Disclaimer – this is NOT a political post, so don’t get triggered if you interpret any of this to be pro-Dem or pro-Repub. It’s not. This is just an analysis of any trial attorney’s need to assess a person’s “appearance” as a party before deciding on how to proceed with their case. I handle personal injury – and trial work is central to what I do – so I can speak first-hand about the critical need for a trial attorney to assess how any person who could potentially testify at a trial – whether as a person bringing a claim, or as a person potentially testifying in their own defense, or simply as a witness to an incident – will appear before a potential jury. The special prosecutor’s job here is different in that he’s determining whether to charge a person – a sitting president no less – so my analysis is based on general trial experience with witnesses and juries in the civil context, but the same sentiment applies.
It's difficult to predict how a hypothetical jury will interpret a person’s testimony or what their individual perceptions will be about the witness’ appearance overall. And when I say appearance, I’m not only talking about how they look or dress, but how they handle themselves. Are they calm, or are they defensive? Are they passive or combative? Do they appear to have a firm grasp of the subject matter they’re testifying about? Do they have TOO much of a grasp of the subject matter, such that it appears they’ve been coached into saying what they’re saying. These – and countless other factors – need to be assessed by an attorney prior to trial to try to gauge how that person’s testimony will be received by that hypothetical jury. Yes, it involves guesswork, but it’s educated guesswork conducted (hopefully) by a trained professional who has handled many hours of trial work and has even more hours logged in trial preparation.
This prediction or “educated guess” also includes an attorney’s evaluation of the jury and each juror who will be hearing the potential testimony. Two people can see or hear the same exact thing and come to wildly different conclusions of what they just saw or heard. They can have vastly disparate interpretations of the meaning of what was said and done. Just ask any married couple. Or better yet, any divorced ex-couple. A trial lawyer will not know who will be on their jury until the day of trial (or after jury selection is completed, if it takes longer than a day). And even then, in Maryland, during voir dire – the selection process to try to weed out biases of potential jurors – attorneys are given very limited information about the jurors they are selecting to hear their case. As such, attorneys must make somewhat sweeping generalizations about juror tendencies for the venue in which the case will be heard. In Maryland’s state court, that would be county by county. In Maryland’s federal court system, that would be Marylanders at large. So, attorneys must consider how the average person in that jurisdiction who might wind up as a juror in that case would interpret the potential witness’ testimony.
Here, the special prosecutor’s professional opinion was that the potential jury in all likelihood would find the person in question to be seen more as someone who was simply forgetful versus purposefully misleading. I don’t have any knowledge of the special prosecutor himself, but I have to think he wants to make the best decision he can for his client and his reputation. So, the good news for the president is that Mr. Hur decided there wasn’t a strong enough basis to proffer a case against him. While that would normally be celebrated amongst the president’s supporters, obviously part of that conclusion rests on the special prosecutor’s opinion as to how the president might appear as a witness and that part – “a sympathetic, well-meaning, elderly man with a poor memory” – while normally a rather benign depiction of an 81-year-old man – doesn’t paint the president in a favorable light as it relates to a pending re-election campaign. Sympathetic and well-meaning quickly got overlooked while the emphasis turned to elderly and poor memory. Thus, the good news for the president that there would be no charges quickly turned to the bad news concerning damage control from WHY there would be no charges.
So, while I’m not in a position to render any opinion or insight into the decision to publish Mr. Hur’s analysis, I can say that a trial attorney MUST analyze, with whatever information she or he can get their hands on, how a witness – any witness, in any type of case – might appear to a jury to adequately assess a case’s strengths, weaknesses, and potential outcomes.