There is a common dilemma among criminal defense attorneys: what to do when you have a very tempting offer from the DA and yet you believe the State still cannot prove it’s case? It’s an extremely difficult position. Or is it?
As attorney’s we all know that trial is a toss-up. When you place a case in front of a jury, you never know what’s going to happen. As a prosecutor, I once lost a case wherein the jury came back with a verdict of “not guilty” and attached a handwritten note to the verdict form that said, “and we hope you’ve learned your lesson and never do this again.” What?!? Yes, it was clear that the guy had done it, but it was a classic case of jury nullification. On the other hand, as a defense attorney, you always fear that even though the State doesn’t have the evidence to prove the case, that a jury will convict simply based on emotion, public perception or sentiment towards a particular alleged offense. Hopefully, as criminal defense attorneys, we do our job and explain to the jury that these factors are not to be considered in their decision on the facts of the case….but, ultimately, we never know.
In our practice as criminal defense lawyers in Keller, Texas, we typically represent average citizens who have made mistakes. Sometimes our decisions are made easy when we have clients with criminal records a mile long and facts too egregious to advise our clients to trial. But when we represent the average citizen with no history, the decision on whether to go to trial can be a very difficult one. But, ultimately, you have to make a call and advise your client. I have found that the best way to handle this situation is the way you are supposed to handle this situation: make a decision, advise your client, but leave the ultimate decision up to the client. Remember, a citizen has a right to a jury trial. You may think that the offer is great and that there is no way that you’re going to beat it at trial. Make that abundantly clear to the client. After that, make it also abundantly clear that the ultimate decision is up to the client. To trial, or not to trial can sometimes be an easy question to answer. But when it is not, give it thorough evaluation, advise your client and then throw the ball into the client’s court.
It goes without saying, but it’s always good to hear, your client has a constitutional right to a jury trial and they should always know that no matter how much you might advise against it, it is their right to exercise should they choose to. Plus, no matter how bad you might think your case is, there is the added benefit that you holding the State to their burden in front of the citizens that they work for. We maintain the integrity of our judicial system by holding the State to that burden and there is no better way to reinforce that integrity than through a jury trial.
“To trial or not to trial?” It never has an easy answer, but it is always the question that you should be focusing on when representing your clients.
Showing posts with label Trial Advocacy. Show all posts
Showing posts with label Trial Advocacy. Show all posts
Thursday, September 6, 2012
Friday, April 8, 2011
Are You Destroying Your Witness's Credibility?
by Elliott Wilcox
Facts, by themselves, aren't enough to win your case. You can't just dump a pile of unorganized facts on the jury and expect that they'll reach the right verdict. How you organize your facts will affect the jurors' views about your case and can even change the outcome of your trial.
One of the easiest ways to shape the jurors' views about your case is to take advantage of a theory called “primacy.” Psychology professor William D. Crano defined a primacy effect as when “the message presented first exerts a disproportionate impact on an individual's opinion.”
Basically, what you hear first colors the way you view everything else that follows. Don't believe me? To experience how big a role primacy can play in the way jurors view your case, take a look at these two different scenarios:
The first scenario involves a 37 year old man. Less than an hour ago, his wife told him that (after several years of unsuccessfully trying to start a family), she is pregnant with their first child -- a son! As the man walks past the park on his way to work, he sees a playground filled with young children playing on merry-go-rounds and swinging on the swing sets. He stops for a moment, standing just outside the perimeter of the playground. His eyes are drawn to a young boy who is climbing to the top of the slide. As the boy lands at the bottom of the slide, a large grin man breaks out on the man's face.
Now compare that to the second scenario:
This scenario also involves a 37 year old man. Six years ago, he was convicted of child molestation. As the man walks past the park on his way to work, he sees a playground filled with young children playing on merry-go-rounds and swinging on the swing sets. He stops for a moment, standing just outside the perimeter of the playground. His eyes are drawn to a young boy who is climbing to the top of the slide. As the boy lands at the bottom of the slide, a large grin man breaks out on the man's face.
Isn't it amazing how a single fact at the beginning of the story completely changes the way you view the rest of the facts? In the first scenario, you probably thought to yourself, “What a lucky man! He's thinking about the future when he'll be taking his own son to the playground.” In the second scenario, you probably thought, “Somebody call the police before that creep abducts the little boy!”
The facts didn't change -- only your perception of the facts changed. In both scenarios, the men did exactly the same things, but you ascribed completely different intentions to their actions. What you heard first had a disproportionate impact (positive or negative) on everything else that you heard.
It works the same way in the courtroom. The primacy principle affects every aspect of your trial, but its impacts can be most apparent during opening statement and direct examination. Here's an example of how organizing your presentation of facts can dramatically affect how jurors perceive your direct examination.
I remember critiquing a criminal jury trial where the prosecution was arguing that the defendant acted as the intermediary agent to facilitate a drug deal between an undercover police officer and a drug dealer. The defense's theory of the case was that the defendant's innocent actions and comments were misconstrued, and the drug dealer acted independently when he sold the cocaine to the undercover officer.
During their case-in-chief, the defense called the defendant to testify on his own behalf. Obviously, they must have felt that his testimony was critical to their case, and they wanted the jury to believe his version of events. But take a look at the first three questions his lawyer asked him:
While these facts may have been important for the defense to elicit, by bringing them out at the very beginning of his testimony, the attorney corrupted the jurors' view of her client and destroyed his credibility. Rather than listening to him from a neutral (or even positive) viewpoint, now they were forced to view all of his testimony through the lens of “The Unemployed, 3x Convicted Felon.”
Rather than hearing, “I was standing on the porch,” the jury will hear, “The Unemployed, 3x Convicted Felon says he was standing on the porch.” Instead of, “Two people knocked on my door and asked if Archie was home,” they'll hear, “Two people knocked on The Unemployed, 3x Convicted Felon's home and asked if Archie was home.” The jurors won't hear, “I didn't do it!” They'll hear, “The Unemployed, 3x Convicted Felon says he didn't do it.”
How do you want jurors to view your witness? What lens do you want them to look through when they're viewing your witness's testimony? If you want jurors to view your witness's testimony in a positive light, you need to apply the principle of primacy and avoid developing negative facts at the beginning of the direct examination.
Does that mean you should completely avoid the negative parts of the witness's testimony? Of course not. If you don't present the negative facts during your direct examination, your witness will get crucified during cross-examination. But just because you need to bring out bad facts doesn't mean you need to highlight them. Ask about the negative facts somewhere in the middle of the witness's testimony, when the jurors are less likely to focus on them.
When you start your direct examination with negative facts, you run the risk of destroying your witness's credibility. Instead, apply the principle of primacy, and you'll give jurors the opportunity to view your witness's testimony in its best possible light.
Elliott Wilcox publishes Trial Tips Newsletter. Sign up today for your free subscription and a copy of his special reports: “How to Successfully Make & Meet Objections” and “The Ten Critical Mistakes Trial Lawyers Make (and how to avoid them)” at www.TrialTheater.com
Facts, by themselves, aren't enough to win your case. You can't just dump a pile of unorganized facts on the jury and expect that they'll reach the right verdict. How you organize your facts will affect the jurors' views about your case and can even change the outcome of your trial.
One of the easiest ways to shape the jurors' views about your case is to take advantage of a theory called “primacy.” Psychology professor William D. Crano defined a primacy effect as when “the message presented first exerts a disproportionate impact on an individual's opinion.”
Basically, what you hear first colors the way you view everything else that follows. Don't believe me? To experience how big a role primacy can play in the way jurors view your case, take a look at these two different scenarios:
The first scenario involves a 37 year old man. Less than an hour ago, his wife told him that (after several years of unsuccessfully trying to start a family), she is pregnant with their first child -- a son! As the man walks past the park on his way to work, he sees a playground filled with young children playing on merry-go-rounds and swinging on the swing sets. He stops for a moment, standing just outside the perimeter of the playground. His eyes are drawn to a young boy who is climbing to the top of the slide. As the boy lands at the bottom of the slide, a large grin man breaks out on the man's face.
Now compare that to the second scenario:
This scenario also involves a 37 year old man. Six years ago, he was convicted of child molestation. As the man walks past the park on his way to work, he sees a playground filled with young children playing on merry-go-rounds and swinging on the swing sets. He stops for a moment, standing just outside the perimeter of the playground. His eyes are drawn to a young boy who is climbing to the top of the slide. As the boy lands at the bottom of the slide, a large grin man breaks out on the man's face.
Isn't it amazing how a single fact at the beginning of the story completely changes the way you view the rest of the facts? In the first scenario, you probably thought to yourself, “What a lucky man! He's thinking about the future when he'll be taking his own son to the playground.” In the second scenario, you probably thought, “Somebody call the police before that creep abducts the little boy!”
The facts didn't change -- only your perception of the facts changed. In both scenarios, the men did exactly the same things, but you ascribed completely different intentions to their actions. What you heard first had a disproportionate impact (positive or negative) on everything else that you heard.
It works the same way in the courtroom. The primacy principle affects every aspect of your trial, but its impacts can be most apparent during opening statement and direct examination. Here's an example of how organizing your presentation of facts can dramatically affect how jurors perceive your direct examination.
I remember critiquing a criminal jury trial where the prosecution was arguing that the defendant acted as the intermediary agent to facilitate a drug deal between an undercover police officer and a drug dealer. The defense's theory of the case was that the defendant's innocent actions and comments were misconstrued, and the drug dealer acted independently when he sold the cocaine to the undercover officer.
During their case-in-chief, the defense called the defendant to testify on his own behalf. Obviously, they must have felt that his testimony was critical to their case, and they wanted the jury to believe his version of events. But take a look at the first three questions his lawyer asked him:
Q. Where do you work?Take a moment to think about how these facts will affect everything else the jury hears. Now that they know he's a 3x convicted felon who needs money, do you think that the jurors will be more likely, or less likely, to believe what he says?
A. I'm disabled -- I haven't worked in more than 10 years.
Q. Have you ever been convicted of a felony?
A. Yes.
Q. How many times?
A. Three times.
While these facts may have been important for the defense to elicit, by bringing them out at the very beginning of his testimony, the attorney corrupted the jurors' view of her client and destroyed his credibility. Rather than listening to him from a neutral (or even positive) viewpoint, now they were forced to view all of his testimony through the lens of “The Unemployed, 3x Convicted Felon.”
Rather than hearing, “I was standing on the porch,” the jury will hear, “The Unemployed, 3x Convicted Felon says he was standing on the porch.” Instead of, “Two people knocked on my door and asked if Archie was home,” they'll hear, “Two people knocked on The Unemployed, 3x Convicted Felon's home and asked if Archie was home.” The jurors won't hear, “I didn't do it!” They'll hear, “The Unemployed, 3x Convicted Felon says he didn't do it.”
How do you want jurors to view your witness? What lens do you want them to look through when they're viewing your witness's testimony? If you want jurors to view your witness's testimony in a positive light, you need to apply the principle of primacy and avoid developing negative facts at the beginning of the direct examination.
Does that mean you should completely avoid the negative parts of the witness's testimony? Of course not. If you don't present the negative facts during your direct examination, your witness will get crucified during cross-examination. But just because you need to bring out bad facts doesn't mean you need to highlight them. Ask about the negative facts somewhere in the middle of the witness's testimony, when the jurors are less likely to focus on them.
When you start your direct examination with negative facts, you run the risk of destroying your witness's credibility. Instead, apply the principle of primacy, and you'll give jurors the opportunity to view your witness's testimony in its best possible light.
Elliott Wilcox publishes Trial Tips Newsletter. Sign up today for your free subscription and a copy of his special reports: “How to Successfully Make & Meet Objections” and “The Ten Critical Mistakes Trial Lawyers Make (and how to avoid them)” at www.TrialTheater.com
Sunday, March 20, 2011
Why Ask Why? The Fundamentals of Cross-Examination
Last week I had the privilege of escorting Mr. Vincent Bugliosi around Marine Corps Base Camp Pendleton, as he was the guest speaker at a trial advocacy conference my office organized. Mr. Bugliosi, 76 years old, is best known as the prosecutor that put Charles Manson away. He is also a renowned true crime author, writing such books as Helter Skelter, And the Sea Will Tell, 'Till Death Us Do Part, and Outrage. He will tell you, however, that his biggest claim to fame is his victory over Gerry Spence in the mock trial of Lee Harvey Oswald for the assassination of President John F. Kennedy. Other than this mock trial, Gerry Spence boasts a perfect trial record.
One of the things about which Mr. Bugliosi spoke was cross-examination. He noted that many of the best-selling books on cross-examination caution lawyers from asking a witness WHY they took a certain action. Lawyers are warned that they should never allow a witness to explain themselves on cross. Well, Mr. Bugliosi does not exactly agree with that maxim. Here's what he had to say on the subject:
One of the things about which Mr. Bugliosi spoke was cross-examination. He noted that many of the best-selling books on cross-examination caution lawyers from asking a witness WHY they took a certain action. Lawyers are warned that they should never allow a witness to explain themselves on cross. Well, Mr. Bugliosi does not exactly agree with that maxim. Here's what he had to say on the subject:
Even if I do not ask "why," the lawyer who called the witness, if alert, will do so on redirect. The witness has then often had a court recess or perhaps overnight to think up the very best answer to the "why" question. I would much rather force the witness to answer on cross, not giving him extra time to fabricate.
Although both lawyers can avoid asking the "why" question and, as in some other situations, "save for final argument" the implications of the witness' testimony, by that late point in the trial the witness' reason for his improbable act is a matter of competing speculations by the lawyers, not the court record.
The "why" question, of course, can be a dangerous one, but I feel this is so only if the lawyer hasn't first blocked off possible and anticipated escape hatches. Admittedly, real witnesses, unlike their fictional counterparts in novels and on the screen who cave under pressure of the first or second good question, are as doughty and elusive as all hell. When all but trapped, and at the brink of a public, courtroom humiliation, human beings seem to secrete a type of mental adrenaline that gets their minds working extremely fast, and well. So the witness a lawyer faces on the stand, for some curious reason, is almost inherently formidable. But a witness can't go somewhere when he has nowhere to go.
If I feel a witness if lying, a technique I frequently employ is to first elicit answers from him on preliminary matters (blocking off all escape hatches), answers which, when totaled up, show he would be expected to take a certain course of action. The witness having committed himself by his answers, I then ask him what course he in fact took (which is not the course he would be expected to take), and follow this up with the "why" question. If time after time a witness is unable to satisfactorily justify conduct which is incompatible with what would be expected of a reasonable person, the jury will usually conclude that his testimony is suspect.Mr. Bugliosi made sure to caveat that we should never ask the "why" question unless all possible escape hatches have been blocked off. He was truly an outstanding speaker on this and many more topics.
Thursday, June 24, 2010
Prosecutor Post - "I use Powerpoint" so Should You.
How does that Dylan song go? “The times they are a changing…” And you better believe it! Whether it be a constant streaming of CSI or unfettered access to an abundance of “interesting” reads on the internet, most people now have preconceived notions of what our legal system should be. Good attorneys recognize this. Heck, all attorneys should recognize this, but good attorney adapt to take advantage of it. Specifically, they are turning to technological advances and discovering new and innovative ways to connect with juries.
In regard to criminal cases, most prosecutors have equipped themselves with a very effective tool. PowerPoint. Okay, it’s not so new, but to many Texas lawyers it might as well have been invented last week. From voir dire to closing arguments, state attorneys have come to realize PowerPoint is so effective that they won’t try a case without it. Why is it so effective? Simple. Our society and the new generation of jurors are visual learners. Speaking alone is no longer the most effective way to reach people, regardless of how engaging or folksy you may be.
Visual presentation is a much more effective way of reaching others and, if you think about it, data and facts that appear in electronic form just seem much more convincing. You not only tell someone X and ask them to trust you, you also show them X on a fancy big screen TV. By accessing two of their senses simultaneously, you double the odds of reaching your audience.
I know, I know, you have probably imagined that if you use PowerPoint, the jurors eyes are likely to glaze over – death by PowerPoint, as they say. But, speaking from experience, it’s not true. Of course, if you put volumes of text on the screen and simply read from the screen, PowerPoint is likely not going to be very effective for you. You still have to bring your advocacy skills to the table – PowerPoint is simply a way to bring your argument to life.
You might be concerned about trying something new, but rest assured there are many who have faced the challenge of learning PowerPoint and found the ability to not only use it, but master it. Like anything else, there are numerous resources available to assist in learning the software. And yes, the software and any tutorial materials will cost money. But you can’t afford to opt out and stick with your easel and oversized flip charts.
What impression do you think is given when you walk into court with a marker board while the prosecutor has his laptop fired up and his PowerPoint presentation rearing to go? Don’t put yourself in that position. This tool is as accessible to you as it is to anyone. And yes, it may be new to you and a bit uncomfortable. But it will only stay that way for a little while. After using it a couple of times, you’ll probably find yourself wondering how you ever tried a case without it…
For those of you new to the PowerPoint game, here’s a few tips to make your presentation stand out:
In regard to criminal cases, most prosecutors have equipped themselves with a very effective tool. PowerPoint. Okay, it’s not so new, but to many Texas lawyers it might as well have been invented last week. From voir dire to closing arguments, state attorneys have come to realize PowerPoint is so effective that they won’t try a case without it. Why is it so effective? Simple. Our society and the new generation of jurors are visual learners. Speaking alone is no longer the most effective way to reach people, regardless of how engaging or folksy you may be.
Visual presentation is a much more effective way of reaching others and, if you think about it, data and facts that appear in electronic form just seem much more convincing. You not only tell someone X and ask them to trust you, you also show them X on a fancy big screen TV. By accessing two of their senses simultaneously, you double the odds of reaching your audience.
I know, I know, you have probably imagined that if you use PowerPoint, the jurors eyes are likely to glaze over – death by PowerPoint, as they say. But, speaking from experience, it’s not true. Of course, if you put volumes of text on the screen and simply read from the screen, PowerPoint is likely not going to be very effective for you. You still have to bring your advocacy skills to the table – PowerPoint is simply a way to bring your argument to life.
You might be concerned about trying something new, but rest assured there are many who have faced the challenge of learning PowerPoint and found the ability to not only use it, but master it. Like anything else, there are numerous resources available to assist in learning the software. And yes, the software and any tutorial materials will cost money. But you can’t afford to opt out and stick with your easel and oversized flip charts.
What impression do you think is given when you walk into court with a marker board while the prosecutor has his laptop fired up and his PowerPoint presentation rearing to go? Don’t put yourself in that position. This tool is as accessible to you as it is to anyone. And yes, it may be new to you and a bit uncomfortable. But it will only stay that way for a little while. After using it a couple of times, you’ll probably find yourself wondering how you ever tried a case without it…
For those of you new to the PowerPoint game, here’s a few tips to make your presentation stand out:
- Start with a black (or otherwise dark) background. Studies show that people can more easily read white text on a black screen than vice versa.
- Use effective titles on each slide – some jurors may only give your slide a few seconds of attention. What do you want them to take away?
- Pace each slide. Don’t present all your information at once. Proceed incrementally. This allows you to argue and it allows jurors to follow your argument as it progresses.
- Use symbols to portray data. Jurors can understand symbols much faster than listening to spoken word.
- Avoid messy and overcomplicated charts. Confusing!
Saturday, March 13, 2010
Great Reading for Defense Attorneys
About a year ago, a colleague of mine recommended that I read Vincent Bugliosi's novel "And the Sea Will Tell." Of course, I recognized the author as being the prosecutor of the Manson murder conspiracy trial about which he later wrote the book "Helter Skelter," but I was unaware of any other books he had written So I read it.
I have to say, it was simply amazing. The background story before the criminal trial is compelling in itself, but to read about the way Mr. Buglisoi researched and prepared for the trial (as a defense attorney) was truly remarkable. His closing argument in the case was the work of a legend. In my opinion every criminal trial lawyer (especially defense attorneys) should read this book. I plan on reading it again soon.
I have to say, it was simply amazing. The background story before the criminal trial is compelling in itself, but to read about the way Mr. Buglisoi researched and prepared for the trial (as a defense attorney) was truly remarkable. His closing argument in the case was the work of a legend. In my opinion every criminal trial lawyer (especially defense attorneys) should read this book. I plan on reading it again soon.
Just thought I'd pass this along for what it's worth. I read at least 3 books a month, so if you have any recommendations, leave them for me in the comments. I'll read anything. Thanks.
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