Hopkins v. State, A16A0264, May 18, 2016. Akeem Hopkins appealed his conviction for DUI, obstruction, interference with government property, failure to stop, failure to register the vehicle, and simple assault as a result of the trial court’s failure to grant a mistrial after the prosecutor made an improper closing argument. During the closing argument, the prosecutor made the statement about the traffic stop that it “was a dangerous situation. What if he had a gun.”  Hopkins objected to the statement and moved for a mistrial. The Trial Court sustained the objection. The Trial Court gave a curative instruction, “what the attorneys say in closing is not evidence. There was no evidence of gun or anything and you shouldn’t use insinuations or anything like that in arriving at your verdict.”

The granting or refusal to grant a mistrial has long been held to be largely in the discretion of the trial judge, but a mistrial should be granted when it is essential to preserve the right of a fair trial. Woods v. State, 233 Ga. 495, 498 (II), 212 SE2d 322 (1975). The Court of Appeals found that the Trial Court did not abuse its discretion and preserved Hopkins’s right to a fair trial.

This isn’t that significant of a case in and of itself but it points to a larger issue that is very significant and must be correctly addressed to avoid a guilty verdict. This illustrates the prosecution’s use of the reptile theory trial strategy. The reptile theory is based on the theory that you can tap into the primitive and survival instincts (or the reptilian brain) that everyone has by establishing a generalized fear of harm or danger in the juror’s mind to themselves and their family and overriding the neocortex or the brain’s ability to reason and use logic and assess the facts and circumstances of an individual case.  This theory is based on the work of the neuroscientist Paul MacLean, who theorized in the 1960s that there are three discrete parts to the brain reflecting stages of evolution. He called it the Triune Brain and the model suggests that the reptile brain is at its core.  It is both an attempt to get the jury mad induce an emotional response and get the jury to step in the shoes of the real or imaginary victim.

It is essentially a golden rule argument that is always improper. See, Braithwaite v. State, 275 Ga. 884, 572 SE2d 612 (2002). Lawyers defending against these prosecution tactics must convince the jury to reject an emotional response, to look at what happened, focus on the complexity of the case, by pointing out that this case is only about this defendant and whether the defendant caused harm in this case and not what could have or might have happened.  The Defense lawyer must show that Defendant acted responsibly and within the limits of the law. It is not illegal to drink and drive and alcohol affects different people differently. Fight fire with fire and should have poor investigations, field sobriety tests and chemical testing can lead to false arrests and wrongful convictions as a violated safety rule and fear of harm.

-Author: George Creal

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