Here are a few ideas I’ve had for subjects that our criminal-defense skunkworks could inquire into:
- Facial emotion recognition as a tool in trial (see Unmasking the Face: A Guide to Recognizing Emotions From Facial Expressions);
- Turning the tables: criminal-interrogation techniques in cross examination (see Criminal Interrogation And Confessions);
- Applying the lessons of aikido to trial (see Aikido and the Dynamic Sphere: An Illustrated Introduction);
- Mitigation experts in non-capital cases.
These are subjects that I’ve given a little thought to, but that I think could use some in-depth research and experimentation. There’s a whole universe of other things that we’ve been widely ignoring that might make us better advocates for our clients.
Even if you’re not interested in joining the skunkworks yourself, please drop me a comment and tell me what subjects you think might be productively studied.
My vision for our criminal-defense skunkworks is that each of us will choose a discipline that interests him or her, review the literature, attend classes or seminars, and try applying it in trial, all the while collaborating with the rest of us (who will have chosen different disciplines to investigate).
You know about the Trial Lawyers College, where Gerry Spence teaches psychodrama to lawyers. That’s a great example of a helpful discipline being applied to the trial of cases (there, both plaintiffs’ cases and criminal-defense cases). But it’s not the be-all and end-all. There are lots of other fields of study that could make use better lawyers, or help us communicate better with jurors, or help us tell stories better, or help us cross-examine witnesses better.
A few examples, some of which I’ve investigated a bit:
- Improvisational theatre;
- Martial arts of one sort or another (the philosophy of Aikido, for example);
- Sociological research into authoritarianism.
“Aikido”? You ask. Yes, the less obvious the connection to defending the accused, the better.
The PI lawyers have put a lot more energy into investigating this sort of thing than we have, I think because of the additional financial motivation there. I’m sure we could find a half-dozen things to investigate just by seeing what the injury lawyers are trying.
I’m looking for a few good criminal-defense lawyers to advance the state of the art in criminal-defense trial lawyering. Together we will seek disciplines that have not hitherto been widely applied to the trial of criminal cases for the defense; investigate and experiment with these disciplines; share among ourselves when and how they are useful and not useful; and document our studies for posterity.
This gig is not for everyone. It will require:
- Unpaid and publicly unlauded work: participants will be expected to research, experiment with, and document potentially helpful disciplines on their own time; if we get something that works out of the project, we may publish, but otherwise we’ll be doing it for love of the game.
- Patience and lethal generosity: this is a longterm project; you will get more out of the project than you put in, but it will take time.
- Broad general competence: you have to be good at more than trying cases the way you’ve always tried cases; you also must be able to understand and assimilate knowledge from broadly diverse fields of study.
- Trial experience: if you haven’t first-chaired at least a handful of criminal-defense cases, you probably don’t have a proper foundation on which to build; if you don’t regularly try cases it’s going to be difficult for you to experiment.
- A childlike fascination with the way things work: obviously.
Email me at firstname.lastname@example.org if you are interested.