I have not been following the trial very closely and I don’t really care about it— I feel like this Phoenix production is programming for Nancy Grace’s audience, and I’m really more of a ‘Mad Men’ guy. But I caught a decent chunk of the prosecutor’s closing argument on Friday, and heard/read many viewer comments on his performance. Thus a few comments to you attorneys who do trials.

What struck me the most about the prosecutor’s performance was how sarcastic it was. For a really, really long period of time. Sarcasm does not, in general, persuade jurors. In fact, it is usually disliked by jurors. First of all, sarcasm is generally fueled by anger, and anger does not wear well for very long with most jurors. Second, that anger fuel can be a heady cocktail, and can lead speakers to say things that they are sure are clever… and which the audience just finds douchebaggy, inappropriate attempts at humor, or simply off-topic.

Besides the stylistic, there is another hugely practical concern with long tracts of sarcasm in closing argument:  the Real Purposes of closing argument are to (a) arm your favorable jurors with talking points that they will use to persuade their fellow jurors, which is how jury persuasion works, and (b) train your jurors on how you want them to fill out the actual verdict forms they are going to see and handle. Well,  being sarcastic and angry for a long period of time serves neither purpose. A juror who is on your side and would like to persuade others to vote your way is not going to be helped by repeating sarcastic bon mots (bon snots?).  Additionally, sarcasm and anger in closing argument are as likely to entrench jurors who are already skeptical of your side to stay there. It’s self-indulgent. It’s not a winning tone

So having said that, one thing that struck me for a moment were the television audience comments on the prosecutor’s performance: nearly all positive. Vitriolic and kind of Ancient Roman, but positive nonetheless.

Yeah, well, there’s that. Just don’t do it too much in front of your jurors.

But don’t be fooled by those gold-painted tweets, counsel. The TV audience does not count; they did not see all the evidence, and do not take seriously that the question isn’t “do you think she did it” but the more sophisticated “Did this prosecution prove this case beyond any doubt that is reasonable.” They are watching – and more to the point, they are actually taking action to tweet their votes – because they already have a rooting interest for conviction of the defendant. As usually happens with humans, where you stand is a function of where you sit, and people who are already sitting on the prosecution’s side are going to think he did a great job. So no big news there.

I write this on Monday afternoon Pacific time; the jury has had the case for approximately one whole court day, which was also broken up by the weekend which gave jurors time to think and process. The fact that they have not yet returned a verdict is not surprising at all. Yet that is enough time for a verdict if the answers were so obvious that all reasonable people would see them the same way. Obviously they don’t all see it the same way, which means there was some persuading that needed to be done, and I can’t help but wonder whether the prosecutor would have been better served arming his like-minded jurors with some stuff they could use right now rather than an hour of sarcasm that they won’t repeat to their fellow jurors. Misuse of closing argument.

Of course, it remains to be seen whether it ultimately makes any difference in the verdict. Now, back to real trial work for me.