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Henry James is free, next time you’re on a jury, REALLY ask yourself what ‘reasonable doubt’ means.

October 24, 2011

Reading about Henry James this weekend reminds me of a thought that I’ve been having for a long time.  The thought is this: if I’m sitting on the jury, and there is not a single eyewitness to the crime, I am already most of the way to having more than a featherweight of doubt that they have the right person.  That is:

Having no eyewitnesses is tantamount to reasonable doubt

This would, of course, be unacceptable to any prosecutor, or the general public.  After all, sometimes there are simply no witnesses to a crime…and if we can’t convict someone for every heinous crime committed, the world would expand far beyond what our small minds are able to comprehend.

But just hear me out anyways.

I have two reasons that no eyewitness = reasonable doubt.

The first reason is practical, a great many false convictions are made where there were no eyewitnesses to the crime, so if we stop prosecuting people where there aren’t eyewitnesses, the rate of false convictions will drop…plummet actually.

Now, maybe we don’t have to go as far as requiring an eyewitness to the crime itself.  But there has got to be some witness at least putting the defendant at the scene.  Also, I use the term “eyewitness” broadly…for instance if a phone record, or something similar, places the defendant at the scene of the crime, at the critical time, I would say that is a suitable substitute for a human being witnessing the defendant.  The point is, its not right for police to just be bringing suspects in for a lineup, when they have three people telling them that the suspect was with them at the time of the crime, and no witnesses telling them that they saw him commit the crime – or even that he was in the vicinity of the crime scene.  That kind of chicanery leads to false convictions…

The Innocence Project has exonerated nearly 300 wrongfully convicted individuals throughout its existence, and a good many of them…I don’t know the exact numbers, but it’s like half…were convicted without eyewitness testimony. (BTW, I interned with the Innocence Project during law school, and I’m proud of their work).  It is my personal belief, though I may be alone, that it is far worse to convict an innocent person of a capital offense and cause them to spend multiple decades behind bars until finally, when the state miraculously “finds” the “lost” evidence and tests it, they get to go back home, than it is to let a guilty person go free for lack of evidence (I’m too lazy to fix that run-on sentence, so I’ll just acknowledge that it’s a run-on in this parenthetical and move on).  The point is, sometimes you just gotta let those hard to reach Pringles go.  Yeah, I know, its terrible to think that a rapist has gone free – but it’s also terrible to rob someone of the middle thirty years of their lives so that we can sleep at night under the false impression that our streets are safe.

The other reason that no eyewitnesses = reasonable doubt is philosophical, and it depends on my definition of reasonable doubt.  For me, reasonable doubt means that if there is some alternative course of events that is not ruled out by the evidence, then, there is reasonable doubt.  By way of example, if a witness says that the defendant pointed a gun at the victim’s head and shot him – there is no rational alternative explanation for the victim’s death.  On the other hand, if a witness says he heard a shot, and then saw the defendant and another man run out of a door and down a hallway there are a multitude of rational alternative explanations as to what actually occurred.

If all the evidence, being weighed together, leaves open some rational alternative explanation as to what actually happened, then there is reasonable doubt concerning the prosecutor’s version of the events.  And where there are no eyewitnesses to any critical part of the crime, then there are clearly alternative rational explanations due simply to the reality that some other person could have occupied the physical space at the crime scene and taken the action of which the defendant is accused.  Thus, if there is no eyewitness to the crime, then there must be reasonable doubt.

Admittedly, being a criminal defense lawyer, my definition of reasonable doubt is somewhat left of the average.  I suppose that’s why we have juries though, right?  Each jury member should weigh the evidence against his own understanding of reasonable doubt.  Some jurors will see things my way; others will see things the way that Henry James’ prosecutors saw them.  But if I’m the attorney, I want the jury grappling with their own definition.  I want them to consider what it means to have reasonable doubt.  Otherwise, the trial becomes a game of Clue and justice suffers.

A disclaimer: I am in no way suggesting that where there is eyewitness testimony, then there can be no reasonable doubt.  Even aside from possible ulterior motives of witnesses there is plenty of scientific evidence concluding that eyewitness testimony is unreliable.  But that is another discussion.  What I am saying is simply that eyewitness testimony (in some form, defined broadly) is a pre-condition to conviction ‘beyond a reasonable doubt’.

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