If we do not grasp the incredible power of credibility…we can argue with all the skill and artistry of the greatest orators ever spawned by history, but we will never win. Gerry Spence, HOW TO ARGUE AND WIN EVERY TIME.
A lawyer’s credibility is key in the presentation of a case. That is not merely an internal guidepost that comports with ethical requirements, in particular the duty of “candor to the tribunal.” It is also paramount in ensuring that the evidence the lawyer presents will at least stand a chance of being accepted and relied upon.
Research into the jury system confirms this. “A second way of resisting persuasion is to derogate the source. If the source is perceived to be of dubious credibility, then there is no reason to accept the message.” Jeffrey T. Frederick, THE PSYCHOLOGY OF THE AMERICAN JURY 157 (1987). And this principle is at the core of advocacy instruction.
Most fundamental to an effective closing argument is the credibility of the advocate before the jury. Once attorneys earn credibility, jurors will take advocates at their word and will ignore inconsistencies and rationalize weaknesses in the case. Once attorneys lose it, jurors will find reasons not to believe them and will skeptically evaluate their every assertion.
Caldwell, Perrin and Frost, THE ART AND ARCHITECTURE OF CLOSING ARGUMENT, 76 Tul. L. Rev. 961, 974 (March 2002).
Two ways in which the loss of credibility may occur are in from promising that which cannot possibly be delivered and engaging in ‘gotcha’ gamesmanship that backfires. In the below case, among many other errors, counsel for a criminal defendant committed both.
In the first instance, counsel accepted a burden of proof that his client did not have (and that counsel could not meet). Trial counsel’s theory of the case was one of mistaken identification. As expressed in the opening statement,
Ladies and Gentleman, I am going to prove to you that my client did not kill [name of victim]. I know the Judge said earlier in her instructions that the Defendant has no burden of proof. But in this case we accept the proposition that we are going to prove to you that they arrested the wrong man.
Trial counsel could have made the same point without accepting a burden of proof. “Ladies and Gentlemen, my client did not kill [name of victim]. They arrested the wrong man. And here is how you will know that….” The problem here is akin to an alibi defense – it is legally an attack on the prosecution proof but jurors are susceptible to believing that it must be proved affirmatively. To that end, a defendant with an alibi defense is entitled to an instruction that the state must prove he/she was there, not that the defendant must prove he/she was at a different location. Here, there was no instruction; and here, counsel’s promise was one – based on the evidence – he could not keep.
There is research that sometimes making a promise in an opening – even one that can’t be kept – can inure to counsel’s benefit. In part this is a product of both primacy and priming – jurors remember what they hear first, and then create a story board into which they receive trial evidence (and reject the evidence that does not fit the pre-existing framework). Underwood, MAKING STUFF UP REVISITED: OPENING STATEMENT, 2 HLRe 11, 15 (Spring, 2012). Underwood makes a second point – “another study suggests that in some circumstances–at least when opposing counsel does not remind the jurors of the promisor’s failure to back up his or her promises–a defense opening that promises more than the evidence can show can help the defendant.”
The ethics of such conduct are dubious at best, particularly where counsel knows or has strong reason to believe that the proof will not be forthcoming. And in the case under study, promising ‘proof’ is different from promising to ‘prove.’ The expectation raised by this promise could not be met, and counsel’s assurance transformed itself into a failure, and thus a lack of credibility.
Another sure-fire error is to play the trickster in the courtroom. In this mistaken identification case, the accused had a glaringly noticeable tattoo on his neck at the time of trial. Counsel (and the prosecutor) had proof that the tattoo had not yet been obtained as of the day of the crime. Nonetheless, counsel asked the main eyewitness to look at the defendant and tell the jury whether the witness also remembered the tattoo on the perpetrator. The witness looked and responded that there had been something on the neck of the criminal.
The prosecutor quickly remedied this, showing on redirect that the witness never mentioned this in a time-of-crime description and then introducing photographic proof that the defendant had no tattoo then.
Jurors resent trick questions and trickster lawyers. Hans and Sweigart, JURORS’ VIEWS OF CIVIL LAWYERS: IMPLICATIONS FOR COURTROOM COMMUNICATIONS, 68 Ind. L.J. 1297, 1331 (1993)(showing “the value of developing a highly credible courtroom style”). Studies have shown that cross-examination perceived as causing a child to be confused (as when complex questions are deployed) correlates with an increase in prosecution verdicts in criminal trials. Angela D. Evans, Kang Lee & Thomas D. Lyon, COMPLEX QUESTIONS ASKED BY DEFENSE LAWYERS BUT NOT PROSECUTORS PREDICTS CONVICTIONS IN CHILD ABUSE TRIALS, 33 Law & Hum. Behav. 258, 262 (2008).
In the case at issue, these were but two examples of deficient performance. But they stood out for their role in damaging counsel’s credibility, and thereby undercutting the client’s cause. They are contrary to the precept that “The credibility of the advocate, the client, and the cause must be paramount because in order to be persuaded, the jury must trust the advocate.” Frank M. Eldridge, AN ADVOCATE’S USE OF LANGUAGE, in MASTER ADVOCATES’ HANDBOOK, 22, 23.