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  • By: Cory Roth, Esq.
  • Published: November 2, 2017

Criminal defendants tend to be confused about the burden of proof just as much as our jurors, and, honestly, many criminal defense attorneys. If you are charged with a crime in Texas, or anywhere in the United States, it is the government’s (prosecutor’s) to prove your guilt. It is their burden only, and it doesn’t matter if it is a traffic ticket, a marijuana case, a cocaine case, assault charge, robbery charge, or murder charge. It Never Changes.

Criminal defense lawyers never have to prove our clients’ innocence. So why then do so many criminal defense lawyers like feel that they need to prove their client’s innocence? First off, it is natural. In our everyday lives if we see something that indicates something, and we therefore believe it to be true. We don’t presume innocence. We make people prove their innocence. I think it is beat into us because we are so often told that we need to tell out client’s story of innocence.

To be honest with you, I have been sucked into the idea that we have to prove our client’s innocence, and while it has never worked against me or my client (we have always won not guilty verdicts), I have always felt conflicted about taking up that burden. It has certainly made me think and sweat. Trying a case can and usually is so much easier when the only thing you are focused on is making the state meet its burden of proof by proving its case beyond a reasonable doubt. On the other hand, it can be so much more fulfilling to me as a criminal defense attorney, and to you as my client, to tell your story of innocence not just during opening statements, but through cross examining witnesses and putting on our own witnesses.

So what does beyond a reasonable doubt mean? Texas does not let attorneys or judges defense the that saying or the burden. Some lawyers describe what it isn’t to jurors during jury selection by going over all the lower levels of proof. Also, a pet peeve of mine that so many criminal defense lawyers don’t understand is that the level of proof (beyond a reasonable doubt) is different than the burden of proof (always the state’s). Some lawyers also like to push the limit during jury selection to get the jurors thinking about what beyond a reasonable doubt means to them. They may ask, “What are some other words for beyond…a….reasonable…doubt?” When asked the right way, jurors will define beyond a reasonable doubt the right way. It is a concern that can logically be true. How many reasonable doubts does it take the jury to find a criminal defendant not guilty? One. Do all jurors have to have the same reasonable doubt? No. Does the likelihood of the doubt being true matter? No, so long as it is logically possible, the doubt relates to an element the state has to proven, and the state has not ruled out the juror’s concern.

By way of story, my client in my last trial — a possession of marijuana and possession of controlled substances case, my client was pulled over driving a company truck. There was nothing inside the truck identifying my client. The only thing identifying anyone inside the truck identified someone other than my client. With those facts alone, I did not need to tell my client’s story of innocence, all I needed was to demonstrate that the state could not rule out the reasonable possibility that the drugs belonged to someone other than my client. How do I do that? A good criminal defense attorney will ask the arresting officer questions (which are really short statements that the witness must agree or disagree with) such as: The truck was not registered to my client. The truck was registered to John Doe Corporation. It was a company truck. A work truck. Many people have access to work trucks. You don’t know how long my client has driven that truck. You don’t know if anyone else has driven the truck. You don’t know when anyone else drove the truck. You don’t know if there were passengers in the truck. You don’t know how recently there were passengers in the truck. You don’t know how many passengers were in the truck. You did not see my client reach for the drugs. You did not see my client throw anything in the truck. My client was not nervous (I would break this question down). You cannot rule out the possibility that someone else left those drugs in the truck.

Do you see what I did by asking those questions? I forced the prosecutor to answer those questions — and she can’t — she never will — because the officer never asked those questions at the scene. When your criminal defense lawyer asks questions like those I typed out, the witness must either agree and say yes, or look like an asshole or idiot and say no (or even better, try to explain it away). So what do those questions have to do with the burden of proof? The questions and answers show that there are many reasonable doubts, ranging from other people having access to the truck to the officer not seeing anything that would indicate my client knew the drugs were in the truck. And again, each of those statement can be broken down into many reasonable doubts.

I hope this article helped explain the burden of proof to you. Give me a call at (832) 819-5290 if you want to talk about your criminal case whether it be for drug charges, assault, DWI, murder, robbery, sexual assault, or anything in Texas state or federal court.

Cory Roth, Esq.

It would be my great honor, privilege, and responsibility to be
your attorney. As a trial lawyer, the only thing I can do is tell
you how I foresee your case playing out.
(832) 819-5290

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