The presentation which really resonated with me was given by attorney Brock Schoenlein from Dayton, Ohio. He discussed the benefits of a client testifying at trial. In a criminal trial, the defendant has the right to not testify, and the jury is instructed they cannot consider the defendant’s silence in deliberations. Whether to testify is the client’s choice, made with the advice of the attorney. For most criminal defense attorneys, the default advice is for the client to not testify. The traditional thinking is the jury expects the client to say, “I didn’t do it”, so there is not much benefit in the client taking the stand to say “I didn’t do it”, and there is the risk the prosecuting attorney’s cross-examination will harm the client’s case.
Schoenlein took discoveries from social sciences and applied them to the courtroom. People make decisions based on both logic and emotion. Having a client testify at trial may help with logical appeal, but its primary benefit is with emotional appeal. Schoenlein discussed the book Moral Tribes by Joshua Greene, which explores how we make moral decisions and the effects resulting from whether we view a person as inside our tribe or outside our tribe. When a client testifies at trial, the jury is more likely to view the client as inside their tribe.
Schoenlein and I are on the same page. Moral Tribes is one of three books I read on this topic within the past year. The second is Tribe: On Homecoming and Belonging by Sebastian Younger. Younger compares modern society to tribal societies and evaluates the impact of modern culture on our collective well-being. The third is Talking To Strangers, in which Malcom Gladwell explains how and why we misunderstand strangers (those who are outside our tribe). I highly recommend all three books for trial lawyers, as well as non-lawyers, as their insights can advance our understanding of juries, opposing counsel, people we don’t know, and ourselves.
I was responsible for one of the presentations at the seminar, and my presentation was divided into two topics. The first topic was roadside testing for THC, which was the subject of a recent article in this blog by Dominy Law Firm attorney Bryan Hawkins. The second topic was Ambien sleep driving as a defense in OVI cases, which was the subject of a not-so-recent article in this blog.
The presentations, compared to other continuing education seminars, were informal. The group of attendees was relatively small, so there were some lively discussions during the seminar. There were also some lively discussions, and activities, after the seminar. The number of attendees will likely increase next year, as more Ohio criminal defense lawyers recognize the value of the Sunshine Seminar…if they value trading work in wintery weather for a seminar with sunshine and socializing.