§ 2.01. PROOF BEYOND A REASONABLE DOUBT. 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. The fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial.
"Beyond a Reasonable Doubt" and the "Presumption of Innocence" are terms that every criminal defense attorney is familiar with. Seminars and legal books revolve completely around how a lawyer should convey the two terms to jury members.
Not too long ago I spoke to a juror who was the foreman in a breath test case in Travis County. The verdict was ultimately guilty, and this was a hard fought trial which took over 6 hours of jury deliberation. First off, I wanted to state that in no way in my trying to denigrate the job done by the attorney. This blog is simply to critique how the jury considered the evidence and the law. Along this point, any lawyer who HAS NOT lost a jury trial is either lying, or has not tried enough cases. If either of these is true, they have not done proper service to their clients. This was a .15 breath test case in Travis County, and the verdict ultimately centered on the result of the chemical specimen given.
As I wrote previously, the jury spent over 6 hours deliberating over the verdict. After they came back with a "Guilty" verdict, I spoke to the foreman outside and asked him how the evidence was considered. The foreman, who happened to also be an engineer (who seemed to be very impressed with his knowledge and grasp of the trial, evidence, and the law), told me that right before casting their final ballots, they voted and the results came back 4-2. Four voted "Guilty" and two voted "Not Guilty." After this, they then further considered the evidence and the two “Not Guilty” votes then changed to that dreaded one-word verdict criminal defense attorneys cringe to hear.
When I asked how they deliberated, he told me they drew a long straight line on a dry erase board. He said they then started at the beginning of the line and placed “Guilty” at the start position, and “Not Guilty” at the other end. He said they then considered the evidence to decide whether there was enough evidence to try and get to the “Not Guilty” portion of the line on the opposite end. And he said because there was a breath test…they simply couldn’t do it.
I was shocked. Every criminal defense attorney in a trial tries to properly convey proof "Beyond A Reasonable Doubt." Obviously this juror utterly failed to grasp the concept. I personally take pride in my ability to successfully convey the two concepts. I reverberate throughout the trial the importance of each, and how the standard is practically overwhelming. I write this missive because I have heard MANY times before how jurors fail to understand the legal definitions imposed by law in a trial. I told him that he thought about the "Burden of Proof" and the "Presumption of Innocence" absolutely correctly. The “line” analogy is fantastic. HOWEVER…he did it completely backwards. You should start at “Not Guilty" considering the "Presumption of Innocence", and then work your way through the evidence to see if you can properly apply the heavy burden of proof of "Beyond a Reasonable Doubt” across the line to test whether the government properly satisfied that burden. He looked dumbfounded. He looked like a small toddler who was first learning to spell out his first word. He proceeded to explain to me again how they thought about the case, and I again told him it was a correct way to think about it…he just applied it incorrectly. He still looked baffled.
The “Presumption of Innocence” – being considered innocent until proven guilty – is a legal right that the accused in criminal trials has IN EVERY CASE and against every charge. The burden of proof is thus on the prosecution, which has to collect and present enough compelling evidence to convince the jury that the accused is guilty "Beyond a Reasonable Doubt." Where the jury has ANY reasonable doubt, the accused is to be acquitted. This legal concept is derived from the Latin legal principle that ei incumbit probatio qui dicit, non qui negat (the burden of proof rests on who asserts, not on who denies).
What this means is that the government has the burden of proof to prove their case. Period. The defendant ALWAYS starts completely innocent. Hence, the foreman should have started at "Not Guilty" at the beginning of his line analogy. And he should have considered the evidence with the other jurors…and then decided whether using the "Beyond a Reasonable Doubt" analogy the government had successfully proven their case.
In my experience the smarter the juror thinks himself to be, the more likely you need to explain fully how to properly apply the legal concepts to be considered. Sometimes these jurors are very prideful, and often create their own strategies of how to apply something they deem so complex.
What concerned me more, however, was how two jurors shifted their "Not Guilty" votes into a "Guilty" vote. "Beyond a Reasonable Doubt" is a very heavy burden for the government to meet to prove ANY criminal case. Any hesitation…ANY reasonable doubt, and the jury must say "Not Guilty." It doesn’t necessarily mean that the jury believe the defendant "innocent"…just that they have a reasonable doubt regarding the guilt of the accused.
Thus, I am of the position that if a juror says "Not Guilty" once during deliberations and after hearing all of the evidence…it is impossible for them to then change their vote into a "Guilty" verdict. This would basically mean that miraculously that reasonable doubt they once had has now somehow been removed. To me, this is absolutely impossible. If you have a reasonable doubt once, it is impossible for that doubt to somehow eliminate into oblivion and cease to exist.
Which brings me to my next point. What I believe really happened was some of the jurors in this case simply got tired of deliberating and caved in due to pressure. To me, this is the biggest travesty in our criminal justice system. I do not have a problem with the person that changes their vote…what I do have a problem with, however, is a person who exerts pressure on another juror when deliberating. I think this should be an infraction punishable by contempt.
My last trial I received a "Not Guilty" verdict after around 2 hours of jury deliberation in a Felony DWI trial. When polling the jury, the foreman told me the vote was 8-4 initially. Eight voted "Not Guilty" and four voted "Guilty." After reviewing the evidence and discussing the facts, the four then changed their votes to "Not Guilty." The foreman conveyed to me that this happened when they collectively considered the evidence, and it was demonstrated and agreed upon that the government failed to meet the very high burden of proof imposed by the law.
I was beeming with pride after being told this. It seems then that some juries DO know how to properly consider evidence.