A lot of my biker friends have a patch on their jackets that says, “if you can’t dazzle them with brilliance, baffle them with bullshit.” Apparently, the quote originates from W. C. Fields. In some ways, it’s great advice for a trial lawyer.
People tend to be judgmental. They’re also easily confused. Those are usually characteristics that the prosecution can readily use to its advantage. People want to love or hate someone, and if the person on the stand doesn’t make sense to them, hate tends to be the default reaction.
I can’t count how many times I’ve seen a prosecutor confuse a defense witness, and subsequently the jury, with idiotic questions. More often, the prosecution preys on the ignorance of the jurors writ large and convinces them that, because they do not act like the defendant or share his life experiences, he must be guilty.
Luckily, we can fight fire with fire. Prosecutors, you see, do not have a monopoly on questions and lines of reasoning that harness the inner moron in all of us. Hurling a profoundly idiotic series of questions at a witness can occasionally succeed for the defense too.
One of the most effective cross-examinations I’ve ever seen was in what seemed like a dead-bang loser of a case. An eye-witness claimed she saw the defendant walk in with a gun, point it at the victim, shoot him, and leave. In cross-examining the eye-witness, the defense lawyer was brilliant. Brilliantly stupid.
He asked the witness if she saw the bullet come out of the gun. He asked he if she saw the bullet enter the victim. He went on and on about how she saw the defendant with the gun and saw the victim go down, but that she didn’t really know that he shot the victim. She eventually conceded that, because he could have died of natural causes and because she only saw a muzzle flash and heard a bang, which would have happened even with a blank, she had no idea if the defendant shot the victim or not.
I was astonished. How could anyone be so dumb? What jury would buy that? As I thought about the state’s case, however, the big picture came into focus.
The defendant had a collection of prior felony convictions and a gang affiliation, which made him seem guilty from the start. The state was relying on an eye-witness along with what lawyers call “other acts” evidence to prove its case. There was a use-common-sense, of-course-he-did-it theme that permeated the prosecution. It was subtle stupidity and not-so-subtle stupidity combined to create the avalanche of stupidity the state called its case, and the jury might’ve eaten it up. If it weren’t for the defense’s own brand of dumb, that is.
The witness arguably had motive to lie. As bad as the defense lawyer’s questions may have seemed, they were probably not that dumb at all. Maybe the witness was lying. Maybe the witness was confused by the asinine questions not because they were ridiculous, but because she was lying. Maybe they threw her off her game. A juror may have picked up on that. I hear they hung.
A lawyer hoping to impress everyone with his brilliance would’ve left the really stupid questions unasked, and the state would’ve won based on its own stupidity. I think there was a lesson to be learned, and an important one at that.
Sometimes, we have to fight stupid with stupid.