Mel Gibson's Big Arm Energy

Transcript

I'm Alice. And I'm Brett. And this is the prosecutor's legal news. Welcome back to The Prosecutor's Legal Briefs. I'm your host, Alice, and I'm joined as always by my reasonable co host, Brett. So reasonable. I don't know why more people don't agree with me, frankly. I don't know how reasonable you are. I was going one of 2 ways. One of these days, I'm gonna get you back for calling me homely. I was like, should I call him my reasonably doubtful cohost? Whatever. I just I feel like the homely backlash is just it's out of ignorance. That's what it is. It's not it's not ignorance, but people really don't care about the future. Yeah. You speak the mother tongue. More like, you know, it's so fun to be recording. We're still those of you who are listening on the regular feed, nothing's different. But for us recording, you'll know that I've been kinda popping in and out as I adjust to life with a newborn baby. But you know what I can talk about all day long no matter how sleep deprived I am? Reasonable doubt, Brett, because it keeps coming up over and over. In fact, Brett, when you were like, let's do an episode on reasonable doubt, I was like, haven't we done that already? Because we talk about it all the time, but apparently, a lot of people still don't quite understand that reasonable doubt is not an impossible standard, not the gold standard of beyond a shadow of a doubt. It's something less than that and it's what our justice system really is based on. And look, I think you have a large number of people who have a vested interest in making you think that the reasonable doubt standard is higher than it is. If you're a defense attorney, you know, you want the jury who's listening to you to hold the prosecution to the highest possible standard. And I totally get that. I mean, that's a strategy. Right? I mean, you're trying to get the jury to acquit you. And this one thing, I mean and we've talked to a lot of defense attorneys on our podcast, and I don't mean this as a criticism because it's not, but defense attorneys love to present themselves as the defenders and upholders of the constitution. They love to tell themselves that and a lot of them get into the business because that's what they wanna do. And that's great. But as we've said many times, the job of a defense attorney is to win. That is their job. And if that means describing the constitutional standard incorrectly, they will do that. If it means suggesting that someone else's constitutional rights should have been violated and the fact that they weren't violated tells you that their client should have been acquitted, a la the Karen Reed case, they will do that. The only group of people who are supposed to be upholding the constitutional requirements are the prosecutors and, of course, the judge who applies the law. So one of the reasons we like to talk about this stuff is so that when you're watching these trials, you understand what's going on. And to be very clear about this, this is not to knock what defense attorneys do. Literally, judges and prosecutors take an oath to the constitution when we're sworn in into our positions. Defense attorneys are supposed to be advocates for their client. Their client is the defendant, is the criminal defendant who has been charged with a crime, and they will argue the constitution when it behooves their client. And then they will kind of interpret the constitution in the best light possible for their client when necessary. But prosecutors have one client, and that really is justice for the people. And so that's why we're not saying that, oh, prosecutors are better or not. We just have different jobs. So note that it's not that we we think, oh, we're so great because we defend the constitution. That's just literally our position within the advocacy system because we need vigorous advocates on both sides of the v. It just happens at the prosecutor side of the v. What we're going for is not an individual person. We're not actually looking for just justice for the victim because that would be one solitary thing. We're supposed to be representing the people. That's why it's, you know, the state versus defendant or United States versus defendant. It's not victim versus defendant because our client as prosecutors is not actually the victim. And I think everybody out there understands that sort of in a fundamental way. If you see a prosecutor and you often see this criticism in true crime, a prosecutor who only wants to win, you know, you automatically feel like that's a bad thing. In fact, a criticism of some prosecutors is all they care about is winning because inherently you understand that is not actually what the job of the prosecutor is supposed to be. The job of the prosecutor is supposed to be upholding the constitution, upholding justice. And occasionally, as when we talk to Erlinda Ocampo Johnson, sometimes that means losing. That is sometimes the job of a prosecutor is to lose, and that is never the job of a defense attorney because they have a different role. And it's not a criticism. It's just a description of the system. And so what we wanted to do today in talking about this is not to give you sort of the prosecutor's spin on this, but rather to go through pattern jury instructions that describe some of these things that come up so often in the cases we talk about, the trials that you are watching, the discussions across true crime on the gallery in lots of different places about cases. So what we're telling you, the reason they're patterned jury instructions is because these are jury instructions that the courts have upheld. So basically, trial courts have given them and then the higher courts, the appellate courts, the Supreme Court have blessed them and so they become a pattern. And the reason they're a pattern is because if you give this instruction, you will not be reversed. These are everybody agrees. This is the law and they're supposed to be instructions that are given to juries. So they're supposed to be written in a way that you, the layperson, understand them without a whole lot of explanation from us. Now, of course, it's a podcast, so we're gonna talk about these, but we're gonna read them to you too so that you hear what juries are hearing when they are considering various kinds of evidence and the reasonable doubt standard itself. Now we picked the 9th circuit jury instructions. And the reason we picked these, number 1, it is the circuit that probably encompasses more people than any other circuit. It's huge. It's the circuit on the West Coast. It covers, like, a ton of states. It's ridiculous how big it is. I mean, Hawaii, Alaska, California, Washington, Oregon, Arizona. Stop me when I get one wrong. No. No. No. Like, the geographic region is one of the largest yeah. Idaho? I'm not sure about that. Forget. That I forget about Idaho. I mean, geographically, it's huge, but also population wise, it's huge. And also the 9th circuit, whether it's good or bad, gets up to the supreme court. Gets up to the supreme court more than any other circuit. Some may say it's because they take liberties with the law and have to be slapped back down. Others will just say there's so many cases there that they end up at the supreme court. But whatever your reason, they are at the Supreme Court the most, meaning the Supreme Court gets to review more 9th circuit cases than any other circuit in the United States. So these instructions, as Alice just said, they do tend to go up to the Supreme Court a lot. I think they are often viewed as more defendant friendly. I don't think that's controversial to say. So I think these instructions are pretty good. It's just a standard when you're thinking about this. Every single state has different pattern jury instructions. Every circuit has different jury instructions. I know this has to just seem crazy to those of you out in Germany listening to this podcast. And that's just be wild to you that we have so many different laws and and ways to apply the law, but that's just the way it is. But this because we think this is a good stand in, I think this will be a good primer for you that you can then use when you hear jury instructions in other areas. You'll understand sort of what they're saying. So with that, Alice One really quick practice note of why we're talking about pattern jury instructions is when you are an attorney, whether you're the prosecution or the defense, you have to submit typically in every court before the case gets submitted to the jury. The judge asks both sides for their jury instructions that they want read to the jury, and both sides go to the pattern jury instructions and then tweak it to fit whatever they want. But that's kind of the go to for both sides. That's why we're going to the pattern jury instructions. It's not just that we think they're cool. It's that it's quite practically what you use as an attorney when you draft jury instructions for the judge. And I think you guys may recall judge Perry. When we talked to judge Perry, he talked about, a jury instruction about how I think it was that you don't have to show how someone died in order to convict on a murder case. That's not an element. And he was so convinced that both sides or at least the prosecution would ask for that, that he had already looked at the law to see exactly how he should word it. And then they never asked for it. And since they didn't ask for it, he didn't give it. And you ended up having a juror who said that was one of their concerns. And if that instruction had been given, maybe that wouldn't have happened. These instructions, this is the law. So remember, juries decide facts based on the law that is given to them. So this is not for the jury to quibble with. When when we read these to you, you may not agree with them, but unless you're a judge, you're not gonna change that because this is the law. And the jury is supposed to follow what they're told in the jury instructions, and that's one reason instructions are so important. You can decide cases on jury instructions. I mean, you can have instructions that basically end up telling the jury to convict because of how they're written and based on what the case is. And jury instructions are lengthy, and they go back with the jury. Some of you have asked at what point in trial do you do this practically speaking. I mean, those of us who are super prepared for trial could have everything done before we even start trial. Realistically, you are working on your jury instructions once trial has begun and you're about to submit to the jury. And why you do that is because of what Brett just said. Things can happen during trial that come out that you wanna address in your jury instructions. Certain witnesses will or will not testify. For example, a jury instruction is about whether the defendant takes a stand or not, how that is not evidence of guilt. You shouldn't read into anything whether they take the stand or don't take the stand. You don't know whether to include that or not until the defendant chooses to take the stand or not take the stand. So practically speaking, you're scrambling probably the night before the judge has told you in court that day. I want jury instructions tomorrow because we expect the defense to rest tomorrow, and then we have time to argue the jury instructions, have closing arguments, and then I can look over them. We have argument about them. I rule on them, then read them to the jury. So practically speaking, it's pretty much at the end of trial because it's kind of a living, breathing instruction until you get to the end. With that, one of the most basic things you're probably wondering is what is evidence? We've said this a lot. The jury is only supposed to go off of the evidence they hear within the court, not what they hear on TV because they're not supposed to watch TV about the case, not anything they know outside of the courtroom based on their own personal knowledge. And interestingly enough, you can imagine that the definition of evidence is probably really difficult because it's going to be different for every single case. So instead, the pattern and jury instructions say what is not evidence, and this is what the pattern and jury instructions say about evidence. In reaching your verdict, you may consider only the testimony and exhibits received in evidence. The following things are not evidence, and you may not consider them in deciding what the facts are. 1, questions, statements, objections, and arguments by the lawyers are not evidence. The lawyers are not witnesses. Although you must consider a lawyer's questions to understand the answers of a witness, the lawyer's questions themselves are not evidence. Similarly, what the lawyers have said in their opening statements or will say in their closing arguments and at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the ways the lawyers state them, your memory of them controls. Okay. There's there's more, but that first one, let's stop and talk about it really quickly because this is very, very important. What the lawyers say is not evidence. This is why one of the objections we've taught you that the other side can say as the the attorney's questioning is objection. The lawyer is testifying. Right? We've said this before, like, whatever you think the case is, even if you know the case forwards and backwards, the witness on the stand has to say the testimony. You can't say the testimony because you cannot put evidence into the record. And this is also why phrasing of the questions is so important because you're supposed to not have leading questions. You're supposed to have open ended questions to help guide the witness to pull out their testimony. Obviously, we know it's an art form to be able to ask questions that elicit that type of testimony. Yeah. And look, this is one of those that no matter how many times we say it, people will argue with us. So it's always nice to just read what the law is. It does not matter what the prosecution's theory of the case is. It just doesn't matter. Not as far as whether someone is guilty or innocent. The prosecution has a theory for the very reason that this rule explains, to help you understand the evidence and conceptualize the evidence. Trials can be pretty confusing just because of the way they are. They're often not narrative based. Sometimes evidence is coming in in strange ways. You're having to have witnesses who are really just testifying for foundational purposes so some later witness can testify. And if you didn't have an opening and if you didn't have a closing, it might be really difficult for a common person, a lay person, somebody off the street to really understand and put all this together. So the opening statement is supposed to be a road map. Like Alice has said, you're building the shelves where all the evidence is gonna go. And then the closing argument is just that. It's an argument for why you as a juror should interpret the evidence the way that I want you to interpret it. But what I say, if I tell you, for instance, go back to Adnan Syed, the murder happened at this time. That is my interpretation of the evidence. It is not evidence and it is certainly not binding on you. And as a matter of fact, juries, as you can see, are specifically instructed just because I say it. If you don't think the evidence says that, you should ignore what I'm saying because that's your job to figure out what those facts are. So don't be confused and misled. It is a powerful thing for a defense attorney to point to what the state has said and say the evidence doesn't support that. It's powerful because if you're in this mindset of they told me that they were gonna prove this and they didn't prove it, maybe they prove something else, but they didn't prove the thing they were gonna tell me to, That's a great argument for a defense attorney to make. But if the prosecution has kinda fallen all over itself and not proven what it said it was going to in the opening statement, but has nevertheless put on sufficient evidence of a person's guilt, you can still find them guilty. And then afterwards, you can say, you did a terrible job. You're very glad that you had me as a juror because I was able to look at the evidence and reach a guilty verdict even though you did awful. And note one of the things within here, it says that the lawyer's questions are not evidence. I know a lot of us watch these trials and we're like, oh my goodness. The defense attorney or the prosecution ended with a mic drop of a question. Something like, it's because you didn't care if he died, did you? Right? And then you're not you know, I don't even wanna hear the answer. And then you get objected to, like, drawn. You know, this does happen for dramatic effect. And why do attorneys do that? Because we recognize that regular people, and I mean regular people, like, all of us are kind of emotion based and we like to we have conversations every day, and you can't unhear that question. But what this jury instruction is guiding you away from is doesn't matter. Those mic drop questions don't matter. That's why when you see these, like, news articles that say, well, the prosecution's definitely winning because they just kept having these hard hitting questions, unless you have the answers to support them, doesn't really matter. Right? So keep that in mind when you have these dramatic mic drop questions where I don't even care what the answer is. Withdrawn, your honor, withdrawn. I rest. That's for dramatic effect, but that shouldn't be evidence. And another one, defense attorneys do this all the time, all the time. If you knew that x was true, would that change your opinion? And the person's like, I don't know. Right? Well, the only reason to ask that question usually or a lot of time I mean, sometimes you then have evidence that x is true and that can really undermine, an expert. But a lot of times, it's just to put in the jury's mind that x might be true. The and that's a great point, Brett, because that is exactly how we see a lot of conspiracy theories get put forth. If you go back and look at a lot I'll just make people mad if you don't agree. Just look at the Karen retrial. The conspiracy theory or the Delphi trial, which did not have it actually, is put forth through the questions. But if you take out all the questions and just look at the testimony, you don't actually really see the theory. And that's why it's really important. It's really difficult to parse through what the witness has said versus what the questions are. Right? A lot of us have watched jury trials and been like, why do they keep asking random questions? Like, the the witness continues to say, I don't know. I don't know. Like, couldn't it be that the police actually planted the evidence? I don't know. I I don't know. It doesn't matter. Right? Because what the attorney is trying to do is to testify. That is difficult, but we need to remember that's not testimony itself. And that's also why when you see one side pushing a theory that is completely not backed up by the witness, and then you'll see a bunch of people online saying, oh, no. It's looking really bad because all we heard about today was the conspiracy theory. Did we hear about it, or was it just in the questioning? Did any of the testimony back it up? If not, then you didn't hear about a conspiracy theory in the evidence. Guys, we wanna talk about a podcast that we are so honored to have been a part of on multiple occasions, Silver Linings Handbook with Jason Blair. If you guys have listened to our episodes, we talk about so many things, and the thing about Jason is he is so good at interviewing. He is able to pull out thoughts and entire conversations that you didn't even know you had in you, and he does that not only when it comes to true crime and not only when it's with us, but with so many people from so many different walks of life. Areas of focus have included well-being, mental health, the law and criminal justice system, true crime, religion, society and culture, and people who are underrepresented in the mainstream media. And Jason is a former journalist who worked at the New York Times, the Boston Globe, the Washington Post, and other newspapers, and you will see it. He is a journalist at heart, and he has never lost that urge to find interesting things and to find the truth. What we feel makes the podcast difference is that it is truly not scripted. I can promise you that having appeared on this show multiple times, basically, we never talk about the things we're gonna talk about. It is not scripted at all. And he uses the same natural curiosity you would have sitting in the living room, and his focus is on making a difference. That's so true. I really love this podcast because no matter if you've heard this person speak before, Jason somehow is able to put everyone at ease and share some of their deepest, most inner thoughts, and you walk away learning more, not only about the interviewee, about Jason, but about yourself and humanity. This podcast focuses on the big cases like the murder of Gabby Petito and the disappearance of Maura Murray and Brianna Maitland through interviews with their loved ones. But this year, Jason has also had a particular focus on indigenous people, including the missing and murdered indigenous women, violence against natives, and difficulties on reservations, a topic that you know is near and dear to the prosecutor's heart, and we love that Jason has also put a particular focus on this vulnerable population. But Jason also looks at the bright side. In 2 upcoming episodes, Jason will take you to Alaska where indigenous communities have partnered with state and local officials to address the missing and murdered indigenous women crisis and to preserve native culture and their way of life. There is so much to be gleaned from this incredible podcast. Listen, you will not regret it. To subscribe, just go wherever you listen to your podcast and subscribe today, Silver Linings Handbook. Number 2 of what's not evidence from the pattern jury instructions is any testimony that I, I being the judge, have excluded, stricken, or instructed you to disregard is not evidence. In addition, some evidence was received only for a limited purpose. When I have instructed you to consider certain evidence in a limited way, you must do so. So this covers things when we've talked about, like, this isn't hearsay. This is allowed to come in because it's meant to not go to the truth the truth of the matter asserted. So I'm letting you tell me that Joe said he killed him, not because Joe knows he killed him, but rather the person who's listening, Susie, what she did next matters because she thought Joe killed him. So we wanna know it for the purpose of how it affected the listener, Susie. So we wanna know it for the purpose of how it affected the listener, Susie, but don't consider that statement for the truth of the matter asserted. That's an example of number 2 where it's a limited way of understanding the statements coming in. And, again, we are people. If I hear that so and so killed someone, it's hard to only understand it for a limited purpose. But that's why we have to be very careful what we let in, but also to have these types of jury instructions to cabin what the evidence is considered for. Instructions to cabin what the evidence is considered for. And you can imagine how this can be devastating because imagine a situation in which you have you know, we we often use felony possession because it's so simple and straightforward. So one of the elements is knowledge. You knew you possessed it. You don't have to have it on you, it can be constructive possession, you can have in your house for instance, right? But let's say the police find a gun in your house and there's some argument about a friend was staying over and the friend has claimed the gun and said it's their gun. And the defendant is arguing, I didn't even know it was there. And since I didn't know it was there, I couldn't knowingly possess it even constructively, even though it's in my control, even though I could have gotten it from my buddy. I I didn't I didn't know about it. Right? And imagine that the only evidence that this person knew about it was his wife said that he knew about the gun. Now that is hearsay. Right? His wife saying the defendant knew about the gun is hearsay. And you as clever lawyer might say, well, I'm not using it for the truth of the matter asserted. You know, I'm using it to show why the wife freaked out when the police showed up because she knew the gun was there and she knew her husband knew about it, and then she knew he was gonna get in trouble. So I'm really just trying to explain her behavior. Right? And so it comes in. But if that's the only evidence you had to prove knowledge, you have just undermined yourself because you didn't offer it to prove knowledge. You offered it for something else, and the jury can't consider it to prove knowledge, and the jury in that circumstance should acquit. Alright. Number 3, that's not evidence is anything you may have seen or heard when the court was not in session is not evidence. You are to decide the case solely on the evidence received at the trial. So what does this mean? Let's say during a sidebar, you look over and see the attorneys rolling their eyes or you're going to the bathroom during a recess, during a break, and you overhear the witnesses talking or you overhear people from the gallery who are just viewing. Maybe they're journalists, and they're talking about what they overheard and why certain things are happening. This is why it's really important to protect the jury and why they leave the room first before anyone else is dismissed because they're trying to minimize what they may see or hear outside of when court is in session. But this also we wanna make sure everyone is seeing the same things. That's the point of this. Right? All of the 12 jurors have to have heard the same testimony. It can't just be that Susie q overheard something in the bathroom, so now she gets to consider it. That's not fair. Right? Because then she has to relay a second, third hand, and it hasn't been vetted through the judge, and it's not subject to cross examination. There's lots of reasons why we don't allow something that's outside of the court to be considered as evidence. So the next thing we're gonna talk about is witness credibility, and this is something that comes up a lot because most cases have some attack on the witness's credibility, whether it's a police officer and the defense is trying to say the police were biased, they plan to stop or it's a codefendant or it's somebody who received some sort of benefit. And obviously you see this in true crime with innocence cases, people are always attacking the credibility and we're always talking about that. You know, you think about Jay in the Adnan Syed case, right? So this is how juries are told to examine witness credibility. In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says or part of it or none of it. And this is important because some people are very much take it or leave it people. They either think someone is absolutely telling the truth about everything or none of it. Right? There's no in between for them and the instructions allow for that, that if if you don't wanna believe anything they say, that's fine. You can approach that, But it also gives you some guidelines for how to evaluate that. In considering the testimony of any witness, you may take into account the following. 1st, the opportunity and ability of the witness to see or hear or know the things testified to. So think about my cousin, Vinny. They know the whole lady with the glasses. Right? And then the thickness of her glasses, sort of that situation. 2nd, the witness's memory. 3rd, the witness's manner while testifying. I mean, you are evaluating the witness or do you think they look like someone who's telling the truth or not? The thing about trials is they are very rule based, but we are not robots and trials are not robotic. There is still emotion. There's still judgment. There's still you making decisions as a human being. And you see this reflected in the instructions. 4th, the witness's interest in the outcome of the case, if any. If mom is testifying, take that into account. 5th, the witness's bias or prejudice, if any. 6th, whether other evidence contradicted the witness's testimony. 7th, the reasonableness of the witness's testimony in light of all the evidence. And 8, any other factors that bear on believability. So those eight factors to consider if you're paying attention is basically the road map for every cross examination. Now you understand why cross examination goes through each of these things because this is a way to attack the credibility of the witness. Because if you have a witness go up there who says, the defendant did it 100%. I saw it. I know it. He did it. Well, darn. If they take that wholesale, you're toast. Conviction. Right? But if you go up there with this, you know, handy dandy checklist of 8 factors to go through, you can see how you can undermine very damning testimony against your client when you attack their memory. Well, didn't you say that you recently had surgery and you've been taking some narcotics that affected your memory? Well, yeah, but it doesn't always affect it. Well, do you remember everything you did that day? Well, no. What were you wearing that day? You may not really care what that person was wearing, but all you're trying to do is kind of attack them through these different factors. So by knowing the things that you consider for credibility, you begin to see how you cross examine someone. And a lot of you have asked before, how do you properly cross examine someone? If you're a new attorney, go through this checklist. Go through each of them. How can you attack their memory? How can you attack their interest in the case? So isn't it true that you are also charged with a crime? Have you met with the prosecutor? Have you been offered a plea deal that is much more generous than you would have otherwise gotten? Is that why you're testifying on behalf of the state today? Those are all going towards what that person's getting out of it and thereby undermining their credibility. So it continues with some things that are common sense, but nevertheless directly address things you will hear from people in true crime coverage all the time. Sometimes a witness may say something that is not consistent with something else he or she said. Sometimes different witnesses will give different versions of what happened. People often forget things or make mistakes and what they remember. Also, 2 people may see the same event but remember it differently. You may you may consider these differences, but do not decide that testimony is untrue just because it differs from other testimony. And I think this is really important because people focus so much on this, the mistakes, inconsistencies, the changes. It seems like people are grasping at straws a lot of times. Like, you know, was she this day, she said there were 5 people in the car, but then she testified there were 6 people in the car and it's like, okay. Well, is that a really significant thing? Could that just be her misremembering? Is that just a natural human effect? Does it matter? I mean, this is another big one. Does the mistake actually matter? You know, just because you made a mistake in describing what happened, if it's not material, that's a word we use a lot in the law material. If it's not something that is relevant to the actual question before you, how much should you consider it? And some people, you know, really wanna just disregard usually very damning testimony because of some sort of inconsistencies like this. And the rules say, look, consider that, take into account, but don't disregard it just on that basis. Compare it to everything else in the case and make a decision based on that. However, if you decide that a witness has deliberately testified untruthfully about something important, you may choose not to believe anything that witness said. On the other hand, if you think the witness testified untruthfully about some things but told the truth about others, you may accept the part you think is true and ignore the rest. So basically what this is saying, like Brett said, this in normal life, you would probably not have to be told all this. This is essentially telling the jurors, use your common sense. You are in that position. You are the judge of facts for a reason. So you can imagine these are all in here because at one point or another, jurors wrote to the judge while they were deliberating. Can I do this? Is this allowed? Because there are so many strictures within kind of the jury system that we understand. A lot of people think, oh, I have to check everything I know at the door. Essentially, this instruction is just telling you, hey. You have eyes. You have a lived experience. You interact with human beings. You know that sometimes people tell the whole truth. Sometimes people tell partial truth. Sometimes people tell complete lies, and there's everything in between. And you get to be the judge of that. And you don't have to wholesale take everything as gospel or dismiss everything. And you can also have reasons that you don't wanna believe them or just a feeling because they were fidgety. You're allowed to use those types of observations in determining credibility. And this last part, and it goes directly to what we've talked about a lot, the whole idea of people lie, but they're not liars. And we've talked about how there are witnesses who lie. You know? I mean, there are witnesses who get up on the stand and they say things that aren't true, and that doesn't necessarily mean they're lying about everything because what are they lying about and why are they lying? And this instruction is saying, use your common sense. You don't have to throw the entire case out because, for instance, a codefendant is minimizing their involvement. That is something people tend to do. You know, you don't have to throw everything out because somebody lied about where they were that night because in fact, they were having an affair and they don't want it to come out on the stand that they were with somebody else when they happen to be driving down the road and they saw the robbery. Right? How significant is that? Or they tell, you know, something else. I mean, you oh, you just imagine unlimited numbers of these. They testify that somebody was there, but they conveniently leave out the fact that their brother was also there because they don't want their brother to get in trouble. Does that mean they're lying about the other person being there? I don't know. What does the rest of the evidence say? And this is we're about to get to with a reasonable doubt. So much of this is considering the evidence as a whole, and I see this mistake made a lot, which is if x is false or if I didn't believe x, that's reasonable doubt and I would have to acquit. Yeah. I mean, man, the evidence sure is damning. They obviously did it, but I don't believe that one thing. And since I don't believe that one thing, that's reasonable doubt, so I have to acquit. No. That is not how you do this. You are considering all the evidence in conjunction with all the rest of the evidence to reach the standard, which we're now going to move on to. So reasonable doubt as defined by the pattern jury instructions is proof beyond a reasonable doubt is proof that leaves you firmly convinced the defendant is guilty. It's not required that the government prove guilty beyond all possible doubt. A reasonable doubt is a doubt based upon reason and common sense and is not based purely on speculation. Let me read that again because this is the key here that I think a lot of people do a lot of hand wringing over. Reasonable doubt is a doubt based upon reason and common sense is not based purely on speculation. It may arise from possibility in the world. There may be a minuscule chance that actually aliens came and abducted this person and the aliens committed the murder, but it could happen. There's a world in what could it could happen, so, therefore, that is a reasonable doubt. No. In the instructions themselves, it has to be based in common sense and in reason, and you don't check those things when you become a juror. And in the instructions themselves, they say it's not beyond all doubt. It's just within reason. And I think this goes a lot to the idea that you must disprove every other possible theory in order for someone to be guilty. And you can use the Delphi case as an example of that. So you guys remember the white van, the van that Richard Allen saw and that he told his psychiatrist about and that was owned by a man who lived on that road. And so the people who were in support of Rich Allen were like, well, how do we know that guy didn't do it? Maybe he did it. He could have done it. You know, he lived on the road. Right? I mean, no reason to think he did it. No proof that he did it. No evidence pointing towards him, but he could have done it. Well, that's reasonable doubt. If he could have done it, that's reasonable doubt. No. That is speculation. That is you just saying, well, it is possible that x happened. So therefore, I'm gonna say reasonable doubt. It's possible a serial killer was in the area. Maybe it's possible it was a drug deal. You know, maybe maybe the parents were you know, I heard the parents were sketchy. You know, you hear this a lot. I heard ex relative was sketchy and maybe they were involved in drugs and maybe they had a drug debt and they didn't pay it. And maybe the drug dealer was like, I'm gonna take it out on your kids, and they killed him. I mean, that's possible. Isn't that reasonable doubt, the fact we can come up with that? You know, maybe the midgets killed Murdaugh's family because Murdaugh was involved in all these shady dealings, and maybe one of those shady dealings offended the wrong person, and they decided to do this. That is just all speculation. It's a fun thing to do. We do it in true crime all the time, but it really has no place in a trial. It is expressly forbidden for the jury to engage in this kind of speculation in a trial. Trials are about evidence. And that's why we've talked about pretrial rulings by the judge to not allow certain some other guy did a defense by the defense if it's based purely on speculation. Right? It's while there's still a jury instruction on this, the the judge is trying to keep out wild speculation as well because then you're just looking at spaghetti at the wall, and it's very easy to be confused as the jurors. So if after a careful and impartial consideration of all the evidence, you're not convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant not guilty. On the other hand, if after careful and impartial consideration of all the evidence, you're convinced beyond a reasonable doubt that the defendant is guilty, it's your duty to find the defendant guilty. Note the operative word in that instruction. All the evidence. Not some of the evidence, not just what the prosecution says, not just the parts of the evidence you like listening to, not just the prosecution's case, also the defense's case, not just the prosecution's questioning, also the cross examination. It says all totality of the evidence. This is why I understand well, I don't really understand, but, like, you'll see a lot of people go through the intellectual exercise, I guess, of show me all the evidence that this person did it other than what the witnesses all saw, what the DNA saw, saw, what the cell data shows, what the agent saw, and what they said themselves. If you don't have that, you have nothing. And I'm like, well, I mean, it's kind of the totality of the circumstances. People did that a lot in the Delphi case. Okay. Maybe if that's an exercise, but that's literally not how the jury is asked to consider the evidence. It's not how we consider the evidence in our daily lives. Right? And so I don't think that is a great use of intellectual exercise when you're trying to understand whether someone did it or not. I think you have to look at all the evidence and encounter the facts that you don't like. You can give them different weight, but you shouldn't disregard pieces of the evidence wholesale when you're talking about it, you know, outside of the jury room, I guess. One of the fun things we talked to drinks the defenders, like we talked about this a little bit about what's fun about being a defense attorney is you get to be very creative and you get to engage in a lot of rhetoric and use a lot of I don't wanna call them tricks because that sounds like I'm being critical rhetorical devices. I'll say that. So one of them is exactly what Alice said. Well, other than that, what's the evidence you have? Right? Well, let's imagine if Richard Allen had never confessed 61 times. What's the evidence? Right? And the whole reason they're doing that is because they want to carve off parts of the evidence that are really bad for them and get you thinking about the case in light of some subset of the evidence. Right? And that is something defense attorneys can legitimately do and I'll tell you why they legitimately do it. Take the bullet evidence. Right? It is perfectly legitimate to say fine, they had their expert who testified that the bullet cycled through his gun. We had our expert who testified it did not. If you believe our expert, you can disregard that evidence and it goes out. It's no longer part of all the evidence because we've convinced you to disregard it. But before you get there, you have to put on the evidence for yourself to show that this is not believable. This is not something you should consider. Right? That is the correct way to do it. But what you often see in sort of argument is just, well, other than that, what is the evidence? Right. And that's an effective way to argue it, but it's not necessarily one that's going to get you to truth. And it's not necessarily the most intellectually honest way to do it. If you're talking about a trial, The proper way to confront that is rather than saying other than that piece of evidence to say that evidence is faulty because of x, y, or z, or I give it little weight because 5 other witnesses countered it because of the start of, you know, whatever. Something like that. That is a more intellectual honest conversation to be having rather than exclusion because you just, I don't know, don't believe in security cameras or something like that. Analysis used a word that I think is really important we focus on when we're thinking about that, and that's weight because we don't talk enough about weight when we talk about this because what a lot of people do is they disregard things altogether. So, for instance, take the bullet evidence. So you've got your expert who says it absolutely went through his gun. They've got their expert who said it didn't go through his gun. How I can you know, I can't I'm not an expert. How can I know? So I'm just gonna throw that out altogether. I'm not even gonna consider it. Right? That's not really the way you should do it. What you should do is you consider how much weight does it have when compared to all the other evidence. You know, the whole scale that lady justice holds is actually a really effective metaphor for justice. Because reasonable doubt means that one side of the scale is so heavy that it outweighs the other side. And when you're talking about evidence, you really are talking about, wait, some evidence has a ton of weight. A confession often does though people try and undermine those. He's on camera doing it. Right? That has a lot of weight. It may have so much weight. You don't really need anything else because that is the, you know, 1 ton block that's gonna fall on the scale. Other times It's little things, you know, muddy bloody woman that has weight It's it's not enough, but it's it's apart. It's gonna move towards something the gun the bullet Okay. So think about this, even if you're not a 100% convinced that the bullet went through the gun, the trial is not the trial of whether or not the bullet went through the gun and you have to decide beyond a reasonable doubt whether that happened. The trial is when you consider that with everything else. So you have a bullet that is the same caliber as the gun of the person who describes themselves as being on the trail, wearing the same clothes as described by other people who saw Bridge Guy, talking about seeing people who are witnesses who saw Bridge Guy, right, who also confessed multiple times to the crime. Given all those other things, the testimony of the expert that the bullet cycle through should have more weight for you because it is corroborated by everything else in the case. Oftentimes, people who who want to argue for innocence in a case like that, they're really trying to make you look at things in isolation. Just think about the bullet itself. Do you really believe that we can match the scientific certainty the fact that a bullet went through a mass produced gun? Do you really believe that? Can that be true? Isn't it more believable that it could have gone through multiple guns? Right? Okay. That's all fine. But when you consider it in the totality, all of a sudden, it becomes much more convincing. It has more weight because of everything surrounding it. This episode is brought to you by Progressive Insurance. Fiscally responsible, financial geniuses, monetary magicians, these are things people say about drivers who switch their car insurance to Progressive and save 100. Because Progressive offers discounts for paying in full, owning a home, and more. Plus, you can count on their great customer service to help you when you need it, so your dollar goes a long way. Visit progressive.com to see if you could save on car insurance. Progressive Casualty Insurance Company and affiliates, potential savings will vary. Not available in all states or situations. That that's it. I mean, really, that is what the jury instructions say about reasonable doubt. It is not as complex, I think, as people try to make it out to be. I think it's there there's kind of big things that always get confused. It's not beyond all doubt. It's beyond reasonable doubt, which is reason and common sense and its totality of the circumstances. Those are kind of the 2 major principles that you're considering that I think completely just get dragged through confusion whenever juries and reasonable doubt is reported on in the popular news. And, of course, you know, we always read this instruction, but then both sides get up and they try and put their gloss on it. So, you know, one thing that sometimes happens, there's a defense attorney. He's not a defense attorney anymore because he's in our office, but he always tells a story about how one time when he was a defense attorney, the prosecutor got up and said, the defendant's guilty beyond a shadow of a doubt. And he was like and I grabbed onto that thing. I didn't mention reasonable doubt another time. I got up and said, he says beyond a shadow of a doubt, and then he was going through all these things that really weren't reasonable doubt, but they were some. Right? And so the prosecutor had totally messed himself up because he braised the burden, and the defense attorney grabs onto that and runs with it. So you have to be really careful when you're a prosecutor not to do that. Defense attorneys will often try and lower or raise the burden or they'll describe reasonable doubt in a very strange way. I mean, one that you'll see sometimes is it's any doubt for which you have a reason. It's a very popular defense attorney thing, which is just silly. Right? I mean, you can imagine can be a reason. It could be a It can be a reason. Exactly. You know? I just have a feeling. I just I don't like it. I just have a feeling. You know, I it could be your reason could be really, like, biased. Like, well, you know, the main witness was a woman. I don't believe women. That's a reason. That's a reason. That's a reason. Not a good reason. It could be an irrational reason. I just don't believe police or I just whatever. I mean, it could be anything then. And it doesn't actually describing it that way doesn't help because, you know, if you're thinking to yourself, well, you know, you're just you're describing reasons that aren't reasonable. Exactly. Because it doesn't help you to say it's dealt with a reason. You have to describe it as something that is reasonable when you use your common sense and you're examining the evidence and you're applying your common experience to it, if you come to a conclusion that there is some hole in the evidence, then you have reasonable doubt. It's not just you can come up with a reason not to believe someone's guilty. And here's why this episode I think is really important because why why do after reading the jury instructions about what reasonable doubt is, do the attorneys get to get up and put their gloss on it? The reason is because other than these instructions, the attorneys and the judge can't go back into the jury room and force the jurors to apply them in a in a correct way. Right? And this is important. This is why the knowledge of, like, people of what what civics class used to teach us, I think. This is why it's so important for our general laypeople to understand what reasonable doubt is because we are the ones populating the jury rooms, and we need to understand what it is because there's no one back there be like, I'm sorry, jury number 3. You are misapplying the standard. Once they go back into that room, there's no enforcement of what the definition is. And you'll see you'll see sometimes, like, you'll see a verdict that doesn't make any sense. You're like, they didn't understand, you know, what the evidence said or how they waited it. And why this is important is because we want independence of the jurors. We give them instruction, but then we let them fly free. Right? We tell them what they're allowed to consider as evidence, but we don't actually have a ticker back there and say you're discussing something that's not really part of the evidence. We instruct them, and then that is it. And so if you have a general population that just doesn't understand what reasonable doubt is or you have a reporting system that completely misreports and mischaracterizes reasonable doubt to the point where most jurors who show up for jury duty just don't understand the standard, that's a problem for our entire judicial system. This is why I think this episode is really important and why I think it's a very important question to ask if you don't understand what reasonable doubt is. And we don't want to live in a system where it's draconian, and we follow the jurors back and watch them deliberate because we want them to freely deliberate and talk amongst themselves and not have someone breathing down their neck because we have trusted our criminal justice system and a jury of our peers. Now if you don't like that as a criminal defendant, you can always elect to have a judge trial. Right? But we have decided this is the best way to go about it. So this is why I think this particular episode is important because your education today and your education of those around you about what reasonable doubt is will have an impact on our judicial system. And I'll just give 2 examples that are often used because you reasonable doubt is one of those things that pretty straightforward proof that leaves you firmly convinced. I mean, you firmly convinced or not because the well, what if it was always creeps into people's mind? I mean, it really does. Does. And so there are a couple of examples people have given and we've given 2 before. 1 is the puzzle analogy. I hear this a lot. You know, you're given a box with a whole bunch of puzzle pieces in it and there's no picture. You just got the pieces. So you don't know what it is and so you start matching the pieces and you're putting them together and slowly a picture emerges and there's some point where you start to get a vague idea of what you're looking at and at some point a piece falls in and you're like, boom, I got it. And it's usually not when the last piece goes in. There are still some holes. You're not gonna know everything. You're not gonna have all the information, but there's a moment where you feel confident about what you're looking at. The one I like to use is Wheel of Fortune because we've all had this experience in Wheel of Fortune. We're watching Wheel of Fortune and the blank puzzle comes up and they give you a category and that's all you have. And then it starts you know, letters start turning. And every letter is evidence about what the phrase is going to be. And you're watching it. You're maybe you're talking out with your friends, your family, and you're sort of saying phrases and they don't quite fit. And then somebody buys an a and all of a sudden, boom, you know what it is. And you could solve the puzzle right then if you had to. And and you may know before the contestants or the people in the room, because what is firmly convinced differs for every person, how you look at the evidence differs for every person, but for every person, there is a moment when you know you know what the answer is and that is when you know something beyond a reasonable doubt. And I think everybody everybody can get there and I think juries do a really good job actually of weighing this. And you're always kind of amazed to see it because people have so many doubts about juries and their abilities, but they really do a good job. Particularly if you have a jury who comes in without a lot of bias. I mean, one of the problems we have in true crime, especially in these heavily followed cases, is by the time we all get to trial, we are in camps. Right? We are absolutely convinced one way or the other, and nothing's changed in our minds. Right? I mean, that's how everybody approaches things. And so it's a little bit harder to figure out. But this was something we wanted to talk about because it is a confusing topic, and it's one that comes up so often both in the trials you guys are watching and in the shows you're listening to. And one other thing I've heard people ask is, well, why not have it just be, like, near a 100% or, like, 99.9 percent? The reason is we've I think we've used this example a lot is would you be able to make a major life decision whether to move, leave your job, take on a new job, something like that? There are almost no situations in your life that are 100% that you know for sure. There's always going to be some unknown, and that's why the beyond a reasonable doubt standard exists. Because when you are when you try to argue, it should be close to a 100%. We're talking about someone's life. The reality in our lives is just literally there is nothing that is near a 100%. And I don't like to use the percentages because of exactly what Brett said. It's going to be slightly different for every single person. So with that, we could actually probably do a q and a unreasonable doubt, except I think it would just probably devolve into hypotheticals, which is fine. I think the hypotheticals can be interesting to test the balance of what reasonable doubt mean. So if there's enough interest, maybe we'll do a q and a on reasonable doubt because I know there's a lot of questions about it. But you can go read these pattern jury instructions. You can read them for your circuit, for your district, for your jurisdiction and see maybe how it slightly differs a little bit. But this is generally what it's going to be in every jurisdiction. So you can go read the actual jury instructions yourselves. And if you still have questions, let us know. We'd be happy to answer your questions. But before we do that, Brett, do you have anything else to add about reasonable doubt or anything on your mind? You know, the only thing I'll say, I'll say one more thing about reasonable doubt. I'll give you an example of one where I think there is reasonable doubt and that's the staircase. So most of you know the facts of the Michael Peterson case, Kathleen Peterson murder or death or accidental death or murder by Al. It's unclear exactly what happened. But when you look at that case, you can fully understand why he's prosecuted. You have this woman in a pool of blood at the bottom of these stairs, and You have this woman in a pool of blood at the bottom of these stairs in a relationship, which may have seemed like it was pretty good, but there was some infidelity going on. There might have been some money troubles. There's all sorts of reasons to think he could have done it. Certainly enough to get an indictment, certainly enough to go to trial. But at the end of the trial, you have a situation where the prosecution's theory, which as we said, isn't evidence, but nevertheless, is a theory that wasn't just a theory. It actually had some concreteness to it. They had a murder weapon and everything. It's been completely demolished. You have a victim who has died of blood loss, which is a strange way to murder someone who has unusual wounds but doesn't have any skull fractures, which is something you would expect if, for instance, the husband was bashing her head against the ground. You have this awkward staircase that she very easily could have slipped on. You have blood on the bottom of her feet which seems to mean that at some point she did stand in her own blood. You have owl feathers which at least give you one plausible alternative to both the accident and the beating. When I look at all that evidence, I can think, you know, the most likely thing here, wife is dead in that circumstance is the husband did it and I may even believe that that he probably did it, but can I say that I'm firmly convinced that he did it? Are those actual pieces of evidence that I just mentioned or lack of evidence for a murder theory? Are those problematic enough for me? In my case, it would be almost impossible based on the evidence I have seen for me to conclude that Michael Peterson is guilty beyond a reasonable doubt. And that is one that I really think is a good sort of reasonable doubt case, a case where you may walk away thinking, I think he did it, But there's not enough evidence to get me to a point of not just I think he did it, or I feel I feel pretty confident he did it. But I am firmly convinced that he did it. For me, that's the reason without case. Great. There we go. I know this probably still sets off more questions than answers, but we are always here for those questions. And we're doing this episode because you guys asked us specifically on on this topic for legal briefs, and we love when you ask for legal brief topics. So please let us know. You can email us at prosecutorspod@gmail.com. And these discussions are probably going to continue on our fan run Facebook group called the gallery. Come join the gallery, and, we're also on there. Happy to answer additional questions. Find us on TikTok and Twitter and Instagram and Facebook. We love hearing from all of you, and we really, appreciate your support of both legal briefs and the prosecutors. And until next time. I'm Alice. And I'm Brett. And this is the prosecutor's legal briefs. Awesome. Okay. So did you see the jury instructions I sent you? Yeah. Let's see. We'd go through them and just talk about what reasonable doubt is. Yeah. That makes sense? Okay. I'm gonna go ahead and go live. Let's do it. I'm no Allison Sweeney, but Oh, you're so so amazing. Call me Ali. Okay. Maybe I will. Hello, everybody. Sorry, guys. You just get you just get non movie star, Alice, today. One day, Alice. One day. Never. Just waiting for your debut.