Prayer before criminal trials

[Volokh, Eugene]

        From Martinez v. State, 1999 WL 668112 (Okla. Crim. App. Aug. 26):

        Appellant claims his trial counsel was ineffective for failing to
object to the prayer of the trial judge. Appellant argues the prayer
indicated a source higher than the judge or jury was responsible for
justice, diminished the jury's sense of responsibility, and violated the
long-standing concept of separation of church and state. Based upon these
assertions, unsupported by authority, citations to the record, or any form
of legal analysis, Appellant claims he is entitled to a new trial.
        Before the parties appeared before the jury panel, the trial judge
informed counsel of his "practice of opening the Court session with a
prayer" (Tr. 4). The trial judge then stated, "it is not an official prayer,
but merely  the exercise of my freedom to exercise my religion as afforded
to me as a citizen. If you're uncomfortable with being here during my
prayer, you may excuse yourself. You are welcome to remain." The trial judge
then read the prayer to counsel.
        Thereafter, the trial judge asked the parties to indicate on the
record whether or not they objected to the prayer. Appellant's counsel
stated, "I have no objections. In fact, I would hate for everyone to think
my client didn't have a prayer." Appellant's counsel then stated he had
talked with Appellant regarding this issue, and Appellant indicated, "I'm a
believer. The prayer is fine with me." Appellant's counsel announced, "I can
state in the record that my client concurs that the prayer is appropriate."
The prayer was later recited to the jury.
        The record does not support Appellant's ineffective assistance of
counsel claim. Appellant was advised by his counsel regarding the trial
judge's proffered prayer and his right to object to its use. Appellant made
an informed decision not to object. He has shown neither deficient
performance by his counsel nor prejudice he has suffered as a result of his
counsel's performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). Counsel's decision with respect to this issue
cannot be considered so deficient as to render the result of the trial
unreliable or the proceeding fundamentally unfair. Lockhart v. Fretwell, 506
U.S. 364, 372,  113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993).
        Nevertheless, we must warn trial judges against the practice of
offering prayer before criminal trials due to the strong potential for error
in the trial proceedings. The issue of prayer in a public forum has been a
hotly debated topic in the United States Supreme Court for many years. While
Supreme Court Justices come and go, this issue does not. Thus, in Marsh v.
Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), the Supreme
Court, by a six to three vote, upheld the Nebraska legislature's practice of
opening the state's legislative session with a prayer offered by a chaplain
paid with public funds. In so doing, the Supreme Court reasoned that the
"opening of sessions of legislative and other deliberative bodies with
prayer is deeply embedded in the history and tradition of this country." Id.
at 786, 103 S.Ct. at 3333. Moreover, the opinion pointed out that "[i]n the
very courtrooms in which the United States District Judge and later three
Circuit Judges heard and decided this case, the proceedings opened with an
announcement that concluded, 'God save the United States and this Honorable
Court.' The same invocation occurs at all sessions of this Court." Id. The
Court thus held "[t]o invoke Divine guidance on a public body entrusted with
making the laws is not, in these circumstances, an 'establishment' of
religion or a step toward establishment." Id. at 792, 103 S.Ct. at 3336.
        More recently, in Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649,  120
L.Ed.2d 467 (1992), a deeply divided Court, by a five to four vote, found
that a public school principal's decision to invite members of the clergy to
give "nonsectarian" invocations and benedictions at graduation ceremonies
violated the central principles of the Establishment Clause of the
Constitution. The Court found the "First Amendment's Religion Clauses means
that religious beliefs and religious expressions are too precious to be
either proscribed or prescribed by the State." Id., 505 U.S. at 589, 112
S.Ct. at 2656. The Court distinguished its holding from that in Marsh v.
Chambers, finding there were "[i]nherent differences between the public
school system and a session of a state legislature." Id. at 596, 112 S.Ct.
at 2660.
        Likewise, there are differences between the instant case and Supreme
Court cases referenced above. Here, we are dealing with a criminal
proceeding, not a civil one. A criminal proceeding presents unique concerns,
such as the choosing of a fair and impartial jury, the presumption of
innocence, the trial court's role in sentencing, and a defendant's overall
right to a fair trial.
        Very few published cases have dealt with this issue in the context
of a criminal trial. Those that have addressed the issue have required an
affirmative showing of prejudice. Thus, in United States v. Walker, 696 F.2d
277 (4th Cir.1982), the Fourth Circuit Court of Appeals found nothing
prejudicial in a prayer offered by a minister who had been selected by the
trial court. Nevertheless, the court deemed the practice "needlessly risky"
and discouraged its further use. Id. at 282. A similar result was reached by
the Court of Criminal Appeals of Alabama in Huff v. State, 596 So.2d 16, 21
(Ala.Crim.App.1991).
        Appellant has cited no cases which have held a trial court's prayer
constitutes plain error requiring a new trial, nor have we located any.
Under the record before us, a new trial is not required. However, while the
trial judge's desire to seek "wisdom to discern justice and to do justly" is
certainly commendable, we strongly discourage this practice which has great
potential of inviting error in the trial proceedings.

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