Why aren’t the lawyers objecting more?
That’s a question I have been hearing since the trial of Derek Chauvin began Monday. The former Minneapolis police officer faces three homicide charges arising from the death of George Floyd in May. Other than an occasional objection when a witness interjects an opinion, lawyers have not jumped up to interrupt the testimony. Why not?
The answer is that good lawyers stay out of the way of the evidence.
In the movies and on TV, it is the lawyers who deliver the moments of drama with trick questions, eloquent speeches and, yes, objections. In real life, lawyers’ presentations are usually less animated. That’s because lawyers want the spotlight to be on the witnesses and the evidence. When deliberating, jurors will be tasked with weighing the facts. The judge will even tell them that what the lawyers say is not evidence. That doesn’t mean the lawyer’s role is unimportant. It is just that lawyers do most of their work before the trial begins. Once the trial is underway, they let the evidence speak for itself.
Choreographers, not performers
If you have been watching the televised proceedings, you may not appreciate all of the work the lawyers have done before the opening gavel. The truth about trials is that lawyers serve more as choreographers than performers.
In the Chauvin trial, prosecutors no doubt have spent countless hours identifying all of the potential witnesses, and then interviewing them to whittle down who will actually testify. They will work to determine who makes the best narrators for what happened outside the Cup Foods store. Some of the people they talked to will never take the stand, perhaps because their testimony would merely duplicate that of other witnesses. Or perhaps some witnesses did not see the events as well as others, or remember the facts accurately or explain their recollections effectively. Prosecutors have assessed all of those factors in deciding which witnesses to call.
The prosecutors have also reviewed all of the evidence, including video recordings from body-worn cameras, dashboard cameras and nearby businesses. From those many hours of recordings, the lawyers have identified the segments they will show to the jury to explain what happened while keeping the presentation understandable and succinct. They have marked the recordings, as well as other exhibits, with numbered stickers to keep track of them during the trial and for appeal.
The defense team will also spend a great deal of time preparing for trial. They will review all of the evidence and witness statements to prepare cross-examination questions that may cause jurors to doubt the accuracy of certain testimony. The defense will also conduct their own investigation, trying to identify other witnesses who might be able to testify about Chauvin’s character or offer alternative causes of Floyd’s death.
Both legal teams have no doubt met in advance with all of their witnesses to prepare them for their testimony. When the lawyer and witness are on the same page, the trial testimony can be tightly focused on relevant issues and the jury’s time can be used efficiently.
Strategy is also a large part of the lawyers’ work before trial. Lawyers give a great deal of thought to things like the theory of the case and the order and scope of witness testimony. Lawyers follow the rule of primacy and recency — the first and last things jurors hear are likely to stick with them. In the Chauvin case, the prosecution started the trial with Floyd’s death and did not lead off chronologically with testimony about Floyd’s visit inside the store. That part of the story came later.
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Instead, the prosecutors began with testimonyfrom a police dispatcher who said that for the first time in her career she had “called the police on the police” because what she observed was so disturbing. In fact, she testified, Chauvin’s knee was on Floyd’s neck for so long that she thought the video feed must have been frozen. That kind of powerful testimony makes for a compelling start to the trial. Look for an equally strong witness to be called last.
Prosecutors followed that witness with testimony from bystanders to whom jurors could relate: regular people who were going about their day. These witnesses were particularly effective because they are not aligned with either party. Their emotional testimony, sometimes interrupted by tears, reminded the jurors of the gravity of the loss of life. Only on day three did the prosecution go back and present testimony about Floyd’s earlier transactions inside the store.
No bombast or ah-ha moments
The defense is using strategy in cross-examination, though not always effectively. Rather than objecting repeatedly to the prosecution’s questions, defense attorney Eric Nelson has asked witnesses questions focused on the anger of the crowd. He has also elicited from some witnesses their lack of medical training, likely to support his theory that Chauvin’s conduct was not a substantial cause of Floyd’s death.
The style of the questions is not bombastic, and there have been no “ah-ha” moments. Instead, each side is building a record of facts from which they will make closing arguments in support of their theories.
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I might second-guess a few of the strategic choices. For the prosecution, I would avoid playing videos of the police encounter with Floyd too many times lest they lose some of their impact. And I would reduce the size of the prosecution team — four lawyers in contrast to Chauvin’s one creates an unfavorable David-and-Goliath impression that might turn off the jury. For the defense, I would refrain from asking all of the bystander witnesses questions about how angry they were. It seems less than plausible that a few people shouting warnings about Floyd’s safety would have prevented him from noticing that he was dying. But each side is quietly laying the bricks to build their case.
If you ask prosecutors during a trial how the proceedings are going, they will invariably reply that the evidence is coming in fine. They won’t mention their own glib remarks or powerful speeches. Lawyers know that the stars of the show are the witnesses, not the attorneys. If they can stay in the wings, their facts can shine in the spotlight.
Barbara McQuade, a former U.S. attorney for the Eastern District of Michigan, is a professor at the University of Michigan Law School, an NBC and MSNBC legal analyst, and a member of USA TODAY’s Board of Contributors. Follow her on Twitter: @BarbMcQuade