Publications: Provide a Little Suspense for Greater Jury Participation

Question: How do you keep someone in suspense? Answer: I’ll tell you in the next issue.

Joking aside, suspense is one of the best ways to get your jury involved in your case, encourage active participation, and keep the wonderful jurors alert during your trial presentation. The next time you’re in court, don’t just tell them what the evidence will show—spice it up with a little suspense.

“I’ve spent months preparing and you want me to hold back on the punch lines? What will my client think if I leave facts out of my opening?” I have heard comments like that before. Since the age of O.J., nothing is left to the imagination in courtrooms anymore—but to this I reply that the prosecutors left nothing to guesswork. We all know who won.

Suspense is a tool you can use to draw the jury into your case. Suspense novels and movies now constitute a multimillion dollar industry. Why? Because people enjoy suspense. We watch murder movies and read mystery books because we get a thrill from participating in solving the mystery. So resist the urge to tell the jurors what you think, and (selectively) force them to think on their own.

Some lawyers say that the opening statement is a road map to the evidence the jury will see at trial. If you use the road map theory, make it a scavenger hunt. Instead of telling the jury exactly what each witness will say, be less direct—and provide some suspense. Introduce Ms. Smith as a witness—the defendant’s secretary, who has worked with him for more than 10 years. But ask them to wait for Ms. Smith’s testimony. Tell them that once they hear it, they will have no doubt where the defendant was at the time of the murder. Make them try to figure out what Ms. Smith will actually say.

Why not just tell them that she will testify that the defendant was in the office working with her at the time of the murder? There are three reasons:

First, people do not like to be told what to do or think. If the goal of trials was just to get the jury to agree with your proposition, browbeating would be a very effective jury argument technique. The goal of the trial lawyer, however, is not just to get the jury to accept the argument but to adopt the argument as its own. When people are told what to think, they may remember the facts, but they will not believe in them strongly. If they arrive at their own conclusions, on the other hand, it is very difficult to force them to let go of that belief.

Second, leaving some questions unanswered forces the jury to pay attention. As a trial judge told me early in my career after an opening argument, “Save something for closing.” If your opening statement tells the jury everything they will hear during the trial, they have an excuse for tuning out while it’s going on.

Third, suspense lures the jurors into the trial process as active participants. They now have a mystery to solve. They will think about what Ms. Smith may say and the evidence she will present. If you are the prosecutor, they will be waiting for something damaging to come out regarding the defendant. If you are the defense lawyer, they will be waiting for Ms. Smith to save the accused from the prosecution’s case. As the trial unfolds, they will be trying to solve the mystery. When the testimony comes—if you have forecast properly—many of the jurors will already have figured out Ms. Smith’s answer before she gives it. But by this time it will be their own opinion, not yours, of what the evidence showed.

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