Prosecutorial Memes.

There are ten or twelve stock arguments that most prosecutors learn to use and then never deviate from. For example:

Smoke and Mirrors.
The “Spaghetti” Defense.
Explain it to Your Spouse / Neighbor.
Send a Message.
Plea for Law Enforcement.

To those of us who make our livings toiling in the criminal courts, these arguments may seem trite. The fact that we’ve heard each of them many times doesn’t help; nor does the fact that they are often used inappositely — for example, a prosecutor will call the simplest inferential rebuttal argument “smoke and mirrors.” But to our jurors who haven’t heard them all before, these arguments might seem fresh and original, and when the government gets to make all of its arguments after our last opportunity to speak we don’t get to point out to the jury afterwards how silly their arguments are, and they may resonate.

There are simple counters to these arguments. The “Send a Message” and “Plea for Law Enforcement” arguments, for example, can be gutted in voir dire: potential jurors will readily agree that it doesn’t make any sense to find someone guilty in order to send a message to the community or show support for law enforcement — if the defendant is not proven guilty beyond a reasonable doubt, she should not be convicted just to send a message or show support, and if she is proven guilty beyond a reasonable doubt, she should be convicted regardless of any message that needs to be sent or fragile law enforcement ego that needs stroking.

These arguments can also be countered in the defense closing argument. If the defender argues that the government’s case is “smoke and mirrors” or a “spaghetti prosecution” for example, or that the jurors might be asked to “explain to their spouses and neighbors” that they acquitted the accused because the government failed to prove its case, the prosecutor can’t very well get up and make the same argument.

Any of us could weave a paragraph or two of closing argument that would forestall the prosecutor using any of her stock arguments without sounding like a copycat, and force her into the unknown territory of creativity.

So how about it, fellow gladiators and gladiatrices: what are your favorite / least favorite stock prosecutorial arguments?

I know that prosecutors are reading my blog too. So, prosecutors: what am I missing?

Let me know in the comments.

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About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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5 Responses to Prosecutorial Memes.

  1. Anonymous says:

    How about this one:

    “The Police did their job, we at the DA’s office did out job, now it’s time for you the jury to go back their and do your job…”

    (As if the purpose of trial were some sort of unstoppable train, destination GUILTY.)

    Austin Defense Lawyer

  2. Mark Bennett says:

    Excellent. The beauty of anticipating these arguments is that, with just a few words, we can eliminate any impact they might otherwise have. For example: “This is the jury charge. It’s your job description. Your job is to determine whether the government has done its job.”

  3. Michael says:

    I agree with focusing the jury on the charge. “Your job is defined by this document that the court just read to you. Does it say anything about sending anyone a message?”

    As far as anticipating arguments, back when I tried criminal cases I’d say “The government gets to go last because they have the burden of proof, so this is your last chance to hear our side. I’ve never tried a case with so I can’t tell for sure what he’s going to ask you, but he may say …>” and so on.

  4. Pingback: The Importance of “Make People Afraid” : Defending People

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