Tricks Prosecutors Play: Manipulating the "Golden Rule" by Channeling

It's fascinating to watch some prosecutors engage in over-the-top courtroom oratory -- shameless, inflammatory and insidious. It could be dark comedy if the stakes weren't so serious. Prosecutors love to play to the jury, and juries typically eat it up. Inflammatory rhetoric usually hits the mark, inciting juries to hate the defendant. Prosecutors revel in name-calling and character assassination, calling defendants "worms," "germs," "trash," "rats," "animals," "mad dogs," "subhuman," "rancid," and "rotten." They align defendants with notorious villains -- Hitler, Saddam Hussein, Charles Manson, Jeffrey Dahmer. They excite the jury's sympathy for the victim to incite feelings of rage and revenge. Prosecutors demand that juries pay the defendant back, to listen to the victim lying in her grave crying out "Avenge Me, Avenge Me."

One of the prosecutor's favorite tricks is to invoke the "Golden Rule." The Golden Rule is an ethical precept from the New Testament (Matthew, Luke) counseling persons to do unto others as you would have them do unto you. The typical jury argument in criminal cases is to ask jurors to imagine themselves in the place of the victim, and to retaliate against the defendant for what he did to the victim. The argument is universally condemned because it encourages jurors to abandon neutrality, impartiality, and objectivity and to decide the case on the basis of personal feelings such as prejudice, bias, and revenge. Prosecutors are completely aware of the prohibition of this kind of argument, but also know that it works, and for many prosecutors that's the only consideration.

A relatively new variation of the Golden Rule argument is being courtroom-tested by some prosecutors; it's called "channeling." It's a rhetorical trick in which prosecutors transform themselves into the body, mind, and voice of the victim and then speak to the jury in the first person as though the victim were speaking, and narrating the victim's thoughts, fears, anguish at being confronted by a murderous defendant, and the ultimate horror of describing the desperate moments before being killed, and the terrifying details of their murder. Needless to say, given a horrible murder context, and an experience of death performed dramatically and heroically, channeling can be an incredibly powerful technique to bring to life in the courtroom the dead victim and inflame the jury with incalculable prejudice.

So, in a recent murder case, the defendant concededly killed the victim with a shotgun but claimed self-defense after the victim entered his home without invitation. The prosecutor's argument assumed the identity of the victim: "My name is [the victim]. I was 55 years old when I was ambushed and murdered by the Defendant." The prosecutor, all in the voice of the victim, described the events leading up to the shooting. "I see Mark raise a shotgun, this 12-gauge shotgun. I look at Mark. I'm scared. I say to him, 'Mark, please don't shoot.' I didn't stop him. He fired one single 12-gauge round directly into my belly. I fall backwards."

The prosecutor went on to narrate in the victim's voice the events after the shooting, describing the police arriving and the victim dying: "I can hear sirens arriving. I'm still barely alive, but not really conscious. The deputy eventually comes up to my near lifeless body. He calls Flight for Life. A few minutes later the helicopter lands and the medical staff and the police get me into the helicopter, take me to the hospital. Somewhere between that flight from the defendant's residence to the hospital I die."

The prosecutor's trick is impermissible, and violated the defendant's right to a fair trial. A jury trial is not an unregulated slugfest in which the combatants can inflict low and foul blows. There are rules of engagement which all lawyers are supposed to follow, especially prosecutors, who given their power and prestige with juries probably wield more influence and persuasive power in a courtroom than any other lawyer. Although all lawyers violate the rules sometimes, prosecutors violate the rules often, often with impunity, and without any significant oversight or accountability.

The channeling by the prosecutor is an insidious rhetorical trick calculated to inflame the passions and prejudices of the jury. It's a version of the Golden Rule argument by transporting the jury into the victim's persona, inviting the jury to view the case through the victim's eyes, and begging the jury for sympathy and revenge. The prosecutor is able to use this technique dramatically to bring back to life in the courtroom the victim, and thereby divert the jury from its singular duty to decide the case on a rational and objective assessment of the evidence. The prosecutor's narrative also violates rules barring a prosecutor from expressing personal opinions about the evidence, including the victim's thoughts and feelings before he died -- describing the victim as "scared" and "surprised." The prosecution also manipulated the evidence to include what the victim might have testified to, but did not, and certainly with no opportunity for the defendant to cross-examine the fictitious witness created by the prosecutor.

Prosecutors, like all lawyers, want to win, a perfectly legitimate objective. But in contrast to lawyers generally, prosecutors have to win fairly, not by using unethical tricks.