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Boring the Jury

by | Apr 24, 2021 | Firm News |

I watched a good deal of the Derek Chauvin jury trial that wrapped up last week. Based upon the evidence presented, I was not surprised by the verdict. Perhaps if Chauvin had testified that he was ignorant, scared and poorly trained, he may have been able to avoid the most serious murder charge, but perhaps not. THE ENTIRE INCIDENT WAS CAPTURED ON VIDEO!

So why so many witnesses? Were they trying to bore the jury? It seemed that way to me. Why would you call multiple witnesses to testify to what they observed during an incident that was actually captured on video — and even included video of the witnesses observing the incident? How many times did the prosecutor ask a witness, “how were you feeling when you observed this?” Wasn’t it obvious how they were feeling — they were yelling at the police officer to stop?!? If your jury cannot comprehend what was captured on the video and feel compassion for George Floyd, then you lost the case during jury selection.

In my opinion, the prosecutors showed a lack of faith in their case and a lack of faith in the jury by “gilding the lily” like this. Clearly, their strategy was to show the video as many times as possible, and calling numerous eye witnesses enabled them to do this. In his closing, the prosecutor famously told the jury to “trust their eyes.” Agreed. And he should have trusted them to do so from the beginning, instead of calling multiple witnesses to describe a video that the jurors could see with their own eyes.

What’s the downside to calling multiple witnesses? There are several. First, it exposes your case to the possibility of inconsistent testimony. Second, it enables your adversary to develop issues for the purpose of distraction. We call these “red herrings.” Third, it’s boring as all hell to watch cumulative testimony. The defense attempted, unsuccessfully, to capitalize on this during its closing. You may remember that the closing consisted almost exclusively of raising alternate theories based upon perceived inconsistencies between witnesses’ testimony. Many commentators found this repugnant, but the defense was just doing its job and attempting to capitalize upon the prosecution’s choice to complicate the presentation of what was really a very straightforward matter.

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