A  fascinating  discussion has broken out a Defending People, where the Texas Tornado, Mark Bennett, has challenged his District Attorney wannabe, Kelly Siegler, for training her minions to use the tactic of fear.  Seigler’s advice to young prosecutors in Houston is to “make the jury afraid” in order to get that conviction.  Bennett disagrees:

Make people afraid isn’t about empowering them to act on their fear. It’s not “play on people’s fears” but “make people afraid.” Manipulate them, in other words, by causing them to feel fear that they wouldn’t otherwise feel.

In the subsequent discussion, a number of prosecutorial types argue that this is a legitimate thing to do. As is often the case, the debaters recast the issue in their own fashion, using their characterization to show that they “get it” while others don’t.  For example, one argues:

I feel that “fear” and making a jury understand how scary a scenario might have been for a Complainant is a legitimate consideration for juries.

Of course, this is a strawman argument, since it has now connected the fear to the facts, the very point that Bennett disputes.

But the question remains, if only the spinners could focus on the primary question, whether the strategic use of fear to manipulate a jury is an appropriate strategy.  Before addressing this, a caveat:  The underling facts may give rise to fear by their nature.  That the government’s case may evoke fear is not strategic, but inherent.  They come by fear naturally because the facts of the case give rise to fear.  This is not the topic at hand. 

The subject of Mark’s post is whether prosecutors should deliberately create an atmosphere of fear of crime, unrelated to the particular facts of a given case, in order to manipulate a jury to be more susceptible to conviction without regard to the evidence in the case. 

The answer is clearly no, this is not a legitimate tactic.  If a person is to be convicted, it is because of the conduct in which they have engaged.  The last thing we need is less attention to the evidence of guilt.

To create a climate of fear is to appeal to prejudice.  Make a jury afraid of crime in general, and cloud their vision of the only issue at hand.  Did THIS defendant commit THIS crime.

What is particularly disturbing about the question is how it takes such a misguided approach to the prosecutorial function.  It is not the job of the state to get convictions at any price, but to do everything within its power to only convict the guilty.  When the government goes outside the evidence to increase its chances of getting a conviction, to manipulate a jury, to create an atmosphere in a courtroom designed to divert the jury’s attention from the evidence in the case to some general sense of fear, it has failed in its ethical and legal duty and has undermined the legitimacy of the criminal justice system.

Fear, disconnected from the facts, is never a legitimate strategy of the prosecution.  It’s painful to see so many argue to the contrary.  No matter how hard they try to spin the issue, a conviction based upon anything other than facts as proven by evidence reflects a miscarriage of justice.