Envision the jury en masse. Predict
how potential jurors interact with each
other. Differentiate leaders from followers.
Jury forepersons typically have attractive
personalities and probably answer your
questions clearly/directly. Making these
predictions forces you to stay present.
Many attorneys give artful, powerful
opening statements designed to advance
the strengths of their case and reveal the
other side’s weaknesses. Unfortunately,
trial could turn out much differently than
your opening statement predicts. You can
appear “over the top” and lose credibility
with an overly optimistic opening statement. Keep it simple. Carve your story
from undisputed facts. Isolate the places
where the facts may differ. Avoid overpromising. The opening statement is not
argument; it’s merely a taste of what’s to
come. Leave them wanting more.
Many claim jury trials are won or lost
during the opening statement. But I happen to feel otherwise: consider reserving
your opening statement if you’re unsure
what direction trial will go. Theoretically,
prosecutors must quickly win juries over
because, as trial proceeds, the defense’s
case only gets stronger after the prosecution rests their case-in-chief. Reserving
opening statement slides the burden of
proof on the prosecutor’s plate a little
heavier when trial begins. You’ll also see
the State’s case — warts and all — without
tipping your own hand.
Avoid using cross-examinations to attack
and humiliate witnesses. I once conducted trial on a multi-count felony drug case
involving confidential informants. Police
investigations were sloppy. My strategy
was to “divide and conquer” the counts by
raising reasonable doubt as to each one.
Admittedly, my cross-examination
of each officer was unkind. Although I
exposed their inadequate investigations,
the jury seemed unimpressed. My suspicions were correct — they found guilty
on all counts. Later, jurors said the sheer
volume of the counts affected their decision (another good lesson). Also, the judge
pulled me aside and said the most impressive cross-examinations happen when
attorneys are smooth, well-behaved, and
dispassionate about the answers.
The best guidelines I’ve found are, not
surprisingly, from Irving Younger’s 10
Commandments on Cross Examination:
1. Be brief.
2. Ask short questions in plain words.
3. Always ask leading questions.
4. Don’t ask a question to which you
do not know the answer.
5. Listen to the witness’ answers.
6. Don’t quarrel with the witness.
7. Don’t allow the witness to repeat
his direct testimony.
8. Don’t permit the witness to
explain his answers.
9. Don’t ask the “one question too
10. Save the ultimate point of your
cross for summation.
“Lesser Included” Jury
Acquittals aren’t the only way to “win”
criminal jury trials. Victory also happens when clients get convicted of lesser
charges. Here, lesser-included jury instructions are useful. Defendants have
a statutory right to use lesser-included
jury instructions. A court should give the
instruction if the evidence would permit
the jury to rationally find the defendant
guilty of the lesser offense and acquit
him of the greater offense. However, there
must be affirmative evidence supporting
the theory that the defendant is guilty of
the lesser instead of the greater offense.
The “comments” section of the WPICs
discusses whether lesser-included jury
instructions are allowed. Better yet, the
WPICs are freely provided by the WSBA’s
Casemaker research tool.
Avoid drafting closing arguments too
early. It’s very difficult to predict what evidence will get admitted/suppressed and
how witnesses will testify. Instead, develop your closing argument as trial evolves.
This forces you to stay present. Avoid
reading closing arguments verbatim
from a script. Work from an outline. Look
jurors in the eye. Speak from the heart.
And unless you reach a settlement during trial, never give up before presenting
your closing argument. Jurors can sense
when you’ve lost heart. Closing argument
is your final opportunity for a knockout.
Expect the Unexpected
Anything can happen. I once defended a
client charged with Malicious Mischief
who punched a hole in a wall. For months,
I was led to believe no photographs ex-
isted. At trial, however, and right after im-
paneling the jury, the prosecutor provided
a damning photograph of a fist-sized hole
in the wall. Fortunately, the judge granted
my motion to suppress the photograph
under CrRLJ 4. 7(a)( 1)(v) due to discovery
violations. Later, the jury acquitted for
lack of evidence. Bring your rule book to
court. Luck happens when preparation
Amajor, quantifiable difference sepa- rating young attorneys from experienced attorneys is the number of jury
trials conducted by each. Most other
facets of practicing law are learned over
time and repetition. Therefore, it’s imperative for young attorneys to prioritize and
incorporate jury trials into their practice.
Becoming effective in trial directly translates into becoming an effective negotiator. You’ll have a greater understanding of
your cases and their probable outcomes.
Good luck! NWL
criminal defense at
Tario & Associates,
P. S., in Bellingham.
He was awarded
as a “Rising Star”
Washington Law & Politics, is currently
ranked “Superb” and “Client’s Choice”
by www.avvo.com, and is a former
co-editor of the Whatcom County Bar
1. The Irving Younger: Wisdom and Wit From the
Master of Trial Advocacy, Chapter 6, Credibility and
Cross Examination, p. 413, American Bar Association; http://en.wikipedia.org/wiki/irving_younger.
2. Fact or Fiction: Are There Less Jury Trials & Trial
Layers? If So, What Do We Do About It? David
W. Elrod & Worthy Walker, 2009, p. 6. www.
4. Sun Tzu, The Art of War, Chapter 3.
5. David N. Finley, Esq., and Lisa McGuire, Esq.,
Washington Motions in Limine, West Publishing,
Washington Practice Series, 2011–2012.
6. Fahringer, Herald Price, Mirror, Mirror on the Wall
. . . Body Language, Intuition, and the Art of Jury
Selection , 17 Am. J. Trial Advoc., pp. 197, 1993–94.
7. RCW 10.61.010; State v. Roger, 70 Wn. App 626,