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Jacquelyn Smith

Professor Crowe

English 101

29 July 2017

Research Essay

Religion and American Justice

There is a perception in America that justice is blind. Justice is usually portrayed in statue

form as a blindfolded woman, holding her scale to indicate fairness and her sword to indicate

swift justice. Her blindfold is meant to communicate to the people that justice is impartial, not

affected by any of the factors that one could observe about a fellow human being; their wealth,

their power, their race, or their gender. Lady Justice might also be able to observe, were she not

blindfolded, signs of a defendant’s religious leanings. She might be able to see a golden crucifix

around a Christian’s neck, an embroidered yarmulke upon a Jewish male’s head, a Sikh’s

intricately wrapped turban, or a silken headscarf upon the head of a Muslim woman. There is a

common perception that religion has no place in an American courtroom and that the

proceedings are secular in nature. This perception is patently false. Religion affects the rituals

involved in the proceedings, and affects all the players involved. From the defendant to the

judge, juror to attorney, the religious beliefs of those involved and their perceptions of the

religions of others can have dramatic effects on the proceedings and outcomes of trials.

The arrangement of the typical American courtroom often echoes the layout of a church.

Visitors proceed down aisles with pew-like benches for the spectators, where a congregation

would typically sit. The jury sits to the side of the judge and near the head of the room, like a

choir. The judge sits on a raised dais, much like the elevated pulpit of a priest or pastor. Judges
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are often required to or choose to wear voluminous black robes, indicating their status and

importance, not dissimilar to the vestments of the clergy. At the start of their testimony, every

witness in a court case is asked to swear an oath committing to their intention to tell the truth.

Many courts provide a bible upon which they may swear to tell the truth, while others my just

ask them to raise their right hand. The National Court Reporters Association informs their

members about the origin of the raised right hand thusly: “In the Judeo-Christian tradition,

people raised their hand toward God when swearing an oath (see Gen. 14:22-23, Deut. 32:40,

Dan. 12:7, Rev. 10:5-6), which may be the origin of the custom in Anglo-American legal

proceedings of asking the witness to raise his or her right hand when the oath is administered.”

(Meyer) Many courts are moving toward having witnesses swear only to tell the truth,

eliminating the bible, but keeping the raised right hand. Even with steps like this being taken,

much more would need to be done to erase the undertones and echoes of religion from American

courtrooms.

The judge overlooks and directs the proceedings, rules over motions introduced by the

attorneys, and ultimately provides judgement through the application of the law. The religious

beliefs of a judge can be an influence on their decision-making in proceedings. If a judge

observes a religion with an explicit position on a social policy issue, the judge may be hard-

pressed to stray from their belief system. When studying the voting of Catholic judges, and how

they can vote on some cases with a very liberal stance, and others with a strong conservative

lean, the basis of their vote is usually their church’s hard line position on that issue. Judges who

observe other religions with stances that are less iron-clad on issues do not exhibit the same

variances. For example, often “there is no “official Jewish position” on these same issues,

freeing Jewish judges to side with the underdog across a range of different types of cases.”
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(Bornstein and Miller, 115) Educated guesses can be made by the defense or prosecution on a

judge’s biases and voting or ruling tendencies based on their religion. When successfully used to

their advantage, the judge’s religious leanings can impact a case in the attorney’s favor.

Prosecutorial and defense attorneys have competing agendas. The attorney for the

prosecution acts on the state’s behalf, working to assimilate the evidence provided them into a

cohesive narrative that conclusively eliminates doubt from the mind of the judge or jury. The

defense attorney’s objective is to plant seeds of doubt throughout the prosecution’s narrative that

will hopefully result in real doubt for the jurors. The strategic choices that attorneys make can be

impacted by their own faith. An article in the Fordham Law Review states, “We can anticipate

that the conduct of "religious" lawyers-whatever percentage of the attorney population they

represent-will be influenced by their religious/moral commitments, not just the moral guidelines

set out by their profession.” (Griffin) The article goes on to explain that attorneys who find

themselves unable to perform their proscribed tasks because of a religious objection have two

routes of relief: exemption or civil disobedience. Exemption would require the lawyer to state

why they could not complete their duties due to religious objections. Civil disobedience would

find the attorney operating outside of acceptable guidelines, explaining their faith-based reasons,

and accepting the consequences for those actions.

Attorneys must also consider the religious beliefs of the jury candidates. If a defense

attorney is representing a client whose religion tends to be in the minority in the venue of the

trial, the religion of the prospective jurors could greatly harm or help their case. Clarence Darrow

expounded on the critical nature of the religions of prospective jurors back in 1936. After

advising attorneys to pass on Presbyterians, Baptists, Lutherans, and Christian Scientists because

of the likelihood of conviction, he urges a defense attorney to keep the Agnostics and Jews.
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Methodists get an almost charitable endorsement from the plain-spoken attorney. “The

Methodists are worth considering; they are nearer the soil. Their religious emotions can be

transmuted into love and charity.” (Darrow) While getting a jury candidate to answer basic

questions about their own religious beliefs may be fairly simple, divining their inherently held

religious biases against the religions of others can be far more complicated. “They might

perceive their bias to be socially unacceptable, they might not be aware of their biases or they

might view the questioning as an invasion of privacy…” (Pearce, Schwartz) Attorneys must be

thorough and deliberate with their questioning to ensure that their client or their case is best

served by the beliefs and biases of the jurors they keep.

A juror’s religious viewpoint may also affect how they vote during the sentencing phase

of the trial. Observers of faiths that convey a belief in a strict, punitive deity may be more likely

to support harsher punishments. “Those who take the Bible literally are also often more

supportive of the death penalty, who also place more emphasis on the Old Testament than the

New Testament.” (Scribner) Conversely, jurors who believe in a generous and forgiving god are

more likely to focus on the defendant’s options for returning to society through rehabilitative

programs like drug treatment and social programs like community service and mentoring.

The religious biases of the jurors also come into play when their beliefs affect whether

they “buy in” to an attorney’s prosecution or defense, because it supports or reinforces their own

viewpoint. “These biases can alter the way in which jurors judge a defendant’s character and

behavior, resulting in harsher or more lenient punishments depending on whether or not the

defendant is of the same religious group as the juror.” (Turow) A juror with a perception that

Muslim men do not treat their women well is more likely to believe that a Muslim male
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defendant is capable of harming a woman than they might have been if he observed another

faith.

The defendant’s religion can certainly change the jury’s perception of them. Defendants

who convert to Christianity while they are in prison are viewed more charitably by a jury.

Defense attorneys must consider the risk of introducing their client’s faith, if it is not a recent

development. “…They should be very cautious of giving evidence that the defendant has been

religious throughout his life because such evidence will lead the jurors to be harsher, or at the

very least will have no impact. However, detailing the lifelong religious nature of a defendant

may be an effective strategy for the prosecution.” (Lindsey) Juries hold a person who was a

follower of faith before the crime was committed more accountable than a defendant who

discovered faith after the crime. In the case of The State of Maryland v Adnan Syed, his faith

was used as a motive for his crime. The prosecution used common misperceptions of the Muslim

faith and the bias created to establish a motive for a case without substantial evidence, and

despite significant patterns of behaviors that showed Mr. Syed was not carefully following the

Muslim faith anyway. “The idea that his religious beliefs drove him, strikes me as hugely

problematic and a substitute for evidence.” (Enright)

Prosecutors, if they tread carefully, can introduce religion to attack a defendant’s

character based on common biases, even though the law in their state may prohibit exactly that.

Maryland Rule of Evidence 5-610 prohibits attorneys from bringing religion into a case to speak

to a client’s character, either as a recommendation or an attack. “So, for instance, the prosecution

could not argue to a jury that a witness was lacking in credibility as a witness because he was an

atheist. Moreover, an attorney couldn't use the fact that a witness was a "good Christian man" to

prove that he was a credible witness.” (Miller) In Mr. Syed’s case, the prosecution used the word
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“honor” to evoke the specter of a vengeful Muslim defending his religious beliefs of a woman’s

place, despite their being no foundation or basis in the Muslim faith to support that specter. It

didn’t matter that Mr. Syed had no history of violence or rage toward women, or of obsessively

following the perceived rules of his religion. Feeding the religious biases of the jury may have

been enough to sway their opinions of the youth. The prosecution did not ever need to utter the

words Muslim or Islam, which would have violated the Maryland Rule of Evidence. They only

had to use that word, honor, directed at a young man who exhibited physical characteristics of

someone who might observe the Muslim faith.

While it may be reassuring to picture Lady Justice as blind, it is far from the truth. Her

courtrooms are structured to resemble houses of faith, and her judges clothe themselves in garb

that reminds one of church. They struggle to separate their theological beliefs from their

understanding of the law. Attorneys must consider their religious ethics versus their professional

ethics in their application of the law, and then can use that broader understanding of religious

bias as a weapon or shield in the court room. Jurors who bring their religious beliefs and biases

into the jury box are more easily manipulated by those attorneys. A defendant might experience

religious stereotypes being used against them, or skillfully elicit sympathy when they confess

they have converted to Christianity. Religion has laid a minefield in the American courtroom,

whether subconsciously affecting all involved, or being actively used as a tool or weapon. The

dramatic effects of their faith and the faiths of the other players involved should not be ignored

or underestimated as they can greatly affect the outcome of trials.


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CITATIONS

Meyer, Mary Ann. “PDC Test- Oaths and Affirmations.” NCRA, National Court Reporters

Association, www.ncra.org/Certifications/content.cfm?ItemNumber=8837. Accessed 24

July 2017.

Bornstein, Brian H., and Monica K. Miller. “Does a Judge's Religion Influence Decision-

Making?” Court Review, 2009, pp. 112–115.

Griffin, Leslie. “The Relevance of Religion to a Lawyer's Work: Legal Ethics.” Fordham Law

Review, vol. 66, no. 4, 1998, pp. 1253–1281.,

pdfs.semanticscholar.org/dcae/31502b51b0bfd4d2046c9975ce3a6a9ee06c.pdf.

Darrow, Clarence. “How to Pick a Jury.” Esquire Magazine, May 1936.

Pearce, Mark W, and Samantha L Schwartz. “Can jurors’ religious biases affect verdicts in

criminal trials?” American Psychological Association, 2010,

www.apa.org/monitor/2010/07-08/jn.aspx. Accessed 4 July 2017.

Scribner, Herb. “See how your views on God affect your decisions in the

courtroom.” FamilyShare, familyshare.com/23395/see-how-your-views-on-god-affect-

your-decisions-in-the-courtroom. Accessed 6 July 2017.


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Turow, Eve . “Balancing Judgment: The Effects of Religion in U.S. Courtrooms.” State of

Formation, 21 June 2011, www.stateofformation.org/2011/06/%E2%80%9Cbalancing-

judgment-the-effects-of-religion-in-u-s-courtrooms%E2%80%9D-by-eve-turow/.

Accessed 5 July 2017.

Lindsey, Samuel C., et al. “How Attorneys Can Use Religion to Be More Effective at Trial.” The

Jury Expert, July 2008, www.thejuryexpert.com/2008/07/how-attorneys-can-use-religion-

to-be-more-effective-at-trial/. Accessed 16 July 2017.

Ambrogi, Bob, and J Craig Williams. “Breaking Down The Serial Podcast: Attorneys Dissect

Adnan Syed’s Case.” Legal Talk Network, 13 Feb. 2015,

legaltalknetwork.com/podcasts/lawyer-2-lawyer/2015/02/breaking-down-serial-podcast-

attorneys-dissect-adnan-syeds-case/. Accessed 5 July 2017.

Miller, Colin. “The Serial Podcast Episode 2: Did the Prosecution Properly Admit Evidence of

Adnan's Religion and EMT Training.” Evidence Prof Blog, Law Professor Blogs

Network, 28 Nov. 2014, lawprofessors.typepad.com/evidenceprof/2014/11/ive-done-

five-posts-herehereherehere-andhere-about-sarah-koenigsserial-podcast-which-deals-

withthe-1999-prosecution-of.html. Accessed 4 July 2017.

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