Brooks v. Gilmore<\/u>, No. 15-5659, 2017 U.S. Dist. LEXIS 127703, at *7-8 (E.D. Pa. Aug. 11, 2017).<\/p>\n
![\"\"](\"https:\/\/law-dev.temple.edu\/aer\/wp-content\/uploads\/sites\/3\/2017\/08\/evidenceburden-of-proof-26-638-300x225.jpg\")
<\/p>\n
Any lawyer who has observed or participated in a criminal trial has heard (or argued) that proof beyond a reasonable doubt requires the highest degree of certainty, the same amount of certainty one would demand in a matter of high importance in the jurors\u2019 own lives.\u00a0 A typical illustration of a matter of high importance is the decision of whether to let your child undergo surgery.<\/p>\n
But looking deeper into the words, and particularly the words used in this caser, turns the certainty requirement upside down.\u00a0 As the Federal District Court Judge reviewing the charge explained,<\/p>\n
To test the constitutionality of the instruction given here requires consideration of how a reasonable juror would analyze the hypothetical decision presented in the court’s charge. In a case involving a “life threatening” condition affecting someone “absolutely precious” to a juror, where there is only one “known protocol” or “best protocol,” what level of doubt would need to exist before a juror would deny them a chance at life? Necessarily, one would need profound, if not overwhelming, doubt to deny a loved one their only or best opportunity for cure. But this is problematic because the Supreme Court has held that elevating the level of doubt a juror must have before acquittal is required violates the Due Process Clause\u2026<\/p>\n
The Commonwealth is correct that the charge in this case did not use the specific words found objectionable in Cage<\/span>. But the trial judge communicated the same concepts by means of a powerful and emotionally charged metaphor. Objectively speaking, any person of decency and morals would strive to put aside doubt when faced with a single life-saving option for a loved one.<\/p>\n The takeaways are simple.\u00a0 Words count, so dive deeper into their meaning.\u00a0 And listen<\/em> to jury instructions \u2013 a change of a word, an analogy, or the altered placement of a comma may transform what the Constitution allows into what Due Process prohibits.<\/p>\n <\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" At the end of a lengthy (or even not-so-lengthy) trial, an exhaustion factor creeps in and the fatigued lawyer sits back as jury instructions are read.\u00a0 But attention must be paid, especially when a judge extemporanizes.\u00a0 The failure to do so may allow an unconstitutional jury instruction to slip past. This is best illustrated in<\/p>\n","protected":false},"author":31,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"generate_page_header":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[2,3,6,11],"tags":[],"coauthors":[238],"class_list":["post-2052","post","type-post","status-publish","format-standard","hentry","category-advocacy","category-advocacy-and-evidence-blog","category-criminal-law","category-trial-advocacy"],"yoast_head":"\n