This article in the Des Moines Register outlines an issue facing prosecutors – when can what I call “Perry Mason syndrome” go too far? In other words, when can a good, dramatic argument cross the line into improperly inflaming the jury?



On the one hand, I disagree with some of the philosophy behind this rule. I don’t believe the rational, reasonable people on a jury are going to be hypnotized by some lawyer into ruling in a way vastly different from how they would otherwise. It’s like believing a lawyer can somehow, with expert questioning, browbeat a witness on the stand into confessing to a crime. It just doesn’t happen. I do believe that a jury can be biased and unfair, but that’s generally a function of the biases brought with them from past experience, and can be either fostered or avoided by picking the right jurors.



That being said, I also have a problem with one of the two rulings. The first, and the one I’ve no problem with, came down in the Graves case discussed in the article. A copy of the ruling is here. The rule is simple: when a defendant’s or witnesses’ testimony directly contradicts that of another witness – in that case, the defendant contradicted the police officer – the prosecutor can’t ask the witness whether the officer is lying. I agree with the ruling because: 1) It’s a bright line and easily avoided. 2) It’s a stupid question anyway. It’s speculative - how would the defendant know what is going on in the officer’s brain? It’s prejudicial and not probative – serves no purpose other than to make the defendant look bad. And do you really think you’re going to get them to break down on the stand a la Perry Mason? Please. You should be able to suggest who is lying in closing arguments, but save it for the close.



The second ruling stemmed from the LeAnn Werts trial, also discussed in the article, with a copy of the ruling here. This one is much more troubling for me. The Court ruled it is improper for the prosecutor during closing arguments to use the deceased child’s never-to-be-finished baby book, by tearing out page after page during the closing speech, to illustrate the life that would never be lived.



This is more difficult because: 1) It was during closing. Closing is supposed to be biased. That’s where you bring your best powers of persuasion to argue your case. It was powerful. But it wasn’t inherently unfair, and besides, juries expect dramatic arguments. 2) Bright line? Big fog is more like it. How is anyone supposed to know when dramatic is too dramatic. This isn’t like showing an irrelevant photo of the defendant engaging in some weird sexual activity or drug use. It isn’t an extreme close-up of something grisly. It was a demonstrative exhibit; 3) It’s unwieldy. The sheer number of appeals that can now be brought staggers the imagination. Any time there was a dramatic moment in the closing – which should be every time if the prosecutor’s doing the job right – the defendant will now be able to bring it up on appeal that it was too dramatic. Kind of like the old “I know it when I see it” porn standard which had the US Supremes spending many a Saturday night on special screenings of some very interesting videos. Suddenly they realized that if they were ever going to get on with any other business, they’d have to create standards so lawyers could predict whether they would win or lose on appeal and act accordingly.