3. Courtroom communications

3. Courtroom Communications

As a communication consultant, I’m sometimes called upon to help defendants with their testimony in criminal cases involving encounters between adults and minors. In such cases, I act as a consultant hired by the defense attorney for a nominal fee.

This provides me and the client with the protection of the “attorney-client privilege,” which in the US prevents the prosecutor from subpoenaing or wire-tapping our conversations. They might wire-tap us anyway, but they can’t use it in court. We mostly communicate through Skype which is encrypted and hard to hack.

The lawyer has his legal perspective on the case, but my point of view is focused on the dynamic of communication, that is, how the judge and jury hear, understand, and remember what is said. I can also give advice to the defendant that the lawyer, because of his role as an officer of the court, cannot.

Typically in such cases, there is a lack of solid evidence. No forensic proof, no witnesses, no recordings. Therefore, the prosecutor needs some kind of confession from the defendant. The defendant that provides an unequivocal denial of the charges presents serious problems to the prosecution’s case.

But it doesn’t stop there. The defendant must also “paint a picture” of himself as a decent, caring, loving person making an important contribution to the lives of those he is involved with and the community at large. He does this by following up his denial of the prosecutor’s accusations with a positive statement about himself and a validating anecdote.

It follows a very strict formula

	1) Unequivocal denial of the accusation. (“Did you touch his penis?” “No.”)
	2) Positive statement. (“I respect the kids I work with, and I encourage their development.”)
	3) Anecdotal example. (“For example, there was one boy in our class who was afraid to speak up, even though he had something to say. I told him privately that his participation was important to all of us. We wanted to hear what he had to say, and the next day in class, he exploded with brilliant ideas!”)

Some very important points about this formula

	It’s harder than it looks. It’s easy to understand intellectually, but putting it to use requires hours of rehearsal with someone playing the role of prosecutor and grilling you, preferably on audio or video tape, so you can review your performance.
	Even with rehearsal, it still requires nerves of steel to “stick to your guns” on the witness stand.
	Once the prosecutor figures out how you’re manipulating your testimony to your favor, he/she might try to shut you up by interrupting or objecting that it’s irrelevant. But in the case of a defendant giving his own testimony in his own defense, you have a lot of latitude. No judge is going to shut up a defendant witnessing for himself. (The other side of that coin is the prosecutor who thinks if they let you talk long enough, you’ll hang yourself. If you get one of those, that’s a good day.)

The communications theory underpinning this approach

Even without evidence, the prosecution thinks it’s holding all the cards. They are in control of both the judge’s and jury’s commonly held negative beliefs about pedophilia and the official processes of the law and the courts. This is true. But they are not in control of the narrative presented at trial. Therefore at trial, the prosecution will attempt to “paint a picture” of the defendant as a pedophile monster using narrative (story-telling), i.e., filling in the blanks of the pedophile-monster template with details of this case.

The defendant’s challenge is to counterbalance this negative narrative with a competing positive story of himself as a decent, loving person making an important contribution to the community. This is accomplished using the formula above.

It’s a demanding performance that requires not only the rehearsed skill of telling positive anecdotes with a few quick strokes but also doing so with a pleasant, caring facial expression, body language, and tone of voice.

The goal is two-fold:

	an absolute, unequivocal denial of all charges followed by
	a positive, sincere anecdote told in a way that conveys to the judge and jury that you are a decent, caring person (and why is this nasty prosecutor being so mean to you?).

In this context, if the prosecutor gets under your skin and you respond angrily, you’re dead. Do that even only once, and you will walk out in handcuffs.

Finally, there is the issue of the denial itself. Defendants often complain that the system is rigged, which it is, but when they’re in the system fighting for their very freedom, they act as if it’s legitimate. They were right the first time: It is rigged. Instead, they naively believe that the question “Did you touch his penis?” is a matter of fact. It is not. It’s a matter of narrative, that is, the prosecution’s attempt to tell the pedophile-monster story. The defendant who responds with a firm, proud, and unequivocal denial to that question, followed by a positive statement and anecdote will walk away a free man.