Just yesterday morning, in the courthouse cafeteria, I’m sitting with two attorneys when the topic of the Trial Lawyers College comes up. I will return there in August for what will be my third year attending since completing the initial three-week program in 2017.
Trial Lawyers College is an interesting place. It’s a school for lawyers, but you will learn very little—if any—law there. It’s all psychology, and story. Words. You could say that it’s actually all just story: the psychology is just story’s handmaiden.
Psychology—more specifically, psychodrama—is used to get at the heart of a story. Psychodrama, so the story goes (!), uncovers the story which, in some way, is both already there, and waiting to be created.
The attorneys with whom I speak in the cafeteria appear to believe this is a waste of time. They are of the belief that story does not matter much. One issues a “pffft!” to the idea that story matters. The other agrees.
“The facts are far more important than the story. Facts are facts. If you have bad facts, there’s not much you can do about it.” That lawyer chalks up a recent win to the lucky accident of a good fact.
He appears not to realize that he took that “good fact,” that “lucky accident,” and made it the star of a winning story for the jurors. That good fact could have simply sat wherever it was sitting, unnoticed, unhighlighted, unused, had he not fashioned his client’s story around it.
Words matter, because facts are communicated via words. But words matter more because words create facts. (In the beginning….)
String your words together the right way, and you have a compelling story that becomes the truth. It’s no longer just a story: it’s how things are.
Cops get this.
A Science Magazine article I read this morning is mostly about how certain stories can compel, and in the compelling, go awry. Saul Kassin, a psychologist from New York City’s John Jay College of Criminal Justice, has studied the role of story in creating false confessions.
You see, in the beginning, the police wanted an easy way to “solve crimes.” Investigation is hard work. Piecing together facts to tell a story of how something happened, and having that story grounded in some kind of objective reality—that’s a task that takes time, and is sometimes difficult to show beyond a reasonable doubt.
Reasonable doubt—I almost hate to have to remind—is the burden of proof that must be met for convictions.
The Reid Method
But in the 1960s, John Reid, a former Chicago detective—and that should give you a chill right there, if you pay any attention to the stories about Chicago detectives—came up with a novel idea. “What if,” he apparently thought, “we cook up a story, and then work on getting some poor sap to admit to playing the perp part?”
And Reid is famous now for having come up with the eponymous Reid Interrogation Technique, or, as I like to call it, “The Technique for Creating a Crime Story from Nothing.” I call it that because evidence has shown that this is what it tends to do best.
Reid supporters will tell you a story—many stories, actually—that aim at convincing you that what I’m saying is not true. In fact, the Reid website itself says that the technique is “widely recognized as the most effective means available to exonerate the innocent and identify the guilty.”
Until I read that, I had never heard such a thing. A lot of cops think that it’s a great way to get confessions out of guilty people. But I don’t know many others who have investigated the subject—and I mean actually investigated, not just made up a story about the supposed success of Reid’s technique—who believe this.
And I don’t actually think I’ve ever heard a cop say that he uses the technique to “exonerate the innocent,” though it adds a nice touch to the story.
The real goal of the Reid Technique is to obtain a confession. And too often, this technique is used in the beginning of an “investigation.” Cops pretty quickly have an idea—maybe an inchoate story, but usually more fleshed out already in their own minds—that includes who the guilty “perp” is. They like to run with these ideas, because finding facts first, as I already noted, is hard.
But a confession! Confessions don’t just make the world; they make it go ‘round.
A World Confessed Into Existence
Or, as Saul Kassin and other psychologists have discovered, they make the case wrap ‘round the “perp” convinced to confess.
In more recent work, [Kassin] has shown how a confession, true or not, can exert a powerful pull on witnesses and even forensic examiners, shaping the entire trial.
Facts are facts. Until they aren’t. To obtain a conviction, you need a story. And the best way both to write, and to corroborate a story, it turns out, is a confession. Words. Straight from the horse’s mouth. Get your “perp” to tell the story you want him to tell, and that story will let you ride him all the way to prison.
After a confession, alibis are recanted, witnesses change stories, police ignore exculpatory evidence, and forensic scientists reinterpret material. In Huwe Burton’s case, for example, police had caught a neighbor with a history of violence driving the dead mother’s stolen car, but they did not consider him a suspect because Burton had confessed.
I’ve lost count of the number of cases I’ve had where no one was able to identify my client as the person who committed the crime, or crimes, until they learned that he had confessed. Suddenly, facts change. Faces change. My client now looks like the guy.
And then he is the guy.
Moreover, now that my client is the guy, as Kassin notes, “all the other evidence line[s] up to support it.”
And this becomes a huge, sometimes insurmountable, challenge to exonerating someone falsely made the story’s star.
Even when confessions have turned out to be false, appeals courts have ruled that the other evidence is strong enough to support the conviction, Kassin says. “The courts completely missed out that the other evidence was corrupted.”
When the Story is a Lie
This is the struggle for me. I know this is true. I know cops are trained to tell stories, and then find some poor sap, like my client, to play the starring role. Often, I can see the flaws in the story. I see the “facts” that don’t fit. Maybe it’s that I get to know my client—something cops, police, prosecutors, and judges don’t get to do—and I realize that my client could not have committed the crime. Sometimes it’s because, since I decided to doubt the official story, the one contained in cop reports, I hired someone to investigate, and came up with contradicting stories. Gather enough “lucky facts” — to use the moniker one of the Cafeteria Attorneys used — and the cop story stops making sense.
But then there are other psychological factors that come into play. It’s often not enough to poke some holes in the cop story. The original story made sense. There is a strong need for the ironically-named “closure.” (This is why so many people want to hear “the other side of the story”; even though the law does not require it, and for a good reason, the defense does not have to prove innocence.)
Where the actual evidence itself has not already been warped, as in the DNA analyses cited in the Science Magazine story, confirmation bias keeps people from seeing the lucky facts as facts at all. In the beginning was the Word, and the Word was with the Cops, and the Word created the world through their story, beefed up by a false, fabricated, fabulous confession.
A More Compelling, True Story: Arrangement Matters
Their story. They got there first. To get a jury to see things differently, you have to change the world. You have to find better words. You need a more compelling story.
And, yes, it needs to be a true story. Or as true a story as you can make it. It needs to be authentic.
Too often, I fear that I am not a good storyteller.
After all, I couldn’t even get the Cafeteria Attorneys, two respected defense lawyers, to recognize that facts are not just facts. (Until the next day, that is, when I shared what I’ve written here.)
In the end, as in the beginning, facts come with stories attached. And stories are made up of facts.
Speaking of the end brings me back to the beginning. Three years at Trial Lawyers College, learning to find, understand, and tell stories. The psychodramatic techniques—and I’m sorry, but it would take us off-course to explain these; maybe another post—learned there help me to find the real story about my client. This then allows me to tell an authentic counter-story—not made up, because that’s not what this is about; this is in the end, about truth—to the cops’ story.
When My Client Is Guilty
Even in cases where my client is guilty, he often is not guilty of exactly the crimes with which he is charged. Maybe I’ll need to help a jury see something the prosecution has presented, differently. Maybe I’ll need a jury to see an alternative story. Maybe my client is guilty, and learning my client’s story helps me with negotiating agreements, so a trial is altogether avoided. We still want a “good” result, meaning the damage from my client’s mistake, misstep, or malfeasance is mitigated.
The Bottom Line
But a story is more than just the facts.