Crime & Federalism

In January I wondered whether using the Duke case in voir dire would be a valuable strategy.  (In my opinion, the answer was clearly, yes.)  I received a surprising level of criticism at the idea.  Fortunately other lawyers who are not blinded by race and class prejudice have used the Duke case in voir dire and closing arguments - much to the chagrin of prosecutors.  (Via Overlawyered). 

The resistance I received to the idea, I believe, is due to projection.  People who see the world through race and class bias naturally thought it would be a bad idea since, everyone else must realize that those Duke kids were really bad people who must have done something.  I think that shows how out-of-touch many in the legal community are with regular people. 

Most people do not view the United States as being a patriarchy.  Most don't even know what the Hell that means.  (I took a Women's Studies class, and can't say that Americans are worse off for being unfamiliar with such drivel.)  Most do not view this as being a society where white males escape their just punishment for charged and uncharged crimes.

Thus, the Duke case is so powerful precisely because while most people cannot understand the plight of poor African Americans, most people can relate to young white males being railroaded by the system.  (I think the lack of empathy is tragic; but the lack of empathy certainly exists.)  People are generally only able to relate to people "like them."  For various reasons, most Americans view themselves as being more like the Duke defendants than they do a poor African American criminal defendant.  (If charged with a crime, however, most Americans would realize they would be unable to mount even half the defense the Duke defendants were able to afford.)

In any event, people are using the Duke case with good results.  I think it's helpful in those cases where there are real problems of proof.  Obviously, if the prosecutor's case is strong, yelling "Duke!" won't do any good.  But when you have a case where the motives of the prosecutor of other witnesses might be impure, mentioning the Duke case can be of much help.

Indeed, prosecutors can use the "Duke Effect" to their benefit?  How?  In a strong case, a prosecutor could preemptively say: "After hearing from the witnesses, you'll realize this case is nothing like the Duke case.  This is a strong case."  This is something trial lawyers often do in tort cases. 

Many plaintiffs lawyers will say during voir dire: "We've all heard of the McDonald's coffee case.  I'm here to show you this is not the McDonald's coffee case."  Likewise, prosecutors can use Duke as a way to show that their case is nothing like that case.

It's also powerful framing, as it relies on the principle of contrast.  The McDonald's coffee case is (rightly or wrongly) universally understood as an extremely weak case.   So showing that your case is superior to the McDonald's coffee case gives you a low hurdle to overcome.  You are comparing your case to something very weak.  A prosecutor can likewise benefit from framing his case as being different from the (joke-that-was) the Duke case.

So the Duke case has power for intelligent lawyers on both sides.  Prosecutors who have strong cases need not fear it.  In fact, they should embrace it. 

Prosecutors who fear the Duke Effect do so only because they have weak cases.  Which makes me wonder: Why are these weak cases even being brought?