Psychology of Persuasion for Trial Lawyers a look at the Lecture of Dyke Huish given at NACDL

The Psychology of Persuasion Lecture by Dyke Huish was one of the best lectures I have heard for criminal defense lawyers wanting to improve their trial skills.  Having extra office time, I have made it a goal to listen to all the recording of seminars that I have purchased over the years.  This lecture was terrific and I wanted to share what I learned from the CD.

In this Blog, I will discuss the lecture of Dyke Huish, a criminal defense lawyer from California.  He gave this speech at the National Criminal Defense Lawyers Association Meeting in Philadelphia.

He made many excellent points that are worth remembering for lawyers. I will recount them here and give my takeaways as to how I will use these ideas in my upcoming trials.

Illusion of Superiority Principal

Attorney Huish discussed what he called the Illusion of Superiority where most people feel they are above average and experts.  Our jurors think they have everything all figured out.  To get the jury away from this concept, he suggests using the Socratic method, speak about the trial as a mystery, that the jury will help you discover things.

Rather than having the jury think of the trial as the jury knows the person is guilty and it is an inevitable march to a conviction, speak of the trial as a problem and a mystery to be solved, we need to uncover why.  He suggested using words like journey, discover and other words to open the curiosity of the juror about what else is part of this story.

In a sex case for example, you can state in your opening we are here to discover why the victim would lie to implicate an innocent person.  Through my cross examination, you will learn and uncover why this happened.  You will begin to see how we got to this point. He also suggested using urgency in speaking to the jury.  For example, Attorney Huish stated that the jury should be told we are here because this is the only way to solve this problem of an innocent man being charged with a horrible crime.

At the start of a criminal trial, in particular, a sex or serious case, we have the psychological problem that the jury is repulsed by the allegations.  Attorney Huish and others that I have listened to urge that we address this issue by pointing out what is equal to the horror of the allegations is to have an innocent man charged with these crimes.

I have heard another lawyer Tyrone Moncriffe give an example of this in his opening statements.  Tyrone gave an example of this when I heard him speak in Houston and when he came to Boston to lead a small group seminar that we hold yearly for lawyers at DelSignore Law.

Tyrone confronts this issue with a story; he says that he went to pick up his child and that normally his wife picks up the child.  When he arrived at the daycare, they wanted to see his information; they wanted identification; he did not have any on him, but he was not mad at the daycare, because he understood, we are a society that protects our children.  And when you heard the charge, you were repulsed by the charge as I was, because you want to protect children to.  I do not hold that against you; I understand.  But what is just as bad as these allegations you heard, being an innocent man and having these allegations brought against you.

Huish also adds that we can add this to our opening statements; all of us can say we will never commit the acts you just heard, we will never have sex with a nine year old, but we cannot say we will never be falsely accused of these crimes.

 

DEFINE WHAT THE TRIAL IS ABOUT

Huish also spoke about reframing what the trial is about, not in terms of the charge but on our terms as defense lawyers.  The way I think this can be used in a DUI case; you do not want to speak about the trial as someone charged with DUI in your opening statement, but this is about someone that went out to dinner with their wife, was coming home from work after a long day. This is not a case about drunk driving but someone that was going about their day normally like any of the jurors and came upon a police officer who quickly made a rushed and mistaken decision to arrest our client.

Huish advice on word choice applies well in the DUI context. Facts versus interpretations.  When we can get the jury to think that everything is an interpretation, it is more in line with reasonable doubt.  Much of what we confront in OUI cases is essentially an interpretation.  This case is about someone that did not have good balance and the officer interpreted that as a sign they drank too much, not that they were scared, nervous, or just physically unable to perform balancing exercises.

The officer describes the person fumbling for their license and registration.  This is a common description in police reports.  I like to translate that for the jury when the officer said fumbles, he really meant it was stuck in the plastic holder, that it is meant to be difficult to get out.  Another word choice you see in DUI cases is with the officer saying that the individual fell off of the line.  Falls off implies something dramatic; but when the officer is on the stand, in many cases the officer will admit that the person foot just went slightly to the side.  That sounds minor.  I tell the jury in closing that the officer’s account is overstated.  There was no fall from my client; instead her feet went slightly to the right on a road that is not perfectly even when it was not clear that the person literally had to stay on the line rather than their feet just being straight using the line as guide. When we can catch the officer exaggerating, and point that out to the jury, we move toward showing that the officer’s opinion cannot be trusted completely.

Attorney Huish suggested considering add the word Truly before innocent when describing your client in a sexually assault case; we sit here to decide whether a truly innocent man is being charged with this horrible crime that he did not commit.

Envision your role in the trial

The jury naturally thinks of the defense lawyer as an obstacle to overcome.  We want to present ourselves as a different role, as the teacher, the guide, quality control.  Huish adds that he will tell the jury that he will not have to ask questions, if the prosecutor asks all the questions that need to be asked.  This repositions his role as a check on the prosector, the quality control for the Government or the trust guide for the jury.

What is our role in a DUI case?

In a DUI case, my role is like that of a teacher, to explains to the jury that what the officer sees on the side of the road is a quick glimpse that lacks all of the information about the client and is done in a situation where the officer has one objective, to make a quick decision whether to take my client off of the road. We want to point out that the officer, does not know the client’s medical condition, judges the client under very intense conditions where the client is overwhelmed by fear and anxiety. The quick judgment of the officer is not fair under those conditions.

What is our role in a Sexual Assault case?

In thinking about a couple of indecent Assault and Battery trials I have coming up, my role in that type of case will be to prevent an innocent man from being convicted in the face of a prosecutor who did not adequately investigate the case and was afraid to look behind every door before bringing charges.  In preparing our cases, think about your role so that as Huish states your role will not be chosen for you.

Principal of commitment

 

Huish emphasizes the importance of obtaining smaller commitments before aiming for the larger commitments at trial.  He suggests doing this in opening statement where you can ask the jury to agree to small things to get the larger commitment for the not guilty verdict at the end of the case.  He reminds us that prosecutors do this when they ask the jury if they can follow the law. Defense lawyers can do this as well; will you agree that the State has to rule out every reasonable doubt, to meet the burden of proof beyond a reasonable doubt.   What small commitments do you need the jury to agree to during opening statement to allow the jurors to be on your side at the end of the case?

 Try to write things down during the trial

Huish suggest finding facts you know that you will get from a witness during the trial; if it is important, have the witness write it down.  I bring my own board during trial; I would suggest doing that so the prosecutor does not write down the negative facts on the Board.  You can create the board ahead of time and show it during closing argument; I have done this as well to avoid having the prosecutor also start using the board.  I say you heard the officer testify as follows at trial; I have written those points down all as reasonable for doubt in this case.  You can write the facts down once the officer testifies to it; this is a great approach, but watch out for the redirect if there is additional material to add.

Do not assume as the Jury is hearing the case for the first time

This is important to go back and look at; what are you assuming that the jury already knows.  If we do not explain it, the jury may not know it; when you have done many trials over the course of your career, take a step back check your assumptions about what jurors know about your case.

For example in a DUI case, we all know that officers are trained to list, odor of alcohol, slurred speech and blood shot eyes as signs when making a DUI arrest.  We can point out that those observations are on the form, that the officer will fill out after the arrest. They are so common an anticipated that some supervisor decided to remind the officer to check these signs off after the arrest.  Why are there not more observations on the form?  Does the client have problems with balance; anxiety, what is the client’s ability to handle stress. This list of common signs suggests that the officer is checking the boxes; the jury hearing this DUI case for the first time, may not appreciate how routine and boilerplate this observations are that the officer makes.

 

What symbols will the jury use when they hear the case to process the information they are learning

 

Huish asks lawyers to thing of the symbols that will be used in the trial.  What will the jury picture when they heard the words?   Can you provide a picture that provides a more favorable symbols than what the jury is picturing.

Huish uses the example of a college football game; we would all picture a different game; I went to University of Connecticut Law School so unfortunately I would not picture my school but some big time game like Michigan vs. Ohio State.

People view the world through symbols and concepts.  People collect information in symbolic fashion.  We want to be conscious of what the symbols are like in our trials.  For example, when the jury hears side of the road, do they picture it as we want them to.  To make sure we are picking the correct symbols in the trial we may need to bring them to the scene with a picture to change the symbol.

Concessions

 

Huish explains that you can use concessions to reframe how the jury views an issue.  Here is how it words:  You concede something to illustrate a point; you concede that they proved beyond a reasonable doubt that Jim is Chris’ brother.  They provide evidence of that, but what they did to prove that he committed an assault. The idea is that the concession provides a new baseline by which you want the jury to view a particular point in the trial.

I saw this used in the trial that a good friend of mine Michael Hawkins had, an Atlanta DUI Lawyer when he defended at the time Atlanta Head Coach Mike Budenholzer, now head coach of the Milwaukee Bucks.

Hawkins conceded that the State proved the headlights charge against his client.  He asked the jury to consider the level of proof for the headlight charge versus the DUI charge; he argued if there is any drop off between the level of certainty when the jury looks at the DUI charge versus the headlight charge that is reasonable doubt.  You can  watch the closing argument in the Budenholzer trial by following this link.  

 

Concession followed by the But 

Huish suggests using another technique.  Concession followed by but to soften the negative impact of what comes before the but.

Here are the example of how he used these techniques.  They did find a gun in the car, but is it unfair to ask who actually fired the gun, together we will explore who possessed the gun.

 

Concede follow by the word but or however. 

Huish gave this example of how this concept can be used.  Police are good people; they protect us, but our task today is to determine if there is bad apple in the bunch. Applying this in the DUI context you could state, the police are responsible to make the roads safe, but here we are left to determine whether officer Jones’ interpretation of how Jill performed was related to alcohol or some other cause that he could not know on the side of the road. Another example used during the lecture was as follows:

Killing another person is wrong, but not on a battle field, it is rewarded; we are asked to decide whether my client faced a temporary battlefield.

How do we redefine the problem if it is a DUI?  Can a man at the end of a long day be asked to perform physical tests on the side of the road when he is nervous, scared, and unsure how the officer is judging the exercise.  This is a better way to frame the question than did the officer do the Field Sobriety Exercises correctly.

Principle of Micro/Macro

 Huish discusses the principal of the mico and the macro.  Break something down to smaller level to make it seem larger.  He states we do this with clients discussing a plea offer, 9 years, versus, 3285 days in jail.   By slowing down time and breaking things down, we can magnify the impact.  I like the example he used showing a lack of investigation.  The detective looked at this case, over 379 days ago; he spent less than an hour.

When I have a DUI trial, I like to ask the officer if he went to the restaurant where my client consumed alcohol.  I typically ask if they go but I can amplify this by using these ideas; it would take ten minutes for the officer to go to the restaurant; it was 2 miles down the road; you spent an hour with the case, but no more.

If you have an upcoming trial when Court in your State reopens, try to work these ideas into your trial.  I would be happy to discuss with anyone how they have used these ideas in court and what other ideas you have, variations or new takes on these strategies.

To listen to a few minutes of Attorney Huish lecture you can click here.

To learn more about current issues in Criminal Defense you can follow Attorney DelSignore on Facebook or subscribe to his podcast What’s New in Criminal Defense.

To listen to my youtube video on the lecture you can click here.