Traits of an Effective Prosecutor – Reflections on Lessons from the O.J. Simpson Case--The Real Life Rules of Winning a Jury Trial
In 1996, the nation was riveted to the O.J. Simpson jury trial and many were astounded when Simpson was acquitted. Many people felt that the verdict represented a “runaway” jury who just ignored the law and evidence, and acted on their personal biases.
However, seasoned prosecutors and defense lawyers with trial experience observing the case could see that case was going downhill for the prosecution. That is because both prosecutors and defense attorneys that have tired enough cases, understand that there are invisible rules at work in the apparent mysteries of jury verdicts. Experienced trial attorneys have seen situations where they inexplicable win a case they thought they were going to lose, or lose a case they thought was in the bag.
In fact, it often turns out that these unexpected results have nothing to do with chance or juries that take the law into their own hands. Juries in those situations are behaving in a perfectly rational way that could have been predicted. They are just acting in accordance with a set of rules that exist in the real world and reflect the reality of human behavior.
The following “rules” are not found in any law book or rule of evidence. There are no cases or statutes that have promulgated these rules. Instead, these are the “unwritten” rules that reflect the fundamental fairness of citizens called off the street to make difficult decisions.
Of course, the purpose of this article is to not play Monday morning quarterback years later with all of the luxuries of hindsight and pass judgments on what attorneys did during the heat of a trial. Every trial attorney knows that a trial of any type is a high-pressure situation, where a trial attorney is multi-tasking and trying to roll with the punches while having to constantly act and react. When amplified by the immense pressure of conducting the “trial of the century,” it’s even harder for the attorneys to maintain perspective during the trial. The purpose, however, is to note some things that occurred that can be teachable moments for trial attorneys going forward.
1. Go for the Conviction, Not for the Jugular
Prosecutors need to resist the temptation to go overboard and prove in every case that the defendant not only committed the crime, but they are a despicable person as well. In the Simpson case, for example, prosecutors seemed to put Simpson on trial for being a truly evil and despicable person, rather than for what he did to two people at a specific time and date. The problem is that there is no criminal charge based on being despicable. A person can only be convicted if he or she performed acts along with the requisite criminal intent that violated the law. Instead of acknowledging the obvious – that OJ at one time was a very sympathetic and engaging athlete, actor, and personality – the Prosecution decided to take on the burden that he was just an evil person. Of course, if a prosecutor can get a jury to buy their notion of generalized evil, it may seem easier to get a conviction. After all, it is easier to believe that an evil person did an evil thing. But by believing their own propaganda and charging ahead with a theory of overall evil, the prosecution likely bit off more than they needed to.
2. The Side that Does Not Keep their Promises Loses (Forget about the Burden of Proof – If You Don’t Prove What You Promised, You Lose)
The problem with going for the jugular and not the conviction is rule two – A jury will hold you to what you promised. Once the prosecution argued essentially that Simpson was an evil person and therefore more likely to have committed the crime, that essentially became the new charge in the case. The prosecution substantially increased their burden and the jury apparently held them to the higher burden of proving he was an overall evil person, instead of a person who has done well in the past but on that time and date of the crime, did an evil thing.
The Prosecution could have taken the approach that regardless of how you feel about OJ Simpson, or regardless whether you admired him at some point, the facts are the facts and no one is above the law. An effective prosecution could have neutralized the positive image Simpson carried into the courtroom by allowing the jury to first acknowledge those feelings, and then to ask them to set it aside in conformity with the court’s instructions to base the verdict on the facts and law, and leave out any bias or prejudices for or against the defendant.
3. The Side the Lies Loses (But if Both Lie, then the Prosecution Loses Unless the Defense Lie is a Doozy)
A corollary to the above rule is that the side that lies loses. For example, there was an issue in the O.J. Simpson case where the defense accused a law enforcement witness of lying about the use of a racially charged word. If the jury was convinced a critical prosecution witness is lying, it potentially can put the prosecution case and credibility at risk.
Of course, there can be a situation where a jury feels both sides had witnesses who lied. In that case, the rule is more complex. If both sides told lies or presented liars, so that the dishonesty from both sides are seen as more or less equal, then the tie typically goes to the defendant since the Prosecution is held to a higher standard. However, if the defendant or a defense witness tells a big enough lie, such as a false alibi witness whose testimony does not hold up under cross-examination, the jury may turn against the side with the most egregious lies. It is important for trial attorneys to understand how this ping-pong game works to understand the importance of credibility to a jury.
4. If the Jury Perceives You as Fair, They Will Believe You (Concede When Needed to Succeed – i.e. You Don’t Need to Win Every Point and Every Sub-Point)
In point three above, we discussed the example of the police detective who denied using a racially charged word. That is a symptom of a bigger issue – the need by some prosecutors to not only win the case, but the need to win every point and every sub-point. If, in fact, there is a legitimate issue that an officer used a racially charged word, rather than risk credibility by a strong but ultimately doomed denial, the Prosecution could have simply conceded and even neutralize the point. In the real world, it would not hardly come as a surprise to any jury regardless of race, that a veteran police detective with years of experience on the streets of Los Angeles might have used a racially charged word. It was not a battle worth fighting and there is no need to even try to fight the point much less insist upon winning it. The matter could have been effectively neutralized during “voire dire” (a preliminary examination of a witness or a juror by a judge or counsel) by asking questions of potential jurors to elicit their agreement that that all of us at some time have used words we regret but do not define us, and can they keep an open mind.
Or it could have been handled during opening statements, by saying something such as:
“Ladies and gentleman of the jury, you will hear evidence in this case that a detective who was an important witness may have been heard to say, on an occasion or two over a long and distinguished career, an offensive racial term. You will hear that the officer regrets that, but in the reality of life on the streets with all the stress and pressures that brings, these words can come out. It happens to all of us. But the important lesson that you will learn is that this officer has investigated numerous serious crimes involving victims of murder and has a long and distinguished career of going after the truth to bring justice to all victims, regardless of the races, creeds, and colors of either the victims or the perpetrator.”
Such verbiage is a way to acknowledge the issue, put it into prospective and to neutralize it. There is no reason to try to take a hill that gives you zero advantage.
The need for some prosecutors to not just win the case but to win every point can be a critical problem. An experienced criminal defense lawyer knows is that his or her biggest nightmare is to go up against a prosecutor who is fair and impartial. A prosecutor that truly understands their job is to accomplish justice and not to obtain a conviction, ironically has a much greater chance of getting a conviction.
One interesting example in the O.J. Simpson case where a prosecutor may have appeared to be unfair is when the defense objected to the lead prosecutor wearing an Angel pin as a sign of support for the victim. Being on a mission help a victim can inadvertently turn out to be the quickest way to harm the victim’s interest. A prosecutor needs to be on a mission for justice.
Demonstrating fairness is even more critical because, at the end of the day, a trial attorney is trying to put together a narrative or “story” of the case that resonates with the jury. As the old saying goes from the sales world, “facts tell, but stories sell.” An attorney that loses credibility has a much more difficult time putting the case into a human story that the jury clearly can understand, digest and accept.
Conclusion
The consistent theme that ties these rules together is an understanding that the legal system is intentionally designed to let some guilty people go free (at least for the crime at hand) to prevent the criminal justice system from going overboard and sweeping up innocent people as well. If a prosecutor (or law enforcement officer) cannot accept that basic concept, they are going to have a frustrating and oftentimes unsuccessful career.
The fact is that if the legal system was 100% effective in convicting and locking up every accused guilty person, then by definition, it will also have to sweep up a fair amount of innocent people as well. As with all things that rely in whole or in part on human beings, the criminal justice system is just not perfect. A prosecutor understands that putting an innocent person behind bars is worse than a few guilty people getting off. A good prosecutor also knows that even if a guilty person somehow gets away with a particular crime, it will not be for long. In the O.J. Simpson, case, it may have taken some time, but eventually, he was convicted of a crime and spent years behind bars.
A prosecutor that frantically feels compelled to seek justice by going overboard for the conviction may ironically find that their win/loss ratio is lower. In the Simpson case, it was interesting to note that the defense had the resources to hire top lawyers and experts, which is not the norm in most criminal cases. That presented a substantial challenge to a legal system where criminal defendants usually do not have those type of resources. In the Simpson case, it was seen more critical for the prosecutor to take the approach that above all, they were after fairness.
#jurytrials #prosecutors #effectiveprosecutors #howjurieswork #juryselection #trialskills #prosecutortraining #winningjurytrials
(This the first in a series of articles about criminal justice and trial practice. The next article will address why it is so important for criminal defense lawyers to aggressively defend everyone, no matter how guilty they may be.)
? Lester S. Rosen 2017
Attorney Lester Rosen is a former prosecutor and criminal defense attorney and founder and CEO of Employment Screening Resources? (ESR), a global background check firm headquartered in the San Francisco Bay area. He is the author of “The Safe Hiring Manual - The Complete Guide to Employment Screening Background Checks for Employers, Recruiters, and Jobseekers” (Facts On Demand Press/826 pages) and is a frequent speaker on due diligence and background check issues. To learn more about ESR, visit www.esrcheck.com.