Friday, April 16, 2010

Presumption of what?

All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. -- Texas Penal Code Sec. 2.01
Except they aren't.

That is the lesson I learned yesterday after speaking to the jurors who convicted my client of driving while intoxicated. I explained to the jurors during my closing argument that the presumption of innocence requires them to look for any innocent explanation for any fact in evidence. I told them that the presumption of innocence meant they could not presume any fact to be true unless it were proven by the state.

Yet, despite my presentation during voir dire, and despite my admonitions during both opening and closing argument and despite the instructions read from the bench, members of the panel assumed that my client either had more drinks than he admitted or that the drinks he had contained more than the "standard" amount of alcohol in them. This in spite of the arresting officer's testimony that he believed my client's account of how much he drank. At least three jurors said that they thought my client had more to drink than he did - with no evidence to the contrary.

I even had one juror ask why I didn't call more witnesses - to which I told her I didn't have the burden to prove anything.

The jurors' revelations were very disturbing considering the amount of time we spent discussing the presumption of innocence and burden of proof during voir dire. Next time I will hammer those issues home harder


nltarlow said...

I wonder if by reminding them of the State's burdens and the correct legal presumptions, people thought you were hiding something. Perhaps they took the mentality, if I may paraphrase Shakespeare, that "the counselor doth protest too much."

Houston DWI Attorney Paul B. Kennedy, said...

My view is that most people really believe that a defendant must have done something - else he wouldn't be on trial. Our job is to combat that attitude until we are unable to fight anymore.

And, as you are no doubt aware, sometimes that's the only defense we have.

A Voice of Sanity said...

Have you ever asked each juror as a first voir dire question, "Why do you believe my client is innocent?"

And will the judge find some way to block you from doing this?