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A Trial Attorney's Dilemma: How Storytelling as a Trial Strategy Can Impact a Criminal Defendant's Successful Appellate Review


Over the past thirty years, a canon of scholarship has emerged on the use of narrative in the law. Most of the work produced in this area endorses the use of narrative, either by arguing its importance or by focusing on how best to employ narrative as a form of advocacy. The scholarship to date has not focused on how the criminal defendant's use of storytelling at trial can adversely impact appellate review when sufficiency-of-the-evidence and weight-of-the-evidence claims are raised on appeal. This Article posits that in addition to advising a criminal defendant on the potential merits of testifying at trial, the trial attorney should also inform his client of the potential adverse impact certain types of narratives will have on appeal. By demonstrating how the criminal defendant's storytelling at trial can negatively impact the defendant's appeal, this Article provides a counter-point to the ever-growing focus on the use of storytelling as an essential component of criminal-trial practice.