We make decisions every day; we regularly have to choose between two options,
and our natural tendency is to simply choose the better of the two options.
When it comes to jury duty in a criminal case, when a juror is asked to
decide between guilt vs. innocence, a juror is asked to make a choice
by a different standard, the standard of proof beyond a reasonable doubt.
Choosing the better of two options is not what a juror is called upon
to do in this context.
Yes, frequently the prosecutor's theory of guilt is the better option
when compared to the defendant's theory of innocence. A defendant's
case often relies on a theory that is not supported by witnesses who are
regarded as reliable as the police officers who testified for the prosecution.
The government uses well-funded laboratories, police officers who testify
frequently, paid informants, and other advantageous tools while a defendant,
if he cannot afford to pay experts, must go to the court and beg for money
to provide him with an adequate defense. He must send his investigator
to interview witnesses who, after giving statements to police, are told
they don't have to talk to anyone else.
Many times a defendant cannot testify in his own defense for fear that
his past will be used against him. Even if he has no prior convictions,
the prosecutor will call him a liar and will tell the jury that his testimony
is motivated only by a desire to avoid the consequences of his evil actions.
If he chooses not to testify, the jury will wonder why. They'll ask
themselves "if he's really innocent, why doesn't he just
testify and proclaim his innocence? That's what I'd do!"
Of course the court will tell the jury that the defendant's silence
should not be considered, but most jurors cannot follow such an instruction.
They agree during the jury selection process that they can presume innocence
and refrain from holding the defendant's silence against him, but
they'll always wonder about him and why he won't talk. They'll
assume guilt if he's silent, and suspect deception if he testifies.
Add to this the fact that most jurors
want to believe the prosecutor and his police witnesses. If innocent men can
be charged, what is there to protect the jurors themselves from being
arrested? Deep down inside they know that bad things happen even to good
people, that innocent men as well as the guilty are charged by prosecutors
who want to win their cases even at the expense of their ethical duty
to seek justice. But no juror wants to believe what they know inside.
A juror doesn't want to acknowledge that he or she could ever be charged,
or that the government could ever be so mistaken as to accuse an innocent
man of a crime. Finding a defendant not guilty would shatter the juror's
sense of comfort and immunity from trouble.
When a jury believes that someone
probably is guilty, that is, he is more likely guilty than innocent, the jury feels
obligated to find guilt by a sense of duty to the community and a desire
to live safe from crime.
Juries naturally tend to want to choose the better of two options. The
prosecutor's advantages generally make guilt the "better"
option, the more likely true option. Juries feel morally obligated to
punish a criminal, and are likely to go with a finding of guilt based
on a "probably" standard.
What, then, of reasonable doubt? It is a standard to which jurors in America
often pay lip service. They believe that it means to be really sure that
the option they chose, usually guilt, is the better of the two options.
In so doing they diminish the protections for us all. They make it easier
for a government to deprive its citizens of their liberty, right or wrong.
The value of liberty was considered by our founders to be so high that
people who are
probably guilty are entitled to keep it. Think about that for a minute - the founding
fathers whose wisdom secured for us our rights to privacy, freedom of
speech and religion, and gave us a say in the selection of our leaders
felt it more important to protect the rare but real innocent man who stands accused,
even if this standard means that guilty people sometimes go free. A guilty person occasionally going free is the price of freedom to the
falsely accused, a price that all who value their freedom should gladly
pay. By using the reasonable doubt standard, the founders sought to ensure
that the government would diligently and justly go after the truly guilty,
that they would do so with good evidence only, and that non-government people,
jurors, would have the final say on whether the government's case was good
enough to deprive a person of his liberty.
When someone swears to follow the law and to justly judge a case as a juror,
and to hold the government to the reasonable doubt standard, he or she
takes on an obligation to the whole of American civilization. For such
is the nature of the juror's duty - to hold in check a government
that is otherwise empowered to indiscriminately deprive its people of
their liberty. If one cannot do this, one should admit as much and decline
to serve as a juror.
When a juror claims that he or she can follow the law but instead follows
his or her tendency to revert to a "which theory is better?"
standard, when he or she gives in to the temptation to convict because
the defendant "probably" did it, the juror helps erode their
own freedom and that of their children and grandchildren. The juror takes
a sledgehammer to the foundation of our free society.
One of the highest priorities of any criminal defense attorney should be
to ensure that his client is tried before a jury who is willing and able
to follow the law. To this end a lawyer should remind the jury of the
burden as often as he can, and he should especially argue the case to
the proper standard. Time and again I see attorneys argue that the defense's
theory is better than the prosecutor's, that the defendant is more
likely innocent than guilty. Even if this is true, arguing in this manner
is conceding to the jury that the case should be tried by the wrong standard.
We should never give - even a little - on the burden of proof. The prosecutor
must prove our clients guilty beyond a reasonable doubt or see him out
the door and on his way to a life of freedom. We should insist on jurors
who will judge the case by the proper standard. By the standard of reasonable doubt.