Friday, January 20, 2012

Proving a negative

In a comment to a recent post ("A little shifting of the burden"), Adam Poole referenced a provision of the Texas Code of Criminal Procedure that states a judge shall submit the question of the defendant's guilt or innocence to the jury prior to final argument (Art. 37.07(2)(a)).

He also points out a couple of other provisions that have to do with alternate jurors or jurors who die or become disabled during trial. In these provisions the code states that the jury is rendering a verdict on the guilt of innocence of the defendant.

In none of these provisions, however, does it state that the jury charge must state that the role of the jury is to determine the guilt or innocence of a defendant. The provision in 37.07(2)(a) says that the judge shall "submit to the jury the issue of guilt of innocence of the defendant..."

As we should all know by now, a jury is instructed that a defendant in a criminal case is presumed innocent and that the presumption of innocence alone is enough for a jury to acquit a defendant. If a defendant does indeed start out innocent, then the burden to prove each of every element of the alleged offense falls squarely on the head of the state. If the prosecutor is able to prove each and every element of the alleged offense beyond all reasonable doubt, a jury will find the defendant guilty.

Logically it is possible to prove a positive assertion. The assertion that people are bipedal can be proven. The assertion that heating a block of ice will turn that block into water can be proven. The assertion that a certain person committed a certain crime can be proven.

But can you prove a negative assertion? It is possible to prove where you were on a certain date - can you prove where you weren't?

And that brings us to a second problem, in order to prove an assertion, you must present proof, or evidence. In order to convict a defendant, the state must present a chain of evidence that proves the defendant did what he is alleged to have done beyond all reasonable doubt.

If the state can do it, the defendant will be found guilty. If the state cannot do it, the defendant will be found not guilty.

But, if you are asking the jury to determine whether a defendant is guilty or innocent, you are placing a burden on the defendant to present some evidence that he didn't do that which he is accused of doing. And you are taking the focus away from whether the state met its burden of proof - because once the state has presented some evidence of guilt, the defendant must then present some evidence of innocence.

The verdict form asks the jury to determine whether the defendant was not guilty or guilty of the alleged offense. Not guilty is the same as not proven beyond all reasonable doubt. And that may, or may not be, a long way from innocence.

When the Code of Criminal Procedure refers to the question of guilt or innocence, the Code is looking at whether or not the state has met its burden of proof. As lawyers we understand that. When a judge tells a jury they are to rule on the guilt or innocence of a defendant the meaning of the words aren't so cut and dried.

Guilt and innocence are terms of art that mean something entirely different to attorneys in a criminal courthouse than they do to the person on the street. As the verdict is being rendered by the people on the street, the language of the charge should be geared toward the "plain" meaning of the words.

Since the jury is told they are to presume the defendant innocent, the question is not whether they think the defendant is guilty or innocent of the crime; the question is whether they think the state proved each and every element of the alleged offense beyond all reasonable doubt.

1 comment:

Adam Poole said...

The section quoted states that the Court "shall" submit the question of guilt or innocence to the jury before they deliberate, so yes this issue must be submitted to the jury in the charge through some written instruction. It appears it is the form of the language used that you take issue with. I note that you now take issue with the language, "it is your sole duty to..." but originally you took substantial issue with the use of the word innocence... which comes directly out of the Code.

The point of 37.07 is to restrict the jury's deliberations to only guilt or innocence issues and to not consider punishment until that phase of the trial is reached. Some instruction to this effect is required in a bifurcated proceeding per 37.07. The language that our Legislature chose might be as simple as it sounding much more intelligent then informing the Jury to only consider guilt or "not guilt."

In any case, the majority of the language from this paragraph comes verbatim out of 37.07 and the rest has been upheld as a proper charge in numerous appellate opinions. In the face of tried and true language for a mandatory portion of the charge, it would be incumbent on the Defendant's attorney to submit alternative language that still tracked the statute, and provide authority for it.

Barnes v. State 855 S.W.2d 173
Mason v. State, 2000 WL 965041
Avila v. State, 15 S.W.3d 568
Allen v. State, 1997 WL 804169
Frazier v. State, 1994 WL 665166
Rawls v. State, 1994 WL 400895
Godine v. State, 874 S.W.2d 197
Castro v. State, 1993 WL 282789
Shaw v. State, 2010 WL 2265202
Andrew v. State, 2009 WL 36443
Middleton v. State, 187 S.W.3d 134
Cardona v. State, 2004 WL 1440659
Brazile v. State, 2003 WL 1747811
Brown v. State, 56 S.W.3d 915
Frank v. State, 2000 WL 1784978
Hall v. State, 2000 WL 1060382
Dukes v. State, 2000 WL 861408
Holmes v. State, 1999 WL 33757428
Harrison v. State, 1999 WL 312300
Remo v. State, 1998 WL 831364
Rodriguez v. State, 1998 WL 83789
Lee v. State, 949 S.W.2d 848
Johnson v. State, 1996 WL 499467
Holiday Inns, Inc. v. State, 931 S.W.2d 614
Flores v. State, 920 S.W.2d 347
Fritz v. State, 1995 WL 752763
Hamilton v. State, 1995 WL 612401
Holt v. State, 912 S.W.2d 294
Heiden v. State, 1995 WL 500216
Tolliver v. State, 1995 WL 397029
Franklin v. State, 1995 WL 115826
Roy v. State, 891 S.W.2d 315
Lewis v. State, 1994 WL 684630
Roberson v. State, 1994 WL 16189639
Seals v. State, 1994 WL 443658
Hunter v. State, 1994 WL 313509
Hock v. State, 2009 WL 3000568,
Moore v. State, 265 S.W.3d 73
Harris v. State, 996 S.W.2d 232
Argumaniz v. State, 1998 WL 430318
Taylor v. State, 1997 WL 603381
Redmond v. State, 1997 WL 33641980
Malone v. State, 939 S.W.2d 782
Tucker v. State, 1994 WL 168000