STORYTELLING AND VISUAL AID IN SENTENCING 1 Sunny Client 2 FACT PATTERN • Client: Sunny, 18 years old • Charged with: Felony Child Abuse for Shaking her 8 weeks old, Class E Felony • Background: Single Mom. Sunny’s mother does not approve, kicks her out of house but pays for room and grocery money. She has access to OBGYN through Medicaid. Rents room in her friend’s 2 bedroom apartment. • Doctor calls Police and Department of Social Service after client admits to shaking baby. During interview with officers Sunny admits to shaking baby. • Sunny signs a family services agreement, underwent a parent capacity evaluation and took parenting classes. 3 1 FACT PATTERN (CONTINUED) • Family Youth Services not involved because maternal grandmother agrees to care for baby. • Sunny locked up but released under NCGS15A-534.4, because she was breastfeeding baby. Judge allows for supervised visitation at grandma’s house. 4 NCGS 14-318.4 (A)(4) 5 GOAL IN SENTENCING • I/A block sentencing block • ultimate goal is probation 6 2 STORYTELLING IN TRIALVS. SENTENCING •STORY OF INNOCENCE •STORY OF MITIGATION 7 MITIGATION STARTS WITH INVESTIGATION 8 STORYTELLING FOR MITIGATION • Starts with Investigation • Talk to your client and family and listen in between the lines for mitigation. • So used to listening for legal issues and story of innocence • Train yourself to look and listen for mitigation • Investigate Mitigation not only Justification • That teacher/mentor, sponsor • That old man/woman who client took groceries to • Photos of house that client was brought up in 9 3 MITIGATION STARTS WITH INVESTIGATION • HOW SMART IS SHE • LEVEL OF SCHOOL COMPLETED • ***RECORDS TAKE A LONG TIME 10 STORYTELLING STARTS AT PLEA BARGAINING • Its too late if it starts at sentencing. • Choose your strategy but, DA’s also have discovery. You can tell them a persuasive story of mitigation. • Story telling doesn’t have to be about innocence, it can go to mitigation also 11 SENTENCING HEARING: WHAT THE JUDGE WANTS TO KNOW • 1. WHY DID IT HAPPEN and • 2. HOW TO PREVENT FROM HAPPENING AGAIN 12 4 WHY DID IT HAPPEN • This is the Mitigation Evidence you collected before trial. • Ex: 16 year old who killed her mother’s boyfriend • Elementary school teacher called and wanted to talk • Provided family dynamics regarding neglect by family. • Mom had mental health issues • Teachers had to clean the kids, clothes, provide their • (here case was dismissed, but this is information that can be used for sentencing) 13 MITIGATION STARTS WITH INVESTIGATION 14 WHY DID IT HAPPEN: IN SUNNY’S CASE • Young • Didn’t have family support, mom kicked her out • Didn’t know how to parent, no guidance or education • Didn’t know who to deal with stress (small apartment, incessant crying) 15 5 HOW DO WE PREVENT IT FROM HAPPENING AGAIN: IN SUNNY’S CASE • PARENTING CLASSES • Education on dealing with stress • Help from Mom, Grandma • Bonding with child • Matured 16 STATE WILL USE DEMONSTRATIVE EVIDENCE • Shake Doll • Video • Victim Impact Statement • Its so easy for them, just roll in the victim 17 18 6 19 20 21 7 TAKE AWAY • Set the scene: • Small apartment (photos, use the courtroom) • Incessant noise: play • Exhibits: Prenatal Records, albums of pictures from each visitation • Hand up one by one • Find out ahead of time who the state has and who will be speaking • Object if possible to having victim rolled in until after plea, (at least can warn client) 22 MITIGATION STARTS WITH INVESTIGATION 23 8 A TEMPLATE/WORKSHEET FOR DEVELOPING A PERSUASIVE STORY/THEORY OF DEFENSE AT TRIAL Ira Mickenberg 6 Saratoga Circle Saratoga Springs, NY 12866 (518) 583-6730 [email protected] 1. In factual terms, identify why your client is innocent – what really happened in this case? 2. Decide which genre of factual defense applies to your client’s innocence. a. The criminal incident never happened. b. The criminal incident happened, but I didn’t do it. c. The incident happened, I did it, but it wasn’t a crime. d. The criminal incident happened, I did it, it was a crime, but not the crime charged. e. The criminal incident happened, I did it, it was the crime charged, but I’m not responsible. f. The criminal incident happened, I did it, it was the crime charged, I’m responsible, but who cares? 3. Craft the story that shows why your client is innocent. a. Who are the three main characters in the story of innocence? b. What are the three main scenes in the story of innocence? c. When and where does the story of innocence start? 4. What emotions do you want the jury (and/or judge) to feel when they hear your story? 5. What archetypes can you draw upon to evoke those emotions? North Carolina Defender Trial School Sponsored by the UNC School of Government and North Carolina Office of Indigent Defense Services Chapel Hill, NC STORYTELLING: PERSUADING THE JURY TO ACCEPT YOUR THEORY OF DEFENSE Ira Mickenberg, Esq. 6 Saratoga Circle Saratoga Springs, NY 12866 (518) 583-6730 FAX: (518) 583-6731 [email protected] What Does Telling a Story Have to Do With Our Theory of Defense? Stories and storytelling are among the most common and popular features of all cultures. Humans have an innate ability to tell stories and an innate desire to be told stories. For thousands of years, religions have attracted adherents and passed down principles not by academic or theological analysis, but through stories, parables, and tales. The fables of Aesop, the epics of Homer, and the plays of Shakespeare have survived for centuries and become part of popular culture because they tell extraordinarily good stories. The modern disciplines of anthropology, sociology, and Jungian psychology have all demonstrated that storytelling is one of the most fundamental traits of human beings. Unfortunately, courts and law schools are among the few places where storytelling is rarely practiced or honored. For three (often excruciating) years, fledgling lawyers are trained to believe that legal analysis is the key to becoming a good attorney. Upon graduation, law students often continue to believe that they can win cases simply by citing the appropriate legal principles and talking about reasonable doubt and the elements of crimes. Prisons are filled with victims of legal analysis and reasonable doubt arguments. For public defenders, this approach is disastrous because it assumes that judges and jurors are persuaded by the same principles as law students. Unfortunately, this is not true. When they deal with criminal trials, lawyers spend a lot of time thinking about “reasonable doubt,” “presumption of innocence,” and “burden of proof.” While these are certainly relevant considerations in an academic sense, the verdict handed down by a jury is usually based on more down-to-earth concerns: 1. “Did he do it?” and 2. “Will he do it again if he gets out?” A good story that addresses these questions will go much further towards persuading a jury than will the best-intentioned presentation about the burden of proof or presumption of innocence. ETHICS NOTE: When we talk about storytelling, we are not talking about fiction. We are also not talking about hiding things, omitting bad facts, or making things up. Storytelling simply means taking the facts of your case and presenting them to the jury in the most persuasive possible way. 1 What Should the Story Be About? A big mistake that many defenders make is to assume that the story of their case must be the story of the crime. While the events of the crime must be a part of your story, they do not have to be the main focus. In order to persuade the jury to accept your theory of defense, your story must focus on one or more of the following: Why your client is factually innocent of the charges against him. Your client’s lower culpability in this case. The injustice of the prosecution. How to Tell a Persuasive Story I. Be aware that you are crafting a story with every action you take. Any time you speak to someone about your case, you are telling a story. You may be telling it to your family at the kitchen table, to a friend at a party, or to a jury at trial, but it is always a story. Our task is to figure out how to make the story of our client’s innocence persuasive to the jury. The best way to do this is to be aware that you are telling a story and make a conscious effort to make each element of your story as persuasive as possible. This requires you to approach the trial as if you were an author writing a book or a screenwriter creating a movie script. You should therefore begin to prepare your story by asking the following questions: 1. Who are the characters in this story of innocence, and what roles do they play? 2. Setting the scene -- Where does the most important part of the story take place? 3. In what sequence will I tell the events of this story? 4. From whose perspective will I tell the story? 5. What scenes must I include in order to make my story persuasive? 6. What emotions do I want the jury to feel when they are hearing my story? What character portrayals, scene settings, sequence, and perspective will help the jurors feel that emotion? If you go through the exercise of answering all of these questions, your story will automatically become far more persuasive than if you just began to recite the events of the crime. 2 II.