A South Carolina Criminal Defense Blog

Music in trial

Music can be a powerful tool – in trial preparation and, when appropriate, in trial as well.  For many cases, I am able to find a song that sums up the emotion of the case or that encapsulates my client or their situation.  I play it on the IPod, I listen to it on the computer, I listen to it in the car, I learn the words, I sing it in the shower, and if I can I learn it on the guitar.  I internalize it.  When trial begins, I hear it in my head, I feel it as I am speaking to the prosecutor, the judge, and the jurors, and it helps me to convey the center of my client’s case.  Music evokes emotion, and music can transport us to another place where we can experience another person’s trauma, sadness, beauty, or joy.

I remember an exercise that Josh Karton did, a few years ago at a trial skills workshop, where he had a lawyer stand in front of the group and give a piece of their opening statement.  For a few minutes, we listened to a girl deliver boring, bland, canned lawyer-talk that explained her client’s case.  Josh stopped her, and asked her to think of a song, any song, that reminded her of her client or that felt like her client’s situation.

The lawyer came up with a song – it turned out to be a show-tune – then Josh made her sing it to us, standing in front of the group as if we were her jurors.  Josh worked with her on singing the song with feeling, singing every word as if it were important because every word is, and transformed the performance into something amazing like no-one other than Josh Karton can do.  Then he had her sing her opening statement to us, telling us about her client and her client’s case through the song.

Finally, he had her start over and deliver her opening statement without the music – the words changed, the meaning changed, the delivery changed, but most importantly the feeling changed.  I felt her love for her client, I was transported to the place where her client experienced the events of the case, and I heard the music in my head as I listened to her tell us about the client.  I note that he didn’t tell us to sing to the jury, and he didn’t tell us to literally make music for the jury.  But it became just one example of what a powerful tool music can be in trial preparation.

This week I saw an opportunity to literally use music during a trial, and I took it during my closing argument.  Before I began the closing argument, I put an IPod dock on the prosecutor’s table near the jury and played “Closer to the Edge” by Linkin Park.  The officer had just arrested our client, was transporting her to the detention center, and she had made some attempts to communicate with the officer as they drove down the road, to tell him what had happened and why he had the wrong person.  He didn’t cut her off, but after the conversation he turned on the stereo and cranked up the tunes.  The DVD from the patrol car was admitted into evidence, and the song along with it, which made it fair game for closing argument if I wanted to use it.

I don’t believe it was a racial issue per se, but, for context, she is a middle-aged black woman, who was handcuffed in the back seat of a patrol car, driving down a back road in rural South Carolina, and she had never heard this music before – personally, I love Linkin Park, but, reversing roles with this woman, it was a frightening experience that you could only understand by hearing the music in context.

It was an experiment, and I think the results were mixed.  I saw that some of the black jurors were affected by it, and I think that those individuals understood what I was trying to show them.  One younger white female juror started laughing – I assume she knows and loves Linkin Park and that she had no concept of what I was trying to show her.  It may have helped to polarize the jurors, although that was not what I wanted – the result of the trial was a hung jury and a mistrial.  Thoughts?

 

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