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Alright, all you defense attorneys out there... It's time for an open forum. The question today is:

What is your favorite reasonable doubt analogy?

Do you like the one about buying a used car - you have to test drive it, and that's reasonable doubt? Do you like the one about going to the doctor and needing a second opinion? Got a better one? Or do you avoid analogy all together and have an easier way of putting it in everyday language?

C'mon, let's hear it.

(Yes, this qualifies as working from home. It also qualifies as the trial prep I promised myself I'd do after dinner.)

14 comments:

  1. Actually, I don't use an analogy. I do is start by pointing out that, to this point, all that the prosecution has had to show is probable cause and stressing how low a standard this is. Then I explain the preponderance standard and how it only applies in civil cases. Then I say a few words about the "clear and convincing" standard. I finish with the "beyond a reasonable doubt" standard emphasizing that this highest of standard is what they are to apply today.

    I do this in an attempt to get the jurors to realize exactly how high the standard is. Does it work? Who knows? Still, it strikes me as the best approach (at least with the suburban and rural juries I appear in front of).

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  2. An example can be found in this closing argument:

    http://crimlaw.blogspot.com/2004/03/youll-remember-that-while-back-there.html

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  3. I've heard people use a cloud-watching analogy. I'm not going to do it justice, but the basic jist was: The prosecution looks up at the clouds and sees one explanation, the defense looks up at the sky and sees another - if there's a chance that the cloud looks like the defense's picture, that's reasonable doubt. It's better fleshed out with the facts of the case, but when I heard it, it was really impressive.

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  4. The Pink Floyd closing. I read this somewhere, but have never had the guts to try it:

    The criminal justice process is a long, straight road with a beginning (presumed innocent) and and end (guitly verdict). When the government decides to charge someone with a crime, they start marching him down the road, from the beginning toward the end.

    There are a number of stops on the way: preliminary arraignment, preliminary hearing, suppression hearing, etc. We are at the stop on the road called "trial". The next stop is the end of the road - guilty. Because the next stop is the end of the line, the law has built a big brick wall across the road, between trial and guilty. That wall is called "reasonable doubt".

    It's the prosecution's job to tear that wall down, every last brick of reasonable doubt, and get it completely off the road. If it can't do that, if there's one brick of reasonable doubt remaining in the road, the law says the defendant gets to turn around and go back to the start, because the verdict is not guilty.

    And ladies and gentlemen...

    ... the fact that four employees of this convenience store, one of whom has been fired for theft, had the manager's supposedly secret cash register and money order machine codes is a brick in the wall

    ... the fact that the time on that surveillance video overlaps the time the Commonwealth's own witness saw the defendant five miles away is a brick in the wall

    ... the fact that the stolen goods were never found in the defendant's possession or control is a brick in the wall.

    ((Cue the music)) all in all, they are all just bricks in the wall.

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  5. Oooh, I like that!

    Now, do I voir dire on "Ladies and Gentlemen, how many of you are familiar with the band Pink Floyd?" I mean, what if I end up with a bunch of senior citizens? Or 18 year olds who only listen to hip-hop?

    But I do like it. I'll definitely give that a try someday.

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  7. I have used the one that you have a sick child, and are told by your doctor that there is a cure for this terminal disease, but that you can not get it in the U. S. You have to go to New Guinea., and it is very expensive. You take all of your money out of the bank, fly to New Guinea, and are met at the plane by a man. He tells you to give him all of your money and he will go into the woods and get the cure for your child. That man is the government's witness. Do you give him the money? That's beyond a reasonable doubt.

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  8. I see this blog is old. But I'd still like to add my comment.

    I use a puzzle as an example in explaining "beyond a reasonable doubt." This example works well for either prosecution or defense. In either case, I buy two sets of puzzles that are cut exactly the same.

    If i were the defense, I'd bring up a huge puzzle with huge pieces. Like one of those 24 giant pieces puzzles for kids. I'd buy two of them. I'd take pieces of one puzzle and put it in the other one and deliberately leave blank spots. Then I'd tell the jury that imagine today's trial as this puzzle in front of you. in order to complete the puzzle every single piece must fit properly. There can be no missing pieces and no misplaced pieces. Every single piece must belong.

    If I were the prosecution, then I'd bring up a 1000 piece puzzle, complete it, and deliberately take out some pieces here and there. I go on and say that imagine today's trial is this puzzle, and evidence needed to prove this case is the pieces of the puzzle. Reasonable doubts would be the missing pieces that would inhibit you from making out the picture. Although some pieces might be missing, but if you can still make out the picture as a whole, then those missing pieces do not constitute a reasonable doubt.

    The whole argument is longer than that, but you get the point.

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  9. I've copied and pasted part of my closing argument for a mock trial case I did well in back in law school.

    This example can work well for the prosecution too, if they don't have every single piece of the evidence. All they'll need to do is to bring out a 1000 piece puzzle, deliberately take out some pieces and say that if those pieces are not inhibiting you from making out what the picture depicts, then there's no reasonable doubts left.

    Imagine that the trial today is a puzzle, and the evidence needed to prove this case is the pieces of this puzzle. In order to complete the puzzle so that it could form a complete and clear picture before your eyes, every single piece of the puzzle must fit in.

    At the beginning of the trial, some pieces are present, some pieces are missing, and other pieces might seem to fill the empty spots, but when you look at the picture as a whole, those pieces seem out of place.

    The prosecution’s job today, is to take the pieces it possesses and put them into the missing spots. The prosecution has the burden to convince you that what you see after it’s done playing with the pieces, is a clear and complete picture depicting what took place on May 9th, 2007, that all the pieces it just put in are fitting in properly, and that there is no more empty spots in the puzzle.
    The prosecution has just finished playing with the puzzle. But if you are still wondering, at this point, whether what you see in front of you is a clear and convincing picture, whether all of the pieces fit in properly, or whether there are still empty spots left to be filled, then the prosecution has not satisfied its burden of proof and you must find Mr. Burns not guilty and allow him to go home to his family.

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  10. Here is one I came up with that is current to the times:
    The absolute only way you could possibly find John Smith guilty is if the government proves that he did this “BEYOND A REASONABLE DOUBT.” I’d like to take a moment and explain what that really means. I’d like to explain how it is impossible that the government actually proved anything beyond a reasonable doubt.
    Everyone is feeling the hard economic times. If anyone has any savings, or 401K’s left, they are lucky. Now I want to you to imagine a press conference, and four of the richest most successful business people in the US say, “Monday we are going to make an announcement about the economy.”
    They go away for the weekend and they come back and have their press conference. Three out of the four, say people like Donald Trump, say to invest everything you have, every dime, every bit of savings, your kids college tuition, your house, in the stock market, and you’ll get everything back you’ve lost. BUT, the fourth wealthy successful business person, let’s say Bill Gates, billionaire Bill Gates gets up to the microphone and says, absolutely not, DO NOT INVEST RIGHT NOW, this couldn’t be a worse time. What do you do?
    I’ll tell you what you don’t do. You don’t invest. And why? Because you have a reasonable doubt. Bill Gates, the richest man in the world, said not to invest even though three of the most successful business people said to invest. But you can’t, because you have a reasonable doubt about investing.
    Now, the government has to prove BEYOND that reasonable doubt in order for you to convict John. They have to go beyond. There can’t be a Bill Gates. In fact we are going to play a little game. Remember “Where’s Waldo?” Well, we are going to play Where’s Bill Gates?” Everytime you hear a reasonable doubt then you have found Bill Gates. After finding a few of these you’ll see that the government just did not prove anything beyond a reasonable doubt, they haven’t even come close.

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  11. It was extremely interesting for me to read this article. Thanx for it. I like such themes and anything connected to this matter. I would like to read a bit more soon.

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  12. It is glad to see this blog, it is good that and detailed fun to read this, nice informative blog, Thanks for share this article.

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  13. Another great article. I like that you are very honest and direct to the point.

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  14. As a deputy public defender, I believe that juror's have no idea about reasonable doubt; they weigh the prosecution vs. the defense and pick the winner. As a social psychologist, I'd really like to study reasonable doubt, maybe by giving groups complex math problems and possible answers and seeing how they apply different levels of proof.

    My analogy is deciding whether to get married -- sure those of you who asked, or answered "yes," were sure of your decision "beyond a reasonable doubt." But half of marriages end up in divorce, so the standard has to be much higher.

    Just found your blog and like it a lot!

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