By Hon. (Ret.) Ken E. Adair
The Word Victim Has No Place in a Criminal Jury Trial
Video Transcribed: The very first criminal jury trial I presided over as a judge, involved a shooting case and the victim had been paralyzed. And I call him a victim now because the defendant was found guilty. And that’s another video for another day. But the word victim has no place in a criminal jury trial.
And you need to motion, eliminate that out because it shifts the burden back on the defendant to prove that the victim’s not a victim. If it’s a self-defense case, there’s no victim. If your defense is that it never happened at all, there’s no victim. There’s only a victim in those cases when the jury finds beyond a reasonable doubt. So back to my point, this guy was shot and paralyzed. And the defendant, in this case, was claiming self-defense. And it was a real tenuous case. But what I noticed about this lawyer, he was new to me.
He was a new lawyer. I’d never met him before, never heard of him. And he was one of the nicest guys. He comes into this courtroom and he starts talking to the jurors and he’s so laid back. He didn’t have the same training I did, but he had the same philosophy about trying a jury trial to represent your client.
He was just as nice as part of the jurors. He was relatively nice to the witnesses. What I noticed about him is that he started sneaking in the word we, with the jurors. It was very subtle, very subtle at first. And at times in his cross-examination of the state’s witnesses, he would sneak in occasionally, just very occasionally, well, but we’d like to know, and he would look at the jury and say, we’d like to know the answer to this question. Or we’d like to know what it is you saw. So can you tell the jury what it is that you saw?
And he started sneaking in the concept of we with this jury, we being him and the jury. That was we to him. But it was very subtle at first. And I noticed a little bit, and it was not offensive. It wasn’t intrusive, it didn’t invade the purview of the jury. It was very subtle and it was so subtle there were never any objections. In his closing argument, he used the word we, and he would move like this to the jury.
We would expect this. And we would expect that. And we shouldn’t believe that this happened and that happened. What we want to see from the state, they prove their case of these things. And so we incorporated we to the jury and the hand gesture of we, and he was nice enough, and he was polite enough, and he was credible enough.
And he was able to lend credibility to his case because he had credibility before he walked into the courtroom. I since got to know him, and he is a very credible lawyer. He had credibility when he was home. He had credibility when he drove to work, he had credibility when he came to the courthouse, he had credibility when he walked through the door, and he had credibility throughout the jury trial. And in the closing arguments, he was able to get by with using the phrase we, and he did it very effectively.
So the first lesson, have credibility. You don’t invent credibility at the courthouse door. A lot of people think I can live a corrupt life and I can cheat on my billing and those sort of things. And then all of a sudden walk into a courtroom and have credibility. Credibility is a full-time job, A. B develops the ability to have or collective attitude with the jurors that you can have that kind of a dialogue with them in closing the argument. And that requires some politeness.
It requires respect of the witnesses you’re cross-examining, respect for the court, respect for the jurors, and respect for the prosecution. When you have that credibility, you can join forces with the jury in closing the argument and ask them to do your client’s bidding in the interest of justice. So I hope this has been a little helpful for you. This has been Oklahoma trial attorney Ken Adair. If you are looking for co-counsel services or an experienced jury consultant, visit trial.win.