Criminal Law Class Notes –
Today, we start our first
case. We continue to be interested in
the burden of proof beyond a reasonable doubt.
Owens was being tried for
DUI. What are the facts? He was in a driveway. He was passed out. There were some empty beer cans in his
car. There was an empty can between his
legs plus some empties in the back seat.
The police received a call from the neighbors about a suspicious
car. That’s why the police were out in
the area. The engine was running when
Owens was found. The lights were also
on. It was about
Does the defendant deny he
was intoxicated when he was caught by the police? No.
Why should the defendant be acquitted on his theory? He would argue that he was on a private
highway, not a public highway. He’s not
doing anything wrong if he’s not on a public road. On a private road, he can be as drunk as he
chooses.
“Small things that aren’t
so small”
What did the defense attorney
do strategically in this case that was unusual?
The defense did not introduce any evidence. That’s not ordinary, but it’s within the
rights of the defense attorney. This
sends a clear message: the government failed to prove their case beyond a
reasonable doubt, therefore the defense doesn’t have to put on any evidence.
What about making a motion
for a directed verdict of acquittal?
Defense attorneys very frequently do this, at least to just try it.
What else did the defense
attorney do? He only asked two
questions. The defense also waived the
right to a jury trial.
In criminal law, think
about what the attorneys do in the way of strategy.
Why waive your right to a
jury? Juries might not care about the
law and might be prejudiced against drunk drivers.
What did the prosecutor do in
this case that was an error that almost cost him the case? He failed to introduce a copy of the
defendant’s driver’s license into evidence.
This is a tiny little error that could have had a big impact.
Why vote for conviction? There are the reasons given in the appellate
decision.
Why vote against
conviction? There’s no proof as to why
he was in the driveway. For example,
what if he went to a friend’s house (sober) and drank at the friend’s house and
drank in the car?
A real jury will react a
certain way when a defendant remains silent.
They will assume he’s hiding something.
But that’s not what the Constitution says. The defendant and his counsel have the right
to remain categorically silent.
What about the phone call
about the suspicious car? Was it
introduced into evidence what the car looked like? Did it match the description? What if it was a non-distinct, common car?
Do the empty beer cans
matter? Do they suggest that the person
has been drinking while driving?
Each juror inevitably brings
their own life experience into the jury room.
How do we know the beer cans
weren’t from a different night?
Everybody in the trial seems to have missed it, but if you had a jury,
it might have been brought in.
What about this “tiebreaker”
thing? What about the deal with
conviction upon circumstantial evidence?
What about voting for not
guilty even when you believe the guy did it?
Legally, this is valid.
What about the standard of a
“rational” verdict?
The only issue on appellate
review, as distinguished from the trial court, is whether a reasonable jury could
have convicted, not whether they would have acquitted or should have
acquitted. The appellate court wasn’t
there to see the trial; therefore, the appellate court should not play the role
of the “13th juror”. The jury
sees stuff that the appellate judge never sees.
Sometimes you won’t put an
innocent defendant on the witness stand because you’re afraid of how they will
look to the jury.
On appeal, the presumption of
innocence is gone. You assume that all
of the facts that are in dispute favor the prosecution. The appellate court can overturn the
conviction if they think, “How the heck did the jury reach that
verdict?”
What’s the issue? Should Ragland have been convicted based on
the jury instructions that were given?
The defendant objected to the
judge’s use of the word “must”. It
seemed to preclude, the defendant said, jury nullification. The defendant would have changed “must” to
“may”. One word can make all the
difference in the world.
About jury instructions
How do jury instructions get
drafted? Before closing arguments, the
judge meets with the two sides to discuss what jury instructions should be
given. The judge will ask each side for
suggested language to use in the instructions.
The judge finally decides what to say.
In most states, there are form
jury instructions in a book, usually created by the state bar association
in that state. They are often written to
be understandable to the lay person, and have been approved by the state
supreme court.
There is evidence that juries
disregard or don’t understand jury instructions. For example, there are four different
insanity tests used in different states.
In empirical studies, it doesn’t matter what instructions you give to
jurors, the verdict is always based on their own view of insanity, which
really isn’t the same as any of the jury instructions.
Even if they understand or
can understand the jury instructions, they might inadvertently ignore or “not
hear” the instructions.
These things make the jury system
exciting, frustrating, and important.
So in the instructions, the
judge will say you have to be convinced of this, this, this and this beyond a
reasonable doubt to convict of such-and-so crime.
Ragland wants the judge to
say that if you find A, B, C and D true beyond a reasonable doubt, you may
convict, or you can nullify.
Is it a right or an ability
(power)?
Why should the jury be told
they may nullify if its something they have the power to do, but not the
right?
The judge is the authority on
the law, while the jury is the authority on the facts.
The power of jury
nullification lies with the prohibition of double jeopardy.
Don’t forget: the jury can
only nullify one way. If they convict,
that decision can be appealed.
They can do it, but do they have a right to do it? Is it good for them to do it?