Subtle Ethics of Using Juries To Send a Message

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 clich.

"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."

The temptation afflicts even those lawyers who deal with the criminal process only when they watch television dramas. It is not uncommon for the plaintiff's attorney in, say, a case involving injuries from a defective machine to sum up the client's position thus: "Tell this manufacturer that it has to pay attention to something more than the marketplace, that it has to think, and think hard, about people like my client whose lives the machine can ruin."

All sides join in

Civil-case defendants' lawyers get into the act, too. "You've heard the so-called evidence supporting the preposterous claim against this man," a defense lawyer might say. "Tell this plaintiff and everybody else that courts are not slot machines where if you get lucky you might win a jackpot."

The temptation is both understandable and widespread. Nonetheless, juries are not public relations devices; nor are jurors messengers. They face a task both hard and easy, its difficulty perhaps caused by its simplicity: saying the truth.

From a welter of conflicting accounts, jurors must decide not only what happened, but in many cases what was going on in the defendant's mind. Once they do that, they must then apply legal principles that law students take three years to master and that judges, even in the highest courts, vigorously debate, often without reaching a conclusion that is satisfactory, or even usable.

What, for example, is "reasonable doubt"?

In some states judges use a formulation from 1850; other judges do not even try to define it. Meaningful education of the jurors does not seem to be anyone's goal. Even seemingly straightforward terms like "negligence" and "reasonable care" cause trouble, both in the definition and in the application.

Given the enormity of their task, why should anyone fairly expect the jurors to perform as hucksters, even in the noble cause of justice? It should be enough that we can say, to paraphrase John Milton, they also serve who only sit and think.

Hiller B. Zobel sits on the Massachusetts Superior Court.