PRACTICE TIP: “Making Strange Faces” at Jurors Is Frowned Upon by Judges

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"I've been involved in the criminal justice system for 30 years," said Ontario Attorney General Chris Bentley, "and I can't say that I've heard of a similar circumstance." The circumstance was an assistant prosecutor "making strange faces" at jurors, which ultimately resulted in a mistrial, and a suspension.

An earlier trial had ended in a hung jury, and a different attorney handled the retrial. But the prosecutor from the first case evidently showed up to sit in the gallery and make faces. The second jury became sufficiently creeped out that it sent a note to the judge asking if the then-unidentified man could be removed. "We find him very distracting," the jurors wrote. "He is making strange faces all the time. We feel very uncomfortable with him."

The defendant also claimed the prosecutor was rolling his eyes and making faces at her during her cross-examination. While she had a motive to exaggerate, the jurors said they felt intimidated by the "scrutinizing stares," according to the report, including many delivered while "hiding his face behind his jacket — like a cartoonish villain — as he looked at them."

The Glare
Another juror said the prosecutor tended to sit behind the defense team and stare, make "quirky faces," smirk, or raise an eyebrow. "[We felt] like we were being scrutinized closely, like we were on trial or something," he said. Another juror confirmed the "cartoonish villain" description: "He put his coat in front of his face and he'd look at us [over it]," the juror said. "It didn't bother me, but it bothered a few of the jurors."

Asked what rules apply to face-making in court, a law professor said that for the attorney presenting a case to "grimace or gesticulate" might be allowed as a sort of commentary on the evidence (which doesn't mean it's a good idea), but no one in the gallery should be allowed to do this.