California’s judicial “Golden Rule”

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It’s called the Golden Rule argument because it’s used by prosecutors to put jurors in the shoes of the victim. And according to Pepperdine Caruso School of Law Professor H. Mitchell Caldwell and recent Pepperdine Law School graduate Allison Mather, writing in the Regent University Law Review (behind a paywall), “Such arguments are nearly universally prohibited because they replace rational and deliberative decision-making with a blatant appeal to jurors’ emotions.”

The lone exception to this prohibition, the authors point out, is California, which allows the argument in the penalty phase of capital trials when jurors are deciding between a life or death sentence. These arguments are “an appeal to their most gut-wrenching, darkest instincts,” and are, therefore, “impermissible because they replace rational and deliberative decision-making with a blatant appeal to the jurors’ emotions.”

Death penalty lawyer and DPF board member Robert M. Sanger agrees, but adds that, “We have to be careful when limiting the scope of the prosecution’s closing arguments at the penalty phase that we do not also restrict the defense from making an appeal to emotion, empathy, and mercy.”

He points out that in Lockett v. Ohio, the US Supreme Court held that the penalty judge or jury may “not be precluded from considering as a mitigating factor any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.”

That means that because the defense can argue almost anything that can be offered as a reason for life, “If the Golden Rule argument on the part of prosecutors is eliminated, the defense will have to be armed with Lockett and its prodigy to preserve its right to appeal to emotion.

“It is not simply arguing about just deserts in the abstract, it is saying that the victim (or victim’s family) should be entitled to revenge. And that is how the Golden Rule argument is used – how would you feel if you or your loved one were being brutally murdered by the defendant. You would be angry, you would want revenge, you would want to kill – so go into that jury room and vote to kill.”

The Golden Rule is just as impermissible as the other only-in-California practice of requiring a unanimous vote in the guilt phase but not the punishment phase in capital trials, according to Sanger. “Although I support eliminating the Golden Rule argument and, for instance, requiring unanimity and proof beyond a reasonable doubt of aggravators, it will require the defense bar to be vigilant about insisting that the jury’s decision is not based on a calculated and non-emotional analysis.”

In short, says Sanger, “The main thing is that the use of the Golden Rule argument to the jury illustrates what the death penalty is all about and why we should not only eliminate the argument but the death penalty itself.”

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