By Hon. (Ret.) Ken E. Adair 
Let the Jury Know What to Expect
Video Transcribed: One thing you don’t want to happen in a criminal jury trial is for the jury to see you in a very serious felony jury trial, standing with your client and maybe your co-counsel and y’all are chuckling, yucking it up over there at counsel table in front of the jury.
And yet what I find is in almost every felony case I’ve ever tried, at one point or another in that trial, I’m over there chuckling and yucking it up with my client and or my co-counsel. And many years ago, I was second chairing a death penalty case. My client’s life was on the line and we were trying to save my client’s life.
And there was a time or two or three when I caught us chuckling and laughing about something over at counsel table in the presence of the jury as they were filing in. And it kind of upset me. And he got me to thinking about what’s going on here. It’s called nervous laughter.
And we all know what nervous laughter is, we’ve experienced it, we’ve seen it. If we haven’t done it, we’ve witnessed it. There’s nothing funny about a death penalty case. There’s nothing funny about standing next to a person who’s facing being executed, being killed by the government to prove that killing’s wrong.
And it’s not a simple thing to do. It’s hard to do. And when a moment of levity, a sliver of levity works its way in. You’re going to pounce on it like a porch full of Junebug’s and it’s natural and it’s normal and it’s going to happen. So what do you do? You talk to the jurors about it in voir dire and you let them know. It’s like, “Hey, this is serious. My client’s facing prison time. My client is facing being executed, being killed. And it’s scary, it’s terrifying.
You can’t imagine how terrifying it is, but there’s going to be moments where my client and I are going to be talking about something and something funny is going to happen off in a corner somewhere. Somebody’s going to say something in the wrong way or misstate something, and it’s going to be funny and we’re going to laugh. And that sometimes the moments of levity creep into these very serious trials.
Talk about it with the jury, because nervous laughter is real and you don’t want the jury to think that you’re being disrespectful toward them or the process. What you’re being respectful of is human nature.
And that is that in the scariest of circumstances and the direst circumstances in the midst of tragedy, when levity can creep in, it is going to creep in and you’re going to respond to it because it’s kind of healthy and it’s necessary.
But let the jury know upfront that there’s going to be some nervous laughter. And if there is, that’s it’s no disrespect intended. It’s just people being people and humans being humans. I hope this has been helpful to some of you. I appreciate you watching this. I look forward to seeing you again and thank you very much.
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