Input Needed: Reptile in Criminal Cases

David Ball, co-author of Reptile, is asking criminal lawyers to help him develop a list of “reasons we lose criminal defense cases.” He wants to hear from lawyers in the trenches who deal with these problems all the time.  The list will help him and his team develop the use of Reptilian advocacy for criminal defense, where he believes it will become just as powerful for us as it has proven in civil cases for plaintiffs.  Please take a few minutes to jot down your list; send it to ball@nc.rr.com.  Subject line: CD Reptile.

David also wants to use responding attorneys for a sounding board as he and his team develop Reptilian criminal defense strategies.

12 Comments

  1. I completely agree with Gideon, above. Bad facts.

    Confessions, videotapes of the crime, multiple eyewitnesses, fingerprints, DNA, caught-in-the-act, caught-with-the-goods, prior similars, co-conspirator flips, forensics.

    The innate primal fear in the reptile brain is more likely to be picked up by prosecutors–especially if the technique for criminal cases is explain in writing, accessible to all.

    1. I agree that the reptile brain would seem generally to lean toward conviction rather than acquittal—the interests protected by the reptile brain are lower in Maslow’s hierarchy than the freedom and justice that we are defending. Still, I’m interested in seeing what Ball comes up with.

      I’ve never put much stock in secret techniques. I figure that anything that has to be kept secret to work probably doesn’t work very well.

  2. Uncertainty. Better safe than sorry. As long as jurors feel that they are supposed to be “impartial”, they have no horse in the race. Without personal vesting in the outcome, the path of least resistance is better safe than sorry.

  3. What everyone above said.
    There is no longer a presumption of innocence. The typical juror comes in to court believing that the defendant is guilty and should be punished. The reptile brain tells one that a guilty verdict is the only way to protect society.

  4. Phoning it in.

    Prosecutors phone it in too. Unfortunately, they are far more likely to get away with it.

    To connect with a jury, you have to believe in something. Believe your client didn’t do it. Believe he didn’t do exactly what he’s accused of. Believe the law is unjust. Believe that it’s a good thing to put the government to its proof and rigorously attack every element of that proof.

    But if you get up there and try a case and don’t believe in anything, the jury will see that you don’t give a shit, and they’ll convict your client.

  5. Ditto on the bad facts, with an extra “bad facts make bad law”; meaning we get very bad appellate case law based on the egregious facts of the case: case law, that our judges rely upon to hose our clients. I ask you to consider the case of Shawn Grell in Arizona.

    The guy is retarded. However the facts of the case are so bad Atkins would be overturned if the Supremes had the chance (sarcasm) . He was found guilty of taking his little girl from daycare…and burning her alive…and watching her die screaming. HIs first death was overturned b/c of Atkins; the court dutifully held the hearing and said, “nah, he ain’t retarded” (paraphrasing of course); then came Ring–and jury sentencing (you know how that worked out with those facts), and the next round of appeals begin anew.

    Bad facts. I agree wholeheartedly.

  6. Why do I lose cases? I don’t lose cases. I am always the best lawyer in the room. (ahem) My clients lose because juries/judges believe the cops over defendants. They lose because cops lie about how they “searched and seized” the evidence. They lose because juries believe the intoxilyzer result and not the defendant who swears he only drank 3 beers. They lose because believe it or not they are indeed guilty. They lose because they insist on testifying. I agree with Ken about believing in your client–it shows and the jury will know it–they will especially know it when you don’t believe in anything.

  7. Okay, for the sake of argumment i’ll take an unpopular position and put this out there since no one else has said it: perhaps we lose because our clients who lose were indeed guilty and the state actually proved thier case beyond a reasonalbe doubt with good police work and hard evidence. I’m just saying……

  8. I think Ken’s is the most insightful answer here. We all know that our performance can vary greatly depending on how much we believe in our case (prosecutors too) and that absolutely shines through. It is very hard to connect with a jury ABOUT your client if you never connected with your client in the first place.

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