How much sarcasm is too much in court? That very question was brought before an appellate court in Connecticut earlier this month when a public defender challenged his client’s guilty verdict, claiming the defendant’s right to a fair trial was compromised by the prosecutor’s aggressively sarcastic style.
According to the Connecticut Law Tribune, the prosecutor used the phrase “lo and behold,” several times and prefaced questions with a heavily emphasized, “You claim….” He also announced, “Good luck for you,” when the defendant testified that he obtained his gun when it happened to fall out of a relative’s pocket.
Though the appellate court upheld the guilty verdict – ruling that sarcasm does not constitute an appeal – a good trial lawyer should proceed with caution when playing the sarcasm hand.
Though there is some case law indicating that a ruling could be overturned if the sarcasm is deemed excessive, your goal shouldn’t be to come too close to that line. You can’t know for sure how the jury will react to your sarcastic tone. Certainly, you don’t want to appear to abuse or bully the witness and lose the jury’s respect. Your goal, particularly in a cross-examination, is to control the witness and if appropriate, to discredit the witness’s testimony, but to do it in a more restrained way than by resorting to sarcasm.
A skillful trial lawyer ought to be able to lead a witness into revealing his foolishness or mendacity without directly mocking him. When you have an adverse witness that has made an improbable claim on direct, for instance, conduct the cross in such a way that you allow him to emphasize the very improbability of the testimony. Repeating back the witness’s hard-to-believe statements can help the jury focus on just how unlikely they really are: “So, the gun just fell out of your relative’s pocket, right on the floor of the living room, correct? And you just picked it up and put it in your pocket, correct?” can ultimately sway the jury in your favor, whether or not you add a sarcastic side note – and you won’t risk having yourself branded a bully.