Subtle Ethics of Using Juries to Send a Message Lawyers Often Remind Jurors of Their Duty to 'Say the Truth,' Then Urge Them to Go a Little Further Than That

Article excerpt

It was the end of an all-too-ordinary prosecution for cocaine-peddling ("distribution of a class B substance" is the formal description). As he swung into the climax of his closing argument, the prosecutor was falling back on an old cliche.

"Members of the jury," he thundered, "the word 'verdict' comes from two Latin words meaning, 'to say the truth.' And that's exactly what we're asking you to do, say the truth. Say that the government has proved beyond a reasonable doubt that this man, the defendant, is exactly what we said he is, a drug dealer.

"If you do that, ladies and gentlemen, you'll be sending a message, not only to this drug pusher, not only to other drug pushers, not only to people who are thinking of becoming drug pushers, but to the whole community. The message is simple: The people of this county don't tolerate cocaine or the people who sell it."

Some of the jurors shifted in their seats, perhaps from emotion. The judge also shifted in his, feeling vaguely disquieted.

Prosecutors (like defense counsel) often allow their forensic zeal to bend and occasionally break the rule that normally limits lawyers' oratory to analysis and argument about the evidence and what it establishes or (as defendants' lawyers emphasize) what it fails to prove.

If the breach is not flagrant, most judges let it pass; most opposing lawyers do not even bother to object. Effective courtroom performance, indeed, often depends on the ability to rub the jurors' emotions while apparently appealing just to their intellects. That is why Marc Antony's speech in Julius Caesar is a favorite with trial lawyers.

Political motivations

Even so, the prosecutor's tactic made the judge uncomfortable. True, the district attorney (unlike the judge) had to run for office every four years. It was therefore important for him that he and his underlings should constantly appear to be rallying the populace against the forces of darkness. Whether this understandable purpose may properly affect the prosecution's relation to the jurors is, however, another matter.

Prosecutors are not the only lawyers who try to use the jury as a megaphone. Defense counsel, facing a prosecution built on thin testimony or involving police mishandling of evidence, have been known to urge upon juries the message that "this kind of unfair, underhanded misuse of power has got to stop. …


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