The Confessional Collides with the Courts in ‘Higher Law’

This week’s episode of “Bull” – “A Higher Law” – featured an unusual suspect: A Catholic priest. He’s pulled over driving behind the wheel of a dinged-up, bloodied vehicle, with alcohol on his breath. He’s subsequently arrested for a fatal hit-and-run of a young female jogger.

Facing up to 20 years in prison, most folks would be more than happy to out the actual killer, but not Father Andy. The person who actually caused the jogger’s death confessed to Father Andy shortly after the incident. Believing the information to be privileged, Father Andy stands firm behind the sanctity of the confessional oath. He knows he ultimately may go to prison for a crime he did not commit, but believes his priestly vows should never be broken. Thought-provoking. And a little edgy, don’t you think?

This episode contained a few scenes that actually have real-world applications.

Demographics can be important, but they shouldn’t be relied on as the sole determining factor on whether you keep or strike.

Jury Selection

Scene: Benny – Bull’s go-to litigator – and Dr. Bull discuss the ideal juror. Knowing the case involves a Catholic priest and a defense of “I-know-something-but-can’t-tell-you-because-I-took-a-vow” defense, Benny assumes they’ll want Catholic jurors and/or people who attend church on a regular basis. Bull’s response? “Not necessarily. Church attendance is not always the best indicator of a person’s spiritual life.”

Real-world Application: I have to agree with Bull on this one. When selecting (or de-selecting) jurors, conventional wisdom is to seek jurors who share common traits, belief systems, or life experiences with key witnesses and will (hopefully) embrace your trial themes. But one should always be careful not to box everyone into a predetermined “category” based solely on one demographic factor.

Does a juror’s age, race, gender, education, or religion really tell you everything you need to know about how that juror might interpret your case? Absolutely not. Are they a useful tool? Yes. Demographics can be important, but they shouldn’t be relied on as the sole determining factor on whether you keep or strike.

Just because I’m a 50-something Caucasian female with a post-graduate degree does not mean I view the world the same way as other women with similar demographics. When you have extremely limited (or non-existent) attorney voir dire, gross stereotypes and generational characteristics are about all we have to go on when determining strikes. But with carefully planned Q&A, we can dig a little deeper and discover how jurors perceive various concepts, themes, premises, and social mores. I certainly don’t fit into a perfect “box,” so why would anyone else?

[I]f you decide to become an internet ninja, know the rules. Know your jurisdiction. Learn about the judge’s practices and tolerance for such research.

Researching Potential Jurors on Social Media

Scene: During jury selection, Bull’s dream team is conducting live social media research on prospective jurors. When talking to a venire member who proudly states she’s attended church every Sunday for 17 years, Bull’s team discovers this woman may talk the talk, but she doesn’t walk the walk, and she’s struck from the panel.

Real-world Application: Yes, jury consultants often conduct social media research on prospective jurors. But there are strict ethical guidelines in doing so (I’ve written about the topic here and here), and once again Hollywood tossed ethics out the window. When is the last time a juror’s cellular text messages were publicly available with a simple internet search? And if there’s a court anywhere in the country that allows a person off-site to be talking directly to the jury consultant in real-time through a wireless earpiece, sign me up. Heck, if you find the court and provide the ear piece, I’ll work your case pro bono.

Although we always want to learn as much as reasonably possible about prospective jurors before voir dire begins, we live in the real world of laws, rules and ethical obligations. So if you decide to become an internet ninja, know the rules. Know your jurisdiction. Learn about the judge’s practices and tolerance for such research. Study up on the ABA and local ethical guidelines. And don’t forget, you are ultimately responsible for ensuring that your team – whether a jury consultant, co-counsel, newbie associate, or next-door-neighbor – follow the guidelines. Their “ooops” become your “ooops.”

“The more you sweat in practice, the less you bleed in battle.” Don’t ask me who originally said that, but it sums up trial preparation nicely.

Conducting a Mock Q&A with Witnesses

Scene: After a couple of surprises during the state’s evidence, the trial team decides that Father Andy must waive his 5^thAmendment right and testify. We watch a fairly contentious (and humanizing) practice Q&A between Chunk Palmer (the witness whisperer) and Father Andy.

Real-world Application: I am a huge proponent of conducting practice Q&A with witnesses, for both deposition and trial. Sure, we can talk about the process, the plan, and what ideally should happen, but that talk is often ineffective.

“The more you sweat in practice, the less you bleed in battle.” Don’t ask me who originally said that, but it sums up trial preparation nicely. Practice won’t make anything perfect, but it absolutely helps minimize the bleeding. Father Andy – like most people – was a better live witness for having experienced what it felt like to be in the proverbial hot seat and learning the potential implications of the messages he was communicating.

Wouldn’t you rather your key witness leaves the stand needing a band-aid or two rather than emergency surgery to replace his bowels?

Of course, if you’re hoping to open the door on matters opposing counsel wants to keep buried, consider developing questions specifically designed to unearth the issue.

Opening the Door

Scene: While a police officer was on the witness stand, he is asked about prior encounters with Father Andy, and whether alcohol was involved. Benny asserts an objection and there’s a sidebar. While Benny argues testimony about prior bad acts is an improper line of questioning, the prosecutor points out that Benny opened the door during Opening when stating that Father Andy “would never have driven drunk but for the alleged confession.” The judge agreed and allowed the line of questioning to continue.

Real-world Application: To the average viewer, the concept of “opening the door” was likely unappreciated. However, it’s a stark reminder of how important it is to carefully plan voir dire, opening, witness outlines, and closing. One slip of the tongue by counsel or witness can derail an entire legal strategy.

Identify the issues you’re fighting hard to exclude, and make sure everyone on the team scrupulously avoids them. Of course, if you’re hoping to open the door on matters opposing counsel wants to keep buried, consider developing questions specifically designed to unearth the issue. Even if the witness doesn’t kick the issue wide open, sometimes a subtle crack can get you where you need to go.

The team’s Mission Impossible-style social media surveillance notwithstanding, this week’s episode of “Bull” ranked higher than most on the reality meter. And it served as a great reminder of the importance of preparation. As Coach Bear Bryant said, “It’s not the will to win that matters, it’s the will to prepare to win.”

Go forth and prepare.

This article was originally published by Texas Lawyer on December 12, 2018. Reprinted with permission. © 2018 ALM Media Properties, LLC. All rights reserved.