follows: 1. That the Plaintiff, Harper Sanders (“Plaintiff”), is currently a high school student attending Palm County High School and is a resident of Palm County of the State of Florida. Palm County High School is part of the Palm County School District. 2. That the Defendants, Everglade Computers, Inc. (“Everglade”) and CharTech Tech Services, Inc. (“CharTech”), are legal corporations incorporated within the State of Florida with their principal place of business at 1984 2nd St., Ingram, Florida 50932. 3. That during the fall of 2013, the Defendants implemented a computer laptop program and issued a laptop computer with web camera (“webcam”) to the Plaintiff. 4.
That unbeknownst to the Plaintiff, and without her/his permission or consent, Defendants, through their indiscriminant use of and ability to remotely activate the webcams, used the computer webcams and other means, including but not limited to password and account access to spy on the personal activities of the Plaintiff at her/his home thereby invading and defeating Plaintiff’s reasonable rights of privacy.
5. That the Defendants never disclosed to the Plaintiff that Everglade and CharTech had the ability to remotely activate the webcams and capture images from any location including the Plaintiff’s personal residence. 6. That as a direct result of the spying, the Plaintiff suffered injuries and damages as hereinafter set forth in the causes of action.
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COUNT I (INVASION OF PRIVACY UNDER FLORIDA CONST. ART. I, § 23) 7. The Plaintiff realleges paragraphs one through six of this complaint as if fully restated herein. 8. Pursuant to Article I, Section 23, of the Florida Constitution, Plaintiff had a reasonable expectation of privacy with respect to the use of the webcams embedded in the laptop computer issued by Everglade and to each of her/his accounts and their contents since Everglade was acting like a state entity by supplying laptops to a school. 9. In particular, Plaintiff was never informed that the webcam and other technologies incorporated into the students’ personal laptop computers could be remotely activated by Everglade or CharTech and/or its agents, servants, workers, employees or subcontractors indiscriminately at the whim of Everglade and CharTech, and that such activation would naturally capture images of anything in front of the webcam at the time of its activation. 10. In as much as the personal laptop computers were used by students of the high school, it is believed and, therefore averred, that Everglade and CharTech have the ability to and has captured images of Plaintiff without her/his permission and authorization, all of which is embarrassing, humiliating and denigrating. 11. As the laptops at issue were routinely used by students and family members while in their homes, it is believed that many of the images captured and intercepted may consist of images of minors, and their parents, or friends in compromising or embarrassing positions, including, but not limited to, in various stages of dress or undress or engaged in other non-public activities. COUNT II (VIOLATION OF CHAPTER 934, FLORIDA STATUTES) 12. The Plaintiff realleges paragraphs one through six of this complaint as if fully restated herein. 13. By monitoring and invading the Plaintiff’s computer, the Defendants unlawfully and willfully intercepted the Plaintiff’s communications, in violation of Section 934.03, Florida Statutes. 14. Plaintiff asserts his/her rights to the civil remedies set forth in Section 934.10, Florida Statutes.
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COUNT III (CONVERSION) 15. Plaintiffs repeat and re-allege each and every preceding allegation as fully set forth herein. 16. As the laptops at issue were routinely used by students and family members while at home, it is believed that employees of the Defendants may have viewed students’ screens while logged into their personal accounts. 17. Defendants’ conduct toward Plaintiff constitutes conversion. By electronically accessing Plaintiff’s personal information without his/her consent, Defendants have wrongfully interfered with Plaintiff’s property in a manner inconsistent with Plaintiff’s rights. 18. That as a direct and proximate result of the actions by the Defendant enumerated in paragraph 11 and above, the Plaintiff’s privacy was unlawfully invaded and communications intercepted. 19. That as a direct and proximate result of the actions by the Defendant enumerated in paragraph 11 and above, the Plaintiff experienced emotional harm and distress from access to her/his identifying information. 20. That as a direct and proximate result of the actions by the Defendant enumerated in paragraph 11 and above, the Plaintiff’ has suffered extreme emotional harm and distress from the violations of her/his privacy. 21. That as a direct and proximate result of the actions of the Defendant enumerated in paragraph 11 and above, the Plaintiff has incurred, and continues to incur, attorney’s fees and costs.
WHEREFORE, the Plaintiff, Harper Sanders, prays for judgment against Defendants for relief in the form of: 1. Damages; 2. Appropriate equitable relief under Section 934.10, Florida Statutes, including an order that the Defendants shall destroy all unlawfully acquired data and shall be enjoined from utilizing, maintaining, accessing or disseminating the data wrongfully acquired; and, 3. The attorney’s fees and costs of bringing this action; and, 4. Such further relief as the Court deems appropriate. Plaintiff demands a trial by jury on all issues so triable.
Theodore Fullman Fullman, Parker, Little, & Martinez Ingram, FL 50309 ATTORNEY FOR THE PLAINTIFF 9
IN THE CIRCUIT COURT OF THE TWENTY-FIRST JUDICIAL CIRCUIT IN AND FOR PALM COUNTY, FLORIDA
Harper Sanders
) ) ) ) ) ) ) ) ) ) )
Plaintiff, vs. EVERGLADE COMPUTERS, INC. and CHARTECH TECH SERVICES, INC. Defendants.
CIVIL ACTION 2015-CA-1234
ANSWER AND AFFIRMATIVE DEFENSES Come now the Defendants, by and through undersigned counsel, for their answer to Plaintiff’s Complaint and Demand for Jury Trial, and respectfully state: 1. Defendants admit paragraph 1 of the Complaint. 2. Defendants admit paragraph 2 of the Complaint. 3. Defendants admit paragraph 3 of the Complaint. 4. Defendants deny paragraph 4 of the Complaint. 5. Defendants deny paragraph 5 of the Complaint. 6. Defendants deny paragraph 6 of the Complaint. COUNT I (INVASION OF PRIVACY UNDER FLORIDA CONST. ART., I §23) 7. Defendants reassert their answers to paragraphs 1 through 6 as if each were fully set forth herein. 8. Defendants deny paragraph 8 of the Complaint. 9. Defendants deny paragraph 9 of the Complaint. 10. Defendants deny paragraph 10 of the Complaint. 11. Defendants deny paragraph 11 of the Complaint. 10
COUNT II (VIOLATION OF CHAPTER 934, FLORIDA STATUTES) 12. Defendants reassert their answers to paragraphs 1 through 6 as if each were fully set forth herein. 13. Defendants deny paragraph 13 of the Complaint. 14. Defendants deny paragraph 14 of the Complaint. COUNT III (CONVERSION) 15. Defendants reassert their answers to paragraphs 1 through 6 as if each were fully set forth herein. 16. Defendants deny paragraph 16 of the Complaint. 17. Defendants deny paragraph 17 of the Complaint. 18. Defendants deny paragraph 18 of the Complaint. 19. Defendants deny paragraph 19 of the Complaint. 20. Defendants deny paragraph 20 of the Complaint. 21. Defendants deny paragraph 21 of the Complaint. WHEREFORE, having fully answered the plaintiff’s Complaint, these Defendants pray that the Complaint be dismissed with costs awarded to the Defendants and for such other and further relief as the Court may deem just and proper.
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AFFIRMATIVE DEFENSES 1. Defendants assert that any injuries or damages as may have been sustained by the Plaintiff, while denying the same, were due solely to, caused wholly by, and were a direct and proximate result of a third party not under Defendants’ control and not under the third party’s scope of employment. Therefore, Plaintiff is barred from recovery against these Defendants. 2. Defendants assert that any invasion that may have been sustained by the Plaintiff, while denying the same, was consented to by the Plaintiff. Therefore, Plaintiff is barred from recovery against these Defendants. 3. Defendants assert that any invasion that may have been sustained by the Plaintiff, while denying the same, was not done by a state actor, and, thus, is not in violation of Florida Constitution. Therefore, Plaintiff is barred from recovery against these Defendants.
4. Defendants assert that any invasion that may have been sustained by the Plaintiff, while denying the same, was the result of action taken by Defendants in the least intrusive manner possible to protect a compelling interest. Therefore, Plaintiff is barred from recovery against these Defendants. 5. Defendants assert that any invasion that may have been sustained by the Plaintiff, while denying the same, were as the result of Plaintiff’s own actions. Therefore, Plaintiff is barred from recovery against these Defendants.
Martin K. Miller Miller, Simpkins, & Fuller Ingram, Florida 50932 ATTORNEY FOR THE DEFENDANT
COPY TO: Theodore Fullman Fullman, Parker, Little, & Martinez Ingram, FL 50309 ATTORNEY FOR THE PLAINTIFF
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STIPULATIONS
1. There is no issue of jurisdiction, venue, service of process, property of parties, or ownership or control of the premises. 2. The applicable law is contained in the jury instructions and legal authorities set forth in this packet. 3. The relief sought by Plaintiff is available under the governing and controlling law to a person who proves entitlement to such relief. 4. The exhibits are true and accurate copies and their authenticity may not be challenged. Unless stated otherwise, herein, the admissibility of exhibits on other grounds may be challenged. 5. All signatures on letters, witness statements and other documents are authentic. Those statements not including a signature are presumed to have been signed and authenticated. 6. The Court’s instructions on the law are accurate in all respects; no objections to the Charge will be entertained. 7. All causes of action have been filed within the limitations period. There is no defense based upon the statute of limitations. 8. Whenever a rule of evidence requires that reasonable notice be given, it has been given. 9. The Plaintiff was issued an Everglade Computer, Inc. laptop. 10. The Plaintiff did not pay the insurance deposit of $60. 11. A separate lawsuit against the Palm County School District has been settled out of court for equitable relief. 12. Harper Sanders celebrated her/his birthday in September 2013 prior to the signing of the Computer Lease Agreement that same month. 13. Julia Parsons never reported theft or loss of her laptop to Palm County High School, Everglade Computers, or CharTech Tech Services.
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WITNESS LIST The following witnesses are available and must be called by the parties: For the Plaintiff Harper Sanders, Plaintiff Mikey Blair Sydney Adams
For the Defendant Hayden O’Brien, Ed. D. Reese Charrington Morgan Parsons
*All witnesses may be female or male. **All witnesses must be called.
EXHIBITS AVAILABLE TO BOTH PARTIES The parties have stipulated to the authenticity of the trial exhibits listed below. The court will, therefore, not entertain objections to the authenticity of these trial exhibits. The parties have reserved any objections to the admissibility of any of these exhibits until the trial of the abovecaptioned matter. The trial exhibits may be introduced by either the Plaintiff or the Defendant, subject to the Rules of Evidence and stipulations of the parties contained in the materials. The exhibits are pre-marked and are to be referred to by number, as follows: Exhibit No. 1 2 3 4 5 6 7 8 9 10
Exhibit Description Palm County High School One2One Program Information Computer Lease Agreement Everglade Promotional Brochure Brochure Insert Inter-Office Email Screen Shot of IM Conversation Webcam Photo Lost Computer Notice Form Email Thread re: TheftTrack Email Thread re: Webcam Light
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IN THE CIRCUIT COURT OF THE TWENTY-FIRST JUDICIAL CIRCUIT IN AND FOR PALM COUNTY, FLORIDA
Harper Sanders
) ) ) ) ) ) ) ) ) ) )
Plaintiff, vs. EVERGLADE COMPUTERS, INC. and CHARTECH TECH SERVICES, INC. Defendants.
CIVIL ACTION 2015-CA-1234
SWORN STATEMENT OF HARPER SANDERS 1
My name is Harper Sanders. I am a recent graduate of Palm County High School in
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Ingram, Florida. I currently attend the Palm County Area Community College taking classes in
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the Culinary Arts Department there. I live at 1415 Terra Bonita Court in Ingram, Florida.
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At the time of the incident that caused this lawsuit, I was a high school senior at Palm
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County. I had turned 18 in September and was looking forward to skating through the final few
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months of my high school career before starting something fresh and new. When I look back on
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what the school and the computer company did to me, I feel completely violated. I still find
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myself constantly looking over my shoulder as if someone is watching me all the time. I think
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they call that paranoia. But am I paranoid if someone actually is spying on me? I am a very
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private person and really don’t want the whole world to know my stuff. I’m not sure that I can
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ever fully recover from the trauma of being spied on – especially since I can never know what
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anyone saw or how many people saw me! I have flashes sometimes when I see people staring or
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laughing – even among a group of their friends – and think they must have seen me on the web,
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doing who knows what! Once that stuff is out there who knows where it’s sent. You can’t track
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it.
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So let me tell you how it all went down. It was my senior year at Palm County. I don’t
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have a large group of friends, but a few close buds who hang out. Sketch, Anderson, Emerson
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and I are tight. We were all just counting our days before we could get out of school and start
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new adventures.
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Early in the school year, the school announced a new computer program where every kid
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in the school got a new laptop. Heck yeah, I wanted free stuff! And it’s not like I had any option.
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It sounded like all of the teachers were going to be giving assignments on the computer and
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expected us to turn them in that way too. So really unless I already had a computer at home –
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which I did not – then I really had to get with the program.
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So we went to a school assembly where they talked about the program. From what I
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heard, it sounded cool. The presenters went through a PowerPoint slideshow pretty quickly. I
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have to admit that the whole thing was pretty boring, so we kind of tuned it out and messed
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around with our phones. After the presentation, they handed out some brochures about the free
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computers. I did take one and I think I stuffed it in my bag to take home. I did look at it at some
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point, but really can’t remember any details other than I know there was nothing in it about me
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agreeing to let anyone spy on me. I think I would have remembered that!
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Anyway, I brought some other papers home a little while later and some forms to sign.
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They told us to give them to our parents to sign, but because I had just turned 18, they didn’t
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need to sign anything for me. I took care of it all. I glanced over everything, but mostly I just
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looked for the places where it said “Sign here” and did. It’s not like I had a lot of choices right? I
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mean if I didn’t sign, I wouldn’t get the computer and if I didn’t get the computer, I really
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couldn’t do any school work. So how complicated could it be – sign the form, get the computer. I
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assume they didn’t want me to trash it or anything, but other than that, I was pretty sure it was
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mine for the year. So I signed on the dotted line and gave back the form.
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So the laptops were given out in one of my classes. Sydney Adams was the teacher. S/he
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asked something about an insurance payment. I’ve been to the BuyMore and know never to sign
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up for any of those extended warranty things. In my opinion, they’re all a scam to get more cash
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out of you. So I said no. Adams said something about not being able to take the laptop home, but
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I thought that was bogus. It was mine right? And I promised to take good care of the thing. So I
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didn’t see any problem with me carting it back and forth from home to school every day. No one
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really hassled me about it again. I mean there were a few times that someone mentioned
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insurance and not taking the laptop home, but I really just blew them off and did my thing.
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So we get these new laptops and there is a series of mandatory classes to show us how
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they work and what we can and can’t do on the thing. Did they think we were idiots? We’ve all
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used computers before; heck we all have cell phones that do more complicated stuff than most
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basic laptops! I’m pretty sure the average high school kid can figure out how to use a computer.
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Anyway, I’m sure they went over the rules and stuff – you know the basics plus what sites not to
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go to.
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I do remember someone asking about the little button looking thing at the top of the
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screen when the laptop was open. I just laughed – clearly that is a webcam. The teacher
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explained that all laptops now have a built in web camera, but that you would know if it was
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active when the green light next to it was lit. S/he said started explaining something about school
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policy so I just started on some assignments.
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So I got my computer home, set it up on my desk in my bedroom, plugged it in, turned it
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on and pretty much just forgot about it. Every morning I got in the habit of stuffing it in my
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backpack and every afternoon, I’d plug it back in on my desk, leave it on and forget it. I left it on
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pretty much all the time because it takes so long for the thing to boot up. I wanted ready access
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when I needed it.
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Now my friends and I are not what you would call computer savvy. But with a little
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messing around we were able to take out some of the parent and school blocks that they had put
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in place. We were able to get the webcam working and got all of the other social networking
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stuff up and running too. I used it to download some stuff to my cell faster and I think I bought
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my mom’s birthday present online. After a weekend of playing around with the thing, we each
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had a fully functioning laptop to use. From what I heard in class and in the hallways at school, it
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sounded like pretty much everyone else had done the same thing with theirs.
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There were a couple of times when I was in my room and not using the computer when I
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noticed the green webcam light flicker on and off for a few seconds. I didn’t think much of it at
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the time since these computers make all kinds of strange sounds at odd hours. I also figured it
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could have been one of my friends messaging me to see if I was around to chat.
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There were a few kids who asked about the green light thing in class. Adams said that
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s/he would investigate but that it was probably just some sort of faulty installation and that if it
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kept up, they should either bring the laptops in to be fixed or if they were really messed up, they
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could exchange them. Adams also told us that we could do what s/he had done. Since s/he
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doesn’t ever use a webcam, s/he had simply put a piece of duct tape over the camera.
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Well I didn’t do that. I wanted to be able to use the camera to talk to my friends so I just
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let it all slide – flickering light and all. That was until Sketch mentioned that he thought that
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someone might be spying on him through the computer. I told him that I thought he was being
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paranoid. But he insisted that he wasn’t crazy.
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That’s when we decided to have some fun with it. We decided to stage some stuff for the
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webcam – and whoever was on the other end – to see. We had this great idea to model a spoof
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from a website that we love that’s all about Peeps – you know those delicious marshmallow
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candies that come in different shapes and colors? Anyway, there was this website out there
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where people create scenes from movies using Peeps. It is really funny. So we decided to build a
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few sets of our own and place them in front of our webcams when we weren’t using the
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computers. That way anyone spying would know that we were on to them – and get a few laughs
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out of it too. So we did Lord of the Peeps; Silence of the Peeps; 12 Angry Peeps; Spider Peep;
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Harry Peeper – all kinds of ridiculous stuff. Around Christmas, my favorite was How the Peep
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Stole Christmas. It was a blast and something to pass the time. It worked a little to help Sketch
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relax, but he was still a little worried about who might be watching.
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He was so concerned that it was the school spying on him using the school’s computer,
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that he just stopped using his laptop altogether – unplugged it and stuffed it under the bed. So I
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let him borrow mine whenever he really needed it for an assignment. There was a day in March,
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just after Spring Break that he needed a laptop for class. I gave him mine to use of course.
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Wouldn’t you know it, the same day, Adams assigned something for my class to do on the
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computer and I didn’t have mine. S/he asked me where my laptop was – and I could tell that s/he
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wasn’t too happy about me not having one. So I quickly made up a story and I told her/him that I
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think I might have lost it over Break. Well, Adams made me fill out a form that s/he said allowed
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the school to locate it for me. I couldn’t very well say that I knew exactly where it was – down
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the hall in another class at the moment – so I filled out the form. When Sketch gave me the
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computer back the next day, I told Adams that I had found it. I don’t remember filling out
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another “Found” form, just filling out the “Lost” one.
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Now that I think about it, it does seem that after I reported my laptop as missing, the
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webcam light seemed to go on and off a lot more frequently. I just didn’t notice it I guess since 18
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by then I was pretty used to it turning on and off randomly anyway. I did mention it to Sketch –
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and that really freaked him out even more. So he and I came up with a plan to test the spying
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theory once and for all.
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Since November 2013, the school had been locked down and searched at least 3 times
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because of rumors and things on social media saying there were major drug deals going on at
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school. They hadn’t been able to track down who would have been dealing the drugs, so the
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police would bring in dogs to sniff the lockers while we were locked down in class.
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Sketch and I decided to up the ante. We wanted to see what it would take to prove
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someone was watching on the cameras. I gathered as much stuff as I could that looked like the
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makings of a drug deal – my allergy medicine prescription bottles, plastic baggies, herbs from
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my mom’s spice cabinet, and powdered sugar. We also threw a brown zipper bag on the table
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that we found in the garage, like something we could carry “the stuff” in. I made sure that when I
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got home I searched “packaging drugs” and bookmarked a few sites so that I would have a good
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list on my “history” cache. Finally Sketch and I sent a few eMessages back and forth about “the
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deal” and the “transaction” – but we were just messing around!
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It turns out that Sketch was right all along! I came into school on Monday, April 14, 2014
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and before I could even open my locker, Principal O’Brien was all in my face demanding that I
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go immediately with her/him to the office and to bring all of my stuff. I had no idea what was
127
going on. Usually Hayden is pretty mellow, but that morning, wow, he was really mad about
128
something! This was before classes started so there were quite a few people just hanging around
129
the halls. They saw it all – how I was berated and marched down to the office. Once in the office,
130
Hayden O’Brien demanded that I empty my backpack and take everything out of my coat and
131
my pockets. While I was doing as I was told, I asked what was up. O’Brien said that s/he’d had
132
her/his eye on me for quite some time as the person who had been dealing drugs. I was stunned! I
133
mean, seriously? O’Brien said that s/he’d seen my Facebook page and a blog about what sites I
134
had visited recently and some books that I found interesting. Then s/he produced a photo of my
135
desk in my bedroom and a copy of the eMessage exchange with Sketch! So they were spying on
136
us the whole time. Even though we had suspected it, I was completely shocked, and I am sure it
137
showed on my face. I was also really disturbed by the pictures. That is my room – my private
138
bedroom – and my principal had full photo access into my house.
19
139
I had a few choice comments for the Principal at first out of pure shock. Then I tried to
140
explain that it was all a joke – a trap – and that it was a big misunderstanding. I demanded to
141
know how s/he had gotten a photo of my room, at my house and a copy of my private
142
conversation. I know that what goes on social media is public, but this was a private chat.
143
O’Brien started backpedalling pretty quickly after that and said something about not calling the
144
cops and not pressing criminal charges and just letting it be a lesson to me. That just got me even
145
more angry! I was the victim and yet I was being accused! I asked if I could leave. O’Brien said
146
that I could and wanted to make sure that we had an agreement or an understanding or
147
something. I sure had an understanding all right! As soon as I got out of the office, I called my
148
friends and we discussed our options. We finally agreed that the best course of action would be
149
to contact a local civil liberties organization for help.
150
And that’s where we are today. I think there has been a deal with the school to stop
151
spying on us and I know some people got fired over the whole thing. But no one has ever
152
apologized to me or my friends or any students for that matter. No one has given us any
153
assurance that it won’t happen again. This whole thing has really impacted my life. I am anxious
154
about changing in my own bedroom, paranoid that people are watching me at home and out in
155
public. I’m nervous about using my cell phone – who knows who could be watching me through
156
my phone camera. I shouldn’t have to live in fear that someone is constantly watching me – but
157
that’s what Everglades and CharTech did to me. And that computer company that was doing all
158
of this on behalf of the school. They need to do what’s right and come clean – apologize to all of
159
us. They also need to pay for what they’ve done.
20
IN THE CIRCUIT COURT OF THE TWENTY-FIRST JUDICIAL CIRCUIT IN AND FOR PALM COUNTY, FLORIDA
Harper Sanders
) ) ) ) ) ) ) ) ) ) )
Plaintiff, vs. EVERGLADE COMPUTERS, INC. and CHARTECH TECH SERVICES, INC. Defendants.
CIVIL ACTION 2015-CA-1234
SWORN STATEMENT OF MIKEY BLAIR 1
My name is Mikey Blair. I had been employed at Everglade Computers, Inc. and
2
CharTech Tech Services, Inc. for about five years prior to being fired in April. Since April, I
3
have tried my hand at offering my computer tech expertise on a consulting basis. I have had
4
some success with a few of the larger insurance and health care companies in Ingram on
5
contract, but no permanent position. I currently live in Sunshine Park, having moved from Palm
6
County once I was fired. I’m originally from Oregon and joined Everglade Computers in 2008
7
after graduation from Reed College. When the company moved its headquarters from Oregon to
8
Florida, I had a choice to either stay in Oregon at a satellite location or move to Florida and still
9
be at corporate headquarters. Since I like to be in the thick of the action I decided to go for the
10
adventure. I don’t regret the decision to move, but I do think that I am being wrongly blamed for
11
all of this. I admit I made a few mistakes and probably took things a little farther than I should,
12
but really I don’t think I did anything that should have resulted in my losing my job. Yeah, we
13
looked at the photos taken by those webcams – but wasn’t that our jobs? Admittedly, we
14
shouldn’t have made a big party out of the whole thing, but the pics were already out there, what
15
harm did it cause?
16
But let me back up and describe my part in this whole mess. After I moved from Oregon,
17
I continued to work for Everglade Computers, but I also signed as a Tech Services Supervisor for
18
CharTech, a separate subsidiary of Everglade. This isn’t as unusual as it sounds. It’s not like I
19
had two full time jobs, rather I split my time working on developing software and support 21
20
systems for Everglade and managed a group of techies trouble shooting the same systems for
21
CharTech. All told, I probably worked an average of 70 hours per week. I really didn’t mind it
22
though, since it was work I really enjoyed. And really, what else is there to do in Ingram?
23
I was not on the taskforce or any team that had a part in developing the One2One laptop
24
program for the local high school. Those decisions were made higher up on the food chain.
25
However, I was part of the group of techies assigned to monitor the new version of TheftTrack,
26
our state of the art security software, as it related to the Palm County High School units. We
27
were tasked with monitoring those units on which we had received search requests. Our
28
information came from the school’s IT department. They forwarded the computer ID information
29
and user info to us and requested that we activate the TheftTrack system. It was my
30
understanding that the computers involved may have been lost, stolen, missing, or did not have
31
the proper insurance to leave the school grounds. You know my job as a supervisor was not to
32
question WHY we were doing things, simply to get the techies in my work group to do the job.
33
TheftTrack is actually a pretty basic concept. I was on the design team that came up with
34
the plan for a multifaceted search protocol. Rather than simply tracking the LAN and IP address
35
of a computer, TheftTrack also utilizes both remote webcam and remote screen shot capabilities
36
to try to identify location and user information. It is comprehensive in scope and tedious in
37
information analysis, but highly effective in its functionality – it’s really good at finding lost
38
computers!
39
The system that we had devised for the Palm County High School One2One program was
40
fairly straightforward. They give us the go ahead to activate the program. We keep the program
41
active and forward relevant data to them until they request us to deactivate. Our data analysis
42
group was tasked with searching through captured images and deleting those with no value.
43
Those with discernable images were set aside for further review. A second tech would then scan
44
through these to determine the relative potential value to the client. Our goal was not to
45
overwhelm the client with so much data that they would not be able to sort through it all.
46
Therefore, we had access to many thousands of images taken from Palm County One2One
47
program users. After both the cursory and secondary analyses, useful information was forwarded
48
to the school server for their IT personnel to identify or forward to law enforcement authorities.
49
Further steps in the process were out of our control.
22
50
I think we all were surprised by the high volume of activation requests from this program.
51
Either high school students were irresponsibly losing lots of computers or the IT department was
52
not being very diligent about weeding out the high priority cases for us to deal with. Instead, it
53
seemed like we got everything. As far as I could tell, we pretty much had free reign to access
54
whatever we wanted whenever we wanted. The built in technology is programmed for screenshot
55
or webcam activation in as little as 15 minutes. That time could be increased to a view every
56
hour or two hours or even twelve hours. It could not be lessened however. That is a
57
misconception; under no circumstances were we able to view webcam or screen shot pictures in
58
any type of streaming video capacity. We only had access to still images.
59
It quickly became apparent to Reese Charrington, the Everglade and CharTech head
60
honcho, that our initial staffing estimation for this project was seriously low. S/he and I met
61
about this and we both agreed that after the initial shock to the system, we were confident that
62
the number of requests from the school would go down to levels that we could handle easily. We
63
both estimated that it might take as much as the full academic year before things slowed down.
64
Reese asked if we should hire temps or contract employees to supplement this job. I said that I
65
though the training process would probably be too long for them to be any immediate help. What
66
we really needed, I said semi-facetiously, was overtime! I was pretty shocked that Reese agreed!
67
S/he authorized a maximum overtime budget for the group – which we always used up pretty
68
quickly but tried to spread around all members of the work group. I went to Reese again and told
69
her/him of the situation, and s/he asked if we might have any volunteers to continue to work on
70
the monitoring and sorting project. S/he said that it would count toward the company’s stated
71
goal of a certain number of hours of community service per employee. It sure didn’t sound like
72
community service to me, but I said that I might have some takers. I wasn’t sure that would
73
completely solve the problem. Reese, in typical Reese fashion, simply said “Well, think
74
creatively about it.” I took that to mean do whatever I felt was necessary to get the job done.
75
I convened a meeting of the work group and let them know that the overtime hours would
76
not be increased (wouldn’t be decreased either), but that Reese was looking for volunteers. That
77
generated the expected grumbling. I took the lead and said that I would volunteer over the
78
weekend and that anyone was willing to join me. Like many other employees at Everglade and
79
CharTech, we have remote offices set up so that we can work from home. I offered to network
80
more computers at my house if anyone wanted to join me over the weekend to sort through the 23
81
collected data. I didn’t get too many takers that first weekend. But gradually word got out that
82
we were actually having fun with it!
83
My way of being “creative” was to challenge all of the volunteers to find what they
84
considered to be the most bizarre pictures from their analysis and then every hour or so we
85
would have a contest to see who had struck the most gold. As time went on, our contests got
86
better and better and the number of volunteers more numerous. It finally became a weekend
87
ritual – Friday and Saturday nights at my house were the weekly Palm County Festival. We
88
created all kinds of challenges and games. But the highlight every weekend was the slideshow of
89
“winning” images. It was supposed to be just from the weekend while we were volunteering, but
90
pretty soon, the other workgroup members started saving their favorite images from their work
91
time as well and bringing them for all to see. I had a few qualms about that initially, but I though
92
what the heck, we’re getting the job done!
93
I really don’t know if Reese Charrington knew about our little get-togethers on the
94
weekends or about our own version of the Palm County Reality Show. S/he certainly never said
95
anything about it to me. Reese was very pleased that we seemed to have found a way to get all of
96
the work done in a timely manner. S/he’s one of those bosses who doesn’t ask a whole lot of
97
questions, just demands answers and results. As long as we were producing results, it was all
98
good.
99
In a number of the TheftTrack monitoring situations, there were instances where I knew
100
that the computer had been located, or that it had never been lost in the first place. However, we
101
were under strict instructions not to deactivate the system until we received the proper
102
notification from the school to do so. Even though we knew that there was no issue, we
103
continued to monitor. We got to see quite a bit of Palm County High - a few screen shots of
104
eMessage conversations involving plans for parties, details on how dates went, and lots of
105
general teen angst. Someone of the webcam captures were hilarious! Since they were just
106
random snapshots, we got a lot of crazy stuff. But the best by far were these series of computers
107
that had little dioramas or scene vignettes featuring what looked to be those candy Peeps! Those
108
were our favorite. Every week at least someone from the group would have an update for us on
109
the “Peeps” Show. It was creative and really entertaining.
110
Living locally, I was aware of the on-going situation with the drug deals at the school.
111
And while I received no direct request from Reese or any other bigwig, I asked our group to be 24
112
on the look-out for any evidence that might help the police catch whoever was at the head of the
113
dealing ring.
114
On Saturday, April 12 I was at home monitoring and sorting through some of the Palm
115
County High School TheftTrack pics while also planning for that night’s weekly review of “the
116
show.” I came across a webcam shot of a really messy desk – nothing unusual there! But then,
117
while still on the same account, I came across a screenshot capture that featured part of an
118
eMessage conversation that obviously dealt with a plan or a deal at the school on that next
119
Monday, April 14. I then took a closer look at the messy desk picture and found that it could be a
120
high volume of drugs and drug paraphernalia and a suspicious looking case – like a gun case.
121
I found the information to be rather disturbing and quite alarming. I didn’t think just
122
forwarding the information to the school IT department would work in this case. For one, it was
123
a Saturday. I wasn’t even sure if they worked on the weekend. Second, by the time they sorted
124
through all of the stuff we sent them over the weekend, they might not have time to take any
125
action. Third, I thought this was just the type of information the police might need to finally
126
catch the person dealing the drugs. So I couldn’t just leave it go.
127
I phoned Reese Charrington on her/his cell phone on Saturday evening and asked if s/he
128
could meet me in her/his office right away. I think s/he must have heard the panic in my voice
129
because s/he didn’t ask any questions, just said “sure thing, right away.” I showed Reese both the
130
screenshot of the eMessage conversation and the photo from the Webcam and confirmed that
131
both were taken from the same Palm County High School One2One TheftTrack monitoring
132
account and that both were from roughly the same period of time. Reese thanked me for my
133
team’s diligence and said that this was the exact type of situation that TheftTrack was meant for.
134
While I was still in her/his office, Reese called the school Principal, Hayden O’Brien, and
135
informed her/him of the situation. Principal O’Brien asked that we send both images to both the
136
school server and to her/his personal email account. I accessed the file from Reese’s computer
137
and sent it while they were still on the phone. Once I had done that, Reese thanked me again and
138
let me get back to my party.
139
I was a little startled by the reference to “my party”, thinking that perhaps Reese knew
140
what was going on. But the more I thought about it, I just figure that it was Saturday night, I’m
141
in my 20’s and not working – of course I would be at a party or something. I’m sure it was just a
142
random comment. 25
143
Shortly after that incident, I heard that Everglade and CharTech were being sued by one
144
of the kids from Palm County High School. And then, wouldn’t you know it, I was being called
145
in to Reese’s office and told that my team was being suspended and that as the Supervisor, I had
146
to be fired because of the situation. I think Reese felt badly about the whole situation, but must
147
have been put into a situation where s/he had to do something to look like s/he was taking action
148
and avoid losing a lot of cash. I have no hard feelings about it. I hope after this lawsuit is done
149
with that I can reapply to Everglade and CharTech and maybe get my old job back.
26
IN THE CIRCUIT COURT OF THE TWENTY-FIRST JUDICIAL CIRCUIT IN AND FOR PALM COUNTY, FLORIDA
Harper Sanders
) ) ) ) ) ) ) ) ) ) )
Plaintiff, vs. EVERGLADE COMPUTERS, INC. and CHARTECH TECH SERVICES, INC. Defendants.
CIVIL ACTION 2015-CA-1234
SWORN STATEMENT OF SYDNEY ADAMS
1
My name is Sydney Adams. I am 32 years old and a teacher at Palm County High School
2
in Palm County, Florida. I reside at 11 DeSoto Place in Ingram. I have taught Computer Science
3
at Palm County High for the past 6 years, prior to that I taught Computer Science in Sunshine
4
Park, Florida at both the high school and community college there.
5
I was part of the staff review panel for the proposed One2One laptop program for
6
students at Palm County High School in the Summer of 2013. The group of teachers and staff
7
that I was part of met with Reese Charrington and other experts from Everglade Computers
8
about the details and specifications for the laptops themselves, the programs and software that
9
would be loaded, and the policies that they envisioned in place to regulate computer usage.
10
I raised a few concerns about privacy issues. Everglade assured us that the servers were
11
secure and hacker-proof. Moreover, we were assured that the students and school would control
12
the content on the laptops up until the time that they were returned at the end of the year. At a
13
later time in our meetings, Charrington mentioned that the units with the One2One program
14
would be loaded with their latest theft prevention device, TheftTrack. I asked for specifics on
15
how the program worked, again thinking in terms of privacy issues. Charrington described it as a
16
kind of computer LoJack system. I assumed that it would include some sort of homing device
17
that could be activated if the unit was reported lost or stolen. It was only later in the review
27
18
process, pretty much when things were already a done deal, when I learned the specifics of how
19
the TheftTrack system actually works.
20
I was taken aback by the invasive process. I advocated for a less invasive means of
21
locating lost or stolen computers. I know I referenced the LoJack description and asked
22
specifically why some sort of basic tracking device couldn’t simply be installed. I copied the
23
Principal, Hayden O’Brien, in on all of the exchanges with Reese Charrington. I really think
24
Hayden didn’t want to rock the boat too much with Charrington and Everglade. S/he felt that any
25
real intensive review of the proposed program might just make Charrington take her/his
26
computers and go home. I understood that, but I wanted to be on record just in case something
27
really bad happened – and of course it has! I’m not one to say “I told you so” but “I told you so!”
28
Even with my concerns over the privacy issues, I was still in favor of the One2One
29
program. The benefits received by the school and by the students would far outweigh my few
30
issues. After the school announced the laptop program, there were even more presentations to
31
faculty and staff – those were pretty much the “good parts” versions of what our review team had
32
already heard; but notably no mention of the TheftTrack program or any ability to monitor
33
laptops. There were also presentations by Everglade made to the PTO. Hayden asked me to join
34
our IT staff and the folks from Everglade to conduct programs for students to get them up to
35
speed on the technology and details of the plan.
36
During these sessions with students, we went over all of the policies and protocols for
37
using the computer. We explained about the insurance provisions, the contracts and the like. We
38
laid out the policy for reporting a missing computer and told the students very generally that
39
there was a system in place to locate missing units and that if theirs was lost, they would have to
40
agree to allow us to begin the tracking process. I don’t know whether it was because this
41
discussion was buried toward the end of a rather lengthy presentation or whether teens being
42
teens had already tuned us out, but there were no questions from any of the groups of students
43
about privacy issues. Now I will say that for a “mandatory” session for students, we were lax in
44
our oversight. There were no sign-in sheets, no attendance taken, no quizzes or tests to check for
45
their understanding of any details. Basically, what it boiled down to for most students was if you
46
signed the form, you got a laptop; if you paid the insurance fee, you got to take the thing home
47
with you. I’m not entirely convinced that even that last part struck home with most students. I
48
was aware of a number of instances where I know students did not complete the insurance form 28
49
or pay the money and yet were taking their laptops home with them. I have no idea how we were
50
supposed to police that. I was not involved in any policy discussion the school may have had
51
with Everglade about tracking computers of students who had not paid the insurance fee.
52
As a staff, we teachers were encouraged to find ways to incorporate the laptops into our
53
daily instruction and to give homework assignments that would encourage use of the technology.
54
Obviously as a computer science teacher, that was easy for me to do! Students were told that any
55
issues that they had with their laptops should be brought to the attention of the IT department at
56
the school. If it was a complicated problem, the question would be forwarded to CharTech Tech
57
Services – the troubleshooting wing of Everglade Computers. In my experience, teens are much
58
more likely to talk to or ask questions of people that they know – like a teacher – than a relative
59
stranger. So I did get some questions from students about a wide variety of issues.
60
After the initial flurry of pretty basic questions, the predominant one directed toward me
61
had to do with the light located next to the built in web camera on the Everglade laptop units. I
62
know that webcams are standard issue with new laptops these days and am familiar with the
63
basic functionality. If the webcam is on, the little light glows green. If it is not active, either there
64
is a red light lit or no light at all. A few of the student questions were of the very basic nature -
65
what is that thing? But more of them expressed concern and confusion over the green light and
66
said that it flickered on and off randomly - even when the webcam was not in use. A couple of
67
students asked me point blank whether the school was spying on them for some reason, and
68
asked whether the school or the computer company had the technological capability to do so. I
69
promised to check with our IT staff and with Everglade or CharTech to find out if this was a
70
system malfunction, a design flaw, or some sort of hardware glitch. I told the students that if the
71
problem persisted that they should either bring their laptop back to the school IT department to
72
get it fixed or return it for a different unit. After trying a number of times to get to the bottom of
73
the mysterious green flickering light situation, I finally gave up and counseled the students to do
74
as I have done with my own One2One school issued laptop and put a piece of duct tape over the
75
webcam lens. Of course, when I expressed my frustrated fix to the Everglade and CharTech
76
techs, I was surprised to get an email reply from Reese Charrington her/himself! I thought s/he
77
was going a bit overboard in the response, but I wasn’t offended in any way by the tone of the
78
comments. It just is what it is.
29
79
One of the policies we had regarding the One2One program involved reporting any
80
computers that were lost or stolen so that Everglade could protect its investment and so that the
81
authorities might track down the missing units. I only had 3 situations in my class involving a
82
lost or stolen computer. One was actually left on a school vehicle after a sporting event trip and
83
was quickly reunited with its rightful owner. A second was a case of mistaken computer identity.
84
Another student had picked up the wrong laptop in the cafeteria, only to find the next day that he
85
now had two laptops. That was also quickly resolved. The third situation may have a lot to do
86
with the current lawsuit.
87
Shortly after Spring Break, I believe it was on March 26, I noticed that Harper Sanders
88
did not have her/his computer in class. I went over to her/his desk and simply asked where the
89
computer might be. I figured it had been left at home or perhaps in a locker. Harper got a
90
frightened look on her/his face and told me that the laptop may have been stolen. We didn’t
91
panic at all. I got the form that s/he needed to fill out, I signed it too, and then sent it over to the
92
IT Department for processing. I assumed that they would notify Everglade or CharTech to
93
initiate the basic tracking function and then assumed that if it was not immediately accounted for,
94
then the more invasive tracking steps would be taken.
95
The very next day, Harper reported to me that her/his computer had been found; that it
96
had all been a mistake. I called the school IT Department and left a message that the unit
97
belonging to Harper Sanders had been located and that the search could be called off. I heard
98
nothing further from IT about this issue, so assumed that that in fact had happened.
99
I suppose everyone has heard about the series of suspected drug deals that shut down
100
Palm County High School during the 2013-2014 school year. After the 2nd or 3rd situation, the
101
whole staff was put on alert to keep a careful eye out for suspicious notes, odd behavior or
102
anything else that might tip off the authorities to who may have been involved with the drug
103
dealing. As a habit, at the end of each week, I access the history and cache of each of the
104
computer lab computers and clear them of all personal information. These units are designed for
105
public use and there should be no reason for any personal or non-school related material to be on
106
them. I occasionally found downloaded music files, maybe some photos that a student may have
107
been loading to a website or to Facebook, evidence of a few attempts to access restricted
108
websites, those sorts of things.
30
109
On Friday, April 11, 2014, I was clearing out computer files when I came across a
110
Facebook page that contained a lot off information and imagery of drugs, a blog about books and
111
resources for making and packaging certain kinds of drugs, and a little chat about “deals.” Given
112
the climate of the school, I tried to identify the owner of the site. I was confident that the site
113
belonged to Harper Sanders. I immediately reported what I had found to Hayden. S/he
114
accompanied me back to the lab, where we tried without luck to access a refreshed version of the
115
Facebook site. At that point, Hayden thanked me for bringing it to her/his attention and that s/he
116
would handle the matter from there.
117
I heard about the confrontation between Hayden and Harper Sanders on the following
118
Monday. I also heard about the lawsuit against the school pretty quickly. In fact, after
119
consultation with the school’s lawyers, Hayden asked me to conduct an internal review of both
120
what information may have been stored on the school servers and on the policies and practices
121
that we had in place.
122
I was given full cooperation from the school and complete access to all documents and
123
data from 2 school servers as well as the individual computers of the IT Department staff and
124
Principal Hayden O’Brien. I requested access to the Everglade Computer and CharTech Tech
125
Services servers and computers used for the Palm County High School account, but that request
126
was denied - ironically citing privacy concerns. I reviewed a very large cache (more than 17,000
127
images) of photos, screenshots and other identifying information that had been forwarded by
128
CharTech Tech Services relating to the identification of lost or missing laptop computers. It
129
appeared that TheftTrack had been triggered on at least 127 computers. In slightly more than half
130
of the cases, it seems that only the minimal tracking - the IP address tracker - was used.
131
However, in almost half of the cases, the full system was used - including not only IP address
132
tracking but also screenshot and webcam pictures. I found absolutely no evidence that the system
133
was used in any gratuitous way to spy on students or staff. It is difficult to know what
134
information may have existed prior to my being granted access. I am aware that many images
135
were deleted immediately after the lawsuit, and of course I have no way of knowing at all what is
136
or was stored on the CharTech or Everglade servers.
137
In my review of activation requests and comparing these with reports logged on
138
successful location of computers, it appears that more than 40% of the pictures recovered were
139
taken after the laptops had been recovered or found. In most instances, the date stamp indicated 31
140
an average of only a day or two, but in some situations, the TheftTrack device remained active
141
for weeks after the unit had been reported located and recovered. Some of this is accounted by
142
overzealousness and questionable authority of the school IT staff. However, the bulk of the
143
responsibility has to fall on the computer companies actually monitoring the situation. I mean
144
once it’s clear to them that the laptop is safely located, they should stop the surveillance.
145
On our end, Palm County High School has taken a number of positive steps to ensure that
146
this situation will not happen again. We have reviewed and instituted new policies guaranteeing
147
the privacy of computer users. District staff may only access computers either upon specific
148
request of the user or when the unit is turned in at the end of the agreement period. Both our IT
149
Department and CharTech Tech Services seemingly had little or no procedures governing the use
150
of TheftTrack and which level of search should be undertaken. The decision on whether to
151
activate the full protocol or just a minimally invasive IP search varied widely on a case by case
152
basis. The record keeping at both Palm County HS and at CharTech was very inefficient and
153
inconsistent.
154
As a result of my informal review we have established a new set of policies and we have
155
severed all ties to CharTech Tech Services. The One2One program will continue and students
156
will continue to get this valuable educational experience.
157
I honestly believe that Everglade and CharTech were using Palm County High School as
158
guinea pigs for their new technology and that they got carried away by the tech and by what they
159
were seeing in their surveillance. The whole thing made me uncomfortable as an employee, so I
160
cannot even imagine how violated the students must feel. It was handled irresponsibly and
161
should have been better communicated with the students, parents, as staff. Everglades’ own lack
162
of policies and protocol caused immense harm to Palm County High School students.
32
IN THE CIRCUIT COURT OF THE TWENTY-FIRST JUDICIAL CIRCUIT IN AND FOR PALM COUNTY, FLORIDA
Harper Sanders
) ) ) ) ) ) ) ) ) ) )
Plaintiff, vs. EVERGLADE COMPUTERS, INC. and CHARTECH TECH SERVICES, INC. Defendants.
CIVIL ACTION 2015-CA-1234
SWORN STATEMENT OF HAYDEN O’BRIEN
1
My name is Hayden O’Brien. I am 52 years old and am the Principal of Palm County
2
High School in Florida, located in southern Palm County. I have been Principal at this school for
3
6 years. Prior to this position, I served as Principal at Sunshine Park High School for 4 years. I
4
held a number of administrative positions prior to that time, including Assistant Superintendent
5
for the Braxton County Schools in Florida. I received an undergraduate degree from Sunshine
6
State University in 1985, a Master’s Degree in Educational Administration in 1992 and a
7
Doctorate in Educational Supervision in 1999. For the latter two degrees I attended Tabard
8
University.
9
During my time at Palm County, I have had frequent long-range planning meetings with
10
the school board and the PTO. These sessions have usually resulted in a kind of wish list of
11
programs, educational materials and strategies to improve educational services to students. One
12
item at the top of the most recent list was the idea to issue all students a laptop computer to
13
enhance communication and to allow for greater investigation and skill development in new
14
technology – towards the end of creating 21st century learners. My research showed that these
15
laptop programs worked very well particularly in urban and affluent areas. Unfortunately, Palm
16
County is neither. And while I was unable to locate any information on the success or even the
17
existence of programs in rural areas, I was confident that given a chance, the program would
33
18
work wonders for us. The big sticking point to a program at Palm County High of course was
19
money. So for me the idea was always pie in the sky.
20
When Reese Charrington moved back to the area to relocate her/his computer empire, we
21
thought we might have a chance to interest her/him in the idea. A small delegation, made up of
22
school board president Bob Waterman, PTO representative Morgan Parsons, and I went to meet
23
with Charrington in the Spring of 2013. We had a productive meeting and left with a little
24
glimmer of hope that perhaps we might make some headway. Realistically, we were anticipating
25
starting off with something small – maybe a program only for freshman or something along
26
those lines. I was shocked and delighted to hear Charrington’s proposal for the One2One
27
Program! It went well beyond our wildest dreams – and saved the district at least a half million
28
dollars.
29
We worked through the plan to provide every student in grades 9 through 12 at Palm
30
County High School a laptop computer for educational use. The high school had 563 students
31
during the 2013-2014 enrollment period. In addition, we contracted for more computers to
32
supply teachers, staff and for general building use. A total of 675 laptop units were involved in
33
the One2One program. The units would be loaded with all current software and would include
34
parental-style blocks to prevent access to inappropriate sites. Everglade Computers,
35
Charrington’s company, was eager to try out its advanced theft tracking program, TheftTrack, on
36
these computers as well. Charrington saw this I think as a way of piloting both a school laptop
37
program in rural America and to field test in greater numbers the TheftTrack capabilities. For
38
free computers, you bet we were willing to play along!
39
We did develop a plan by which students could take the computers home with them on a
40
regular basis through the use of an insurance fee. Everglade recommended a nominal fee of $60
41
for the academic year – they had done some market analysis to determine the likelihood that
42
computer units might be lost, stolen or damaged. We worked it out that any student who
43
qualified for the free or reduced lunch program would be exempt from the insurance provision.
44
Any other student had the option of paying the insurance fee and being able to take the computer
45
home or not paying and checking the computer into the computer lab each afternoon. There were
46
a few exceptions – for example when a teacher assigned a specific project that would mandate
47
the use of a computer. In those situations, the students affected could borrow a loaner laptop for
48
use at home. In addition to the computer loan program, we also signed a contract with CharTech 34
49
Tech Services, a subsidiary of Everglade Computers, to provide advanced technical support, and
50
to activate and implement the TheftTrack program when necessary.
51
We ran the program ideas past the other district administrators, the school board, our
52
PTO, and our faculty and staff. Each group was excited about the One2One program and gave its
53
enthusiastic support. The PTO offered to conduct a series of informational forums for parents.
54
Our school IT personnel agreed to work with Everglade and CharTech, to train staff and work
55
with students on the basics of the laptop programs operations. I am confident that every stake
56
holder in this enterprise was fully briefed and comfortable with the details of the program. I
57
wanted to impress upon everyone that the laptops issued by the school remained school property
58
– similar to a textbook. Users should not expect that files stored on a District resource would
59
remain in any way private.
60
Throughout the roll out of the One2One program, individual teachers and staff received a
61
number of questions from students and parents regarding various aspects of the plan. A recurring
62
question dealt with what appeared to be a technical glitch in the laptops regarding a flickering
63
green light next to the web camera. Many of the questions could be addressed by our school IT
64
staff. The more technical questions regarding program specifics and this particular glitch were
65
forwarded to Everglade and to CharTech for their explanation. I received a copy of an email
66
communication between Reese Charrington and Sydney Adams about the green light issue.
67
We established a policy with our IT department regarding any computers reported lost or
68
stolen and any users who were suspected of violating the usage code of conduct. Any computer
69
reported lost or stolen to a teacher or staff member resulted in a report to the IT department.
70
Upon receipt of this report, Palm County High School’s IT supervisor was to contact CharTech
71
Tech Services and request activation of the TheftTrack program in order to locate the lost or
72
stolen unit. Moreover, any units for which there was no insurance form received that was not
73
checked in to the computer lab after school hours also resulted in a report to CharTech. Further,
74
if there was sufficient cause to suspect misuse or substantial violation of one of the computer use
75
policies, we also would notify CharTech, not necessarily to activate TheftTrack in these
76
circumstances, but simply to put them on notice in case they came across any further evidence of
77
misuse. In each of these instances, CharTech would continue the TheftTrack procedure and
78
forward to our school’s secure server any information that might be useful in locating missing
79
laptops. Once a computer was located, we were to notify CharTech to discontinue the TheftTrack 35
80
procedure. We didn’t always do this immediately, since we wanted to make sure we actually had
81
the missing computer in hand, but once the unit was secure, we would send over notification.
82
In the situation involving Harper Sanders, we had activated TheftTrack on at least four
83
occasions because we had no insurance information on file. Once we were confident that the
84
computer was at the Sanders residence, we requested that the tracking program be deactivated. In
85
a separate incident, Harper Sanders was asked by a teacher why s/he didn’t have her/his laptop in
86
class. Harper indicated that the laptop had been either lost or stolen. Acting on this information,
87
the teacher, Sydney Adams, filed a report to the IT department. IT in turn contacted CharTech to
88
activate TheftTrack. My records indicate that the missing computer was reported on March 26,
89
2014, just a few days after Spring Break. I was unable to locate any notification that the
90
computer had been found. To the best of my knowledge then, the TheftTrack program was still
91
running on the computer issued to Harper Sanders at the time of the incident that occurred a little
92
more than 3 weeks later. I have taken action with our IT department about a potential lack of
93
oversight, but as it turns out, our mistake in this instance may have been a blessing in disguise.
94
Throughout the 2013-2014 academic year, the school received a series of indications of
95
major drug deals. In each situation, we took serious action, calling the police, placing the school
96
on lock down, and allowing drug dogs to come into the hallways to search for the suspected
97
drugs. Once we received the “all clear” we could then resume the normal class schedule. As you
98
can imagine, a complete and thorough search of a modern American high school and its grounds
99
takes hours to complete. Some may see this response as an over-reaction, but the safety of our
100
students, teachers and staff is paramount. I was concerned that the presence of drug deals could
101
lead to something much worse.
102
I provide this background as a way of explanation of the actions taken on April 14, 2014
103
with regard to Harper Sanders. On Friday, April 11, 2014, Sydney Adams reported to me that in
104
the process of resetting the computer lab after an afternoon class, s/he noticed that a Facebook
105
page had been bookmarked on a lab computer. S/he clicked on it and discovered photos and
106
commentary that led her/him to believe that there might be a drug deal developing involving
107
weapons of some sort. It was unclear from the Facebook page – which was found in the history
108
cache of the computer; when we attempted to refresh to access the current page, we found that it
109
had been deleted or blocked in some way – what type of action was going to take place or when.
110
We also did not know whether to take this seriously or not. 36
111
The next evening, on Saturday, April 12, I received a troubling phone call from Reese
112
Charrington about something discovered during the operation of the TheftTrack device on the
113
computer issued to Harper Sanders. Charrington indicated that a CharTech Tech supervisor in
114
reviewing images captured from that computer identified a web camera photograph of what
115
appeared to be drugs and a firearm. Further, a review of screen shots taken from that same
116
computer revealed part of an eMessage communication between two individuals discussing a
117
“deal” to take place on Monday, April 14, 2014 at 10 a.m.
118
Based on what I considered to be sufficient and disturbing evidence of action threatening
119
the school, students, teachers and staff, I knew that I had to take action. On the morning of April
120
14, I waited outside the main office until I saw Harper Sanders. S/he was accompanied at the
121
time by her/his friend Robert “Sketch” Michaels. I did not want to make a scene or cause any
122
undue alarm, so I waited until Sketch had gone off to class before confronting Harper. I stopped
123
Harper in the hall and asked her/him if she had anything that s/he would like to tell me about. I
124
saw a look of panic on her/his face, so I took her/him by the arm and escorted her/him into my
125
office. I closed the door and proceeded to lay out what I had found on Facebook, on the webcam
126
and on the eMessage screen shot. I was surprised by Harper’s reaction. Instead of a look of
127
dismay and guilt, s/he flashed me a broad grin and said something to the effect of “Gotcha!” I
128
admit I was confused. Harper told me that s/he had wondered who had been spying on her/him
129
since the day s/he got her/his laptop and that finally this trap worked. I was taken aback. I asked
130
permission to search her/his backpack and her/his locker for evidence of contraband. S/he replied
131
“Sure, knock yourself out,” and flipped me her/his bag. I did a cursory search and found no
132
evidence of drugs or weapons. I accompanied her/him to her/his locker and had her/him open it.
133
Again, there was no evidence of drugs or weapons. S/he asked if s/he was free to go, and I
134
indicated that we were done for the moment.
135
The next morning I received notice from a local attorney that a lawsuit had been filed
136
against the school and against me personally and that there might be criminal charges filed
137
against me for invasion of privacy. Apparently Harper had contacted a civil rights attorney
138
almost immediately after leaving my office on Monday morning and had been working to get the
139
lawsuit underway immediately.
140
Upon the advice of the school district’s attorneys and other experts consulted, we settled
141
the civil lawsuit out of court. I instructed one of our best computer teachers, Sydney Adams, to 37
142
undertake a thorough internal review of the situation and our policies. As a result of Sydney’s
143
investigation, we agreed to change our policies regarding access to computer information. We
144
agreed to destroy all filed images on our server from the TheftTrack program. We have severed
145
all ties with CharTech Tech Services and asked our new technical services provider, Brawd
146
Mawr Communications, to remove the TheftTrack system and install a less invasive technology
147
to track lost or stolen computers. There have never been any criminal charges filed. I believe the
148
only remaining issue is this lawsuit against Everglade Computers and CharTech Tech Services.
38
IN THE CIRCUIT COURT OF THE TWENTY-FIRST JUDICIAL CIRCUIT IN AND FOR PALM COUNTY, FLORIDA
Harper Sanders
) ) ) ) ) ) ) ) ) ) )
Plaintiff, vs. EVERGLADE COMPUTERS, INC. and CHARTECH TECH SERVICES, INC. Defendants.
CIVIL ACTION 2015-CA-1234
SWORN STATEMENT OF REESE CHARRINGTON
1
My name is Reese Charrington. I am 46 years old. I am the Chief Executive Officer of
2
Everglade Computers Inc. and the Chairman of CharTech Services. I have held the position with
3
Everglade since the company’s inception in 1995. CharTech is a more recent corporate entity
4
which I founded in 2007 to provide advanced technical support for users of Everglade computers
5
and our software products.
6
I grew up in rural southern Palm County and went to school in Ingram. My family farmed
7
so we had a number of out buildings on our property. Growing up I was real interested in how
8
things worked. I became interested in computers and spent quite a bit of time out in one of the
9
barns taking apart old CPUs that I found around the county. In all of this investigation, I
10
discovered a better process to build computers. Right after graduation from Palm County High
11
School in 1986, I left for Silicon Valley, California and worked in a number of computer shops. I
12
found that the managers and CEO’s of most of the existing companies really were not that
13
interested in what a rural Florida hick had to offer, but the jobs paid the bills and gave me the
14
expertise I needed to finally open my own shop. I began Everglade Computers in 1995 at the age
15
of 27 in a strip mall storefront with two other employees in Bidwell, Oregon. Little did we know
16
that the new process we had developed for streamlining production and delivery of smaller and
17
faster laptops with more power would revolutionize the industry. Within three years, Everglade
18
was among the leaders in the laptop power pc field. In the Spring of 2012, I made the decision to 39
19
relocate our corporate headquarters – accompanied by a field office and our Tech Services
20
company, CharTech, back where it all began, tiny Palm County, Florida. We located a parcel of
21
land and quickly built our state of the art facility. We were open for business in Spring 2013. We
22
brought a lot of jobs to that community – something that I am proud of.
23
Shortly after we set up shop in Palm County, I was approached by a delegation of school
24
officials about an idea they had to give each student at the local high school a laptop computer to
25
facilitate the communication between students and staff. Given our corporate mission, I felt that
26
this might be a great opportunity to pilot a project locally and then potentially expand it to other
27
rural locations. I continued talking with the school principal, Hayden O’Brien, and things quickly
28
fell into place. O’Brien was a little more cautious and wanted to roll out the program in small
29
increments – maybe start with just the staff and then slowly expand to each grade level. I told
30
her/him that when Everglade takes on a project, we go all in!
31
I think it surprised some folks that we moved so quickly. By the Fall and the start of the
32
2013-2014 school year, we were all ready to start the One2One program at Palm County High
33
School. We presented the idea to the School Board, the Parent-Teacher Organization and to a
34
select group of staff and students. All were completely supportive of the program and all were
35
gung ho on starting immediately.
36
We assisted the school with a series of presentations on the new One2One Program for
37
school staff at in-service workshops, for students at all-school assemblies and in specific
38
classrooms, and for parents at forums put together by the local PTO. We fielded questions about
39
the specifics of the program, basic workings of the computers, the insurance fee situation, and in
40
a few instances were asked about the theft recovery program. In response to the latter, we did not
41
discuss in any detail the specific functionality of TheftTrack – only that it was installed on all the
42
computers used in the One2One Program, and that it had been very successful in the past in
43
locating lost or stolen units.
44
With the Palm County High School One2One Program, we agreed to load all current
45
technology onto the laptops; to provide filtering screens to allow for parental and administrative
46
controls; and we decided to load our newest theft recovery program, TheftTrack, on these
47
computers as well.
48
In addition to providing the computers, we also contracted with the school
49
through a separate subsidiary, CharTech Services, to provide advanced IT support. The school 40
50
helpdesk could answer basic questions – lost passwords, simple software problems, difficulty
51
with web access and the like. The more technical, sophisticated problems were to be referred to
52
our own helpdesk personnel. In addition to the normal queries, I do remember one topic in
53
particular related to the green light on the webcam.
54
Now, there are a variety of reasons for the flickering green light next to the webcam – not
55
all associated with the actual use of the camera itself. Often eMessage programs will make the
56
light flicker since a number of the eMessage programs include a webcam option. Even if not
57
activated, the webcam will go into a “standby” mode and that may make the green light appear to
58
flicker on and off. Other programs have similar functions – if there is a video option for example,
59
even if it is not activated, the light again may flicker in “standby” mode. I confess that I may
60
have expressed my frustration at the rudimentary “fix” applied and recommended by some of the
61
teachers at Palm County High School. I explained that by covering the webcam, they effectively
62
disabled a major feature of TheftTrack and hinder our efforts to retrieve lost or stolen units.
63
TheftTrack is the most advanced cyber security product commercially available (there are
64
no doubt more sophisticated programs used by law enforcement and national security agencies) –
65
it allows for 3 different functions to attempt to track and locate computers. These include
66
webcam functionality, screenshot capability, and IP and DNS tracking capabilities.
67
If a computer is reported lost or stolen, we can mark it “lost” on our server and that will
68
then activate the TheftTrack feature. We can select the various means by which to track and
69
locate the missing computer. We can track by IP address and/or by screen shots and web pictures
70
of the user with the built in camera and transmit that information back to our server along with
71
information about the user’s internet connection. That information once sorted by our staff can
72
be transferred to the client and to the authorities if necessary.
73
One other feature of the TheftTrack technology is that after sending an image to our
74
server, all history of that transfer from the laptop is erased so that the user does not have any
75
record that files or pictures have been transferred. This prevents thieves from taking further steps
76
to hide or relocate the stolen computer.
77
TheftTrack has no capability to capture video or audio, and it does not permit an
78
administrator to take a photograph from a computer’s webcam or capture a screenshot from any
79
computer on command – images retrieved could be captured only through the automated process.
41
80
With this many units and such a new computer share program, One2One, we knew that
81
we would get lots of calls. Rather than hire extra staff, I asked our existing techs if they would be
82
willing to take a little overtime, perhaps volunteering some of their time – and in exchange we
83
would allow them to do quite a bit of their work from home based office suites.
84
The overtime idea and the opportunity to work from home generated a lot of good will as
85
you can imagine! The volunteer idea didn’t really fly at first, but it eventually caught on – so
86
eventually not only did they not mind doing some volunteer work, but a few were requesting
87
volunteer assignments. I chalked that up to the spirit of community and the giving nature of our
88
company and our employees.
89
The TheftTrack security feature had a defined protocol for activation. A student, teacher
90
or school employee who reported a computer lost or stolen filed a claim or report to the
91
Principal’s Office. The Principal would then inform the school’s IT department to contact
92
CharTech Tech Services with the identifying information needed to turn on the tracking device.
93
As we continued to receive data, a tech would scan through the information – deleting any
94
unusable or incomplete data – and then forward our findings back to the school. Presumably they
95
were in contact with law enforcement to take action on the identifying information we had
96
gained through TheftTrack. Once a computer was located or otherwise accounted for, the Palm
97
County High School IT Department was to notify us and we would then discontinue the tracking
98
procedure.
99
Under no circumstance was my company ever to activate the tracking software on our
100
own. And under no circumstance were we to discontinue the process until notified by the school.
101
In many circumstances the webcam and screenshot pictures would be worthless in the
102
tracking process – if a computer was closed for example the web photo would produce no result.
103
If the room in which the computer was located was unoccupied or the lights not turned on, the
104
photos similarly would not produce usable results.
105
It was a tedious process to review all of the photos and screenshots, but our employees
106
were up to the task. They were to quickly review each picture – if it was useless in the tracking
107
process, it would be deleted. If it was deemed to have some value, however marginal, it would be
108
forwarded to the school server.
109
On extremely rare occasions an employee would bring to my attention information
110
outside the scope of the tracking process but which nonetheless raised some concern. One such 42
111
instance involved the computer of Harper Sanders, a student at Palm County High School and a
112
participant in the One2One laptop program at the school.
113
We received notification from the school IT department to initiate the TheftTrack
114
function on the computer registered to Harper Sanders on Wednesday, March 26, 2014. The
115
notification included information that Sanders’s computer had been reported lost or stolen and
116
that the unit in question was not part of the insurance program. Sanders had violated the terms of
117
agreement by removing the laptop from school grounds and then apparently had been lost,
118
misplaced or stolen. Beginning the evening of March 26, we began to forward information to the
119
school on the possible location of the computer. We were not instructed to discontinue the
120
TheftTrack procedure until Tuesday, April 15.
121
Shortly before that date, on the evening of Saturday, April 12, I was contacted my one of
122
my employees, Mikey Blair, who requested an immediate meeting. It was not unusual for me to
123
be contacted on weekends or even late at night when there were technical glitches and such.
124
What caused me some concern was that Blair seemed overwrought and was adamant about
125
meeting me in the office immediately. I of course excused myself from my evening guests and
126
went to the office. There Blair delivered a photo taken by the webcam embedded in the laptop
127
computer reported lost or stolen by Harper Sanders and a screenshot of what appeared to be an
128
eMessage conversation between the user and an unknown messaging partner. The webcam photo
129
showed an array of drugs and what appeared to be a gun case. The screenshot conversation
130
seemed to indicate that a plot of some sort was being hatched – that the location was Palm
131
County High School, the date of Monday, April 14, and the time as 10 a.m. Even though this
132
information was not necessarily relevant to the TheftTrack procedure, I nonetheless felt it
133
required immediate attention. I phoned the principal, Hayden O’Brien, and described the photos
134
that I had in my possession. O’Brien asked that I forward the files directly to her/his computer
135
via email and that s/he would handle the situation from that point. I asked if s/he wished me to
136
contact either the local police for assistance. O’Brien replied that s/he would have the situation
137
under control. That was the extent of our involvement in that situation. As I indicated, we
138
received notice to disable the TheftTrack function on that same laptop on Tuesday, April 15. We
139
did as requested shortly after the delivery of that notice.
140
I was unaware of any extracurricular activities of my employees. Many have the
141
equipment and permission to work remotely, either from home offices or wherever they might be 43
142
when a helpdesk call for example is routed to their phone or computer. All employees are under
143
strict guidelines and policies only to do the work explicitly assigned to them. In the instance of
144
the employees assigned to or those who volunteered to monitor the TheftTrack service for the
145
Palm County High School One2One Program, this included scanning through data and either
146
deleting or forwarding as necessary. I required each employee to document his or her work
147
through a summary of the number of entries processed by them in a given shift and the number
148
deleted as unusable or forwarded on as potentially useful to the location of the unit in question.
149
I understand that a claim has been made by one of my employees that they frequently went
150
beyond the assigned protocol. As a result of my initial investigation into this claim, I have
151
suspended 4 employees and terminated the services of both an IT supervisor as well as the Tech
152
who made that claim, coincidentally Mikey Blair, the employee who found the evidence of the
153
drug deal. To say that I was appalled by this behavior is an understatement. I am disappointed in
154
the actions of valued employees. Swift and firm action had been taken to rectify the situation.
155
They were certainly not doing this while on the clock. This was a completely rogue action on
156
their parts.
157
I defend the actions of Everglade Computer and CharTech Tech Services. We did nothing
158
other than what was requested and expected of us. Let’s face it most people familiar with
159
electronic technology will tell you that in cyberspace there is little or no expectation of privacy.
160
Once
something
is
out
on
the
web,
44
it
is
there
for
all
to
see.
IN THE CIRCUIT COURT OF THE TWENTY-FIRST JUDICIAL CIRCUIT IN AND FOR PALM COUNTY, FLORIDA
Harper Sanders
) ) ) ) ) ) ) ) ) ) )
Plaintiff, vs. EVERGLADE COMPUTERS, INC. and CHARTECH TECH SERVICES, INC. Defendants.
CIVIL ACTION 2015-CA-1234
SWORN STATEMENT OF MORGAN PARSONS 1
My name is Morgan Parsons. My current residence is 239 Ballard Dr., Ingram, Florida.
2
My daughter, Julia, goes to the same high school as Harper Sanders, the person bringing the
3
lawsuit in this case. They were in some classes together. My daughter is very involved at school.
4
She is a member of the National Honor Society and choir. She has always been on the Honor
5
Roll, and, as a current senior, she is already accepted into six colleges. Needless to say, we raised
6
her right.
7
I also serve on the Palm County High School Parent-Teacher Organization (PTO). I am a
8
realtor so my hours are pretty flexible. This allows me to be quite active in my daughter’s school
9
and through the PTO to try my best to make it a great school.
10
A few years ago, a group of parents (myself included) sat down to chat with the school
11
principal, Hayden O’Brien, about ways to enhance the overall learning experience for all
12
students. Collectively, we came up with a wish list – this included an idea that every student at
13
the school would be issued a laptop computer for use on homework, school projects, and to
14
communicate to each other and to teachers and staff both in and out of school. We took that idea
15
and ran with it. I did a little research into cost though and quickly found that even just the price
16
of the computers would run the district more than half a million dollars. Obviously we didn’t
17
have that kind of money to spend. But the idea was there and I think all of us on the PTO kept
18
our eyes and ears open if an opportunity came our way. 45
19
And opportunity did come knocking! Ask and you shall receive, I always say! In the
20
Spring of 2013, a former graduate of Palm County High who had founded her/his own computer
21
company decided to move back to southern Palm County and set up shop. We sure loved the idea
22
of a computer company setting up in our neighborhood! Shortly after the company relocated, the
23
school board President, Bob Waterman, Principal O’Brien, and myself met with Reese about our
24
idea to give all high school students a laptop. Reese said that s/he would think about it, but that
25
the idea had some merit and might also be a good way to introduce the company to the
26
community and serve as a pilot program for other schools.
27
The next I heard in the Summer of 2013, Everglade announced a partnership with Palm
28
County High School to provide laptops for students and staff as part of the One2One Project.
29
The PTO was thrilled by the quickness of the decision. Here it was – August 2013 – and they
30
were talking about the upcoming school year!
31
The PTO assembled a committee of interested parents to assist with the roll out of the
32
program. We met with school officials and with folks from Everglade Computers and its
33
subsidiary, CharTech Tech Services, that would be providing the bulk of the IT support beyond
34
what the school could do. Principal O’Brien asked the PTO to provide forums, Q/A sessions, and
35
instruction on how the system would work to interested parents. We organized 3 different
36
meetings at 3 different times – one was a noon session, one was a 6 p.m. session and the last was
37
a Saturday morning program at 10 a.m. We gave interested parents every opportunity to come
38
and learn and ask questions. We did not take attendance at any of the meetings, nor was
39
attendance compulsory. All 3 sessions were extremely well attended – it seems that most parents
40
were eager to learn about the program.
41
Most of the presentation dealt with the distribution process, the types of software that
42
would be installed, a discussion of parental controls to block inappropriate sites, and the
43
insurance plan that would allow for computers that were lost or stolen to be replaced. I remember
44
that the presentation included talk about the computers essentially being a school textbook, that
45
they remained property of the school, but like a textbook was issued to a specific user for the
46
school year. At the end of the year, the laptop had to be turned in and any personal information
47
stored on the unit would be reviewed and erased. Because a laptop costs a lot more than a
48
Geometry text book though, and because the computers were being donated by Everglade at a
49
sizeable cost, an insurance plan was implemented. Any student who wanted to bring the laptop 46
50
home on a regular basis, had to sign a waiver and pay a nominal fee - $60 for a whole year of use
51
seems like a very small price! Any student who did not pay the insurance would have to leave
52
their laptop in a secure location in the computer lab overnight. If there was a specific homework
53
assignment or project due, those students could check out a loaner laptop overnight.
54
In the briefings that I received, there was little if any mention of privacy concerns or
55
monitoring. At the PTO forums there were a few questions about privacy, safety and monitoring,
56
but the IT presenters – from both the school and Everglade - assured parents that the tracking
57
system (likened to a car LoJack system) would only be turned on if the laptop was lost or
58
reported stolen.
59
I do not recall any extensive mention of computer monitoring by any outside agency. I
60
remember someone from either the district IT department or Everglade Computer talking about
61
theft recovery and the successes they had had in the past.
62
At one of the forums, I do recall a parent who expressed concern about “Big Brother”
63
monitoring the actions of teens while they were outside the school. The person in question
64
frequently interrupts our monthly PTO meetings with rants about coded street signs, hidden
65
cameras, ultra-sensitive microphones and a lot of other “black ops” type surveillance fears. I’m
66
afraid that just like the boy who cried wolf, we all had heard enough from that particular parent
67
to give him much credence.
68
After Labor Day, when the program was ready to be implemented, I felt that parents,
69
students and staff were fully up to speed about the One2One program and what all it involved.
70
There were more presentations to the students themselves about proper use of the laptops, school
71
policies and those sorts of things. My daughter brought home all the promotional material and
72
contracts for us to look over. There was also information on the program on the school’s website.
73
Julia brought home a brochure about the program and inside was a small insert from a
74
presentation they were given at school. I read both of them, of course. The promotional material
75
stated that the laptops were only to be used for school purposes. Furthermore, the brochure
76
mentioned a monitoring notice and the insurance requirement. This seemed like pretty standard
77
stuff. From that, I could see that CharTech Tech Services, Reese Charrington’s other company,
78
was going to monitor the laptops and provide any advanced IT support. This made absolute sense
79
to me since Everglade was so generous in providing our students with the laptops, they should
80
have the service contract and be able to keep tabs on its investment. If I were the one giving that 47
81
much money, I would want to know how it was being used, especially with high school students,
82
you never know what they are up to!
83
A couple of weeks later, this would have been around the end of September, Julia came
84
home with the “official” informational packet and contract for the leased laptop program. Even
85
in the contract it talked about how Everglade and CharTech had the ability to remotely access the
86
computers. If parents are complaining now about that, they obviously did not read the contracts
87
they signed.
88
After receiving all the information, my daughter and I sat down to talk about the
89
responsibilities of having a laptop. I mean, my daughter is one of the most trustworthy kids, but
90
she is still a high schooler. And being a high schooler you do not know everything yet. We
91
discussed whether she thought she would want to bring the laptop home. She said she would, so
92
that meant we needed to pay the insurance deposit. Even though it was only $60, my daughter
93
agreed to pay it from her own summer job money. So I ended up reading and signing the contract
94
for the laptop.
95
I’ve learned to read everything, especially all of that legal jargon on websites and on
96
contracts – you’d be amazed what you “agree” to when you blindly click “I agree”! I’ve tried to
97
teach my children to be equally cautious. My daughter understood that Everglade and CharTech
98
could access her computer, but we paid the insurance deposit so I did not think we needed to
99
worry about the remote access unless someone really stole her laptop.
100
As part of my PTO responsibilities, I’ve really tried to keep up with all of the tips, rules
101
and advice to try to keep kids safe from cyber-predators. I have had the opportunity to attend a
102
few national conferences on these issues. When the laptop program was first being considered by
103
the district, I attended a conference put on by the computer industry on cyber safety –
104
particularly for children and teens. I learned a lot of great tips – shared them with the rest of the
105
PTO and have implemented many of them in our own home. I’ve encouraged every other parent
106
who I’ve talked with to do the same. But, again, it’s not compulsory – just good common sense!
107
I learned, for example that the computer should be located in a public place in our home.
108
Even though, Julia is a senior this year and likes to talk to her friends – and uses her phone to
109
send texts and instant messages, we’ve put the computer in the dining room, and we have rules
110
about only web surfing on that computer. She’s allowed to use the laptop in her bedroom, but
111
only for homework – not to go on-line. 48
112
We also don’t allow any internet purchases – even mp3 downloads – without approval.
113
We’ve discussed identity theft – I’ve had my credit cards stolen in the past – that’s not a fun
114
experience! We have the same rules about downloads – all it takes is one “fatal error” blue
115
screen to teach you to be very careful of what you open and download!
116
When Julia was younger, we had a chat about the different types of content on the internet –
117
informational, educational, entertainment, advertising, and the really bad stuff. So she knows
118
what kinds of sites are off-limits.
119
We insist that personal information is kept personal at all times. We don’t sign up for
120
contests or coupons or on-line newsletter using real names or any identifiable information. We’re
121
also real careful about any pictures or photographs that we post – especially children – we want
122
to make sure that any identifiable information is removed or blurred – car license plates, street
123
signs, school apparel with names and mascots, etc. And we definitely insist that any personal
124
passwords are kept personal – no sharing with friends!
125 126
We ask that Julia only “friends” friends – people that s/he actually knows and has met in person. I’ve also attended a workshop on cyber-bullying and have had that talk with Julia too!
127
More than anything, I’ve found that the best way to keep my child and my family safe is to
128
polish my own computer skills. It’s real easy for teens to keep up with new technology, but it
129
requires a lot more effort for us old-fogeys. But I know that if I don’t, I’ll be putting my family at
130
risk.
131
When Julia brought her laptop home, we set it up in the dining room and we all took
132
turns familiarizing ourselves with the various programs and functions. All of the laptops include
133
built in web cameras – they’re standard these days. We noticed that the green light – indicating
134
that the camera was on – would flicker on and off at random times – it would never stay on for
135
more than a few seconds at a time, but it did give me some concern. I told Julia that she should
136
consider returning the laptop – figuring it was some sort of malfunction or loose wire or
137
something. I also encouraged her to talk to one of her teachers, Sydney Adams, about the green
138
light and possible solutions. Sydney really seems to know what s/he’s doing and I’m sure would
139
give Julia good information and advice. After consulting with her teacher, Julia told me that
140
since
141
she never uses the webcam anyway, we could solve the issue by placing a piece of duct tape over
142
the camera. We did just that and didn’t think any more about it. 49
143
Knowing what Harper Sanders has claimed happened to her/him, I guess we should have
144
been more careful. In retrospect, we parents clearly did not ask the right questions regarding
145
privacy issues related to this project. Perhaps if we had asked better, more pointed questions, we
146
would have been better informed and had a chance to avoid this whole spying debate. Having
147
said that, I honestly do not think that the school district or the computer company did anything
148
wrong. We were informed of the monitoring process, we knew that the computers belonged to
149
the school, we agreed to a set of policies – if these were violated in any way, they should have a
150
right to locate their property.
151
Every parent in the district was aware of the number of lock downs the school has
152
experienced this past year in order for police to have to conduct locker searches for drugs. Drugs
153
are a huge issue – they lead to other kinds of crime and clearly have no place in our schools or
154
our community for that matter.
155
So, in balance, if finding something on someone’s laptop meant that we could stop
156
having to do searches of schools and the school was able to get drugs out of the hands of kids,
157
I’m all for that kind of “spying.” I’d much rather infringe on one student’s privacy than to
158
jeopardize the learning environment and health of hundreds of students – including my child.
50
EXHIBITS
51
EXHIBIT A Palm County High School One2One Program Information Overview
EVERGLADE Computers Inc.
Everglade Computers, Inc. (“Everglade”) is pleased to offer a laptop computer checkout service to students. Laptops are available for the purpose of study, work, and research. Limits & Availability All students are eligible to participate in this program.
In the event all laptops are not leased to students, the reserve (excluding those held as repair backups) may be used to support faculty. Faculty checking out the laptops for school work will not be assessed a fee. Student use of the lease laptops however, will be assessed the insurance deposit fee per semester if the laptop will be taken off school grounds. The faculty check out of a leased laptop will be for one academic term. Everglade currently leases 675 laptop computers. This number can increase based upon need and available resources. The leased laptop will include a carrying case and power supply/cord. The laptop will be loaded with all current operating systems, Office functions, and Antivirus/Anti-Spyware software. Checkout Procedure ● A student leasing a laptop should read and sign a copy of the Everglade Computer Lease Agreement. A copy of this agreement will be given to the student. ● A student leasing a laptop is required to present a valid school ID card. There are no exceptions to this policy unless approved by the Principal. ● At the time of checkout, the laptop should be inspected by the student to make sure it is intact and functioning properly. Verify power supply/cable is in the case. They will be responsible for the laptop after it leaves Everglade. ● The student ID # and Laptop # will be included in the Leased Laptop Database. Lease Period The student will return the computer and all other equipment by the end of semester due date or upon discharge. A charge of $5.00 per day will be assessed for any equipment returned after the due date. Everglade Student One2One Program Information (cont’d) Check-in Procedure ● When returning, the student should allow at least five minutes for the Everglade staff to check the equipment. 52
● Remind the student that all information will be lost on the system and a back up should be done. ● Students must return the laptop to a Everglade staff member. A laptop should not be left unattended at the counter. ● A staff member will verify that all parts are present and that the computer and all accessories are in good working order. ● The laptop will be booted up and checked for functionality upon return. ● The laptop will then be checked in on the Leased Laptop Database. ● Verify that the service tag # matches the case # on the Leased Laptop Spreadsheet. ● Everglade staff will re-image the hard drive, clean the exterior of the laptop, and verify AntiVirus, Anti-spyware, and Windows Updates have been updated. The laptop will then be placed on the storage shelf. Fines & Liability ● The student will return the computer and all other equipment on the end of semester due date. A charge of $5.00 per day will be assessed for any equipment returned after the due date. ● At the end of the term of this Lease, the student will return the Computer to Everglade in as a good condition as when received; wear from reasonable use is expected. ● The student will be responsible for any damage to the Computer while in the student’s possession, and shall pay Everglade the value of the Computer or any part thereof, as may be lost, stolen, damaged or destroyed. Removal or defacing of serial numbers or other identification markings shall constitute damage to the equipment. ● The student is responsible for making sure that the laptop is in working order and without physical damage when it is checked out. ● Under no circumstances should a student leave the laptop unattended. Troubleshooting Problems & Questions ● If student experience problems with laptop hardware or application or have questions, they should contact Everglade Helpdesk at ext. 4357. ● The student will be fiscally responsible for damage to a laptop if he/she tries to troubleshoot problems.
Everglade Student One2One Program Information (cont’d) Disclaimer ● Everglade is not responsible for damage to any removable drive (i.e. floppy, CD or flash drive) or loss of data that may occur due to malfunctioning hardware or software.
53
EXHIBIT B
Laptop #Z-15774589 COMPUTER LEASE AGREEMENT STUDENT NAME: Harper FIRST
______Lansing MIDDLE
______
Sanders LAST
STUDENT # 0012485 THIS LEASE is entered into between Everglade Computer, Inc., (“Everglade”) and (the “Student”) for the lease of a Laptop Computer, Windows operating system, Microsoft Office, Norton Antivirus enterprise edition, associated cables, and parts and labor onsite warranty. 1. Lease the Computer Everglade leases the Computer to the Student for no charge. If the Student would like to take the laptop off school grounds, there is a $60.00 insurance deposit. Students are responsible for the purchase of expendable supplies such as paper, removable disks, print cartridges, etc. 2. Ownership Everglade will deliver the Computer to the Student at the school at no cost to the Student, however, ownership of the Computer shall at all times remain with Everglade. 3. Maintenance Hardware support for the leased laptops will be provided by the warranty and maintained by Everglade. Students will be allowed to borrow a reserve laptop (a limited number are in reserve) during periods while the leased machine is under repair. 4. Storage and Distribution Laptops will be checked-in at the school when Students leave school at the end of the each semester. At this time the laptop will be examined to ensure it is in working condition and that all parts are returned. Damaged and missing parts will be charged to the Student. The Student will download their data onto a disk and retain it because the same machine may not be reissued after the break. 5.
Obligations of the Student The Student promises Everglade that during the term of the Lease:
54
Everglade Student One2One Program Contract (cont’d) (a) The Student will cause the Computer to be operated only in accordance with applicable instructions provided by the Everglade representative or the manufacturer of the Computer and shall not modify the computer in any way. (b) The Student will allow authorized personnel, at all reasonable times to service or otherwise examine the condition of the Computer. (c) The Student will be responsible for any damage to the Computer while in the Student’s possession, and shall pay to Everglade the value of the Computer, or any part thereof, as may be lost, stolen, damaged or destroyed. Removal or defacing of barcodes, serial numbers, or other identification marking shall constitute damage to the equipment. (d) At the end of the term of this Lease, the Student will return the Computer to Everglade in as a good condition as when received; wear from reasonable use is expected. (e) The Student will return the computer and all other equipment on the end of semester due date. A charge of $5.00 per day will be assessed for any equipment returned after the due date. 6. Termination for Default Everglade may terminate this Lease, without notice or demand, if the Student damages the Computer under the terms of this Lease. Such termination, however, shall not release the Student from the payment of any damages sustained by Everglade. If the Lease is terminated for abuse of the Computer, a representative of Everglade may remove the Computer from the Student without liability to Everglade. 7. Costs and Fees The Student will be responsible for the payment of any reasonable costs and fees incurred by Everglade in enforcing any of the terms of this lease. 8. Monitoring Notice Everglade retains the right to remotely activate the laptop in the case of a possible lost or stolen laptop. This remote activation will help protect Everglade’s investment and ensure a quick recovery time. 9. Governing Law This Lease will be governed by the laws of the State of Florida, and constitutes the entire agreement between Everglade and Student with respect to the furnishing of the Computer by Everglade.
55
Everglade Student One2One Program Contract (cont’d) In consideration of Everglade leasing the Computer to the above-named Student, the undersigned personally and unconditionally guarantees the payment and performance of, and agrees to be subject to, all the terms and conditions of this Lease until all obligations under the Lease are fulfilled, including payment of any reasonable costs and fees incurred by Everglade in enforcing any of the terms of this Lease, and agrees that the execution of this Guaranty by the undersigned constitutes the transaction of business in the State of Florida. STUDENT SIGNATURE
Harper Sanders
_
PARENT SIGNATURE (Required if Student under the age of 18)
END OF SCHOOL YEAR DUE DATE: Thursday, June 5, 2014 ACKNOWLEDGED BY:
Pat Lipski
INSURANCE DEPOSIT: Yes: ____
DATE: No: __X__
56
9/13/13
EXHIBIT C One2One Program Information Page
EVERGLADE
One2One
Computers Inc.
Pilot Program Information Investing in our future…
A b o u t th e pr o g r a m Everglades Computers, Inc. has continuously invested and supported the needs of our upcoming leaders – students. Now Everglades has taken a step further. We are proud to announce that Everglades will sponsor a laptop pilot for students at Palm County High School. The heart and soul of this initiative is to provide tomorrow’s leaders with the innovation to learn and grow today. This exciting new project will provide laptops to all students at PCHS for use on various school projects. Students may use the Parents – laptops for activities such as researching and writing papers, creating exciting presentations, and even accessing online classes If you have any questions pertaining and tutorials. Just like our students, the potential is unlimited. In to the use laptop use contract, addition to helping students excel in academics, access to monitoring notice, insurance technology will also foster much needed computer and technology requirement, or any general skills for both every day needs and future careers. information about the company, Portable Laptops unlock the doors of the classroom and provide students and teachers with the ability to take technology outside of the school. For a minimal insurance fee of $60, students can take their laptop home, to the library, and even to the coffee shop to complete their work.
please feel free to call us! Our goal is to help our students, but by helping our students, we also aim to help you!
Safe The protection of our students is paramount. Each laptop will be equipped with top of the line security so students can feel safe and secure while using our technology. Each laptop will be safe, private, and secure with pre-installed spam, firmware, and virus protection. These measures will keep the students’ personal information safe as well as protecting their work. About Everglades Computers, Inc. Everglades Computers, Inc. is a successful company in computer innovation. In 1995, Reese Charrington incorporated Everglades Computers, Inc. Charrington first employed ten people in a small building. Now Everglades employs over 850 and serves more than sixteen states. Everglade Computers, Inc. 1886 Sunshine Parkway Ingram, Florida 50932 Phone: 712.123.4567 57 Fax: 712.123.9876 www.evergladescomp.com
EXHIBIT D Everglade Monitoring Notice Insert to Information page
Notice ***The computer involved in this pilot program have the best technology currently available to learn and understand the needs of students. Part of this pilot program is tracking the use of the laptops. Consequently, each laptop has a shared link to Everglade Computers, Inc. This link helps track the location, use, and other important information regarding the company’s large investment in America’s youth.
58
EXHIBIT E Interoffice Email between Everglade/CharTech Employees
From:
Mikey Blair
To:
Undisclosed List
Date:
March 6, 2014
Subject:
“Peeps” Show!
Hey Kids! Don’t forget the weekly “Peeps” Show Party at my house! It’s the reality show that’s sweeping Palm County! Come One, Come All! Bring your fav photos and scenes from the past week to share! BYOB - snacks Provided 10 PM Friday & Saturday
Be There or Be Square!
59
EXHIBIT F Screen Shot of eChat Conversation
sketchball:
whats going on?
Harp174:
time to make a deal.
sketchball:
you got it?
Harp174:
All set
sketchball:
plan?
Harp174:
Monday @ 10 – hallway PCHS
sketchball:
what do u have?
Harp174:
green, white, bottles…the case
sketchball:
sounds like a solid transaction
harp174:
;-)
sketchball:
ill make sure I have my stuff for the exchange
harp174:
thx
60
EXHIBIT G Webcam Photo
61
EXHIBIT H
Palm County High School One2One Computer Program Notification of Lost Computer Date: ______March 26, 2014________________________________________ Name (user):_Harper Sanders_________________________________________ ID#: _W4213865S________________________________________________
_X__ Lost
___ Believed Stolen
Approx. Date Last Seen: ___March 21, 2014__________________________
I hereby authorize Palm County High School and its contracted partners to activate TheftTrack to locate this missing computer. User Signature: ___Harper Sanders_____________________________ Reported to: _____Sydney Adams________________________________
62
EXHIBIT I Email Thread
From: R Charrington To: H Obrien To: S Adams Date: 9/25/13 Time: 2:15 p.m. Re:
re:TheftTrack?
I will tell you that the TheftTrack feature is only used to track equipment that is reported lost or stolen. The only information that this feature captures is IP and DNS info from the network it is connected to and occasional screen/camera shots of the computer being operated. This information is provided to police to hopefully assist in getting the laptop back to us. This feature has already been used to retrieve laptops that would have otherwise been lost and can only be activated by qualified techs at CharTech. Once again, it is only activated in the case where a laptop is reported as stolen or missing. The tracking feature does NOT do things like record web browsing, chatting, email or any other type of “spyware” features that you might be thinking of. The police state concern is certainly a valid one. But I assure you that we in no way shape or form employ any of these tactics ESPECIALLY with computers off the network.
From: H Obrien To: S Adams To: R Charrington Date: 9/25/13 Time: 1:42 p.m. Re:
re:TheftTrack
Sydney - I’m not sure that what you’ve found is correct. What I know for certainty is that there is absolutely no way that the District Tech people are going to monitor students at home. There is no plan, no staff, no desire and I believe no technical way to do that. I will definitely confirm the technical pieces. If we were going to monitor students at home, we would have stated so. Think about it - why would we do that? There is no purpose - we are not a police state! Palm County has always been ahead of the curve when it comes to the privacy and safety of our students and staff. There is no way that I would approve or advocate for the monitoring of students at home. I suggest you take a breath and relax.
63
EXHIBIT I Email Thread (cont.) From: S Adams To: H Obrien To: R Charrington Date: 9/24/13 Time: 11:35 a.m. Re:
TheftTrack?
I recently learned of the remote monitoring function on the One2One computers - TheftTrack? So, we’re able to access information on these computers even when they’re off network? I guess I wouldn’t find this a problem if students were informed that this was possible, for privacy’s sake. But I don’t recall telling students or their parents, or even staff users of this function. I find this an appalling breach of privacy! While you say that this access will not be abused, I feel that this is not enough to ensure the integrity of students and other users and that even if it was no one would have any way of knowing (especially end users). I feel it would be best that students and parents are informed of this before they receive their computers. And while I still remain supportive of the One2One program, it does sway my opinion of the program - I could really see not informing parents and students of this fact causing a huge uproar.
64
EXHIBIT J Email From: R Charrington To: S Adams Date: 10/19/13 Re:
re:FW: Webcam Light?
In my opinion, in the interest of theft protection, teachers should not even be allowed to cover the camera like they do now - and certainly not recommend that to students. If their laptop gets stolen, that is a major piece of the theft tracking gone bye bye just because someone is uninformed on what the use of the camera is. The camera can NOT be used without the little green light being on so if it is on, they will know it. And only the administrators here at Everglade and CharTech have the ability to enable the TheftTrack program which does not record video, only a snapshot every 15 minutes or so. Is someone afraid that we’re spying on them? We do not publicize the capabilities of TheftTrack for obvious reasons. Telling students how we might track lost or stolen machines would defeat the purpose of the device. If you’re controlling someone’s machine, you don’t want them to know what you’re doing. I trust you to keep the specific functionality of TheftTrack to yourself and let our expert techs handle the situation.
From:
[email protected] To: R Charrington Date: 10/19/13 Time: 5:47p.m. Re:
FW: Webcam Light?
I am hoping someone at IT can provide me with an explanation about the function of many of the student laptops. This is not my first inquiry into the matter and I have sent you all multiple messages about this with no response. Multiple students have inquired about the green light by the webcam flickering on and off. They have expressed concern about someone possibly watching/monitoring them remotely. In light of previous conversations and my expressed concerns, I wanted to find out of this is a system error or technology glitch, or if the students’ concerns are warranted. Please be advised that I have instructed my students to place a piece of tape or sticky paper over the web cam until I can provide them with a solid answer. This is what I have done in the interest of protecting my privacy. I appreciate your attention to this matter. Sydney Adams
[email protected] 65
Relevant Case Law Article I, Section 23 of the Florida Constitution: Right of privacy.—Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law. Restatement (Second) of Torts: Intrusion Upon Seclusion. One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person. Restatement (Second) of Torts: Damages for Invasion of Privacy. One who has established a cause of action for invasion of his privacy is entitled to recover damages for the harm to his interest in privacy resulting from the invasion, as well as his mental distress suffered, if it is of a kind that normally results from such an invasion. Section 934.02, Florida Statutes Definitions (3) “Intercept” means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device. (12) “Electronic communication” means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photooptical system that affects intrastate, interstate, or foreign commerce, but does not include: (a) Any wire or oral communication; (b) Any communication made through a tone-only paging device; (c) Any communication from an electronic or mechanical device which permits the tracking of the movement of a person or an object; or (d) Electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds. Section 934.03, Florida Statutes Interception and disclosure of wire, oral, or electronic communications prohibited.— (1) Except as otherwise specifically provided in this chapter, any person who: (a) Intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, oral, or electronic communication; (b) Intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when: 1. Such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or 2. Such device transmits communications by radio or interferes with the transmission of such communication; (c) Intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; (d) Intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; or 66
(e) Intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication intercepted by means authorized by subparagraph (2)(a)2., paragraph (2)(b), paragraph (2)(c), s. 934.07, or s. 934.09 when that person knows or has reason to know that the information was obtained through the interception of such a communication in connection with a criminal investigation, has obtained or received the information in connection with a criminal investigation, and intends to improperly obstruct, impede, or interfere with a duly authorized criminal investigation; shall be punished as provided in subsection (4). *** (3)(a) Except as provided in paragraph (b), a person or entity providing an electronic communication service to the public shall not intentionally divulge the contents of any communication while in transmission on that service to any person or entity other than an addressee or intended recipient of such communication or an agent of such addressee or intended recipient. (b) A person or entity providing electronic communication service to the public may divulge the contents of any such communication: 1. As otherwise authorized in paragraph (2)(a) or s. 934.08; 2. With the lawful consent of the originator or any addressee or intended recipient of such communication; 3. To a person employed or authorized, or whose facilities are used, to forward such communication to its destination; or 4. Which were inadvertently obtained by the service provider and which appear to pertain to the commission of a crime, if such divulgence is made to a law enforcement agency. (4)(a) Except as provided in paragraph (b), whoever violates subsection (1) is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s. 934.41. (b) If the offense is a first offense under paragraph (a) and is not for any tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain, and the wire or electronic communication with respect to which the offense under paragraph (a) was committed is a radio communication that is not scrambled, encrypted, or transmitted using modulation techniques the essential parameters of which have been withheld from the public with the intention of preserving the privacy of such communication, then: 1. If the communication is not the radio portion of a cellular telephone communication, a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit, a public land mobile radio service communication, or a paging service communication, and the conduct is not that described in subparagraph (2)(h)7., the person committing the offense is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. 2. If the communication is the radio portion of a cellular telephone communication, a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit, a public land mobile radio service communication, or a paging service communication, the person committing the offense is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Section 934.10, Florida Statutes Civil remedies.— (1) Any person whose wire, oral, or electronic communication is intercepted, disclosed, or used in violation of ss. 934.03-934.09 shall have a civil cause of action against any person or entity who intercepts, discloses, or uses, or procures any other person or entity to intercept, disclose, or use, such communications and shall be entitled to recover from any such person or entity which engaged in that violation such relief as may be appropriate, including: (a) Preliminary or equitable or declaratory relief as may be appropriate; (b) Actual damages, but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher; (c) Punitive damages; and (d) A reasonable attorney’s fee and other litigation costs reasonably incurred. 67
(2) A good faith reliance on: (a) A court order, subpoena, or legislative authorization as provided in ss. 934.03-934.09, (b) A request of an investigative or law enforcement officer under s. 934.09(7), or (c) A good faith determination that Florida or federal law, other than 18 U.S.C. s. 2511(2)(d), permitted the conduct complained of shall constitute a complete defense to any civil or criminal, or administrative action arising out of such conduct under the laws of this state. (3) A civil action under this section may not be commenced later than 2 years after the date upon which the claimant first has a reasonable opportunity to discover the violation.
Restatement of Torts Conversion is the wrongful possession or disposition of another’s property as if it were one’s own; an act or series of acts of willful interference, without justification, with an item of property in a manner inconsistent with another’s right, whereby that other person is deprived of the use and possession of the property.
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JURY INSTRUCTIONS Liability Of Employer. An employer is liable for the wrongful acts of an employee if the acts are done in the scope of the employment. Scope Of Employment. For an act to be within the scope of an employee's employment, the act must be associated with the purpose of the employment and it must be intended to accomplish that purpose. Invasion of Privacy. For an invasion of privacy to be actionable under Article I, Section 23, of the Florida Constitution, the Plaintiff must prove (1) action by a public entity within the State of Florida, (2) a legitimate expectation of privacy on the part of the Plaintiff, and (3) an intentional or knowing intrusion upon another person’s solitude, seclusion, private affairs, or concerns in a manner that would be highly offensive to a reasonable person. One who invades the right of privacy of another is subject to liability for the resulting harm to the interests of the other. The right of privacy is invaded by (a) unreasonable intrusion upon the seclusion of another; or (b) appropriation of the other's name or likeness; or (c) unreasonable publicity given to the other's private life; or (d) publicity that unreasonably places the other in a false light before the public. Invasion of Privacy – Defenses. It shall be a defense to an action under Article I, Section 23 of the Florida Constitution that the Defendant has acted in furtherance of protecting a compelling interest and has taken such action in the least intrusive manner. In addition, it shall be a defense to an action under Article I, Section 23 of the Florida Constitution that the Plaintiff has consented to the complained-of action. Interception of Communications. An unlawful interception of communication occurs when a person willfully uses, or endeavors to use, the contents of a wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication. Use may include personal use such as viewing or disseminating information. Conversion is the wrongful possession or disposition of another’s property as if it were one’s own; an act or series of acts of willful interference, without justification, with an item of property in a manner inconsistent with another’s right, whereby that other person is deprived of the use and possession of the property.
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The Florida High School Mock Trial Official Rules of Competition
Improving Justice through Law and Citizenship Education Opportunities Th e F l o r i d a L a w R e l a t e d E d u c a t i o n A s s o c i a t i o n , I n c . 2930 Kerry Forest Parkway, Suite 202 Tallahassee, Florida 32309 Office (850) 386-8223 ▪ Fax (850) 386-8292 E-mail:
[email protected] ▪ Web site: http://www.flrea.org
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RULES OF THE STATE COMPETITION Rule I: Team Composition/Presentation 1) The competition is open to students currently enrolled in grades 9-12 in Florida schools. All students on a team must be enrolled in the same school in the district they are representing. 2) Only one team may represent a high school at any level of competition. 3) Teams shall consist of six to eight students including alternates to be used in any manner deemed appropriate by the teacher and coach, as long as the distribution of duties does not conflict with competition Rule IV. For each trial round, teams shall use three students as attorneys and three students as witnesses. 4) Students may switch roles for different rounds of trials (i.e. a student may be an attorney for the defense and a witness for the Plaintiff during separate rounds). 5) Each team must be fully prepared to argue both sides of the case. (Plaintiff/Prosecution and Defense/Defendant) using six team members. 6) Students of either gender may portray the role of any witness. The competition will strive to make roles gender neutral. However, some cases will warrant a specific gender role. In such cases, students of either gender may portray the role but the gender of the witness may not change from the case as presented. 7) Team Roster/"Roll" Call Copies of the Team Roster form must be completed and returned prior to arrival at the competition site. Teams should be identified by the code assigned at registration. Before beginning a trial, teams will be asked to prepare a "Roll Call" list to identify the students participating in each round and their corresponding roles. No information identifying team origin should appear on the list. 8) All teacher coaches and students must attend the mandatory general assembly/orientation. Attorney coaches who accompany their team must also be present. 9) Immediately following the mandatory general assembly, all teachers and attorney coaches affiliated with participating Mock Trial teams must attend a Teacher and Coaches Meeting, which will include a review of the rules and power matching system. Rule II: The Case 1) The case may contain any or all of the following stipulations: documents, narratives, exhibits, witness statements, etc. 2) The stipulations (and fact statements, if any) may not be disputed at the trial. Witness statements may not be altered. 71
3) All witnesses must be called. Rule III: Trial Presentation 1) The trial proceedings will be governed by the Florida Mock Trial Simplified Rules of Evidence. Other more complex rules may not be raised at the trial. Questions or interpretations of these rules are within the discretion of the State Mock Trial Advisory Committee, whose decision is final. 2) Each witness is bound by the facts contained in his/her own witness statement, the Statement of Facts, if present, and/or any necessary documentation relevant to his/her testimony. Fair extrapolations may be allowed, provided reasonable inference may be made from the witness' statement. If, in direct examination, an attorney asks a question which calls for extrapolated information pivotal to the facts at issue, the information is subject to objection outside the scope of the problem. If, on cross-examination, an attorney asks for unknown information, the witness may or may not respond, so long as any response is consistent with the witness' statement or affidavit and does not materially affect the witness' testimony. Adding facts that are inconsistent with the witness statement or with the Stipulated Facts and which would be relevant with respect to any issue in the case is not permitted. Examples include, but are not limited to (a) creating a physical or mental disability, (b) giving a witness a criminal or bad record when none is suggested by the statements, (c) creating facts which give a witness standing as an expert and (d) materially changing the witness' profession, character, memory, mental or physical ability from the witness’ statement by testifying to "recent changes." 3) If certain witnesses are stipulated to as experts, their expert qualifications may not be challenged or impeached by the opposing side. However, their testimony concerning the facts of the case may be challenged. 4) On direct examination, the witness is limited to the facts given. If a witness testifies in contradiction to the facts given in the witness statement, that testimony may be impeached on cross-examination by the opposition through the correct use of the affidavit. The procedure is outlined in the Rules of Evidence. 5) On cross-examination, no restrictions will be made on the witness or the cross-examination, except that the answer must be responsive and the witness can be impeached. If the attorney who is cross-examining the witness asks a question, the answer to which is not contained in the stipulations or affidavit then the witness may respond to that question with any answer as long as the answer does not contradict or materially change the affidavit. If the answer by the witness is contrary to the stipulations or the affidavit, the cross-examination attorney may impeach the witness. 6) Use of voir dire examination of a witness is not permitted.
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Rule IV: Student Attorneys 1) Team members are to evenly divide their duties. During any single round, each of the three attorneys will conduct one direct and one cross; in addition, one will present the opening statements and another will present closing arguments. In other words, the attorney duties for each team will be divided as follows: a) Opening Statements b) Direct/Re-direct Examination of Witness #1 c) Direct/Re-direct Examination of Witness #2 d) Direct/Re-direct Examination of Witness #3 e) Cross/Re-cross Examination of Witness #1 f) Cross/Re-cross Examination of Witness #2 g) Cross/Re-cross Examination of Witness #3 h) Closing Arguments i) Plaintiff’s/Prosecution’s optional closing rebuttal (see Rule XV) Opening statements must be given by both sides at the beginning of the trial. The attorney who will examine a particular witness on direct examination is the only person who may make the objections to the opposing attorney's questions of that witness on cross examination, and the attorney who will cross-examine a witness will be the only one permitted to make objections during the direct examination of that witness. Each team must call the three witnesses listed in the case materials. Witnesses must be called only by their own team and examined by both sides. Witnesses may not be recalled. 2) Attorneys may use notes in presenting their cases. Witnesses are not permitted to use notes while testifying during the trial. 3) To permit judges to hear and see better, attorneys will stand during opening and closing statements, direct and cross-examinations, all objections, and whenever addressing the presiding judge. Students may move from the podium only with the permission of the presiding judge. Rule V: Swearing of Witnesses The presiding judge will indicate that all witnesses are assumed to be sworn. Rule VI: Case Materials 73
Students may read other cases, materials, and articles in preparation for the mock trial. However, students may cite only the case materials given, and they may introduce into evidence only those documents given in the official packet. In addition, students may not use, even for demonstrative purposes, any materials that are not provided in the official packet. The following are not permitted: props, costumes, enlargements, computers, phones, or electronic devices of any kind. Rule VII: Trial Communication Instructors, alternates, and observers shall not talk to, signal, communicate with, or coach their teams during trial. This rule remains in force during any recess time that may occur. Team members within the bar area may, among themselves, communicate during the trial; however, no disruptive communication is allowed. Non-team members, alternate team members, teachers, and coaches must remain outside the bar in the spectator section of the courtroom. Only the six members participating in this round may sit inside the bar. Rule VIII: Trial Start Time The starting time of any trial will not be delayed for longer than ten minutes unless approved by the Mock Trial Coordinator. Incomplete teams will have to begin without their other members or with alternates. Rule IX: Conduct/Attire All participants are expected to demonstrate proper courtroom decorum and display collegial sportsmanlike conduct. Appropriate courtroom attire is required. Adherence to the Code of Ethics is expected of all participants. Rule X: Videotaping/Photography Cameras and recording devices are permitted in certain courtrooms; however, the use of such equipment may not be disruptive and must be approved in advance of the competition by The Florida Law Related Education Association, Inc. When one team requests to videotape during a trial, the opposing team must be consulted and their permission granted prior to taping. Rule XI: Witnesses Witnesses are to remain in the courtroom during the entire trial. Rule XII: Jury Trial For purposes of the competition, students will assume this is a jury trial. The scoring judges will act as the jury. The presiding judge is the trial judge. Students should address the scoring judges and the presiding judge. Rule XIII: Viewing a Trial 74
Team members, alternates, attorney coaches, teacher coaches, and any other persons directly associated with a mock trial team, except those authorized by the State Advisory Committee, are not allowed to view other teams in competition so long as their team remains in the competition. Judges should maintain order in the courtroom. If observers are disorderly, they will be asked to vacate the premises. Rule XIV: Decisions ALL DECISIONS OF THE JUDGES ARE FINAL.
Rule XV: Time Limits 1. A total time will be given to each side for direct, cross, re-direct, and re-cross. The sequence and time limits are: Opening Statements
5 minutes per side
Direct Examination and Re-direct Examination (optional)
24 minutes total per side
Cross Examination and Re-cross Examination (optional)
21 minutes total per side
Closing Argument
5 minutes per side
None of the foregoing may be waived except the optional times, nor the order changed. The Plaintiff/Prosecution gives the opening statement first. The Plaintiff/Prosecution gives the closing argument first; the Plaintiff/ Prosecution may reserve one minute or less of the closing time for a rebuttal. Plaintiff/Prosecution must notify the judge before beginning closing argument if the rebuttal time is requested. The Plaintiff’s/Prosecution’s rebuttal is limited to the scope of the defense’s closing argument. Attorneys are not required to use the entire time allotted to each part of the trial. Time remaining in one part of the trial may not be transferred to another part of the trial. 2. Timing will halt during objections and responses to objections. Timing will not halt during the admission of documentary evidence, unless there is an objection by opposing counsel. In the interest of fairness, time extensions may be granted at the discretion of the presiding judge. All objections should be argued in open court, not at the bench. Timing will resume after the judge has ruled on the objection. Students should avoid the use of tactics to "run out the clock" during the admission of evidence. Judges will be instructed to consider this in the Team Ethics scoring category. 75
3. A "timekeeper" will be provided and will keep the official time of the trial. The timekeeper's role will be expanded to time the 10 minute debrief session for each side. This will help ensure that the schedule is maintained. The timekeeper will announce to the court when time has expired in each of the separate segments of the trial. Further, the timekeeper will bring a calculator to each courtroom and double check the scores of scoring judges to ensure no ties. Judges will be instructed not to tie the teams during any round. This will eliminate the issue of vote assignments during ties. 4. Teams are permitted to keep their own time. However, this will not be considered the official time of the trial. Teams are not permitted to have an extra person be the timekeeper. One of the six participants may be the timekeeper. Team timekeepers must not interfere with the trial or obstruct the view of any witness. Rule XVI: Judging 1) The presiding judge provides a mandatory performance vote during each round/trial for the team that he or she feels gave the better performance during that round/trial. The presiding judge does not award points to the teams. The presiding judge’s score sheet is a short form on which the judge declares which team in his or her opinion exhibited the best performance. The presiding judge should not announce the mandatory performance vote. 2) The scoring judges (jury) will utilize prepared score sheets to rate the quality of the students' performances in the round/trial. The judges will be instructed to rate the performance of all witnesses and attorneys on the team. Judges will not announce the presentation decision. Judges should make field notes on students' performances during the round/trial. 3) Judges will be instructed not to tie teams in any round/trial. In the event scores are computed by the judges and errors are found in the computations, score room staff will correct the errors and the corrected scores will be the official scores after adding the individual categories/assessments. 4) The team receiving the majority of the performance votes from the three judges is declared the winner of the trial/round. 5) To enhance the students' learning experience, the judges will be instructed to give each team an oral critique after their deliberation. The decision on which team gave the better performance will not be given to the participants. Students and their coaches will have the opportunity to meet informally with all the judges for 20 minutes (10 minutes per team) immediately following the round/trial. Score sheets should be completed before the debriefing. Debriefing sessions will be timed by the timekeepers to avoid lengthy debriefs. 6) ALL DECISIONS OF THE JUDGES ARE FINAL. 7) The Team Ethics category will score students on the standards recognized in the Code of Ethical Conduct. 8) Attorney coaches of mock trial teams that do not advance from the local competition may not serve as a judge in any capacity at any level of competition during the remainder of the competition year. Teacher coaches of mock trial teams may not serve as judges in any capacity. Teacher coaches may serve as timekeepers if their team does not advance from their local competition. 76
Rule XVII: Dispute Settlement 1) Reporting a Rules Violation Inside the Bar If any team has serious reason to believe that a material rules violation has occurred during a trial round, one student attorney member of the team shall communicate that a dispute exists to the presiding judge immediately after the trial is over and before the critique begins. The scoring judges will be excused from the courtroom, but should remain in the vicinity. 2) The presiding judge will ask that both teams remain in the courtroom. A dispute form shall be completed by the student attorney to record in writing the nature of the dispute. The student attorney may communicate with other student attorneys and witnesses on the team before preparing the form. No more than 3 minutes may be taken to complete the form. At no time in this process may team sponsors or coaches communicate or consult with the students. Only student attorneys may invoke the dispute procedure. 3) Dispute Resolution Procedure The presiding judge will review the written dispute and determine whether the dispute should be heard or denied. If the dispute is denied, the judge will record the reasons for this, announce her/his decision to the Court, retire to complete his/her score sheet (if applicable), and turn the dispute form in with the score sheets. If the presiding judge feels the grounds for the dispute merit a hearing, the form will be shown to opposing student counsel for their written response. After the team has recorded its response and transmitted it to the judge, the judge will ask each team to designate a spokesperson. After the spokespersons have had time (not to exceed three minutes) to prepare their arguments, the presiding judge will conduct a hearing on the dispute, providing each team's spokesperson three minutes for a presentation. The spokespersons may be questioned by the presiding judge. At no time in this process may team sponsors or coaches communicate or consult with the student attorneys. After the hearing, the presiding judge will adjourn the court and retire to consider her/his ruling on the dispute. The judge will make a final decision as to whether or not a rules violation has occurred. That decision will be recorded in writing on the dispute form. The presiding judge is not required to announce his/her decision to students. 4) Effect of Violation on Score If the presiding judge determines that a substantial rules violation has occurred, the presiding judge will inform the scoring judges of the dispute and provide a summary of each team's argument. The scoring judges will consider the dispute before finalizing their scores. The dispute may or may not affect the final decision, but the matter will be left to the discretion of the scoring judges. All decisions of the judges are FINAL. Rule XVIII: Reporting a Rules Violation Outside the Bar 1. Disputes that (a) involve people other than student team members and (b) occur outside the bar only during a trial round may be brought by teacher or attorney-coaches exclusively. Such disputes must be entered on a complaint form and turned in to the registration area. The Mock 77
Trial State Coordinator and/or Advisory Committee will review the dispute for appropriate action, if needed. Decisions and actions of the coordinator and/or committee are FINAL. Rule XIX: Score Sheets/Ballots a) Score sheets will be completed individually by scoring judges. The presiding judge will cast a mandatory performance vote, but no points for each round. Judges may not inform students of score sheet results. b) The term “ballot” will refer to the decision made by a scoring judge as to which team made the best presentation in the round. The term “score sheet” is used in reference to the form on which speaker and team points are recorded. Score sheets are to be completed individually by the scoring judges. Scoring judges are not bound by the rulings of the presiding judge. The team that earns the highest points on an individual judge’s score sheet is the winner of that ballot. The team that receives the majority of the three ballots wins the round. The ballot votes determine the win/loss record of the team for powermatching and ranking purposes. While the judging panel may deliberate on any special awards (i.e., Outstanding Attorney/Witness) the judging panel should not deliberate on individual scores. c) Individual assessment categories including team ethics and team performance shall be judged on a 110 scale by scoring judges only. d) In the event of a mathematical error in tabulation by scoring judges, score room staff will enter the correct tabulation of the scores. Rule XX: State Competition Power Matching/Seeding Model 1) The Florida High School Mock Trial Competition uses a power matching system. 2) A random method of selection will determine the opponents in the first round. A power match system will determine opponents for all other rounds. The two schools emerging with the strongest record from the four rounds will advance to the final round. The first-place team will be determined by ballots from the championship round only. 3) Power matching will provide that: a) Pairings for the first round will be at random. b) All teams are guaranteed to present each side of the case at least once. c) Brackets will be determined by win/loss record. Sorting within brackets will be determined in the following order: (1) win/loss record; (2) ballots; (3) total points; then (4) point spread. The team with the highest number of ballots in the bracket will be matched with the team with the lowest number of ballots in the bracket; the next highest with the next lowest, and so on until all teams are paired. d) If there are an odd number of teams in a bracket, the team at the bottom of that bracket will be matched with the top team from the next lower bracket. e) Teams will not meet the same opponent twice. 78
f) To the greatest extent possible, teams will alternate side presentation in subsequent rounds. Bracket integrity in power matching will supersede alternate side presentation. Rule XXI: Completion of Score Sheets 1. Each scoring judge shall record a number of points (1-10) for each presentation of the round/trial. At the end of the trial, each scoring judge shall total the sum of each team’s individual points and place this sum in the column totals box. The team with the greater number of points wins that scoring judge’s performance vote/ballot for that trial/round. 2. The presiding judge shall circle either Plaintiff/Prosecution or defense/defendant on his or her score sheet/ballot to indicate which team the presiding judge feels gave the better performance during the trial/round. The team that the presiding judge circles on their score sheet/ballot receives that presiding judge’s performance vote/ballot for that trial/round.
Rule XXII: State Competition Team Advancement Teams will be ranked based on the following criteria in the order listed: 1) Win/Loss Record – equals the number of rounds won or lost by a team. 2) Total Number of Ballots – equals the total number of judge’s votes a team earned in preceding rounds. 3) Total Number of Points Accumulated in Each Round. 4) Point Spread Against Opponents – the point spread is the difference between the total points earned by the team whose tie is being broken less the total points of that team’s opponent in each previous round. The greatest sum of these point spreads will break the tie in favor of the team with that largest cumulative point spread. Rule XXIII: Effect of a Bye/Default 1. A “bye” becomes necessary when an odd number of teams are present for the tournament. For the purpose of advancement and seeding, when a team draws a bye or wins by default, the winning team for that round will be given a win and the number of ballots and points equal to the average of all winning team’s ballots and points of that same round. The Mock Trial State Coordinator may, if time and space allow, arrange for a “bye round” to allow teams drawing a bye to compete against one another in order to earn a true score. 2. The Mock Trial State Coordinator has the discretion on how to handle a bye in all rounds of the tournament. Rule XXIV: Eligibility
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1. All students on a team must be enrolled in the same public or private school in the district for which they are competing. 2. Each judicial circuit may send only one team to compete in the Florida High School Mock Trial State Finals. 3. The Mock Trial State Coordinator reserves the right to enlist participation from each district and circuit. Rule XXV: State Competition Awards Trophies will be awarded to the top five teams. Four best witness awards and four best attorney awards will also be presented. Both the presiding judge and the scoring judges will vote on the best witness and best attorney awards. Additionally, two professionalism awards will be awarded based upon team recommendations. Student certificates and school plaques will be presented to all participants. Rule XXVI: Interpretation of State Competition Rules 1. All rules of competition for the Florida High School Mock Trial Competition, as set forth above, are subject to the interpretation of the Advisory Committee of the Florida High School Mock Trial Competition. 2. No exceptions are permitted at the competition site unless approval has been given by the Advisory Committee prior to the competition. 3. The Advisory Committee and/or State Mock Trial Coordinator will serve as the final arbiter at the competition site. 4. The Florida High School Mock Trial Competition Advisory Committee may invite additional circuit teams to participate in the State Finals Competition if it determines, in its sole discretion, that doing so would provide for diversity within the competition, would resolve disputes at the circuit level in a fair manner, or would otherwise advance the goals of the competition and serve the students who have competed at the circuit level. Rule XXVII: Circuit Competitions 1. The State competition power matching and seeding system is optional for use during circuit competitions. 2. Team advancement procedures will be the responsibility of circuit coordinators. 3. Circuit coordinators should contact The Florida Law Related Education Association, Inc. for approved alternate models.
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SIMPLIFIED RULES OF EVIDENCE AND PROCEDURE In American courts, elaborate rules are used to regulate the kind of proof (i.e., spoken testimony by witnesses or physical evidence) that can be used in trials. These rules are designed to ensure that both parties receive a fair hearing. Under the rules, any testimony or physical objects deemed irrelevant, incompetent, untrustworthy, or unduly prejudicial may be kept out of the trial. If it appears that a rule of evidence is being violated, an attorney may raise an objection to the judge. Usually, the attorney stands and says, "I object, your honor," and then gives the reason for the objection. Sometimes the attorney whose questions or actions are being objected to will then explain why he or she thinks the rule was not violated. The judge then decides whether the rule has been violated and whether the testimony or physical items must be excluded from the trial. Official rules of evidence are quite complicated. They also differ depending on the kind of court where the trial occurs. For purposes of this mock trial competition, the rules of evidence you will use have been made less complicated than those used in actual courts. The ideas behind these simplified rules are similar to actual rules of evidence. A.
Witness Examination/Questioning 1. Direct Examination Attorneys call and question their own witnesses using direct as opposed to leading questions. Example: Elyse Roberts is called by her attorney to explain the events leading up to her filing suit against Potomac County. “Ms. Roberts, where do you work? How long have you worked there? Please describe your working relationship with Mr. Kevin Murphy during the first month of employment. Why did you meet with your supervisor, Fran Troy? Did you seek advice from a therapist during this time?” Questions such as the above do not suggest the answer. Instead, they introduce a witness to a particular area of importance, leaving the witness free to relate the facts. Obviously, the witness will have been prepared to answer such questions in a particular way. But the question by its terms does not "lead" to the answer. a. Leading Questions A leading question is one that suggests the answer. It does not simply call the witness' attention to a subject. Rather, it indicates or tells the witness what the answer should be about that subject. Leading questions are not permitted on direct examination, but questions on cross-examination should be leading. Examples: “Mrs. Roberts, despite repeated invitations, you chose not to participate in office social functions, correct?” “Isn't it true, that due to all the stress from work you decided to go to a therapist?” 81
These questions are obviously in contrast to the direct examination questions in the preceding section. Leading questions suggest the answer to the witness. This is not proper for direct examination when a party is questioning its own witness. b. Narration While the purpose of direct examination is to get the witness to tell a story, the questions must ask for specific information. The questions must not be so broad that the witness is allowed to wander or "narrate" a whole story. At times, the witness' answer to a direct question may go beyond the facts asked for by the question asked. Narrative questions are objectionable. Example Narrative Question: “Ms. Roberts, please tell the court about the events that contributed to your decision to sue the county.” Narrative Answer: “It all began the night I found out that it was the county that was dumping on my land. At first I thought it was my neighbors, but they denied having any part in the dumping. I decided to watch my vacant lot and see if I could catch the person responsible. I drove down to my lot the night of the 13th and parked in a place where I could see the lot but no one could see me…” c. Scope of Witness Examination Direct examination may cover all facts relevant to the case of which the witness has first-hand knowledge.
d. Character For the purpose of this mock trial, evidence about the character of a party may not be introduced unless the person’s character is an issue in the case. i. Methods of Proving Character (Section 90.405) 1. Reputation: When evidence of the character of a person or of a trait of his/her character is admissible, proof may be made by testimony about his/her reputation. 2. Specific Instances of Conduct: When character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may be made of specific instances of his/her conduct. e. Refreshing Recollection When a witness uses a writing or other item to refresh his/her memory while testifying, an adverse party is entitled to have such writing or other item produced at the hearing to inspect it, 82
to cross-examine the witness thereon, and to introduce it, or in the case of writing, to introduce those portions which relate to the testimony of the witness, in evidence. 2. Cross Examination (questioning the opposing side’s witnesses) Cross-examination should involve leading questions. In fact, it is customary to present a witness with a proposition and ask the witness to either agree or disagree. Thus, good cross-examination calls only for a yes or no answer. Examples: “Mr. Roberts, in direct examination you testified that litigation was very stressful for you, correct? In fact you were so stressed that you did work at home or called in sick. Isn't this true?” “As an assistant district attorney, you knew that trying only three cases while settling 75 cases was not a job performance your supervisor would rate highly, didn't you?” “Thus given the stress you felt, your poor attendance at work and poor job performance, it was not unusual for your supervisor to transfer you to another Bureau, was it?” Leading questions are permissible on cross-examination. Questions tending to evoke a narrative answer should be avoided. a. Scope of Witness Examination Cross-examination is not limited. Attorneys may ask questions of a particular witness that relate to matters brought out by the opposing side on direct examination of that witness, matters relating to the credibility of the witness, and additional matters otherwise admissible, that were not covered on direct examination. b. Impeachment On cross-examination, the attorney may want to show the court that the witness should not be believed. A witness' credibility may be impeached by showing evidence of the witness' character and conduct, prior convictions, and prior inconsistent statements. If the witness testifies differently from the information in their sworn affidavit, it may then be necessary to "impeach" the witness. That is, the attorney will want to show that the witness previously said something that contradicts the testimony on the stand. i. Impeachment Procedure Impeachment may be done by comparing what a witness says on the witness stand at trial to what is contained in the witness' affidavit. By pointing out the differences between what a witness now says and what the witness' affidavit says, the attorney shows that the witness has contradicted himself or herself. ii. Who May Impeach? 83
Any party, including the party calling the witness, may attack the credibility of a witness by: 1. Introducing statements of the witness which are inconsistent with his/her present testimony; 2. Showing that the witness is biased; 3. Attaching the character of the witness in accordance with the state mock trial competition rules of evidence and procedure; 4. Showing a defect of capacity, ability, or opportunity in the witness to observe, remember, or recount the matters about which he/she testified; and 5. Proof by other witnesses that material facts are not as testified to by the witness being impeached.
iii. Section 90.610 Conviction of Certain Crimes as Impeachment A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which he was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment, with the following exceptions: 1. Evidence of any such conviction is inadmissible in a civil trial if it is so remote in time as to have no bearing on the present character of the witness. 2. Evidence of juvenile adjudications is inadmissible under this subsection. iv. Section 90.614 Prior Statements of Witness 1. When witness is examined concerning his prior written statement or concerning an oral statement that has been reduced to writing, the court, on motion of the adverse party, shall order the statement to be shown to the witness or its contents disclosed to him. 2. Extrinsic evidence of a prior inconsistent statement by a witness is inadmissible unless the witness is first afforded an opportunity to explain or deny the prior statement and the opposing party is afforded an opportunity to interrogate him on it, or the interests of justice otherwise require. If a witness denies making or does not distinctly admit that he has made the prior inconsistent statement, extrinsic evidence of such statement is admissible. This subsection is not applicable to admissions of a party-opponent. 3. Re-direct and re-cross examination/questioning. If the credibility or reputation for truthfulness of the witness has been attacked on cross-examination, the attorney whose witness has been damaged may wish to ask several more questions. These questions should be limited to the damage the attorney thinks has been done and should be phrased so as to try to "save" the witness' truth-telling image in the eyes of the court. Re-direct examination is limited to issues raised by the attorney on cross-examination. Re-cross examinations follows re-direct examination but is limited to the issues raised on re-direct only and should avoid repetition. The presiding judge may exercise reasonable control over questioning so as to make 84
questioning effective to ascertain truth, avoid needless waste of time, and protect witnesses from harassment. B.
Objections An attorney can object any time the opposing attorneys have violated the rules of evidence. The attorney wishing to object should stand up and do so at the time of the violation. When an objection is made, the judge may ask the reason for it. Then the judge may turn to the attorney whose question or action is being objected to, and that attorney usually will have a chance to explain why the judge should not accept the objection. The judge will then decide whether a question or answer must be discarded because it has violated a rule of evidence or whether to allow the question or answer to be considered as evidence. The legal term “objection sustained” means that the judge agrees with the objection and excludes the testimony or item objected to. The legal term “objection overruled” means that the judge disagrees with the objection and allows the testimony or item to be considered as evidence.
1. Standard Objections on Direct and Cross Examination 1. Irrelevant Evidence: “I object, your honor. This testimony is irrelevant to the facts of this case.” 2. Leading Questions: “Objection. Counsel is leading the witness.” Remember, this is only objectionable when done on direct examination (Ref. Section A1.a). 3. Narrative Questions and Answers: may be objectionable (Ref. Section A1.b). 4. Improper Character Testimony: “Objection. The witness’ character or reputation has not been put in issue or “Objection. Only the witness’ reputation/character for truthfulness is at issue here.” 5. Hearsay: “Objection. Counsel’s question/the witness’ answer is based on hearsay.” If the witness makes a hearsay statement, the attorney should also say, “and I ask that the statement be stricken from the record.” 6. Opinion: “Objection. Counsel is asking the witness to give an opinion.” 7. Lack of Personal Knowledge: “Objection. The witness has no personal knowledge that would enable him/her to answer this question.” 8. Lack of Proper Predicate: Exhibits will not be admitted into evidence until they have been identified and shown to be authentic (unless identification and/or authenticity have been stipulated). Even after proper predicate has been laid, the exhibits may still be objectionable due to relevance, hearsay, etc. 9. Ambiguous Questions: An attorney shall not ask questions that are capable of being understood in two or more possible ways. 10. Non-responsive Answer: A witness’ answer is objectionable if it fails to respond to the question asked. 11. Argumentative Question: An attorney shall not ask a question which asks the witness to agree to a conclusion drawn by the questioner without eliciting testimony as to new facts. However, the Court may, in its discretion, allow limited use of argumentative questions on cross-examination. 85
12. Unfair Extrapolation/Beyond the Scope of the Statement of Facts Attorneys shall not ask questions calling for information outside the scope of the case materials or requesting an unfair extrapolation. Unfair extrapolations are best attacked through impeachment and closing arguments and are to be dealt with in the course of the trial. A fair extrapolation is one that is neutral. Note: Fair extrapolations may be allowed, provided reasonable inference may be made from the witness’s statement. If, in direct examination, an attorney asks a question which calls for extrapolated information pivotal to the facts at issue, the information is subject to objection Outside the Scope of the Problem. If in CROSS examination, an attorney asks for unknown information, the witness may or may not respond, so long as any response is consistent with the witness’ statement or affidavit and does not materially affect the witness’ testimony. 13. Asked and Answered: “Objection. Your honor, the question has already been asked and answered.” 14. Objections Not Recognized in This Jurisdiction: An objection which is not contained in these materials shall not be considered by the Court. However, if counsel responding to the objection does not point out to the judge the application of this rule, the Court may exercise its discretion in considering such objection. Note: Attorneys should stand during objections, examinations, and statements. No objections should be made during opening/closing statements but afterwards the attorneys may indicate what the objection would have been. The opposing counsel should raise his/her hand to be recognized by the judge and may say, “If I had been permitted to object during closing arguments, I would have objected to the opposing team’s statement that .” The presiding judge will not rule on this objection individually and no rebuttal from the opposing team will be heard. 15. Opinions of Witnesses 1. Expert Opinion 1. Section 90.702 Testimony by Experts - If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial. 2. Section 90.703 Opinions on Ultimate Issue - Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it included an ultimate issue to be decided by the trier of fact. 3. Section 90.704 Basis of Opinion Testimony by Experts - The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, him at or before the trial. If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence. 4. Expert Opinion (additional information) An expert shall not express an opinion as to the guilt or innocence of the accused. 2.
Lay Opinion 86
1.
Section 90.701 Opinion Testimony of Lay Witnesses If a witness is not testifying as an expert, his testimony about what he perceived may be in the form of inference and opinion when:
2.
1.
The witness cannot readily, and with equal accuracy and adequacy, communicate what he has perceived to the trier of fact without testifying in terms of inferences or opinions and his use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and
2.
The opinions and inferences do not require a special knowledge, skill, experience, or training. Lay Opinion (additional information) All witnesses may offer opinions based on the common experience of laypersons in the community and of which the witnesses have first-hand knowledge. A lay opinion may also be obtained. For example, Sandy Yu, as the personnel director, would know of other complaints of sexual harassment in the office and any formal reprimands, even though he is not an expert in sexual harassment. They may be asked questions within that range of experience. No witness, not even an expert, may give an opinion about how the case should be decided. The cross-examination of opinions proceeds much like the cross-examination of any witness. Questions, as indicated above, may be based upon the prior statement of the witness. Inconsistencies may be shown. In addition, the witness may be asked whether he or she has been employed by any party, to show bias or interest. Or a witness giving an opinion may be asked the limits of certainty in that opinion, as follows: “Dr. Isaacs, please read this portion of your sworn statement to the court.” "I have studied the records of this case, and have conducted two one-hour interviews with Elyse Roberts on March 29 and 31st. In those interviews, she described to me her family history, her work environment, the actions of her co-workers and supervisor and her resulting feelings." “This is your statement, is it not, Dr. Isaacs? Ms. Roberts selected you because of your expertise in sexual harassment in the workplace, correct? During your two-hour interview you were only concerned with evaluating Ms. Roberts’ working environment and not other psychological factors that may have caused her problems. Thus you really can't say that Ms. Roberts' difficulty on the job was only caused by the actions of Mr. Murphy, can you?” The point of these questions is not to discredit the witness. Rather, the objective is simply to treat the witness as a responsible professional who will acknowledge the limits of her or his expertise and testimony. If the witness refuses to acknowledge those limits, the witness then is discredited. 87
It is always important in cross-examination to avoid arguing with the witness. It is particularly important with an expert. Thus, the cross-examination should be carefully constructed to call only for facts or to draw upon statements the witness has already made. 3.
Lack of Personal Knowledge A witness may not testify to any matter of which the witness has no personal knowledge. The legal term for testimony of which the witness has no personal knowledge is "incompetent."
16. Relevance of Testimony and Physical Objects Generally, only relevant testimony may be presented. Relevant evidence is physical evidence and testimony that makes a fact that is important to the case more or less probable than the fact would be without the evidence. However, if the relevant evidence is unfairly prejudicial, may confuse the issues, or is a waste of time, it may be excluded by the court. Such relevant but excludable evidence may be testimony, physical evidence, or demonstrations that have no direct bearing on the issues of the case or do not make the issues clearer. 1.
Introduction of Documents, Exhibits, Items, and Other Physical Objects Into Evidence There is a special procedure for introducing physical evidence during a trial. The physical evidence must be relevant to the case, and the attorney must be prepared to its use on that basis. Below are the basic steps to use when introducing a physical object or document for identification and/or use as evidence. 1.
Show exhibit and have it marked by the judge. Say “Your Honor, I ask that this ___ be marked for identification as Plaintiff’s/Defendant’s Exhibit No. ___”
2.
Show the exhibit to opposing counsel for possible objection. Ask the witness to identify the exhibit. “I now hand you what is marked as Exhibit No. 1. Do you recognize this document?”
3.
At this point the attorney may proceed to ask the witness a series of questions about the exhibit.
4.
If the attorney wishes to place the document into evidence, say, “Your Honor, I offer this ____ marked as Plaintiff's/Defendant's Exhibit No. 1 into evidence and ask the Court to so admit it.” Court: “Is there any objection?” Opposing Counsel: “No, your Honor.” or “Yes, your Honor.” (then state objection). Court: “Plaintiff's/Defendant's Exhibit No. 1 is (is not) admitted.”
NOTE: A witness may be asked questions about his/her statement without its introduction into evidence; but to read from it or submit it to the judge, it must first be admitted into evidence. Exhibits can be pre-marked. 88
17. Hearsay and Exceptions to this Ruling 1.
What is Hearsay? Hearsay evidence is normally excluded from a trial because it is deemed untrustworthy. “Hearsay” is a statement other than one made by the witness testifying at the trial, offered in evidence to prove that the matter asserted in the statement is true. An example of hearsay is a witness testifying that he heard another person saying something about the facts in the case. The reason that hearsay is untrustworthy is because the opposing side has no way of testing the credibility of the out-of-court statement or the person who supposedly made the statement. Thus, for example, the following questions would be objectionable as “hearsay” if you are trying to prove that the color of the door was red: “Mr. Edwards what color did Bob say the door was?” This is hearsay. Mr. Edwards is using Bob's statement for him to prove the color of the door. Instead, Bob or someone who saw the door needs to be called to testify as to the color of the door.
2.
Reasons for Prohibiting Hearsay Our legal system is designed to promote the discovery of truth in a fair way. One way it seeks to accomplish this goal is by ensuring that the evidence presented in court is “reliable”; that is, we can be fairly certain the evidence is true. Hearsay evidence is said to be “unreliable” for four reasons:
3.
1.
The hearsay statement might be distorted or misinterpreted by the witness relating it in court.
2.
The hearsay statement is not made in court and is not made under oath
3.
The hearsay statement is not made in court, and the person who made it cannot be observed by the judge or jury (this is important because the judge or jury should be allowed to observe a witness' behavior and evaluate his/her credibility).
4.
The hearsay statement is not made in court and the person who made it cannot be challenged by cross-examination.
When Can Hearsay Evidence Be Admitted? Although hearsay is generally not admissible, there are certain out-of-court statements that are treated as not being hearsay, and there are out-of-court statements that are allowed into evidence as exceptions to the rule prohibiting hearsay. Statements that are not hearsay are prior statements made by the witness himself and admissions made by a party opponent. 1.
Exceptions
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Hearsay is not admissible, except as provided by these rules. For purposes of this mock trial, the following exceptions to the hearsay rule will be allowed; even though the declarant is available as a witness. 1.
Spontaneous Statement A statement describing or explaining an event or condition made while the declarant perceived the event or condition, or immediately thereafter, except when such statement is made under circumstances that indicate its lack of trustworthiness.
2.
Excited Utterance A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
3.
Medical Statements Statements made for the purpose of medical diagnosis or treatment by a person seeking the diagnosis, or made by an individual who has knowledge of the facts and is legally responsible for the person who is unable to communicate the facts, which statements describe medical history, 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.
4.
Recorded Recollection A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. A party may read into evidence a memorandum or record when it is admitted, but no such memorandum or record is admissible as an exhibit unless offered by an adverse party.
5.
Records of a Regularly Conducted Activity 1.
A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, 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 such memorandum, report, record, or data compilation, all as shown by testimony of the custodian or other qualified witness, unless the sources of information or other circumstances show lack of trustworthiness. The term “business” as used in this paragraph includes a business, institution, association, profession, occupation, and calling for every kind, whether or not conducted for profit.
2.
No evidence in the form of an opinion or diagnosis is admissible under paragraph (a) unless such opinion or diagnosis would otherwise be admissible if the person whose opinion is recorded were to testify to the opinion directly. 90
6.
Learned Treatises To the extent called to the attention of an expert witness upon cross examination or relied upon by the expert witness in direct examination, statements contained in public treatises, periodicals or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness, or by other expert testimony, or by judicial notice.
7.
Then Existing Mental, Emotional, or Physical Condition 1.
2.
C.
A statement of the declarant’s then existing state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, when such evidence is offered to: 1.
Prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when such state is an issue in the action.
2.
Prove or explain acts of subsequent conduct of the declarant.
However, this subsection does not make admissible: 1.
An after-the-fact statement of memory or belief to prove the fact remembered or believed, unless such a statement relates to the execution, revocation, identification, or terms of the declarant's will.
2.
A statement made under circumstances that indicate its lack of trustworthiness.
Trial Motions No trial motions are allowed except for special jury instructions as permitted in these case materials. Examples: Directed verdict, dismissal, acquittal, motion in limine, motion to sequester witnesses. Exception: Motion for Recess may only be used in emergency situations.
D.
Attorney Demeanor **See Code of Ethical Conduct
Note: Please refer to Official Case Materials for any specific additions relative to this trial.
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GUIDELINES FOR TEACHER COACHES A.
Role of the Teacher Coach
The teacher coach is expected to help the team members decide which students will play which parts in the mock trial and to assist the students in playing those roles. As part of the sizeable responsibility of acting as team coaches, teachers are responsible for the following areas: 1. Rules of the Program: All teachers and teams are expected to adhere to the rules, facts and all other materials provided in the 2011 Mock Trial Competition Case Materials. Therefore, please make sure you are familiar with the Competition rules. 2. Role Assignments: Team members should be strongly encouraged to select roles based on their interests and abilities and not on the basis of any gender or cultural stereotypes which might be drawn from the characterizations in the fact pattern. 3. Team Preparation: Attorneys will also help coach each team. Teams should prepare both sides of the case and are strongly urged to arrange and conduct preliminary mock trials with other teams prior to competing in the district and circuit competition. Preliminary trials require only one attorney or judge to act as the presiding judge, as it is not necessary to award points to the teams during these practice rounds. 4. Education: Education of the students is the primary goal of the Mock Trial Competition. Healthy competition helps to achieve this goal, but teachers are reminded of their responsibility to keep the competitive spirit at a reasonable level. The reality of the adversarial system is that one party wins and the other loses, and teachers should be sure to prepare their teams to be ready to accept either outcome in a mature manner. Teachers can help prepare students for either outcome by placing the highest value on excellent preparation and presentation, rather than on winning or losing the trial. 5. Observers: Other classes, parents, and friends of the participants are welcome to attend the trials. However, please note that space in the courtroom is limited. The presiding judge may ask overflow observers to leave the courtroom. All observers must be seated during the trial. 6. Arrival Times: Teachers are responsible for getting their teams to the assigned courtroom 15 minutes prior to the starting time of each trial.
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GUIDELINES FOR ATTORNEY COACHES 1. Much as you will want to help the students, point them in the right direction, and give them the benefit of your experience, remember that the students will develop a better understanding of the case and learn more from the experience if the attorney coaches do not dominate the preparation phase of the tournament. The preparation phase of the contest is intended to be a cooperative effort of students, teacher and attorney coaches. 2. Avoid (even the appearance of) “talking down” to students and/or stifling discussion through the use of complicated “legalese.” 3. The first session with a student team should be devoted to the following tasks: 1.
Answering questions that students may have concerning general trial practices;
2.
Explaining the reasons for the sequence of events/procedures found in a trial;
3.
Listening to the students’ approach to the assigned case; and
4.
Emphasizing the key points, such as the elements to be proved, and the relevance and importance of available legal authority.
4. Subsequent sessions with students should center on the development of proper questioning techniques by the student attorneys and sound testimony by the witnesses. Here an attorney can best serve as a constructive observer and teacher...listening, suggesting and demonstrating to the team. 5. Attorney coaches should not prepare opening statements, closing statements, or questions for the students. Students should be encouraged to do as much of their own preparation as possible.
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Florida High School Mock Trial Competition SCORE SHEET/BALLOT P = Plaintiff:__________________________ D = Defense:____________________________ (Team Code) (Team Code) Date:______________________ Round: (circle one) 1 2 3 4 F
1
Using a scale of 1 to 10, rate the P and D in the categories below. Do NOT use fractional points. Please use a ballpoint pen. Not Effective Fair Good Excellent Outstanding 2 3 4 56 7 8 9 10
Score Sheet/ Ballot Opening Statement
Plaintiff’s First Witness
Direct Examination
(________)
(________)
(________)
Direct Examination
Cross Examination
(________)
Cross Examination
(________)
Cross Examination
(________)
Direct Examination
(________)
Witness Presentation
(________)
Direct Examination
(________)
Witness Presentation
(________)
Direct Examination
(________)
Witness Presentation
(________)
(________)
Witness Presentation
Plaintiff’s Third Witness
D
(________)
Witness Presentation
Plaintiff’s Second Witness
P
(________)
Direct Examination
(________)
Witness Presentation
(________)
Defense’s First Witness Cross Examination
(________)
Defense’s Second Witness Cross Examination
(________)
Defense’s Third Witness Cross Examination
(________)
Closing Argument
(________)
(________)
Ethical Conduct
(________)
(________)
Team Performance
(________)
(________)
Column Totals: DO NOT TIE TEAMS
(________)
(________)
Note: Any errors in ADDITION will be corrected by score room staff. Please review your individual scores and return to trial coordinator.
_______________________________________ Judge’s Signature
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Florida High School Mock Trial Competition EXPLANATION OF RATINGS USED ON THE SCORE SHEET/BALLOT Participants will be rated in the categories on the ballot on a scale of 1-10 points (10 being the highest), according to their roles in the trial. The Scoring Judges are scoring STUDENT PRESENTATION in each category. The Scoring Judges are NOT scoring the legal merits of the case. Each category is to be evaluated separately and fractional points ARE NOT to be awarded. One team MUST be awarded more total points than the other. The team winning the majority of the ballots shall win the round. Judging panels also may recognize outstanding individual presentations by selecting one MOST EFFECTIVE ATTORNEY and/or one MOST EFFECTIVE WITNESS per round. The decision must be representative of the majority of the panel members. Judges may NOT disclose the score sheet/ballot results or the identities of the Most Effective Attorney and/or Witness to anyone other than the mock trial coordinator. Sign your score sheet/ballot before turning it over to the presiding judge on your panel. DO NOT ANNOUNCE SCORES OR RESULTS TO THE TEAMS DURING THE CRITIQUE! POINT(S)
PERFORMANCE
1-2
Not Effective
3-4
Fair
5-6
Good
CRITERIA FOR EVALUATING STUDENT PERFORMANCE 1. Exhibits lack of preparation/understanding of the case materials. 2. Communication unclear, disorganized, and ineffective. 3. Unsure of self, does not think well on feet, depends heavily on notes. 1. Exhibits minimal preparation/understanding of the case materials. 2. Communication minimally clear and organized, but lacking in fluency and persuasiveness. 3. Minimally self-assured, but lacks confidence under pressure. 1. 2. 3.
7-8
Excellent
9-10
Outstanding
Exhibits adequate preparation/understanding of the case materials. Communications are clear and understandable, but could be stronger in fluency and persuasiveness. Generally self-assured, reads from notes very little.
1. 2. 3.
Exhibits mastery of the case materials. Communication is clear, organized, fluent and persuasive. Thinks well on feet, poised under pressure, does not read from notes.
1.
Superior in qualities listed for 7-8 points' performance.
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Florida High School Mock Trial Competition PRESIDING JUDGE BALLOT Plaintiff: ___________________ Defense: ___________________ (Team Code) (Team Code)
Round#: _____________ Please make your decision, offer some written comments, and hand in this score sheet to the Timekeeper as soon as possible. Thank you for participating.
I. Performance Evaluation - MANDATORY Performance Decision: In my opinion the better mock trial performance was shown by the
PLAINTIFF / DEFENSE (Circle One) This is a team performance score based on the clarity and effectiveness of arguments presented and the professional demeanor exhibited by team members. Note: Do not announce your performance decision.
II. Comments
_________________________________________________
Judge’s Signature & Date 96
Florida High School Mock Trial Competition MOST EFFECTIVE
ATTORNEY FORM
(Mandatory) This form is to be completed by All Judges
_____________________________________ Date of Competition Round
____________________________________ Enter Team Code
____________________________________ Round
ATTORNEY I wish to award the following team member the title of
MOST EFFECTIVE ATTORNEY For this round: ____________________________ Name of Team Member from Team Roster
Plaintiff’s or Defense’s Attorney (Circle One)
____________________________________________________________
Judge’s Signature
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Florida High School Mock Trial Competition MOST EFFECTIVE
WITNESS FORM
(Mandatory) This form is to be completed by All Judges
_____________________________________ Date of Competition Round
____________________________________ Enter Team Code
____________________________________ Round
WITNESS I wish to award the following team member the title of
MOST EFFECTIVE WITNESS For this round: ____________________________ Name of Team Member from Team Roster
Plaintiff’s or Defense’s Witness (Circle One)
____________________________________________________________
Judge’s Signature 98
Florida High School Mock Trial Competition LEGAL PROFESSIONALISM AWARD BALLOT
Teachers: Please complete this ballot as your official recommendation for the Legal Professionalism Award. Only one entry per school will be accepted. You may wish to discuss with your students their feelings about the professionalism, spirit, and ethical conduct of other teams to aid in your decision. Please refer to the definition and quotes about professionalism. Teams should NOT nominate themselves.
Recommendation #1: _________________________________________________ Comments:
Recommendation #2: _________________________________________________ Comments:
Submitted By: School: District: Signature:
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Florida High School Mock Trial Competition COMPLAINT FORM (Please Print) Date:_______________ Person Lodging Dispute/Complaint:_____________________________ Affiliated With:
(Enter Team Code Only)
Nature of Dispute/Complaint: ________________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ _________________________ ________________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ _________________________ _____________________________________________________________________ NOTE: This form may be used to inform the Mock Trial Coordinator and Advisory Committee of any disputes or recommendations relating to the competition including complaints regarding judges. Please be specific regarding the nature of the dispute. This form in no way replaces the dispute resolution process as outlined in the rules. ___________________________________________ Signature *Return to Box at Information Desk in Courthouse* 100
Florida High School Mock Trial Competition TEAM DISPUTE FORM Date:
Round (Circle one)
Plaintiff: (Team Code)
1
2
3
4
Final
Defense: ___________________________ (Team Code)
TEAM LODGING DISPUTE: _____________________________ (Enter Team Code) Grounds for Dispute: _____________________________________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________ Initials of Team Spokesperson: _______ Time Dispute presented to Presiding Judge:__________ Hearing decision of Presiding Judge (Circle one): GRANT / DENY Initials of Judge: ________ Reason(s) for Denying Hearing or Response of Opposing Team: _____________________________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________ Initials of Opposing Team's Spokesperson: __________ Presiding Judge's Notes from Hearing: _____________________________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________ Decision of Presiding Judge Regarding Dispute (Circle one): Refer to Panel/Not Refer to Panel Reason(s) for Presiding Judge's Decision: _____________________________________________________________________________________________ _____________________________________________________________________________________________ _________________________________________________________ _________________________________________________________________________________ This form must be returned to the Mock Trial Coordinator along with the score sheets of the Scoring Judges and the ballot of the Presiding Judge.
_______________ Signature of Presiding Judge
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Florida High School Mock Trial Competition TEAM ROSTER FORM Each Plaintiff and Defense team should complete this sheet in triplicate. Copies are to be made available to the judging panel (3 copies) before each round. The team code can be filled in after registration at the competition site. Note: Do not place team or attorney coach or teacher coach identifying information on the forms used in competition rounds. Please print or type ________________ Team Code
In this round, students listed on this roster represent the: (Circle One)
Plaintiff Names of Team Attorneys
Defense Identify Tasks to be Presented
_____________________________ _____________________________ _____________________________
Names of Team Witnesses
Identify Roles to be Performed
_____________________________ _____________________________ _____________________________
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PROFESSIONALISM The Florida Bar’s Standing Committee on Professionalism’s working definition of professionalism: Professionalism is the pursuit of practice of the highest ideals and tenets of the legal profession. It embraces far more than simply complying with the minimal standards of professional conduct. The essential ingredients of professionalism are character, competence, and commitment.
Other thoughts on professionalism: “...To me, the essence of professionalism is a commitment to develop one’s skills and to apply that responsibility to the problems at hand. Professionalism requires adherence to the highest ethical standards of conduct and willingness to subordinate narrow self-interest in pursuit of the more fundamental goal of public service. Because of the tremendous power they wield in our system, lawyers must never forget that their duty to serve their clients fairly and skillfully takes priority over the personal accumulation of wealth. At the same time, lawyers must temper bold advocacy for their clients with a sense of responsibility to the larger legal system which strives, however imperfectly, to provide justice for all.” Justice Sandra Day O’Connor “Professionalism is no more, and no less, than conducting one’s self at all times in such a manner as to demonstrate complete candor, honesty, and courtesy in all relationships with clients, associates, courts, and the general public. It is the personification of the accepted standard of conduct so long recognized and observed by able lawyers throughout history, that a lawyer’s word is his bond. It encompasses the fundamental belief that a lawyer’s primary obligation is to serve his or her client’s interests faithfully and completely, with compensation only a secondary concern, and with ultimate justice as the final goal.” Don Jackson, former chair of the Senior Lawyer Division of the American Bar Association
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OATH OF ADMISSION TO THE FLORIDA BAR The general principles which should ever control the lawyer in the practice of the legal profession are clearly set forth in the following oath of admission to the Bar, which the lawyer is sworn on admission to obey and for the willful violation to which disbarment may be had. "I do solemnly swear: "I will support the Constitution of the United States and the Constitution of the State of Florida; "I will maintain the respect due to courts of justice and judicial officers; "I will not counsel or maintain any suit or proceedings which shall appear to me to be unjust, nor any defense except such as I believe to be honestly debatable under the law of the land; "I will employ for the purpose of maintaining the causes confided to me such means only as are consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false statement of fact or law; "I will maintain the confidence and preserve inviolate the secrets of my clients, and will accept no compensation in connection with their business except from them or with their knowledge and approval; "To opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications; "I will abstain from all offensive personality and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged; "I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay anyone's cause for lucre or malice. So help me God."
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