Case Oddity

 Posted on October 08,2009 in Uncategorized

Here's a picture from Harris County's 263rd District Court yesterday. The prosecutors trying a murder (?) case had laid down a blue tape outline of the dead person's body, chalk-outline style, early in the trial:

When I saw this, my first reaction was: awesome! (coincidentally, that was my nine-year-old's reaction as well). The prosecutors, Brad Hart and Katie Warren, became my trial advocacy heroes of the day. (Sorry, guys; you can't commit such trial ad awesomeness and expect to remain anonymous.)

My second reaction was to ask myself how the defense could best deal with the potentially incendiary effect of the chalk outline? You've got this thing on the floor in the middle of the jurors' field of view that you have to walk around or over every time you approach a witness. It's like trying a case in a crime scene.

And that's probably not a good thing for the defense. Especially if it was the State's idea to take the jury there.The obvious reaction: whine to the judge and ask him to tell them not to do it. That's probably a good place to start, for the sake of the record at least. But what if the judge allows it to remain?

Insist that it's covered when it's not being used? The prosecutors reportedly did this for much of the trial, till it became too much of a nuisance. I suspect that leaving it uncovered might have been better for the defense-covering and uncovering it would call a lot more attention to it.

What else? The more it seems to the jury that the outline bothers you, the more harm it will do your client. So the first thing, assuming that the judge has rejected your arguments (out of the presence of the jury) for this bit of courtroom theatre to be forbidden, is to act like it doesn't make any difference to your case. It shouldn't change your routine at all. If you treat it like a corpse, stepping carefully around it, the jury will see a corpse. If you walk freely through it and over it as though there is nothing important there (but don't deliberately damage it), there is nothing important there.

It's tempting to say, "Treat it explicitly like great theatre. Point out to the jury that it is great theatre, but that great theatre doesn' make the State's case any stronger." I'm not sure about that response. It is great theatre, but the 12 jurors don't know that. They aren't in the courthouse every day, and they don't know what is usual and what isn't. So the best approach might be to treat this just like another day in the courtroom.

When this happens in a case I'm trying, I'll figure out what works. Until then, I don't claim to have the answers. What do you think?