Golden Rule: No Golden Rule Arguments

The Vermont Supreme Court has reversed a criminal conviction for in part as a result of the prosecutor’s improper “Golden Rule” argument

But the prosecutor did violate the “golden rule” by asking the jurors to put themselves in the place of the child complainant:

As adults, no one would want to ever come into court . . . and say, okay, I’m going to talk now about my first sexual experience. . . . . Imagine how difficult it would be for an adult, and then put yourself in the eyes of twelve year-old child, and how difficult and challenging it would have been for her, and for her to come here, as well.

Finally, the prosecutor replayed the audio of K.S. and then told jurors: “That’s the word of a child in this case, and in this case, with all the corroborating evidence, it’s enough,” to find defendant guilty on all three counts. There was no objection to this portion of prosecutor’s closing argument.

Vermont has recognized the impropriety of an appeal to jurors to put themselves in the place of the victim. As the D.C. Circuit Court of Appeals recently explained: “A golden rule argument—which asks ‘jurors to place themselves in the position of a party’—is ‘universally condemned’ because it encourages the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on evidence.” Caudle v. District of Columbia, 707 F.3d 354, 359 (D.C. Cir. 2013) (citations omitted)…

The prosecutor’s repeated improper remarks showed “a studied purpose to arouse the prejudices of the jury.” Id. at 407, 377 A.2d at 257. This Court has condemned arguments made to the jury in which the prosecutor makes inflammatory statements or appeals to the sympathies of the jury. See State v. Bubar, 146 Vt. 398, 403, 505 A.2d 1197, 1200 (1985). This rule is well established. More than seventy years ago in Duchaine v. Ray, we noted that counsel’s urging of jurors to place themselves in the victim’s shoes was a “highly improper” and a “lamentable departure” from the rule against appeals to jurors’ prejudice. 110 Vt. 313, 321, 6 A.2d 28, 32 (1939). As in State v. Madigan, the prosecutor’s statements “exceeded the bounds of fair and temperate discussion, circumscribed by the evidence and inferences properly drawn therefrom.” 2015 VT 59, ¶ 31, 199 Vt. 211, 122 A.3d 517.

(Mike Frisch)