In working through a backlog of old issues of The Champion, I came across a provocative article by Ann Roan, “Building the Persuasive Case for Innocence” (March 2011 issue, p. 18). She argues against the tendency for defense lawyers to rest on “negative case analysis” (that is, focusing on what the prosecution cannot prove). She writes:
The negative case analysis leads to weak and abstract language instead of urgent, immediate and authentic ways of describing people and events. Most alarming, however, is the fact that juries (rightly) perceive the negative case analysis as nothing but a bunch of lawyer tricks and technicalities.
When a defense lawyer says, “The state cannot prove each and every element beyond a reasonable doubt,” juries hear, “Ladies and gentlemen, my client is guilty. Guilty, guilty, guilty. But you’re going to let him go anyway. Why? Because of technical legal mumbo-jumbo. That’s why.” No wonder lawyers lose cases when they prepare them using a negative case analysis. (19)
This passage resonates with my own sensibilities (and my own experience a few years back as a juror). Jurors are not likely to engage in a rigorous, element-by-element analysis of the law and evidence, especially if they have a strong, negative emotional response to what the defendant is alleged to have done. For this reason, I’ve often wondered if the defendant’s right not to testify isn’t really a trap — a too-convenient excuse for falling back on the negative case strategy, rather than building a case for innocence.
But what if the defendant really isn’t innocent?
Roan’s response is a little glib, but I think there is something to what she says:
Here is the good news: all clients are innocent. Every last one of them. It’s just that there are six different kinds of innocence. They are:
1. It never happened (full denial).
2. It happened, but I didn’t do it (e.g., mistaken identification).
3. It happened, I did it, but it was not a crime (e.g., self-defense).
4. It happened, I did it, it was a crime, but it was not this crime (lesser offense).
5. It happened, I did it, it was this crime, but I’m not responsible (e.g., entrapment; duress; choice of evils; insanity).
6. It happened, I did it, it was this crime, and I’m responsible — so what? (19)
It’s surely a little too simplistic to assert that every defendant is innocent in some legally or morally meaningful way, but I think Roan is right to suggest that “innocence” is an elastic concept, that there are often morally relevant nuances to a defendant’s conduct or mental state that are not evident in the police report, and that jurors may be responsive to these nuances if they are presented effectively by defense counsel.
Roan may be also be correct that the key to opening jurors’ minds to an innocence theory is to normalize the defendant’s behavior:
[J]urors will acquit if they believe that, in the defendant’s situation, they would have behaved the same way. The secret to winning cases is to figure out ways to normalize the defendant’s behavior for the jury.
. . .
It is important to remember that the particulars of a client’s behavior in a case may well be beyond the experiential universe of the average juror. However, all people are motivated by roughly the same set of values, emotions, and instincts. Loyalty to family, jealousy, love, fear, self-preservation, and the protection of children are all things that can create a link between an innocent client’s actions and unwillingness of jury members to criminalize that action because of its resonance with their own lives. (19)
Roan’s article calls to mind the dual process theory of moral judgment, which I discussed in this post. Intuitive moral judgments tend to be harshly punitive. When the state presents its evidence at trial, the story of the alleged crime is likely to trigger these punitive responses. The defendant is lost if he cannot move jurors away from their punitive emotions and into the second, deliberative mode of moral judgment, in which jurors will be more open to appreciating the nuances and ambiguities that often surround criminal conduct. While the negative case approach is unlikely to promote deliberative moral judgment, normalizing defendant behavior and pushing a clear, strong theory of innocence may help to overcome punitive intuitions.