It is a sufficient answer to your comment to state that defense lawyers in Texas aren’t bound by article 2.01 of the Code of Criminal Procedure. But it’s not quite the same thing anyway. The arguments and strategies of defense counsel you posit have direct relevance to the case. If a defense lawyer argues a witness in the case is lying, it may very well mean the defendant is not guilty if the lawyer is correct, regardless of whether there is also an implication that a juror could find himself or herself similarly falsely accused. If a prosecutor makes a juror afraid that a similar crime could happen to them, that has nothing to do with the defendant’s guilt in the particular case.

(The first argument you recite regarding DUI isn’t so much a prejudicial argument as an accurate statement of law (with the exception of the “totalitarian” pejorative). All defendants are only accused. They are innocent until proved guilty and an indictment or complaint (the result of the police accusation) is not evidence of guilt.)

In the first and second examples there’s no direct connection between what the jury does in this case and the feared incident (being themselves accused of DWI or sexual assault).

In the second and third cases, I would call it playing on the jurors’ fears, rather than “making them afraid”.

A juror should be afraid of convicting a factually innocent person — doing so causes immediate harm to another human. Acquitting a factually guilty person doesn’t generally have the same direct and inevitable result.

I think the first might be a good example of trying to make people afraid. I don’t know how effective that is. My guess is “not very,” at least down here in Texas. The jury is going to decide whether they think your dude was intoxicated; if they do, they’re not going to be afraid of the totalitarian laws. Even if they aren’t certain, they’re going to look for some way that your guy isn’t like them so they can trust the government to keep them safe and not falsely arrest them. White people in Texas really want to trust the government.

I usually figure that if we try to compete with the government to make the jury afraid, the cause is pretty much lost.

Just spitballing here.

“Ladies and gentleman of the jury, the dui laws in our country have become so totalitarian, that any officer can accuse anyone and your license can be taken away.”

Or take a sexual assault on a child case…what’s usually the defense? The child is being coached and manipulated to say something. Or a sexual assault case against a female victim. The defense usually is–she’s lying. Isn’t that putting the jury in fear that one day they’ll be falsely accused??

Or take a death penalty case, isn’t fear that an innocent person can be convicted (no matter how overwhelming the guilt) a common tactic for defense lawyers–maybe not to the jury, but to the media?

~Western Justice

So prosecutors are just like defense lawyers, only with less fashion sense?

And secondly, I have been to several trainings where Kelly S gave so-called motivational speeches or “how-to” tips to prosecutors about trying cases and the ONLY memorable thing about her lectures, aside from all the advise she gave about being “theatrical” in trying a case, was not to “make the jury afraid,” but was “to wear your power red suit,” which I always found funny because Kelly would wear her power red suit during her trials with purple. And anyone who is paying attention more to her suit than the case knows that purple and red don’t go together. So, as a fashionista, I was embarassed for her, but then again being a good prosecutor or lawyer isn’t about what you wear. Now, I realize that the above statement about “wearing your power red” is well, pretty much dumb, but it was the only memorable thing about her lectures.

Ron, feel free to comment on that. I’m not sure the best way to put what I know.

Jigmeister, 18 USC 3553 allows specific deterrence and incapacitation as goals of sentencing. I think that specific deterrence and incapacitation are fairly based on fear. We evaluate how likely it is that the defendant will harm someone in the future — how scary they are — and set punishment to account for this danger. If nobody’s advocating scaring juries to convict people, it doesn’t mean they’re not doing it; they’re just not talking about it. (I don’t believe there are many prosecutors who try to convict people whom they believe to be innocent.)

PJ, you may well be right. Let me give that some more thought. My initial impression is that the system’s design, based on fear, requires that prosecutors make jurors afraid. A district attorney who didn’t scare people wouldn’t be doing her job within the current system.

Why are Americans “obedient and subservient to power”? Fear. We are subservient to power because we are afraid and expect the government to protect us. That just means that much of the prosecutor’s frightening work has been done before jury selection begins.

WJ, “fear” doesn’t have to be fear for one’s own physical wellbeing. It can be fear of losing the other things one values, or fear for another person’s — even an innocent stranger’s — wellbeing. A domestic violence case is a good example of fear-based prosecution. Prosecutors go after people accused of that crime with particular zeal because they’re afraid (often justifiably) that the people will reoffend if not harshly punished. Juries are harder to scare than prosecutors in these cases, though.

Juries are much easier to scare in child sex cases; the fear in those cases is so great that it’s harder for a defendant to get a fair trial than in other cases.

Best discussion ever. Thank you all.

Mark.

No, it isn’t. In fact, it is resoundingly no. Sentencing–particularly in death cases–is also supposed to be based on reason, not fear. Capital offenses have factual elements at sentencing that must be proved with evidence, just as the guilt phase does. It is disheartening to me that prosecutors are so far off base when it comes to the very fundamentals of American criminal justice.

“It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.”–US Supreme Court, Gardner v. Florida
430 U.S. 349. (Fear is an emotion.)