Does burden of proof have a sliding scale?
Paul Kennedy recently voiced his frustration about a recent trial, and wondered whether there really is such a thing as the presumption of innocence. and does the defendant really have a burden to prove innocence. I've wondered the same thing for years - and also had a recent trial experience bring that home. I have some theories I've developed over the last 28 years, which are far from scientific. Nevertheless, my observation has been that the burden of proof varies both with the seriousness of the charge, and the type of defendant. Mark Bennett was the first (at least to me) to start talking about he lizard brain, and that has helped me put a reason behind my theory.
The problem with burden of proof and presumption of innocence is that they are concepts - they are not something real or tangible, and not something you can easily identify. Almost everyone will tell you they believe the presumption of innocence is a good thing, and that the State should be required to prove their case beyond a reasonable doubt. It would be un-American to say anything different. If you really dig though, most people have to acknowledge feeling that are directly contrary to the presumption of innocence. Show me someone who doesn't think a defendant sitting at the counsel table is probably guilty, and I'll show you someone who is lying. At the very least they believe they must have done something wrong - or they wouldn't be there. Any decent criminal lawyer knows you have to overcome those feelings - i.e. you have to prove you aren't guilty.
The difficulty in proving innocence increases with the seriousness of the crime. I think that is partly a function of our lizard brains. The more serious the crime, the less jurors are willing to gamble. They don't want to risk putting back on the street who could commit the same crime again - possibly against their family or someone they know. Although no one would ever admit it, they tend to err in favor of safety and personal preservation - in other words, if they have a doubt they aren't going to walk someone charged with a serious crime. No where is this more in play than in sexual assault cases - especially those involving children.
I think there is something else at play also - especially in crimes with victims. Jurors - and society for that matter - want to see someone pay for a crime. Somebody has to be responsible, and if its not the right guy (or girl) that's just too bad. This is something I believe you have to overcome in cases like murder - especially if the victim was someone who jurors respect and like. Unless you can prove somebody else did it, your chances of winning are slight.
I handle a lot of appeals and post-conviction cases - that includes more than a few innocence cases. There have been more than a few cases I've looked at and wondered how in the world the jury could have convicted the person. Most of the time I think it was nothing more than the defendant couldn't prove someone else committed the crime.
Prosecutors are fond of talking about how difficult it is to overcome of the presumption of innocence, and what a high burden they have. If the burden was really that high, the would lose a lot more cases. In reality, a guilty verdict is a function of how convinced jurors are, and how willing they are to risk making a mistake - i.e. letting someone who might be guilty go free.
There's something else that's play in any case - and which can trump the above factors. That is the defendant. The more the defendant is like the jurors, the more likely they are to accept his story. Put another way, if the jury likes your client you have a chance. If you have a celebrity client you are way ahead of the curve - if you have any doubt, look at O.J. Why that is I have no idea - especially since most people don't think celebrities rank high in the integrity category.
Scott Greenfield recently asked if police officers are accorded special treatment by jurors - and judges. Again, that is a class of people jurors look up to. After all, you learned at an early age to respect police. I think he is right because they start off ahead - jurors want to believe them, and are willing to accept what they say.
So what does all this mean? It would be nice if jurors recognized these tendencies, but that is probably too much to expect. At a minimum, lawyers must be aware of them so they can attempt to deal with them.
