Jul 05, 2016 How to persuade a hard-line judge or jury to see the case on its own merits
On July 1, 2016, I blogged about judges’ and jurors’ passions about drinking and driving enforcement. I reserved for a later date — which is today — addressing persuading a shift in those virulently opposed to drinking and driving in the abstract, to seeing the case at hand for the humanity of the defendant and for the case’s own merits. Today’s blog entry applies to any prosecution involving strong law-and-order views by judges and jurors.
The first step in effectuating such a shift — once again, narrowing the goal of the shift to be only with the case at hand, to enable the juror better to see himself or herself as ordinarily a law and order proponent while still deciding in the defendant’s favor — is to use jury selection/voir dire to identify the potential jurors most likely not to follow the juror’s oath to decide the case solely on the law and the evidence. That is no easy task, particularly in jurisdictions where judges ordinarily conduct jury selection rather than permitting the lawyers to talk directly with the potential jurors. Even in jurisdictions, like Virginia, where the opposing lawyers are permitted directly to question jurors, effective voir dire in significant part calls for jurors to answer the questions that pertain to them and to be fully honest in those answers.
Once the judge is assigned and the jury is selected, they become the criminal defense lawyer’s judge and jury. They are the hand dealt to the criminal defense lawyer and they must be accepted as the reality of the case absent a successful motion to select a new jury or to recuse the judge, or absent any successful post-trial motions or post-trial appeals.
From an abstract distance, people can promote a hue and cry for law and order, tougher law enforcement, and more incarceration. However, when a criminal defense lawyer engages effectively with the judge and jury, and humanizes his or her client to enable the judge and jury to realize that the judge or juror or their close relative or friend could easily be in the same seat as the defendant, the judge and juror are no longer in the abstract, but realize they are dealing with a real human life.
Humanizing the criminal defendant does not mean pouring in excessive sentimentality nor melodrama, nor in seeking to manipulate anyone (manipulation efforts always backfire) but in the lawyer’s being his or her best real self, and bringing judges and jurors face-to-face with a persuasive story of the case, and the real-life impact of their decision in the case. The judge and jury need to be convinced to give the case and criminal defendant the time and attention they merit. They need to have a way to feel little to no dissonance by acquitting the defendant, finding guilt only on a lesser charge, or arriving at a less-than-harsh sentence. The jury must take its time deliberating, fully engaging with each other in the jury room, and not allowing the foreperson to pull more rank than any other member of the jury.
It can be scary for a criminal defense lawyer to place the fate of his or her client in the hands of the judge and jury. However, the effective criminal defense lawyer does not simply hand the defendant to the jury. Instead, the criminal defense lawyer weaves a persuasive story into every stage of trial, bringing the judge and jury as close as possible to feeling good about reaching a judgment favorable to the defendant.