Trust me… I’m an expert! I don’t watch TV coverage of court trials…
But I made an exception in the just-completed trial of Alex Murdaugh (the South Carolina lawyer convicted of murdering his wife and son) because I was asked if recordings of the proceedings would be useful for training purposes. So I watched parts of it live, but mostly recordings of the broadcasts.
Watching the trial coverage I was amused by the networks’ hired lawyer experts’ analysis of the proceedings. They reminded me of TV sports color-commentators describing the play-by-play action.
I came away convinced that the “legal experts” employed by the broadcasters are (with few exceptions) the legal equivalent of a tumbling monkey act. I’ve written about such so-called experts before, here.
So what exactly is an “expert”? My Webster’s defines it as “someone who has acquired special skill or knowledge in a particular subject”.
Federal Rules of Evidence 701 – 706 define an expert, and establishes the parameters of expert testimony in a trial.
In short, unlike “fact” witnesses, experts can (within limits) testify to their opinion of what the facts prove. But TV expert commentators are not limited by rules of evidence… or any other rules I can ascertain.
Every five years since 1993, after I’ve met the qualifications for re-certification, the Florida Supreme Court sends me a document to hang on my wall designating me a “BCE” (Board Certified Expert) in criminal trials. For purposes of this rant, that means I’m as qualified to pontificate on criminal trials as any of the broadcast experts. I prefer not to. Here’s why.
Several years ago I was asked by a broadcast news organization to provide on-air “expertise” about a high-profile trial here in central Florida. I declined – not because the compensation wasn’t attractive, but because of what I was expected to say.
They wanted me to lend support to their “narrative”, regardless of whether it was in line with my opinion of what was occurring in the courtroom. A broadcaster’s objective is “continuing drama” to attract viewers. Watching the legal experts in the Murdaugh trial, it was clear they were attempting to build the drama.
The reality of trials is that few have any drama, and they frequently get bogged down in arcane evidentiary rulings boring to non-lawyers, and focus on “just the facts” as Sgt Joe Friday used to say. The experts employed by the broadcasters are supposed to make the mundane interesting to viewers. That’s why they’ll say nonsense such as the prosecutor “dramatically paused” in his cross-examination — when in fact he was just looking at his notes.
My favorite example of foolishness was the expert who explained in detail how by testifying Murdaugh did “a masterful job of raising reasonable doubt”, and that he “very well may have undermined the prosecution’s case”. I watched the same testimony, and all I thought Murdaugh did was what most guilty defendants do who testify in their own defense — sealed his own fate by trying to BS his way out of it.
Then there was the time-span of the jury deliberations. When the jury retired to deliberate, one expert said if it was a short deliberation (without defining ‘short’) that would mean the jury would acquit. Another said it meant they would convict. When it was announced the jury had reached a verdict after three hours, all it meant to me was that’s consistent with every one of my first degree murder trials in each of which the deliberations averaged between three and four hours.
Any lawyer who tells you they can predict what a jury will do is not only blowing smoke at you, they are fooling themself. Even in my own cases, I would never presume to predict the verdict. When a jury goes out to deliberate its like standing at a crap table and rolling the dice — any outcome is possible.
That’s why broadcasters don’t hire me!
One of the things I liked about trial work was that I didn’t need experts to tell me how I did. The jury let me know! They either returned a guilty verdict — or didn’t. There were no style points — and the opinions of other lawyers about my performance didn’t effect the outcome.
I tell my students to perfect whatever methods work for them. The juror’s opinions are all that matters. As long as a lawyer is ethical, and follows the law, how they get to a successful verdict is irrelevant.
Bloviating about a lawyer’s “performance” while the trial is still underway is grist for on-air legal experts. But anyone calling themself an ‘expert’ should know better.