By David Daggett
I recently came across a very interesting and enlightening article from the Cornell Law Review (Vol. 103, 2018) written by the Honorable Amy. J. St. Eve and Gretchen Scavo, entitled “What Juries Really Think: Practical Guidance for Trial Lawyers.” While Cornell Law School may not be the distinguished institute of higher learning that is the University of Baltimore, it is an Ivy League School and thus carries a certain level of credibility within the legal community.
The article is based on questionnaires presented to over 500 jurors serving on federal district court trials in Chicago, Illinois from 2011 to 2017. While the article primarily focuses on trial attorneys, it can certainly be applied to law enforcement officers and other witnesses as well, albeit to a lesser degree.
Judge St. Eve constructed a questionnaire to try and determine what jurors like and dislike about attorney’s behavior and performance during trial. The results were gleaned from over 50 trials presided over by Judge St. Eve and the questionnaire primarily consisted of four open-ended questions. They were:
- List three things that lawyers did during trial that you liked, in the order that you liked them.
- List three things that the lawyers did during trial that you did not like, in the order that you did not like them.
- What would you have liked to see the lawyers do differently, or better?
- Any other comments about the trial.
The answers to these questions could mostly be grouped into four categories, some of which overlapped:
- Organization, Preparation, and Efficiency;
- Style and Delivery;
- Behavior and Other Professionalism Indicators; and
- Evidence Presentation.
An additional sub-category that seemed to appear fairly regularly was “repetition,” that is, did the attorney (or witness) tend to repeat themselves.
The behaviors that most impressed jurors were organization, preparation, delivery or style of presentation and good behavior toward opposing counsel, witnesses and/or the jury. Showing the proper respect for the trial judge was appreciated as well.
The behaviors that elicited the most negative responses were too much repetition, unprofessional conduct, too much repetition, bad behavior toward opposing counsel, witnesses, jurors or judges, and too much repetition.
When asked what lawyers could do differently – or better – during the trial the most common suggestions were to be more organized and prepared, present more and/or better evidence, and improve their presentation or delivery style.
Organization, Preparation and Efficiency
As the authors point out, it is much easier for jurors to sort through complicated evidence, argument and legal theories when the attorneys neatly package and present everything in an organized, orderly, sequenced and efficient way. This is why it is so important for the prosecutors, whenever possible, to meet with their witnesses (especially expert witnesses) beforehand and go over their testimony. This is especially important when putting on complicated testimony such as crash reconstruction, DRE, event data recorder, DNA or other forensic evidence testimony. If the prosecutor or witness is confused, imagine what the juror must be thinking.
When it came to this category, the jurors in the study responded that they liked the attorneys that were “very organized” and “did the trial in a timely manner.” It was also their consensus that they preferred attorneys who prepared more thoroughly so that their evidence wasn’t missing and those who didn’t have to take long pauses to think of their next question. In general, they much preferred attorneys who paid less attention to “fluff”; got to the point quicker; had clearer details; preferred attorneys who didn’t seem to “wing it”; were more concise; and seemed to have a better plan and execution of that plan.
Of note was that jurors did not like sidebars, which they viewed as a waste of time and a sign of being unorganized. Sometimes they are necessary (particularly after lunch) to keep the blood flowing and keep the attorneys from falling asleep. The side-effect is that they tend to put the jurors to sleep.
While it wasn’t mentioned, I’d have to assume that too many objections would also tend to frustrate the jury, especially those that required sidebars or worse yet, herding the jurors back to the jury room.
Delivery and Presentation
According to the study, the juror’s second most common responses related to the attorneys’ delivery and style of presentation at trial. Many of their complaints related to the manner of delivery, such as volume, tone and clarity of speech and eye contact, or lack thereof. The authors have some good, common-sense recommendations, such as introducing yourself at the outset of the trial; speaking to the jury directly and making appropriate eye contact. Appropriate eye contact means just that, it doesn’t mean giving them the creepy stalker stare down or engaging in a contest of who can blink last. Other comments were that the attorneys be more personable with the jury, including “speaking to them as if you are speaking face to face with one person.” Remember to include the alternate jurors in your efforts. They are just a step away of being seated in the box, so you don’t want to ignore them from the outset and then suddenly treat them as though they are your long-lost, rich, old uncle who has one foot at death’s door and the other foot on a banana peel!
It should be noted in the questionnaire that defense attorneys, in general, came across as smug, arrogant and presumptuous. I may have added the word “sleazy” but that’s just me. Negative behaviors more commonly associated with defense attorneys included staring, raising eyebrows, crossing arms and a lack of smiling/warmth. While the wearing of expensive and flashy Italian loafers, pocket squares or pinkie rings were not mentioned, they should have been.
The jurors indicated repeatedly that they liked it when attorneys spoke loudly and clearly, but not when they spoke too softly or too fast. One juror wrote that she was not able to hear of the attorneys most of that time. Depending upon the facts of your case that may not necessarily be a bad thing! The same concerns applied to witnesses, who should be encouraged to speak up and speak slowly. Keep in mind that there is a big difference between speaking up and speaking in a manner or tone that intimidates or distracts the jury.
Another takeaway the authors noted was that, despite what you may see on television, attorneys should avoid extravagant and dramatic displays during trial. Jurors were not impressed by theatrics. Jurors did not like behavior that seemed overly dramatic, overly emotional or theatrical.
While not mentioned in the article, try and determine what your vocal “tick” is. Do you begin every question with “And”, “Ah”, “Umm”, or ‘Okay”? Are you constantly saying “And then what happened”? Do you say “You know” in every other sentence? Does your voice rise an octave when you get excited or nervous? Watch a video of yourself or read a transcript. While it may be cringe-worthy, it will pay off in the long run.
Attorney Behavior and Other Professionalism Indicators
The key takeaway in this regard is that jurors do not like unprofessional lawyers and that they pay close attention to how lawyers treat opposing counsel, witnesses (including parties/defendants), the judge, courtroom staff, members of the jury, and even their own co-counsel. It appeared that the most offensive behavior was treating opposing counsel, witnesses and the jury poorly. Always make an effort to treat everyone with respect, though that rule of thumb may not necessarily apply if your defendant is a murderer, rapist, child molester or mime.
Other conduct frowned upon by jurors was displaying undesirable behaviors or attitudes during trial, not showing the proper respect to the judge, interrupting, and failing to work working cooperatively as a team.
Jurors particularly disliked bickering between opposing attorneys. They noted that negative attitudes towards one another, “while entertaining, took away from the case.” Jurors pay attention not only to verbal exchanges but also to nonverbal communications such as facial expressions, dirty looks, eye rolling and body language. They noted with disapproval the constant interrupting of one another. Many commented that the most positive thing the attorneys did during trial was to cooperatively interact with opposing counsel. Simple things such as helping each other out with technology or lending a book goes a long way.
Probably the most difficult area to navigate is how to treat defendants and witnesses (both yours and theirs) in a manner that doesn’t turn off jurors. Who can you attack? Who do you need to treat with kid gloves, even though you know they’re committing perjury with every word they utter? Are you coming across as a bully? Times are changing and the aggressive, attacking prosecutor doesn’t play as well as it did 20 years ago.
The jurors questioned in the study indicated that they don’t like it when attorneys disrespect or behave in an unkind manner. After all, we don’t want to hurt the murderer’s feelings, do we? It was noted that jurors don’t like it when attorneys verbally attack witnesses or ask clearly irrelevant questions designed to belittle or embarrass the witness.
Some of the specific comments made by the jurors were that they did not like it when the attorneys:
- “got personal”;
- “picked on witnesses that were not pivotal and then took it too far”;
- “mispronounced or did not know witnesses names”;
- “asked personal questions that were not relevant to the case”;
- “used a tone of voice and an approach to intimidate witnesses”;
- “used offending language or were rude to witnesses”;
- “made ‘cynical’ remarks about the defendant”;
- “were sarcastic and rude”;
- “speaking to a witness as if they were of low intelligence”;
- “constantly interrupting the witnesses.” (This was especially true about defense attorneys.)
Jurors also expect that the attorneys be respectful to the jury. They indicated that they appreciated when the attorneys were on time as it showed respect. They also liked when the attorneys talked to them rather than “at” them. They didn’t like it when they felt as if they were talked down to or stared at, with one juror going so far as to recommend that the attorneys should not face the jury, though that would surely make the jury feel as if they were being ignored. You can’t please everyone, so you got to please yourself. (Prizes to the first three to name that tune.)
Other Unprofessional Behavior
There were other behaviors that put jurors off. For example, they didn’t like it when attorneys showed frustration with their own team when things didn’t go as planned. They also frowned upon exhibiting childish behavior such as name calling, arrogance, sarcasm and sharing “inside jokes” and laughing, smirking or rolling their eyes when other lawyers talked. Apparently the old routine of doing a fake cough and saying “bull****” is no longer appreciated in court. There goes half my rebuttal closing! Appearing honest, sincere, interested, concerned, having a pleasant attitude, and displaying an occasional smile are behaviors that positively influence jurors.
When it came to humor, it was generally agreed that displaying a sense of humor is appreciated, just as long as it isn’t taken too far. Attorneys should never make fun of anyone in the courtroom, unless it is directed at one’s self.
The jurors also noticed attorney appearance. They commented negatively about an attorney who had a hole in his jacket; wore ties or socks that “made a statement”; wore wrinkled clothing and looked sloppy; they did not like one attorney who had “hair hanging down in his face”; another who needed a haircut; and another who wore bright green nail polish. The jurors found those looks to be unprofessional. So beware, no Flock of Seagulls haircuts! Clearly gum chewing, body odor, bad breath, excessive cologne or jewelry and wearing beat up, old shoes should also be avoided. Guys, take five minutes and polish your shoes every once in a while. You’ll be amazed at the difference it makes in your appearance… and she’ll like it too.
When it came to evidence presentation, jurors disliked repetition. The most common negative juror response had to do with going over the same things ad nauseam. They disliked repeatedly covering the same basic issue and facts and the asking of the same questions over and over with the same witness. Based upon their responses, jurors perceive repetition as inefficient and a waste of time as well as an insult to their intelligence. While the authors acknowledged that some repetition is necessary to drive home an important point, excessive repetition is a sure way to annoy the jury.
Jurors (not to mention judges and witnesses) did not like lengthy, compound, and convoluted questions. They liked short, clear and easy to understand questions designed to elicit relevant information. They did not like questions either intentionally designed to confuse the jury, embarrass a witness, or were irrelevant to the issues at trial. One juror recommended that the attorneys “not try and fool the jury. Just stick with the facts.”
In general, closing arguments matter much more to juries than do opening statements. The jurors wanted and expected closing arguments to tie together all the relevant evidence in a coherent and meaningful way. They liked timelines and using the closing to connect the evidence with the legal theory of the case. Don’t read from a written script. Don’t wander. Avoid too much repetition (there’s that word again), unless it is clearly pertinent to a key disputed issue or fact. The closing needs to be orderly and cohesive, not rambling. And remember, while some eye contact is good, don’t stare, as it can be taken as a form of intimidation
Use of Technology and Visual Aids
According to the study, jurors expect attorneys to use technology and visual aids to assist in their trial presentation. They want to see technology used to summarize and connect the evidence with the applicable law. While they appreciate the use of technology, they also expect the attorneys to know how to use it effectively and efficiently. No one wants to sit through long technological snafus, which is why it is so important to visit your courtroom prior to trial and conduct a “dress rehearsal.” Be sure that you know how to use all the equipment; have all the necessary thumb drives, cables and extension cords; and that your laptop matches up with the courtroom equipment. Remember Murphy’s Law: Anything that can go wrong will go wrong. I’ve seen attorneys lips sweat when they are fussing with cantankerous technology while the judge, jury, witness, opposing counsel, courtroom personnel, bailiffs and gallery were all staring at them. It was not a pretty sight. I’m just thankful I applied an extra shot of antiperspirant that day, though I neglected my lips.
Order and Organization of Evidence
Jurors seem to prefer when evidence is presented in chronological order, at least to some degree. While we all know that is not always possible due to witness unavailability, it nevertheless is something you should strive for when constructing your trial strategy and witness list. Jurors don’t like it when the attorneys are jumping all over the place and their witnesses are called out of sequence. They like timelines and time-distance evidence. When was the murder? Where was the defendant when he was picked up? When was he picked up? How long would it take for the murderer to get from point A to point B?
Juror’s commented that they liked it when attorneys “connected time and dates together”; summarized important evidence of the trial in a logical sequence’; “presented witnesses in the order of the timeline”; presented evidence “in a way so as to allow the jurors to be better able to keep track of the case”; and “did a good job of putting the pieces of the puzzle together,” thereby making it easier to follow.
The jurors suggested that while the attorneys should spend adequate time and attention on important parts of the case, they should not belabor unimportant details. They want the attorneys to try and make it clear to the jury why certain evidence is important to the case. When doing so, be sure that the entire jury (as well as alternates, trial judge and the defense) can see and hear all the documentary and physical evidence being presented and that sufficient time is allowed for everyone to see, read and comprehend the evidence before moving on to the next exhibit or piece of testimony.
Surprisingly, almost one out of five jurors polled indicated that they felt a sense of pride in serving on a jury. They reportedly took their role seriously and felt a sense of pride in serving. This would seem to indicate that – once seated – most jurors care much more about the case than we thought they did. As such, we’d better show interest in and care about the case as well. Remember that what to us may seem like a “low profile” or “run of the mill” case, to a jury it is a serious matter, as they are determining someone’s fate, sticking them with a criminal conviction or perhaps even shaping someone’s future. Knowing that you may be sending someone to jail is a very daunting and powerful responsibility – one that many jurors struggled with. Proof beyond a reasonable doubt sometimes isn’t enough. They want proof beyond all doubt.
Judge St. Eve and Ms. Scott concluded the law review article with the assertion that jurors expect attorneys to:
“act professionally and respectfully to everyone in the courtroom and to present clear, organized, and relevant evidence and arguments without dramatics or aggression. Jurors do not like having their time wasted so preparation is tantamount. Effective use of technology helps, as does organizing evidence into a cohesive timeline or other easy-to-follow summary. Notably, jurors take their role seriously, and they are proud to fulfill their civic duty.”
Relevance to Law Enforcement
While the article was written to present guidance to attorneys, law enforcement officers can take a lot from it as well. When testifying, be mindful of how you are coming across to the jury. As I’ve long said, you want the jury to like you more than they like the defense attorney and you’d better hope that they like you more than they like the defendant. With that in mind, below are some tips to better testimony:
- Know the facts of your case forward and backward. Take your report to the stand with you. Go over your report a number of times before taking the stand. You don’t want to have to ask the judge if it’s okay to refer to your report before responding to the question, “Were you on duty on July 7, 2018?”
- Make sure to respond to the defense attorney in the same courteous and respectful manner as when answering questions posed by the prosecutor or judge;
- Be polite, humble and friendly on the stand;
- Make eye contact with the person asking you questions as well as making occasional eye contact with the jury;
- Speak slowly, clearly, concisely and loudly enough so that the judge and jury can hear you;
- Be comfortable. If that means leaving your utility belt in your vehicle, do so;
- Avoid “cop speak.” “I activated my emergency equipment when I observed the suspect committing a possible 10-54 and took up a position to the rear of the suspect vehicle in order to effectuate a brief Terry stop to further carry out my investigation.”
- Remember that in this day and age of body and dash cams, everything you say and do can (and probably will) come back to haunt you. If you swear at or are rude or disrespectful to a suspect rest assured that the defense attorney will play it for the jury;
- Chaw is frowned upon in the courtroom;
- Don’t be hesitant to ask that a question be repeated;
- If you don’t know the answer or don’t understand the question, say so;
- Don’t argue with the defense attorney, especially over trivial things such as whether the breathalyzer is an “instrument” or a “machine.” No one cares!
- If the answer to a question cannot be answered with a simple “yes” or “no” indicate such and ask for the opportunity to explain. If nothing else, the prosecutor will be put on notice and they will give you the opportunity to explain on re-direct;
- Bring all the evidence with you to court. It won’t do anyone any good sitting in the evidence locker;
- Never let on that a case is personal! You were just doing your job;
- Don’t let the defense attorney get under your skin. Just smile and say that you were trying your best. Let the attorney be the bad guy;
- Remember that no case is worth your career.
Once again I would like to acknowledge the authors – Judge Amy J. St. Eve and Gretchen Savoy, Esquire – for their very enlightening and entertaining article. I have attempted to present their key points in a concise manner (without being too repetitive) and hope that some of it will be of benefit for your next jury trial. Many of the thoughts and ideas expressed by the jurors are applicable to life itself, not just trials. If you take nothing else from the article, remember to polish your shoes and stay away from funny ties and socks!