Perhaps it’s simply a function of the average law school education, but considering the number of trials I’ve covered as a journalist, I’m consistently amazed by the average attorney’s capacity to completely ignore the jury.
It’s beyond baffling!
Considering your client’s financial or criminal fate rests squarely in their hands, doesn’t the jury deserve more love than just an opening and closing statement? That’s especially true when you consider they’re more than willing to communicate with an attorney who’s willing to “listen” to them.
But rather than bore you with a lecture, let’s get right into some great examples from a recent Kane County murder trial I wrote about at length. That jury was incredibly expressive, but neither the defense nor the prosecution bothered to as much as glance at them, and that really killed the State’s Attorney’s case.
The public defender did her best to blow it, too.
Their problems started when they spent the better part of two hours debating about whether the decedent regularly fell down.
First, the jury started fidgeting – scratching their heads, sighing, squirming, folding their arms, leaning back in their chairs and looking around the courtroom. By the time that argument descended to if a crushed shoe box, laundry basket and suitcase were proof of previous falls, the jury had completely tuned them out.
Instead of listening to the testimony, the jurors were far more interested in the constant stream of people entering and exiting the courtroom and a court security conversation going on in the back of the room.
Throughout this entire process, there was a photograph of the decedent lying on the floor prominently displayed on four separate courtroom monitors. The jury already knew he fell down. Had either the defense or prosecution team bothered to look at those jurors, they would’ve shut that line of questioning down after 10 minutes.
Then the defense called the decedent’s ex-wife to the stand and started stepping in it big time. Her intention was to have the witness provide an alternative to the prosecution’s cause of death theory, but, through a very poor choice of words, she made it seem like the ex-wife was in on a veterinary drug fraud.
And the jury did NOT like it one little bit!
Generally, you can’t count on the accuracy of facial expressions because they can be so easily faked. The exception to that rule, however, is when those looks occur milliseconds after something unsettling was said. And those jurors’ wide eyes said it all.
As the defense continued down that errant line of questioning, the jury starting engaging in what body language experts call “pacifying” behavior. The men rubbed the back of their heads and necks as they furtively glanced around the courtroom. The female jurors started slowly rubbing their lips with their index and middle finger and/or covering their substernal notch (that notch at the base of your neck) with their entire hand.
Though our public defender changed direction in the nick of time, because they weren’t paying attention to the jury, the prosecution upped the ante by going after this sympathetic witness bigtime.
And the jury was beside themselves!
They folded their arms, looked disgusted, started taking very deep breaths and stared downward more often than looking up.
Because they still weren’t paying attention, the defense abruptly ended that cross examination with an objection that never should’ve been made. Had they let the jury communicate with them, they would have silently smiled while the prosecution slowly killed their case.
We’ll talk more about this case in part 2!