Saturday, June 17, 2017

Roger Federer, Michael Cicchini, and Pennsylvania’s Burden of Proof

Photo by Manolo Guijarro
“Roger Federer is a better tennis player than Michael Cicchini.”  While that statement is technically true, it doesn’t really say anything.  It tells you nothing about how good Roger Federer is (or how bad I am) at tennis.  So at best, it’s a completely meaningless statement.  And if you don’t know much about the sport to begin with, the sentence is worse than meaningless.  It’s grossly misleading.  Why?  Because it gives the impression that Roger Federer and yours truly are somehow comparable or at least part of the same tennis universe.  If we weren’t, why would we be compared to one another?  After all, no one ever bothers to say that a Ferrari is faster than a Yugo or that Cal Tech offers a better physics education than Wisconsin’s Gateway Tech, even though both claims are technically true.  Yet this type of highly misleading comparison is found at the heart of something far more important than tennis, cars, and even physics: Pennsylvania’s burden of proof jury instruction in criminal cases. 

Pennsylvania’s instruction on proof beyond a reasonable doubt concludes: “So, to summarize, you may not find the defendant guilty based on a mere suspicion of guilt.”  Much like the above tennis comparison, this is technically true.  But it says nothing about how powerful the state’s proof must be before a jury can properly convict a defendant.  Worse yet, to compare proof beyond a reasonable doubt to mere suspicion is grossly misleading.  Why?  Because mere suspicion is such a low standard that, just as I have no business being compared to Federer, it has no business being in the same sentence as our country’s highest burden of proof.  Mere suspicion doesn't even justify an arrest, let alone a conviction.  The Supreme Court has held that “[a]rrest on mere suspicion collides violently with the basic human right of liberty.”  

And on a more practical level, what if, during a trial, the state presented some evidence of the defendant’s guilt?  There is now more than a mere suspicion.  So should the jury convict?  The so-called instruction offers no guidance.  It fails to tell jurors that, standing in between mere suspicion and proof beyond a reasonable doubt are the standards of (1) probable cause, then (2) proof by the preponderance of evidence, and then (3) proof by clear and convincing evidence.  After all of that, we’re still not at proof beyond a reasonable doubt.

A valid jury instruction, therefore, is one that compares proof beyond a reasonable doubt to something far more relevant.  Vermont’s does a good job of this, by stating that “[i]f you have a reasonable doubt, you must find [the] [d]efendant not guilty even if you think that the charge is probably true.”  To continue with our tennis analogy, this is like stating that Roger Federer is a better tennis player than Andy Roddick.  Now we’re getting somewhere. 

In this regard, Arizona’s instruction does an even better job than Vermont’s.  It compares proof beyond a reasonable doubt not only to the preponderance of evidence standard, but also to the clear and convincing standard.  “In civil cases, it is only necessary to prove that a fact is more likely true than not or that its truth is highly probable.  In criminal cases such as this, the State’s proof must be more powerful than that.  It must be beyond a reasonable doubt.”  This is like stating that Roger Federer is better than Andy Rodick and better than Andre Agassi.  Now we’re starting to understand just how good Roger Federer really is.

Until courts start properly instructing jurors on proof beyond a reasonable doubt, perhaps we defense lawyers should use the proof chart (pictured below) in closing arguments.  This, at least, puts things into context.  And to put the tennis players into context for those who don’t know anything about the sport, Federer has 18 major titles, Agassi eight, and Roddick one.  Despite my best efforts, I have yet to win my first. 


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