2016.033: Trial Theory (Part Two of Several)

In Trial Theory I I concluded:

Most jurors form a belief about the right result in the case by the end of opening statement; this belief will not be changed absent blockbuster evidence that they have not been primed to expect.1

Blockbuster evidence in this context has a technical meaning: it is evidence that is:

Dispositive;

Incontrovertible; and

Unforeseen.

If the you or the State has primed the jury to expect the evidence, it is not unforeseen. If other evidence contradicts the evidence it is not incontrovertible. And if the story of the party who the evidence seems to disfavor still makes sense when the evidence is considered it is not dispositive.

Let’s work our way back through the trial to see how the theory works.

Jury Deliberation

In jury deliberation, the jurors tend to go back and take a first vote. Then they work their way to a verdict. The way the initial split goes (toward guilty or not guilty) is almost always the way the final verdict goes. If you have seven jurors when the jury goes out, your client is probably going to be acquitted, or the jury hung. If the state has seven jurors at the first vote, your client is probably going to be convicted (or the jury hung). What changes minority jurors’ beliefs is not the weight of the evidence, but the weight of the personalities against them.

The evidence and the law are important not because they are going to change jurors’ minds but because they are going to give jurors face-saving reasons to change their minds.

Closing Argument

In closing argument, then, we remind our jurors of the evidence and the law to which they can cling to preserve their own beliefs (preserving a hung jury if our jurors are in the minority) and to which they can point to give the other side’s jurors an excuse to change their beliefs (getting to an acquittal if our jurors are in the majority).

The Jury Charge

The purpose of the jury charge is to set before our jurors the law to rationalize their beliefs and to give their jurors a face-saving reason to change their beliefs.

The Evidence

The presentation of evidence serves two purposes. First, it gives our jurors—those who believe our story—ammunition to use in the jury room to resist the weight of personality arrayed against them, or to give the government’s jurors a face-saving reason to vote for acquittal.

Second, the presentation of evidence makes it possible for us to give the government’s jurors blockbuster evidence that they have not been primed to expect, which might change their minds. At the same time, defensively, we want to keep the government from introducing blockbuster evidence that might actually change our jurors’ beliefs.

How is any of this different than the traditional?

The presentation of evidence, the wrangling over admissibility, and the closing arguments under this model look just like the same procedures under a more traditional model (in which we pretend that jurors don’t actually make up their minds until deliberations).

Opening Statement

What about opening statement? In opening statement, we tell the jury what they should believe. Nobody is going to believe something just because a defense lawyer tells him to. So the jurors’ beliefs, in this model, are formed in jury selection and affirmed in opening statement.

Jury Selection

In this model, jury selection is everything. In jury selection, the jury, given the parameters of the accusation (the elements and, at least in hypothetical terms, any major issues), comes up with the defense (perhaps among other possible defenses), and in opening statement you confirm that that is your defense. Roughly, in voir dire this would happen:

You: How could someone charged with this crime in hypothetical circumstances like this not be guilty?

Jurors: Maybe because X, or Y, or Z.

And in opening statement this would happen:

You: You’re right, jury. Y. And here are the facts that back that up.

If the jury didn’t come up with your defense in jury selection, it was a lousy defense.

Treating jury selection like it’s all that matters doesn’t preclude treating opening statement like it’s all that matters, treating your objections to the government’s evidence like they are all that matter, treating your cross-examination of the government’s witnesses as all that matters, treating your presentation of evidence as all that matters, and treating closing argument as all that matters.

But if you don’t win your case in jury selection, at best you have an uphill battle to win the case in the end.

(That’s why you should come to TCDLA’s voir dire seminar in Dallas next Thursday and Friday.)


  1. This is not entirely correct. There is something else that will change jurors’ formed beliefs. I’ll talk about it in another part of this discussion. 

2 Comments

  1. Nice overview in these posts of how behavioral biases and cognitive distortions play such a dominant role in our thinking and how trial strategy should reflect this. Anchoring and confirmation are two of the strongest factors affecting our judgment.

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