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Litigator’s Playbook: Teach Your Jurors the ‘How’ and ‘Why’ of The Case

by Jeri Kagel, M.Ed., J.D.
Trial Synergy, LLC

I recently polled a jury sitting on a criminal case. The jury deliberated and remained deadlocked for more than two days. They were a hung jury until the Allen charge, and then announced a guilty verdict.

Here’s what I learned from jurors:

  1. This jury, like many of the juries we have heard about recently (the Casey Anthony trial being the most publicized and perhaps the most conflicted), were uncomfortable with a variety of things they learned about the defendant – they thought he was guilty of something, yet they believed the prosecution had not “proven their case beyond a reasonable doubt.”
  2.  “Proof beyond a reasonable doubt” meant, to this jury, something different than proving the elements of the crime. It meant conveying a story that taught them everything about the facts they were hearing. For them, it meant a story that did not leave them with unanswered questions or “holes” to fill in.
  3. When these jurors were left having to think “why” or “how” things happened in the facts leading to the charge or in how the story was presented at trial, jurors came up with different “justifiable” reasons. For jurors leaning toward “guilty,” understanding the rationale of those leaning toward “not guilty” strengthened the argument that the prosecution had not met its burden and led to the guilty verdict.

Here are some suggestions that can help regardless of whether you begin the trial having the burden of proof or if the burden shifts to you during trial:

1. Remember the questions you had when you first got the case. It is likely that when you first got the case, you had many questions. It is also likely that by the time you try the case, your questions have been answered or you learned that some of your questions could be discarded as irrelevant or inconsequential given all the facts in the case. Your jurors are more like you were initially than you are at the time of trial. At trial, make sure your “story” answers the questions you had when you began.

2. Question witnesses who can answer the “why?” or “how?” questions. Attorneys often want to streamline what the evidence presented at trial. Understandably, they do not want to anger the jury or the judge. For example, an attorney may decide to use one witness to testify to certain events although two people were there. Jurors may be left to wonder why you did not call both. Remember – you are streamlining your case based on what you have learned over time– and you learned it because you have had the case long enough to know what is important and what is not. This is not true for the jury – they are in the position of trying to figure out what is important and what is not. They may not understand why you have “left someone out” or why you have not countered the other side’s testimony. Let them know.

3. You know things the jury does not. Teach them. You may know eyewitness testimony is unreliable or children often mix up a timeline. You know neither of those things undermines your case. Juries do not know that. They may focus on those inconsistencies, or others, as they reconstruct “your” story during deliberations. As much as you can, teach the jury – through your theme, your opening or your witnesses – what is important and why, and what is not important and why not.

4. As much as you can, where there may be some confusion, use visuals to supplement/illustrate witness testimony. Timelines, organizational charts, illustrations of scenes, etc., solidify what your witness says and what jurors remember.

It is your job to teach your jurors. Teach them not just what you want them to know, but be sure to answer what they may be wondering and questioning. One of the best ways for you to get into their heads (and hearts) is to remember what you were thinking when you initially got your case.

Jeri Kagel, M.Ed., J.D., is the president and principal trial consultant for Trial Synergy, LLC. Ms. Kagel has her M.Ed. in counseling psychology from Georgia State University and her J.D. from Northeastern University.


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