Monday, July 5, 2021

Fallacious comforts and reasonable doubt

Before you get up in the morning, do you ask yourself whether doing so is worth the risk? More specifically, do you question whether it is safe beyond a reasonable doubt to get out of bed? When you eat a meal, do you first assure yourself, beyond a reasonable doubt, that the food on your plate will not make you sick? Do you evaluate the risks of driving every time you get behind the wheel of your car?

Surely not. And that is because our decisions to engage in everyday tasks "rest on the fallacious comfort that because these activities did not result in chaos yesterday, they will not today." This fallacy is necessary to navigate the world. But it is not a fallacy we want jurors to indulge when they decide whether a person has committed a crime.

And that is why last month the Ninth Circuit reversed two drug-importation convictions in United States v. Velazquez. During closing arguments in Velazquez, the prosecutor assured the jurors that reasonable doubt is "something you use every single day in your life," offering as examples getting up, eating a meal, and driving a car, even though it's possible that you might get sick or have an accident. But, as the Ninth Circuit explained, "[s]uch decisions involve a kind of casual judgment that is so ordinary and so mundane that it hardly matches our demand for 'near certitude' of guilt before attaching criminal culpability."

The prosecutor's argument was inappropriate, misleading, and reduced the government's burden of proof. "The process of adjudicating guilt is a major and meticulous undertaking. People do not, 'every single day,' bear the solemn task of examining evidence and determining an accused's guilt. The comparison—to reflexive, quotidian decisions like 'getting up,' 'having a meal,' and 'travel[ing] to ... court'—is flagrant and seriously distorts the standard." 

Going to trial any time soon? Listen carefully to how the government talks about reasonable doubt. Object. Ask for a curative instruction. The reasonable-doubt standard is indispensable. Don't let the government dilute it.

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