We are taught that we have to have a theory of the case, and we need to have themes and theme phrases that we will repeat throughout opening, direct, cross, and closing.  But we have to be careful when telling the jury our theory of the case that we are putting forward something that we can prove – if we do not have credibility we have nothing.  If we are not telling the jury the truth our theory of the case is not likely to carry the day.

So what happens when the theory of the case you have put forward in opening statement does not pan out?  Obviously we should have known the facts of our case better and/or we should have been more diligent in only presenting the truth to the jury.  But if the worst happens, be flexible.  Tell the truth.  If you discover that something you have told the jury is not true, tell the jury, and adjust your theory to fit the truth.

I have had several trials where the prosecutor lost the jury when their carefully crafted theory turned out not to fit the truth of the case, and then the prosecutor refused to change their story.  They stayed the course until the bitter end – you could see the point where the jury started to question the prosecution’s theory, the question marks on some of their faces, and you could see the point where the prosecutor completely lost them, as the prosecutor continued to recite his pre-packaged, memorized verse.

In a recent distribution trial, the prosecutor’s theory was clearly that the defendant was running a business, and the image the prosecutor wanted to create in the jury’s minds was that of an open-air drug market like what we see in “The Wire,” a television show about police and drug dealers on the streets of Boston.  Straight out of the gate, the prosecutor says, “Business folks, moving product and making money, and we got the man in charge of the business!”  Except the evidence showed that there were no drugs found on the defendant, and there was no money in the vicinity.  There was no real evidence tying the defendant to the drugs that another individual sold to an undercover officer.  There was no “business” going on.

So how do you combat the image of an open air drug market that is now implanted in the juror’s minds?  Tell the truth.  In closing, I expected the prosecutor to repeat the memorized verse that laid out his theory of the case and the image that he wanted the jury to see, the image that was a lie unsupported by any evidence that came out in the trial.  I told the jury the truth.  I told them about themes and theories, and how lawyers are trained to use effective themes and theories and to put images into the jurors’ minds.  I asked them if any evidence supported the prosecutor’s theme of an open air drug market, and I accurately predicted that the prosecutor would repeat his theme phrases word for word in his closing.

I told the jury about the themes and theories that I had considered before the trial, and that I had rejected even using a “theme phrase” in this case, in favor of simply telling them the truth, telling them what happened, and what I believed the evidence was going to show.  I told them a story, about how my four year old son stands on the grass in our yard, and how he has three balls.  There is a big beachball, and there is a soccerball, and there is a small purple looking ball, I don’t know what it’s for but it’s fun to play with.  He starts to walk through the grass in the yard, and he is determined to carry all three balls with him, but each time he bends over and picks one up another falls through his arms.  No matter how he tries, his arms are not big enough to carry all three of the balls at one time.

I tell the jury that this was the image I would like them to have as they considered the case the state brought against my client – because the police had made an arrest already; they arrested another man who sold drugs to an undercover officer.  But then they are trying to overreach, and they want to charge and convict more people than the evidence in this case permits.  They want to take it one step further, and charge and convict another man who is standing down the street.  No-one saw a drug transaction between the first guy and this defendant.  There is no video, there is no audiotape.  Like the prosecutor’s non-existent open air drug market “business,” this is the image I would like the jury to have in their mind – a small child that is fumbling, trying to hold one ball too many yet it keeps slipping from his grasp.

The jury in this case returned a verdict of not guilty.  I wonder if the jury would have felt differently if the prosecutor had abandoned his inflexible and unsupported theory of the case, and simply told the jury the truth.