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When a trial attorney in New York gives a summation, can that attorney tell the jury that it is the conscience of the community? Does a lawyer making such a comment to the jury when summing up jeopardize a favorable verdict? The answer to these questions is a definite “maybe,” and depends on the context of such a comment, the frequency of its use, and whether the case is pending in state or federal court. This article addresses these questions, and its authors believe that as the role of a jury is indeed to serve as the conscience of the community, counsel should be permitted to so comment in all courts, and there is no innate prejudice to either side when counsel does so.

In 2007, the U.S. Postal Service issued a commemorative stamp (displayed on this page) paying homage to jurors.

With this stamp, the Postal Service calls attention to the importance of jury service. This essential obligation, shared by all eligible citizens, is a cornerstone of democracy in the United States. In civil cases, a jury represents the conscience of the larger community, ruling in favor of either of the opposing parties in a dispute.1

Judicial Recognition

In Roth v. United States,2 the U.S. Supreme Court upheld a jury charge that repeatedly instructed the jury to act as the “conscience of the community”:

In this case, ladies and gentlemen of the jury, you and you alone are the exclusive judges of what the common conscience of the community is, and in determining that conscience you are to consider the community as a whole, young and old, educated and uneducated, the religious and the irreligious—men, women and children.

In United States v. Fell,3 the court stated that “the vicinage requirement, by defining the community from which a federal jury must be drawn, permits the jury to operate as the conscience of that community in judging criminal cases.”

In Spaziano v. Florida,4 the court stated:

That the jury provides a better link to community values than does a single judge is supported not only by our cases, but also by common sense. Juries—comprised as they are of a fair cross section of the community—are more representative institutions than is the judiciary; they reflect more accurately the composition and experiences of the community as a whole, and inevitably make decisions based on community values more reliably, than can that segment of the community that is selected for service on the bench. Indeed, as the preceding discussion demonstrates, the belief that juries more accurately reflect the conscience of the community than can a single judge is the central reason that the jury right has been recognized at the guilt stage in our jurisprudence.

All of the federal circuit courts of appeals agree that a jury is the conscience of the community.5

New York state courts have similarly found that a jury is the conscience of the community.6 Thus a prosecutor may urge a jury to do justice for the safety of the neighborhood.7

Juries serve as the conscience of the community in civil cases as well. In Mary Beth G. v. City of Chicago,8 the court held that:

The jury is the collective conscience of the community, and its assessment of damages must be given particular weight when intangible injuries are involved. Although a jury’s perceptions may vary from our own, we will not disturb its assessment of compensatory damages “unless in our judgment it can aptly be described as ‘grossly excessive’ or ‘monstrous’ or with similar perjorative adjectival terms.” (citation omitted).

In New York State, in David v. Manufacturers Hanover Trust,9 the court stated that:

While much has been written and spoken both for and against the institution of the jury, the fact remains that throughout our legal history the jury, in both civil and criminal cases, has been considered as the ‘conscience of the community,’ a ‘protector and dispenser of justice,’ a bulwark against possible abuses by the judiciary or even the Legislature.

Similarly, in Faulk v. Aware,10 the trial court noted that:

The jury’s function in assessing punitive damages is “to vindicate public decency” (citation omitted). This unprecedented award was evidently intended to express the conscience of the community, represented by this jury composed of men and women of different walks of life, varied educational backgrounds and economic status, concerning a matter of fundamental rights deemed of great importance to the general public and to the country. On such an issue I believe that a jury’s composite assessment more accurately reflects the sense of decency and moral values of the community than the estimate of an individual judge.

Argument by Counsel

In Wicks v. Wal-Mart,11 argument to this effect was permitted by plaintiff’s counsel. Wicks involved a claim of personal injuries caused by the defendant’s alleged negligence. Back in the 1990s, the upstate jury awarded $326,115 to compensate the plaintiff for her disc injuries. The defense claimed the award was excessive and was influenced by prejudicial statements made by Diane Wicks’ counsel during summation. The Court of Appeals found no merit to these arguments and affirmed the verdict.

Although Wal-Mart contends that the summation of Wicks’s attorney was improper because it, inter alia, suggested that the jury should act as the “conscience of the community” and should award Wicks $10,000 per year for pain and suffering, it is hardly clear that counsel’s summation references to specific dollar amounts were improper, (citations omitted). In any event, the instructions given by the district court were sufficient to remind the jury of its duties, and the jury does not appear to have been unduly influenced by Wicks’s counsel’s arguments. For example, the jury declined to award punitive damages, and the compensatory damages awarded were allocated by the jury between past years and future years in a way that shows that the jury did not award an average of $10,000 per year for either period. We see no error in Judge Siragusa’s conclusion, in denying Wal-Mart’s Rule 50 motion, that if there was error in the summation, it was harmless.

Other jurisdictions have also permitted such argument. For example, in Weaver v. Ross,12 the appellate court held that:

In spite of appellant’s assertions to the contrary, we are not persuaded that appellees’ closing argument, addressing the jury as “the regulators of this community” and stating that the jury verdict “will go a long way in determining how doctors will treat their patients,” was tantamount to an argument that the verdict should be used to punish the defendant.

In Leather v. Ten Eyck,13 allowing the jury to be the conscience of the community inured to the benefit of the defendants. Plaintiff John Leather was the Fire Coordinator for the County of Putnam serving at the pleasure of the County Legislature. The individual defendants were all members of the County Sheriff’s Department. Plaintiff contended and the trial jury found that in retaliation for expressing his opinion concerning the implementation of a new E-911 system in Putnam County contrary to the opinion of the sheriff, he was targeted for selective enforcement of the New York State Vehicle and Traffic Laws relating to drunken driving.

The defendants moved to set aside the jury’s verdict in favor of the plaintiff. The trial judge denied the motion and noted that as the jury found in plaintiff’s favor, they must have believed the plaintiff’s claims and proof. However, in such case, an award even higher than the verdict rendered would have been justified. The trial court noted that as plaintiff was actually driving while impaired, the jury gave a lesser amount, and did so as the conscience of the community.

In addition to his direct damages, Mr. Leather endured significant local publicity and notoriety, inflicted on a person who had previously held a good reputation in the community. TT at 381–382. Our jury was permitted to assess compensatory, or heartbalm damages in addition to direct damages for Mr. Leather’s loss of reputation and for the mental anguish, shame and humiliation which he endured as a result of the Constitutional violation. The jury was aware of the fact that Mr. Leather really was driving while impaired by alcohol and that he had done it before. Presumably that reduced awareness served to reduce the compensatory award, in a case which otherwise could have supported a seven figure verdict. Driving under the influence of alcohol is a serious problem, particularly in a community where the roads are narrow and the traffic heavy. To an extent, Leather’s own conduct was a concurrent cause of his damages and apparently was so regarded by the jury. The jury expresses the conscience of the community, and this Court must refrain from placing unreasonable restrictions on its power to do so, or second guessing its conclusions.

However, in Norton v. Nguyen,14 the use of this expression by counsel was criticized:

While it is inappropriate to refer to the jury as the “conscience of the community,” the context of that single reference reveals that there was no repeated prejudicial appeal to the jury’s sympathies and no inappropriate effort to obtain punitive damages (citations omitted). Thus, no new trial is required based upon the summation….

In Norton, the Appellate Division, Third Department, referred to Halftown v. Triple D Leasing15 when discussing this remark. However, in Halftown, the court had already concluded that a new trial was necessary due to an unrelated error of law, as well as other improper remarks made on summation, including telling the jury six times that they were the conscience of the community and inviting punitive damages, and an excessive award.

Conclusion

The authors respectfully submit that the use of the expression “conscience of the community” should not and does not have a prejudicial effect on the jury for either side, and should be permitted. The remarks of the court in United States v. Kravitz16 are applicable to such comments made on summation:

We think little of the words used by the prosecutor. We think they were unnecessary in an otherwise logical and convincing summation. But we quite realize as we have said before that some latitude must be given to lawyers’ language in a hard fought case. To say that this remark would have a prejudicial effect on a jury which had listened throughout a long trial to the unfolding of the testimony is to attribute a stupidity and absence of common sense which is incredible in a federal jury.

Sherri Sonin and Robert J. Genis are partners at Sonin & Genis.

Endnotes:

1. http://www.usps.com/communications/newsroom/2007stamps/.

2. 354 U.S. 467, 490 (1957). See also, United States v. Manarite, 448 F.2d 583, 592 (2d Cir. 1971).

3. 571 F.3d 264, 268 (2d Cir. 2009). Grand juries also serve as a conscience of the community. Gaither v. United States, 413 F.2d 1061 ftnt 6 (DC Cir. 1969); United States v. Marcucci, 299 F.3d 1156 (9th Cir. 2002).

4. 468 U.S. 447, 486-487 (1984). See, Ring v. Arizona, 536 U.S. 584, 615-616 (2002). See also, McKoy v. North Carolina, 494 U.S. 433, 452 (1990), Justice Kennedy stated in his concurring opinion, “Jury unanimity, it is true, is an accepted, vital mechanism to ensure that real and full deliberation occurs in the jury room, and that the jury’s ultimate decision will reflect the conscience of the community.”

5. First Circuit: United States v. Spock, 416 F.2d 165, 182 (1st Cir. 1969). See, Hall v. Ochs, 817 F.2d 920, 927 (1st Cir. 1987).

Second Circuit: United States v. Gleason, 616 F.2d 2, 14 (2d Cir. 1979), cert. den., 100 S. Ct. 1320 (1980). See, United States v. Dioguardi, 147 F.Supp. 421, 422 (S.D.N.Y. 1956). See also, United States v. Wilson, 2013 WL 3187036, No. 04-CR-1016(NGG)(E.D.N.Y. June 20, 2013). A “community impact” charge given to the jury is not reversible error. United States v. Terry, 702 F.2d 299, 313 (2d Cir. 1983), cert. den., 461 U.S. 931 (1983). Comments re community impact may constitute harmless error. United States v. Barlin, 686 F.2d 81, 93 (2d Cir. 1982).

Third Circuit: Bennett v. Murphy, 274 F.3d 133, 135 (3d Cir. 2001)[rev'ing on other grounds]; Hameen v. Delaware, 212 F.3d 226, 231-232 (3d Cir. 2000); Marshall v. Cathel, 428 F.3d 452, 473 (3d Cir. 2005).

Fourth Circuit: Collier v. United States, 283 F.2d 780, 782 (4th Cir. 1960); Green v. French, 143 F.3d 865, 890 (4th Cir. 1998). Cf., United States v. Runyon, 707 F.3d 475, 514-515 (4th Cir. 2013) (improper but would not mislead or inflame jury and not reversible error).

Fifth Circuit: United States v. Fields, 72 F.3d 1200, 1208 (5th Cir. 1996). In United States v. McKracken, 488 F.2d 406, 419 (5th Cir. 1974).

Sixth Circuit: United States v. Alloway, 397 F.2d 105, 113 (6th Cir. 1968).

Seventh Circuit: Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1276 (7th Cir. 1983); United States v. Falk, 605 F.2d 1005, 1012 (7th Cir. 1979); United States v. Ferguson, 935 F.2d 1518, 1530-1531(7th Cir. 1991).

Eighth Circuit: United States v. Lewis, 547 F.2d 1030, 1037 (8th Cir. 1976), cert. den., 429 U.S. 1111 (1977): Unless calculated to inflame, an appeal to the jury to act as the conscience of the community is not impermissible, and we cannot say that the remarks in the present case exceeded permissible bounds of advocacy.

Ninth Circuit: United States v. Koon, 34 F.3d 1416, 1444-1445 (9th Cir. 1994); See also, Summerlin v. Stewart, 341 F.3d 1082, 1113-1114 (9th Cir. 2003).

Tenth Circuit: Malandris v. Merrill Lynch, Pierce, Fenner & Smith, 703 F.2d 1152, 1170 (10th Cir. 1983); Spulak v. K Mart, 894 F.2d 1150, 1155-1156 (10th Cir. 1990); Robison v. Maynard, 829 F.2d 1501, 1505 (10th Cir. 1987); Bell v. Patterson, 402 F.2d 394, 398-399 (10th Cir. 1968); Segura v. Patterson, 402 F.2d 249, 254 (10th Cir. 1968); Hooks v. Workman, 606 F.3d 715, 732 (10th Cir. 2010).

Eleventh Circuit: United States v. Kopituk, 690 F.2d 1289, 1342-1343 (11th Cir. 1982), cert. den., 463 U.S. 1209 (1983); See also, United States v. Beasley, 2 F.3d 1551, 1560 (11th Cir. 1993).

D.C. Circuit: United States v. Johnson, 433 F.2d 1160, 1169 (D.C. Cir. 1970); Huffman v. United States, 470 F.2d 386, 393 (D.C. Cir. 1971); United States v. Monaghan, 741 F.2d 1434 ftnt 30 (D.C. Cir. 1984); United States v. Hawkins, 595 F.2d 751, 754-55 (D.C. Cir. 1978)(comments harmless error).

6. People v. Cahill, 2 N.Y.3d 14, 84 (2003), “Such a result ensures that the jury’s verdict expresses the true conscience of the community…” See also, People v. LaValle, 3 N.Y.3d 88, 146 (2004); People v. Velez, 88 Misc.2d 378, 405 (Sup. NY 1976); People v. Sullivan, 68 N.Y.2d 495, 501 (1986).

7. People v. Tolliver, 267 A.D.2d 1007 (4th Dept. 1999); People v. Scott, 60 A.D.3d 1483, 1484 (4th Dept. 2009).

8. 723 F.2d 1263, 1276 (7th Cir. 1983). See also, Collins v. Wayne Corp., 621 F.2d 777, 787 (5th Cir. 1980).

9. 55 Misc.2d 1080, 1082 (Civ. Kings 1968), rev’d on other grounds, 59 Misc.2d 248 (App.Term 1st Dept. 1969).

10. 35 Misc.2d 302, 315 (Sup. NY 1962), rev’d on other grounds, 19 A.D.2d 464 (1963), aff’d, 14 N.Y.2d 899 (1964).

11. 199 F.3d 1324, 1999 WL 1022438, No. 99-7328 (2d Cir. 1999) [unpublished].

12. 192 Ga. App. 568, 571, 386 S.E.2d 43 (Court of Appeals 1989).

13. 97 F.Supp.2d 482, 488 (S.D.N.Y. 2000).

14. 49 A.D.3d 927, 930 (3d Dept. 2008).

15. 89 A.D.2d 794 (4th Dept. 1982).

16. 281 F.2d 581, 586 (3d Cir. 1960).