By Hon. (Ret.) Ken E. Adair 
Talk to the Jury About What a Guilty Person Looks Like
Video Transcribed: I was a public defender for a total of four years and practiced criminal law for a total of 17 years before I ascended to the bench in 2011, January 2011. During that time, I have represented some pretty rugged-looking clients.
I remember the scariest client I ever had ever teaching him how to wear a three-piece suit many years ago. And he turned into this little 10-year-old boy, this little 10-year-old boy who had never worn a suit in his life.
And he was asking me what all the little pockets and buttons were for, and I told them about where a pocket watch goes and where the chain hooks up and which ones for the coins and why you button one button and then unbutton it when you sit down and button it back up. And he was fascinated. My client had been in custody for well over a year and was facing mandatory life without parole for trafficking after a bunch of drug felonies.
And sometimes there’s just no cleaning up your client. That guy did pretty well. He looked pretty good. He didn’t get life without parole. I got him acquitted on that trafficking charge, but he was convicted of some other stuff. But sometimes your client just looks rough.
And I struggle with how I might be able to address that to a jury where I could desensitize them to my client’s rough looks. Some of them, they have scars on their face, and whether you know it or not, when you’ve lived a hard life, you wear that, you wear that hard line in the way you hold yourself and your countenance and your face.
You might shrug your shoulders. You might bow up because you’re guarded and physically aggressively defensive all the time. People just wear their life like a bad suit sometimes and you just can’t cover it up.
And I borrowed some language from a voir dire on race and racism that I learned from Jerry Spence many years ago. I borrowed that and I borrowed some stuff from David Smith out of Norman, Oklahoma, one of my greatest mentors, probably my greatest mentor, about what your client looks like.
So if you have a rugged-looking client, I would suggest you just look at the jury and say, “How many of you think you could tell what a guilty person looks like? Can you tell if a person is guilty by looking at them?”
And you do this because your client looks guilty, and it’s hard to have a presumption of innocence if your client just looks guilty. And innocent people sometimes look guilty and we all know that guilty people sometimes look innocent, they’re sweeter and mousy and innocent at trial. That’s why we put three-piece suits on them sometimes just to make them presentable for court.
And there’s nothing wrong with that, nothing at all. But man, if your client looks guilty, it’s a tough row to hoe. So you ask the jury, “Do you know what a guilty person looks like? How many of you think you know what a guilty person looks like? Anybody who thinks you can tell what an innocent person looks like and you know what innocent looks like when you see it?” And then if some people answer, just follow up. “Well, how do you tell? What do you look for? What kind of things do you look for?
Well, look at my client. How many of you think my client looks guilty?” And there’s going to be some people sometimes it’ll raise their hand your client looks guilty. And, boy, this is a goldmine. When somebody says your client looks guilty, well, fine. “You’re not going to offend my client, I’ve already talked to my client about this. But what makes about my client’s looks make you think that he looks guilty?”
Well, they look a little rough around the edges or they seem angry. Okay, well, do innocent people seem angry? Are some innocent people rough around the edges? He seems to be scowling at the prosecutor and the case agent sitting over there at the prosecution table.
Well, if you were innocent, do you think maybe you’d be mad at the prosecutor and the case agent? Get that stuff out there, because what you want to do is you want to desensitize to the jury to this completely irrelevant notion or idea that your client looks guilty. Desensitize them to that. And when they look over at your client and they’re like, “Man, he looks guilty,” they’re going to correct themselves because they’ve been taught in voir dire that doesn’t count. That’s not evidence. That’s not relevant.
And it’s going to creep into you because that’s human nature, that we all judge people. We judge people by the look on their face, by their countenance, by the way, they talk, the way they walk and we judge people and we judge whether we feel safe or don’t feel safe for a lot of reasons.
Man, don’t let an ugly or mean or guilty-looking client sink your case without talking about it. Talk about that upfront. It’s not really that complicated of an issue, but it’s one that never gets talked about, and I say never, I’ve never seen it talked about unless I talked about it or I saw David talk about it in one of his jury trials. And I’ve watched a few of those and I’ve second chaired him on a few of those.
But ask that question. Talk to the jury about what a guilty person looks like and talk to the jury about your client. You don’t have to say my client looks guilty or ugly or rough around the edges. They’re going to know already. You don’t even have to say that. But just talk about it. Don’t just leave that elephant in the room, all right? I hope this has been helpful. I look forward to talking to you some more. This has been trial attorney Ken Adair. If you are looking for co-counsel services or an experienced jury consultant, visit trial.win.
