How you organize your facts can determine whether or not the jurors listen to your witness.
Too often, lawyers think that they can dump a pile of facts on the jurors and expect them to reach the correct verdict. In reality, facts by themselves aren’t enough to win your case. You can’t just dump a pile of random facts on the jurors and hope that return with the right verdict. How you organize your facts will affect the jurors’ views about your case and can even change the outcome of your trial.
One of the easiest ways to shape the jurors’ views about your case is to take advantage of a theory called “primacy.” Psychology professor William D. Crano defined a primacy effect as when “the message presented first exerts a disproportionate impact on an individual’s opinion.”
Basically, what you hear first colors the way you view everything else that follows. Don’t believe me? To experience how big a role primacy can play in the way jurors view your case, take a look at these two different scenarios:
The first scenario involves a 37 year old man. Less than an hour ago, his wife told him that (after several years of unsuccessfully trying to start a family), she is pregnant with their first child — a son! As the man walks past the park on his way to work, he sees a playground filled with young children playing on merry-go-rounds and swinging on the swing sets. He stops for a moment, standing just outside the perimeter of the playground. His eyes are drawn to a young boy who is climbing to the top of the slide. As the boy lands at the bottom of the slide, a large grin man breaks out on the man’s face.
Now compare that to the second scenario:
This scenario also involves a 37 year old man. Six years ago, he was convicted of child molestation. As the man walks past the park on his way to work, he sees a playground filled with young children playing on merry-go-rounds and swinging on the swing sets. He stops for a moment, standing just outside the perimeter of the playground. His eyes are drawn to a young boy who is climbing to the top of the slide. As the boy lands at the bottom of the slide, a large grin man breaks out on the man’s face.
Isn’t it amazing how a single fact at the beginning of the story completely changes the way you view the rest of the facts? In the first scenario, you probably thought to yourself, “What a lucky man! He’s thinking about the future when he’ll be taking his own son to the playground.” In the second scenario, you probably thought, “Somebody call the police before that creep abducts the little boy!”
The facts didn’t change — only your perception of the facts changed. In both scenarios, the men did exactly the same things, but you ascribed completely different intentions to their actions. What you heard first had a disproportionate impact (positive or negative) on everything else that you heard.
It works the same way in the courtroom. The primacy principle affects every aspect of your trial, but its impacts can be most apparent during opening statement and direct examination. Here’s an example of how organizing your presentation of facts can dramatically affect how jurors perceive your direct examination.
Recently, I was critiquing a criminal jury trial where the prosecution was arguing that the defendant acted as an intermediary agent to facilitate a drug deal between an undercover police officer and a drug dealer. The defense’s theory of the case was that the defendant’s innocent actions and comments were misconstrued, and the drug dealer acted independently when he sold the cocaine to the undercover officer.
During their case-in-chief, the defense called the defendant to testify on his own behalf. Obviously, they must have felt that his testimony was critical to their case, and they wanted the jury to believe his version of events. But take a look at the first three questions his lawyer asked him:
Q. Where do you work?
A. I’m disabled — I haven’t worked in more than 10 years.
Q. Have you ever been convicted of a felony?
Q. How many times?
A. Three times.
Take a moment to think about how these facts will affect everything else the jury hears. Now that they know he’s an unemployed, 3x convicted felon, do you think that the jurors will be more likely, or less likely, to believe what he says?
While these facts may have been important for the defense to elicit, by bringing them out at the very beginning of his testimony, the attorney corrupted the jurors’ view of her client and destroyed his credibility. Rather than listening to him from a neutral (or even positive) viewpoint, now they were forced to view all of his testimony through the lens of “The Unemployed, 3x Convicted Felon.”
Rather than hearing, “I was standing on the porch,” the jury will hear, “The Unemployed, 3x Convicted Felon says he was standing on the porch.”
Instead of, “Two people knocked on my door and asked if Archie was home,” they’ll hear, “Two people knocked on The Unemployed, 3x Convicted Felon’s home and asked if Archie was home.”
The jurors won’t hear, “I didn’t do it!” They’ll hear, “The Unemployed, 3x Convicted Felon says he didn’t do it.”
How do you want jurors to view your witness? What lens do you want them to look through when they’re viewing your witness’s testimony? If you want jurors to view your witness’s testimony in a positive light, you need to apply the principle of primacy and avoid developing negative facts at the beginning of the direct examination.
Does that mean you should completely avoid the negative parts of the witness’s testimony? Of course not. If you don’t present the negative facts during your direct examination, your witness will get crucified during cross-examination. But just because you need to bring out bad facts doesn’t mean you need to highlight them. Ask about the negative facts somewhere in the middle of the witness’s testimony, when the jurors are less likely to focus on them.
When you start your direct examination with negative facts, you run the risk of destroying your witness’s credibility. Instead, apply the principle of primacy, and you’ll give jurors the opportunity to view your witness’s testimony in its best possible light.