It is arrogant to claim that what happens in the United States is the best – or here, worst – in the world. But the following transcript excerpt displays such a deficient performance that it may be fair to claim the title of “world’s worst,” and certainly lawyers in other countries would be happy to cede this title.
The context is simple. In a criminal trial, the defendant was charged with sexually assaulting someone he was in a relationship with. The scene was a motel room, with some of the pre-event conduct captured on a security camera at the pool area. The prosecution evidence included a taped post-incident phone call. The defense was that the sexual conduct was consensual.
The entirety of the direct [with some names changed solely for anonymity] is as follows:
Q: Please state your name.
A: [defendant’s name]
Q: You had the opportunity to view the video yesterday, correct?
Q: Were you the individual with the [name of University] shirt on?
Q: Are you a graduate of [name of University]?
Q: And what did you study there?
A: Liberal arts degree with a minor in communications and sociology.
Q: The evidence the prosecution presented included a jacket with the name of a second University. Are you affiliated with that University?
Q: And what is your affiliation?
A: I was a crisis response technician in the emergency triage in [name of neighborhood].
Q: You also had the opportunity to hear the recorded conversations?
Q: Was that you on the recorded conversations?
Q: No further questions.
The abandonment of the client here was complete. Primacy and recency were ignored; there was no story to limit or frame the prosecution cross; there was not even a denial of culpability; and there was no attempt to address equivocal behavior and statements made by the accused during the police investigation, conduct and words that could have been contextualized and normalized. Instead, the jury heard the story only through cross-examination, here one that extended for more than forty pages.
To ensure that I was not missing the boat and unable to discern an incredible, sophisticated strategy, I re-read the balance of the trial. There was none. That was confirmed by the opening, where the lawyer promised the jurors that they would hear from the two other individuals who were in the motel room where the sexual contact occurred but then called no witness other than his client; the misstating of the burden of proof in closing argument, when defense counsel told the jury that consent had to be shown beyond a reasonable doubt; and the Judge’s behavior by finally objecting from the bench when counsel sat back in the face of improper prosecution questioning.
So, is this truly the worst there is? That is impossible to determine, although a more deficient performance is hard to imagine. And are there any lessons attainable from reading something so inadequate? The answer is “yes,” because as soon as we see this the reaction is “why didn’t counsel at least do…?” And what are some of those ‘achievables’ in a direct examination?
- Primacy – catching juror interest
- Denial – affirming that this person is proclaiming innocence
- Humanizing the client – a task barely done by the rote listing of schooling and job
- Anticipating cross – addressing vulnerabilities and offering logical or palatable explanations
- Recency – ending on a strong point
There is at least one more, and that is demonstrating that the lawyer is in the client’s corner. Here, the lawyer could not have been more distant, disconnected, and uncaring. That was its own, devastating, message.
Given this performance, the outcome of this trial was a foregone conclusion. Whether a reviewing court will see this as significant enough to warrant relief cannot be predicted; but this direct examination is the template for what not to do, and a lawyer who believes otherwise should not be trying cases where liberty (or even a traffic ticket) is at issue.