14
May 2024
Lawyers on the Stand
With Michael Cohen, Donald Trump’s former fixer taking the stand as a prosecution witness, many factors come in to play for the jury assessing his credibility. Mr. Cohen is not in any way a typical lawyer and this case is entirely unprecedented. A unique characteristic of Mr. Cohen is he has lied a lot in the past, under oath, so the jury will hear about his prior credibility problems. What do jurors generally think about lawyers taking the witness stand in cases that do not involve the former president of the United States and his ex-lawyer?
Jurors tend to harbor misgiving of lawyers in general. In Trial Methods annual survey conducted every year since 2017, respondents were asked to rate the honesty of 11 types professionals and professional groups, including doctors, scientists, banks, religious institutions, the media, etc., to name a few. Lawyers are habitually ranked as the least honest, even less honest than politicians. For starters, jurors think lawyers tend to be arrogant, not truth-seeking but seeking what is best for their client, and that lawyers are also good at manipulating people with the fancy words they use.
When taking the stand, rules apply, and jurors become quickly accustomed to the rules of testifying. The judge is there to ensure fairness. Witnesses are instructed to tell the truth and answer the lawyer’s questions as best they can if they are able to. When a lawyer questions a non-lawyer on the stand, jurors expect the lawyer doing the questioning to try and frustrate the witness, get him or her to commit to something detrimental and/or attack the credibility of the witness. Jurors do not expect a witness to go head-to-head with a lawyer since the witness is supposed to merely answer the question at hand. In a heated battle where the lawyer and witness lose their cool, the lawyer wins, because that is consistent with jurors’ expectations of the lawyers’ role and how they should act in court.
The dynamic at play is a little different when a lawyer is the witness. Jurors expect the lawyer witness to fully understand how the questioner will try and box the lawyer witness into a corner. In essence, the lawyer on the stand has some additional leeway to challenge a fellow lawyer, since jurors expect lawyers to match wits with each other. But as we saw in the Alec Murdaugh trial when Mr. Murdaugh took the stand, too much arguing, combative tone and use of legalese, and the jury will not like the lawyer on the stand. Overall, the lawyer witness has a tight balancing act to follow. The lawyer witness should succinctly and directly parry any attacks by the questioner, but must contain any confrontation and keep within the parameters of the question. If the lawyer witness goes above and beyond what is believed to be acceptable sparring, the jury will almost always side with the lawyer questioner and not the lawyer witness.