In this article, I shall explore the above question by making reference to my personal empirical study research findings and to the findings and opinions of other commentators on this subject.

In order to obtain as many wide-ranging views and opinions as possible on the behaviour, performance and associated success of the barrister in the courtroom, I canvassed opinions from a number of different groups of people. I interviewed people who had served on juries in order to ascertain their opinions. I also interviewed several practising barristers, from many different backgrounds, with differing years of experience behind them, in order to obtain their opinions as to how barristers should perform before a jury.

One way of responding to the cultural and linguistic issues presented to a barrister when he or she faces a jury is by ‘becoming one of them’. It is important for a barrister to know how his audience thinks. If he knows how each juror will reach their decision then he can respond accordingly by presenting his case in a style that the jurors will be receptive to. Unless the barrister appears before the same juror or jurors on several occasions, which is extremely unlikely, he will find it difficult to know how the mind of each particular juror works. For that reason it is essential to watch the listeners’ reactions to events in the courtroom in order to judge how the barrister himself should act.

Knowing how the minds of the jurors work can simply be a case of taking basic human values, which most of us possess, and using them to one’s advantage. Bailey and Rothblatt show an excellent use of this. In a situation where a defendant does not go into the witness box, it is quite possible for the jury to assume that the defendant has something to hide that he does not want the court to be made aware of during cross-examination.
“If someone were to accuse you falsely of a crime and were to produce no credible evidence to support this accusation, you would proudly face your community and this jury and say: ‘they have made out no case against me to answer. I do not have to testify.’ So this accused man stands before you and, as his spokesman, I say to you no case has been made out for him to explain or answer.” [1]

In all likelihood, the majority of the public would feel that if they had been wrongly accused of something they would be very upset and feel as though their privacy had been invaded. If these members of the public were sitting on the jury (and the chances are that the composition of the jury would heavily favour this feeling), their empathetic tendencies would lead them to appreciate the reasons given for the defendant not taking the stand.

Introducing something in common

Mimicking the culture and language of the jury could be one way of gaining their trust and therefore result in a more receptive audience. It is thought that people, who can identify with each other, those with something in common, like each other more than people with whom they share no common interests. That stands to reason. Friends tend to be people who have things to talk about or who participate in activities with each other. These form a bond between people. Clare Petre tells us of how the jury that she sat on bonded.

“We bought lottery tickets together. Most of the women brought in handicrafts and swapped techniques, while other jurors played cards during the breaks.” [2]

This created a situation whereby when debates arose in the jury room; those who had become friends were more readily in favour of each other’s viewpoint rather than the viewpoints of people with whom they had not established any friendship.

Does it follow then that people from the same background are more likely to accept the viewpoints of those within that same community even if they share nothing in common other than their background? Are people of the same race or religion or social class favoured towards ‘their own’?

If we assume that a barrister were to present himself to a panel of jurors made up of, for example ‘cockneys’, and were to speak in a very casual manner using slang, ittween social classes and ethnic origins received a mixed response. One gentleman told me that if a barrister’s normal accent was a ‘cockney’ one he may well feel more at ease because he would realise “barristers are not what I feared they’d be. I got the impression of barristers being pompous, aloof. It’s nice to know that they’re like us.” If, however, he could tell that it was a false accent “that would be really patronising. They’d be trying to get to you at street level, sort of all pally, pally.” Another man told me “you relate to your own don’t you? Class wise. If they were middle-class I would relate to them better than if they were working-class. I guess that working-class people would relate much better to working-class people on a jury.” In contrast I was given the view by another juror that “[I]t shouldn’t make any difference really. I wouldn’t care how they spoke, whether they looked like they were from my social-class, ethnic origin or whatever, as long as they come across as believable. As a juror whatever their background was makes no difference as long as they were believable, trustworthy and on their client’s side. As long as they are clear and understandable, and not too loud because that can be very off-putting… A barrister has to appreciate that the jury is made up of people from all sorts of different backgrounds and he can’t simply play to one audience. He has to be quite basic in what he says so that everyone can understand him.”