The National Pulse
The Bible Tells Them So
Making Biblical References at Trial May Be Grounds for Revers
Posted Jul 28, 2005 1:10 PM CDT
By David L. Hudson Jr.
Joe Freeman Britt—once called “the deadliest prosecutor” by the Guinness Book of World Records for his success in capital cases—never backed off from using biblical arguments to persuade a jury when he was district attorney for Robeson County, N.C.
“Biblical references were considered great works of literature,” Britt says. “They can be used with caution, just as any quotation of a great work, to make a particular point.” But even a prosecutor as aggressive as Britt spots the quandary in bringing the Bible into criminal trials. When he later served as a trial judge, Britt says, he declined to quote the Bible at sentencing. “I never editorialized when handing out sentences.”
There is a fine line between literary reference and biblical command, yet criminal law courts are increasingly being asked to draw it, especially against the backdrop of the nation’s rise in religious awareness. The issue comes most often into focus in capital cases.
In March, for example, the Colorado Supreme Court invalidated a death sentence because a juror brought a Bible into the jury room during deliberations. People v. Harlan, 109 P.3d 616.
And in January, a divided three-judge panel of the Cincinnati-based 6th U.S. Circuit Court of Appeals reversed a district court’s granting of habeas relief to a man whose sentencing judge quoted the Bible as an “additional source.” Arnett v. Jackson, 393 F.3d 681.
“There is a very murky line between the standards of common morality that are ultimately religiously based and specific religious commands,” says Vanderbilt University constitutional law professor Thomas R. McCoy. “The difficult question is when do general societal, ethical and moral standards blur into reliance on explicit religious sources?”
Jury deliberations are one such occasion. In Harlan, a juror brought a Bible and notes into the jury room and shared passages, one of which was from Leviticus: “Fracture for fracture, eye for eye, tooth for tooth ... so shall it be done to him. ... Whoever kills a man shall be put to death.”
The Colorado Supreme Court said that a juror may rely on and even discuss “religious upbringing, education and beliefs.” However, the court said, “it was improper for a juror to bring the Bible into the jury room to share with other jurors the written ... texts during deliberations; the texts had not been admitted into evidence or allowed pursuant to the trial court’s instructions.”
Legal vs. Biblical principles
Cornell University law professor Sheri Lynn Johnson agrees with the ruling, especially as it invokes a religious-based society. “The majority is correct in saying that in a heavily religious culture, to recite the Bible to someone could have a prejudicial effect on the sentencing,” she says.
However, she adds, “it is a complicated issue because a juror is free in the jury room to consider his or her moral values and, of course, religious values might be part of the equation.”
The concern, some experts say, is that jurors will rely too much on the Bible as their source rather than the rules of evidence.
“Given the biblical concepts of an eye for an eye, a tooth for a tooth, there is a concern that jurors could sway from legal principles to biblical principles about retribution and appropriate punishment for evil deeds,” says professor Kevin O’Neill of Cleveland-Marshall College of Law.
“Our legal system imposes tight controls over what is allowed in the jury room,” O’Neill says. “Take, for example, the hearsay exception for learned treatises. An expert witness can refer to a passage in a treatise, but that treatise is not allowed inside the jury room for fear that jurors will roam at large through its pages, drawing unguided and possibly erroneous conclusions. A similar kind of problem occurs with the Bible. We don’t want jurors roaming at large through the Bible, seeking guidance that may supersede the legal standards they’re required to show.”
However, Colorado Supreme Court Justice Nancy E. Rice filed a dissenting opinion in Harlan questioning why there should be a special rule when a juror writes down a biblical passage as opposed to discussing it or just having it memorized. “It is without doubt that a juror may relate passages of Scripture from memory during deliberations, and that such recitation would not even be considered extraneous, much less prejudicial,” she wrote.
Morality and religion also abut when judges cite biblical passages when meting out sentences. Arnett involved a man who pleaded guilty to 10 counts of rape and one count of obscenity for his conduct in sexually abusing a 5-year-old.
According to the decision, the trial judge said during sentencing: “I turned to one additional source to help me. ... Matthew 18:5-6: ‘And who so shall receive one such little child in my name receiveth me. But, whoso shall offend one of these little ones which believe in me, it was better for him that a millstone was hanged about his neck, and he was drowned in the depth of the sea.’ ”
Bible as an ‘Additional Source’?
The defendant claimed the court’s biblical references amounted to denial of 14th Amendment due process rights. The U.S. District Court for the Southern District of Ohio agreed.
However, the appeals court reversed, denying habeas relief and finding that the totality of the circumstances did not show that the trial judge used the Bible as the “final source of authority” but only as an “additional source.”
But Judge Eric Clay dissented: “Under this approach, the judgments of trial courts could begin to resemble the fatwas of religious clerics, and the opinions of appellate courts echo the proclamations of the Sanhedrin.”
In addition to evidentiary and due process challenges, some scholars point to potential problems under the First Amendment’s establishment clause.
“In jury deliberations that include the use of the Bible, there can be an establishment clause problem because jurors are part of the state machinery,” McCoy says.
In addition, he identifies an establishment clause issue “when judges and prosecutors, agents of the state, are relying on religious sources for standards of conduct and are invoking religious texts in comments to jurors.”
Many courts have warned prosecutors that biblical references are improper when advocating for the death penalty. But in many cases, reviewing courts decline to allow that such arguments are reversible error.
“There is a mild trend toward courts disapproving of prosecutors making religious-based arguments,” says Johnson, assistant director of the Cornell Death Penalty Project. “However, most courts are very hesitant to overturn a conviction.”
In 2003, the North Carolina Supreme Court refused to overturn a death sentence in which a prosecutor began his argument by anticipating that the defense attorneys would argue that “capital punishment may be somehow contrary to Christian ethics. ... And they may quote such chapters from the Bible as thou shall not kill.” State v. Haselden, 577 S.E.2d 594.
The state high court said no new sentencing phase was required. But the court did “strongly encourage counsel” to “base their jury arguments solely upon the secular law and the facts.”
Yet, the practice continues, Johnson says. “It is hard to tell how many times prosecutors make religious based arguments because the appellate challenges do not give an accurate account of the frequency of the conduct,” she says. “The practice of making religious based arguments has not gone away. In fact, it is still prevalent in some areas, particularly the South.”
And so the legacy of Joe Freeman Britt is likely to continue. After all, Britt says, “If you look at it as a quotation from great literature, not as a religious mandate, and if you present it in that fashion, I think it is acceptable.”
David L. Hudson Jr. is a staff attorney with the First Amendment Center at Vanderbilt University in Nashville.