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.

A little shifting of the burden

My topic today is nothing new. I've written about it before - and I'm sure I will continue to write about it. Of course we're talking about the shifting of the burden of proof from the state to the defense in the jury charge.

Most counties use a so-called "charge bank" where the court reporter will pull out the boilerplate language found in each charge and the language specific to each case. If you dare to question the language you'll get a funny look and the judge will explain that this is way he's done it ever since he took the bench. No to mention that someone who edited a pattern jury charge book wrote it that way, too.

So what if that's how it's always done. There are plenty of things that were done a certain way until someone stood up to challenge them. Just because a judge has used the same language for the last ten years doesn't mean it's correct.

In a criminal trial, the state has the burden to prove each and every element of its case beyond all reasonable doubt. The defendant has no such burden. He is presumed innocent. If the state is unable to meet its burden, the defendant is not guilty and everyone goes home.

The sole duty of a jury is to determine whether or not the state has met its burden of proof. If it has, the defendant is guilty. Otherwise, he's not guilty. The jury is not asked to determine whether the defendant is innocent -- that would require the defendant to prove a point. Requiring the defendant to prove anything only serves to shift the burden of proof from the state to the defendant.

But never let details such as the presumption of innocence or the right to remain silent get in the way of a judge determined to do things the way they've always been done. Heaven forbid we make the court change the language in its precious pattern charge.

The latest offender? Judge Lonnie Cox in Galveston County. Per his standard charge:

"Your sole duty at this time is to determine the guilt or innocence of the defendant under the indictment in this cause and restrict your deliberations to the issue of guilt or innocence of the defendant."

Really? And just where in the Texas Code of Criminal Procedure does it state that the job of the jury is to determine whether a defendant is innocent or guilty? For that matter, what about the Texas Constitution or the U.S. Constitution?

There is a world of difference between innocent and not guilty. One is not guilty if the state is unable to prove each of the elements of the alleged offense beyond all reasonable doubt. Innocent means you didn't do it, period.

But the charge in this case took burden shifting to a new level. Since the defendant is presumed innocent, the first option for the jury to choose is not guilty. Makes perfect sense. But not in the 56th.

Nope. The first selection for the jurors is to find the defendant guilty. Just think about that for a second.

If a person is presumed innocent, the default verdict should be not guilty; not the other way around. Placing the guilty option first implies that the defense must prove something in order to move the jury to vote not guilty.

Court limits comparison of burdens of proof

In order to obtain a conviction, the state must prove a person committed each and every element of a criminal offense beyond a reasonable doubt. Nothing new or earth-shattering there. It's one of the first concepts in criminal law that we are taught.

But what is beyond a reasonable doubt? There is no legal definition of the term in Texas. In fact, it's a bit like pornography -- the jurors will know when they see it.

The prosecutor likes to tell the jurors that proof beyond a reasonable doubt does not mean proof beyond all doubt. Fair enough. But where does that put the line?

We have a multitude of levels of proof. A police officer must have probable cause to arrest someone. There must be probable cause to support a warrant. A grand jury must find there is probable cause to believe the defendant committed a crime in order to vote to indict him.

Over at the civil courthouse money is awarded if a plaintiff can prove his claim by a preponderance of the evidence. The judge will even tell the jurors that a preponderance of the evidence just means more than 50%. A "feather's worth" of evidence can be enough to send a plaintiff out of the courthouse with a smile on his face or a frown.

Want some expert witness testimony to support your theory of the case? You'll need to prove that your witness is an expert by clear and convincing evidence. If the state wants to remove a child from a custodial parent, the state will need to make its case by clear and convincing evidence. Clear and convincing evidence is "proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established."

But what if the state wants to infringe upon the liberty of one of its citizens? Back in 1991, the Texas Court of Criminal Appeals decided how the term beyond a reasonable doubt was to be defined in Geesa v. State, 820 SW2d 154, 162 (Tex.Crim.App. 1991):

Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs.

This definition was cobbled together from the Texas Penal Code and the instructions given in the federal system. The CCA held that this definition was to be included in every criminal jury charge regardless of whether the defense requested it.

Nine years later the CCA decided that what it giveth, it can taketh away, too, as the judges held that the Geesa definition was serving only to confuse jurors. In Paulson v. State, 28 SW3d 570, 573 (Tex.Crim.App. 2000). 

So, what is a criminal defense attorney to do when there is no definition of the term of art by which a jury decides whether to brand someone as a criminal for life? You compare the various levels of proof. You "walk up" the levels of proof to demonstrate to the jurors how high the state's burden is. You compare preponderance of the evidence to clear and convincing evidence to beyond a reasonable doubt. You get the panel talking about what quantum of proof they would require in order to find someone guilty.

Unless the judge decides you don't get to. In Anderson v. State, No. 07-10-1039-CR (Tex.App.--Amarillo 2011), the Amarillo Court of Appeals decided that it is not a per se abuse of discretion if a trial judge does not permit a defense attorney to question the potential jurors about the differences in the burden of proof between a civil case and a criminal prosecution.

Now I have plenty of colleagues who would argue that it's not a good idea to use the stair-step model of the levels of proof during voir dire because it might convey to the jury that you can just "add up" the evidence to determine whether the state has met its burden. The stair-step model also doesn't do a good job of demonstrating the vast gulf between probable cause and proof beyond a reasonable doubt, and could serve to reduce the quantum of proof a juror would require to return a guilty verdict.

However, most of our clients start off (way) behind the eight-ball at trial and taking away the ability to compare the various levels of proof only serves to limit further the ability to provide an effective defense at trial. The Amarillo Court seems to have forgotten that those on trial are innocent unless proven guilty and that the courts should bend over backwards to ensure that they enjoy due process of law.

If you're not going to define the term by which we ask jurors to find folks guilty, then you sure as hell shouldn't limit the ability of defense counsel to demonstrate to potential jurors just how high the state's burden should be.

Reciprocal discovery would only harm defendants

Wouldn't it be great to have a laundry list of items that the state is required to produce prior to trial?

No more drafting discovery motions to get any recorded statements made by your client or anyone else the state intends to call at trial. No more drafting discovery motions to get a listing of any prior convictions for your client. No more drafting discovery motions to obtain search warrants, affidavits and returns. No more drafting discovery motions to obtain a list of expert witnesses the state intends to call. No more drafting discovery motions to get your hands on those experts' reports.

Sounds pretty damn good, doesn't it?

That is if you don't mind giving the prosecutor any written statements you client made, any information you have about his criminal record, a list of evidence you plan to introduce at trial, the names of your expert witnesses and any written reports they may have produced.

Reciprocal discovery only sounds like a good idea to the civil attorneys who are trying to find a way to replace their income after tort reform and attorneys who are too damn lazy to do any work on a case outside of standing alongside their client as they accept the state's latest offer.

The proposed legislation makes a mockery out of the 5th Amendment's protection against self-incrimination, emasculates the presumption of innocence and lowers the state's burden of proof.

Still a bad idea -- even with a fancy name

Reciprocal discovery. It sounds so innocuous. Since the State is required to make certain documents in a criminal prosecution available to the defense, why shouldn't the defense be required to do the same in return?

Over at Grits for Breakfast, Scott Henson wrote about a proposed bill that would require reciprocal discovery in criminal cases:

Chairman Pete Gallego has a bill up requiring mutual pretrial discovery for both the prosecution and the defense, with related bills up by Reps Guillen and Dutton. If you get four lawyers in the room you're likely to get five opinions on the subject, but I'm not a lawyer and as I've listened to the debates over the years, I've warmed to the idea. There has to be some way to ensure exculpatory evidence is disclosed before trial. Just requiring open files of prosecutors might be my personal preference (many counties operate that way just fine), but having witnessed this fight go on for years, I know it will take at least minimalist defense disclosure to seal the deal politically at the Lege. Mutual discovery isn't a bad compromise given the severity of the problem.

Now Mr. Henson doesn't practice criminal defense (though he is well acquainted with some that do) so I wouldn't expect him to understand the consequences of such a requirement.

In a criminal prosecution, the attorney representing the state is attempting to prove a person committed a criminal act. That person is presumed innocent unless the state's attorney can prove otherwise. The person accused has no burden to prove anything. The state's attorney must present evidence for the finder of fact to consider in determining whether or not the state's attorney has met his burden of proof.

The "system" is set up to make it as difficult as possible to convict someone (though you would find that notion hard to believe in most courtrooms). The only person in the courtroom with a right to a fair trial is the person accused. The government has no due process rights in a criminal trial - nor should it.

Requiring the person accused to turn over evidence to the state's attorney would serve to lower the government's burden of proof. The state's attorney would know the identity of all potential defense witnesses. The state's attorney would have alibi evidence. The state's attorney would know the trial strategy of the person accused.

Many times the defense strategy is to point out holes in the state's theory of the case that could lead a jury to find reasonable doubt that the person accused committed the offense alleged. In those cases the person accused rarely puts on any evidence - the entire case is centered on the state's burden of proof. If the person accused did not produce any documents during pretrial discovery, the state's attorney would have a pretty good idea of what defense counsel's trial strategy would be.

That might seem "fair" - but we're not talking about a process in which both parties are on an equal footing. There is a reason that criminal cases in Texas are styled The State of Texas v. the accused. If we were just arguing over insurance money then the civil discovery rules are appropriate. But when we talking about the very freedom and liberty of an individual - the burden on the party seeking to restrain that freedom or liberty should be as heavy as possible.

We should never do anything to lessen that burden. That could be you on the other side of the v. one day.

There's raising the bar, and then there's raising the bar

Those of us on the "dark" side (i.e. defense bar) are taught to lower the jury's expectations as to our case and raise their expectations for the prosecutor's case. The object is to make your leap as low as possible while making the state jump through a high hoop in order to get a conviction.

Someone might want to let Donald Briskman down in Alabama know about that after he raised the bar just about as high as he could for his own client - former Oakland Raider quarterback JaMarcus Russell.

"We fully expect he will be exonerated from these charges. That's exactly how I feel. I've had an opportunity within the last week to get some additional information which bolsters my feeling that he's ultimately going to be acquitted." -- Donald Briskman

It's one thing to say that you believe the evidence will show that your client wasn't guilty or that the evidence doesn't support the charges -- it's quite another thing to inform the world that you expect your client to be exonerated. And might I remind my fellow counselor that there's a world of difference between being acquitted and being exonerated. Being acquitted means raising enough reasonable doubt to convince a jury to find your client not guilty; being exonerated means proving your client didn't do what the prosecutor said he did -- it means assuming the burden of proof.

Maybe Mr. Briskman was stricken by mike-in-face disease and just couldn't control what came out after leaving the courtroom. As less than a third of his practice is devoted to criminal defense, maybe he just didn't realize what a blunder he was making. In the civil courthouse both sides carry the burden of proof; one side meets it and the other doesn't.  Over in the strange world of the criminal justice system, on the other hand, only the prosecutor carries a burden and we win if he can't meet it.

Mr. Russell, who has joined Ryan Leaf at the top of the list of the NFL's biggest draft busts is facing a felony charge of possession of codeine.

Mayor pulls plug on HPD vampire training

Houston Mayor Annise Parker pulled the plug on an HPD initiative to train officers to become licensed phlebotomists so they could draw blood from suspected drunk drivers. As part of their training through UTMB (University of Texas Medical Branch) and Lone Star College, seven Houston police officers first practiced drawing blood from artificial limbs, then each other and finally inmates in the psychiatric ward at Jester IV prison near Richmond. (See video.)

That's right, police officers practiced drawing blood from inmates in the psych ward of a state prison. Were the inmates informed that rank amateurs would be sticking them with needles? Were the inmates asked to consent to  being used in target practice? Did they select Jester IV so that none of the victims subjects would complain?

How far will this lunacy extend? What will the state do next to combat citizens from exercising their rights? What's the next step to ease the state's burden of proof in DWI prosecutions?

Why are motorists suspected of DWI presumed guilty?

It shouldn't be easy for the state to take away the liberty of a person accused of committing a crime. We shouldn't be bending over backwards to make it easier. Where are our "less government is better government" tea party-ites when we're talking about undermining our fundamental constitutional rights? Can you think of any type of government intrusion that is bigger than allowing the police to stick a needle in your arm just because they suspect you might have done something wrong?

Of course don't get too excited over Mayor Parker's actions. Her opposition wasn't the idea of setting vampire cops loose in the city, she didn't like the price tag of the program.

See also:

"Police train to draw suspects' blood," KPRC-TV (Nov. 11, 2009)

A different perspective on voir dire

Thomas Mesereau, Jr., of Los Angeles, posed an interesting question as he wrapped up the 23rd Annual Rusty Duncan Advanced Criminal Law seminar in San Antonio this weekend.

Could our reliance on reasonable doubt, the burden of proof and the presumption of innocence serve to de-humanize our clients before the jury?

In other words, by focusing the attention of potential jurors on reasonable doubt, the burden of proof and the presumption of innocence during voir dire, are we telling them that it's not a question of whether or not our client did what he is accused of doing but, instead, a question of whether or not the state can prove it. In that scenario, our client isn't a person accused of a crime, he's just the person sitting in the chair next to us at the defense table.

Mr. Mesereau pointed out that by now most of the folks sitting on your jury panel have seen enough on television to know that they won't be getting the whole story in the courtroom. They know that there is certain evidence that they won't get to see because it was suppressed or deemed inadmissible. They expect us to try to keep evidence out.

Might the better approach be to look for jurors who have connections with your client? Are there certain qualities we can detect in a juror that gives us reason to believe that he or she can empathize with our client? Given the time constraints we face in the misdemeanor courts, I tend to be a bit doubtful.

While I think Mr. Mesereau made some very good points, I also think his attitude comes from his own experiences and from the types of cases he tries and clients he represents. When you're dealing with a celebrity accused of child molestation, finding jurors who connect with your client is important.

A typical DWI trial, however, really comes down to a question of opinion and when we're talking about the opinions of a police officer, the concepts of reasonable doubt, burden of proof and presumption of innocence are vital for a jury to understand.

You gotta know when to fold 'em

This past Saturday night police in Bakersfield, California made a traffic stop in the parking lot of a Taco Bell. Another vehicle pulled in behind the police car. While one officer handled the original traffic stop, the other officer went to talk to the driver of the other vehicle. That officer smelled the odor of an alcoholic beverage on the breath of the driver and asked the man for his driver's license. The man refused and began to roll up his window. The officer stuck his hand inside the open window and attempted to hit the automatic lock switch to open the door. The driver struck the officer's hand with his.

The officer ordered the driver out of the vehicle and then down to the ground. The driver refused to get on the ground but did place his hands behind his head. He was arrested on suspicion of driving while intoxicated and resisting arrest.

The driver in question? Arizona Cardinal linebacker Joey Porter.

On Wednesday, the Kern County District Attorney's Office announced that no charges would be filed against Mr. Porter because the prosecutor did not believe there was a reasonable likelihood that a jury would have found Joey Porter guilty beyond a reasonable doubt."

Now the prosecutor may be on to something. There were no bad driving facts alleged. There were no field sobriety tests conducted. There was no breath test nor a blood test. All the officer had was the smell of alcohol on the breath. With such scant evidence there is little reason to believe a panel of citizens would convict Mr. Porter of driving while intoxicated. Furthermore, without a lawful arrest (based on probable cause), the charge of resisting arrest is dead on arrival.

I don't know how much of this quick, and favorable, outcome had to do with Mr. Porter's celebrity and how much it had to do with a prosecutor carrying out his responsibility to see that justice is done. I would like to think it was the latter.

Just say no to the intoxi-liar

In Texas, the implied consent laws found in the Transportation Code, state that if a driver is asked to provide a breath or blood specimen, provided the officer has probable cause to arrest him for DWI, his refusal to do so may be used against him in a criminal proceeding and he may be subject to a license suspension of 60-180 days. Nowhere in the Code, or in the statutory warning given by the officer, does it state that a driver MUST provide a specimen.

To listen to Harris County prosecutors you would think that by exercising a right not to blow, a citizen is automatically guilty of driving while intoxicated. The drivel that comes out of their mouths usually amounts to telling the jury that the defendant had the opportunity to prove his innocence but that, by refusing, he is admitting he is intoxicated.

Nothing could be further from the truth.

A citizen accused is under no obligation to prove anything at all. He is presumed innocent unless the state can prove beyond a reasonable doubt that he is guilty of a criminal offense. The burden is on the state to produce the evidence to support its claim. That argument is an improper comment on the defendant's exercise of his right to remain silent based on the instruction the judge will give to the jury to stop any discussion of why the defendant did not take the stand. The only reason the prosecutor can get away with his assertion is because the Legislature and the Judiciary don't have the guts to stand up for the rights of the citizenry of Texas.

Furthermore, if the citizen accused has arrived at the point where he is asked to blow into the state's little black box, it means that the only thing his prior cooperation with the officer netted him is an arrest.

Finally, never forget that a jury is free to accept in whole or in part, or reject in whole or in part, any evidence or testimony presented to them.

The advice, as always, is DON'T, under any circumstances, blow into the little black box -- don't make the prosecutor's job any easier.