Why? Because I Said So, That’s Why!
By Joseph P. Rem, Jr., Esq.
Ahhh, addressing a criminal jury. Every lawyers dream. Or nightmare. Having been raised watching the gentle sincerity of Gregory Peck in To Kill a Mockingbird, the "awshucks" approach of Jimmy Stewart in Anatomy of a Murder, the fiery rhetoric of Spencer Tracy in Inherit the Wind, the mania of Al Pacino in ...And Justice for All, and the blue-eyed charm of Paul Newman in The Verdict, some lawyers, notably newer lawyers, feel intimidated by the prospect of matching such performances. What most lawyers fail to realize is that, sadly, the average address to the jury is closer to the wooden mannequin approach of Keanu Reeves in The Devil's Advocate or . . . well, any Keanu Reeves' film. Hardly a standard that should produce nightmares.
Strategies differ, styles widely diverge. But every lawyer can create an opening or deliver a summation that can be not just effective, but winning. Sure, you suffer the normal anxieties that about not being a "hollywood-type." That kind of charisma is helpful, but not critical to being effective. Maybe not even important. Content is king. You can win your case without winning an academy award. Winning begins with preparation. It is a cliche, but there is no substitute for preparation. Too many attorneys trust to their experience and "wing it." Merely reciting facts and their favorable inferences is not an opening or closing argument. Children on a playground can do that because it is easy. What is difficult, what requires preparation, is persuasion. This article will suggest ways to help you prepare to persuade.
Persuasion requires a plan, it requires organization, it requires structure, it requires boldness, it requires long stretches of quiet time for creative thinking. If you are not willing to put in the time--no, if you do not feel a burning desire and need to put in the time--the trial game is not for you. It is great fun only if you put in the hard work it demands. One theme common to good trial attorneys is a genuine belief in what they are advocating. No matter how much a stretch the argument may be, good trial attorneys will exercise a willing suspension of their own disbelief so they believe, genuinely believe (at least for the duration of the trial) what they are selling. If you do not believe it, you will not be able to sell it. The jury will read you-tone of voice, inflection, body language-and just know, one way or the other. It is said that the key to persuading a jury is sincerity-if you can fake that, you have it made. Be sincere, and be a true believer.
With all the media attention and movie treatments that summations get, you would think that they are the most important part of a trial. The most dramatic, maybe. But I hold that the most important part of a trial is the opening. It is here that you develop a rapport with the jury, seducing the jurors into liking and trusting you, inducing them, if not to feel for your client, then at least his situation. You make them want to find in your favor if there is any way they could. Jury studies show that the majority of jurors vote the same verdict as they would have after openings. Once jurors have a rooting interest, I submit, they tend to view the participants and the evidence through this biased prism, skewing the ultimate outcome.
Most of us try our case, and then following the close of testimony, prepare our summation. I believe that before trial you should daydream the strongest and most persuasive summation that you could possibly give, replete with all the facts that mandate a verdict in your client's favor. Having done so, you then know exactly what facts you must elicit and scenarios you must create during the trial to enable you to ultimately deliver that killer closing. And you begin to deliver that killer closing . . .in your opening. Your opening and summation are but a single continuing monologue, separated by a few days.
Strategies for opening differ depending on which side of the aisle you sit. Having been
on both sides, I can tell you that the prosecution has three things going for that make its job
much easier: it has an indictment, it usually has the facts, and it frequently has police
witnesses. Prosecutors should:
- Not underestimate the power of an indictment. The jury will be told that it is not evidence, that it is merely a pleading that brings this matter to trial. But what the jury hears, if the prosecutor resolutely and with firm conviction reads the indictment to the jury, is that whatever act the defendant did, he did it against the "peace of this state, the government, and the dignity of the same." Powerful, condemning words.
- Pound home the facts. Good facts are a great marketing tool for the product the prosecutor is pushing: guilt beyond a reasonable doubt.
- Drape themselves in the flag. The third arrow in the prosecutorial quiver is the reality that often times governmental agents, dressed in blue or displaying badges, will appear from on high as the anointed of the people, to testify for the government. In their voir dire the jurors have agreed that they will judge the credibility of a police officer the same as that of any other citizen. Sad experience has shown this is simply not so. The 12 persons in that box are not
a jury of the defendant's peers, for they are not alleged murderers, drug dealers, embezzlers or pedophiles, so which side are the jurors going to root for? Blue is a winning color. Wear it, wave it. What does the defense have to oppose this formidable governmental troika? Defense
counsel occasionally have some scraps or shards of evidence, but always have both the law
and their own boundless creativity. Of these three, the law may be your most powerful ally.
The jury, I suggest, should be reminded of the following in opening:
- The defendant is presumed to be innocent. Do not be afraid to tell the jurors that it is human nature to believe that just because someone has been accused that they are in fact guilty. Drive home that the presumption of innocence is a mental discipline and not a visceral response. Tell the jurors to sit back, fold their arms, and skeptically listen to see if the prosecutor can dissuade them from their firmly held opinion that this accused is indeed innocent.
- The burden of proof is always on the government. The jury will be told this by the judge. Adopt it, reinforce it, embrace it. Remind the jurors that our criminal justice system is premised on the truism that in a trial, as in life, it is impossible to prove a negative, that is, to prove that something did not occur.
- In that same vein, never call your client the defendant. Explain to the jury that others may do so, but that the term is inappropriate, as a defendant has no obligation to defend against anything. The State has the burden of proving guilt beyond the reasonable doubt, and that burden continues not only through the trial, the summations, the charge by the court, but even into and through their jury deliberations, and that burden never shifts.
- An indictment is not evidence of guilt. Drive home the point by discussing with a jury how an indictment is obtained. How the prosecutor alone appears before the grand jury, how only the state's witnesses are presented. How there is no defense attorney to cross-examine the witnesses, or to present witnesses who will tell the whole story. Jurors are sometimes horrified at the one-sided nature of a grand jury proceeding, and may even believe that the accused was brought to trial unfairly.
- The structure of a trial. Despite all the televised dramas regarding the practice of law, many jurors are still uncertain exactly how a trial unfolds. Tell the jurors that the State will present its evidence first, just as the State opened first to the jury. Remind the jurors that they have sworn an oath to keep an open mind until all the evidence is in.Ask the jurors how they would feel if one of their loved ones was on trial -their son, their husband, their brother, their father- and after only the State's opening, or the State's case, they saw those jurors walking out commenting that they had already made up their minds. But what about the facts? Most legal commentators will tell you to pound home the theory of your defense from the outset, using the "rule of threes"- tell them what you are going to say, tell them what you are saying, and then tell them what you just said. While true for the government, I preach a heretical view for the defense. I have rarely tried a case that unfolded exactly as I had expected. Weak witnesses suddenly turn strong; strong witnesses crumble. Bedrock facts become ambiguous, and information unknown to either side oozes from each witness in cross examination. In short, often times the case you prepared to try is far different than the case you actually try. As a result, I advocate that in most cases, the better approach is to remain flexible in your opening. Do not address the facts in your opening because facts lock you in and narrow your options.(1) Leave your defense open to the possibility of taking advantage of unforeseen circumstances. Furthermore, an opening that pounds home the legal principles enunciated above becomes diluted, and the jury distracted, when you also address the facts. In advertising lingo, you take the jurors "off-message."
Openings and summations are interrupted in our system of justice by what we call the trial. It is a filler proceeding whose sole function is to allow you to gather fodder for your summation. In the trial, defend your case on the pure and simple theory you intended from the outset, shunning the distracting clutter of the shotgun approach, being ever mindful to catch whatever nuggets of good fortune that may fall into your lap.
What many experienced criminal trial attorneys have in common is a pattern, a patter, a script of sorts, a preformatted framework and strategy to communicate those elements that are common to all their summations, allowing them to get across to the jury important ideas that are not case specific while they focus on the facts and defenses unique to the current case. Consider the following when preparing your summation:
- Remember that the prosecution has to prove each and every element of the offense. Let the prosecutor prove five out of six elements, and the accused wins. Do not be afraid to admit those elements which cannot be credibly disputed. Attack only the element(s) that the state had trouble proving. A laser-like approach that narrows and focuses your theory of the case brings clarity to your defense, enhances your credibility and keeps the jury attentive.
- Do not use notes in summation. There is no thicker or more imposing wall between an attorney and a jury than the psychological wall of a just few sheets of yellow paper. Yes, you do run the risk, even the likelihood, that you will forget one or two thoughts which you had jotted down in constructing your jury address, but the rapport and credibility you will create with the jury by making direct eye contact, and not hiding behind the bullet-proof glass of your yellow pad, will advance your cause much further than those one or two omitted points.
- Structure your opening and closing arguments in such a way that each argument logically flows into the next, and inexorably walks the jury up the ladder of persuasion step by step to the ultimate conclusion. Plan and create segues, eloquent connective phrases that you will seemingly pluck from the air as needed. Being spontaneous requires much forethought and planning.
- Remind the jurors that the prosecutor was not present when the offense was committed, and she does not know what occurred that night. What she will tell the jury after you sit down is merely comment on the evidence the jurors have heard for themselves.
- Drive home the advantage the prosecutor has by being allowed to speak last. The prosecutor has had the opportunity to listen to and comment upon everything that you as a defense attorney has said, but you will not be allowed the same opportunity. Request that the jurors during deliberations make you the "thirteenth juror:" what summation response you would have made if you given the opportunity?
- It is one thing to be told a solution to a puzzle, and quite another to solve it yourself. When you solve it yourself, you are invested in the answer; you own it. Phrase many of your stronger points not as statements, but as rhetorical questions. Do not tell the jurors that no one bothered to look for fingerprints on the gun to prove the accused possessed it. Ask instead what evidence there was that could have proven, unequivocally, that the accused held the gun in his own hand. Then pause (silence is such a powerful tool), while the jurors themselves solve the puzzle. On more than one occasion I have had jurors respond to that rhetorical question with a shout of "Fingerprints!" While such Perry Mason moments are rare, the point is rarely lost on a jury.
- Beyond a reasonable doubt really is an extraordinarily high standard, with good reason to a noble purpose. It is the shield we wield to protect against that which our system of justice most despises, an innocent man being wrongfully convicted. It expresses our belief-no, our dogma--that is better that one hundred guilty men go free lest one innocent man be convicted. It is not to be taken lightly. Tell the jurors that if they go into that jury room and decide that the accused is probably guilty, then that is an acquittal; if they think the accused is almost certainly guilty, that mandates a verdict of not guilty, for neither is proof beyond a reasonable doubt.
- Your client and the state of New Jersey request nothing more than fairness. If the jurors can go home that night, lay their heads on a pillow and feel comfortable with their verdict, then justice has been done. It is discomforting to convict someone of a crime; the jurors will understand an improvident conviction will affect not only the accused, but them as well.
- If there is a particularly helpful phrase in the jury charge, memorize it and use it. Verbatim. When the judge, who is seen as a paragon of justice and neutrality by the jurors, charges the jury using those exact words, she will be seen as having allied herself with you, as having given you her imprimatur. You will share her mantle of credibility.
- Consider, lastly, not using the phrase "not guilty." It comes back to the rhetorical question and puzzle-solving strategy. Tell the jurors that if the state has proven every element of the offense to their satisfaction beyond a reasonable doubt, then they may convict; but if they still have a doubt a reasonable uncertainty about the guilt of the accused then they . . . know what the verdict must be. The answer will come from their own inner voice, louder and more credibly than if spoken by you.
Take comfort in the words of Justice (and former Solicitor General) Robert H. Jackson:
"I made three arguments of every case. First came the one that I planned-as I thought, logical, coherent, complete. Second was the one actually presented-interrupted, incoherent, disjointed, disappointing. The third was the utterly devastating argument that I thought of after going to bed that night."(2) Whether you toil in the fields of the state, or the pastures of the defense, if you conduct yourself in a professional and collegial manner, if you do not take unfair advantages nor liberties with your ethical obligations, you will impress your client, earn the respect of the court and your colleagues, and maximize your impact on the jury. You will be confident that you have done the job that the framers of our constitution envisioned, that so many soldiers have fought and died to protect. You will be a worthy heir to our legal tradition. And no matter how insecure you may be as to your performance--and yes, as was Justice Jackson, so are we all-- you will take comfort in knowing you demonstrated greater emotional range than Keanu Reeves.
Endnote 1: An admission of any fact in opening becomes an admission which obviates the need for the adversary to prove it by other means. State v. Wright, 155 N.J.Super. 549 (App.Div. 1978).
Endnote 2: Advocacy Before the Supreme Court, 37 A. B. A. J. 801, 803 (1951). Mr. Rem is the senior partner in REM ZELLER law group, p.c., Hackensack, NJ. A former Passaic County Assistant Prosecutor, he is Certified by the Supreme Court of New Jersey as a Criminal Trial Attorney, and serves as Treasurer of the Bergen County Bar Association. This article is reprinted with the permission of New Jersey Lawyer, The Magazinetop