A Book from the Library of Defense

Arguments No One Would Be Stupid Enough to Make, Except in a Courtroom (part 1)

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by: Ryan • May 8, 2013 • no comments

A woman was charged with prostitution after she was seen providing sexual services in an alleyway. In order for it to be prostitution, however, she must have done so for a "fee." In this case, there was no evidence of any fee, i.e., something of value given in exchange for the sexual act. Au contraire, argues the prosecutor. According to the Court of Appeals opinion on this case, which came out today:

"The prosecutor went on to contend that anything that is of value to the person performing the sexual conduct constitutes a fee, including a kiss or a breath of fresh air."

Wow. Not really anything I could add to that.

I'm not pointing this out just to make fun of the prosecutor. Rather, I want to make the point that in the heat of battle, lawyers will make arguments that are obviously ridiculous, and it's not because the lawyer is stupid. It's the kind of argument that the lawyer himself would never make outside the courtroom. But in the desire to win the argument, the prosecutor latched on to some thought and ran with it.

This prosecutor is hardly alone, and it's hardly limited to one side.

That said, the law is quite often counter-intuitive, so just because your family would scoff at the argument over Thanksgiving dinner doesn't mean it's wrong. But being a good lawyer and being a good person means that your bullshit detector isn't limited to other people. And a BS circuit breaker needs to kick in, even when BS is rewarded and your argument -- like the one above -- manages to win in front of an "impartial magistrate." (The COA reversed the conviction.)