by Paul Castle

Yes, the burden of proof for the government in a criminal trial is ‘proof beyond a reasonable doubt’.  Yes, the law says that you are presumed innocent unless and until you are proven guilty.   But the problem is, it is not some omniscient being called ‘the law’, but twelve men and women from the community called ‘the jury’, who renders the verdict.  So an important question to ask is, ‘Do jurors really presume a criminal defendant to be innocent unless and until proven guilty?’

I always tell my client before a jury trial that a jury trial is an art, an art of persuasion, not a science.  In a football game, referees would bring out a tape measure to the field to ascertain whether the distance covered was exactly ten yards or not.  If it was nine point 3 yards, it would not be called ‘first down.’  In other words, things are precise in football.  Things are not quite like that in a jury trial.  There is no yard stick or tape measure that juors can use to determine whether the evidence presented was proof beyond a reasonable doubt or not  There is no electronic gauge or device that jurors can rely on to determine whether they are persuaded only up to the ‘more probable than not’ standard or whether they are really persuaded beyond a reasonable doubt.

However strong or however weak the evidence might appear to you or me does not matter.  However weak or flimsy the government’s case might seem to you or me, the jury might still find the defendant guilty.  By the same token, however strong or overwhelming the government’s evidence might appear to an outside observer, the jury might still return a verdict finding the defendant not guilty.  In any given case we cannot tell in advance what will make the jury tick. We cannot know in advance what will make the jurors reach an unanimous decision in one way or the other.  In the end, whatever it might take to convince the jurors to vote in your favor, that is the only thing that matters.  That’s why I frequently tell my clients that if you want to win, the jurors will have to like you.  If they like you, they will find a way to help you.  They will find a way to find you not guilty, no matter what the evidence might be.

Some of my clients would tell me that since a defendant are presumed innocent in a criminal trial, they would just like to sit back and make the government prove their case.  I would tell these clients that they would most likely lose their cases if this was their attitude.   I would gently advise them that in reality they are not presumed innocent unless proven guilty.  I would tell them: the moment that jurors find out that you are a criminal defendant charged with such and such offenses, the jurors almost immediately believe you are guilty.  The moment the trial begins, you are guilty, not innocent, in the minds of the jurors.  The pendulum is all the way up in the guilty section.  And we, the defense, have to chip away and chip away at the government’s evidence as the case progresses.  We have to try to bring the pendulum back to the ‘not guilty’ section, little by little.

We can, and you can, bring the pendulum back to the ‘not guilty’ section only if you go in with the attitude that you are going to prove your case, with the attitudee that you are going to prove your innocence.  The legal standard that you are presumed innocent until proven guilty is a fiction that is not going to help.  Don’t rely on a legal fiction.  Rely on yourself.  Go in there and do everying you can to prove your innocence.  Then, the jury will help you.