By Mark McBride
This past Thursday, I obtained a full acquittal for a client in a sexual battery and false imprisonment case. I learned a lot from that trial. Lawyers learn a lot from the trials they win and lose. I have won and lost trials. All good lawyers have. Criminal defense lawyers who say they have never lost a trial are either lying, have never tried a case, plead all their clients guilty, or it’s a combination of all three.
In any event, the main thing I learned in this trial was: “Mark, what is the jury’s takeaway?” Let me explain. When a client comes to Jen and me, we ask ourselves, “How are we going to win this trial? What will it take to win? What do we want to present to the jury in the courtroom? What do we want the jury to know?” As it happens, though, and in this last victory, I learned a bit of a nuance on that self-thinking I just described. What I learned was that it matters not so much what is presented to the jury during the trial, but what they take into deliberations with them, in terms of what you have presented to them. That is: “What is the jury’s takeaway? What do you want them to take with them, in their memory, when they retire to deliberate?”
In the Bellflower case, the defense was consent, and I still won the case without my client even testifying (generally speaking, it’s pretty hard to win a sex case where the defense is consent, and your client doesn’t even testify). I shredded the alleged victim on cross-examination. But that’s not the point; the point is, “How do you win a sex case when the defense was consent when your client doesn’t even testify to say that the alleged victim in fact consented?” I’ll be honest with you. My client has had some blemishes in his past. If he had testified, those facts would have come out to the jury, and I would have then been risking the fact that the jury, when they retired to deliberate, would have focused on him rather than her.
So, as I sat and thought about that case as it played out, I thought, “You know, Mark, I want them to go in there just thinking and focusing on her.”
That was the jury’s takeaway, and they made the right decision, because they didn’t have to process the case mentally, in the jury room, as a he said / she said. They had to answer only one question: “Was she telling the truth or not?”
She was not telling the truth, and the jury made the right decision, because their takeaway — what they took with them into the deliberation room – was that one simple question: was she telling the truth or not? This case very much affected me in terms of how I visaulize winning trials. Yes, presenting a great case to the jury during the trial is extremely important, but, at the end of the day, a criminal defense trial lawyer needs to visualize deeply what he or she wants the jury to take into the jury room. What is the jury’s takeaway?