Ohio Prosecutor: Defense should not be allowed to show emotion

[Tiassa]

Source: Time
Link: http://www.time.com/time/nation/article/0,8599,1817551,00.html
Title: "Cracking Down on Courtroom Tears", by Callie LeFevre
Date: June 24, 2008

While many prosecutors have been known to appeal to jurors' emotions, putting words in victims' mouths or speaking for the dead, at least one Ohio attorney has had enough. Prosecutor Jason Phillabaum has filed a motion in a murder trial to prohibit the defense from using emotional appeals:

"Specifically, defense attorneys have strategically been known to cry on cue and beg for their clients' lives," the motion states, meaning the attorneys are "appealing to the emotion [of the jury] instead of reason." The filing cites a 1999 capital case ruling by the Ohio Supreme Court that it is "improper to inflame a jury's emotions by crying."

By filing this motion, Phillabaum and county prosecutor Robin Piper claim to be trying to avoid a repeat of last month's trial of Harvey Johnson, during which they watched tears roll down the cheeks of defense attorney Greg Howard as he asked the jury to spare his client from the death penalty. The jury assented and Johnson, who was convicted of kidnapping and strangling Kiva Gazaway, was sentenced to life imprisonment.

(LeFevre)

And now, squaring off once more against Greg Howard, Phillabaum insists that the motion is not a reaction to Howard specifically, but the result of seeing emotional appeals inappropriately swaying juries.

From the other side of the bench, Howard views the motion as a direct attack on his rights as an attorney. "It's a little ridiculous," he says. "It's because they haven't received a death verdict for so long in this county." David Washington, who will be representing O'Hara alongside Howard when the trial begins on Aug. 9, concurs: "I think the state is absolutely desperate in an attempt to limit what we can and can't do."

(ibid)

And if Howard resents the implication that it's all theatrics, perhaps he should. Implicit in the prosecutors' motion is the suggestion that juries, too, are not smart enough to understand the difference. Yet my own observations, at least in Snohomish County, Washington, suggest that if juries are too stupid to understand the difference between genuine emotion and histrionics, it is the fault of prosecutors. Indeed, up here, prosecutors want smart people off juries so that they can play to people's emotions. In this context, then, Phillabaum's motion makes no sense whatsoever.

In light of Howard's strong denials, the prosecution team is now backpedaling on its initial accusation. "I think we overstated at one point," Piper admits. "I think the emotion is sincere." He adds that it is difficult at times for prosecutors, himself included, to maintain composure. "When you have the loss of human life, when you see people's lives destroyed, you can get caught up," Piper says, referring to his sensitivity toward victims and their families.

The Ohio case reflects a long-standing uncertainty about the role of emotion in the application of the law, according to Doug Berman, an Ohio State University law professor and criminal-sentencing expert. He says that Phillabaum's motion is "part of a perhaps misguided attempt to suggest that the law is all rational and not based on emotion."

(ibid)

On its face, the prosecution's motion seems laughable. But one need not delve too deeply below the surface to be reminded that this is a murder trial. There is, indeed, a dead victim, and now a man must answer, perhaps at the stake of his life. That the prosecution should pretend this case can be tried without emotion is a bit morbid at least. And, given that prosecutors will rely on emotional appeals for convictions and death sentences:

In cases like this the key testimony is not just from the family but from the victim herself. During formative years of her adolescence, made all the more daunting for having to come to terms with the brutality of her experience, L. H. was required to discuss the case at length with law enforcement personnel. In a public trial she was required to recount once more all the details of the crime to a jury as the State pursued the death of her stepfather ... And in the end the State made L. H. a central figure in its decision to seek the death penalty, telling the jury in closing statements: "[L. H.] is asking you, asking you to set up a time and place when he dies."

(Kennedy)

LeFevre notes that the Supreme Court addressed the issue of emotional appeals, at least in the form of buttons worn by a murder victim's family during the trial; in that 2006 case, the Court ruled that the buttons were permissible. "There is a tendency to assume that any emotion is necessarily distorting," said Doug Berman, an Ohio State University law professor. He also said that presumption was "overly broad".

What role do emotions really play, then? And if a jury cannot tell the difference between genuine passion and "crocodile tears", should the court tip the scales of justice in favor of the prosecution? After all, it's not like the prosecution doesn't have a say in who is on the jury.
_____________________

See Also:

Kennedy, Justice Anthony. "Opinion of the Court". Kennedy v. Louisiana (No. 07-343). Supreme Court of the United States. Decided June 25, 2008. http://www.law.cornell.edu/supct/html/07-343.ZO.html

 

[draqon]

this goes against civil rights.

 

[Asguard]

tiassa, this is the reason why its judges, not juries who decide on senatances in australia in both criminal AND civil cases.

In fact i dont belive juries are actually involved at all in civil cases

 

[cosmictraveler]

I'd think that sometimes the attorneys just enjoy putting on an act to evoke certain responses.

 

[Nasor]

And if Howard resents the implication that it's all theatrics, perhaps he should. Implicit in the prosecutors' motion is the suggestion that juries, too, are not smart enough to understand the difference. Yet my own observations, at least in Snohomish County, Washington, suggest that if juries are too stupid to understand the difference between genuine emotion and histrionics, it is the fault of prosecutors. Indeed, up here, prosecutors want smart people off juries so that they can play to people's emotions. In this context, then, Phillabaum's motion makes no sense whatsoever.

Whether or not the prosecution or defense wants smart people on the jury usually depends on what sort of case it is and what sort of evidence is available. If there is a lot of convincing evidence, the prosecutor will usually try to get smart people who will evaluate the evidence analytically and not be swayed by bullshit emotional appeals. The defense will want to bump the smart people and pack the jury with idiots who won't understand the evidence and/or will be susceptible to emotional appeals. This is doubly true if the case rests on technical evidence, like computer crime cases or cases involving a lot of sophisticated forensic analysis.

If the prosecution's evidence is weak, the opposite is true; the prosecutor will likely make some sort of bullshit emotional arguments to the jury ("This poor girl was murdered in the prime of her life - she deserves justice! And only YOU can give it to her! Please, please, don't deny this poor dead girl the justice that she deserves!"....never mind the fact that none of that actually addresses the issue of whether or not the defendant is the one who killed her). And the defense, of course, will try to pack the jury with people smart enough to look past the prosecution's hysterics and realize that there isn't convincing evidence.

 

[Simon Anders]

tiassa, this is the reason why its judges, not juries who decide on senatances in australia in both criminal AND civil cases.

In fact i dont belive juries are actually involved at all in civil cases

In the USA at least there should be no illusion that emotions can somehow be eliminated from the judiciary. Presidents appoint federal judges including the Supreme Court. These guys stick to party line, often, and, after the fact come up with interpretations of the law to rationally justify their values. Both for good and for ill. But judges are hardly neutral.

 

[Asguard]

SA, in australia the surprem courts are the highest state courts and then you can apeal to the high court which is a federal court. Also i think judges are apointed internally, they are not elected. This makes a HUGE difference

I honestly dont know wether the PM apoints judges but to be honest the goverment stays as far away from indervidual cases as possable. We dont have the sort of disagreements as you do with the legislative, and the goverment at war and using the judicury to fight it out.

However bells would know more about this area than i do, my interest lies in govement and parliment not in the legal side.