David Kendall is a partner in the Washington, D.C. firm of Williams & Connolly. He has served as President Clinton's personal counsel in all matters other than the Paul Jones case. His practice includes civil and criminal litigation. A Rhodes Scholar and a graduate of Yale Law School, he clerked for Supreme Court Justice Byron White and served as assistant counsel at the NAACP Legal Defense Fund working primarily on the LDF's anti-capital punishment litigation. He is an adjunct professor at the Georgetown University Law Center. This article is based on his seminar presentation in New York, October 1997.
There is often a chasm between what juries know and what we, as lawyers, think they know. It is not uncommon for jurors to become confused listening to the typical legal presentation of facts. As a result, they intensely seek logic and coherence.
Many lawyers have found this out first hand. In one instance, a young prosecutor prepared meticulously for his first murder trial. He tried the case powerfully, but he made one small omission. He forgot to mention the name of the victim. During closing argument he built to a powerful climax and cried, "There lay Pinky in a pool of blood!" After which a tiny voice piped up from the back of the jury box, "Who's Pinky?" It's hard to know what jurors are thinking, and very often trial lawyers don't know. As a result, it is necessary to put forward a simple, clear, and cogent narrative.
The juror's awareness of trials and criminal law often comes from their media experience. They have been conditioned by the verbal and visual shorthand of television and films. In these media, things happen very quickly; closing arguments may take two to three minutes, at most. Consequently, when jurors are exposed to a real trial for the first time, they want to know what the story is. The jury wants narrative coherence.
As lawyers, our training often makes us skeptics. We are able to hold contradictory versions of events in our mind. We're trained to think of common law pleading in the alternative:
"I didn't take your cup."
"I didn't know that I borrowed your cup."
"Your cup was broken when I took it."
That's useful legal training. And it is certainly useful in the appellate process. However, that kind of argument really has no place in the courtroom, for jurors don't share this legal conception of reality. The main objective in the courtroom setting is to persuade jurors.
The Japanese film Rashomon is a paradigm of the juror's experience. In the film, a samurai is murdered while taking his wife through the forest. Four separate narratives, from four very different perspectives, are presented and never resolved. A bandit, the wife, a woodcutter, and even the dead samurai himself present the conflicting accounts. In the end, the film tells us that there are these four different versions of reality which remain unresolved. It's helpful to look at your trial jurors as seeing this kind of a movie. The prosecution and defense put forth two very different narratives. As opposed to the movies, however, where ambiguity is acceptable and at times even desirable, the jurors will be called upon to make a real life decision, often with grave consequences.
We tend to be unbelievably self-centered and solipsistic as trial lawyers. We think that juries can understand and appreciate evidence that they're hearing for the first time. It's necessary to remember that the evidence is going by them quickly. It takes them a while just to get the names straight. As a result, the trial lawyer must present a coherent, well-articulated narrative.
The late, great criminal defense lawyer Edward Bennett Williams was certainly cognizant of this. One of his means of developing such a narrative was, in essence, to try cases backwards. From the moment the client walked through his office door, Williams would be working on his closing argument. Writing on sheets of yellow paper with a number one lead pencil, he would generate pages upon pages as he learned more about the case. In doing this, Williams was continually generating the story that he was finally going to tell the jury. This was especially important because it formed the basis for his trial organization.
Developing a Narrative in Each Stage
In court, it is necessary to develop the narrative theme at each stage of the process. Be imaginative and don't be intimidated. Remember the words of Aaron Burr: "Law is whatever is forcefully asserted and plausibly maintained."Voir Dire
Elements of the theme can first be introduced on voir dire, through questionnaires and the questions that you submit for the judge to ask. In addition, if you can conduct voir dire yourself, it is possible to present to the jury the skeleton of the narrative which will be fleshed out in later stages of the trial. In simple terms, tell the jury what you think the case is about. Jury selection is obviously a matter of instinct and experience much more than any rules. However, it is possible to use the process not just to exclude jurors, but to tell them something about you and about the case. In this respect, one can condition their expectations.Federal courts have broad discretion as to what voir dire they will allow. They must, however, allow the questions necessary to test for prejudice. Consequently, to advance your theme among members of the jury at this stage of the process, it may be necessary to cast your thematic questions so that they test for bias or prejudice.
Opening Statement
The opening statement is where the theme really starts to develop. It's important to remember that although you may have had some contact in voir dire, the jury most likely remains skeptical. Bearing this doubt in mind, go ahead and tell the jury the story.This should be done clearly and simply. It certainly is not necessary to precede every statement with "The evidence will show that." Similarly, it is essential to keep in mind how well the jury can follow the story. Make clear the central facts, but you needn't delve into all of the minutia. While you cannot argue during opening statement, it is always possible to explain without arguing.
Edward Bennett Williams' opening statement in United States v. Posner,1 is instructive in all of these respects. Williams presented a number of different thematic points that he planned on developing later in the trial. Most important was the central contention, reiterated throughout the trial, that instead of the ten counts charged, there was really only one central question for the jury. Thus, Williams simplified a potentially complex issue. He argued that the only question was whether Posner had a corrupt intent when he gave a gift to a Florida college.
During the Trial -- Cross-Examination and Calling Witnesses
During trial, you must be disciplined about how you develop your themes -- less is usually more. It is important to remember what is the real point of your cross-examination. What do you really need from the witness? What is going to advance the theme? Many witnesses do not require a large amount of cross-examination time. Judge Irving Younger has said that, unless you're Clarence Darrow, you should only try to make a few points, at most, from each witness on cross-examination. Don't shake the Christmas tree and blindly hope for the best.If you decide to put on a defense case, invariably the jury is going to be tired and the judge cranky. The defense does not get the slack that the prosecutor has in the opening part of the case. Remember this as you organize your presentation. It is not necessary to match the prosecution witness for witness. Move as speedily as possible; proceeding quickly will help you spotlight the picture you're trying to paint.
Closing Argument
Closing argument is where the full story gets told. All of the evidence that it takes to tell the story and develop the theme must be in the record. It is in this respect that Edward Bennett Williams' technique is most helpful in looking at a case. Overall, it is virtually impossible to present a specific set of rules and guidelines for an effective closing argument. The only wisdom that can be offered is to be passionate, eloquent, and persuasive.Aside from these vague recommendations, it is very helpful to look at closing arguments that have proven to be effective. That of Edward Bennett Williams in United States v. Antonelli, et al.2 is the most powerful and eloquent argument I have ever witnessed. In hearing or reading the statement, it is not necessary to know anything about the essential facts in the case. They are all masterfully presented in the closing. One could have no knowledge of any of the proceedings of the trial, and yet still understand the basic elements of the case through the closing argument.
Antonelli involved bribery and conspiracy to defraud. The prosecution contended that a second trust mortgage had been put on the deputy mayor of Washington's home in exchange for the lease to the city of the developer's (Antonelli's) building. From the outset, Williams evoked a theme of friendship and mutual support. He wove through it the image of the washed and unwashed windows. The prosecution, Williams contended, was wrongly asking the jury to look at life through dirty windows. If you look at life through clean windows, he argued, you can see what's really dirty and what's really clean. It's a very powerful metaphor. And, of most importance to Mr. Antonelli, the jury returned a verdict of "not guilty."
Defense Instructions
The last stage of the trial at which you can develop your themes is in the theory of the defense instructions. This part of the process is often overlooked. It is a critical tool, but it takes work. In addition, the law within the circuits differs measurably on what kind of evidence is needed to get such an instruction. The Second Circuit says that you are entitled to such an instruction if it accurately states the law, if there's any evidence to support it. Unbelievably, the Tenth Circuit rule states that you are entitled to such an instruction if there is sufficient evidence in a criminal case for the jury to find in the defendant's favor. Regardless of the variations in different circuits, you want to try to have your theory of the case, phrased in the form of a proposition, coming from the judge. Moreover, try to have the judge inform the jury that if they find the defense's theory to be true, a "not guilty" verdict must be rendered. In the Antonelli closing, Williams got the judge to agree to give the instruction that if Antonelli had attempted to hide or shield from the city officials the source of the money for the second trust loan, and been successful, this would negate an essential element of bribery and a defense verdict would be required.
Criminal Defense in a Changing World
Ours is not an easy profession, for a number of reasons. Today, the image of the criminal defense lawyer is more likely to be Richard Gere in Primal Fear than Gregory Peck in To Kill A Mockingbird. Nevertheless, we have a mandate. Old canon seven spoke of it in terms of the lawyer's obligation to provide a zealous defense within the bounds of the law. We must continue to remember that principle. Speaking to juries today, conditioned as they are by radio and TV, it is imperative for the defense attorney to tell a coherent story from the beginning of the case until the very end.
Notes
1. No. 82-352-CR (S.D. Fla.) (January 24, 1986)2. No. 78-175 (D.D.C.) (September 19, 1979).