Barring Foul Blows: An Argument for a Per Se Reversible-Error Rule for Prosecutors' Use of Religious Arguments in the Sentencing Phase of Capital Cases
Ninety-five percent of Americans profess belief in God, and seventy percent are members of a church or synagogue. Consequently, religious arguments, such as the prosecutor's invocation of Romans 13:1-7 from the Bible as excerpted above, will likely resonate with a jury consisting of "a fair cross-section" of a defendant's community and have a substantial impact on the decision-making process of its members. The impact of religious arguments is especially strong in the sentencing phase of capital cases when jurors must weigh a myriad of factors to determine whether a particular individual's life should end.
Notwithstanding the great risk, indeed likelihood, of a prejudicial effect from arguments based on religion rather than on secular law, courts consistently find that other factors sufficiently mitigate any danger of unfair prejudice. For example, in People v. Sandoval, the Supreme Court of California identified a portion of the prosecutor's final argument in the sentencing phase, excerpted above, as a paraphrase of Romans 13:1-7, a biblical passage commonly understood as providing justification for the death penalty. Although the court found that the argument was improper and constituted misconduct, it held that the lengthy deliberations left no reasonable possibility that the jury would have reached a verdict more favorable than death on "only" one of the four counts. Typical of most courts, the court in Sandoval offered no remedy or sanction beyond general disapproval of the improper argument that it deemed to be misconduct.
Whether on direct appeal or writ of habeas corpus, state and federal courts perform a contextual analysis in capital cases in which prosecutors invoke religious arguments, and the courts almost invariably find that the weight of the evidence, the length of the proceedings, or the trial judge's instructions overcome any prejudicial effect of the argument. This totality approach underestimates the prejudicial effect and discounts the constitutional nature of the misconduct. Moreover, the reasoning underlying such analysis is even less convincing when applied in the sentencing phase. Here, much more is at stake for the defendant-life. All that is at stake for the government is the method of punishment. Also, this separate proceeding is typically much shorter than the guilt phase and relies upon more personal judgments by the jury."
Recognizing the danger of prejudice and the impotence of the court's practice of discouragement via reprimand, the Pennsylvania Supreme Court adopted a rule of automatic reversal of death sentences when a prosecutor relies upon a religious writing to support the penalty. American jurisprudence places a high professional duty on prosecutors and demands vigilant protection against improper influences in capital cases: "[W]hile [a prosecutor] may strike hard blows, he is not at liberty to strike foul ones."' Concordantly, the Pennsylvania Supreme Court proscribes a prosecutor's invocation of religious law that goes beyond mere allegorical references and exerts an improper influence.
Brian C. Duffy,
Barring Foul Blows: An Argument for a Per Se Reversible-Error Rule for Prosecutors' Use of Religious Arguments in the Sentencing Phase of Capital Cases,
50 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol50/iss5/5