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Illeism Legalism:

As the Washington Post reports:

Acting as his own attorney, Pellicano made his closing arguments.... [He] addressed his jury. "Hi," he said. "This is the first time I will be able to speak for Mr. Pellicano." Because of the rules of the court, Pellicano the advocate must refer to Pellicano the defendant in the third person. You are correct: It is weird.

Well, it's weird by comparison to how people talk about themselves, but it's not weird by comparison to how lawyers talk about the defendant. To a lawyer, a closing argument that's chock full of "I"'s would sound very strange, and I take it the court's concern is that it will unduly personalize the process for the jury. So it's a slightly silly affectation in normal life, but legally compulsory in this unusual context.

Thanks to Language Log for the pointer.

Perseus (mail):
Bob Dole says: "Bob Dole doesn't think that's weird at all!"
5.2.2008 9:35pm
arbitraryaardvark (mail) (www):
I'm doing a pro se suit at the moment and keep referring to "the plaintiff" and "he" in motion practice instead of saying "I", and it does feel weird.
5.2.2008 9:40pm
TRE:
Unduly personalize?
5.2.2008 9:48pm
Wahoowa:
I agree with TRE--what's so undue about personalizing a closing argument, especially when you're proceeding pro se? Even if it gives the defendant a slight advantage, is it really enough to overcome the massive disadvantage of proceeding pro se in the first place? And even if it is, so what?
5.2.2008 9:58pm
Roger Schlafly (www):
Is there really a rule of the court, or did the judge just invent this rule for this case?

Acting as his own attorney is mostly disadvantageous, but it seems to me that one of the advantages ought to be that he can personalize the case. The case is personal to him.
5.2.2008 10:08pm
guest (mail):
I take it the court's concern is that it will unduly personalize the process for the jury.


You are very charitable.

I take it that the court is being unreasonable because the judge has the power to be unreasonable. Because there really isn't any reasonable basis for this rule, it appears to me that the court simply enjoys inflicting an ever-so-slight prejudice upon a pro se defendant.

It's not likely that an appellate court will stoop to notice the trial court's unreasonableness on this issue.

As previous commenter noted, it most definitely is personal for the defendant. And the defendant shouldn't be handicapped by being forced to speak in a manner that will prejudice the jury against him.

All that said, Pellicano is scum.
5.2.2008 10:28pm
PatHMV (mail) (www):
I presume that the rule stems from the general idea that simply because the defendant is going pro se, he shouldn't be able to give, essentially, unsworn testimony. By requiring the defendant to speak of himself in the third person, the rule reduces the risk that the defendant would say something like "I'm telling you, I didn't do it," which would indeed be giving unsworn testimony, without the prosecutor having the benefit of cross-examination.
5.2.2008 10:35pm
Duffy Pratt (mail):
I think the judge may have acted within his discretion in imposing this rule, but I doubt it was "legally compulsory." If so, I'd like to hear the basis for that compulsion.
5.2.2008 10:42pm
EH (mail):
OT, but I think Perseus aced the thread.
5.2.2008 11:06pm
Dave N (mail):
I have appeared before a judge who always speaks in the first person plural from the bench. "We believe this" or "We will order that."

I am too polite (and afraid of sanctions) to ask, "You and who else, your Honor."

Substantively, I don't think it was required. Dave N agrees with me.
5.3.2008 12:01am
Wahoowa:
Hmmm . . . PatHMV brings up a reasonable point, however. Perhaps it was legally required.
5.3.2008 12:43am
stunned:
EV, you usually come out on the right side of silliness, but not this time.
5.3.2008 12:43am
OrinKerr:
To a lawyer, a closing argument that's chock full of "I"'s would sound very strange, and I take it the court's concern is that it will unduly personalize the process for the jury. So it's a slightly silly affectation in normal life, but legally compulsory in this unusual context.

Eugene, I'm not sure I know what you mean by "unduly personalize," but I think PatHMV's comment above is correct. It can be reversible error for an attorney in closing argument to characterize the evidence as an expression of his personal opinion. The attorney has to say what the evidence shows, not what the lawyer thinks, as other wise the jury may rely on the lawyer's believability rather than the evidence itself (effectively permitting the lawyer to testify as a witness, just not under oath). In criminal cases, the cases almost always deal with prosecutorial error, as that's the error that gets appealed. From LaFave, Israel, King &Kerr, Criminal Procedure: § 24.7(e):
Courts have repeatedly noted that it is improper for a prosecutor to inform the jury of his or her personal belief in the accused's guilt[FN50] or in the truth or falsity of a witness' testimony.[FN51] This practice is pernicious not only because the jury may view the prosecutor's opinion as “carry[ing] with it the imprimatur of the Government,” but also because such comments often convey to the jury “the impression that [there exists] evidence not presented to the jury, but known to the prosecutor.”[FN52] Of course, the prosecutor is not prohibited from explaining to the jury why it should conclude the defendant was guilty or accept or reject a particular witness' testimony. Where the prosecutor avoids a direct reference to phrases like “I think,” “I believe,” and “I know,” it is often difficult to draw the line between a characterization based on the evidence and an expression of personal belief.
My guess is that the judge is relying on this line of cases in the Pelicano case:he's trying to make sure that Pelicano is not vouching for himself, in effect testifying outside of the oath and outside of cross examnation.

The real question is whether the judge needed to require Pelicano to refer to himself in the third person to enforce this policy. It may be appropriate because the lines are so slippery here, although it doesnt seem legally required.
5.3.2008 1:18am
one of many:
DaveN, I'm sure he (your judge) consults his gut instincts in making decisions and therefor includes his intestinal fauna in the 'we'. Actually I don't think a judicial nosism (using 'we" instead of 'I') is that bad, it makes clear what statement is from the judge as a judge and what statement is from the judge as a person, thus "after her last 15 appearances I have come to believe that the defendant is a lying thug who shouldn't be allowed in the courtroom at all, much less allowed to testify. We however recognize the defendant's right to testify on her own behalf."
5.3.2008 1:36am
anonymous philly lawyer:
I disagree with you on this Orin &Eugene (with much trepidation, to be sure).
If I remember the Supreme Court cases, particularly Faretta and McCaskle, correctly, one of the important parts of the pro se right (which is constitutionally protected and arises out of the sixth amendment) is that the jury understand that you are speaking for yourself--and that nothing can interfere with that perception. (That is why, in McCaskle, the rules governing "standby" counsel are so strict--so as to not interfere with that perception, which is important in and of itself). In other words--you have a right to present yourself as yourself to the jury--which would make no sense if you could not use the pronoun "I"

I'd have to re-read McCaskle, but that's how I remember it. Other language in more recent cases on this (I am particularly thinking of a Scalia concurrence, but I cannot remember the case name, from about 2000) builds on this idea--that inherent in the right to present a defense is to do it yourself as yourself. If that logic holds, than I think the judge has no basis to force a pro se defendant to use the third person.
5.3.2008 1:42am
Dilan Esper (mail) (www):
It actually isn't that hard to use the pronoun "I" while not personally vouching.

"The evidence showed that I didn't commit the murder. First, I gave my own testimony, under oath, in which I indicated that I was not at the scene of the crime. I realize that the prosecution contends that my testimony was not credible, but you are the ultimate judge of credibility in this trial. Further, my testimony was corroborated by the testimony of witnesses Smith and Jones, who both placed me in the coffee shop when the murder took place. Finally, you saw Exhibit 126, the credit card receipt from the coffee shop, which showed a purchase of a hamburger and fries at 10:36 p.m., just 14 minutes after the murder. To believe the prosecution's theory, you would have to believe that I left the scene of the murder, drove 6 miles on surface streets to the coffee shop, parked the car, entered the coffee shop, sat down, ordered dinner, and paid for dinner in just 14 minutes. The prosecution's theory is not consistent with the facts of the case, and they have not proven my guilt beyond a reasonable doubt".

I should concede, however, that your average pro se litigant may have trouble formulating arguments that stay within the bounds of the evidence and do not vouch.
5.3.2008 2:24am
Skyler (mail) (www):
That's an absurd logic. It's just as easy to present an opinion or introduce evidence speaking in the third person as it is to speak in the first person.
5.3.2008 2:45am
FantasiaWHT:
Did the email alerts stop working again?
5.3.2008 10:22am
Public_Defender (mail):
This is absurd. Pro se litigants are given a little leeway, and referring to themselves in the first person seems perfectly reasonable. As someone pointed out, this case is personal to the defendant. Further, while lawyers (and politicians) are used to speaking in the third person, it's not natural. It strikes me as an unfair hindrance.

Without seeing (or at least reading) the transcript, it's hard to tell whether the limitation helped, hurt or had no effect. Sometimes, a judge does a pro se litigant a favor by calming him down. Other times, the whole point of going pro se is to make your point a certain way.

Without doing any research, I'm fairly confident that the judge's limitation would survive an abuse of discretion appellate review, but so would allowing the defendant to say
"I" in closing argument.
5.3.2008 10:57am
Elliot123 (mail):
"To a lawyer, a closing argument that's chock full of "I"'s would sound very strange, and I take it the court's concern is that it will unduly personalize the process for the jury."

Perhaps it does sound strange to a lawyer. So what? He's talkng to the jury, not a bunch of lawyers.
5.3.2008 12:46pm
SMatthewStolte (mail):
I've always seen Prof Volokh as the great linguistic libertine. Sexually explicit language, racist language, language offensive to Muslims — they can all find a legal defender in EV. Unconventional spellings, odd idioms, apparent grammatical errors — When threatened, EV will rescue them.

But I — that humble first person, that subject that comes into being prior to all thought — I finds no defense and no hope of rescue. Instead, we must replace it with the impersonal. And in the court of law, at that. Fine, then! But if it is the impersonal that is on trial, then let the impersonal bear the punishment. And let the person go free.
5.3.2008 2:02pm
BruceM (mail) (www):
When the defendant testifies on direct, does he have to stand in front of the box, ask a question, and then walk into the box to answer it, then get out to ask another question (like Dale Gribble did in an old episode of King of the Hill when suing a tobacco company)?

I think this is absurd, if the prosecutor is afraid of the jury being swayed because of a first person closing argument, then he must have a really weak, pathetic case that should never have been brought in the first place.
5.3.2008 4:37pm
Dave N (mail):
I agree with BruceM.
5.4.2008 1:28am
La Rana (mail) (www):
Story: The defendant was legally compelled to awkwardly refer to himself in the third person

Eugene: Referring to yourself in the third person is awkward but legally compelled

Good point.
5.4.2008 11:46am
zippypinhead:
Having watched (but mercifully, never personally had to prosecute) a couple of major criminal felony jury trials with pro se defendants over the years, I have a bit of sympathy for the poor judge, who's trying to keep the proceedings from turning into a complete circus. However, this particular "rule" (undoubtedly an ad hoc prophylactic limitation rather than anything you'd find in the applicable Rules of Criminal Procedure), doesn't strike me as either necessary or even helpful. Restricting a pro se defendant to referring to his own conduct, testimony, demeanor, and credibility in closing ARGUMENT only in the third person singular accomplishes nothing -- anything objectionable that the defendant wants to do can be just as easily phrased "Mr. Smith" as "I."

Conversely, because the requirement to refer to one's self only in the third person in no way substantively restricts one's ability to present evidence or argument, I'm sure it's not reversable error. Even in Kalifornia...

But this is still more than a bit odd. And I'm willing to bet lunch that this "rule" is never used in that court's misdemeanor docket, where pro se representation is undoubtedly a daily fact of life, with or without a jury.
5.4.2008 3:13pm
hattio1:
Doesn't the use of the third person prejudice him. Let's imagine you, a jury member, are sitting on the fence about whether the prosecution proved its case or not. Then the defendant comes up for closing argument and starts referring to himself in the third person as if he's crazy, egotistical or both. Unfortunately, that's probably enough to tip the jury against the defendant, unless it is explained to them that the defendant has to do this.
5.4.2008 7:57pm