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MGoldberg@jmglpa.com

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Cleveland, Ohio 44139

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Why Thank the Jury?

A few years ago I observed a murder trial. The accused was represented by a sharp, talented, no-nonsense Cleveland defense lawyer (Jeff) who was brilliant from start to close.  Today I give you my impression about one very small but compelling part of his close.

The prosecutor was the first to give a closing argument, and like every other prosecutor I’d seen in trial, the first thing he did was offer a perfunctory “thank-you for your service” speech to the jury. And like every other time I’d heard that “thank-you” speech, it came off like political pandering: empty and insincere.

I have no doubt that when Jeff stood to give his closing argument, he just wanted to get right to the merits of the case — or, rather, its lack of merit. But the prosecutor’s thank-you was out there, and Jeff had to acknowledge it.

“I am not in the habit of thanking juries for sitting there. It’s like thanking you for showing up.”

Right there — if even for just the briefest of moments — Jeff took the jurors’ collective attention from the state’s substantive argument all the way back to the prosecutor’s empty “thank-you.” How did this work on a subconscious level?

Think primacy and recency. Maybe the prosecutor lost the benefit of the jurors recalling the last substantive things he said during his close; maybe they began to focus on the very first thing he said — the non-substantive and pointless “thank-you” speech.

Maybe the jurors, collectively or individually, pondered the prosecutor’s motive in thanking them, potentially calling into question his credibility. “It’s not as if we had a choice to be or not to be jurors, so why is he thanking us? Does he believe his case is weak, so he’s looking to hedge? What’s the point of it?”

At best, the thank-you constituted a distraction from the substance of the state’s case. At worst, it created a question in the jurors’ minds of the prosecutor’s credibility and motives.

So, if you are an advocate at trial, why thank the jury?

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