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<\/p>\nMuch is lost by the audience when lawyers speak to [or \u201cat,\u201d which is even worse] jurors.\u00a0 As one article concluded, \u201cthe 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.\u201d\u00a0 Levinson, FORGOTTEN RACIAL EQUALITY: IMPLICIT BIAS, DECISIONMAKING, AND MISREMEMBERING, 57 Duke L.J. 345, 373 (November, 2007).<\/p>\n
But jurors will remember some things.\u00a0 And a lawyer\u2019s inconsistencies regarding a client\u2019s innocence are ones that may come back to haunt the accused.<\/p>\n
<\/p>\n
Consider this opening statement from a recent homicide trial in Pennsylvania.\u00a0 The defense lawyer staked his claim on the jury concluding that the prosecution witness was the real killer:<\/p>\n
OPENING STATEMENT (EXCERPT):<\/strong><\/p>\n You come into a homicide case and it\u2019s debatable\u2026whether you\u2019re ever going to see a killer or not\u2026because the defendant may be not guilty. He may not be the person\u2026But I can tell you that you are going to see a killer in this case, and you\u2019re going to see a guy who shot and killed this poor young kid that this family here is grieving over\u2026He\u2019s going to sit right in this [witness] chair\u2026and he\u2019s going to be called in front of you by the [prosecution].\u00a0 [Name of witness] shot and killed that young boy.<\/strong>\u00a0<\/strong><\/p>\n One might have expected consistency through to the closing,\u00a0 but at trial\u2019s end counsel\u2019s argument was quite different \u2013 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.<\/p>\n CLOSING ARGUMENT (EXCERPT):<\/strong>\u00a0<\/strong><\/p>\n Now, in a criminal case, the prosecution has to prove their case beyond a reasonable doubt\u2026There is no verdict in the United States of innocent\u2026You\u2019re not here to determine is he innocent or not innocent.\u00a0 You\u2019re 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\u2026We 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.<\/strong><\/p>\n 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\u2026But is there not a reasonable theory, meaning use your head and a reasonable theory, that suggests that [my client] is not the killer?\u00a0 Yes, there is a reasonable theory of innocence.\u00a0 The reasonable theory is that [prosecution witness] did the shooting.<\/strong><\/p>\n A juror who heard and remembered both the opening and the closing might be thinking \u201chas something changed\u201d or \u201cis this a sleight of hand\u201d lawyer\u2019s move?\u00a0 Is this a real risk?<\/p>\n Juror memory is unquestionably imperfect. \u201cBecause 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.\u201d\u00a0 Browne et <\/em>al, THE SHARED ASSUMPTIONS OF THE JURY SYSTEM AND THE MARKET SYSTEM, 50 St. Louis L.J. 425, 459 (Winter, 2006).\u00a0 But the opening statement is meant to \u2018prime the pump,\u2019 to set a framework for viewing the entire trial.\u00a0 If that works, then juror memory failure won\u2019t prevent some in the jury from asking \u201cdid the defense just change course?\u201d<\/p>\n There are at least three lessons here.\u00a0 The first is that the dramatic \u2018the real killer will be unveiled to you\u2026\u2019 opening statement makes sense only if there is a strong case for it.\u00a0 Second, a defense of \u2018there are too many plausible stories\u2019 may work, but only if it is tested first during jury selection and is emphasized by the jury instructions.\u00a0 Finally, don\u2019t count on jurors forgetting the main theme of your case.\u00a0 It is a promise, and trust is lost in those who don\u2019t keep their word.<\/p>\n <\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" Much is lost by the audience when lawyers speak to [or \u201cat,\u201d which is even worse] jurors.\u00a0 As one article concluded, \u201cthe 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.\u201d\u00a0<\/p>\n","protected":false},"author":31,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"generate_page_header":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[2,3,6,11],"tags":[],"coauthors":[238],"class_list":["post-2025","post","type-post","status-publish","format-standard","hentry","category-advocacy","category-advocacy-and-evidence-blog","category-criminal-law","category-trial-advocacy"],"yoast_head":"\n