Can the true-crime genre help attorneys with their jury trials?
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It’s good to be back. After my usual holiday break, I now find myself staring straight into the eyes of my fifth full year writing this column for the ABA Journal. It has been a privilege and an honor to have such a far-reaching platform for my thoughts on law and pop culture, and I look forward to continuing the content.
Along with looking forward to a (hopefully) better 2022, the new year also gives us an excellent opportunity to look back on the year the last one. While 2021 was arguably less challenging than 2020 in many ways, there were still plenty of pitfalls that offer an actionable analysis on how and where to improve. And even though the new calendar year presents plenty of professional and personal points of emphasis, there are also the myriad “best of” incarnations to help us remember the last 365 days.
The best of 2021 …
In December, I save links to multiple best-of articles I receive in reference to law and pop culture. The hope is that those lists will provide some proposals for future columns—or at least extend more trees to pull fruit from. I found one regarding the best Netflix documentaries about serial killers, but there really wasn’t anything that caught my eye (not to mention, it was Netflix UK). Another one, a Rolling Stone offering, focused on “The 10 Best Crime Podcasts of 2021.”
As I perused the list, I realized that I rarely tap into true-crime podcasts for this column. It’s no conscious choice I’ve made, but for whatever reason, regardless of how much I listen to podcasts in other areas of interest, I’ve never looked into that medium’s true-crime options. Turns out, they’re much the same as their visual counterparts.
Of the 10 entries Rolling Stone chose for its 2021 review, I would classify three as your classic “whodunits”—your true-crime offerings that put the audience in the captain’s chair and lets them play detective in their head. Three involve reexamining a case closed as “solved”—a subgenre of the whodunit category in which the listener is prompted to question whether the authorities came to the correct conclusion. Two others focused on famous crimes from a historical angle. Another two are what I would refer to as “killercentric”—they look at a killer who stands apart for one reason or another, such as the serial arsonist in Firebug. The remaining entry was an outlier.
Consequently, 90% of the podcasts Rolling Stone suggested center on the criminals—who they are, whether they actually committed the crimes, and if so, why and how they did what they did.
Everyone wants to solve a mystery
There is something else all of these podcasts have in common: They give the listener an opportunity to try to stay ahead of the big reveal. Humans are blessed with logic and deductive reasoning. Unsurprisingly, a large number of us love to use those tools in pursuit of “truth.”
Most, if not all of us, know someone in love with true-crime documentaries (if we aren’t that person ourselves). Humans love to play detective. There’s a reason Netflix constantly churns out new offerings: There’s a big audience.
That fascination can channel itself through numerous mechanisms. Some people are content to feed their craving by staying in and binge-watching. Others want to apply their hobby in the “real world”—a desire that can express itself in one’s career choice.
Who knows how many people have joined or will join law enforcement or attend law school because of their love for true crime? I’ve also written about the internet sleuths, some of whom devote impressive amounts of time and dedication to their craft. Others may not take their aspirations to such an extreme, but their love for the genre exhibits in reality nonetheless.
Anyone who has followed this column knows my wife’s affinity for true crime. She was recently summoned for jury duty in the county where we live (and where I take the majority of my cases). Even though I expounded on how she’d never be empaneled since prosecutors would likely kick her off when they found out her husband was a criminal defense attorney, she was still excited. She genuinely wanted to serve on a jury.
I was surprised. Most people dread the notion of spending a few days in a cold courtroom for little pay. Most potential jurors I’ve spoken with over the years consider jury duty more a burden than a privilege. She made it into the box on a death penalty case; however, she was removed (likely by the prosecution) through the use of a peremptory challenge after voir dire concluded. When she arrived home afterward, she was genuinely disappointed she didn’t make the final cut.
Curious as to why she was so dismayed, I asked her to describe the allure. Her explanation was compelling: “I’ve seen the justice system play out on the shows I’ve watched, and I wanted to participate firsthand. Plus, I know from hearing you explain the jury selection process that not everyone makes it to the finish. I might not get many chances.”
Empowering your jury
Her reasoning makes sense. Moving forward, there will likely be even more true-crime fans on juries. As the younger generation that grew up with shows like Making a Murderer and Tiger King come of age, they’ll be the ones receiving summonses. With that knowledge, it might be beneficial for trial attorneys to start reframing their approach to communicating with juries. And when I say “communicating,” I don’t just mean through voir dire; that’s the only time we’re permitted to speak directly to the jury members until the trial’s conclusion. Be that as it may, any attorney worth their salt knows a large part of trial success depends on indirectly communicating with the jury through the questions we ask witnesses during the trial itself.
Many attorneys feel the need to give the jury every fact necessary to paint the whole picture. But when dealing with true-crime-fan jurors, we need to resist the urge to solve the puzzle for them. Our need to be good storytellers remains, but the way we tell our stories may need to change.
Most folks are familiar with the old saying “You catch more flies with honey than vinegar.” When it comes to the true-crime-fan juror, the “honey” is the information you let them “figure out” for themselves. I use quotation marks around “figure out” because we (the attorneys) can’t merely hope the jury connects the dots; we have to point them in the direction we want them to go, and give them just enough push to head down the right path to ultimately “discover” certain aspects of the case on their own.
If you play your cards right, you’ll find yourself delivering a closing with a bunch of jurors nodding in approval. They’ll feel as though they beat you to the punch and figured out whodunit (or who didn’t—as is often more important in the criminal trials I defend). That sense of accomplishment will not only keep them engaged throughout the proceeding, but it will also go a long way toward aligning them with your side.
After all, if we can get the jury members actively involved in our story, they are more apt to embrace our narrative. If we can get them hooked, it’s more likely we can get them committed to our cause.
Adam R. Banner is the founder and lead attorney of the Oklahoma Legal Group, a criminal defense law firm in Oklahoma City. His practice focuses solely on state and federal criminal defense. He represents the accused against allegations of sex crimes, violent crimes, drug crimes and white-collar crimes.
The study of law isn’t for everyone, yet its practice and procedure seems to permeate pop culture at an increasing rate. This column is about the intersection of law and pop culture in an attempt to separate the real from the ridiculous.
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.