It is conventional wisdom that a story of actual innocence – there was no crime, the wrong person is on trial, the accused acted in self-defense – is the preferred modality in criminal cases. Why? An argument of ‘they can’t prove it beyond a reasonable doubt’ may come across like a schoolyard taunt – my client might have done this, but they can’t prove it so you jurors have to play the game and let a potential criminal go free. And while we all may extol the virtues of the protection of liberty that flows from the reasonable doubt standard, when the jury deliberation room closes there is also the awful responsibility engendered by the fear of crime, the avoidance of risk to others, and a concern of facing blame if a person who is acquitted subsequently harms another.
That view – an innocence story is smarter than a failure of proof claim – is not one uniformly held. David Ball, in his book DAVID BALL; ON CRIMINAL DEFENSE, writes persuasively that “you’re on trial solely to show that the Prosecutor cannot rule out reasonable doubt…” Id., 3. Ball goes on to illustrate this in an opening statement for an imagined case where there are 4 grounds on which a reasonable doubt may be founded:
If any of those four points show any possibility based on reason, that the taxi driver might be wrong, just maybe, about even one of those points, there’s reasonable doubt. You’ll hear no testimony from the taxi driver – or anyone – that rules out this reasonable doubt.
Ball, 29-30.
These competing views came into stark relief when Scott Turow released his most recent book, THE LAST TRIAL. As described on Turow’s webpage, the story is as follows:
At eighty-five years old, Alejandro “Sandy” Stern, a brilliant defense lawyer with his health failing but spirit intact, is on the brink of retirement. But when his old friend Dr. Kiril Pafko, a former Nobel Prize winner in Medicine, is faced with charges of insider trading, fraud, and murder, his entire life’s work is put in jeopardy, and Stern decides to take on one last trial.
https://www.hachettebookgroup.com/titles/scott-turow/the-last-trial/9781538748138/ (last visited September 10, 2020). Turow’s protagonist Stern chooses the ‘not proved’ closing argument; and the author granted permission for the Temple ADVOCACY AND EVIDENCE blog to excerpt it and then seek commentary from advocacy experts on what they thought. The closing included the following:
“Yet you must approach that task with a willingness to speak what I, as an old man, can tell you are the hardest words in life to utter: ‘I do not know.'” He touches Pinky’s shoulder as he passes her. “When we say that-‘I do not know’ – we are apt to feel like it means we are unintelligent. Or uneducated. Those words – ‘I do not know’ – might even mean that we are confessing for a moment that life does not make sense. But you must go into that jury room gripped with the courage to speak those words if you determine they are appropriate.
“For that is what a not guilty verdict means. It means, in plain terms, We do not know, not for sure. ‘Not guilty’ does not mean innocent, not necessarily. It means something a bit different. If you say ‘not guilty,’ you are saying, as a group, We have thought hard about these charges and this evidence, and we do not know for sure. That is the wrong answer if you were back in school taking an exam. But not in the jury room. Do not feel you have failed because you come to that conclusion. In fact, it is your solemn obligation to say those words if they are true. You must convict only if you are convinced beyond a reasonable doubt. But if doubt remains – and frankly it must in this case – if you find reason to doubt, ‘then it is your duty to come back here, stand before us all, and say, in substance, We do not know for sure. You have together sworn an oath to God or to whatever else you hold sacred to render a true verdict, and if, in the end, that is your conclusion – We do not know for sure – then the oath you have taken means you must say the words ‘Not guilty.’
“Moses has a job. I have a job. You stand between us. And I stand beside Kiri Pafko, whose achievements are legend and who has been accused of a crime for what he did in dcyclopin, a medication that is destined to save thousands of lives.
“In this life, we know many things beyond a reasonable doubt: That we love our children. That it is raining when the drops fall from the sky. That stars are out. That you love pizza. That Innis McVic is a liar.
“But that Kiril Pafko is a felon, that he committed these crimes? Do you know that? Do you know for certain? Do you know for sure?”
He looks to them, his last jury, shaking his head, shaking it again and again until he takes his seat.
From The Last Trial by Scott Turow, copyright © 2020. Reprinted by permission of Grand Central Publishing, an imprint of Hachette Book Group, Inc.
The eloquence is undeniable; and the appeal is magnetic. But does this translate from the pages of fiction to the trial of actual cases? Below are the comments of several trial advocacy experts.
Sara Jacobson (Executive Director of Training, Public Defender Association of Pennsylvania; adjunct faculty, Temple Beasley School of Law)
Without knowing more about the context of the case, it’s a little tough to give definitive critique one way or the other. Turow’s words are beautiful, and I like that in his explanation of doubt as “I don’t know,” he creates space for the not guilty verdict to feel like a smaller step for the jury to take. Rather than a statement on innocence or guilt, it feels like the jury gets to moreover shrug, but that that is ok, too. As a general rule, I find a story of actual innocence more compelling than a solely reasonable doubt approach. Jurors prefer to do something heroic with their verdict- to do justice- rather than to shrug. There are times, though, when there isn’t anything other than a reasonable doubt approach, or when reasonable doubt masks a true jury nullification approach. As a criminal defense attorney, sometimes you have to take what you have. Setting aside the vouching in this excerpt, the reasonable doubt as “I don’t know” (and that’s ok) analogy Turrow uses seems effective, if at least for his persuasive prose.
Kristi Harrington (Distinguished Visiting Professor at Charleston School of Law)
I’ve read the closing many times, often hearing the voice of a seasoned lawyer, full of passion yet subdued by the wisdom of age. Standing in front of the jury, this passage is likely very persuasive. Utilizing the actual innocence theory allows the defense attorney to shift focus from a legally cumbersome and often confusing explanation of reasonable doubt, instead focusing on why the accused could not have committed the crime. Here, Turow’s closing places much emphasis on what the jury can do, in fact must do, if they follow the logical conclusion given by the defense attorney. What gives this approach its effectiveness is that the defense attorney gives permission for each person to admit the one thing most of us dislike: to admit “that I don’t know.” Giving the jury the “courage” to speak those words by demanding that they “must go” into the jury room confident in the knowledge that a “Not Guilty” means “we do not know for sure” is a bold and brilliant tactic by this experienced attorney.
Dissecting the closing by looking at the areas which may be objectionable takes away from Turow’s appeal to the fictional jury to “render a true verdict.” If this were the closing given in a real trial, would the defense attorney be able to argue this in a real courtroom? And, even if he could, should he want to use this approach? Stern gives an appropriate legal statement by telling the jury they “must convict only if you are convinced beyond a reasonable doubt.” Without the context of the full trial, it is difficult to assess the closing argument as the best approach in this case and how it would correlate to the actual trial. Is Turow giving the jurors an easy way out by allowing them to shrug their unanimous shoulders, claiming they don’t know with absolute certainty the defendant committed the crimes? Using the raindrops and stars examples highlight this sense that the jury must be sure and certain, not having doubt. Does this repeated call of duty to find reason to doubt and for jurors to get comfortable with that doubt give jurors a misplaced sense of their role in the justice system? The judge will instruct the jury that their job is to weigh and to evaluate all the evidence received in the case and, in that process, to decide the facts. Would the jury’s “I don’t know” equate to “Not Guilty” under a thorough legal analysis of “beyond a reasonable doubt” without more? Stern’s closing assumes that answer is “Yes” as he does not ask the jury to find his client “Not Guilty” but in one final request, asks them “Do you know for sure” that the defendant committed these crimes.
Regardless of how the approach Turow uses in this closing is analyzed, the fictional defense attorney does provide the best advocacy for the defendant in this fictional trial. We should all be so lucky as to serve jury duty during this term of court.
Alvaro Bellido de Luna (Hardy Director of Advocacy and Service Professor of Law at St. Mary’s University School of Law)
“’Not Guilty’ does not mean innocent, not necessarily.” As I read through the few pages we were given, I kept coming back to this passage from Turow’s Final Trial. As an advocacy professor, I preach the importance of the selection of words we use when we speak to jury panel members. We all know and understand that there is a psychology of persuasion and you do not need to be an attorney to know how the mind thinks. The car industry has known the power of psychology in selling cars for decades. Sales personnel in this industry understand the use of positive language will steer car buyers to one type of car and negative words will steer them away from another.
Please do not be silly in thinking that I am equating attorneys to those who sell cars. What I am saying is that both professions benefit from the knowledge and understanding of how people think. Words matter and the words a lawyer chooses may allow a jurist to come to a conclusion on their own that is suggested by the attorney. As we prepare for the closing argument, we must go back to the beginning of the case when the client first walked in the door and think about the reasons why this case is going to trial to begin with.
All jurists need to feel good about their decisions. It is no different from any decision we make all day long. I often tell my students to think about how their day ends. When they go to bed at the end of the night, lay their heads on their pillow and think about that thing that happened that day and how they could have handled it differently – the argument in the parking lot or the grocery store. The discussion with your best friend or family member where you wished you said something differently – A juror needs to believe they are doing the right thing. When they lay their head on their pillow that night after the deliberations and decision is made, they need to feel right about the decision. “Not guilty does not mean innocent” does not convey the message a jurist needs to feel good about their decision if they ultimately decide not guilty, so they won’t.
For an attorney to simply say that the reason we went to trial is because the prosecution will not prove guilt sufficiently is akin to shrugging your shoulders or throwing the Hail Mary pass. That is not why we go to trial. Not even sometimes. In those cases, we make the best possible deal we can for our clients. The prosecution always has the obligation. They must prove, beyond a reasonable doubt that the defendant is guilty. We know from plenty of studies that juries tend to lean in one direction or the other fairly early on in the trial process and it takes a lot to get a jurist to change their mind. Standing in front of the jury saying the prosecution did not prove it is a waste of the jury’s time and a one way ticket for your client.
I learned long ago that a winning strategy is one that has a legal, moral and factual theory. We know this trilogy is a winning formula and one in the psychology of persuasion where a jurist can wrap their mind around a concept so that they feel good about the decision they make. While one of those can be “the state failed to meet their burden,” the statement alone without something for the jury to hang their hat on will likely fail.
I must confess, I only read the pages that were given to me. But from those few pages, it appears that there is a great moral theory to argue the actions as a public good. A new medicine, with great potential to save lives. Advancements in medicine have been made for centuries and many of them have been made by pure accident. Name a few of the great advancements in science and the moral theme is secured. After all, it could be the very jurist or one of their family members that would benefit from the cure.
With that, Sandy’s, final trial would have two of the necessary prongs, legal and moral theories, and all we have left is the need to develop the factual theory. Facts are always messy in a jury trial. If they weren’t, there would be no need for trial. I am sure Mr. Turow has included enough facts in his book to support a factual theory. I have ordered my copied and I will soon find out. Perhaps Sandy won his Final Trial, but in the real world, I doubt that he could. Maybe Sandy will hire me next time to check his work and help him form the trilogy of themes. Mr. Turow can call that one Just One More Trial Sandy Should Actually Win.
Elizabeth Lippy (Director of Trial Advocacy, Temple Beasley School of Law)
Having tried many cases that rely on the strong burden of proof in our criminal justice system, Turow’s speech, although eloquent, initially strikes me as improper. Although appropriate for a top selling work of fiction, based on my personal trial experience, jurors want answers. Even though the prosecution must prove their case beyond a reasonable doubt, I always approach any jury trial with a narrative that helps explain to the jury the alternative theory that leads jurors to a verdict of not guilty. Of course, I inform the jury that, as the defense, we bear no burden of proof and that the prosecution must prove their case, but I still provide the jury a narrative that helps make sense of what happened in a way that will permit them to return a not guilty verdict.
That being said, I have not and will never tell a jury that a client is “innocent” as that rhetoric goes too far. Telling a jury a client is “innocent” takes on a burden that a defense attorney need not take. Instead, I do my best to create a theory consistent with the evidence and facts that points to a finding of not guilty or a narrative that helps explain why a victim or prosecution witness may not be believed. Similarly, I teach any trial advocacy students not to tell a jury that their defendant is innocent. It may appear as semantics, but there is a large difference between telling a jury that someone is innocent versus someone being presumed innocent. Frankly, I think the latter presumption resonates with jurors since that is the language judges use when instructing the jury which provides credibility to my argument as the attorney.
I’ve had many opportunities to speak to jurors after a trial. In cases I have lost, the main reason provided is that the jurors believed the victim. In the cases I won, they believed the narrative and theory I put forth throughout the case. Surprisingly, I have only had one juror tell me that they found my client not guilty because they did not believe the prosecution had enough evidence. What this tells me is that, despite not having to prove anything from the defense, it is important to tell a cohesive case and palpable theory that can easily be digested by a lay juror.
One must also ask whether Turow’s approach is legally sound. Does “we do not know” equate to reasonable doubt or does that phrase take the burden of proof one step too far? In those cases that rely entirely on circumstantial evidence, there are facts that the jury may “not know,” but can still ultimately conclude the crime has been committed. The reasonable doubt instruction does not require that all doubt be removed; and in many cases there are facets that “we do not know” such as motive but that need not be proved. Does Turow’s language misinterpret what proof beyond a reasonable doubt means or mislead the jury about what they need to determine? Possibly. In Turow’s own words, “we do not know.”
Marian Braccia (Director of the LL.M. in Trial Advocacy Program at Temple University Beasley School of Law)
Admittedly, I had a tough time composing a response to Turow’s fictional closing, because as a prosecutor my training was always to remain on offense and never chase the defense. So long as defense counsel didn’t misstate the law or exaggerate the Commonwealth’s burden of proof, I couldn’t care less if the defense theme was actual innocence or reasonable doubt or the “one-armed man did it.” My evidence, my proof, my theory, my burden all remained the same. A prosecutor must keep her eye on advancing the evidentiary ball and not chasing defenses. Criminal closings are more of a football charge than a tennis match. For this former prosecutor, my closing isn’t about returning defense counsel’s serve. Rather, I see the jury waiting for me down there in the end zone, and I’m charging the ball through that line, defensive formation notwithstanding. In this sense, my closing is prepared as a form of proactive messaging, and unless an element of the crime charged requires the prosecution to explain away the defense, I won’t take the bait or find myself cornered in a defensive position.
Having said all that, do I think a reasonable doubt defense as compelling to a juror as an actual innocence defense? Quite simply, no. Our brains are hard-wired to receive and retain information in the form of a story. Carl Alviani, user experience strategist and writer, posits that our human instinct for storytelling is a survival skill, that “our evolutionary advantage has always been our problem-solving ability, and in particular, our ability to solve problems as a group.” In his view, uniting a group (in his world, end-users; in ours, a jury) with a common goal (for us: a unanimous verdict) requires “imagining outcomes that haven’t yet come true, and of seeing your neighbor’s welfare as tied up with your own.” In other words, a good story is essential in order to move listeners to action. When confronted with the choice between a riveting narrative, complete with a relatable protagonist and a moral imperative, or an “out” to simply shrug their shoulders and say “I’m not sure it went down the way they say it did” my experience tells me that most jurors will want to hitch a ride with the raconteur. They’ll have less trouble attaching real-life meaning to abstract concepts like reasonable doubt (or the absence thereof) if they’re invested in the narrative.
And how do we earn that investment? As advocates, persuasion is forever our objective. Psychologist Kendra Cherry observes, “the ultimate goal of persuasion is to convince the target to internalize the persuasive argument and adopt this new attitude as a part of their core belief system.” In my view, jurors much more easily adopt attitudes toward justice, problem-solving, righting wrongs, and protecting that which we hold dear than attitudes of uncertainty, inaction, perhaps even avoidance.
I mentioned earlier that a reasonable doubt defense is not as compelling to a jury as a defense of actual innocence, but reasonable doubt is a hell of a lot easier to close on for a prosecutor. In this former prosecutor’s humble opinion, a reasonable doubt closing is a pretty clear signal to the jury that the defense just doesn’t have the facts on their side. My fact-driven closing, then, would preview the jury instruction over and over again. The standard jury instructions for presumption of innocence/burden of proof/reasonable doubt state:
…[I]n making decisions of importance in our own lives, we can never act with mathematical certainty. Also, we must recognize that sometimes, simply out of fear of making those important decisions, we may imagine doubts that are based on virtually anything. It is important that we make sure that doubts that we allow to affect our decisions are only those that are based upon facts and reason. The same considerations apply here. (emphasis added)
-
- …
Your verdict must arise from your conscientious review of the facts and the law, the application of your good common sense, and your recognition of the importance of the oath you took as a juror to try this case fairly, impartially, and honorably.
(I do also love: “A reasonable doubt must be a real doubt; it may not be an imagined one, nor may it be a doubt manufactured to avoid carrying out an unpleasant duty.” We could do a whole separate blog post, “These Are a Few of My Favorite Jury Charges,” but I digress.)
I’d preview the instruction to drive home that a shrug of the shoulders and an “I-don’t-know” verdict might just be an easy out, and that’s not what the jury swore to undertake. A 2017 ABA study found that “jurors are attentive, work to ‘get it right,’ and generally use common sense ‘to develop the most plausible reconstruction’ of the events at issue.’” Jurors Are Practical Problem Solvers, But Have Difficulty Understanding Jury Instructions, Experts Say, A.B.A. News, Aug. 14, 2017, www. americanbar.org/news/abanews/aba-news-archives/2017/08/ jurors_are_practical/. Jurors crave stories. All humans do. Stories have advanced our species, linking idea to ego. My fear for my esteemed colleagues on the defense bar is that juries may create their own story board when one isn’t provided. That creation could be to the defense’s detriment. Regardless, my closing’s already written.
Professor Jules Epstein (Director of Advocacy Programs, Temple James Beasley School of Law)
Turow is so articulate, and the courtroom scene so spellbinding, that at first read the reasonable doubt closing sells itself. And it is probably made more attractive by this reader’s implicit bias – I believe in the value of the demanding reasonable doubt threshold and would not be troubled with voting for an acquittal even if I strongly suspected that guilt was present but lacked the requisite certainty.
Further reflection, however, raises concerns. The first is client identity. Turow’s ‘defendant’ is a world-famous researcher who has made important advances in medicine, advances that can save lives. A willingness to ‘not hurt’ this elderly hero makes a reasonable doubt vote less discomfitting. Would this be the case in a world where implicit biases generate fear and stereotyping, and where the crime itself is more directly a menace to jurors’ own sense of safety and community?
The second is the need for priming. A reasonable doubt defense needs jurors who are primed for, and committed to, adhering to its value. Without ample inquiry during jury selection, and then an opening statement that reinforces the value, it is impossible to tell whether, at the end of a trial where the violence or shock of the crime(s) charged has affected juror emotions, the cry to ‘acquit if you can’t be sure’ will work.
So Turow is right, and his protagonist lawyer is brilliant in the context the author created. Empowering jurors to say ‘we can’t be sure” and letting them know that this is approved by law and consistent with cherished values is an artful approach toward acquittal. In the right case it need not be the stuff of fiction. But whether this has universal appeal or applicability is uncertain – and laying groundwork for such an argument to work takes much hard work.