How to Argue Reasonable Doubt

Prosecutor:

Proof beyond a reasonable doubt is proof that leaves you firmly convinced that the defendant is guilty. It is not proof beyond all doubt…

Defense:

A reasonable doubt is the kind of doubt that would cause a reasonable person to hesitate to act. It’s a doubt for which you can give a reason…

If you are trying a case in South Carolina, odds are that your judge will charge some variation of each of these definitions of reasonable doubt to the jury at the end of your trial although you may have to request the “hesitate to act” jury instruction.

It’s all well and good to repeat the judge’s instructions during your closing argument, but how else can we explain reasonable doubt to jurors?

You Can’t Prove It…

We don’t want to come across to jurors as saying, “maybe my client is guilty, but they can’t prove it.” Although that may be a reasonable argument for some people, it is not persuasive and may result in a guilty verdict from a jury made up of “law and order” folks. How can we explain reasonable doubt, then, without sounding snarky and smug about it?

There are three conclusions that jurors may come to by the end of a criminal trial: 1) The defendant is definitely guilty; 2) Maybe the defendant is guilty but we are not sure; or 3) The defendant is definitely innocent. Our system of requiring proof beyond a reasonable doubt is designed to ensure that only the first group of defendants are found guilty and punished for their alleged crimes. When jurors do not understand what reasonable doubt means, many are likely to return a guilty verdict even when they are unsure because they do not want to take a chance on letting a guilty person go free. What are some other ways that we can describe reasonable doubt to jurors?

Standards of Proof

In our court system, there are different standards of proof that apply in different situations and different courtrooms. It is important that we understand these different standards of proof to put reasonable doubt into context. A visual aid such as a flip chart or overhead projector can be very helpful here…

A scintilla of evidence is not really evidence of anything at all. It is nothing more than a mere suspicion, and it is never enough evidence to convict a person of a crime.

A reasonable suspicion is enough evidence for a police officer to stop a car and hold a person on the side of the road just long enough to write a ticket and check your license. A reasonable suspicion is enough evidence for an officer to pat you down – not search you, but pat you down – if they suspect that you have a weapon. It is never enough evidence to convict a person of a crime.

Probable cause is enough evidence for an officer to search you or your vehicle. It is enough evidence to charge a person with a crime or for the grand jury to allow a case to go forward to trial. Probable cause is enough to get you here, but it is never enough evidence to convict a person of a crime.

Most people are familiar with preponderance of the evidence, which is the standard of proof that we use in civil trials. Preponderance of the evidence means more than 50%. If one side’s evidence weighs even slightly more than the other’s, you must find in their favor. If all we were fighting about here today was money, preponderance of the evidence would be the standard of proof. It is never enough to convict a person of a crime.

Clear and convincing evidence is the standard of proof that we use in some family court cases. For example, if the state wants to permanently take your children away from you, they must prove by clear and convincing evidence that you are an unfit parent. Even clear and convincing evidence is not enough to convict a person of a crime.

Beyond a reasonable doubt is the highest standard of proof in any courtroom in any country in the world, and it is the standard of proof that we use in every criminal case. A reasonable doubt is the kind of doubt that would cause a reasonable person to hesitate to act. It is a doubt for which you could give a reason. The things that we have heard during this trial that should cause you to hesitate to act are…

Stories

The most powerful way to get any point across to any audience is through effective storytelling, and there are many variations out there on stories that illustrate reasonable doubt. Here are just a few examples…

The Cat and the Mouse:

The prosecution has presented a case to you that is based solely on circumstantial evidence. Can they obtain a conviction based solely on circumstantial evidence? Sometimes. Let’s imagine that we have a big box. We put a mouse into the box, and we put a cat into the box with the mouse. We close the lid, tie the box up tight with string, and leave it for about an hour. We come back to the box, untie the strings, and open it up. Inside we see the cat but no mouse. No one saw what happened, there is no video, but we can be pretty sure what happened to the mouse.

Now suppose that we have the same box. We put a mouse into the box, and we put a cat into the box with the mouse. We close the lid, tie the box up tight with string, and leave it for about an hour. We come back to the box, untie the strings, and open it up. Inside we see the cat but no mouse. But we also see a small little hole in a corner of the box, just big enough for a mouse to squeeze through. That hole is a reasonable doubt. Let’s talk about the holes in the prosecutor’s case for a minute…

Something’s not Quite Right with the Sauce:

Imagine that you and your spouse are at your favorite Italian restaurant. The service is wonderful, the appetizers are delicious, the drinks are good. The server brings the main course which is your favorite, spaghetti and meatballs. You take the first bite and… hold on… something’s not quite right with the sauce. You set your fork down. You really want to eat this meal that you’ve been waiting for, but you also do not want to get food poisoning from rotten meat. Do you push the meatballs to the side and eat the rest of the meal? You’re probably not going to eat any of it – you are probably going to send the entire plate back and may go look for a new restaurant. This case is like that meal. Something is not quite right with the sauce….

Spit in the Coffee?

I read an article this morning about Sidney Moorer’s ongoing obstruction of justice trial in Horry County, and saw a golden quote from detective Jeff Cauble:

“If somebody spits in my coffee, I’m not going to try to drink around it” Cauble testified. “I’m going to assume that all of the coffee is contaminated. So I’m going to throw that cup of coffee away and get a new cup of coffee. In this case, if someone lies to us in an investigation, we are assuming that everything is a lie as well until we figure out if it’s the truth or not.”

What a gift for every case where an officer is caught lying on the stand. “In this case, if someone lies to us about their investigation, we are assuming that everything is a lie as well… if someone spit in your coffee, you are going to pour it out, you aren’t going to drink it.”

If you have more ideas or if there are stories that you use in your closing arguments to illustrate reasonable doubt, please share in the comments. I’ll follow up with another post if we get enough ideas to continue…

3 Responses to “How to Argue Reasonable Doubt

  • This is just a shot in the dark, but how about the tortoise and the hare?

    We’re presenting a case where there is little, if any, evidence, and we’re using the story to emphasize that the prosecution is trying to rush the jury into a guilty verdict.

    “This is like the tortoise and the hare. Did the rabbit win the race? He was overconfident about his chances of winning, wasn’t he? Let’s take our time and really examine the facts/evidence/circumstances. Remember, slow and steady wins the race. Do we really want to rush to a verdict when it comes to someone’s freedom? Would you want a jury to rush to a conclusion if it was you?”

    • Great example! It’s a great illustration of what attorneys call “rush to judgment,” and describes many investigations/ prosecutions. Thank you.

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