Via Dan Hull at What About Clients?, a rather bizarre little story about Kansas lawyer Sam Kepfield’s attempt to make a point.
Lawyer Sam Kepfield pulled the dud grenade out to make a point in a forgery and theft case against a Hutchinson, Kan., woman.The Hutchinson News reports that Kepfield set the grenade on a ledge in front of jurors, then moved it to the prosecutor’s table. He reportedly pulled the pin from the grenade and asked jurors, “Are you afraid now?”
“I was trying to demonstrate what’s called an imminent threat,” Kepfield told the paper.
There was no objection and the presiding judge simply asked that Kepfield remove the grenade from the table. Kepfield’s client was convicted following 15 minutes of jury deliberations, according to the Hutchinson News.
The use of demonstrative evidence is often promoted as a wonderful way to make a concrete point when conceptual arguments fly over the heads of the jurors. It’s not without limits, however.
We’re often caught between a rock and a hard place in trying to come up with ways to make clear to jurors, who may or may not be capable of understanding arguments, We fear that we won’t be understood, so try to come up with a way to make our argument absolutely clear. So clear that no one could possibly miss it.
For reasons unknown, Sam Kepfield thought the grenade analogy would do the trick. And it may well have been the perfect way to show what is meant by “imminent threat.” But it ‘s impossible to ignore two things: First, the jury returned a guilty verdict in 15 minutes, and second, Kepfield got himself in a heap of trouble for his efforts.
We’re often caught between a rock and a hard place in trying to come up with ways to make clear to jurors, who may or may not be capable of understanding arguments, We fear that we won’t be understood, so try to come up with a way to make our argument absolutely clear. So clear that no one could possibly miss it.
For reasons unknown, Sam Kepfield thought the grenade analogy would do the trick. And it may well have been the perfect way to show what is meant by “imminent threat.” But it ‘s impossible to ignore two things: First, the jury returned a guilty verdict in 15 minutes, and second, Kepfield got himself in a heap of trouble for his efforts.
District Attorney Keith Schroeder intends to also alert the Kansas attorney general’s office.One might wonder why, given that the grenade was a dud, the district attorney can still raise a legitimate issue of safety. The answer is that Kepfield might have believed the grenade to be a dud, and it turned out that his belief was correct. But then again, he couldn’t be sure that the grenade wasn’t live, even if just a little bit, until he pulled the pin. Anybody crazy enough to use a grenade to make his point might not be sufficiently trustworthy to be certain that it wouldn’t explode.
“Clearly, I’m concerned about the situation and the safety of my employees, and I’m concerned about the way the jury’s treated,” Schroeder said.
This isn’t a condemnation of demonstrative evidence, or even a suggestion that the use of props to help the conceptually-challenged to understand a point isn’t something worth considering. Just don’t scare the crap out of the jury, judge and prosecutor in the process. Think long and hard before you place something on the rail that will strike fear in the hearts of the men and women who will be deciding your client’s fate. While they may take jury duty seriously, they are unlikely to be prepared to die for it.
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Let’s see, the idea was to induce an idea of ‘imminent threat” in the jury, by giving them a reasonable belief of imminent threat of death or serious bodily injury. One assumes the court officers were aware of what he planned to do but still anyone in the room would’ve been justified to use force, including deadly force, to stop the threat. I wonder how the attorney would have managed if a juror had grabbed the grenade and beat him to a point of his surrendering the grenade. Or would he argue that a reasonable person would know a member of the bar wouldn’t bring a live grenade into court. It’s not like he was an Army psychiatrist or something.
Ouch. Great point.
Gosh, maybe he had a lousy case and a lousy client and a lousy defense, and all the grenade trick did was underline just how desperate he was to distract the jury from the facts.
Without knowing anything else about the case or the presentations, what else can we say besides the fact that desperate, dramatic gestures sometimes don’t work — merely another variation on “‘no one has the slightest idea of what juries are going to do or why.'”
Sir, Mr. Kepfield probably didn’t mean any harm & hopefully he won’t pull anymore Hollywood stunts.
Can the prosecution team utilize a firearm as demonstrative evidence to show jury the kind of gun used? And is the firearm considered a State’s Exhibit at that time? Thanks.
Anything admitted into evidence can be used by either side before the jury. The question is whether you want to and should.
Sure. And if — for whatever reason — he wanted to use a dummy grenade, couldn’t he just have at least tried to enter it into evidence as some sort of demonstration exhibit? I’m not saying that’s wise, or that the judge would have let him, but — and this isn’t a rhetorical question, although maybe it’s a stupid one — wouldn’t that have avoided the difficulties he’d gotten himself into?
Sir, that makes perfect sense. I’m also curious as to how the grenade made it through security checks.
On the same note but different scenario.
If a prosecutor wanted to display a .38 cal. revolver w/ six inch barrel in a robbery case, where a .22 or .25 cal. w/ two inch barrel was used, I’m left wondering where he’d obtain it from & why choose a large .38 instead of a grenade? Thanks.
I’m not sure you understand. Neither prosecutor nor defense lawyer can just put objects into evidence because they want to. The object must be relevant to the case, not just some arbitrary prop. So there would never be a prosecutor with a .38 when a .22 was the gun used.
It’s important not to care so much about the outcome of a case (or any other event in life) that you manifest desperation. Steady as it goes, counselor, and stay focused on the evidence.