At An Associates Mind, Keith Lee discusses a shift in the expectations of those nice people who get to decide whether a criminal defendants goes home or spends his life in prison. No, it’s not about libertarian tendencies, or love of freedom. It’s not about the compulsive need for order and submission to the shield. If only it were that easy.
“If a generation is going to arrive in the jury box that is totally unused to sitting and listening but is using technology to gain the information it needs to form a judgment, that changes the whole orality tradition with which we are familiar.”
November 2008, Lord Chief Justice of Great Britain, Sir Igor Judge.
What do Millennial jurors wants? They want you to put on a show! Not just any show, but one that conforms to their attention span, their love of video; their inability to sit and pay attention, their inability to hear testimony and process it sufficiently to either understand its significant or question its gaping holes. They want to be entertained.
Based on a post at Legal Skills Prof., Keith points out, correctly, that trials are, and always have been, theater. While the meat of the trial is testimony, the garnishes include everything we can muster to enhance the strength of our positions and diminish its weaknesses. He raised the “nerd defense” of putting eyeglasses on street thugs. It runs from dressing the hipster defendants in cardigan sweaters to having an alleged rapist sit next to a woman at counsel table. There is no denying the theatrics.
But then, that’s not the type of show Gen Y wants to see.
Droning on about the facts in front of a jury composed of mostly Millennials isn’t going to cut it. In an ideal world it would. Jurors would still still and be attentive, carefully weighing the arguments and evidence as it is presented. When you find such a place, call and let me know.
In the meantime, Millennials will be sitting in the jury box, twitching, unable to check the smart phones lest the judge catch and reprimand them. They probably resent being there. They’re looking for something to engage them and hold their interest. Something to make them forget where they are and capture their attention.
Despite our best efforts, droning on about the facts in front of the jury is the main event. And don’t think for a second that we can’t see the jurors shifting about in their seats, desperate to get out of the box. If someone accidently made the new twit sound in the courtroom, the box would explode and jurors would start having seizures.
The problem isn’t that we don’t know that the Slackoisie are sitting in those uncomfortable chairs. The problem is what to do about it. And the problem is exacerbated for the criminal defendant, as we don’t control the case in chief, and often have no real idea how the prosecution intends to put its case before the jury until it happens. Civil lawyers are always astounded by the fact that they get discovery that dwarfs by magnitude what is provided the criminal defense. We go in, essentially, blind. It’s hard to prepare a video to counter the mystery of the prosecution’s case.
The easy answer is to smack the Millennials around, tell them this isn’t a television show (or is that already an archaic reference?) and the evidence upon which they will have to reach their verdict will be presented primarily by words. They may not like the idea of sitting around, passively listening, for days on end, but that’s the deal. Suck it up.
But the better solution isn’t to be right, but effective. (h/t Bill Henderson)
The desires of the Slackoisie presents a huge advantage to the prosecution. They choose the case. They present the case in chief, and know how they’ve going to put their evidence in beforehand. They have the wherewithal and opportunity to create a show that appeals to the sensibilities of the Slackoisie, and the favors of the judge to allow them the latitude to do so. As if they needed another advantage at trial.
The defense rarely has much of a case to present. Witnesses? If only. Experts? On the rare occasion the defendant can afford to retain one, it’s even rarer that the case calls for one. We are left to poke holes, to point out inconsistencies, to exploit the mistakes when and where we find them. And until the words leave the prosecution witness’ mouth, we usually have no clue when the opportunity will present itself.
Prepare a video? Of what? Without witnesses, the only opportunity to use it is on cross, and no one ever really knows what will come out on cross beforehand. One errant word by a witness, or worse yet, one truthful word, and our whole preplanned attack collapses. Planning is a wonderful thing, but it’s not as if we have any control over the other side’s witnesses. If there’s anything that defines the criminal defense lawyer, it’s tolerance for ambiguity and the ability to shift gears on the fly.
The host of reasons why this won’t come easily is long, but none of it changes the desire of the jury to feed it information in the small and interesting bites demanded. While it’s sad to say that droning on is what we do best, it’s usually all we’ve got.
As posited by Dr. Mary Noffsinger in her Texas Law Journal article, The Millennial Juror,
Verbally presented messages should be accompanied by demonstrative exhibits (e.g., photos, videos, illustrations), which foster improved attention, reduced boredom, enhanced memory, increased credibility, and entertainment value.
Speaking in “sound bites” and utilizing technology is more important than ever with Gen Y jurors, given their tendency to process information visually and rapidly and the likelihood that elaborate explanations and protracted arguments will make them bored and impatient. Adopting an interactive style helps to empower these digital natives as listeners and learners.
If true, and I believe it is, we’ve got a problem. Frankly, it’s unclear whether the nature of a criminal trial offers the defense any solution.