Cambridge Trial Lawyer
It is the love of combat which every man possesses that fastens the attention of the jury upon the progress of the trial.
~Francis L. Wilhelm, The Art of Cross-Examination (1903)
Opening Dynamics & the Presumption of Innocence
To be successful, a Massachusetts criminal defense lawyer must understand the dynamics of a criminal trial. Though the judge will instruct the jury that they are to presume the defendant innocent of any charge, this instruction may prove incongruent with what the jurors having already deduced for themselves. When, as prospective jurors, they entered the courtroom, they knew next to nothing about case (unless it was publicized). Nevertheless, these men and women, from what they could glean from the proceedings, may have been inclined, from the following, to presume the defendant’s guilt:
- the defendant stands accused of something;
- the police would not have arrested/charged the defendant unless they believed that he was guilty – after all, the police have better things to do than arrest innocent people;
- the prosecutor must believe that the defendant is guilty of the crime charged or else he would refuse to prosecute; and,
- the judge must believe that there is sufficient evidence to justify a trial, otherwise he would throw the case out of court.
If you are charged with a crime and are dragged into court in shackles, suddenly you become a member of that vast mob of criminals that we all fear.
~ Gerry Spence, From Freedom to Slavery
The majority of jurors do not enter the courtroom concerned with the query that they will be later called upon to answer: has the prosecutor proved beyond a reasonable doubt that the defendant committed the offense charged. Instead, they may wonder what crime the defendant committed. Psychologically, these jurors may be almost predisposed to find the defendant guilty and to reject the presumption of innocence. To insure his victory, the defense lawyer cannot afford to miss any opportunity to undermine the presumption of guilt.
Jury Voir Dire
In every state except Massachusetts, the criminal defense lawyer and the prosecutor are allowed to directly question prospective jurors in an effort to unearth – and perhaps to dispel – their prejudices and biases, and to probe their understandings of the presumption of innocence and proof “beyond a reasonable doubt.” Voir dire is time consuming, but invaluable. In Massachusetts, the defense lawyer and the prosecutor are only allowed to submit questions to the judge, who decides which, if any, of the questions he will ask of jury pool. If a prospective juror’s response – usually by raising his hand – calls into question his or her neutrality, the juror will be summonsed to the side bar where the judge will inquire further. Only in sexual assault cases is the voir dire process more comprehensive.
Jury Selection
“Jury Selection” is a misnomer. This process would be more accurately characterized as “Juror Elimination.” Neither the criminal defense lawyer nor the prosecutor “selects” jurors. Instead, the defense lawyer and the prosecutor are given just a few short minutes to scan the juror questionnaires submitted by the prospective jurors. Both the defense lawyer and the prosecutor are given a limited number of peremptory challenges – in District Court the lawyers are limited to two peremptory challenges and in Superior Court they are limited to as many as sixteen peremptory challenges. The respective lawyers can exercise their peremptory challenges to strike potential jurors from the jury. Lawyers – particularly prosecutors – should have race and sex neutral reasons for their use of peremptory challenges. Otherwise, lawyers can use these challenges as they see fit. The lawyers can also challenge any prospective juror for “cause.” By “cause,” it is understood that the lawyer challenging the juror must persuade the judge that the juror is, for whatever reason, disqualified from rendering a just and unbiased verdict.
Prosecutors routinely attempt to eliminate potential jurors who have had previous arrests or simply appear “anti-establishment.” Most criminal defense lawyers would attempt to eliminate potentially “pro-establishment” jurors. The prospective jurors that remain after each side has exhausted its challenges or states that it is “content,” are sworn in as jurors.
Opening Statement
Opening statement is a concise recitation of the evidence that a lawyer expects to introduce during the trial. Unlike the latitude extended to lawyers in the closing argument, lawyers are not permitted to “argue” the facts or law during their opening. It is the first chance either the criminal defense lawyer or the prosecutor has to shape the impressions of the jury. Since the prosecutor goes first, he enjoys a huge advantage. In those cases where the defendant stands accused of a heinous crime, a skilled prosecutor can, with graphic descriptions of the evidence, make the jurors so angry at the defendant that they may want to dispense with the trial and immediately hang him from the nearest tree.
Most Massachusetts criminal defense lawyers, either because they don’t understand the importance of their opening statement or because they believe that they may do more harm than good, give ineffectual, indecisive or anaemic opening statements. The opening is the criminal defense lawyer’s first chance to tell the jury his theory of defense – the perspective of the facts which, at the conclusion of the trial, will compel the jury to acquit the defendant. The importance of a well-prepared opening statement cannot be overstated.
Objections & Handling the Judge
Lawyers have a right, during the course of a trial, to object to a violation of the rules of procedure by the opposing lawyer and to evidence that the opposition seeks to introduce that doesn’t comply with the rules of evidence. Objections can be made to the content of opening statements and closing arguments, to the form of questions put to witnesses, and to the answers given by witnesses. A judge can either “sustain” or “overrule” an objection.
Although preventing an opposing lawyer from introducing evidence with a well-timed objection can give the objecting lawyer an advantage – a temporary advantage in most cases, objections – successful or not – leave the jury the impression that the lawyer is afraid of the evidence that the opposition is trying to introduce into evidence for their consideration. The objection may well end up paying a dividend to the other attorney. As Gerry Spence says, lawyers rarely win trials by moaning, sobbing, obstructing and running to the judge with objections. Prosecutors love to object. Some are positively jumpy. Prosecutors – who have the obligation of pursuing justice, not just a victory – object to most everything. Few have any grasp of the rules of evidence. In support of their objections, prosecutors have difficulty citing to a rule of evidence or to any case law interpreting the rules. Their side-bar whining usually amounts to little more than, “I don’t want this evidence to come to the jury’s attention because it will hurt my chances of securing a conviction.”
Despite the paucity of legally based reasoning, judges often sustain the objections made by prosecutors. Judges feel it is safer to agree with the prosecutor. A judge’s evidentiary rulings can, for the defense attorney, spell the difference between winning and losing. Enough bad evidentiary rulings and a lawyer can find himself without the means to present his client’s defense. Therefore, when a prosecutor objects, a defense lawyer must be prepared to relentlessly argue each and every point of law and to provide the judge with substantive authority that supports the evidentiary ruling the defense lawyer wants to force upon the judge. The defense attorney must box the judge in, making it impossible for him rule in favor of the prosecutor. That a judge’s evidentiary rulings may be reversed on appeal is small consolation to a client who is convicted and on his way to prison.
The average juror, rightly or wrongly, reasons that the judge is a person of integrity. The defense lawyer enjoys no such presumption. In front of the jury, the defense lawyer needs to show the judge deference. It is incumbent, however, on the defense lawyer to stand up to the judge. At side-bar conferences and hearings that take place outside the presence of the jury, he must argue forcefully, prepared to give as good as he takes. Despite what is needed in such an arena, many defense lawyers resort to “ass kissing,” either out of weakness or the mistaken belief that the recipient judge will be predisposed to rule in favor of timorousness over strength. A client with a doormat for a lawyer is in for a very long trial. Not only will the judge’s rulings prove no more favorable to the client, the judge will likely run roughshod over this attorney. Gaining the judge’s respect is essential to taking control of the courtroom. And the defense lawyer must control this courtroom to win.
Direct Examination of Witnesses
Because the prosecutor shoulders the burden of proving the accusations, he puts his witnesses on first. A lawyer who calls a witness, except where such witness has been declared hostile, must ask only non-leading questions of the witness. The witness should answer only what he is asked and any information beyond the scope of the question may be stricken from the record upon motion by the opposing attorney. Very few witnesses called to the stand are unimpeachable. Experienced lawyers will, if their witnesses are vulnerable to attack, attempt to diffuse the explosiveness of that attack by raising the problem areas with their witness on direct examination.
Cross-Examination of Witnesses
Cross-examination—the rarest, the most useful, and the most difficult to be acquired of all the accomplishments of the advocate… It has always been deemed the surest test of truth and a better security than the oath.
~Cox
The defense lawyer, on behalf of his client, has the right to thoroughly cross-examine the prosecution’s witness. Having long appreciated the reluctance of some witnesses to voluntarily divulge facts that either present themselves in an unflattering light or prove beneficfiial to the opposition, the courts permit the cross-examiner to ask leading questions. The trial judge has broad discretion to limit cross-examination. Effective cross-examination is the single greatest opportunity available to a defense lawyer to cripple the prosecution’s case. Unfortunately, few lawyers have mastered this science or perfected this art. They ask open-ended questions that, at a minimum, allow the witness to reaffirm his testimony on direct or, worse, all him to slip in highly damaging testimony that he didn’t raise during direct examination.
Great cross-examinations are rarely the by-product of a quick, but unprepared lawyer. The witness may too possess a quick or even quicker mind. And although a colorful repartee between the cross-examiner and the recalcitrant witness makes for good theater, it doesn’t win trials. Determination, discipline and detail win trials. Preparation is the always key. Exhaustive preparation.
The Confrontation Clause commands that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.
~Antonin Scalia, Supreme Court, Crawford v. Washington (2004)
The cross-examiner must carefully arrange his attack long before the trial begins. He must consider by what method he can score the most points, inflict the most damage, and undercut the most witnesses. His cross-examinations must fit within the context of his theory of defense. The cross-examiner must select ahead of time the field or fields upon which he and the witnesses will do battle. Since the prosecutor will likely be calling experienced police officers or detectives who may have testified in countless trials and tangled with, and maybe humiliated, many defense lawyers, the defense lawyer must decide ahead of time how he is going to control and thereby defeat these witnesses. The battle must take place on the field that the cross-examiner has selected.
It is through effective cross-examination that the defense lawyer devastates the prosecutor’s case, assuring his victory.
The Defense & the Fifth Amendment
The Fifth Amendment is an old friend and a good friend. It is one of the great landmarks in man’s struggle to be free of tyranny, to be decent and civilized.
~William Orville Douglas (1898-1980)
The accused is allowed at his trial to set forth his defense through witnesses and other proofs. Since the defendant enjoys the presumption of innocence, he is not obligated to put forth any affirmative defense. Ideally, evidence favorable to the defense will have been extracted from the prosecutor’s witnesses. In the perfect defense case, the defense will rest without calling a single witness. Putting defense witnesses on the stand is wrought with danger – the danger being that the jury will perceive the witness as untruthful. If the jury believes that the defendant has called a liar to the stand, it will cost the defendant the trial.
Under the Fifth Amendment to the U.S. Constitution, a defendant cannot be compelled to testify against himself. If the defendant voluntarily takes the stand he, however, must submit to cross-examination. Innocent or not, most criminal defendants fair poorly against experienced prosecutors. In fact, innocent defendants often perform worse on the stand; they are simply outmatched. With their very freedom often at stake, they are hard pressed to control their emotions. Very few have experience in public speaking. Facing off with a trained prosecutor before a jury in such a formal setting, with its unfamiliar rules and customs, is too much for most defendants to handle. A defendant self-destructing on the stand is an image no defense lawyer can dispel from the minds of deliberating jurors.
Closing Argument
An advocate can be confronted with few more formidable tasks than to select his closing arguments.
-Robert H. Jackson, chief counsel for the United States at the Nuremberg Trial, 1946
Both the criminal defense lawyer and the prosecutor are permitted to make closing arguments. Closing arguments ostensibly give the lawyers their first opportunity to argue their cases. The lawyers are prohibited from intentionally misstating evidence, vouching for the credibility of witnesses, or referring to facts not in evidence. Prosecutor’s are prohibited from making appeals to sympathy for victims or attempting to rally the jury into extirpating crime from our streets. While it makes absolutely no sense, the criminal defense lawyer is required to make his closing argument before the prosecutor makes his closing remarks. The criminal defense lawyer must anticipate – not respond to – the prosecutor’s argument.
The importance commonly attached to the closing argument is vastly overstated. In an address in 1929, New York lawyer Emory R. Buckner observed that “Close cases are won or lost by the summation.” The closing may prove to be the difference in a close case. A criminal defense lawyer who hasn’t won his case before closing argument, is in bad shape. A lawyer who believes he can overcome poor opening statements and unfocused, unimpressive cross-examinations with some splendid closing oratory, may find his former clients petitioning the warden to name a wing of the state penitentiary after their former advocate.
The law condemns and punishes only actions within certain definite and narrow limits; it thereby justifies, in a way, all similar actions that lie outside those limits.
~Leo Tolstoy,What I Believe
Although they are admonished by the judge to keep an open mind throughout the trial, the majority of jurors make-up their minds during the trial. Once jurors have made up their minds to convict the defendant, it is difficult to believe that a defense lawyer’s closing argument will change their minds.
Nevertheless, the closing is no time for the criminal defense lawyer to cat nap. He needs to offer a spirited summation to demonstrate to the jury his continued commitment to his client’s cause. He must renew his attacks on the viability of the prosecutor’s case, not because the jury isn’t aware of the deficiencies, but because it’s important that the jury understand that the lawyer believes these warts are real. Most importantly, this is the criminal defense lawyer’s surest, and perhaps only opportunity, to educate the jury. He needs to explain to the jury how the presumption of innocence and standard of “beyond a reasonable doubt” control and confine their deliberations and lead to only one conclusion – that the prosecutor has not met his burden of furnishing these men and women of the jury with sufficient proof of the defendant’s guilt. Again, however, if the prosecutor has shouldered his burden, or appears to have shouldered his burden because of the inadequacies of the defense lawyer’s cross-examinations, the jury will likely find this closing appeal hollow. An intelligent, well-constructed and moving closing argument can leave the jury highly resistant to the prosecutor’s pleas for conviction.
Kevin J. Mahoney is a Cambridge Criminal Defense Lawyer, on-air legal analyst, and author of Relentless Criminal Cross-Examination.
