Legal Ethics Corner

Ethics Corner is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.

Analogies Intended to Illustrate “Proof Beyond a Reasonable Doubt”
May Lead to a Finding of Prosecutorial Error and Even Reversal

The Courts of Appeal must feel like their message is falling on deaf ears. Despite warning from reviewing courts, well-intentioned prosecutors occasionally employ oversimplified diagrams and puzzles in an attempt to “explain” the reasonable doubt standard to juries. It is indeed appropriate for prosecutors to discuss reasonable doubt — after all the burden of proof rests on the prosecution alone and it is the most important rule of criminal law. Even more, defense counsel does it and naturally both sides want the jury to understand the CALCRIM 220 jury instruction, which reads, in part:

Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.

But, People v. Otero 2012 Cal.App. LEXIS 1128 provides yet another cautionary tale about the risks of going beyond the “four corners” of CALCRIM 220 and misstating the law, which misleads the jury and is prohibited under California Rule of Professional Conduct 5-200. 

In Otero, the prosecutor displayed in closing argument a PowerPoint slide containing the shape of California but with some of the large cities in the wrong locations and what appeared to be Nevada beside it. The bottom of the diagram read, “Even with incomplete and incorrect information, no reasonable doubt that is California.” (Id.) After some discussion about the slide, the prosecutor rhetorically asked the jury, “Is there any doubt in your mind . . . that that state is California?” Defense counsel’s objection was sustained and the trial court ordered the slide be removed. The trial court then gave a curative instruction and read the correct reasonable doubt standard to the jury. (Id. at pp. 16-17.)

On appeal, the defendant argued that the prosecutor’s comments entitled him to a new trial. Though the Court of Appeal disagreed and found harmless error due to the trial court’s curative actions and because it was not a close case, the Court of Appeal did find that the prosecutor’s slide and comments amounted to “misconduct.” It is error for a prosecutor to misstate the law during argument, especially where the misstatement reduces the burden of proof necessary to overcome the presumption of innocence. (Id. at p. 9.)

The problem with the diagram in Otero was that it contained a “readily identifiable icon” — California, which “leaves the distinct impression that the reasonable doubt standard may be met by a few pieces of evidence” and further invites the jury to jump to conclusions. (Otero, supra, citing People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1267.) (Even though the burden actually can be met with just a few pieces of evidence, like DNA alone, it is not wise to illustrate that point with a concocted diagram that does not accurately reflect the standard of proof.) But even more alarming, the slide in Otero contained false information suggesting that reasonable doubt may be reached even if some of the evidence is false. Other reviewing courts have found that similar diagrams, charts, or puzzles tend to reduce or lessen the standard and, in some cases, suggest that there is a quantitative measure for proof beyond a reasonable doubt, which is not the case.

Though Otero did not present any novel point of law, it was certified for publication simply “due to the number of cases that come before [them] wherein prosecutors have used . . . diagrams or puzzles in connection with arguments [to the jury] about proof beyond a reasonable doubt.”  (Id. at p. 7.) The Court of Appeal went so far as to warn: “Prosecutors would be wise to avoid such devices. Otherwise a conviction on a closer case may be jeopardized . . .” Otero, supra, 2012 Cal.App. LEXIS 1128, 17.)

One of the joys of prosecuting a criminal case is letting the creative juices flow while crafting and delivering a closing argument — the facts and law are weaved together to captivate and persuade the jury. But a prosecutor is well advised to not get too creative with the reasonable doubt standard.

At the same time, a prosecutor must meet the standard head-on in a professional way that avoids a misstatement of the most important law pertaining to the case. For instance, a prosecutor should emphasize that the jury must carefully compare and consider all the evidence presented and that they must conclude both: (1) guilt is reasonable; and (2) innocence is unreasonable, and that they must acquit if innocence is reasonable. And the prosecutor must marshal the facts to explain why innocence is implausible. (Getting Reasonable Doubt Wrong: The Puzzling Statue of Liberty Decision by Deputy District Attorney Mike Quesnel, Did You Know…, a California District Attorney Association publication, Nov/Dec 2009.) These concepts can be easily conveyed through the facts of any given case and do not require the assistance of a diagram or puzzle.

-- Bryn Kirvin

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**