Force multipliers: trial presentation tips for prosecutors.

• Author: Patterson, Boyd M., Jr.

TOO OFTEN, PROSECUTORS LOSE CASES because juries fail to resonate with even overwhelming evidence of guilt. Does superior evidence carry the greatest weight in a jury's decision? Thankfully, yes. If jurors pay attention, will they usually see the defendant's guilt? No doubt about it. Does the wrong thing happen in court anyway? Every day. Defense attorneys acclimated to not having helpful facts develop proficiencies with the indirect tactics, jury psychology and presentation techniques that facilitate such results. The good news: you too can apply the same unconventional methods used by defense attorneys to raise even your good cases to the next level.

The British learned in the War of Independence. The U.S. learned in the Vietnam Conflict. The Soviets learned in Afghanistan. The lesson: superior military power cannot guarantee victory. Even with an overwhelming supply of armaments, cutting-edge technology, and highly trained personnel, senselessly plodding forward against one's enemy exposes one to grave risks of defeat. By contrast, asymmetric combat techniques can stave off any juggernaut, whether used by 300 Spartans or by our current terrorist enemies. Accordingly, all modern militaries plan to expect unconventional attacks. In fact, the most powerful nations in the world now employ the same, indirect techniques.

This article contains observations that go beyond "having good evidence." They deal with the psychological dynamics related to your communication skills. They identify some indirect defense tactics and how to neutralize them. They deal with the ethics of and best mindset for high-stakes, intellectual combat. Some of these observations came at a high price. Now they can help you, the beginning prosecutor, to recognize the hidden dangers and intangible factors that have little to do with the actual evidence and everything to do with how juries make decisions.

A DEFENSE ATTORNEY'S PERSONALITY BECOMES A FACET OF YOUR TRIAL.

A defense attorney's personality can be bombastic or soft spoken, confident or frightened, sophisticated or as country as a bowl of grits. The skilled defense attorneys all share one characteristic: the appearance of being too guileless to misrepresent the facts. Wide-eyed. Slower speech pattern than usual. A smooth, lyrical rise-and-fall of voice pitch. Adopting a guise of confusion about a victim's answer in order to "politely" attack the witness. Searching the eyes of the individual jurors during closing argument, as if desperately seeking for someone with the common sense to recognize his client's innocence.

It still astounds me how some defense attorneys can openly celebrate baffling the jurors when the judge happens to be out of the courtroom, then later adopt the "guileless" persona quicker than Meryl Streep can say "I'd like to thank the Academy." However, you can discuss Hollywood in voir dire to call the jurors' attention to defense tactics. Ex: "Mrs. Dupree, name a movie you've seen where an actor gave a great performance." Discuss the movie and actor briefly. "Now, assume you sat on a jury listening to a robbery trial. Five eyewitnesses all separately picked the defendant out of a line-up. The store videotape clearly showed the defendant's face as he aimed his pistol at the clerk. His fingerprints were on the store's marked money recovered from under his bed and the detective played his videotaped confession, in which he discusses in detail how he cased the store for hours before robbing it. Then, in closing argument, his defense attorney stands up, looks you in the eye, does his best (pick a great actor) impression and plaintively sobs, 'Ladies and gentlemen, nay client did not do this.' Mrs. Dupree, will you think 'Wow. That was impressive. Maybe he really didn't do it.'?"

Look to the rest of the potential jurors. "Does everyone see the difference between personality and evidence?" For this example, you could discuss an actor or famous role with characteristics that resemble the defense attorney's style. Additionally, get a transcript of a previous voir dire conducted by opposing counsel. Get educated by your colleagues about his particular tactics. If an exceptional defense attorney comes across as genuinely guileless, mention in closing how defense attorneys have to base their presentation upon whatever version their client tells them. This helps the jurors to see that the defense attorney may be a nice guy who got duped, but the defendant is still guilty.

YOUR AUTHENTIC PERSONALITY, WHATEVER IT IS, WILL WORK,

The trial process will also highlight your own personality. Yet, you hold a position superior to the defense attorney's because you have evidence that the defendant is guilty. Just present that evidence using your particular style of confidence, whatever that style happens to be. The soft-spoken intellectual has a way to communicate his genuine conviction that the defendant is guilty. The grizzled office veteran has a way to communicate his genuine conviction that the defendant is guilty. You have an authentic personality, thus a style, to communicate your genuine, authentic, core-level conviction that the defendant is ,guilty. Again, not annoying self-assuredness. Case-assuredness. You do not need eloquence. You do not need a lot of air time. Just present your authentic self, with absolute confidence in the defendant's guilt. If you value courtesy, demonstrate polite confidence. If you like taking the offensive, charge forward with confidence. If you appreciate humor, talk about the ridiculous aspects of the defense theory, with confidence. Again, whoever you are, just exude your confidence of the defendant's guilt, authentically. A "belief" in the defendant's guilt will not suffice. You have to know it in your bones for the jury to resonate with it. You have been handed the evidence. Preparation produces the story. Confidence is how you deliver it. Preparation and confidence. Preparation and confidence. Preparation and confidence.

CONSIDER YOUR CO-COUNSEL'S PERSONALITY.

I work with a couple of colleagues with completely different perspectives who recognize valuable aspects about our cases that I do not notice. When hitched up with another prosecutor, you should evaluate both personalities on the team. Who would do better presenting the scientific evidence? Who needs to handle the thug witnesses? Who should...