By now you likely have finished listening to Serial, a podcast from the creators of This American Life, hosted by Sarah Koenig that garnered over 5 million listeners and which I last wrote about weeks ago. Time flies when you are busy. Since then I have tried a little criminal case, and been through an arbitration proceeding in an intellectual property dispute. And I am going back through Serial because there are great lessons for lawyers and defendants – actually there are lessons for Plaintiffs in personal injury cases or any other type of case. Here is the one that I took away from the second episode of Serial – the prosecutor always has a story, and he (or she) will spin it against the defendant on every opportunity.
Story? Yes, story. In Serial, the prosecutor has to provide a reason (motive) for the jury to believe that high school senior Adnan Syed killed his ex-heart throb Hae Min Lee. The prosecutor’s version – spun like a great master – Adnan was so in love with Hai that he could not get over being dumped. He was devastated, and humiliated so he killed her. To make that story stick, the prosecutor made Adnan out to be a devout Muslim who was confronted with the choice of serving his faith, indeed – his God (Allah) – and meeting family and cultural expectations, or loving a girl who would never be acceptable to either family or community.
The trouble with this explanation, as Koenig reports and Adnan confirms, is that he wasn’t "that good a Muslim." And he wasn’t, according to the people who knew him best, that crushed when Hai called off their relationship. "He was a player…" according to his best friend, back out with other girls after Hai left him and fell for the guy at the optical shop.
So why does this matter? Because in every criminal trial the story is the thing that jurors latch onto and the thing they choose. If they choose the prosecutor’s story, you lose. If they choose your story, you may, assuming all the planets line up in just the right order, WIN.
I mentioned that I tried a little case in December. I really like the client and I thought his defense was true and it sounded true. He seemed trustworthy and the story seemed like a lock, but then he testified. The story changed in just one detail – but that detail destroyed his credibility with the jury. Once that is gone, you cannot recover. If you have told your story to the police, and explained why you did whatever it is that has you in need of a criminal defense lawyer, the story cannot change.
So we lost that case. And as I think about it now I realize that the prosecutor’s story was not any better than my client’s, but the client’s story changed just a bit to make it seem like he had a second defense to the charge – and that minor change was enough to cause us to lose. The prosecutor spun that change into a victory by harping on the fact that my guy had never before told that part of the story.
Spin to win – or on our side – lose.
The moral here? Listen to the rest of Serial if you haven’t already done so. Then remember that you should only tell your story once – at trial – so don’t answer the police officer’s questions when he wants to talk to you. And finally, remember that the State or the Feds will have their own story and they will spin it against you to explain your actions. Be ready for trial by focussing on your version.