Everyone knows that, in our system, to convict of a crime requires that the fact finder determines guilt beyond a reasonable doubt. I have written before about the concept of reasonable doubt. Reasonable Doubt - What is It? (10/16/09), here.
Today, I refer readers to an excellent discussion of the reasonable doubt defense where the defense's case is weak in terms of affirmative evidence. Does the defense lawyer do his client a service by making the central theory of the case that the the prosecutors did not prove the case beyond a reasonable doubt? To state the proposition starkly, can the defense lawyer make a credible argument that the prosecutors may have proved that the defendant was more likely than not guilty, but they did not prove that he was guilty beyond a reasonable doubt? I hope readers will instinctively realize that this type of argument is weak, even if presented some other way (say, not acknowledging that the prosecutors made a more likely than not case and emphasizing only that they did not prove guilt beyond a reasonable doubt).
A defense lawyer might be tempted to do this where the case is really weak. I presume that the defendant did not take the stand in such a case because of the risk of making the prosecutor's case stronger. A jury may be convinced of guilt beyond a reasonable doubt by disbelieving the defendant. The jury may wonder why the defendant did not take the stand to proclaim his innocence, but a judge will instruct the jury that they can draw no inference from the fact that the defendant did not testify. Rather they must look to the quality of the evidence actually presented in determining guilt beyond a reasonable doubt.
In this situation, how credible is the defense attorney's argument that the jury should not find guilt beyond a reasonable doubt? Keep in mind that the argument can be presented to the jury only after a motion for acquittal has failed on the ground that a reasonable jury could not find guilt beyond a reasonable doubt.
I refer the readers to an excellent discussion of the issue. Jim McElhaney, The Burden of Reasonable Doubt: When a Standard Designed to Protect Defendants Actually Hurts Them (10/1/11), here.
Oh, and Mickey Mouse? Read McElhaney's article.
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