Defining Reasonable Doubt

Let’s say that it is Halloween.  You wake up to an eerily foggy, cool, brisk, sunrise.  You walk to the kitchen to get your day started.  You start your Keurig and pop in some toast.  Being the good parent and neighbor that you are, you already went shopping for Halloween candy.  You went to the big box store and bought 2 bags of assorted candy.  You open one bag as you turn on the TV to the local news channel.  It is a commercial break. Your toast isn’t ready.  Nor is your coffee. You take out a Nestle Crunch bar, take off the wrapper and bite into the chocolate bar. It tastes smooth and delicious.  The little rice crispies snap, crackle, and pop.   It is officially they start of the holiday season.

Your coffee is ready.  You step outside to pick up the morning paper.  You see your neighbor’s wife, Sarah.  Sarah is getting the paper from the front lawn.  This is odd because her husband, Jeff, always picks up the paper.  You ask Sarah if Jeff is feeling alright.  Sarah tells you that Jeff was vomiting and diarrheaing all night.  He can hardly move. Sarah tells you that he must have had some bad food before having a few Halloween candy bars before falling to sleep.

Your neighbor across the street takes her kids to a private school on the other side of town.  You usually see Beth loading her two kids into the car.  Today, on Halloween, dad only loads one kid into the car.  You learn that Beth is staying home with her other child who fell ill after eating candy the night before.  He too is vomiting.

You walk inside and start eating your toast.  The TV is on commercial again.  You look at your cellphone and notice the unusual amount of Facebook notifications on your neighborhood’s community page.  Your neighbors are talking about how many people are sick in the neighborhood.  Its not many — only about 10 in your large community.  Being nosy, the neighbors are asking each other what their loved ones ate that morning and the day before.  There is one common denominator — Halloween candy bought from the local big box store.

At this very moment you put down that candy bar you were about to finish eating.  You kids come running up to you saying, “Daddy, can we eat some Halloween candy before we go to school?”  You look outside and you see an ambulance blazing down the street with its lights flashing and sirens blaring.

What is your response?  You know they will have a fit if you say no, but you have to.  You have to say no.  You must say no.  There is a chance, a very real chance, that something is wrong with that candy you spent your hard earned money on.  Maybe it has expired.  Maybe it has been poisoned.  You tell you kids that they cannot eat any candy.  You warn them not to eat any candy at school because it may make them very sick — so sick that they will not be able to have a Halloween.

THAT IS REASONABLE DOUBT!  The father in this story has a reasonable doubt about whether the candy has been poisoned.  I recently prepared a much abbreviated version of this story for a criminal theft case that was set for trial in Harris County on Halloween. I came up with this method of explaining reasonable doubt after reading David Ball’s Reptile on Criminal Defense.  For those not in the know, “The Reptile” is a method–arguably the best method-for prosecuting plaintiff’s personal injury, product defect, wrongful death, and medical malpractice cases.  I have attended three Reptile seminars and read a lot of Reptile literature, but I am in no way, shape, or form an expert on the Reptile and I am not teaching the Reptile.  I am just trying to use Reptilian methods to expand on what David Ball has already done, if possible, and bring it up to speed.

In the Reptile, David Ball uses the 1980’s Tylenol scare to explain and demonstrate reasonable doubt. The Tylenol scare happened when several folks died after ingesting Tylenol from what appeared to be previously unopened Tylenol packages.  It turned out that very few Tylenol pills had been laced with a very deadly poison.  Several people died and many became ill.  Ball suggests that criminal defense attorneys should use the Tylenol example in our voir dire conversations (not presentations) in order to awaken the Reptile within each juror.

You see, according to Ball, the prosecution unknowingly awakens the Reptile by its very prosecution of the case.  The government prosecutes the case to protect the community.  As criminal defense lawyers, we must have the paradigm of representing the people to protect the community from lying witnesses, bad science, lousy cops, and overzealous prosecutors. In other words, if it can happen to our client, it can happen to you. If we can get the jury to share this paradigm, our odds of getting a not guilty verdict increase greatly.  *I had this theory from the very beginning of my practice and used it in my very first trial which was a not guilty verdict in the very conservative Montgomery County.*

I love the Tylenol example, but it just didn’t seem to work for me while I was practicing it. Why didn’t it work for me?  For starters, I was not alive when it happened.  I did not feel like I could tell the story convincingly.  I feared that I would get caught by a juror who remembered the epidemic and lose credibility.  Remember, it is all about credibility.  What’s more, nothing awaking the Reptile more than ensuring your children are safe and can live a safe, healthy life.  If you do anything that puts their safety and health at risk, you are not obeying your reptilian brain’s desire to procreate and pass your genes down an infinite number of generations.

So why did I use the Halloween example to demonstrate reasonable doubt and awaken the Reptile? For starters, my case was set for trial on Halloween. Second, we have all heard of Halloween scares.  We have all been warned by our parents how to be extra-careful on Halloween.  Third, not only do children eat the candy, but so do the parents, so it awakens the Reptile’s desire for self preservation and preservation of offspring. The Tylenol example, I felt, did not awaken both Reptilian concerns to as great of a degree.  Next,  I had never seen a reasonable doubt conversation that was anything more than trying to explain black letter law in layman’s terms.  Finally, you can grow the Halloween example larger and larger, with smaller and smaller likelihood of getting ill or dying to demonstrate that even a very small doubt about a concern that is very unlikely to be true can still be reasonable, and THAT is what you need your jurors to understand.

So just how do I plan on doing that?  Let’s jump back into the opening story.  After going through the opening vignette you want to ask questions.  Would you eat that candy from that bag you purchased from the local box store?  Why not?  Tell me more.  Would you allow your children to eat from that bag?  Why not?  Tell me more.  Let’s say this candy illness epidemic is limited exclusively to your neighborhood and candy purchased from that one box store.  Would you allow your children to trick-or-treat in your neighborhood that night?  Why not?  Tell me more.  Would you allow you children to trick or treat on your side of town?  Why not? Tell me more. Would you allow your children to trick-or-treat at all that night? Why not? Tell me more.

Next, you want to go a little higher up in the sky.  You finally catch the local news and there is a breaking report that about 50 people have fallen ill after eating Halloween candy across the city. Some have died.  Would you allow you children to trick-or-treat that night?  Let’s say only 10 people fell ill and one died.  Would you allow your children to trick-or-treat that night? Why not?  Tell me more.  Change it up:  What it the police have limited the poisoned candy to just one brand.  Would you allow your children to trick-or-treat?  What if national news reports say that it is happening nationwide and the odds of being poisoned or dying are very slim. Something like 1 in million.  Would you allow your children to eat that candy? 1 in 50 million?  1 in 100 million?  Why not? How did you reach this decision?  Why did you reach this decision? Was it based on reason?  What is reason?  What is doubt?  What makes your doubt about the safety of the candy reasonable?  Are you telling us that a small doubt can be a reasonable doubt?  Who agrees with this juror? Are you telling us that a doubt about something that is not very likely to be true can still be a reasonable doubt? Who disagrees with this juror?

Before you jump into this story, I think it is smart to ask a series of questions so that the jury can define reasonable doubt for themselves, and then apply the definition to a very real scenario, and then ask a very important follow up question that will hopefully help you challenge your jurors who cannot follow the law and convict on less than a reasonable doubt.  I will not give that question away here.  It is not my right to.  You can ask me if you want and I will send you in the right direction.

I think this is a very effective way to define reasonable doubt.  What do you think?

homemade-level-of-proof-chart

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