Criminal Justice Section
Criminal Justice Magazine
Volume 18 Number 4
Ethics“Thou Shalt Not Use Religion in Closing Argument”
Peter A. Joy and Kevin C. McMunigal
Peter A. Joy is a professor of law and director of the Criminal Justice Clinic at Washington University School of Law in St. Louis, Missouri. Kevin C. McMunigal is the Judge Ben C. Green Professor of Law at Case Western University School of Law in Cleveland, Ohio. Both are contributing editors to Criminal Justice magazine.
The place of religion in the courts was a hot news topic in 2003. For months, Chief Justice Roy Moore fought and ultimately ignored a court order to remove a monument of the Ten Commandments from the Alabama Supreme Court rotunda. The U.S. Supreme Court refused to hear his appeal, and, in a unanimous decision, the Alabama Court of the Judiciary removed Moore from the bench for disobeying a lawful court order. If the Ten Commandments do not belong in a courthouse rotunda, do the Ten Commandments, the Bible, or other religious imagery belong in closing arguments? Dozens of state and federal courts have considered the use of religious references and imagery in closing arguments. This column looks at the use of religion in closing arguments, when it constitutes misconduct, and when it leads to reversal.
The bounds of argument
Trial and appellate judges usually grant both the prosecution and defense wide latitude in closing arguments. Counsel are entitled to argue the evidence as well as the inferences the jurors draw from and the weight jurors should give to particular items of evidence. The credibility and demeanor of witnesses are proper topics for argument in addition to rebutting the arguments of opposing counsel. Lawyers may use analogies, anecdotes, references to current events, and well-worn quotes and stories to persuade the jury about how to view the evidence in the case.
Arguments based upon the Bible and uses of other religious imagery, however, have raised red flags. Courts have shown particular concern when prosecutors use religious references during the sentencing phase of capital cases. Most courts view such arguments as improper and place strict limits on their use in closing.
Model Rule of Professional Conduct 3.4, the primary rule dealing with argument, states that a “lawyer shall not . . . in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.” The Model Code provision, DR 7–106, states the same prohibitions. The ABA’s Standards for Criminal Justice echo these limits and explain in greater detail the limits on appealing to the jury with matters not supported by the evidence. Defense lawyers and prosecutors are specifically told they “should not make arguments calculated to appeal to the prejudices of the jury,” and they “should refrain from arguments that would divert the jury from its duty to decide the case on the evidence.” (Criminal Justice Standard 3–5.8, 4–7.7.)
Although the ethics rules and the Standards for Criminal Justice define the ethical duties for defense lawyers and prosecutors equally, the commentary to Criminal Justice Standard 3–5.8 states: “Prosecutorial conduct in argument is a matter of special concern because of the possibility that the jury will give special weight to the prosecutor’s arguments, not only because of the prestige associated with the prosecutor’s office but also because of the fact-finding facilities presumably available to the office.” The commentary to Standard 3–5.8 recognizes that “a prosecutor must be free to present arguments with logical force and vigor,” and then states “[a]s the Supreme Court has remarked, however, ‘while he [the prosecutor] may strike hard blows, he is not at liberty to strike foul ones.’” (Quoting Berger v. United States , 295 U.S. 78, 88 (1935).) The Court in Berger explained the underlying rationale: “The United States Attorney is the representative . . . of a sovereignty . . . whose interest . . . in a criminal prosecution is not that it shall win a case, but that justice shall be done. . . . It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” ( Id . at 88.)
Defining the difference between “hard” and “foul” blows can be difficult, but there is substantial case authority to provide guidance.
The commentary to Criminal Justice Standard 4–7.7 notes that, due to the unavailability of government appeals in most criminal cases, few courts have considered the limits of defense arguments. Nonetheless, the courts that have considered the legal and ethical boundaries of closing arguments apply the same general limitations to both prosecutors and defense counsel.
Religious references and misconduct
Remarks calculated to evoke bias, prejudice, or passions “should never be made in a court of justice.” ( People v. Simon , 252 P. 758, 760 (Cal. App. 1927); see also Criminal Justice Standard 4–7.7.) Although appealing to the passions and prejudices of the jury is proscribed, the tradition of zealous advocacy in the United States, the emotional nature of crimes, and the severe consequences of conviction often tempt lawyers in criminal cases to appeal to the juries by any means possible—especially through stories juries understand. With more than 90 percent of Americans indicating that they believe in God, parables and other religious stories can be very effective in communicating lawyers’ messages to jurors, as well as appealing to their consciences.
Appealing to the jurors’ religious faith or religious principles, however, may ask the jurors to ignore the controlling law and the facts of the case. “[B]y conjuring up images of religion, the remarks improperly appeal to the jury to act in ways other than as dispassionate arbiters of the facts.” (United States v. Levy-Cordero , 67 F.3d 1002, 1008 (1st Cir. 1995).) In short, religious principles may not replace legal principles as governing conviction for a crime. Religiously charged closing arguments are not only unethical, but, in some instances, may also violate the accused’s due process right to a fair trial and serve as the grounds for a new trial or reversal.
One high-profile example of a defense lawyer using a biblical story in closing argument is in the death penalty case of Susan Smith, convicted of murdering her two young sons. Pleading for mercy during the sentencing phase, Smith’s lawyer picked up the court clerk’s Bible and repeated the parable of the adulterous woman, quoting “[h]e who is without sin among you, let him first cast a stone.” He went on to tell the jurors, “You each have a stone, with 12 in all . . . [b]ut no stone may be thrown unless all are thrown.” The jurors—five of whom listed church affiliations in their jury questionnaires—unanimously decided against the death penalty.
The prosecutor in the Smith case did not object to the use of the religious reference, although it was improper. Because the prosecutor failed to object, the judge did not admonish defense counsel. However, in another death penalty case where the defense interjected religion during the sentencing phase, the Pennsylvania Supreme Court rejected on appeal the defense argument that the trial judge erred in sustaining the prosecution’s objections. ( Pennsylvania v. Daniels , 644 A.2d 1175, 1183 (Pa. 1994).) Relying on ABA Standard for Criminal Justice 4–7.8, the Daniels court stated that the same rationale that prohibits the prosecutor’s reliance on religious writings in support of the death penalty also prohibits the defense from relying on religious writings “to inflame the passions or prejudices of the jury, or to divert the jury from its duty to decide the case on the evidence.” ( Id .)
In another death penalty case, Carruthers v. State , 528 S.E.2d 217 (Ga. 2000), the prosecutor read aloud passages from the Bible, including “whoever sheds another person’s blood shall have his own blood shed by man,” and “[those] who take the sword shall die by the sword.” ( Id . at 222.) The prosecutor argued that these passages contained “a message that is very clear, that society must deter criminals.” ( Id .) In considering whether the prosecutor’s remarks were outside the bounds of proper argument, the Georgia Supreme Court held that “[l]anguage of command and obligations from a source other than Georgia law should not be presented to the jury,” and that the prosecutor’s reading of the Bible as the law to be followed violated the defendant’s due process rights during the sentencing phase. ( Id .)
The courts also disapprove of the “golden rule” argument, which suggests to jurors that they place themselves in the position of the victim and decide the case accordingly. The golden rule argument is based on the biblical quote, “As ye would that men should do to you, do ye also to them likewise.” (6 Luke 31.) In an aggravated assault case, the prosecutor crossed the lines of proper argument by asking the jurors to “imagine how terrifying” it would be to have the light from a laser-sighted gun “on your chest.” ( DeFreitas v. State , 701 So. 2d 593, 601 n.7 (Fla. Dist. Ct. App. 1997).) In reversing the case, the Florida appellate court stated “often times the line between the inflammatory and the dramatic is not always clear” but “as far as golden rule arguments are concerned, the lines are clear and bright, simply put they are improper. In short, they enjoy no safe harbor in the trial of a criminal case.” ( Id . at 601.)
More recently, the Connecticut Supreme Court examined the use of religion in closing arguments by prosecutors, and joined “‘federal and state courts [that] have universally condemned . . . religiously charged arguments as confusing, unnecessary, and inflammatory.’” ( Id . at 29 ( citing Bennett v. Angelone , 92 F.3d 1336, 1346 (4th Cir.), cert. denied , 519 U.S. 1002 (1996)).) In surveying state and federal courts, the Connecticut Supreme Court found that although a majority of the jurisdictions have held that the “prosecutorial use of religious references is always improper,” there is less agreement on whether “all improper religious remarks constitute harmful or reversible error.” ( Ceballos , 832 A.2d at 29–30.)
Not all religious references in closing arguments constitute reversible error. However, arguing that the jury should follow religious teachings in reaching a verdict regardless of the law, as in Carruthers , almost always results in reversible error. The Ninth Circuit held that a prosecutor who paraphrased biblical passages to justify the death penalty during the penalty phase of a capital trial was “improper and highly prejudicial” because “delegation of the ultimate responsibility for imposing a sentence to divine authority undermines the jury’s role in the sentencing process.” ( Sandoval v. Calderon , 241 F.3d 765, 775–77 (9th Cir.), cert. denied, 534 U.S. 943 (2001).)
One state, Pennsylvania, has adopted a per se reversible error approach to biblical references in death penalty cases. In Commonwealth v. Chambers , 599 A.2d 630, 643 (Pa. 1991), cert. denied , 504 U.S. 946 (1992), the prosecutor argued: “Karl Chambers has taken a life. As the Bible says, ‘and the murderer shall be put to death.’” The defense objected and the trial court immediately gave a curative instruction, but the Pennsylvania Supreme Court announced a per se reversal rule, stating “[w]e now admonish all prosecutors that reliance in any manner upon the Bible or any other religious writing in support of the imposition of a penalty of death is reversible error per se and may subject violators to disciplinary action.” ( Id . at 644.)
Courts usually find that Bible quotes and other religious imagery that do not ask the jury to follow religious teachings rather than the law are not per se reversible error. In those cases, courts typically take the approach endorsed by the Sixth Circuit that, although a prosecutor’s statements that the Bible supported capital punishment were improper, the court could not “conclude that they so tainted the proceeding that they constitute reversible error.” ( Coe v. Bell , 161 F.3d 320, 351 (6th Cir. 1998).) The First Circuit similarly refused to reverse a conviction after a prosecutor compared a defendant’s denial of intent to import cocaine with Peter’s denial of Christ. The court found the religious reference to be an “irrelevant and [an] inflammatory appeal to jurors’ private, religious beliefs,” but held that “unambiguous evidence” and “strong and explicit” curative instructions prevented the religious references from constituting reversible error.” ( United States v. Giry , 818 F.2 120, 133–34 (1st Cir.), cert. denied , 484 U.S. 855 (1987).)
Most courts weigh the statements made in the context of the strength of the evidence of guilt and whether there has been a curative instruction to the jury. Reversals are rare when the religious references are few, the evidence of guilt is strong, and explicit curative instructions are given to the jury. Examples include Hooks v. State , 416 A.2d 189, 204–07 (Del. 1980), in which the court found that the prosecutor’s statements that defendants were “‘despicable’ people to whom the Bible ‘doesn’t mean anything’” were improper but not prejudicial due to weight of the evidence and curative instructions. In State v. Cribbs , 967 S.W.2d 773, 783–84 (Tenn. 1998), the court found that, although the prosecutor’s references to the Bible were improper, the defendant was not prejudiced by invocation of the passage “whatever a person sows, so shall he reap” during the penalty phase of a capital trial because the prosecutor characterized it a metaphor for individual responsibility.
Because of the prosecutor’s inability to appeal in most instances, defense counsel’s improper use of religion in closing argument remains largely unreviewed by appellate courts. But the de facto broader latitude defense lawyers enjoy due to lack of appellate control is counterbalanced by the invited response doctrine that allows prosecutors during rebuttal to respond in kind to defense improprieties. Although trial judges should enforce the limits of proper argument equally upon defense lawyers and prosecutors, when trial judges fail to do so, the ABA Standards for Criminal Justice provide that “a prosecutor may be justified in making a reply to an argument of defense counsel that may not have been proper if made without provocation.” (Criminal Justice Standard 3–5.8 commentary.)
The Supreme Court in United States v. Young , 470 U.S. 1 (1985), upheld the invited response doctrine when it reasoned that “defense counsel’s conduct, as well as the nature of the prosecutor’s response, is relevant” in deciding whether the prosecutor’s remarks affected the fairness of the trial. ( Id . at 12.) The Court reluctantly affirmed the conviction while lamenting that “two improper arguments—two apparent wrongs—do not make for a right result.” ( Id at 11.) The Court then cautioned that its decisions on the invited response doctrine “should not be read as judicial approval—or encouragement—of response-in-kind that inevitably exacerbates the tensions inherent in the adversary process.” ( Id . at 12.) In explaining the doctrine, the Court stated that although the prosecutor’s argument was improper, it was not a reversible error because the prosecutor’s remarks were “invited” and limited to respond to the defense remarks. ( Id . at 12–13.)
Courts, then, will not reverse convictions when a prosecutor quotes from the Bible or uses other religious imagery in closing arguments if defense counsel did so first. For example, the court in Bennett v. Angelone, supra, 92 F.3d 1345–47, found the prosecutor’s religious references to Noah’s “sword of justice” and Jesus and the Romans were “highly improper and deserve strong condemnation” but not sufficient to render sentencing “fundamentally unfair” due to the curative instruction and the defense’s use of religion in summation. And in Crow v. State , 458 S.E.2d 799, 811 (Ga. 1995), the Georgia Supreme Court found the prosecutor’s statement that “the Bible says that you shall be put to death if you kill somebody” a reasonable response to defense evidence in mitigation that was largely “appeals to religion” including ministers and fellow churchgoers, “all of whom praised Crowe for his Christianity and religious activities, including past service as a minister of music and a deacon.” The Crowe court found that the prosecutor “did not urge the jury to return a death sentence based on Crowe’s religious beliefs or argue that the teachings of a particular religion command the imposition of the death penalty in the case,” so even if the prosecutor’s arguments were improper they were a “legitimate effort” to counter the defense witnesses. ( Id .)
Although there is some lack of clarity concerning the acceptable use of religious imagery and Bible quotes in closing argument, there are two clear lessons.
First, the prosecutor must avoid using religiously charged closing arguments in the first instance. Statements that assert that jurors have a religious duty to convict or impose specific penalties in a case are improper. The only duties jurors have are to be fair and impartial and to follow the jury instructions. The criminal justice system is a secular system, requiring jurors to reach their verdict by applying state or federal law to the evidence admitted during the trial.
Second, the defense lawyer also needs to be cautious about religious references. Although a defense lawyer does not run the risk of having a not guilty verdict overturned on appeal because the lawyer used quotes from the Bible in closing arguments, by using religious references the defense may open the door to the prosecutor’s use of religion in rebuttal argument through the invited response doctrine. Should the prosecutor decide to interject religion into the rebuttal as an invited response to that open door, a reversal based on the prosecutor’s use of religion is unlikely, provided the prosecutor does not exceed the bounds of the defense’s use of religion.
Studies show that most jurors make up their minds before closing arguments, and most trial lawyers agree that a case is won or lost during earlier phases of a trial. Yet lawyers continue to cross the ethical boundaries of proper argument by interjecting religion. Why do lawyers do it? It may be explained by inexperience, lack of preparation, or ignorance of the limits of proper argument. Passion for the case may also carry some lawyers away. Some may be unable to disengage their personal convictions. Whatever the reasons, lawyers should keep religion out of their closing arguments so that jurors stay focused on applying the law. Criminal trials have serious consequences for the accused and the victims. When religion is interjected into closing arguments a prosecutor faces the possibility of a reversal; either the defense or the prosecution may trigger a mistrial; or the defense may invite a response-in-kind from the prosecutor, resulting in statements that would otherwise trigger a mistrial or be grounds for an appeal. The courts have ruled that the Ten Commandments do not belong in the courthouse rotunda, and religious references and imagery do not belong in closing arguments.