Humanizing the Defendant: Considerations for Trial Preparation

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Frequently a built-in advantage in the defense of a professional or a business person is the defendant. In preparing a defense, you must seek ways in which to inform the jury about your client’s accomplishments, family, religious affiliations, civic activities, and the like. Paint the picture of a self-made man or woman who has not lost touch with the average working person.

One means by which to accomplish this is to call character witnesses. If you choose to call them, it is best to call some high-profile witnesses, such as fellow professionals or public figures who may impress the jury, as well as some ordinary people so that you do not create the impression that your client is a snob. Generally, the good character of a defendant cannot be proven by specific good acts according to Federal Rules of Evidence 405. However, section (b) provides that in cases in which character or a character trait of a person is an essential element of a charge, claim, or defense, proof also may be made of specific instances of the defendant's conduct.

Defense witnesses are subject to cross-examination into relevant specific instances of conduct. You can certainly prepare the witnesses to exercise their rights to explain their answers in response to the prosecution’s cross-examination. The witnesses then may be able to testify on cross-examination as to specific acts that are relevant to the good character of the defendant.

The defendant’s family should attend the trial. Both defendant and family members should dress conservatively, should avoid furs, jewelry, and extreme makeup, but should not dress out of character. Their appearance should not invoke the jealousy or criticism of the jury.

You should consider moving to have the client appointed co-counsel and allow him or her to participate to a limited extent in voir dire: "My name is Dr. Jones. My lawyer, Mr. Davis, who is experienced in these matters, will ask you some questions so that we can pick the most intelligent and fair jury possible. I ask you to bear with us." This will further serve to humanize the client.

Be sure to advise your client on certain matters. Remind your client to say "Yes, Sir" and "No, Sir" and to show respect to the judge, prosecutor, and all courtroom personnel. Make sure that the defendant never loses his or her temper in court or appears arrogant or condescending. At all times your client should be cordial and use “open" body language. He or she should exude sincerity and concentrate on communicating with the jury, not on matching wits with the prosecutor. The defendant should speak to the jurors and should make eye contact, without staring at them.

By your actions, you should impress upon the jury that you like your client. Put your arm around your client; touch your client in the closing argument; walk the defendant in front of the jury box during part of your closing argument; sit close to each other at counsel table.

This type of client often is well suited to testify. This decision must always be considered and carefully made. Every person accused of a crime is under some pressure to testify, for the jury may draw an un-favorable inference from silence. However, this disadvantage may be slight compared to the problems that may arise on cross-examination. On the other hand, a successful performance on the part of a defendant may be the difference between an acquittal or a conviction.

Publicity

Because of social prominence, the professional defendant is more likely to attract media attention than almost any other class of defendant. This has a strong negative effect on the possibility of a fair trial. It seems incongruous that, in light of the stringent proscriptions of the Code of Professional Responsibility and Canons of Judicial Ethics of the American Bar Association, so many cases are conducted in a circus-like atmosphere. Prosecutors sometimes stage media events. The media may be invited to attend arrests or stages of the proceedings or may be tipped off on sensitive aspects of the case so as to prejudice the defendant. These actions are harmful and must be controlled.

There are several approaches that may be followed. Many courts have local rules limiting or prohibiting participation in publicity-generating activities. Defense lawyers should invoke these local rules quickly to protect their clients.

If the Code or the Canons are ignored by the prosecutor, you should warn the prosecutor in a certified letter with a copy to the trial judge that the defense will seek sanctions with the state bar; then do so if the prosecutor does not cease the misconduct.

You might also consider bringing suit for common law tortious interference with a business relationship, at the same time seeking an injunction naming the prosecutor individually as a defendant. If you cannot stop the misconduct and the harmful publicity, call a news conference and manipulate the media to your advantage. Be certain that you have studied and understand the Canons and Code so that you do not step outside the bounds of ethical conduct. If your client is newsworthy, you will have ready access to the news media.

Conclusion

Representation of the "professional person" defendant presents the defense lawyer with an opportunity to participate in a truly rewarding advocacy experience, but it should only be undertaken with full awareness of the responsibilities such representation entails.