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<\/p>\nWhy aren\u2019t the lawyers objecting more?<\/p>\n
That\u2019s 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?<\/p>\n
The answer is that good lawyers stay out of the way of the evidence.<\/p>\n
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\u2019 presentations are usually less animated. That\u2019s 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\u2019t mean the lawyer\u2019s 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.<\/p>\n
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.<\/p>\n
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.<\/p>\n
The prosecutors have also reviewed all of the evidence, including video recordings from body-worn cameras, dashboard cameras\u00a0and 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.\u00a0<\/p>\n
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Minneapolis, Minnesota, on March 31, 2021. (Photo: Scott Olson\/Getty Images)<\/span><\/p>\n 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\u2019s character or offer alternative causes of Floyd\u2019s death.<\/p>\n 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\u2019s time can be used efficiently.<\/p>\n Strategy is also a large part of the lawyers\u2019 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 \u2014 the first and last things jurors hear are likely to stick with them. In the Chauvin case, the prosecution started the trial with Floyd\u2019s death and did not lead off chronologically\u00a0with testimony about Floyd\u2019s visit inside the store. That part of the story came later.\u00a0<\/p>\n Magnifying glass: <\/strong>Race is on trial in Chauvin case. And whatever the jury decides won’t be enough.<\/span><\/em><\/p>\n Instead, the prosecutors began with testimonyfrom a police dispatcher who said that for the first time in her career she had \u201ccalled the police on the police\u201d because what she observed was so disturbing. In fact, she testified, Chauvin\u2019s knee was on Floyd\u2019s 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.<\/p>\n Prosecutors followed that witness with testimony from bystanders\u00a0to whom jurors could relate:\u00a0regular people who were going about their day.\u00a0These witnesses were particularly effective because they are not aligned with either party.\u00a0Their emotional testimony, sometimes interrupted by tears, reminded the jurors of the gravity of the loss of life.\u00a0Only on day three\u00a0did the prosecution go back and present testimony about Floyd\u2019s earlier transactions inside the store. \u00a0<\/p>\n The defense is using strategy in cross-examination, though not always effectively. Rather than objecting repeatedly to the prosecution\u2019s questions, defense attorney Eric Nelson\u00a0has 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\u2019s conduct was not a substantial cause of Floyd\u2019s death.<\/p>\n The style of the questions is not bombastic, and there have been no \u201cah-ha\u201d moments. Instead, each side is building a record of facts from which they will make closing arguments in support of their theories.<\/p>\n The struggle to reopen George Floyd Square:\u00a0<\/strong>‘Injustice closed these streets; only justice should open them’<\/span><\/em><\/p>\n 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.\u00a0 And I would reduce the size of the prosecution team \u2014 four lawyers in contrast to Chauvin\u2019s 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\u2019s safety would have prevented him from noticing that he was dying. But each side is quietly laying the bricks to build their case.<\/p>\n 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\u2019t 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.<\/p>\nNo bombast or ah-ha moments\u00a0<\/h2>\n