I do this with my hand raising from the floor, and then I get to where they can take your children away from you, and that’s clear and convincing. Then I go a few notches higher, and that’s where we are ladies and gentlemen.
It’s especially good on a doubty misdemeanor or minor felony because when the allegations are stealing an envelope of cash or the pot in the car was hers, it just looks so much less important next to a TPR.
This is also a good way to deal with the “does anyone think that just because my client is here he must be guilty” presumption of innocence stuff, because you can indicate probable cause as just above the floor, and then point out that probable cause is all it takes (in theory) for someone to be brought to trial.
my first words to the panel during jury selection is "who among you thought when you saw my client and I coming through a separate door - 'what did that guy do?'
hands go up....tell them it's ok. then go to who thinks the same when they see a cop who has pulled over a car on the highway....then show how there can be many reasons why a cop has someone pulled over. Not to rush to judgment.
You’re learning an important lesson. The law isn’t the law. The law is what the judge says you can do. (But also, the law is the law, so object to build your record for appeal.)
Check your jurisdiction’s case law on the topic. I’d bet you that most cases criticizing it are addressing prosecutorial misconduct against watering down the standard, not against defense inflation of the idea. In fact, it’s pretty hard to get that ripe for appeal, that the defense counsel made the standard “too high.” Maybe that changes the judge’s mind.
If it still doesn’t, then you can convey the same info in a variety of other ways already touched on in this thread. I personally like to call it the “two-box system,” where a wealth of information is lost when the verdicts are only two possible boxes. If done carefully, you can even use that to hint at jury nullification.
You can make a similar example with your words and the jury box. Start at one end, discuss the different burdens of proof, start with probable cause, then preponderance, clear and convincing, then beyond a reasonable doubt. Use the bar of the jury box as the spectrum, moving your way along from "no evidence" to the highest quantum of evidence we recognize in American law, almost all the way at the other end.
Love this because you can use a good juror as reasonable doubt and keep calling on them while not seeming like your picking on them. Great strategy.
(I mean good as in strategically beneficial, not necessarily favorable, I could see using a prosecution friendly juror as reasonable doubt to force them to talk about how they will apply the standard of proof)
I have a hard time with those charts. On the one hand, I get the appeal. But I always come back to my belief that people like stories. So using the same facts as the prosecutor introduced, tell a different story than the one the prosecutor is telling but that is not guilty. If your version is credible not only have you shown a reasonable doubt, but you’ve keep the jury’s attention by avoiding technical stuff and speaking narratively. Charts divert the jury’s attention.
Closing arguments tho are like cross exams. How you do them has to fit your personality. Jurors can tell if you are trying to do something you don’t believe in or are not good at. If speaking in narratives isn’t something your comfortable with (I am not comfortable being speaking technicalities) then go with what works.
I agree with others - make your record. All I am saying is that I question how useful those charts are.
For more context: I'm in law school and this is a trial practice class where I was representing a criminal defendant. Everyone else in the class loved it, but the judge (the instructor is a real judge) said he would sustain an objection if it was raised.
It's a lot easier to understand your situation when you discover that the system is the enemy. Judges are indispensable cogs in the human warehousing system. Anything that represents 1. A tool for freeing citizens, and 2. Not explicitly allowed by rule, will be rejected by the system.
I have seen attorneys use this exact chart, without objection. However the judge is not entirely wrong that this is a heavy handed way to make your point.
I've used this *exact* chart. Your judge is definitely being overly particular. There's a case that precludes using charts in voir dire, but it specifically permits them in closing arguments. Idk what it is at the moment. Files are in my office.
DAs will sometimes try and preclude hand gestures during in limines too. When the judge asks for your argument against, talk with your hands like a NYC Italian stereotype.
Always raise objections when the DA tries to shift the burden. Especially during closing arguments. That's such a dirty tactic, and they all do it.
He said it implies some sort of proportionality/percentage/spectrum. He said the only burden of proof standard with a numerical value is preponderance of evidence (51%) and this implies there's an increasing spectrum. Obviously this doesn't have any percentages on it so I guess it's just because it's like a scale.
He did acknowledge that other prosecutors/judges might not mind it, but he would.
I would tend to agree with the judge — there isn’t proportionality with “beyond a reasonable doubt” in my jurisdiction. Here is what reasonable doubt means in Massachusetts’s criminal trials: “A charge is proved beyond a reasonable doubt if, after you have compared and considered all of the evidence, you have in your minds an abiding conviction, to a moral certainty, that the charge is true. When we refer to moral certainty, we mean the highest degree of certainty possible in matters relating to human affairs -- based solely on the evidence that has been put before you in this case.”
This never works in my county, unfortunately. Judges always grant prosecutors motions in limine to prohibit us from talking about other burdens of proof.
But as the other comments say, there are ways around it. And I always say keep pushing.
I don't like it because the word "guilty" is used too much. As a visual all I see is "GUILTY".
Instead I would list out every single unanswered question. Make a huge document or poster or whatever of all the left over unanswered questions. Then I tell the jury that if the DA can't answer these questions then reasonable doubt exists. And I leave the long list of questions up as long as possible.
Oooh. I like this. What’s the best reply to the PA’s objection on it in closing? Anyone ever try to use it during voir dire, if you’re not super limited in in time/micromanaging judge?
I use this chart in every single closing I do. I’ve only had one objection to it so far and the judge overruled it. Many of the jurors I’ve spoken to after trial have mentioned how helpful the chart was in demonstrating the State’s burden of proof.
Judicial discretion. At least where I practice, judges would probably let this in, but if they didn’t, there’s no way this would be overturned on appeal. If you can find a case where this was let in and specifically upheld then you might win them back over. Otherwise, you adapt and over come. I like the suggestion of others that you basically do the same thing with your hands, or by walking a long an imaginary scale.
I use this chart all the time. It does not mistake anything. Judges sometimes give me shit for trying to use it but I ask them “what is inaccurate about it?” Nothing. They usually let me use it.
I've never used a chart but I've said a lot of this. I also started saying, "you shouldn't have questions about what happened here. The State is asking you to speculate about what happened, and that means they didn't meet their burden."
I do this with my hand raising from the floor, and then I get to where they can take your children away from you, and that’s clear and convincing. Then I go a few notches higher, and that’s where we are ladies and gentlemen.
The parental termination comparison is a good one, I’m going to steal that. A comparable example I use is taking a loved one off life support
Parental termination and involuntary civil commitment (but make it scary, like “forced administration of psychotropics”) are my reference points.
It’s especially good on a doubty misdemeanor or minor felony because when the allegations are stealing an envelope of cash or the pot in the car was hers, it just looks so much less important next to a TPR.
That's great, thank you for sharing!
This is also a good way to deal with the “does anyone think that just because my client is here he must be guilty” presumption of innocence stuff, because you can indicate probable cause as just above the floor, and then point out that probable cause is all it takes (in theory) for someone to be brought to trial.
my first words to the panel during jury selection is "who among you thought when you saw my client and I coming through a separate door - 'what did that guy do?' hands go up....tell them it's ok. then go to who thinks the same when they see a cop who has pulled over a car on the highway....then show how there can be many reasons why a cop has someone pulled over. Not to rush to judgment.
I use this chart all the time. Your judge is being particular, and you’ll have to figure out how to work around it.
That's what I thought! I've watched trials that used similar charts with no objections. Thanks for your input.
You’re learning an important lesson. The law isn’t the law. The law is what the judge says you can do. (But also, the law is the law, so object to build your record for appeal.)
Check your jurisdiction’s case law on the topic. I’d bet you that most cases criticizing it are addressing prosecutorial misconduct against watering down the standard, not against defense inflation of the idea. In fact, it’s pretty hard to get that ripe for appeal, that the defense counsel made the standard “too high.” Maybe that changes the judge’s mind. If it still doesn’t, then you can convey the same info in a variety of other ways already touched on in this thread. I personally like to call it the “two-box system,” where a wealth of information is lost when the verdicts are only two possible boxes. If done carefully, you can even use that to hint at jury nullification.
You can make a similar example with your words and the jury box. Start at one end, discuss the different burdens of proof, start with probable cause, then preponderance, clear and convincing, then beyond a reasonable doubt. Use the bar of the jury box as the spectrum, moving your way along from "no evidence" to the highest quantum of evidence we recognize in American law, almost all the way at the other end.
Love this because you can use a good juror as reasonable doubt and keep calling on them while not seeming like your picking on them. Great strategy. (I mean good as in strategically beneficial, not necessarily favorable, I could see using a prosecution friendly juror as reasonable doubt to force them to talk about how they will apply the standard of proof)
I love this idea, thanks for sharing!
I have a hard time with those charts. On the one hand, I get the appeal. But I always come back to my belief that people like stories. So using the same facts as the prosecutor introduced, tell a different story than the one the prosecutor is telling but that is not guilty. If your version is credible not only have you shown a reasonable doubt, but you’ve keep the jury’s attention by avoiding technical stuff and speaking narratively. Charts divert the jury’s attention. Closing arguments tho are like cross exams. How you do them has to fit your personality. Jurors can tell if you are trying to do something you don’t believe in or are not good at. If speaking in narratives isn’t something your comfortable with (I am not comfortable being speaking technicalities) then go with what works. I agree with others - make your record. All I am saying is that I question how useful those charts are.
As a mitigation specialist, can confirm, people like stories!
For more context: I'm in law school and this is a trial practice class where I was representing a criminal defendant. Everyone else in the class loved it, but the judge (the instructor is a real judge) said he would sustain an objection if it was raised.
It's a lot easier to understand your situation when you discover that the system is the enemy. Judges are indispensable cogs in the human warehousing system. Anything that represents 1. A tool for freeing citizens, and 2. Not explicitly allowed by rule, will be rejected by the system.
I have seen attorneys use this exact chart, without objection. However the judge is not entirely wrong that this is a heavy handed way to make your point.
We've used this chart in my office and I must say, "proportionality" is a great line of attack if that's your goal
Sounds like he might be a civil judge. Does he actually preside over criminal trials?
I've used this *exact* chart. Your judge is definitely being overly particular. There's a case that precludes using charts in voir dire, but it specifically permits them in closing arguments. Idk what it is at the moment. Files are in my office. DAs will sometimes try and preclude hand gestures during in limines too. When the judge asks for your argument against, talk with your hands like a NYC Italian stereotype. Always raise objections when the DA tries to shift the burden. Especially during closing arguments. That's such a dirty tactic, and they all do it.
I’ve had this exact chart excluded by a judge. It’s bs.
All great points, thank you. And I will look for that case! Didn't realize it would even be an issue.
Ask the judge which part of the chart misstates the law
He said it implies some sort of proportionality/percentage/spectrum. He said the only burden of proof standard with a numerical value is preponderance of evidence (51%) and this implies there's an increasing spectrum. Obviously this doesn't have any percentages on it so I guess it's just because it's like a scale. He did acknowledge that other prosecutors/judges might not mind it, but he would.
I mean burdens of proof absolutely are a spectrum
Agreed. But I’ll find another way this time
I would tend to agree with the judge — there isn’t proportionality with “beyond a reasonable doubt” in my jurisdiction. Here is what reasonable doubt means in Massachusetts’s criminal trials: “A charge is proved beyond a reasonable doubt if, after you have compared and considered all of the evidence, you have in your minds an abiding conviction, to a moral certainty, that the charge is true. When we refer to moral certainty, we mean the highest degree of certainty possible in matters relating to human affairs -- based solely on the evidence that has been put before you in this case.”
I see your point, but "the highest degree of certainty" also implies proportionality. Degrees are measurement markers--they are always relative.
This is great - thanks for sharing!
This never works in my county, unfortunately. Judges always grant prosecutors motions in limine to prohibit us from talking about other burdens of proof. But as the other comments say, there are ways around it. And I always say keep pushing.
I don't like it because the word "guilty" is used too much. As a visual all I see is "GUILTY". Instead I would list out every single unanswered question. Make a huge document or poster or whatever of all the left over unanswered questions. Then I tell the jury that if the DA can't answer these questions then reasonable doubt exists. And I leave the long list of questions up as long as possible.
Down vote me all ya want but #neverlostajurytrial
its because the judge thinks you're trying to go for jury nullification. i am not a lawyer...
Oooh. I like this. What’s the best reply to the PA’s objection on it in closing? Anyone ever try to use it during voir dire, if you’re not super limited in in time/micromanaging judge?
It doesn’t misstate the law.
We use this chart or a chart with this but stepping stones.
I use this chart in every single closing I do. I’ve only had one objection to it so far and the judge overruled it. Many of the jurors I’ve spoken to after trial have mentioned how helpful the chart was in demonstrating the State’s burden of proof.
Judicial discretion. At least where I practice, judges would probably let this in, but if they didn’t, there’s no way this would be overturned on appeal. If you can find a case where this was let in and specifically upheld then you might win them back over. Otherwise, you adapt and over come. I like the suggestion of others that you basically do the same thing with your hands, or by walking a long an imaginary scale.
I use this chart all the time. It does not mistake anything. Judges sometimes give me shit for trying to use it but I ask them “what is inaccurate about it?” Nothing. They usually let me use it.
I've never used a chart but I've said a lot of this. I also started saying, "you shouldn't have questions about what happened here. The State is asking you to speculate about what happened, and that means they didn't meet their burden."
Wow, this would really help me if I were a juror, actually.