Saturday, July 14, 2018

A creative explanation of reasonable doubt

My favorite explanation of reasonable doubt came from a Nevada prosecutor during closing arguments to the jury: “you have a gut feeling hes guilty; he’s guilty.”  But I just came across this explanation from an Illinois judge.  It’s pretty creative.  A recently published law review article (here, p. 943-44) describes it this way:  

[T]he judge placed a rubber band around a glass of water and told [the jury] that the rubber band represented reasonable doubt. He then explained metaphorically, the defendant is like a chip of wood in the bottom of the glass and the prosecution must pour in enough evidence, like water, to float the defendant to the rubber band to prove his guilt.

I guess the question is this: How high up on the glass did the judge place the rubber band? 

If the jury starts debating merely whether the glass was “half empty or half full,” the defendant is in real trouble (or, to continue with the judges metaphor, deep water).  But assuming that the rubber band was placed sufficiently high up on the glass, it’s better to tell the jury to look for water than “not to search for doubt,” which is the language used in Wisconsin’s pattern criminal jury instruction on the burden of proof.

As psychologist Larry White and I have now twice demonstrated here and here (and as many judges understand and one judge has explained at length here, here, and here) such language lowers the burden of proof below the constitutionally-mandated standard.  Telling the jurors not to look for the very thing the constitution requires them to look for—well, the problem with that should require no further explanation.    

The upshot: this creative Illinois judge came up with a better explanation of reasonable doubt, possibly off the cuff, than the eight former prosecutors and three other former government attorneys that comprise Wisconsin’s eleven-member jury instruction committee.  Given the stacked deck of 11-0, we shouldnt be surprised.

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