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California Decision Focuses on Juror Perceptions of Witness Attire

By Robert C. Rodriguez, Litigation News Associate Editor – October 19, 2010

A California appellate court recently held [PDF] that a trial court did not abuse its discretion in allowing a key government witness to testify at trial while wearing his military uniform. People v. Garcia. The appellate court rejected the defendant’s concerns that the uniform would unduly bolster the witness’s credibility and have an unfair emotional impact on the jury. The decision serves as a reminder to trial counsel to carefully evaluate the attire of witnesses and address any issues as early as possible.

No Abuse of Discretion
The underlying criminal case involved the shooting of a young man outside of a bar. The defendant had allegedly opened fire among a group of people, killing the victim. At trial, a key witness for the prosecution testified that he had been drinking with the defendant that day and that he saw the defendant fire a revolver near a group of people that included the victim. In return for his testimony, the witness had received immunity from prosecution as an accessory after the fact.

Although the witness had a troubled past, he “turned his life around” in the time between the incident and the trial, according to the appellate court’s opinion, and joined the U.S. Army. The witness wore his military uniform while testifying, despite the defendant’s objections. The defendant contended that the uniform created a “false aura of veracity” that bolstered the witness’s credibility to the jury and generated “an emotional bias” against the defendant.

On appeal, California’s Fourth District Court of Appeal held that the trial court did not abuse its discretion by allowing the witness to testify while in uniform. Addressing the issue as one of “first impression in California,” the court stated that it could “find no error in permitting military personnel to testify while in uniform, even if they are off-duty and testifying in an unofficial capacity.”

The appellate court noted that the defendant’s argument that the uniform would lend the witness an aura of veracity was “flawed” because the jury could just as easily “not have had a positive view of the military.” Even if the jurors did have a positive view of the military, the court continued, that did not necessarily mean that they found the witness more credible than a non-military witness. The appellate court also noted that this was “especially so” in the Garcia case because the witness had been granted immunity and testified about “drinking, taking ‘a lot of drugs,’ and ‘tagging’ in the months before the incident.”

Impact on Juror Perceptions
Trial lawyers should not underestimate the way certain types of dress, such as military uniforms, may play in front of a jury. “While jurors’ feelings have always tended to be generally positive toward the military, after the September 11, 2001, attacks, the military uniform can be an especially powerful symbol that invokes patriotism,” says Cynthia R. Cohen, Manhattan Beach, CA, vice-chair of the ABA Section of Litigation’s Trial Practice Committee. Although the appellate court in Garcia rejected the defendant’s arguments about the emotional impact of the uniform on the jury as “speculative,” that potential impact on the jury is still something that all litigators must consider when preparing for trial.

There is also the risk that a trial lawyer who tries to play on a jury’s emotions by taking advantage of a witness’s appearance or uniform may not receive the desired response. “You risk jury backlash if the jury senses you are trying to trade on something other than the facts,” says Ian H. Fisher, Chicago, cochair of the Section of Litigation’s Pretrial Practice and Discovery Committee.

Anticipate Issues Involving Witness Attire
Fisher notes that the case highlights another skill effective trial lawyers must possess: the ability to anticipate. “Think ahead about how the evidence is likely to transpire,” he advises.

In Garcia, the military uniform issue would have been best addressed in a motion in limine, “so that if the court agreed that [the witness] should not wear his uniform, there was ample time to instruct him not to wear it,” Fisher says. “Waiting until the witness appeared at court in uniform put the judge in a tough position because sustaining the objection would mean allowing the witness time to leave the courtroom to change his clothes.”

“Never take your witness’s dress attire for granted, even if it’s a paid expert,” advises David J. Wolfsohn, Philadelphia, cochair of the Section’s Trial Evidence Committee. Effective trial preparation must include going over dress attire with the witness, Wolfsohn explains.

Cohen agrees, advising that even a full dress rehearsal is appropriate in some instances, so that the attorney can discover any issues in time to do something about them.

Keywords: litigation, California, witness attire, jury perceptions

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