What Can You Afford to Risk? Self-Incrimination in Civil Litigation

When a civil action results in criminal charges, often the most compelling evidence in favor of conviction is self- incriminating evidence disclosed in the civil case. Recently, I spoke on a panel addressing the various ways civil litigation can implicate a client in criminal conduct. Following the presentation, a member of the audience submitted a question: “Practically speaking, what options exist if you identify an area where your client might incriminate himself? And, if your client makes an incriminating statement or turns over an incriminating document, what can be done to protect them in the criminal context?” This article is my attempt to answer these practical questions from the perspectives of plaintiff, defendant, and witness.

I. The Basic Legal Framework

The Self-Incrimination Clause of the Fifth Amendment to the United States Constitution gives every person the right not to “be compelled in any criminal case to be a witness against himself.” [1] Article I, section 12 of the Oregon Constitution states: “No person shall be … compelled in any criminal prosecution to testify against himself.” [2] These privileges can be raised in any proceeding at any juncture where the testimony may be incriminating in a future criminal proceeding. [3] This includes civil, administrative, and criminal cases, as well as non-judicial settings. [4]

In order for a person to assert their Fifth Amendment right against self-incrimination, they must have an articulable interest that can be expressed in order to show their testimony would either support a conviction or “furnish a link in the chain of evidence needed to prosecute [them] for a federal crime.” [5] A court determines whether a person’s Fifth Amendment assertion is justified by deciding “whether [they are] confronted by substantial and real, and not merely trifling or imaginary, hazards of incrimination.” [6] Of course, the witness does not need to explain why answering a question would incriminate them. “To sustain the privilege, it need only be evidenced from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” [7] In other words, the Fifth Amendment protects more than the proverbial smoking gun and other plainly phrased admissions of wrongdoing. It also protects statements that may seem innocent on their faces but, in light of previously developed facts, could be injurious.

In addition to the testimonial setting, the Fifth Amendment also applies when a person produces documents, which typically occurs in response to a subpoena duces tecum or a request for production. Pursuant to the “Act of Production” privilege, the very act of producing documents (as opposed to the contents of the documents themselves [8]) is protected under the Fifth Amendment to the extent that the production may constitute implied testimony that could be incriminating. [9] The “Act of Production” privilege may arise where the production of records amounts to the tacit admission of a document’s existence or a client’s possession of them, either of which could be incriminating. In addition, the “Act of Production” privilege is implicated when the production may serve to authenticate documents that would otherwise have questionable foundations. [10] If, under any of these theories, a production of documents is incriminating, a person can assert their Fifth Amendment right and refuse to produce the documents unless the requesting party can show with “reasonable particularity” that the existence, location, and authentication of the documents are “foregone conclusions.” [11]

II. Strategic Considerations

In some cases, your client may choose to waive their Fifth Amendment right against self-incrimination and make statements or produce documents in a civil case. Such a waiver must be “knowing, intelligent, and voluntary.” [12] Before making this choice, however, counsel must carefully advise a client on the risks of doing so. Balancing your client’s interests against likely outcomes is extremely difficult, and the decision is not always clear cut. For example, if your client is the subject of a SEC enforcement action and an ongoing criminal investigation, the answer is far simpler than in a situation where you believe your client could be implicated in a civil matter that involves no known criminal investigation, but which may still carry criminal ramifications. Your advice will also depend on whether your client is a plaintiff, a defendant, or a witness subpoenaed to testify or produce documents.

A. Plaintiffs

Advising plaintiffs on whether they should waive their Fifth Amendment right requires contending with a number of emotional considerations. In some instances your client feels wronged, and you, having conducted discovery, also believe that your client has been wronged. In other instances you believe in the client’s cause, and the client either needs financial compensation for his losses, wants to set a precedent, or simply wants to vindicate themselves or repair their reputation. Regardless, if the matter is pursued, the defense may try to implicate your client in wrongdoing, whether fairly or not. There is a significant risk that, even if your client prevails in the civil case, the evidence obtained in that litigation could later be used against your client to build a criminal case. The success in one arena could jeopardize your client’s interests in another.

For a plaintiff, there is really only one option for avoiding criminal liability: not pursuing a claim. Although this outcome is difficult for a client to accept, the added costs of later defending against a criminal prosecution will usually out-weigh any potential recovery in a civil case. Of course, counsel should also consider any avenue to settle a matter in a way that might partially, if not totally, bring about the relief sought in the lawsuit. For example, with the client who sees them- selves as a whistle blower, perhaps you could persuade your client’s employer to adopt new policies that will help ensure that the sort of conduct at issue in the case does not reoccur.

B. Defendants

Like plaintiffs, defendants certainly experience strong emotions and the same considerations may exist: vindication, reputation, money, and fear of setting a precedent. Yet the risk of incrimination in formulating a defense may exist because of the nature of the claims and the interest of the accuser. The risk in this situation may be more obvious, but the choices more limited. Defendants, unlike plaintiffs, do not have the initial choice of whether or not to bring the litigation in light of all of the risks. Therefore, before you begin the discussion with your client about what they can “afford to risk,” it is important to understand the various areas where criminal liability arises, and what can or can’t be done to resolve the risk.

In determining whether your client may be facing criminal liability, you should consider whether the facts used to establish your client’s claims or defenses, or the facts that will come out in their testimony, could also be used to satisfy the elements of a criminal charge. You should also determine whether the government is already investigating your client.

If you are unsure whether there is an active investigation, but believe your client has potential criminal liability, it can be wise as a first step to reach out to the law enforcement agency or prosecutor’s office that would be the entity investigating your client. Although prosecutors are not required to inform prospective defendants that they are being investigated, they cannot engage in “trickery or deceit” in order to affirmatively mislead the subject of parallel civil and criminal investigations into believing that the investigation is exclusively civil in nature pursuant to the “parallel proceedings” doctrine. [13] Regardless of what a prosecutor tells you about the status of their investigation, an initial inquiry will at a minimum open up a dialogue and, in some circumstances, the dialogue itself can help counsel understand whether or not their client’s case is the type that the prosecutor would have an interest in. It can also create an opportunity for you to explain your client’s role in the matter. If you have a compelling argument to make at this early stage, it could make the difference between your client being a cooperating witness or a defendant in a future criminal proceeding.

If you ultimately determine your client has potential criminal liability, the next step is to consider the potential downsides of asserting the Fifth Amendment. If your client is a litigant in federal court, they run the risk of having an adverse inference drawn against them with respect to the fact they refuse to disclose. [14] However, such an inference can be drawn only if independent evidence exists that could prove the fact your client refuses to disclose. [15] In Oregon state court, on the other hand, no adverse inference is allowed in the event your client asserts their Fifth Amendment right. [16] But, a defendant cannot use the assertion of the Fifth Amendment as both a sword and shield. If your client testifies affirmatively, they may then waive their right to assert the Fifth Amendment during cross examination. In that situation, the client runs the risk of having their testimony struck if they do not answer questions. [17]

In addition to asserting the Fifth Amendment there are several alternatives available to defendants that, if successfully obtained, can at least temporarily mitigate the risk of criminal liability.

1. Settlement
Settlement is, of course, the obvious choice if the parties can reach an acceptable agreement. Even with a settlement, however, counsel must carefully draft written agreements to ensure recitals and other factual provisions do not implicate their client.

2. Stay of Proceedings
In a case where a settlement is not an option, a defendant can move to stay a civil case in whole or in part if the facts of the lawsuit parallel possible criminal liability. However, a court has discretion to refuse to stay the proceeding after balancing the following factors: (1) the interest of the plaintiffs in proceeding expeditiously, and the potential prejudice to plaintiffs of a delay; (2) the burden which any particular aspect of the proceedings may impose on defendants; (3) the convenience of the court, and the efficient use of judicial resources; (4) any relevant interests of persons not parties to the civil litigation; and (5) the interest of the public in the pending civil and, if applicable, criminal litigation. [18] Put more simply, a defendant will not be granted a stay based on the mere possibility of criminal liability, and will have to assert their Fifth Amendment right if denied a stay.

3. Motions to Quash or Motions for a Protective Order
A complete consideration of the grounds for seeking a protective order against a discovery request or quashing a subpoena is beyond the scope of this article. However, a discovery request or subpoena may be objectionable because it is overbroad, asks for privileged information, or, of course, where responding to it would expose your client to self-incrimination because it assumes guilt. [19]

C. Witnesses

A client who is subpoenaed to testify as a witness or pro- duce documents in a matter where they may be exposed to criminal liability is in a different situation than a plaintiff or a defendant. Such a client lacks the power to stay a proceeding, and has no claim to drop. Furthermore, they cannot simply refuse to comply with a subpoena or decide not to attend the proceeding. A witness can, however, refuse to answer questions by asserting their Fifth Amendment right without having to worry about an adverse inference being drawn against them. But, the act of refusing to answer will certainly place the spotlight on them and their conduct. It may also cause reputational damage. This sort of client, because of their role in society or within a company, may be reluctant to assert their Fifth Amendment right. Such a client is also the very person with whom having the discussion regarding risks may be the most important.

III. Damage Control

The biggest risk of your client making incriminating statements is that those statements may later be used in a criminal prosecution against them. But how does this play out in the real world? One example is where your client appears for a deposition and makes statements that implicate them in criminal activity. These statements have several negative consequences. First, the statements may provide the government a road map of your client’s likely defenses. Second, the government may claim that the statements themselves (if any aspect of them are at odds with the facts alleged by the prosecution) were an obstruction of an investigation. This, in turn, could allow a prosecutor to bring an obstruction charge separately, or use the allegation of obstruction to enhance a criminal sentence. [20]

Third, and most importantly, the statements will be admissible in evidence in a criminal prosecution against your client as admissions of a party opponent. Unfortunately, regardless of your client’s intent when making the statements, there is no similar right for a criminal defendant to use the exculpatory portions of the same deposition. Such a deposition can be particularly damaging if your client chooses not to testify during a criminal trial and has no chance to explain the context of the statement or what they were thinking when they made it.

Under the rules of evidence, in order to mitigate the harm of the prior statement, defense counsel can (1) find other areas of testimony from the prior statement, omitted by the prosecu- tor, that are admissible under the “rule of completeness;” [21] (2) challenge the prosecutor’s characterization of the statement as an admission; or (3) argue a constitutional basis for exclusion that would otherwise make the statement involuntary.

One such constitutional basis could be that the statement was given pursuant to an involuntary waiver of your client’s Fifth Amendment right. If a government investigator was questioning your client when the incriminating statement was made, then there may be an avenue to suppress the statement through the doctrine of parallel proceedings. This doctrine, in a nutshell, says that a civil case cannot be used as a stalking horse for a criminal prosecution. For one thing, the government cannot bring a civil action solely to obtain evidence for a criminal prosecution. [22] But even if the civil action is not brought solely for the sake of criminal prosecution, the circumstances may indicate that a criminal prosecution is inappropriately utilizing a civil investigation for fact-gathering. [23] If, for instance, staff from separate civil and criminal agencies meet regularly, identify targets together, or share documents, there may be grounds in the criminal prosecution to suppress a statement made in response to questioning by the civil investigators. The same argument could be made if the government creates an “agency” with a private civil attorney and uses that attorney to gather information for a prosecution. In such a situation, the civil attorney may be found to have acted “as an ‘instrument’ or agent of the state.” [24] A court may make such a finding after determining: “(1) whether the government knew of and acquiesced in the intrusive conduct; and (2) whether the party performing the search intended to assist law enforcement efforts or further his own ends.” [25]

IV. Conclusion

The decision of whether to assert the Fifth Amendment right against self-incrimination can have a dispositive impact on civil litigation. Clients facing this choice may be dealing with the potential loss of a business, a job, emotional or physical pain, or a dire need for financial compensation or even simple vindication. These clients certainly never imagined they would need to choose between asserting legal claims or defenses and taking the Fifth. I have learned over the years that in order to resolve the issue the most important question to explore with the client is: “What can you afford to risk?” For each client in each situation, the answer may be very different. An outsider may assume that the obvious answer is, “I cannot afford a criminal conviction,” or, “I cannot afford a prison sentence.” But sometimes, despite counsel’s concern for their client’s criminal prosecution, that is not the most important factor to a client. Some clients may care more about their reputation in the proverbial “court of public opinion,” or the business they have built up over time, or conveying to their children that you can’t just give in to bullies. Each client is unique, and each has a different take on what constitutes too large a risk. Helping a client figure out the risks and how to navigate the areas that are potentially incriminating is one of the most difficult areas for counsel to advise, and for the client to decide what is ultimately not worth risking.

 


[1] U.S. Const. Amend. V.
[2] The jurisprudence regarding the Self-Incrimination Clause of the Fifth Amendment generally applies to the Oregon Constitution’s analogous privilege.
[3] United States v. Balsys, 524 U.S. 666, 672 (1998).
[4] See id.; State v. Langan, 301 Or. 1, 5 (1986) (Article I, section 12 privilege against self-incrimination applies in any judicial or non-judicial setting where compelled testimony is sought that might be used against the witness in a criminal prosecution).
[5] United States v. Rendahl, 746 F.2d 553, 555 (9th Cir. 1984) (quoting Hoffman v. United States, 341 U.S. 479, 486 (1951)).
[6] United States v. Apfelbaum, 445 U.S. 115, 128.
[7] Hoffman, 341 U.S. at 486-7.
[8] Because the Fifth Amendment only protects a person from compelled self- incrimination, a document that was voluntarily created is not protected. See Fisher v. United States, 425 U.S. 391, 396 (1976); Schmerber v. California, 384 U.S. 757, 761 (the privilege “protects an accused only from being compelled to testify against himself, or otherwise provide the state with evidence of a testimonial or communicative nature”).
[9] “[I]n order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.” Doe v. United States, 487 U.S. 201, 210 (1988).
[10] See id. at 216 (noting that authentication by production would be “testimonial” in nature).
[11] In re Grand Jury Subpoena, 383 F.3d 905 (9th Cir. 2004).
[12] Edwards v. Arizona, 451 U.S. 477, 482 (1981); State v. McAnulty, 356 Or 432, 455 (2014).
[13] United States v. Stringer, 521 F.3d 1189, 1198 (9th Cir. 2008) (citing United States v. Robson, 477 F.2d 13, 18 (9th Cir. 1973).
[14] Baxter v. Palmigiano, 425 U.S. 308, 318 (1976).
[15] Doe ex rel. Rudey-Glanzer v. Glanzer, 232 F.3d 1258, 1264 (9th Cir. 2000) (“[W]hen there is no corroborating evidence to support the fact under inquiry, the proponent of the fact must come forward with evidence to support the allegation, otherwise no negative inference will be permitted.”).
[16] OEC 513(1) (“The claim of privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel. No inference may be drawn from a claim of privilege.”); John Deere Co. v. Epstein, 307 Or 348 (1989).
[17] See United States v. Seifert, 648 F.2d 557, 561 (9th Cir. 1980).
[18] Id.
[19] For example, if a subpoena to a banker ordered the production of “all documents related to the unauthorized cashing of checks,” a court would almost certainly quash it.
[20] However, before the statement can be used for such a purpose, the government must demonstrate that “the defendant gave false testimony on a material matter with willful intent.” See, e.g., United States v. Herrera- Rivera, 832 F.3d 1166, 1175 (9th Cir. 2016) (quoting United States v. Castro-Ponce, 770 F.3d 819, 822 (9th Cir. 2014)).
[21] Federal Rule of Evidence 106 provides that, “[i]f a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time.” Rule 106 of the Oregon Evidence Code provides the same rule, but extends it beyond just writings and recorded statements to “act[s], declaration[s], and conversation[s].”
[22] United States v. Kordel, 397 U.S. 1, 11 (1970).
[23] Stringer, 521 F.3d 1198.
[24] Coolidge v. New Hampshire, 403 U.S. 443, 488 (1971).
[25] United States v. Cleaveland, 38 F.3d 1092, 1093 (9th Cir. 1994) (quoting United States v. Reed, 15 F.3d 928, 931 (9th Cir. 1994)).


Email Evidence: Overcoming The So-Called “Self-Serving Hearsay” Objection

The use of email and other electronic forms of communication are ubiquitous in our society today. However, the conveniences these modern technologies offer also carry certain risks. While email, instant messaging and texts are certainly fast, they lack many of the formalities inherent with more traditional written mediums. When read in a vacuum, a poor attempt at humor or sarcastic aside can appear to take on a much more sinister meaning. Because email has become a regular part of our daily lives, it can be a rich source of evidence when conflicts arise and those conflicts lead to trial litigation. As a wise law professor once said, never write in an email something that you would not be comfortable seeing enlarged on a video screen and read aloud in a courtroom.[1]

Attorneys for one of the world’s largest law firms, DLA Piper, learned this lesson when emails surfaced in the midst of a civil dispute with a former client over more than $600,000 in past-due legal bills.[2] The former client countersued and offered internal firm emails that had been produced in discovery as evidence of a “sweeping practice of overbilling.” An attorney wrote in one email, “I hear we are already 200k over our estimate—that’s Team DLA Piper!” Another wrote, “[n]ow Vince has random people working full time on random research projects in standard ‘churn that bill baby!’ mode,” adding “[t]hat bill shall know no limits.”[3] In a statement from DLA Piper, the firm said that “[t]he emails were in fact an offensive and inexcusable effort at humor, but in no way reflect actual excessive billing.”[4] The firm reportedly settled the matter, but these damaging emails demonstrate how the informal nature of email correspondence can lead to serious civil liability.

More recently, internal emails between former members and executives of Dewey & Leboeuf, a now bankrupt law firm formerly headquartered in New York City, provided key evidence to support an indictment charging them with dozens of counts of larceny and securities fraud.[5] The four men charged include three attorneys, and the firm’s chief financial officer. In at least one of these emails, they “used the phrase ‘cooking the books’ to describe what they were doing to mislead the firm’s lenders and creditors in setting the stage for a $150 million debt offering.” [6] A handful of other former employees have since pleaded guilty in connection with the alleged accounting fraud scheme, but the four men believed to be at the center of the case continue to assert their innocence.[7] In response to the prosecutor’s claim that the men used “accounting gimmicks and fraud to cheat banks and investors,” defense counsel said that they “lacked criminal intent and the necessary understanding of ‘complicated accounting rules and regulations’ required to be guilty.”[8] Whether this case ultimately goes to trial remains to be seen; however, the defendants would almost certainly seek to admit other email evidence in their defense to put these seemingly damning emails into context and to support their claim of innocence.

The purpose for which an email is offered at trial can have a major impact on whether the court will receive it into evidence. Admission of a party opponent’s email correspondence presents little difficulty.[9] For example, plaintiff ’s counsel could easily have an email written by a company executive, describing his efforts to obtain funding through the use of allegedly false or misleading earnings reports, admitted against the executive in a fraud case. If instead defense counsel sought to offer a follow-up email written by that same executive, suggesting his belief that the earnings reports were accurate and negating the necessary showing of intent, it would likely trigger an objection on the basis of the so-called “self-serving” hearsay rule. Though sometimes used as a catch-all objection, “self-serving” is a proper objection only to a statement that purports to come in as a declaration against penal interest.[10] Because the admission of statements under this particular exception does not extend to non-self-inculpatory statements that were made along with or collateral to self-inculpatory statements, the follow-up email described in the example above may be excluded if offered pursuant to this exception.[11] Yet, there is no independent hearsay rule that self-serving evidence is inadmissible.[12] It could be said that all evidence offered by a party is self-serving in some respect—the self-serving nature of evidence is generally deemed only a matter of weight for the fact-finder to consider.[13] Nevertheless, a party who seeks admission of his or her own email correspondence may face a difficult challenge.

This article is meant as a guide to assist practitioners in navigating the rules of evidence and identifying bases on which to successfully admit a client’s own email evidence when it may be helpful to their client’s case. This article highlights just a few key evidentiary provisions that may serve as means for utilizing this potential source of beneficial evidence at trial.

Back to Basics

The difference between hearsay and prophecy is often one of sequence. Hearsay often turns out to have been prophecy.
– Hubert H. Humphrey

The exclusion of hearsay from admission at trial is one of the oldest and most fundamental rules of evidence. Out-of-court statements, both oral and written, are generally inadmissible if offered for their truth.[14] The reason for their exclusion is that hearsay statements are generally considered to be untrustworthy.[15] Yet, it has been said that the many exceptions essentially swallow the rule. And it is within these exceptions that practitioners must usually operate when seeking to admit a client’s own beneficial or exculpatory email evidence.

First, however, it is vital to determine the purpose for which the email is being offered into evidence. Out-of-court statements offered for things other than their truth are not subject to exclusion as hearsay. For example, an email that describes matters discussed during a particular meeting or event would be admissible as circumstantial evidence that the meeting or event took place. Other non-hearsay uses may include establishing the email’s effect on its recipient or merely that the email was sent or received by a particular party on a particular day.

Assuming instead that text of an email is being offered for its truth, counsel would need to identify a hearsay exception through which to admit it.[16] For emails generated in the course of operating a business, one possibility is for admission as a business record. Alternatively, an email may be offered as evidence of the declarant’s state of mind. The state-of-mind exception may be particularly useful in a criminal case for challenging whether a defendant had the necessary criminal intent; however, it carries with it certain limitations. Depending on the circumstances, an email may also be admissible once opposing counsel “opens the door,” as a prior consistent statement, or pursuant to the rule of completeness. Ultimately, helpful emails should be analyzed carefully and not overlooked merely because they appear to be inadmissible hearsay evidence.

Business as Usual

Information technology and business are becoming inextricably interwoven. I don’t think anybody can talk meaningfully about one without talking about the other. – Bill Gates

The use of email and other digital communication has become standard practice in the business world. It would appear to be common sense that workplace email communications naturally fit within the business records exception of the hearsay rule. That assumption would, however, be incorrect. While the hearsay exception for records of a regularly conducted activity has been held to encompass business emails in certain circumstances, the exception has not been held to apply to all email correspondence made in the regular course of business.

At its core, the business records exception allows for admission of records made (1) at or near the time of the act or event described in the record by someone with personal knowledge of the act or event, (2) in the regular course of business, and (3) as a regular part of the recorded activity.[17] routine record-keeping activities such as monthly inventory reports or daily sales logs are examples of records that fall squarely within the exception.[18] An important rationale for their admissibility is the assumption that records containing information needed for the efficient operation of a business are intrinsically accurate and trustworthy.[19] Email has not historically satisfied this test. In Monotype Corp. PLC v. International Typeface Corp., the Ninth Circuit affirmed the trial court’s exclusion of an email sent by an employee to his superior, which according to the proponent of the evidence was kept in the regular course of business.[20] In its opinion, the court distinguished the email from a bookkeeper’s monthly inventory records and held that the use of email was not a similarly systematic business activity.[21] Moreover, the fact that an employee has the routine practice of drafting an email to memorialize regular daily activities may not be sufficient for admissibility.[22]

Of course, a lot has changed in the twenty years since the Ninth Circuit decision in Monotype Corp. PLC. Recognizing, however, that the practice of generating and systematically retaining email varies considerably from business to business, courts have not taken the position that all emails are admissible business records. In Rogers v. Oregon Trail Electric Consumers Cooperative, Inc., an Oregon district court judge recently adopted a test articulated by the Louisiana district court in a case arising from the Deepwater Horizon oil spill.[23] Under this test, the proponent must establish, in addition to the other requirements noted above, that the email was sent or received pursuant to a policy or business duty to report or record the information within the email.[24] Applying this test, the court denied admission of emails memorializing disciplinary actions at issue in the case. The court emphasized the informal nature of email correspondence and distinguished it from more formal disciplinary memoranda which carry a stronger presumption of accuracy and reliability.[25] Yet, there has been some movement toward the admission of emails under the business records exception.[26] In Volterra Semiconductor Corp. v. Primarion, Inc., for example, a California district court admitted an email, which included technical guidelines for a “flip chip technology” at issue in the case; without providing a detailed analysis, the court merely explains that the proponent of the email established the necessary foundation for admissibility at trial.[27]

It is important to note that the opponent of email evidence offered under the business records exception may still successfully prevent its admission by showing that the source of the email or the circumstances of its creation indicate a lack of trustworthiness. [28] For example, correspondence created in anticipation of litigation or containing errors or omissions revealed by reference to other admissible evidence may be deemed untrustworthy.[29] Its self-serving content is, however, not a sole basis for exclusion. Thus, the business records exception can potentially provide a means for admission of helpful email evidence. Once the proponent establishes that the email satisfies the business records exception’s foundational requirements and withstands challenges to trustworthiness—it can be used at trial for any purpose.

What’s on Your Mind?

In words are seen the state of mind and character and disposition of the speaker. – Plutarch

Email evidence can also be offered to establish a declarant’s then-existing state of mind.[30] Admission of hearsay evidence under Rule 803(3) requires a showing that the declarant’s state of mind is relevant, that the hearsay statement was made close in time to the thoughts or feelings expressed, and that there was little time for reflection.[31] Out-of-court statements describing a declarant’s “intent, plan, motive, design, (or) mental feeling” are all admissible hearsay.[32] The state-of-mind exception rests in part on the notion that there is no greater authority on a person’s thoughts and feelings than the person who experienced them.[33] In some cases, such evidence provides the best source of information to dispute an opponent’s version of events or circumstantial evidence of a party’s intent. Because jurors evaluate all evidence within the framework of a story or narrative to reach conclusions about the facts in a case and to ultimately decide “what happened,” there is tremendous value in being able to present state-of-mind evidence.[34] There is a compelling argument that fair and objective outcomes are more likely when fact-finders have full access to competing narratives and can test which best fits the evidence presented.[35]

Admissibility of statements offered under Rule 803(3) is, however, restricted in several important ways. The rule expressly excludes admission of a “statement of memory or belief to prove the fact remembered or believed.”[36] Thus, a statement that reflects what the declarant would have done had past circumstances been different or one that recalls the defendant’s state of mind during an earlier event would be inadmissible.[37] In Wilson v. Wilson, for example, the court excluded a party’s out-of-court statement that she would have divorced her former husband if she had known about his allegedly unauthorized transfers of assets to a revocable living trust.[38] Further, an expression of a person’s state of mind that suggests forward-looking intent may be admissible to prove that the person later acted in accordance with the statement, but it would not be admissible if offered to support backwards-looking inferences about past actions or events.[39] The defendant in United States v. Miller came up against this limitation when he unsuccessfully tried to admit his own statement as evidence of his earlier state of mind.[40] Approximately two hours after making a confession to federal agents, he told another agent that he was uncertain whether or not he had admitted to unlawful conduct during his earlier interview. He sought to offer this later statement at trial as evidence of his fatigue and confusion from being questioned and to support an argument that his prior admission was unreliable. The court excluded the statement, holding that the passage of time was too great between his statement of confusion and his earlier admission. The gap in time gave the defendant an opportunity to fabricate his explanation, creating a risk that it misrepresented his state of mind at the time he made his earlier admission.[41]

Because statements offered to establish a party’s own state of mind are intrinsically self-serving, they also carry added suspicion regarding trustworthiness. The rule itself is silent on this point, but courts have split on whether statements that otherwise fit the exception should be excluded based on concerns over the declarant’s candor.[42] In United States v. Di Maria, the Second Circuit held that courts cannot exclude a statement that fits within the state-of-mind exception on the basis that it is self-serving. The defendant in Di Maria sought to admit a statement he made to law enforcement at time of his arrest to establish his belief that cigarettes in his possession were bootleg rather than stolen. The court disregarded the government’s contention that the defendant’s statement was “an absolutely classic false exculpatory statement,” explaining that its truth or falsity was for the jury to decide. It concluded that admission of the defendant’s statement was particularly important, however suspect it may be, “when the government is relying on the presumption of guilty knowledge arising from a defendant’s possession of the fruits of a crime recently after its commission.”[43]

The Second Circuit’s reasoning in Di Maria has not been universally adopted. In United States v. Cianci, for example, the First Circuit affirmed exclusion of the defendant’s taped statements offered pursuant to Rule 803(3) based in part on an apparent lack of trustworthiness.[44] The defendant, former Mayor of Providence, Rhode Island, had been charged with more than three dozen counts related to an alleged public corruption scandal. During the course of the investigation, the defendant spoke to an undercover agent posing as a businessman who had contacted him to request a city contract. Referring the agent to another person in his administration, the defendant stated that “[n]o one will ask you for a thing” and “[if] anybody does . . . I’ll . . . have him arrested.”[45] The defendant argued that his statements, made during the period of time the charged conduct allegedly took place, reflected his state of mind and were admissible to prove his intolerance for corruption and his lack of criminal intent. The trial court excluded the statements, concluding that they applied at least in part to past acts of the defendant’s administration and were “to a large extent ‘self-serving’ attempts to cover tracks already made.”[46] The court’s finding that the statements were not wholly contemporaneous with the conduct at issue was central to its determination that the statements were unreliable and should be excluded. In affirming the decision, the appellate court notes that “[s]uch observations are well-established grounds for non-admission.”[47]

Because email is such a prevalent form of communication in our world today, it can be a great resource for establishing an individual’s intent or for challenging circumstantial evidence of a culpable state of mind. Even with the limitations imposed on admissibility pursuant to Rule 803(3), email correspondence may offer a means for explaining a client’s actions and for helping jurors construct a narrative that supports a more favorable theory of the case.

Point Counterpoint

Every truth has two sides; it is as well to look at both, before we commit ourselves to either. – Aesop

The exceptions described above allow for the affirmative presentation of email evidence, but evidence entered by an opposing party can also provide a trigger for admission of otherwise inadmissible hearsay. A party may, for example, introduce prior consistent statements to rebut cross examination that suggests the witness is providing false or misleading testimony.[48] Alternatively, admission of a written or recorded statement by one party may allow for introduction by an opposing party of another part of the same statement or another written or recorded statement “that in fairness ought to be considered at the same time.”[49] When damaging email evidence is offered by an adverse party, these rules can provide effective means for giving the fact-finder a fuller picture and putting harmful evidence into context.

The first of these is Rule 801(d)(1)(B), which allows for admission of prior consistent statements. It applies when a witness is impeached on cross examination, raising questions about the credibility of their testimony. Counsel can then offer evidence regarding out-of-court statements made prior to the time that the supposed motive to lie arose to corroborate the witness’s in-court testimony.[50] Importantly, the foundational requirements that the witness is first impeached by an express or implied charge of recent fabrication or improper motive and that the prior statement was made before the existence of the motive to fabricate are strictly applied.[51] When these situations do arise, emails can provide powerful documentary evidence that not only restores a key witness’s credibility but also puts before the fact-finder evidence that may not otherwise be admissible.

Beneficial email evidence may also be admitted pursuant to the “opened door” rationale.[52] Though often confused with Rule 801(d)(1)(B), it is a separate but related doctrine that allows a party to introduce an entire out-of-court statement once an adversary introduces only a portion for purpose of impeachment.[53] This doctrine applies to both written and oral out-of-court statements offered as evidence at trial. Thus, for a witness impeached with a prior inconsistent statement, it is sufficient that the reminder of the document or statement from which the impeachment evidence was drawn has “significant probative force bearing on credibility apart from mere repetition” and “place[s] the inconsistencies . . . in a broader context, demonstrating that the inconsistencies were a minor part of an otherwise consistent account.”[54] unlike Rule 801(d)(1)(B), however, the witness need not be impeached “by an express or implied charge of recent fabrication or improper motive.”[55] Thus, an entire email chain may be admissible if an opposing party uses only a portion for an impeachment purpose, thereby creating a misimpression regarding its significance.[56] An “opposing party may not pick and choose among prior statements to create an appearance of conflict and then object when this appearance is rebutted by means of a fuller version of the same prior statements.”[57] Of course, only the remaining portion of the statement that clarifies or provides necessary context for the portion used for impeachment is admissible pursuant to the opened door rationale. Any other portion would only be admissible if it fit within another exception or if relevant for a purpose other than to prove the matter asserted.[58]

One final method for responding to an opponent who enters only a portion of an email into evidence is through the principle of completeness.[59] Admissibility pursuant to the principle of completeness is based on the “misleading impression created by taking matters out of context [and] the inadequacy of repair work when delayed to a point later in the trial.”[60] “When one party has made use of a portion of a document, such that misunderstanding or distortion can be averted only through presentation of another portion, the material required for completeness is ipso facto relevant . . . .”[61] This rule functions similarly to the opened door rationale but differs in a few important ways. First, it is not limited to evidence offered for purposes of impeachment. Second, it can only be used for admission of written or recorded statements—a difference that does not affect admissibility of email evidence. Finally, courts will not generally admit evidence pursuant to the principle of completeness if it is otherwise inadmissible hearsay.[62] However, there is some authority to suggest that this limitation should not be strictly applied.[63] As the court in United States v. Sutton explains, “[the principle of completeness] can adequately fulfill its function only by permitting the admission of some otherwise inadmissible evidence when the court finds in fairness that the proffered evidence should be considered contemporaneously.”[64]

Only through careful analysis of an opponent’s exhibits, and a deep understanding of how they fit into the case as a whole, can counsel take full advantage of these exceptions to the hearsay rule. It is not enough to prepare only one’s own presentation of evidence and witnesses. Counsel must also know what to expect from the opposition. By fully preparing, counsel can avoid missing an opportunity for getting helpful and otherwise inadmissible email evidence into jurors’ hands and putting what may be construed as harmful evidence into a favorable context.

Conclusion

Because of the steady rise in the use of email and other electronic correspondence in our society, email evidence is becoming increasingly prevalent in the world of litigation. Trial counsel must devote considerable time and resources reviewing this data and analyzing its potential uses at trial. Getting an early start on what can be a monumental amount of information is essential, and identifying key email evidence is only the first step. When faced with a client’s embarrassing or harmful emails, it can be particularly important to analyze and understand how the client’s helpful email evidence may be admissible to place it into context. A firm grasp of the rules that apply to email evidence is vital for preparing a successful case and overcoming the so-called “self-serving” hearsay objection.

 


[1] Credit to Toni Berres-Paul, Professor of Legal Analysis and Writing, at Lewis & Clark Law School.
[2] Sharon D. Nelson & John W. Simek, Churn That Bill, Baby! Overbilling in Law Firms, Law Practice Magazine, September/October 2013.
[3] Id.
[4] Molly McDonough, DLA Piper: ‘Churn that bill’ email was ‘inexcusable effort at humor’, ABA JournaL, Mar. 27, 2013, http://www.abajournal.com/news/article/dla_piper_churn_that_bill_email_was_inexcusable_ effort_at_humor.
[5] Matthew Goldstein, 4 Accused in Law Firm Fraud Ignored a Maxim: Don’t Email, the New York Times, Mar. 6, 2014, http://dealbook.nytimes. com/2014/03/06/former-top-leaders-of-dewey-leboeuf-are-indicted.
[6] Id.
[7] Bernard Vaughan, Former Dewey Law Firm Leaders Ask Judge to Dismiss Criminal Case, Insurance Journal, July 15, 2014, http://www.insurancejournal.com/news/east/2014/07/15/334582.htm.
[8] Id.
[9] See Fed. R. Evid. 801(d)(2). Parallel citations in the Oregon Rules of Evidence to the Federal Rules of Evidence cited in this article can be found at ORS 40.010 et seq.
[10] See Fed. R. Evid. 804(b)(3).
[11] See Williamson v. United States, 512 U.S. 594 (1994).
[12] See Wright v. Swan, 261 Or. 440, 447–48 (1972).
[13] Id. at 451.
[14] Fed. R. Evid. 802.
[15] See Chambers v. Mississippi, 410 U.S. 284, 298 (1973).
[16] For purposes of this article, it is assumed that the proponent of the email evidence is able to first authenticate it. Federal Rule of Evidence 901(a) requires only “evidence sufficient to support a finding that the item is what the proponent claims it is.” An email may be authenticated by reference to its “appearance, contents, substance, internal patterns, or other distinctive characteristics.” Fed. R. Evid. 901(b)(4).
[17] Fed. R. Evid.803(6).
[18] See Monotype Corp. PLC v. Int’l Typeface Corp., 43 F.3d 443, 450 (9th Cir. 1994).
[19] United States v. Miller, 830 F.2d 1073, 1077 (9th Cir. 1987).
[20] Monotype Corp. PLC, 43 F.3d at 450.
[21] Id.
[22] See 4 Christopher B Mueller & Laird C. KirkPatrick, Federal evidence § 8:79 (4th ed. 2014) (citing Monotype Corp. PLC for its conclusion that emails not “adapted to permanent and more systematic recordkeeping purposes” do not satisfy the “regular practice” requirement of the rule).
[23] Rogers v. Oregon Trail Electric Consumers Cooperative, Inc., 2012 U.S. Dist. LEXIS 65883, *24–27 (D. Or. May 8, 2012) (citing In re Oil Rig “Deepwater Horizon”, 2012 U.S. Dist. LEXIS 3406 (E.D. La. Jan. 11, 2012)).
[24] Id.
[25] Id. at *27–28.
[26] Id. at *23–24 (citing cases in the Oregon and California district courts).
[27] Volterra Semiconductor Corp. v. Primarion, Inc., 2011 U.S. Dist. LEXIS 102295, *22 (N.D. Cal. Sept. 12, 2011).
[28] Fed. R. Evid. 803(6)(e).
[29] See e.g., United States v. Olano, 62 F.3d 1180, 1205–06 (9th Cir. 1995).
[30] Fed.R. Evid. 803(3); see also Leelanau Wine Cellars, Ltd. v. Black & Red, Inc., 452 F. Supp. 2d 772 (W.D. Mich. 2006) (admitting email evidence to establish the declarant’s confusion).
[31] United States v. Ponticelli, 622 F.2d 985, 991 (9th Cir. 1980) overruled on other grounds by United States v. Bright, 730 F.3d 1255 (1984); United States v. Emmert, 829 F.2d 805 (9th Cir. 1987).
[32] Ponticelli, 622 F.2d at 991.
[33] See id. (noting that a declarant “presumably knows what his thoughts and emotions are at the time of his declarations”).
[34] See Eleanor Swift, Narrative Theory, FRE 803(3),and Criminal Defendants’ Post-Crime State of Mind Hearsay, 38 seton haLL L. rev. 975, 980 (2008).
[35] Id. at 983–84 (citing Justice Souter’s opinion in Old Chief v. United States, 519 U.S. 172 (1997)). In Old Chief, the Court discusses the trial court’s role in making evidentiary rulings and the importance of “an appreciation of the offering party’s need for evidentiary richness and narrative integrity in presenting a case.” 519 U.S. at 183.
[36] Fed. r. evid. 803(6)(e) (exception for statements that relate “to the validity or terms” of a declarant’s will); United States v. Sayakhom, 186 F.3d 928, 937 (9th Cir. 1999) (holding defendant’s “attempt to introduce statements of her belief (that she was not violating the law) to prove the fact believed (that she was acting in good-faith) is improper”).
[37] See e.g., Wilson v. Wilson, 224 Or. App. 360, 365–66 (2008).
[38] Id.
[39] Shepard v. United States, 290 U.S. 96, 104–06 (1933); United States v. Miller, 874 F.2d 1255, 1263–65 (9th Cir. 1989).
[40] Miller, 874 F.2d at 1264.
[41] Id.
[42] Compare United States v. Di Maria, 727 F.2d 265 (2d Cir. 1984) (noting that only the business records and catch-all exceptions expressly include express language regarding trustworthiness) with United States v. Cianci, 378 F.3d 71 (1st Cir. 2004) and United States v. Naiden, 424 F.3d 718 (8th Cir. 2005).
[43] Di Maria, 727 F.2d at 270–72.
[44] Cianci, 378 F.3d at 105–07.
[45] Id. at 105.
[46] Id. at 106.
[47] Id. at 106–07.
[48] Fed. R. Evid. 801(d)(1)(B).
[49] Fed. R. Evid. 106.
[50] United States v. Collicott, 92 F.3d 973, 979 (9th Cir. 1996).
[51] Id. (citing Tome v. United States, 513 U.S. 150 (1995)).
[52] Id. at 979–80; see also United States v. Payne, 944 F.3d 1458, 1471, n. 12 (9th Cir. 1991).
[53] Collicott, 92 F.3d at 980, n. 3.
[54] Payne, 944 F.3d at 1471 (internal quotation omitted).
[55] Collicott, 92 F.3d at 980, n. 5 (listing five main forms of impeachment: (1 prior inconsistent statements; (2) bias; (3) attacking witness’s character for truthfulness; (4) attacking witness’s perception or memory; and (5) contradicting witness’s testimony).
[56] Counsel should be mindful that email chains often contain hearsay within hearsay. Each layer of hearsay must independently fit within a hearsay exception to be admissible. Fed. r. evid. 805.
[57] See Collicott, 92 F.3d at 980–81 (quoting United States v. Tarantino, 846 F.2d 1384, 1411 (D.C. Cir. 1988)).
[58] Id. at 981, n.8.
[59] Fed. r. evid. 106.
[60] Id., Advisory Committee Notes.
[61] Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988).
[62] Collicott, 92 F.3d at 983.
[63] Id. (citing United States v. Sutton, 801 F.2d 1346 (D.C. Cir. 1986)).
[64] Sutton, 801 F.2d at 1368.


The Juror as Audience: The Impact of Non-Verbal Communication at Trial

Some of the most significant evidence presented at trial is not governed by the rules of admissibility and may be received by jurors without counsel even being aware of its presentation. Years ago I served as a juror in a three-week trial. I was struck at the time by the extent to which I was drawn to and distracted by the non-verbal, non-testimonial information conveyed each day during the proceeding. I found myself observing not only the participants in the proceeding itself but also the spectators in the gallery. I remember taking notice of one testifying expert who returned most days to watch the trial unfold. On days he failed to show up, I wondered if that day’s testimony was less important.

During my years as an advocate, I have often been reminded that jurors are taking in this kind of information. Following one trial in which my client received a favorable verdict, several jurors later told me they had observed that I had been ill during the course of the trial. Notwithstanding my best efforts to disguise my symptoms, the jurors picked up on how I was feeling. They recalled being concerned about how my illness was impacting me and appreciated my efforts to appear each morning for court.

In another case, I sat across from an attorney who flamboyantly emphasized certain points he argued by wadding up his notes and tossing the crumpled paper into a waste basket in true basketball fashion. I found out later that his theatrics amused the jurors; they even spent time imitating him during their deliberations. His efforts to impress, however, distracted from his argument. And although he demonstrated a flair for the theatrical, he failed to win his case.

Jurors are sworn to decide cases based solely on the evidence presented and the application of the law to the evidence. Yet, they are exposed daily, both inside and outside the courtroom, to so much more information than is admitted into the record. As illustrated by the events described above, jurors are impacted in some ways by litigants’ behavior, comportment and other non-verbal communication. How much these factors actually affect jury verdicts is unknown, nevertheless one should be mindful that jurors notice. For example, following a recent lengthy trial, jurors commented to the court that they felt some of the parties were not paying attention to witnesses’ testimony if the litigants did not believe the testimony was relevant to their case. This trial reminded me of the dynamic effect non-testimonial information has on jurors and triggered my interest in exploring the impact of non-evidentiary information in courtrooms. By understanding the different ways non-verbal information is communicated, trial counsel can optimize its impact in their own presentation and will know when to object to certain forms of non-verbal communication that could prejudice the client.

Below is a synthesis of information gathered from research scientists, jury consultants and courts who have examined the impact of non-verbal communications on jurors. This article also addresses the court’s role in safeguarding against forms of non-verbal communication that may prejudice a litigant and counsel’s role in actively managing the effect of these potentially powerful forms of communication.

What Is Non-Verbal Communication?

When the eyes say one thing, and the tongue another, a practiced man relies on the language of the first. – Ralph Waldo Emerson

Jurors are generally instructed to consider only evidence (i.e., testimony and exhibits) when deciding a case.[1] Yet, the courtroom is not a laboratory in which jurors scientifically evaluate evidence in a sterile environment.[2] The trial process boils down to formally introduced evidence and argument mixed with a variety of non-verbal communication, which may at times yield unpredictable results. Model jury instructions capture this dynamic with regard to the non-verbal component of witness testimony, noting that the assumption that a witness’s testimony is truthful may be overcome by the manner in which the witness testifies and nature and quality of that testimony.[3] The model instructions, however, do not address the messages that are conveyed to jurors through various forms of non-verbal communication by those who are not witnesses or by witnesses when they are off the witness stand.

One of the first steps in understanding and managing the effect of non-verbal communication on jurors is to consider the jurors themselves. Prior to being called for service, most jurors have never before set foot into a courtroom. They come from all walks of life and often arrive with an expectation that their experience in court will mirror scenes from popular movies and television. With few exceptions, trial is rarely that exciting or dramatic. Nevertheless, trial consultant, Tom Capps, notes that “jurors often try to uncover some of the drama they expected by closely observing all of the participants in the courtroom.”[4] Through even the most subtle non-verbal cues, jurors attempt to discover a hidden narrative that exists in the shadows behind the testimony of witnesses and other evidence presented in the case.[5]

Non-verbal communication is most commonly recognized as “body language.” Eye contact, facial expressions, gestures, and posture all convey information to an observant juror. Other forms of non-verbal communication, such as dress and appearance, the relative proximity of counsel and litigant to the jury, paralanguage (speech rate, volume, variations in pitch), and the presence of spectators in the gallery, may also effect jurors’ impressions.[6] The use of eye contact, higher vocal volume and synchronized hand gestures are a few factors that have been associated with persuasiveness and confidence. Conversely, speaking in a monotone and frequent self-touching are signals that the speaker is less assured. Of course, the relative weight and impact of these different forms of non-verbal communication vary as they are measured through the subjective lens of individual jurors.[7]

The impact of non-verbal communications has been studied in the context of demonstrative exhibits. When used in personal injury cases or criminal prosecutions involving violent crimes, research shows that graphic images contribute to increased damage awards and higher conviction rates.[8] In a scientific study on this effect, sample jurors were given a product liability case package in which an infant’s hand had been severely burned by a steam vaporizer—the facts slightly and intentionally skewed in favor of the defense. The jurors were separated into three groups: the first received detailed descriptions of the injury but no photos, the second received graphic photos taken immediately after the incident, and the third received both the injury photos as well as post-recovery photos.[9] In both groups shown the graphic images of the plaintiff’s injury, jurors awarded significantly higher non-economic damages.[10] Interestingly, the influence of the photos on jurors’ determination of liability was also dramatic: 58% of jurors in the group shown no photos found in favor of the defendant, 51% of jurors shown the graphic photos found in favor of the plaintiff; and 60% of jurors shown both sets of photos returned defense verdicts.[11] These results not only confirm the influence graphic imagery has on jurors’ perceptions when assessing damages, but also its improper effect on liability verdicts.

Jurors Have a Virtual Backstage Pass

In the theatrical works we love and admire the most, the ending of the drama generally takes place offstage. – Gustav Mahler

The difference between the formal presentation of evidence and information communicated through non-verbal means can be understood in terms of a theater performance. Witness testimony is part of the performance given “on stage,” while non-verbal communication of information occurs through jurors’ “offstage observations.”[12] Unlike a traditional theater setting where actors waiting offstage are unseen by members of the audience, in the courtroom, litigants and counsel cannot hide backstage when it is not their turn in the limelight. Jurors have a virtual pass to observe the actors backstage and are able to view each of the players throughout the course of the proceeding.[13] Nor are these offstage observations limited to the courtroom itself; jurors may also be affected by observing trial actors’ behavior in elevators, hallways, restrooms and even outside the courthouse.[14]

The effects of these so-called offstage observations vary among individual jurors. For example, studies on the effect of a defendant’s physical attractiveness on jurors indicate more favorable outcomes for those perceived as attractive.[15] Yet, physical attractiveness being a distinctly personal preference may not impact any one juror in the same way.[16] Similarly, different jurors may interpret a defendant’s tendency to fidget—often an indication of anxiety or boredom—as communicating the worry of the innocently accused or the idleness of a guilty mind simply waiting for the inevitable guilty verdict.[17]

In a recent study published in the journal Law & Human Behavior, researchers attempted to quantify the influence of offstage observations on individual jurors and whether they have a carry-over effect on group deliberations.[18] The study found that jurors’ discussions about offstage observations had little measurable effect on the trial outcomes.[19] This conclusion is supported by the fact that merely 1.5% of juror discussion topics across all 50 cases in the study involved offstage observations.[20] Further, the majority of jurors’ valenced remarks (i.e. favoring one party over the other) focused negatively on plaintiffs, yet less than one-quarter of these cases resulted in a defense verdict.[21] Although the study found that offstage observations discussed by jurors during deliberations had little effect on verdicts, the study did not attempt to evaluate nor reach a conclusion regarding the impact of observations that were not openly discussed among jurors.

Another interesting discovery from this study was jurors’ keen awareness of attempts by trial participants, particularly litigants, to “perform for the jury through displays of strong emotion or back-channel comments about witness’s testimony.”[22] Jurors’ critical remarks about these types of efforts highlight the common misconception that jurors are gullible and easily fooled.[23] The study’s authors also note that because many criminal defendants elect not to testify at trial, jurors in criminal trials may focus on and rely more heavily on offstage observations.[24] What is not known or quantified is the extent of the impact these observations may have had on individual jurors or how the observations of one juror may shape the attitudes of other jurors. However, the study established that jurors are exposed to and consider far more information throughout the trial process than what is admitted as evidence.

All Rise

Power is the most persuasive rhetoric. – Friedrich Schiller

Non-verbal cues from judges can have a profound influence on jurors. Of all the courtroom actors, the person who holds the most power, and whose influence on jurors may be greatest, is the judge.[25] Part of the reason judges’ potential influence on jurors is so great is based on what has been called the Rosenthal Effect.[26] The Rosenthal Effect, named after psychology professor and researcher Robert Rosenthal, occurs when individuals modify their behavior to conform with what they perceive to the expectation of the person in authority.[27] In the courtroom, that person is the judge. The trial judge guides jurors on procedures they must follow and manages the jurors throughout the proceeding.

One of the best places for counsel to actively reduce the potential influence of a trial judge’s bias is during the reading of the jury instructions. Researchers have found that the use of model instructions, which are often formally worded and confusing to a lay person, lead jurors to rely on non-verbal cues from the judge more so than the use of modified instructions that are more easily understood.[28] By making an effort to simplify jury instruction, counsel can aid jurors in understanding their duties at trial and minimize the risk that they will lean on their perceptions of the trial judge’s biases in reaching their verdict.

Of course, even most well-intentioned and competent trial judges are times unable to prevent their non-verbal behavior from showing how they feel about a party or counsel and thereby unwittingly reveal a bias. In State v. Mains, the Oregon Supreme Court considered the effect of a trial court judge’s seemingly biased approach to questioning a defense expert during cross-examination.[29] Recognizing jurors’ sensitivity to both words and non-verbal communications of trial court judges, the court notes that excessive intervention by a trial judge “diminishes the effectiveness of the adversary system and may deprive a litigant of his right to an impartially administered trial.”[30] Indeed, Oregon trial court judges are prohibited from instructing jurors or making comments “with respect to matters of fact.”[31] Notably, the Federal Rules contain no similar restriction.[32]

The judge’s role is meant to be one of impartiality.[33] Indeed, the court must remain unbiased not only in its actions, but must avoid even the appearance of prejudice through the use of language or conduct.[34] Yet, even the most careful judges are subject to their own human nature. Often having access to much more information than what is presented to jurors, trial judges may draw their own conclusions about testifying witnesses or the weight of the evidence. Armed with this information, a judge is at times unable to avoid transmitting subtle cues to jurors through non-verbal behavior as evidence is presented. The Alabama Supreme Court in Allen v. State acknowledged and accepted that judges transmit information to jurors when it wrote the following: “The trial judge is a human being, not an automaton or a robot. He is not required to be a Great Stone Face which shows no reaction to anything that happens in his courtroom.”[35]

For this reason, trial counsel should observe the court’s manner and demeanor and, if necessary to preserve the fairness of the proceeding, make timely objection to any expression of bias against her client. Such an objection should be made only when counsel believes the bias will seriously prejudice the client’s rights since counsel’s objections to comments or expressions of the trial court might alienate the judge and possibly the jury. When objecting, counsel should be sure to include a detailed description of the conduct at issue to be sure that the nuances of the court’s non-verbal acts are fully and fairly considered on appeal.[36] Counsel should also request that the court provide a curative instruction directing the jurors to disregard the court’s actions. Success on appeal depends on a showing that the court’s conduct created “such a likelihood of bias or an appearance of bias that the judge was unable to hold the balance between vindicating the interest of the court and the interests of the accused.”[37]

Dress for Success

Clothes make the man. Naked people have little or no influence on society. – Mark Twain

A client’s physical appearance both on and off the witness stand conveys a great deal to jurors. Similarly, counsel’s attire can draw the attention of both jurors and the court, though not always in the best way. Counsel should wear “comfortable, well-fitting clothes that are in good repair” and avoid clothing or hairstyles that are too distracting.[38] As a general matter, all persons attending court must be dressed appropriately.[39] Within this restriction, counsel has broad latitude in advising clients how best to present themselves.

In her article on the theater of the courtroom, Loyola Law School professor Laurie L. Levenson discusses how the defendants’ attire and demeanor during the 1993 trial of the infamous Menendez brothers influenced jurors’ impressions of the accused.[40] Lyle and Erik Menendez were ultimately convicted of the brutal murder of their parents, but not before jurors in their first trial could not agree whether to convict them of murder or manslaughter and failed to reach a verdict.[41] The two brothers, who were in their early twenties at the time of the first trial, appeared in court wearing crewneck sweaters, button-down shirts and slacks. The outfits, which gave them an appearance of youthful innocence compared with a more formal suit and tie, were discussed by jurors during deliberations.[42] In a book recounting her experience as a juror in the first Menendez trial, Hazel Thornton recalled jurors’ recognition that the outfits, along with defense counsel’s reference to the defendants as “boys” and her maternal behavior in court, were intended to elicit sympathy from jurors.[43] Ms. Thornton’s account illustrates jurors’ awareness of so-called “offstage observations” and the effect it has on jurors’ consideration of formally admitted evidence, though in that case, awareness by some jurors that they were being manipulated was not enough for a conviction.

I personally experienced the effect a client’s attire can have on jurors in a case I tried as a young, inexperienced lawyer. My client was facing rape and kidnapping charges and I wanted to soften his appearance. I had him appear for court wearing a sweater, but the sweater fit him too tightly and highlighted his muscular physique. I only noticed this unintended effect on his appearance when I called him to the stand to testify. Rather than appearing benign and harmless, the too-tight ribbed sweater made him look strong and physically powerful and sent the wrong message to jurors.

In a practice not endorsed by this author, a criminal defendant’s use of nonprescriptive eyeglasses while appearing in court is another example of how appearance can affect jurors’ perceptions.[44] While eyeglasses are primarily worn by persons with vision defects, their use as a fashion accessory is on the rise.[45] Characterized as the “nerd defense,” the use of unnecessary eyeglasses plays on the commonly held stereotype that people who wear eyeglasses have a high intelligence.[46] Some attorneys assert that the use of eyeglasses is highly effective for conveying an appearance of innocence.[47] However, it is important to note that this positive influence on jurors’ perception may be limited to cases involving violent crimes. In white-collar crime cases, defendants wearing eyeglasses were more often perceived as guilty.[48]

Further, the practice of outfitting a client in spectacles in an effort to influence jurors’ perceptions can backfire. In a recent and highly publicized case in Washington, D.C., Orlando Carter and four other men were charged with multiple counts of murder for their alleged roles in what was described as the South Capitol Street Massacre.[49] Each of the defendants arrived for trial wearing noticeably large-framed and heavy-rimmed glasses.[50] Prior to trial, only one of the five defendants had ever appeared during pretrial hearings wearing eyeglasses.[51] By eliciting testimony that witnesses had never seen the defendants wearing glasses in the past, prosecutors exposed the defendants’ attempt to manipulate jurors’ perceptions—a revelation that may have contributed to the guilty verdict.[52]

The use of nonprescriptive eyeglasses to influence jurors’ perceptions also raises an ethical question. Under the Oregon Rules of Professional Conduct, a lawyer is prohibited from engaging “in conduct involving dishonesty, fraud, deceit or misrepresentation . . . .”[53] Advising a client to wear unnecessary eyeglasses may be nothing like rolling a perfectly healthy plaintiff into court in a wheelchair in a personal injury claim, yet both involve the use of a prop designed to influence how the client is perceived. Certainly the comparison is more apt in a criminal case where the defendant’s identity is at issue.[54]

Courts also recognize the impact a defendant’s physical appearance has on jurors’ evaluation of guilt or innocence. For example, the United States Supreme Court has held that the use of visible shackles on a defendant undermines the fundamental presumption that a criminal defendant is innocent until proven guilty.[55] Only in cases where the government can show a substantial need based on safety concerns or risk of escape can a defendant be compelled to appear before jurors while visibly shackled.[56] However, the Court is careful to distinguish between a defendant appearing before jurors in shackles, which it describes as “inherently prejudicial,” and a defendant who is forced to appear in prison garb.[57] Rather than adopt a “mechanical rule vitiating any conviction, regardless of the circumstances,” in which a defendant is compelled to appear in prison clothes, the Court recognizes circumstances in which a defendant may elect to appear in prison attire hoping to elicit sympathy.[58] In these cases, a defendant’s failure to raise a timely objection negates the compulsion necessary to establish a constitutional violation.[59]

As the above cases illustrate, a client’s appearance can have a real and profound impact on how jurors perceive the client. Assisting clients to cultivate an image that meshes with the narrative counsel presents at trial is an effective tool for connecting with jurors in a positive way and helps to make a favorable impression. For example, a civil plaintiff’s conservative dress and conduct at trial may be effective in conveying to jurors that he is a sympathetic victim. Similarly, a criminal defendant’s appearance and demeanor might convey a message of contrition or suggest that he is incapable of committing the crimes for which he has been charged. However, counsel should exercise restraint when advising clients on how to appear in court and remain cognizant of jurors’ ability to see through an obvious charade.

May I Sit Here?

Where you stand depends on where you sit. – Nelson Mandela

Just as a person’s physical appearance can play an important role in how he is perceived, a party’s relative proximity to the jury box is also important.[60] Anthropologist Edward T. Hall describes four zones of space that exist around a person: (1) intimate space extending out only eighteen inches, (2) personal space stretching out to four feet, (3) social distance reaching out twelve feet, and (4) public distance in the space beyond.[61] Hall further describes social distance as the space used by “people who work together,” while people who are at a public distance are “outside the ‘circle of involvement.’”[62] In this sense, the party sitting nearest the jury box is more likely to be within the social distance, giving him a distinct advantage in making a personal connection with jurors over the party sitting further away.[63]

In federal criminal trials, the prosecution generally sits at counsel table closest to the jury box. Often, government investigators and experts (e.g. FBI or IRS agents) sit just behind the prosecution. As a result, the entire prosecution team is seated in the immediate vicinity of jurors, or as Hall describes in his work, inside the social distance zone. By occupying this space, prosecutors enjoy a certain intimacy and connection with jurors.

Regardless of this practice, seating arrangements in the courtroom are within the trial judge’s discretion.[64] When challenged by defense attorneys, the most common objections are that the state’s burden of proof entitles it to the advantage of being closer to jurors or that the prosecution must be positioned between a defendant and jurors as a bulwark to protect their physical safety.[65] Indeed, the government made this objection when an attorney for Kenneth Lay, former head of Enron Corporation, requested that he and his client be seated at the table nearest to the jury during his high profile case in Texas District Court.[66] Describing his decision as guided by “fairness and common sense,” Judge Simeon Lake resolved the issue by allowing each party to sit at the table closer to the jury when presenting their respective cases.[67] Custom and practice alone should not be the sole basis for denying a litigant’s preferred seating in court.

Conventional wisdom tells us that jurors are more likely to reach a favorable verdict for your client if they have reason to like him. By taking the table nearer to jurors, counsel places a client within social distance to jurors, thus making it more likely that jurors will be able to observe the client’s non-verbal cues and relate to them on a more personal level. Of course, when considering seating arrangements at trial, counsel should be aware of the idiosyncrasies of the client. The potential advantage of being closer to the jury may at times be outweighed by a client’s inability to maintain decorum in court. Added distance from jurors in those cases may help reduce unwanted scrutiny.

Ask the Audience

The audience is the best judge of anything. They cannot be lied to. Truth brings them closer. A moment that lags – they’re gonna cough. – Barbara Streisand

Spectators in the gallery can also influence jurors.[68] With few exceptions court proceedings are open to the public. Because jurors are insulated by the court—instructed not to speak to anyone about the evidence as it unfolds—spectators in the gallery can be a barometer by which they gauge their own responses to witness’s testimony and counsels’ arguments. Jurors, especially those with no prior experience with court procedure, may expect the trial process to mirror their favorite legal-drama. A full gallery of spectators tends to meet those expectations, infusing the courtroom with energy and causing jurors to pay more attention. Conversely, an empty gallery may leave jurors feeling abandoned, making it more likely they will simply tune out. However, the presence of spectators also increases the potential for jurors to be distracted and unduly influenced. In certain circumstances, these distractions may be grounds for objection when there is an argument that trial spectators’ influence on jurors is prejudicial.

In Holbrook v. Flynn, a leading case on the issue, the Court considered a defendant’s challenge to the presence of four uniformed and armed state police troopers seated in the gallery directly behind the defendant.[69] The Court disagreed that the troopers’ presence created an inference of guilt and was inherently prejudicial, holding that the proper question when addressing challenges to courtroom arrangements is whether “an unacceptable risk is presented of impermissible factors coming into play.”[70] The presence of spectators at trial wearing buttons in support of crime victims has been contested on similar grounds.[71] In Norris v. Risley, the defendant, who had been charged with kidnapping and rape, successfully argued that the presence of female spectators wearing buttons with the words “Women Against Rape” was “‘so inherently prejudicial as to pose an unacceptable threat’ to the [defendant’s] right to a fair trial.”[72] Here, the court concluded the buttons “tainted [the defendant’s] right to a fair trial both by eroding the presumption of innocence and by allowing extraneous, prejudicial considerations to permeate the proceedings without subjecting them to the safeguards of confrontation and cross-examination.”[73]

To establish, however, that visible messages or symbols worn by trial spectators present an unacceptable risk of prejudice is a high burden. In Pachl v. Zenon, the Oregon Appeals Court held that buttons worn by spectators with the inscriptions “C.V.U.” and “Crime Victims United” were not inherently prejudicial.[74] Unlike the buttons in Norris v. Risley, which “proclaimed public outcry” for a conviction in that particular case, the buttons in Pachl v. Zenon did not create an unavoidable effect on jurors that would cause them to “consider factors other than the evidence and law of the case.”[75]

Outward displays of bias by spectators are clear targets for an objection, but counsel should monitor less obvious non-verbal communication between spectators and jurors as well. One often overlooked example is when a testifying witness returns to the courtroom on days following their appearance on the witness stand. In my experience, jurors’ ability to observe the non-verbal reactions of previously testifying witnesses to subsequent witness testimony or legal argument might have the effect of the witnesses testifying a second time. Yet, this additional “testimony” is given without the opportunity for cross-examination. Counsel should take notice of spectators at trial and be prepared to object to conduct or attire that could result in prejudice.

Conclusion

Jurors are sworn to consider only the evidence and exhibits presented on the record. Thus, trial counsel’s first priority is mastery of the facts and law at issue in the case. Yet, the volume and influence of non-verbal information being communicated both inside and outside the courtroom have an undeniable effect on how jurors process and interpret this evidence. By understanding how so-called offstage information is expressed and understood, counsel can increase his own effectiveness and can mitigate the impact of non-verbal cues that could have a negative impact on jurors.

Counsel should consider those elements that are within her direct control. She should dress in a manner that conveys confidence and increases rapport with jurors. When addressing the jury, she should step out from behind the podium or counsel table if allowed, make eye contact and adopt a conversational tone. Counsel should also determine whether it is advantageous to sit closer to the jury. Further, it is also important to understand that many jurors expect that the trial will provide some dramatic moments. Well-placed bits of stagecraft or a timely pause can be effective ways to draw jurors in and meet their expectations.

Equally important, counsel must help clients to make a favorable impression on the jury. Clients should avoid or minimize behaviors that may be construed negatively: eye-rolling, nodding along with a witness’s testimony, smiling or smirking all convey messages to an observant juror. Clients should also avoid frequent asides with counsel and instead write down questions and concerns—taking notes is a visual cue that conveys interest and involvement. Most importantly, be mindful that trial is both physically and emotionally exhausting. Clients may be tempted try to reduce the stress of trial by multi-tasking or simply tuning out. However, a client who appears detached or mentally checked out sends the wrong message to jurors. Clients should make every effort to remain present and in the moment.

Finally, be mindful of others in the courtroom and their potential influence on jurors. Subtle though unintentional cues from the court and the presence of spectators in the gallery can have a profound effect on how jurors interpret evidence and judge the credibility of witnesses. When an offstage source of non-verbal information could result in prejudice, timely objection may curtail its effect on jurors and will at a minimum preserve the objection on the record. Effective trial advocacy requires more than a mastery of the fact and law. By understanding how jurors receive information through non-verbal means, counsel can present a more persuasive case and reduce factors that may negatively impact jurors.

 


[1] See e.g., UCJI No. 10.01.

[2] Laurie L. Levenson, Courtroom Demeanor: The Theater of the Courtroom, 92 Minn. L. Rev. 573, 574 (2008).

[3] See UCJI No. 10.03.

[4] Tom Capps is a trial consultant based out of Woodburn, Oregon.

[5] See Levenson, supra note 2, at 575, n. 11.

[6] Elizabeth A. LeVan, Nonverbal Communication in the Courtroom: Attorney Beware, 8 Law & Psychol. Rev. 83, 83–84 (1984).

[7] Id. at 94–95.

[8] See Bryan Edelman, The Impact of Graphic Injury Photographs on Liability Verdicts and Non-Economic Damage Awards, The Jury Expert: The Art and Science of Litigation Advocacy, Sept. 2009, at 1, 2.

[9] Id. at 3

[10] Id.

[11] Id.

[12] Mary R. Rose, etal., Goffman on the Jury: Real Jurors’ Attention to the “Offstage” of Trials, 34 Law & Hum. Behav. 310, 310 (2010).

[13] Id. at 311.

[14] Id.

[15] See Levenson, supra note 2, at 582.

[16] See LeVan, supra note 6, at 92–94.

[17] See Levenson, supra note 2, at 583.

[18] Rose, supra note 12.

[19] Id. at 318–19.

[20] Id. at 322.

[21] Id. at 318.

[22] Id. at 321–22.

[23] Id. at 322.

[24] Id.

[25]See Andrea M. Halverson, etal., Reducing the Biasing Effects of Judge’s Nonverbal Behavior with Simplified Jury Instructions, 82 J. Applied Psychol. 590 (1997).

[26] LeVan, supra note 6, at 84.

[27] Id.

[28] See Halverson, supra note 25, at 597. The researchers analyzed the two sets of instructions used in their study through computation of a number of readability indexes. These included simple comparisons of words per sentence and the use of passive voice as well as how the instructions scored on the Flesch Reading Ease and Flesch-Kincaid Grade Level tests.

[29] 295 Or. 640 (1983).

[30] Id. at 659.

[31] ORCP 59E.

[32] See Fed. Rules of Civ. Proc. 51; Fed. Rules of Crim. Proc. 30.

[33] See JR 1-101(A); also see State v. Garza, 125 Or. App. 385, 388 (1993).

[34] Garza, 125 Or. App. at 388.

[35] 290 Ala. 339, 342 (1973).

[36] See, e.g., Allen, 290 Ala. at 343.

[37] Garza, 125 Or. at 389.

[38] Kelly Zusman & the Hon. Anna J. Brown, Coture in the Courtroom, Oregon State Bar Bulletin, Aug./Sept. 2013, at 70.

[39] See, e.g., UTCR 3.010(1) (requiring court attendees to dress “so as not to detract from the dignity of court”)

[40] Levenson, supra note 2, at 593.

[41] Id. at n. 105.

[42] Id. at 594, n. 111 (citing Hazel Thornton, Hung Jury: The Diary of a Menendez Juror 111–12 (1995)).

[43] Thornton, supra note 42, at 73–74.

[44] See Sarah Merry, “Eye See You”: How Criminal Defendants Have Utilized the Nerd Defense to Influence Jurors’ Perceptions, 21 J.L. & Pol’y 725 (2013).

[45] Id. at 731 (citing an estimate by the Vision Council that, as of the year 2011, approximately sixteen million Americans wore nonprescriptive eyeglasses solely for the purpose of altering their appearance).

[46] Id. at 733–739 (citing a 2008 study conducted by psychologist Michael J. Brown in which mock jurors found that defendants accused of a violent crime who were depicted wearing glasses appeared less physically threatening than those without glasses and that the mock jurors returned fewer guilty verdicts for those defendants who were depicted wearing glasses).

[47] Debra Cassens Weiss, Jurors less Likely to Convict Defendants Wearing Glasses, Say Lawyers and 2008 Study, A.B.A. J. (Feb. 14, 2011) (quoting attorney Harvey Slovis: “I’ve tried cases where there’s been a tremendous amount of evidence, but my client wore glasses, dressed well and got acquitted”).

[48] See Merry, supra note 44, at 753.

[49] Rahiel Tesfamariam, Lessons from the South Capitol Street Massacre, Washington Post, May 4, 2012, http://www.washingtonpost.com/blogs/therootdc/post/lessons-from-the-south-capitol-street-massacre/2012/05/04/gIQAxucE1T_blog.html.

[50] Merry, supra note 44, at 756.

[51] Id. at 756–57.

[52] Id. at 757.

[53] ORPC 8.4(a)(3).

[54] See Merry, supra note 44, at 761–62.

[55] Deck v. Missouri, 544 U.S. 622, 630 (2005).

[56] Id. at 624.

[57] Estelle v. Williams, 425 U.S. 501, 513, n. 10 (1976).

[58] Id. at 508.

[59] Id. at 512–13.

[60] See Steven Shepard, Should the Criminal Defendant Be Assigned a Seat in Court? 115 Yale L.J. 2203 (2006).

[61] Id. at 2208, n. 30 (citing Edward T. Hall, The Hidden Dimension, 108–22 (1966)).

[62] Id. at 2208–09.

[63] Jeffrey S. Wolfe, The Effect of Location in Courtroom on Jury Perception of Lawyer Performance, 21 Pepp. L. Rev. 731, 769–71 (1994).

[64] See, e.g., Mahon v. Prunty, No. 96-55411, at *2 (9th Cir. Feb. 6, 1997) (unpublished decision) (noting that the trial court did not abuse its discretion by seating the defendant at the table closer to the jury).

[65] See Shepard, supra note 60, at 2204–05, n. 10.

[66] Id. at 2204.

[67] Id. Interestingly, when it came time to present the defense case, Lay and his counsel elected to stay at the far table.

[68] See Thornton, supra note 42, at 47.

[69] Holbrook v. Flynn, 475 U.S. 560, 562–63 (1986).

[70] Id. at 570.

[71] See, e.g., Carey v. Mulsadin, 549 U.S. 70 (2006).

[72] 918 F.2d 828, 830 (9th Cir. 1990) (quoting Holbrook, 475 U.S. 560 at 572).

[73] Id. at 834.

[74] 145 Or. App. 350, 360, n.1 (1996) (en banc).

[75] Id.