Theater, Going to
I tell clients that a trial is part perception management. We have to convince the jury that you are not guilty and the evidence against you is nonexistent, weak, or unbelievable. In this we each have our roles. We are the military defense counsel (actors), the judge is the director, the members (jury) are the audience, and witnesses all have their bit parts to play. A court-martial is the play. As your military defense counsel we aim to be the leading players in your defense.
William Shakespeare is widely said to commented that All the World's a Stage and We Merely the Players--or something like that.
We like to create a case that tells the favorable story at the opening, we show through the evidence that our interpretation of the facts is the correct one, and then in closing we tell the jury, once again, the opening story supported by the evidence. In doing so we have to develop a theme and a theory of the case. Our theme might be that the main witness against you is lying and theory is that there is a motive for those lies.
We give clients Rules of Engagement for conduct in and out of the courtroom. Military Members (the jury) and the judge are "hard-wired" to look for signs of professionalism in an accused and will sometimes hold it against the accused if they do not see appropriate behavior or demeanor. Just some of our rules include,
- Sit up straight. Show an interest in what is going on.
- Take notes.
- Be polite and professional to everyone.
- Don't stare but give eye contact, especially to the members. If they see you are not looking at them or avoiding looking at them they will interpret this as some sign of guilt.
- Don't react when a witness says something outrageous or untrue. Leave that to us to address in cross-examination or arguments.
- Give the courtesies of the day even to court-martial members you accidentally meet in the hallway or at the Exchange.
- You should always say "Sir" or "Ma'am" or "Your Honor" or "Judge" when talking to the judge. If you are testifying the same rule applies--even to the prosecutor. Members and the judge watch for this and, again, may take that as disrespect or something adverse.
Why actually is it important to consider how you act on the stage.
Consider: Laurie L. Levenson, Courtroom Demeanor: The Theater of the Courtroom. Legal Studies paper No. 2007-30 July 2007, at 27. The article focuses on the impact of a defendant’s appearance and demeanor on jurors, and perhaps also the judge. People believe, rightly or wrongly, that how you act or how you say something indicates truthfulness, lying, or a consciousness of guilt. Professor Levenson's article should put doubt in your mind about the value of demeanor. But that doesn't matter to the members of the court-martial.
- Court-martial members will study the accused's and witnesses. They want to judge the person demeanor and how they talk and act.
- Part of winning your case is how you appear to the members. As civilian military defense counsel, we will help you work on presentation.
- Presentation is particularly important if you should testify. We want the members to listen to you not just watch you and how you are acting.
- I did a court-martial some years ago where the members told us afterwards that they spent a lot of time examining and talking about the prosecutors gig-line not being straight. At the time the prosecutor was doing closing argument to persuade the members the client was guilty. The members were watching him, not listening.
Some other discussions can be found in:
Lawson Hennick, Was it something I said? Non-verbal cues in court. Ontario Trial Lawyers Assoc., 2 March 2017.
J. L. Hoffman and A. Weiner, The Juror as Audience: The Impact of Non-Verbal Communication at Trial. 32(3) OREGON ST. BAR 1 (2013).
This paper can be downloaded without charge from the Social Science Research Network (SSRN) electronic library at: http://ssrn.com/abstract=999471.
There is a lot of bad information floating around on how you can tell someone is lying by their body language, word choice, and such. even though much of the information is faulty or not objectively supported, the uninformed still believe it. So we as your military defense counsel will help you play your part.
We have done this in all parts of the world where there is a military base such Fort Lee, VA (close to home), or Naples, Italy, or Kuwait, or Misawa AB, Japan, or Okinawa, or Camp Casey in Korea. We have even been to Guam.