Editor’s note: Darren Kavinoky is a criminal defense attorney at the Kavinoky Law Firm in California. He is the creator and host of “Deadly Sins” on Investigation Discovery, a TV legal analyst, and keynote speaker. He is on Twitter.
What kinds of strategies might the defense team in the George Zimmerman trial be using to humanize their client? Any lawyer who represents people in jury trials knows there’s a lot to manage: Selecting jurors, crafting opening statements and closing arguments, preparing direct and cross-examination questions, and writing legal briefs to name but a few of the plates a trial attorney has to keep spinning.
But as much as trials are a search for truth and justice, they also involve an element of theater, of persuasive presentation -- especially in a criminal case, where lawyers are sometimes called upon to represent those accused (rightly or wrongly) of heinous, horrible, unspeakable acts, sometimes one of the most important things an advocate can do is to humanize their client.
As a veteran of dozens of criminal jury trials, I’ve gained a tremendous amount of insight not just from the legal training I’ve received over the course of my career, but from talking to the jurors in the hallway outside of court. It is these conversations that have taught me more than anything I learned in law school about persuasion.
Once jurors figure out who the players are in a court case, they are constantly monitoring for verbal and non-verbal cues. They look to the judge, the prosecutor, and the defense team for indicators about how the defendant is perceived.
Sometimes the cues are as subtle as body language, but most of the time defense lawyers will touch their clients to send the message that the defendant is human and is worthy of being touched. This may also be subtle, such as putting their hands on their client’s shoulders while standing behind them, reaching over and grabbing a hand, or putting an arm around them and huddling close to have a private conversation.
Another tactic lawyers may use is making some kind of joke that all -- including the defendant -- can share a laugh about. (This is usually best accomplished by something self-deprecating and not something that is high-risk/low-reward, like a knock-knock joke.)
Other common techniques defense lawyers will use include calling their client by name (and never, ever using the phrase “the defendant”) or eliciting testimony from witnesses that bring out human factors (even if not strictly relevant to the case), especially if it relates to experiences that the jurors and the accused have in common.
And, when the prosecutor announces that they are present “on behalf of the People of the State of X,” it is an effective technique for the defense to counter by pointing out that they, too, represent the People of the State of X, but that they do it one human being at a time, and this time, it is this client.
One of the best opportunities for a criminal defense lawyer to humanize a client is by eliciting favorable material from witnesses on direct examination, but even more importantly, through effective cross-examination. This is a point worth being emphasized, since jurors routinely expect that witnesses called by a particular side will offer testimony favorable to that side; however, material that comes out from the other side’s witnesses through cross-examination is usually considered far more reliable.
Defense lawyers do all of this with the hope that if they humanize their client effectively during a trial, they won’t have to humanize them at sentencing hearing!