By: Michael A. Schafer
There is no personal injury trial lawyer that hears the term Reptile and thinks iguana anymore. We know it is a technique for trying cases developed by the phenomenal trial attorney, Don Keenan, and brilliant jury consultant, David Ball. Unfortunately, there are a lot of misconceptions and misunderstandings surrounding “The Reptile”. This concept is not one that is totally brand new, innovative and a mind-controlling technique as many attorneys who defend personal injury cases would lead you to believe. The Reptile theory is actually based on case law that goes back many years. And yes, it is supported by Kentucky case law.
Some concepts of “The Reptile”, such as the “jury as the conscience of the community”, may be viewed as the modern way of looking at the trial philosophy of the legendary trial attorney, Moe Levine. Moe Levine felt that the jury must feel their verdict was a “meaningful verdict.” They needed to be proud of the verdict when they went home. The bottom line was that the trial attorney had to give them a reason why the verdict would be one they would be proud to render. This came down to letting the jury know that they were the “voice and conscience of the community.” That the jury set community standards and spoke for the community. This lets the jury know that what they do is very important and has meaning beyond the set of facts that is before them.
These techniques are now being packaged in a different way. The right of any trial attorney to remind the jury that they are the “conscience of the community” is one area that has strong roots in Kentucky Law.
The Supreme Court of Kentucky has recognized the right of an attorney to remind the jury that they are the “conscience of the community.” In Lymen v. Commonwealth, 565 S.W.2d 141 (Ky.1971), the prosecutor used this statement in his closing argument:
Punishment is for punishment’s sake. Punishment and sentence in a penitentiary is more than that. It’s to say to the man that did it: Don’t do it again. But more than that, it’s to say to all of these people in our community that are out there picking locks and rob and steal and make money easy saying: I don’t have to work for it. It’s saying to those – your sentence here today is saying to those: Don’t do it; we won’t tolerate it. We’re going to make this place a safe place, and we’re going to stomp out people that rob at gunpoint.
Lymen v. Commonwealth, 565 S.W.2d 141, 144 (Ky.1971).
The Supreme Court found that this statement to the jury did not constitute an appeal to prejudice and that an attorney is allowed reasonable latitude in argument to persuade a jury that the matter before them should not be dealt with lightly. Id. at 144-145.
Another similar argument was made in Meyer v. Commonwealth, 472 S.W.2d 479 (Ky. 1971) as follows:
It’s now up to you. This heavy burden is going off of my shoulders. I haven’t slept for the last three nights. It’s yours now. What are you going to tell the decent people of this community? In all that’s right and fair and just, go to your jury room and, by your verdict, tell the people of this community that what we have heard the last three days will not be tolerated, will not be permitted in this community. I plead with you, do your duty and do it promptly. It is not pleasant, but do it. And may God, in His infinite wisdom, be with you in your deliberations. Thank you.
Meyer v. Commonwealth, 472 S.W.2d 479, 486 (Ky. 1971).
The Meyer Court found that such argument by counsel fell short of tending to cajole or to coerce the jury, and as such, did not constitute reversible error. Id. at 486-487.
More recently, in the case of Fields v. Commonwealth, 219 S.W.3d 742, 751 (Ky. 2007), the Kentucky Supreme Court analyzed this closing statement:
. . . Rogers doesn’t have family here to my knowledge. He probably doesn’t have a lot of friends. He doesn’t have anybody except himself, and now you people, the conscience of the community, to say we don’t tolerate this. And we won’t tolerate it.
Fields v. Commonwealth, 219 S.W.3d 742, 751 (Ky. 2007) (emphasis added).
The Fields Court first acknowledged that a while prosecutor has wide latitude in presenting a case to a jury, he or she cannot “cajole or coerce a jury to reach a verdict which would meet with the public favor.” Id. (citing Stasel v. Commonwealth, 278 S.W.2d 727, 729 (Ky. 1955)). However, the Court distinguished these closing remarks, finding that they did not constitute attempts to cajole or coerce the jury to return a verdict by arguing that it would meet with public favor to do so or threaten the jury with “public scorn” for doing their job. Id. Rather, the Court found that the prosecutor simply asked the jury to render a verdict despite the Defendant’s unfavorable station in life and acknowledged the jury as the “conscience of the community, which they truly are.” Id.
The Supreme of Kentucky has explicitly recognized the jury’s role as the conscience of the community within the federal and state constitutional framework. In Horton v. Union Light, Heat & Power Co., Ky. 690 S.W.2d 382, 385 (Ky. 1985), the Supreme Court held that “[t]he role of the jury in interpreting the evidence and finding the ultimate facts is an American tradition so fundamental as to merit constitutional recognition.” U.S. Const. Amend. VII; Ky. Const. Sec. 7. The Horton Court goes on to say:
The more judges take cases away from juries, the more the concepts of reasonable conduct, negligence and gross negligence become synonymous with the view of the judge or judges on that court. Likewise, the more the interpretative power is delegated to juries, the more these concepts become the aggregate of discrete findings by juries. . . . The conscience of the community speaks through the verdict of the jury, not the judge’s view of the evidence. It may well be that deciding when to take a case away from the jury is a matter of degree, a line drawn in sand, but this is all the more reason why the judiciary should be careful not to overstep the line.
Horton v. Union Light, Heat & Power Co., Ky. 690 S.W.2d 382, 385 (Ky. 1985) (emphasis added).
Consequently, there are constitutional implications to any assertion that the jury cannot be told that it is the “conscience of the community” because that would be tantamount to denying its inherent constitutional function.
The Kentucky Supreme Court has upheld all references to the “conscience of the community” and has recognized the right of counsel to remind the jury that they are the “Conscience of the Community.” Kentucky jurisprudence is clear that the role of the jury is held in high esteem and should not be limited except in clear circumstances. 14 Ky. Prac. Trial Practice Section 7:40, this argument is proposed: “[i]t is now time for you jurors to retire to the jury room to deliberate. As you do so, you must think not only of the impact this evidence and this case will have on the parties but on our community as a whole. I tell you that by our verdict you will speak for this community and the feelings of this community about such conduct. You jurors are the conscience.”
Kentucky case law, as well as case law in every state, tells us that the jury is the Conscience of the Community and it is appropriate for trial lawyers to remind the jury of this. Look to Kentucky case law and you will find many gems that are useful to defend statements you make in your closing arguments acknowledging, educating, and empowering the jury in their role as the Conscience of the Community against defense motions in limine and objections on such grounds as undue prejudice and “Golden Rule” arguments which inevitably arise.