Judging the Attorneys: The Art of Storytelling

This is the 3rd blog in a series on my experience as a juror in a criminal case.  The 1st blog is Judging the Jury, with the 2nd being,   Judging the Judge: The Black Robed Attorney.

“He who states his case first seems right, until the other comes and examines him” (Proverbs 18:17).

The jurors are being asked to make one or more judgments about the case put before them.  Part of the game, however, is that all that can be put before the jurors is what one might call a “snapshot” (or perhaps a very short home video) of an event that happened.  The opposing attorneys  try to get the jurors to see the event from two diametrically opposed points of view.  The “trick” however is the event must, according to the jurisprudence, be completely decontextualized.   The judge with the promptings of the attorneys works to make sure you know nothing more about the case than the exact details as presented through the attorney’s efforts.  (The attorneys even get to decide what evidence they will allow you to see in the deliberation room).   Whatever else may have happened in the defendant’s or victims’ lives is deemed irrelevant for deciding this one case.  Decontextualizing also is very disorienting because you have little sense of who the people are and why they might have done the things they did or what their intentions or motivations were.  Generally, “intent” and “motivation”, things which help us evaluate events in daily life, are disregarded in the trial as intangible things which you can never really know.  

In current biblical exegesis it is said there is the text to be interpreted and then there is the “context” in which the text occurs or is found.  The accusation against some biblical interpretation is that it totally removes the text under consideration from its context which then allows the text to be used to mean whatever the interpreter says it means.   Basically the court in order to get jurors to consider only the charges before them, decontextualizes the charges: what the defendant may have done in the past is not used to determine his/her guilt in the case before the court.   The attorneys endeavor to recontextualize evidence and witnesses in order to put them into the picture they are creating:  they are contextualizing the evidence and testimony into a pattern they want you to recognize.  Each of the two opposing teams of lawyers  has one clear way they want you to interpret the ‘text’ (whether evidence, testimony or the events), and they take the “text” (“the event/alleged crime”) out of the life context in which it occurred (as ordered by the court) and then try to convince the jurors of their reading of the events.   They do recontextualize the events (testimony, evidence) into the story (interpretation) which they are telling.

The attorneys are like biblical expositors in another way – they take the time to interpret or offer an exegesis of what happened.  The “text” upon which they comment is the one event in life which is the case before the judge and jury.    Whatever “really happened” is not the focus of the attorneys, for they are not so interested in exactly what happened as they are in getting the jury to see and interpret the event in question in the way that they see the event.   They often are preaching to the jury, saying this is what the events show, this is how the case reads, don’t worry about what you think, we will tell you how to think about the case.  There may be many more obvious and straightforward ways to see the event, but the attorney’s job is to get you to recontextualize and pay attention to only the specific details that tell the story as they are reading it.    If ever there was proof that anything can be made to say anything and that there is nothing like the truth, it is a defense and prosecuting attorney explaining the same thing. 

Imagine if you can that there is a planter with beautiful summer flowers blossoming in it, and one person is positioned directly above the planter and all they can see is the flowers, while one is directly beneath the planter and the only thing they can see is the dirty bottom of the planter.   The two could give perfect descriptions of what they see, looking at the same thing, and their descriptions would not match on any point.   This would give you an idea of what two different perspectives is like.    But if the two people looking at the planter from such different perspectives are a defense and prosecuting attorney, one will tell you that what he sees is dangerous broken glass, and the other will say she sees your dear grandmother.

Perhaps another way to look at what the attorneys do is to listen to NPR’s news quiz show, WAIT, WAIT …DON’T TELL ME!, when they do the segment in which the 3 panelists each read a different story all of which either sound completely and equally implausible or all sound bizarre but possibly true.  The point of the game is to figure out which of the 3 stories actually is true, and one of them, whether bizarre and implausible is factual.   Juries are doing something similar: trying to decide between the two versions of the story they were told (by the prosecutors and by the defense) which one seems more plausible. 

The trial opens and closes with the two opposing attorneys “making their case” before the jury.  This is truly the lawyer’s pulpit, and in fact they have a pulpit which they speak from.  Now they shine as story tellers, replete with emotional heart-string pulling appeals – they don’t want you just to interpret the facts but to feel what they are saying.  The attorneys do appeal to your emotions, common sense, what is obvious – but they only want you to think, see and feel from their unique point of view and they want you to disregard any other thoughts or feelings you may have.

None of this is to imply that the lawyers lie to the jurors.  The attorneys’ goal is purely to interpret events in a plausible way.  They demonstrate that there is a difference between fact and truth, and between true and credible.  Facts like statistics need interpretation.  The truth of any matter is determined not only by facts but also by the credibility of the witnesses to the facts.  A person who has the facts correct but is not a credible witness only serves to obscure the truth.  The facts in a case may be indisputable, but the credibility of the witnesses is something much more harder to establish.

As the trial ends,  the judge reads the charges and the explanations of the terminology – in our case there were four charges, and it was a real test to keep focused on the lengthy explanations which attempt to put legalese into English.

The jury is then told that the case is in their hands and they are marched off to a room where they are told to resolve the case.  The bailiff locks the door and the jurors like some psychological experiment in small group dynamics  are left to fend for themselves, except that the judge has given the specific charges and laws which the jurors must consider.    The judge and the attorneys are now off of the playing field, and the jury is swept from spectator to participant to finish what was started in the court room.

Next: The Jury:  Where Wisdom and  Truth Meet