We think he killed that guy and he is super guilty but we agree with his lawyer there is reasonable doubt. I mean, his lawyer never told us the guy didn’t do it either so he probably did it, but he just kept talking about how the State is not able to prove that he did it and that was convincing… So based on that let’s go ahead and let this murderer walk today. All agree?
Said no juror, in any jury deliberation room, ever.
If you’ve been practicing criminal defense for a while what I’m about to say may sound crazy to you. And if it does, it is probably because like me you were taught about “the burden” and how “the burden” is so high on a criminal case that we have to make sure the jury knows that. You’ve probably also been taught that you should not “assume any burden” and should just tell the jury that the government hasn’t proven that your guy is guilty. God forbid, we wouldn’t want to come out there and tell them our client is innocent, they may then expect us to back that up and we will lose all credibility with the jury.
The Jury Doesn’t Care About Your Standard
When the jury sits in judgment of your client it doesn’t care about the burden. Above all the jury cares about one thing: did your client rape/kill/torture that child or didn’t he. They could not care less about what standard they use to make that determination. They are going to listen to the presentation of the case until they feel in their hearts that either your guy did it, or he didn’t. That’s if you did a good jury selection. If you didn’t, they are going to think your guy is guilty no matter how many times you tell them that the government needs to prove the case beyond a reasonable doubt.
if you don’t believe me do this–pick a random group of non-lawyer friends and ask them whether they agree with the following:
Accused child rapists should go free if the government doesn’t do a good job of proving they are guilty beyond a reasonable doubt.
If you are hitting a 10% agreement on that poll I’d be amazed.
Being In The Courtroom Doesn’t Change The Human Dynamics
I’ve heard lawyers say that when jurors come into a courtroom and swear that they will follow the law that somehow that changes things. It is as if people are no longer people when they step into the courtroom. This is also bogus. The jurors might say whatever they want to say about the burden but at the end of the day they want to know “Am I letting a murderer go free, am I letting a rapist go free, am I letting a _insert your favorite violent crime here_ go free?” And the answer to that question is a matter of feel, not of some burden-based rigorous analysis.
Innocence Leads to Reasonable Doubt Acquittals
At the beginning of the trial the prosecution will undoubtedly argue that your client is guilty. They will not tip-toe around it, they won’t say that they are just setting out to extinguish all reasonable doubt and at the end the jury might not know whether the guy is actually guilty or not but that they should convict because they can be satisfied that at least all reasonable doubts are taken care of. The jury will know that the prosecution is sure that your client is guilty and it intends to prove it.
You can’t go out there and start on the defensive. Your message to the jury can’t be that there will be many reasonable doubts at the end of the trial. What you are saying when you say that is that when they get to the end of the trial they really won’t be sure whether your client is a murderer, or a child molester, or committed whatever he was charged with. What you are saying is “Look guys, I’m not saying he didn’t rape that child, or he didn’t murder that guy, I’m just saying at the end of the trial you just won’t know because you’ll have doubts, and so because you won’t know whether my guy really raped a kid or murdered that guy you gotta give him the benefit of the reasonable doubt, you gotta set him free… Err in the side of…setting a potential child rapist free?”
I don’t think so.
You have to come out swinging. You have to be the absolute opposite of the prosecution. The jury has to know that your guy is innocent. This is not a guy that probably committed whatever heinous crime he is accused of but the law requires them to cut him loose because the government just won’t do a good job at proving it. This is a guy who is unjustly accused of crimes he did not commit. And you will do everything in your power to prove it.
if you come out like that then the stage is set. The government is saying your guy did it. You are saying he didn’t. Any middle ground in that tug of war is a defense win. If the jury is thinking in terms of “this guy could actually be innocent” vs. “they may not be able to prove he did it” it will refocus the way it looks at the evidence. If you get the jury to think in terms of innocence then all of the sudden reasonable doubt starts to matter. Because all of the sudden not being sure is the difference between sending an innocent man to prison or giving him the justice he deserves.
“But If I Tell The Jury My Client Is Innocent I May Lose Credibility”
You see this in trial books and seminars. You even see some lawyers talking about this. But no matter how many times this is said it will never be true. Think about it, what are you worried about? Are you worried that if you tell the jury your client is innocent you are going to lose credibility with them if they become convinced that he is guilty? At that point it doesn’t really matter. If they become convinced your guy is guilty then you’ve already lost so who cares.
Are you worried that you’re going to lose credibility because the jury assumes that criminal defense lawyers would say anything to get their guilty clients off? Well, if you got a jury that thinks like that then there’s nothing you can say to get that win in that trial so you probably shouldn’t worry about losing credibility at that point. And besides, do you think arguing to that jury that it should let your guy walk because “the government can’t prove he is guilty” is really going to work?
“But what if when I get to the end the jury doesn’t think I’ve actually proved that my guy is innocent?” Well now you are in reasonable doubt land. Not a great place to be in but hopefully you proved enough to make them hesitate when trying to decide whether your guy is guilty or not. And it’s not like the jury is going to go in the back and convict your guy because they don’t think you actually proved he was innocent. Think about that, how would that play out?
Jury room: we don’t know if he did it or not, there’s a lot of evidence that suggests he is guilty, there is a lot of evidence that suggests he is innocent. Both sides are arguing the extremes of that so what I think we should do is convict. I mean the government told us they would prove he was guilty and we are not really sure the government actually proved that but the defense said they would prove he was innocent and we are not sure they proved that either so let’s go ahead and stick to the defense. Let’s find this guy guilty even if we are not sure.
That’s probably never going to happen. And if you found yourself a jury that would stick it to the defense under those circumstances it is probably time for you to go back to the drawing board on that jury selection.
