Much is lost by the audience when lawyers speak to [or “at,” which is even worse] jurors. As one article concluded, “the human mind does not always act like a sponge. In the legal setting, lawmakers, judges, and scholars hope but hardly expect that jurors exhibit perfect retention of trial facts, particularly in complicated trials.” Levinson, FORGOTTEN RACIAL EQUALITY: IMPLICIT BIAS, DECISIONMAKING, AND MISREMEMBERING, 57 Duke L.J. 345, 373 (November, 2007).
But jurors will remember some things. And a lawyer’s inconsistencies regarding a client’s innocence are ones that may come back to haunt the accused.
Consider this opening statement from a recent homicide trial in Pennsylvania. The defense lawyer staked his claim on the jury concluding that the prosecution witness was the real killer:
OPENING STATEMENT (EXCERPT):
You come into a homicide case and it’s debatable…whether you’re ever going to see a killer or not…because the defendant may be not guilty. He may not be the person…But I can tell you that you are going to see a killer in this case, and you’re going to see a guy who shot and killed this poor young kid that this family here is grieving over…He’s going to sit right in this [witness] chair…and he’s going to be called in front of you by the [prosecution]. [Name of witness] shot and killed that young boy.
One might have expected consistency through to the closing, but at trial’s end counsel’s argument was quite different – there were two possible scenarios, one of the defendant being guilty and the other of someone else, and the equal plausibility of the two stories is what required a verdict of not guilty.
CLOSING ARGUMENT (EXCERPT):
Now, in a criminal case, the prosecution has to prove their case beyond a reasonable doubt…There is no verdict in the United States of innocent…You’re not here to determine is he innocent or not innocent. You’re here simply to see if the quality and quantity of the evidence of the [prosecution] has pushed the ball so far, so far, that you have no reason to doubt their version of events…We do not convict people in this country on he might have done it, maybe he did it, there is a good possibility he did it, I think he did it.
Now, you have to find that the Commonwealth has shown you through this evidence that there is no reasonable interpretation of this evidence that would say that [my client] is not guilty, that there is no reasonable theory…But is there not a reasonable theory, meaning use your head and a reasonable theory, that suggests that [my client] is not the killer? Yes, there is a reasonable theory of innocence. The reasonable theory is that [prosecution witness] did the shooting.
A juror who heard and remembered both the opening and the closing might be thinking “has something changed” or “is this a sleight of hand” lawyer’s move? Is this a real risk?
Juror memory is unquestionably imperfect. “Because of the limitations of the human brain relating to neuron firing and information processing, physiologists estimate that only 1% of all the information that comes into a person’s consciousness is stored as long-term memory.” Browne et al, THE SHARED ASSUMPTIONS OF THE JURY SYSTEM AND THE MARKET SYSTEM, 50 St. Louis L.J. 425, 459 (Winter, 2006). But the opening statement is meant to ‘prime the pump,’ to set a framework for viewing the entire trial. If that works, then juror memory failure won’t prevent some in the jury from asking “did the defense just change course?”
There are at least three lessons here. The first is that the dramatic ‘the real killer will be unveiled to you…’ opening statement makes sense only if there is a strong case for it. Second, a defense of ‘there are too many plausible stories’ may work, but only if it is tested first during jury selection and is emphasized by the jury instructions. Finally, don’t count on jurors forgetting the main theme of your case. It is a promise, and trust is lost in those who don’t keep their word.