Monday, February 1, 2010

The Use of the Ten Commandments in Court

I’d like to bring your attention to two articles regarding the same court case. First, the short article that describes Soloman Dwek being grilled on his adherence to the Ten Commandments. Second, the article that explains why the defense thinks this grilling is relevant.

In class last week, we discussed constitutional vs. common law. Oversimplified, constitutional law refers to that which protects common law (it is written out and agreed upon at a given time). Common law, on the other hand, is constantly developing by the people based primarily on customs.

I think that this these news articles demonstrate the way in which constitutional and common law may play out in the court room. Soloman Dwek became an FBI informant after being caught in the fraudulent bank deal referenced in the second article. He then led to the prosecution of several high-level New Jersey politicians. Now, the defendants want to show that Dwek is of low moral character. In doing so, the defense hopes to call into question the FBI’s choice in people they use to prosecute these politicians.

It seems that this move is a last resort for the defense in this case. They merely want to expose Dwek as “just as bad” (or worse) as the defendants in order to undermine the FBI and its efforts. For our discussion, the interesting part is that the defense chose to use the Ten Commandments as the measurement of Dwek’s moral character.

The use of the Ten Commandments assumes that the audience (most importantly the jury) is sympathetic to the moral code that the Ten Commandments assert. I think that the use of the Ten Commandments in this case represents the invocation of common law in the courts. If this is the case, the most relevant habits of Dwek would be his habit of lying. If Dwek was a habitual liar in the past, how can he be trusted in working for the FBI? The defense wants to call Dwek’s credibility into question further by proving that he even cheated and stole from his own family and Jewish community. I wonder how much weight this probing against Dwek will have when he has handed over filmed encounters with the defendants discussing their corrupt dealings? Will the jury value the defense’s questioning of Dwek’s character enough to oversee the evidence provided by Dwek? I don’t think this is very likely but I guess it is worth a shot for the defense.

It seems that the evidence provided by Dwek should be used to in the case against the defendants and then Dwek can be dealt with on his own. Sure, he probably only cooperated with the FBI for selfish reasons but that does not change the fact that the defendants are corrupt themselves.


Abby P said...

These two articles were extremely interesting; and I believe that they aptly show the intersection of common law and constitutional law and how such a correlation plays out in the court room. In regard to the treatment of Dwek by the defense, I would agree that this seems like somewhat of a last resort. The defense obviously wishes to undermine the legitmacy of Dwek as a witness. Whether or not the use of the ten commandments is the best way of doing so or if it is even relevant to the case at hand is questionable. However, if the judge does not dismiss the questioning, then I suppose the defense can legitimately engage in it. In most cases the defense ultimately tries to show the defendant in a positive light, while at the same time trying to discredit the witnesses provided by the prosecution. The utilization of the ten commandments by the defense, I suppose, provides them with a stronger case. However, I think that ultimately the defense knows that it is in trouble, and it is merely searching for any argument that might undermine the evidence and testimony provided by Dwek.

Robert said...

From reading the two articles, I did not see much by way of the use of the Ten Commandments in discrediting the government’s witness, Mr. Dwek. Aside from the author of the first article asking how many Commandments had been broken, and the irony associated with the witness wearing a Yarmulke in accord with the 613 Commandments, not too much is made of a religious opposition to the witness. Obviously, the practice of discrediting or attempting to discredit witnesses has long since been an element of our judicial system and legal strategy. One would be hard-pressed to find a trial in which a character witness is not called or the credibility of someone is not questioned. That being said, this is a fully legitimate practice being used by the defense, and is even justified by the government’s attorney, Mr. Zegas. He says "attacking the witness as morally corrupt would not constitute jury nullification because jurors, if they believe the witness is so corrupt that he is lying under oath, are permitted to acquit based on the witness's lack of credibility.” In response to Neary’s assertion that the government is in cahoots with some shady characters, I would be interested in the amount of corrupt politicians and other criminals that have been convicted with the use of such informants. It is unfortunate that such people must be used and are often given legal asylum for their work, but that is the nature of the system and does not nullify the criminal actions of the defendants.

Caitlin said...

I understand wanting to discredit him and to show that he is a swindling crook because he steals from his own family. I understand the irony of the “Do not lie…”mantra. It makes sense to shame and humiliate him, but I still have a hard time with common vs. constitutional. If it is illegal to put a person on trial for heresy, then why call upon “The Ten Commandments” and comment on the yarmulke as evidence of being a degenerate person? I understand that that is part of the “common law”, but if we are differentiating between common and constitutional, than why is the church allowed in the courtroom?

Alicia_W said...

I think Caitlin brought up a really good point in her last sentence. Why is the church allowed in the court room? With the separation of church and state, the Ten Commandments should not have any relevance in the case. However, this question begins another slippery slope. If the Ten Commandments are seen as a symbol of religion that should hold no value in the courtroom then what about the other aspects of religion we find to be common practice, such as taking oath over a bible or other form of religious books?