In an ancient post, I promised to provide more information on how to best bring about jury nullification. I will eventually discharge the obligation I incurred by making that promise. But suppose that, for whatever reason, you don't want to aim for jury nullification but do want to give the defendant a chance to appeal. How might you go about doing that? Here's one strategy: express confusion over the vague notion "beyond a reasonable doubt" with the goal of getting the jury to ask the judge to clarify that notion.
Here's why this might work. First, this should not be hard to do. Second, the judge will not be capable of clarifying that notion. If she attempts to clarify it, chances are she'll do such a piss poor job of it that the defense will have grounds for appeal on that basis alone. There's a reason for this. Neither courts nor judges nor jurors have any idea what this term means. (And the reasons for this darken counsel, but we won't explore those now.)
Here are some sample attempts (all taken from Laudan, _Truth, Error, and Criminal Law_, 2006, pp. 36-44):
(2) A reasonable doubt is a doubt based on reason and common sense – the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his own affairs. -Edward J. Devitt et al., Federal Jury Practice and Instructions, 12.10, at 354, 4th ed., 1987
(3) Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible doubt or imaginary doubt. It is that state of the case which after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge. -114 S. Ct, at 1244
(4) By reasonable doubt is not meant that the accused may possibly be innocent of the crime charged against him, but it means some actual doubt having some reason for its basis. -Burnett v. State, 86 Neb. 11, 1910, regarding jury instructions given in Burnett v. Nebraska
Laudan mistakenly seems to think that (4) is a pretty good attempt, but this is because he confuses "having a reason for" with "being able to offer one's reasons". Or at least, he makes this confusion if he thinks (as his discussion suggests) that he wouldn't count one as offering a reason for the proposition that someone is lying if one simply said "it seems to me that he's lying, even though I can't tell why it seems to me that he's lying".
In any case, each of (1) - (4) is wholly bogus, and if a judge tried out any of them she'd be producing decent grounds for an appeal. Moreover, if she remained silent she would in some (but not all) jurisdictions also be producing grounds for appeal.
Comments