Wednesday, August 15, 2018

Inspired by the Manafort Trial, On the Beyond a Reasonable Doubt Standard (8/15/18; 8/17/18)

WAPO reports:  Rachel Weiner, Matt Zapotosky, Lynh Bui and Devlin Barrett, Jurors in Paul Manafort trial send judge four questions, including asking him to redefine reasonable doubt (WAPO 8/16/18 5:33pm), here.  I address all four questions in a subsequent blog:  Comments on Manafort Jury Day 1 Deliberation Questions (Federal Tax Crimes Blog 8/17/18), here.  Since I had already posted on the beyond a reasonable doubt question here, I will just leave that answer here and link it in the later blog:

The Beyond a reasonable doubt question and Judge Ellis' answer as reported in the WAPO article are:
Third, they asked if the judge could “redefine reasonable doubt.” Jurors sometimes struggle with what constitutes a reasonable doubt of someone’s guilt, versus an unreasonable doubt. The judge told them reasonable doubt “is a doubt based on reason,” but added: “The government is not required to prove guilt beyond all possible doubt.”  
Defense attorneys emphasized in their closing argument that it’s not enough to believe a defendant is “likely” guilty or even “highly likely” guilty, using a thermometer chart to make the point.
I offer as an addendum at the bottom of this blog a discussion of Beyond a Reasonable Doubt from my Federal Tax Crimes publication that I discontinued when I began working on the Tax Crimes Chapter in the Saltzman publication on Tax Procedure.  I think the discussion is still good, but without updated cases.


I write today because of the Manafort case.  Yesterday, Manafort's attorneys did not put on evidence in defense and Manafort waived his right to testify.  Technically, the defense rested after the prosecution concluded its case.  The defense would say that they did elucidate evidence in Manafort's favor by cross examination of the prosecution's witnesses which, they will claim, produced some affirmative evidence in Manafort's favor and, in any event, they will claim, precludes the prosecution of meeting its burden to prove guilt beyond a reasonable doubt.

Addendum 2:24pm (EDT): WAPO has here a running report on the Manafort arguments as they progress.  Relevant to the beyond a reasonable doubt standard, the WAPO running report has this:
1:52 p.m.: Manafort attorney says defense put on no evidence because case wasn’t ‘beyond a reasonable doubt’ 
Defense attorney Richard Westling began his closing argument on behalf of Paul Manafort not with specific evidence but broad concepts — presumption of innocence, burden of proof and reasonable doubt. 
“You took a solemn oath” to abide by these legal precepts, he said. “Be steadfast.” 
One juror nodded as Westling emphasized the the fact that Manafort stands innocent. “If you’re thinking right now any of this evidence adds up to anything, you shouldn’t be,” Westling said. “Put it out of your mind.” 
He went on to explain that the burden of proof is on the government, and that the defense “made a decision not to put on evidence because… we believe the government has not met that burden.” 
The burden the prosecutors have to overcome, he explained with a thermometer-like chart, is not that Manafort “possibly,” “probably,” “likely” or “even highly likely guilty,” but that he is “guilty beyond a reasonable doubt.”
I thought readers might appreciate some links to discussions of what proof beyond a reasonable doubt means and how it is explained to the jury.  I first offer some of the more significant discussions I have had on the issue in this blog.  These offerings are in reverse chronological order.
  • Reasonable Doubt and Jury Nullification (Federal Tax Crimes Blog 12/30/14), here.
  • Daugerdas Retrial Jury Instructions - Part 01 Reasonable Doubt (Federal Tax Crimes Blog 11/12/13), here.
  • Proof Beyond a Reasonable Doubt - Ramblings (Federal Tax Crimes Blog 9/1/13), here.
  • Article on Importance of Jury Instructions in White Collar, including Tax, Crime Cases (Federal Tax Crimes Blog 1/29/13), here.
  • Reasonable Doubt and Mickey Mouse (Federal Tax Crimes Blog 3/6/12), here.
  • Reasonable Doubt - What is It? (Federal Tax Crimes Blog 10/16/09), here.
Also for readers interested in more detailed discussions of beyond a reasonable doubt, see the following series of articles.  The authors include two prominent federal judges -- Jack B. Weinstein of the U.S. District Court for the Eastern District of New York (Wikipedia bio here) and Jon O. Newman of the U.S. Circuit Court of Appeals for the Second Circuit (Wikipedia bio here).
  • Peter Tillers & Jonathan Gottfried, Case Comment–United States v. Copeland, 369 F. Supp. 2d 365 (E.D.N.Y. 2005): A Collateral Attack on the Legal Maxim That Proof Beyond a Reasonable Doubt Is Unquantifiable?, Law, Probability and Risk, 135–157 (2006), here.
  • Jack B. Weinstein & Ian Dewsbury, (2006) Comment on the meaning of ‘proof beyond a reasonable doubt’. Law, Probability and Risk, 5, 167–173 (2006), here.
  • James Franklin, Case Comment–United States v. Copeland, 369 F. Supp. 2d 365 (E.D.N.Y. 2005): quantification of the ‘proof beyond reasonable doubt’ standard. Law, Probability and Risk, 5, 159–165 (2006), here.
  • Jon O. Newman, Quantifying the standard of proof beyond a reasonable doubt: a comment on three comments, Law, Probability and Risk  (2007), here.
See also:
  • Jim McElhaney, The Burden of Reasonable Doubt: When a Standard Designed to Protect Defendants Actually Hurts Them (McElhaney on Litigation (October 2011), here.
Addendum 8/16/18 6:00pm:

The following is the text without footnotes of my discussion from my Federal Tax Crimes book (now discontinued).  The text with footnotes may be downloaded from SSRN:  Townsend, John A., Federal Tax Crimes, 2013 (February 5, 2013). Available at SSRN:  I do not present this indented in order to show the block quotes in the original
A. Presumption of Innocence and Guilt Beyond a Reasonable Doubt. 
In a criminal tax prosecution, just as any other criminal prosecution, the Government bears the burden of proving guilt beyond a reasonable doubt.  The Supreme Court has explained the compelling need for this burden as follows:
The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure.  It is a prime instrument for reducing the risk of convictions resting on factual error.  The standard provides concrete substance for the presumption of innocence -- that bedrock “axiomatic and elementary” principle whose “enforcement lies at the foundation of the administration of our criminal law.” . . . “[A] person accused of a crime . . . would be at a severe disadvantage, a disadvantage amounting to a lack of fundamental fairness, if he could be adjudged guilty and imprisoned for years on the strength of the same evidence as would suffice in a civil case.” 
The Court then held that “we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”

Courts and commentators have noted the utilitarian function of burdens of persuasion to a civilized society such as we imagine ours to be.  In criminal cases, societally, it is oft stated that it is better to acquit a guilty person than convict an innocent one; Blackstone even stated that it is better to acquit 10 guilty persons than convict one innocent one.  But, even in this simple – perhaps simplistic – construct for analysis, can or are we willing to say that it is better to acquit 100 guilty persons than convict one innocent person? And, when we layer on the fact that different major crimes present different risks to the community, can the equation of the risks of conviction of the innocent be assessed differently in different cases and contexts?  Specifically, for example, while we might be able to let 10 or even 100 tax evaders go free rather than convict one innocent person of tax evasion, would we want the same odds to apply to persons accused of terrorism?  You see where I am going, since we are never going to have a standard requiring certainty – whatever that is – we are necessarily going to have a standard that allows the innocent to be convicted.  So, what do we give jurors – the usual guilt or innocent finders in criminal cases – to help them keep the risk of conviction of innocent persons to an acceptable level?  We give them an elusive “one-size fits all” instruction on the meaning of beyond a reasonable doubt to which I now turn.

There is no universally accepted instruction to the jury defining reasonable doubt.  Some courts and commentators urge that the bare words – beyond a reasonable doubt — should be used with no attempt to further define the term.  Other offerings of instructions provide more words, if perhaps uncertain guidance and clarity; indeed, dare I say it, there is even reasonable doubt about precisely what reasonable doubt is.  Some perhaps would argue that this is a good state of affairs, for it permits the jury in its collective wisdom to shape the fact finding process to its perception of the needs of the community and the individual charges and defendant.  Still, because jury charges are so important in the process of a criminal trial, I offer a sampling of instructions to the jury.

A leading and oft quoted form book offers the following to assist the jury in applying the reasonable doubt standard:
The question naturally is what is a reasonable doubt. The words almost define themselves. It is a doubt based upon reason and common sense. It is a doubt that a reasonable person has after carefully weighing all of the evidence. It is a doubt which would cause a reasonable person to hesitate to act in a matter of importance in his or her personal life. Proof beyond a reasonable doubt must ... be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his own affairs.  
In 1988, the Federal Judicial Center offered the following instruction:
Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt.  There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt.  If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty. 
 The Fifth Circuit’s pattern jury instructions adds to the mix the presumption of innocence:
The indictment or formal charge against a defendant is not evidence of guilt.  Indeed, the defendant is presumed by the law to be innocent.  The law does not require a defendant to prove his innocence or produce any evidence at all [and no inference whatever may be drawn from the election of a defendant not to testify].  The government has the burden of proving the defendant guilty beyond a reasonable doubt, and if it fails to do so, you must acquit the defendant. 
While the government's burden of proof is a strict or heavy burden, it is not necessary that the defendant's guilt be proved beyond all possible doubt.  It is only required that the government's proof exclude any “reasonable doubt” concerning the defendant's guilt. 
A “reasonable doubt” is a doubt based upon reason and common sense after careful and impartial consideration of all the evidence in the case.  Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs. 
Delete bracketed material if defendant testifies. 
Trial lawyers love to describe burdens in percentage terms.  In the ordinary civil case, the party bearing the burden of persuasion must prove by a preponderance of the evidence which is quantified as evidence which the trier assesses as proving the key fact to be more likely than not – i.e., in excess of 50%.  Now, if you were going to state the percentage for beyond a reasonable doubt, what would it be?  One author states the inquiry as follows:
Consider what “proof beyond a reasonable doubt” actually mandates that the jury do. Surely it requires more proof than the preponderance of the evidence standard, which governs in civil cases. As commonly explained to civil juries, the preponderance standard is quantified as any amount of certainty greater than 50%, and proof beyond a reasonable doubt must mean more than that.  But how much more proof than a preponderance is needed in a criminal case? The quantity of certainty is never quantified; instead, it is kept quite vague. Is 90% certainty required? 95%? 99%? Or could the amount of certainty be much lower, say perhaps 75%? 
Indeed, whatever the “percentage” level of certainty imagined to be inherent in the standard, it is reported that “research has consistently shown that the jurors in criminal cases will often be satisfied with much less certainty than is conventionally assumed.”

Consider again the following from Judge Posner:
Judges, when asked to express proof beyond a reasonable doubt as a probability of guilt, generally pick a number between .75 and .90 (depending on the judge), and jury quantifications are similar.  These may seem shockingly low figures, implying that as many as a quarter of the people convicted of crime are innocent.
Judge Posner notes that prosecutorial selectivity in picking cases to prosecute substantially mitigates the risk that the innocent will be convicted.  Still, assuming that there were no prosecutorial selectivity mitigating factors, are you concerned that judges and jurors in 20 or 25% doubt could return a verdict of guilty in a criminal case? 
 Judge Posner notes that prosecutorial selectivity in picking cases to prosecute substantially mitigates the risk that the innocent will be convicted.  Still, assuming that there were no prosecutorial selectivity mitigating factors, are you concerned that judges and jurors in 20 or 25% doubt could return a verdict of guilty in a criminal case?

Judge Posner’s conclusions are his own, based on his experience and his anecdotal polling of his colleagues.  Other attempts at empirical studies of these issues show that judges and suggest that jurors are all over the lot on the issue.  In one study of his 10 of his colleagues by Judge Weinstein of the Eastern District of New York, “one gave a probability of 76%, one gave 80%, four gave 85%, two gave 90%, and one gave 95%.  In other words, the probabilities hovered around 85%-90%.”  In a larger survey of federal judges throughout the country:
Of the 171 judges who responded, 126 had thresholds that were 90% or higher. Eleven judges had thresholds of 75% or below, one of whom was satisfied with a 50% probability. The other study was conducted among Illinois state court judges. On a scale of 1 to 10, the mean level of certainty in this study was 8.9, with a median of 8.8; 63% of the judges responded with a level of 9.0 or higher.  Most (but not all) judges, then, tend to see the government's burden much the way Blackstone did [about 90%].
  Of course, I noted above that there are unique prosecutorial mitigating factors in tax cases that virtually require that the Government only choose cases to prosecute where the evidence in all except the atypical case will produce a conviction.  This further mitigates the possibility of conviction of the innocent in tax cases .  Moreover, in applying whatever the juries perceive the standard to be (whether it is 80% or 90% or some other number), in tax cases one can argue that a jury will be more like to hold the Government to the burden more stringently than it might for some other type of case (e.g. a terrorist case).

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