# Legal defenses based on sympathy- valid legal tactic, or reflection of American society:? **URL:** \ **Category:** In My Humble Opinion\ **Created:** [October 20, 2021, 4:57pm UTC](https://boards.straightdope.com/t/legal-defenses-based-on-sympathy-valid-legal-tactic-or-reflection-of-american-society/952833 "2021-10-20T16:57:12Z")\ **Posts on this page:** 18\ **Page:** 2
**Author:** ![CaptMurdock](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/captmurdock/32/11736_2.png) [@CaptMurdock](https://boards.straightdope.com/u/CaptMurdock)\ **Post date:** [October 20, 2021, 6:58pm UTC](https://boards.straightdope.com/t/legal-defenses-based-on-sympathy-valid-legal-tactic-or-reflection-of-american-society/952833/21 "2021-10-20T18:58:45Z")
Is this really so different than [the Twinkie Defense?](https://en.wikipedia.org/wiki/Twinkie_defense) “Poor Dan White, he was so depressed he started eating junk food, and in a fit of extreme depression, he killed Mayor Moscone and Supervisor Milk.” ---
**Author:** ![SpacemanSpiff\_II](https://avatars.discourse-cdn.com/v4/letter/s/e19adc/32.png) [@SpacemanSpiff\_II](https://boards.straightdope.com/u/SpacemanSpiff_II)\ **Post date:** [October 20, 2021, 7:46pm UTC](https://boards.straightdope.com/t/legal-defenses-based-on-sympathy-valid-legal-tactic-or-reflection-of-american-society/952833/22 "2021-10-20T19:46:42Z")
> [@bump](#): > > I do see what you’re getting at; it does seem like the number of people who seem to blame everything under the sun for their predicament except for themselves is higher than I remember it being as a child/young adult. If I had to venture a guess as to why people are acting like that, it’s probably some sort of reflection of a shift in parenting from what they’d call “free range kids” to a more controlled childhood. Free range kids have to be responsible or there are penalties within child society- they get ostracized, beat up, or left behind by the other children if they lie, cheat, steal, are late, forget stuff, etc… which isn’t something that happens if someone’s parents are always right there. > > That’s my hypothesis, but I don’t have any proof or anything. Personally I think it’s due to the increasing influence of psychologists on societal attitudes. Psychologists tend to view people’s actions as resulting from powerful influences on their psyche which they have limited ability to control. This has a lot of actual validity to it, but also tends to turn perpetrators into victims, since their actions are no longer their own responsibility but rather the result of wrongs perpetrated on them by others, and their own role is relatively limited. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [October 20, 2021, 7:56pm UTC](https://boards.straightdope.com/t/legal-defenses-based-on-sympathy-valid-legal-tactic-or-reflection-of-american-society/952833/23 "2021-10-20T19:56:03Z")
Well, that just saved them from the DP, and that sort of pleading is common for DP hearings. ---
**Author:** ![thorny\_locust](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/thorny_locust/32/431_2.png) [@thorny\_locust](https://boards.straightdope.com/u/thorny_locust)\ **Post date:** [October 20, 2021, 8:19pm UTC](https://boards.straightdope.com/t/legal-defenses-based-on-sympathy-valid-legal-tactic-or-reflection-of-american-society/952833/24 "2021-10-20T20:19:22Z")
> [@Mallard](#): > > IMHO “sympathy” for the defendant usually plays for the sentencing aspect unless “circumstances” of the alleged crime play into it Yes; isn’t it mostly used in an attempt to reduce sentence, not in an attempt to avoid conviction? – with the possible exception of rape cases, as in the argument that if the accused is considered a good member of established society their life shouldn’t be “ruined” if there’s any doubt whatsoever, as opposed to reasonable doubt. ---
**Author:** ![Jackmannii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jackmannii/32/311_2.png) [@Jackmannii](https://boards.straightdope.com/u/Jackmannii)\ **Post date:** [October 20, 2021, 8:23pm UTC](https://boards.straightdope.com/t/legal-defenses-based-on-sympathy-valid-legal-tactic-or-reflection-of-american-society/952833/25 "2021-10-20T20:23:11Z")
> [@JoseB](#): > > Given that (as mentioned above by @Procrustus) that kind of defense is well-documented in past trials (and one of the most egregious instances was the Leopold and Loeb trial of 1924, almost 100 years ago - Leopold and Loeb committed a truly repulsive murder-for-thrills of a 14-year old boy), I would say that this is definitely a defense strategy with a long history behind it, not really a symptom of any recent eschewing of personal responsibility on the part of society. > > (FWIW: Leopold and Loeb’s lawyer, the famous Clarence Darrow, managed to avoid the electric chair for his clients using exactly this tactic; he managed to get life in prison instead for them. Loeb died in prison after being stabbed 58 times by a fellow inmate. Leopold was paroled in 1958; he died in Puerto Rico in 1971). It’s questionable whether Leopold and Loeb avoided execution through this tactic. Remember that Darrow had both defendants plead guilty, and sentencing was decided by a judge, not a jury. In announcing his decision for life sentences, Judge Caverly said that “the consideration of the age of the defendants” and the possibility of criminalists gaining insight by studying them were critical factors. He also said he wasn’t doing them any favors. “To the offenders, particularly of the type they are, the prolonged years of confinement may well be the severest form of retribution and expiation.” ---
**Author:** ![Chingon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chingon/32/17645_2.png) [@Chingon](https://boards.straightdope.com/u/Chingon)\ **Post date:** [October 20, 2021, 8:51pm UTC](https://boards.straightdope.com/t/legal-defenses-based-on-sympathy-valid-legal-tactic-or-reflection-of-american-society/952833/26 "2021-10-20T20:51:57Z")
And yet, miraculously, the same generation that grew up in the aftermath of that trial was still able to defeat Hitler and Tojo. ---
**Author:** ![Esprise\_Me](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/esprise_me/32/2947_2.png) [@Esprise\_Me](https://boards.straightdope.com/u/Esprise_Me)\ **Post date:** [October 20, 2021, 10:25pm UTC](https://boards.straightdope.com/t/legal-defenses-based-on-sympathy-valid-legal-tactic-or-reflection-of-american-society/952833/27 "2021-10-20T22:25:25Z")
If there are people in this world who would truly advocate the impartial application of justice to all, I have yet to meet them. I have, instead, met two kinds of people. Type 1 folks often talk a big game about personal responsibility, but when it comes to themselves or members of their own tribe, there’s often some dubious reason they deserve better. Type 2 folks acknowledge the nuance in assigning personal responsibility in an unequal world, and try, however imperfectly, to navigate a course that balances justice and mercy. For this, they are derided by Type 1 folks. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [October 20, 2021, 10:42pm UTC](https://boards.straightdope.com/t/legal-defenses-based-on-sympathy-valid-legal-tactic-or-reflection-of-american-society/952833/28 "2021-10-20T22:42:18Z")
Justice consists of everyone getting at least what they deserve. There is no miscarriage of justice in someone getting more than they deserve. ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [October 20, 2021, 11:16pm UTC](https://boards.straightdope.com/t/legal-defenses-based-on-sympathy-valid-legal-tactic-or-reflection-of-american-society/952833/29 "2021-10-20T23:16:10Z")
> [@thorny\_locust](#): > > isn’t it mostly used in an attempt to reduce sentence, not in an attempt to avoid conviction? Agreed. What the OP is describing sounds to me like a sentencing argument, not one for the guilt phase of trial. See, criminal trials (especially serious violent crime trials) are divided into two stages: guilt phase (did you do it?) and sentencing phase (why did you do it?). As a defense lawyer, you may not have much evidence to avoid the finding that your client is guilty, but you may have a lot of evidence that his responsibility for his conduct should be mitigated. So, you may have to concede guilt, but argue for a lighter sentence based on these additional factors - e.g. “my client will be less dangerous if he gets mental health treatment to address his trauma and substance abuse treatment to address his addictions, so he deserves a shot at parole”. The exception to this is an insanity defense, when the defendant’s mental state (did he understand that what he did was wrong?) is at issue, so there’s going to be evidence during the guilt phase that touches on the defendant’s personal circumstances. Normally, though, testimony about the defendant’s personal situation is irrelevant to deciding whether he committed a crime. ---
**Author:** ![Tim\_T-Bonham.net](https://avatars.discourse-cdn.com/v4/letter/t/46a35a/32.png) [@Tim\_T-Bonham.net](https://boards.straightdope.com/u/Tim_T-Bonham.net)\ **Post date:** [October 21, 2021, 2:47am UTC](https://boards.straightdope.com/t/legal-defenses-based-on-sympathy-valid-legal-tactic-or-reflection-of-american-society/952833/30 "2021-10-21T02:47:36Z")
> [@Chronos](#): > > Justice consists of everyone getting at least what they deserve. There is no miscarriage of justice in someone getting more than they deserve. But in most real world situations, the ‘more’ that they get has to result in less for someone else. ---
**Author:** ![MrDibble](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mrdibble/32/114_2.png) [@MrDibble](https://boards.straightdope.com/u/MrDibble)\ **Post date:** [October 21, 2021, 6:40am UTC](https://boards.straightdope.com/t/legal-defenses-based-on-sympathy-valid-legal-tactic-or-reflection-of-american-society/952833/31 "2021-10-21T06:40:44Z")
My quibble with the premise is the idea that it’s uniquely American - the “it’s society that’s to blame” defence is way more widespread than just the US. ---
**Author:** ![Spoons](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/spoons/32/3141_2.png) [@Spoons](https://boards.straightdope.com/u/Spoons)\ **Post date:** [October 21, 2021, 7:11am UTC](https://boards.straightdope.com/t/legal-defenses-based-on-sympathy-valid-legal-tactic-or-reflection-of-american-society/952833/32 "2021-10-21T07:11:54Z")
> [@Moriarty](#): > > Agreed. What the OP is describing sounds to me like a sentencing argument, not one for the guilt phase of trial. > > See, criminal trials (especially serious violent crime trials) are divided into two stages: guilt phase (did you do it?) and sentencing phase (why did you do it?). As a defense lawyer, you may not have much evidence to avoid the finding that your client is guilty, but you may have a lot of evidence that his responsibility for his conduct should be mitigated. Exactly. I’ve done criminal defense, and even when it is obvious that my client is guilty, and pleads so without a trial; then it is my job to introduce as many mitigating factors in my sentencing argument as are reasonably possible. I don’t recall introducing mitigating factors into any trial itself. ---
**Author:** ![mikecurtis](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mikecurtis/32/3284_2.png) [@mikecurtis](https://boards.straightdope.com/u/mikecurtis)\ **Post date:** [October 21, 2021, 8:23am UTC](https://boards.straightdope.com/t/legal-defenses-based-on-sympathy-valid-legal-tactic-or-reflection-of-american-society/952833/33 "2021-10-21T08:23:45Z")
It’s spot on in sentiment, if not so close in actual words. > **[American Rhetoric: Clarence Darrow -- "A Plea for Mercy at the Trial of...](https://www.americanrhetoric.com/speeches/cdarrowpleaformercy.htm)** > > Full text of Clarence Darrow's Plea for Mercy at the Trial of Leopold and Loeb ---
**Author:** ![MandaJo](https://avatars.discourse-cdn.com/v4/letter/m/ac91a4/32.png) [@MandaJo](https://boards.straightdope.com/u/MandaJo)\ **Post date:** [October 21, 2021, 10:51am UTC](https://boards.straightdope.com/t/legal-defenses-based-on-sympathy-valid-legal-tactic-or-reflection-of-american-society/952833/34 "2021-10-21T10:51:50Z")
> [@Esprise\_Me](#): > > If there are people in this world who would truly advocate the impartial application of justice to all, I have yet to meet them. I have, instead, met two kinds of people. Type 1 folks often talk a big game about personal responsibility, but when it comes to themselves or members of their own tribe, there’s often some dubious reason they deserve better. Type 2 folks acknowledge the nuance in assigning personal responsibility in an unequal world, and try, however imperfectly, to navigate a course that balances justice and mercy. For this, they are derided by Type 1 folks. This, a thousand times this. And the reason it seems like “these days” are different is that kids are typically subject to a relentless barrage of “it’s all your fault,” even when it is more complex and nuanced. It’s trivially easy to make a kid feel ashamed for what they did or didn’t do, and then ashamed again for trying to explain or even reflect on their own behavior. So you spend 18 years being told “I don’t want to hear your excuses” and you come out with a lot of emotional baggage tied to the idea of personal responsibility, and the idea that any lack of success is a sign of a flawed character–or you reject the whole concept as an unwinnable fool’s game. That same shaming process is still happening, I promise. You just don’t see it because it’s generally private. ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [October 21, 2021, 1:09pm UTC](https://boards.straightdope.com/t/legal-defenses-based-on-sympathy-valid-legal-tactic-or-reflection-of-american-society/952833/35 "2021-10-21T13:09:03Z")
> [@Spoons](#): > > Exactly. I’ve done criminal defense, and even when it is obvious that my client is guilty, and pleads so without a trial; then it is my job to introduce as many mitigating factors in my sentencing argument as are reasonably possible. I don’t recall introducing mitigating factors into any trial itself. This is, in fact, what just happened in the case involving the Parkland, Florida, school shooter. He just pleaded guilty to all counts, without a trial, and sentencing is now to come. The strategy is to try to avoid a death sentence by conceding his obvious guilt and trying to “win” at sentencing. You can expect to hear a lot about his troubled life when he’s next in court. [https://www.google.com/amp/s/www.wtsp.com/amp/article/news/regional/florida/parkland-school-massacre-gunman-sentence-date/67-d737dd72-4db2-4488-a716-7d165bed63b2](https://www.google.com/amp/s/www.wtsp.com/amp/article/news/regional/florida/parkland-school-massacre-gunman-sentence-date/67-d737dd72-4db2-4488-a716-7d165bed63b2) ---
**Author:** ![sitchensis](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sitchensis/32/4892_2.png) [@sitchensis](https://boards.straightdope.com/u/sitchensis)\ **Post date:** [October 21, 2021, 6:11pm UTC](https://boards.straightdope.com/t/legal-defenses-based-on-sympathy-valid-legal-tactic-or-reflection-of-american-society/952833/36 "2021-10-21T18:11:56Z")
If there are lesser included charges I think they are sometimes hoping for the jury to bargain or “meet in the middle”. When I was given the instructions for the murder case I was on it was more like a dichotomous key. “Did they prove 1… Yes. Did they prove 2…Yes. 3…Yes. 4… Yes. Okay, It’s Murder 1.” I think the defender was trying to introduce stuff that would get the jury to treat it like we were bargaining. “Murder 1 seems harsh, how about we all agree on murder 2” Ignore the instructions and just meet in the middle. It’s a pretty universal human feeling to want to limit the potential for uncomfortable conflict between strangers and appease the peacemakers in a group. ---
**Author:** ![bump](https://avatars.discourse-cdn.com/v4/letter/b/7c8e57/32.png) [@bump](https://boards.straightdope.com/u/bump)\ **Post date:** [October 23, 2021, 10:58pm UTC](https://boards.straightdope.com/t/legal-defenses-based-on-sympathy-valid-legal-tactic-or-reflection-of-american-society/952833/37 "2021-10-23T22:58:15Z")
I don’t know that I agree- justice would seem to fall within a band of proportionality to me. Too much and too little are equally unjust. ---
**Author:** ![RickJay](https://avatars.discourse-cdn.com/v4/letter/r/bb73d2/32.png) [@RickJay](https://boards.straightdope.com/u/RickJay)\ **Post date:** [October 24, 2021, 12:05am UTC](https://boards.straightdope.com/t/legal-defenses-based-on-sympathy-valid-legal-tactic-or-reflection-of-american-society/952833/38 "2021-10-24T00:05:45Z")
> [@bump](#): > > there was a lot of… grumping( ?- Griping? Complaining? Sneering?) about how in the US, those youths would have likely been defended via some sort of sympathy defense about how poorly the youths were raised, how their friends made them do it, and so on, with a definite indictment about how this is some sort of decline in American society that causes this sort of defense. Which is… weird, given the fact that all evidence suggests being a disadvantaged youth just makes it likelier in the USA that you’ll be sent up the river for life. It’s a myth, largely believed by white people, that the courts let such kids off easy. So, no, it’s not a reflection of American society. [Previous page](https://boards.straightdope.com/t/legal-defenses-based-on-sympathy-valid-legal-tactic-or-reflection-of-american-society/952833.md?page=1)