Why Reasonable Doubt Matters (and Why You Should Serve on a Jury)

I’ve been on a jury twice. The first time was the week after I finished finals after my first year of law school. (“Do you think your year of law school will interfere with your ability to reasonably assess the evidence and the law?,” an attorney asked me during voir dire. “I sure hope not,” I said. And they kept me on.) The second was this week. (I put down on the jury questionnaire that I now have the JD, but I guess having a law degree isn’t as much the kiss of death for jury selection as lawyer friends tell me.)

The first case was a murder. The second was an assault. We found the defendant not guilty in both. In my mind, neither was close. But both cases are also good examples of how this process can work, how it can go wrong, and why you shouldn’t try to get out of jury duty.

It’s a tale of two features of that system, both of which push against just outcomes. The first is that prosecutors aren’t honest with jurors about the quality of the case they’re presenting and often count, for victory, on jurors ignoring how high of a burden reasonable doubt is.

In a criminal trial, that’s the standard the prosecution must meet to turn the presumption of innocence into a guilty verdict. They have to show, through the evidence they’ve presented at trial, that the defendant committed the charged crimes beyond a reasonable doubt. This doesn’t mean that the defendant could have committed them, or even that he probably committed them, but that any doubt that he’s guilty is an unreasonable one.

That’s a high bar. Prosecutors know it. But they also know, and my experience shows they’re right, that it’s not a standard all jurors want to have in criminal proceedings. Rather, many jurors are comfortable putting something away based on evidence that can’t clear reasonable doubt.

In the first trial I was on, back in law school, a fight broke out at a Halloween party in a rougher neighborhood of Denver. The defendant and his buddy had shown up at the party, probably uninvited, and had brought handguns with them. When things got heated and people started swinging, both of them pulled out their guns and started firing. One person ended up dead, and another lived, but with a bullet in him that couldn’t safely be surgically removed. The defendant admitted to having a gun. He admitted to firing it. He denied hitting anyone. Which is of course what he’d say.

The trouble for the prosecution was they didn’t have his buddy, who had run off and the cops never found him. Yes they presented the case as “We got the perp,” and not, “We got a guy who might’ve been the perp, but it might’ve also been this other guy, and we have no evidence that’ll clear it up.” But they charged him with a crime that requires that the jury find, beyond a reasonable doubt, that this defendant fired the gun that killed one person and injured another.

It was pretty clear cut. Not guilty. Except, when I, elected foreman because I had a year of law school, called for a blind vote, we had a “Guilty.” When I asked the person to make their case, the juror said, to justify a decision to find this young man guilty and to send him to prison for much of the rest of his life, that “Good people don’t bring guns to parties.”

That’s what the juror wanted to convict on. Not “beyond a reasonable doubt,” but, “He’s a bad guy and bad guys belong in prison.”

It’s clear the prosecutors didn’t lose because no one would mistake the meager evidence they presented as telling a story beyond a reasonable doubt, but because they didn’t luck into enough people who didn’t care. That there was even one was abhorrent. This juror, had they got their way, would’ve been committing a significant moral wrong and would’ve been extraordinarily blameworthy. And the prosecutors, who have an evidentiary burden, and a duty to take it seriously, shouldn’t have charged what they did, but instead charged something more fitting the evidence they in fact had.

The prosecutor in the case this week tried to play a similar game. It was an assault. Second degree. The defendant claimed the victim hit him and he shrugged it off. He got hit again, and pinned down, so he struck back to get away. The victim claimed the defendant started it. We had only the words of those two—and inconsistent testimony from the latter. The defendant admitted to hitting, but raised a self-defense claim, and the injury to the victim was minimal. Assault requires knowingly striking, and having intent to cause injury. Self-defense, in Colorado, says roughly that if you are being unlawfully struck, or fear such an attack is imminent, you don’t have a duty to retreat, but can strike back to protect yourself, so long the force you use is reasonable in the situation. (If someone slaps you, you can’t shoot them and then claim self defense.)

I won’t bother with all the details of the case and the evidence presented, except to say that the prosecutor did not remotely meet her “beyond a reasonable doubt” standard, and it was pretty clear throughout that she knew it. So she tried—and I think we can assume intent—to pull a fast one. In closing arguments, she put up a slide with the elements of second degree assault under Colorado law as articulated in our jury instructions given to us by the judge and agreed to by the parties. She told us we were going to “walk through them carefully.”

They include that it was in fact the defendant and on the time and in the place alleged, that bodily injury occurred, etc. But one of them, and it’s critical, is that the defendant had the “intent” to cause the injury. The defendant had told us, and evidence hadn’t been given to sufficiently dispute it, that his intent was only to get this person off of him, and that he chose the method he chose because he thought it would be the most effective given the circumstances, while least likely to cause injury. His self-defense claim was that any injury that did occur was unintended and reasonable in response to being attacked himself.

But here’s the thing: She skipped over intent. It was numbered in the list of elements (#3, in this case), and she told us about #1, and about #2, and then told us about #4. She wanted us to forget about intent. There’s really no other way to explain it. She wanted us to convict because he admitted to using force, bad people use force, and bad people should be convicted.

And, again as foreman, and again after taking a blind vote, three jurors were ready to convict. Luckily, it took only 30 minutes of deliberation for everyone to come around to “Not Guilty.” Luckily, this particular jury saw through it. (She also just did a bunch of bad lawyering throughout, including “accidentally” publishing—i.e., showing to us on the jury—photographic evidence the judge hadn’t yet approved for publishing. “Would you like to object?” the judge asked the defense attorney. “It’s a little too late for that now, judge,” he said.)

The first problem with the system, then, is that there are prosecutors willing to try to get around their evidentiary burden by hoping jurors will lower the standard for “bad people,” or by trying to mislead the jury into ignoring the standard. It didn’t work either of these times, but that’s a sample size of two, and in both I needed to explain the law and standards, as given to us, to people who didn’t initially, or refused to, understand them. And I somehow snuck on with a JD.

The second problem is that the reason both of these came to trial, and the reason both defendants were found not guilty, is because those defendants, and their lawyers, had the courage to call the prosecutor’s bluff. Most cases don’t go to trial. In most cases, the prosecutor says, “Here’s a lesser charge you can agree to accept so you can avoid the risk of getting found guilty of greater charges at trial.” It’s called plea-bargaining, and it’s a prosecutor’s favorite tool. First, because getting a plea takes a whole lot less time and money than a trial. Second, because you don’t need to convince a jury. You don’t need to prove beyond a reasonable doubt, you just need to scare a defendant into thinking it’s not worth the risk to test whether your evidence will be convincing to an overly-credulous or hasty-to-convict-bad-people jury. And because defendants are scared, and tired, and facing potentially years in prison, the “How about I cut you a deal?” sounds awfully tempting. The prosecutor holds all the power, unless someone calls their bluff.

If more defendants had the courage these two did, or if more were encouraged by their defense attorneys, or if more prosecutors saw the immoral nature of coercive plea-bargaining with their case isn’t great, then more cases would go to trial, and appear in front of juries, and prosecutors would have to pick their battles more carefully, and maybe only charge when they think they can prove it beyond a reasonable doubt. They’d have to hold themselves to the standards they’re duty bound to hold themselves to.

But this is also why, if you’ve read this far, you shouldn’t try to talk your way out of jury duty the next time you’re called. I know it’s frustrating to spend days doing this instead of working, or being with family, or having a good time. I know courthouse food is bad, and testimony is often boring. (Law & Order makes trials look a good deal snappier and more dramatic than they are.) I know you’d rather be doing something else. But if you’ve read this far, it’s because you care, at least a little, about the kinds of issues at play in a criminal trial, and the principles of justice that motivate—or ought to motivate—them. And if all of that is true, then taking a day, or two, or four to listen, and assess, and hold prosecutors to the standards they’re supposed to be held to is a small way of seeing justice done. It’s a small way of correcting the system. Small because it won’t fix the system. Your appearance won’t right the ship of criminal justice. But it makes a difference. And it makes a huge one for the man or woman who took his or her case to trial, and who deserves to be found guilty only if it’s beyond a reasonable doubt.