Voir Dire Notes: The Accused

 Posted on April 03,2009 in Uncategorized

When I sat on a jury panel this week, one thing that jumped to my attention was the behavior of the accused. He, a non-English speaker wearing headphones to listen to the simultaneous translation of the proceedings, had his head down, chin against his chest, for - as far as I could tell - the entirety of the voir dire.

I know that he was probably terrified, but it was, to be frank, a challenge to presume him innocent - he looked either guilty or brain-damaged.

This is a problem that a defense lawyer might have avoided by getting him focused on something other than his hands in his lap. Give your client a task.

If your client is literate, give him a legal pad and a couple of pens and tell him to take notes of everything he hears and sees - not only during jury selection, but throughout the trial. For most people this is an appropriate level of engagement in the proceedings; jurors look over at the accused and see him writing, writing, and occasionally looking up to see who's talking. This also generally serves to keep the accused from reacting histrionically to the things he's going to hear in trial.

(If your client is not literate, tell him to draw pictures of what's going on for the same effect.)

On the same general topic, one of my fellow veniremen noted (on hearing that the charge arose out of a 2006 incident) that in the three intervening years the accused should have learned how to speak English.

Now, I know that there's a difference between functional English and court English - I speak Spanish well, but I would try to avoid going to trial in Monterrey without an English-language interpreter - but this was a reminder of the things that jurors think of without our help that can seriously damage our cases.