Voir Dire Notes: The Accused


When I sat on a jury panel this week, one thing that jumped to my attention was the behavior of the accused. He, a non-English speaker wearing headphones to listen to the simultaneous translation of the proceedings, had his head down, chin against his chest, for — as far as I could tell — the entirety of the voir dire.

I know that he was probably terrified, but it was, to be frank, a challenge to presume him innocent — he looked either guilty or brain-damaged.

This is a problem that a defense lawyer might have avoided by getting him focused on something other than his hands in his lap. Give your client a task.

If your client is literate, give him a legal pad and a couple of pens and tell him to take notes of everything he hears and sees — not only during jury selection, but throughout the trial. For most people this is an appropriate level of engagement in the proceedings; jurors look over at the accused and see him writing, writing, and occasionally looking up to see who’s talking. This also generally serves to keep the accused from reacting histrionically to the things he’s going to hear in trial.

(If your client is not literate, tell him to draw pictures of what’s going on for the same effect.)

On the same general topic, one of my fellow veniremen noted (on hearing that the charge arose out of a 2006 incident) that in the three intervening years the accused should have learned how to speak English.

Now, I know that there’s a difference between functional English and court English — I speak Spanish well, but I would try to avoid going to trial in Monterrey without an English-language interpreter — but this was a reminder of the things that jurors think of without our help that can seriously damage our cases.

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0 responses to “Voir Dire Notes: The Accused”

  1. The position you describe is extremely common when listening to something. I am blind and have to use text to speech software in order to use computers at all. I adopt the described position nearly every time I am listening to something longer than a couple paragraphs that I am concentrating intently on.

    A neurologist or other brain specialist could probably tell you more about what different postures of this sort indicate.

  2. Soronel,

    Very Interesting. It occurs to me now that the posture might be a way for a person with sight to minimize distractions. To a defendant like this one listening to the proceedings through headphones, the visual input won’t sync with the words, so watching the jurors (ordinarily a useful part of communication) might just produce noise.

    An explanation to the jury panel up front might eliminate the problem. “Folks, Mr. Zelaya is listening to the proceedings through headphones, as you can see. The translation is always a second or two later than the words being translated. So Mr. Zelaya can’t hear the words when they’re being spoken. It’s kind of like he’s listening to a soundtrack, and watching a different movie, and trying to track both can be distracting. So I’ve asked him to focus on the words he’s hearing.”

    On a not-unrelated topic, do you have any recommendations for improving the listenability of my blog?

  3. Using a different heading size for the articles and introductory stuff would be helpful, as would re-arranging the navigation stuff to come after the articles. Either would make navigating to the actual content easier.

  4. I second-chaired a competency trial a couple of years ago, where the client was (is) deeply schizophrenic. He would come to the table muttering to himself, but after a few minutes he’d settle in: just staring forward, mouth slightly open. If the proceedings went on too long, he might start muttering again, but that was basically it.
    He explained this behavior as his reaction to being overwhelmed with sensory input in the courtroom, so he’d “just use hearing” — that was the only way he could make it through.
    If he ever makes it to a guilt-phase trial, good idea getting the explanation in front of a jury somehow (not sure he’ll be up to testifying on his own behalf).

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