By Clayton T. Robertson, Attorney-at-Law (Criminal Defense / Civil Litigation Attorney)
Rick Friedman's and Patrick Malone's Rules of the Road is used in civil (plaintiff's) litigation to develop easily understandable rules designed to focus the jury's attention on a corporation's or individual's bad behavior -- i.e., a violation of a common-sense rule or industry standard -- as part of a negligence or other bad-conduct case. These rules are designed to distill and simplify the case and to focus the jury on a single, salient, and understandable theme -- often relating the issue to a matter of public safety or justice, which affects us all.
Rules in plaintiff civil cases include the following examples: "If there are two or more ways to do something and they all have the same benefit, you must choose the safer choice." Another: "The more important something is, the more careful you need to be when doing it." In an excessive force case: "A police officer is not allowed to expose a person to unnecessary danger." (These examples are from other civil attorneys.)
Appealing to the jury's primordial need for safety and protection from harm, including protecting the community, is called the "reptile method." It was developed, with great success, by two plaintiff's attorneys -- David Ball and Don Keenan. Juror's react to these "primordial" safety-based rules because they realize a violation in a specific case carries broader social implications and ultimately threatens their own safety and security as well as the safety and security of the community -- all of which are especially relevant in today's heated environment.
The key to applying these tactics to criminal defense is to turn around the government's typical invocation of these same themes (e.g., community safety, protection from danger, etc.) against the prosecution. In other words, "prosecute the prosecution" to deprive the prosecution of its traditional strengths. A rules-based approach combined with the "reptile" method allows a criminal defense practitioner to wage this battle more effectively at trial. Most criminal prosecutors, in fact, will not know what hit them.
For criminal defense, a rule that focuses the jury's attention on rules violations by law enforcement -- and, by extension, by the prosecution -- that threaten public safety and community interests is one obvious target. The violation, in turn, requires the acquittal of your client because of the significance of the violation. This isn't a "send a message" argument; it's an argument that states that what law enforcement has utterly (and specifically) failed to do in this particular case violates a broader obligation, which makes the violations in a particular case all the worse.
One example of such a rule: "When law enforcement conducts an incomplete investigation, they create doubt in our system of justice and endanger our personal liberties." Another example: "When law enforcement carelessly performs its investigation, they put innocent people in jail." Yet another: "When we entrust our safety to law enforcement, we rely upon them to play fair and by the rules." You can connect these rules to the concepts of reasonable doubt and presumption of innocence during your opening statement and closing argument, if not earlier in voir dire.
The credibility of law enforcement -- including the completeness of their investigation -- is always a trial issue in our cases. By using an explicit defense rule you formalize an alternate theme/meme for the jury and put the government on the defensive, including in its case-in-chief. A rules-driven approach by the defense has the added benefit of appealing to conservative jurors, who are rules-driven. By giving these jurors an alternate "rule," you appease their desire to be rules-based.
Sub-rules come, in part, from police department policies and procedures manuals or other similar sources. For example, one sub-rule could be the following: "A police officer who fails to follow the rules described in his or her agency's policies and procedures manual by definition fails to conduct a complete investigation." Other sub-rules involve spoliation of or failure to obtain evidence by law enforcement (as a form of "consciousness of guilt" by law enforcement) and other common investigative and discovery-related problems, not to mention any documented issues with officer misconduct (i.e., a proclivity to "break the rules") discovered through motions and public-records requests.
Through a combination of these rules -- the main rule and the sub-rule(s) -- you create your syllogism: If A=B and B=C, then ergo A=C (acquittal).
This approach focuses the trial narrative because the explicit emphasis during the government's case -- for example, in the defense's cross examination of law enforcement or the government's experts -- is on the defense-side rule(s), which were outlined by the defense during the opening statement and vetted by the defense during voir dire.
Voir dire can set the stage for a defense rules-based approach. For example: "Anyone in your job have safety rules? Or other policies on how to perform your job? How important are those policies? What happens if the rules are not followed? Are the rules there for a reason? What happens if some people follow the rules, but others don’t? Do people lose confidence in the rules if they are not followed? Do they think it’s not fair for some people to follow the rules when others don’t?"
This approach formalizes what many attorneys, in essence, are already doing informally and less systematically through trial themes. However, in this method, by explicitly formulating defense-side rules (and even calling them "rules" during trial, including in cross examination) and repeating them throughout the trial, it more sharply defines the issue(s) for the jury and more directly shifts the burden back onto the government, where it belongs, and satisfies the desire of jurors to feel like they are "doing the right thing" -- by giving them a very tangible rule by which to do it.
