Don't Take His Eye, Don't Take His Tooth, and Don't Cast the First Stone: Limiting Religious Arguments in Capital Cases

Professors John H. Blume and Sheri Lynn Johnson explore the occurrences of religious imagery and argument invoked by both prosecutors and defense attorneys in capital cases. Such invocation of religious imagery and argument by attorneys is not surprising, considering that the jurors who hear such arguments are making life and death decisions, and advocates, absent regulation, will resort to such emotionally compelling arguments. Also surveying judicial responses to such arguments in courts, Professors Blume and Johnson gauge the level of tolerance for such arguments in specific jurisdictions. Presenting proposed rules for prosecutors and defense counsel who wish to employ religious quotes, images, authority, and the like, Professors Blume and Johnson propose that religious comments by prosecutors should be sharply limited, while defense counsel should be given wider latitude (though not unfettered freedom) to address religious subject matter.

The proposed rules are arrived at by considering the constraints placed upon prosecutors (but not defense attorneys), and the rights conferred upon capital defendants (but not the state) by the Eighth Amendment's cruel and unusual punishment clause.