“Reasonable Doubt vs. I Believe He’s Guilty”
State vs. Osman, January 15, 2016
I recently met with some young adults. The conversation turned, as it often does when learning that I practice criminal defense. One person shared a discouraging experience while participating as a juror, for which he was selected as foreman. It was a difficult case for the prosecution: no direct observation of the crime charged, no admission or incriminating statements, and a tenuous connection between the defendant and the circumstantial evidence. The State argued opportunity, in essence, “who else would do it?”
The initial juror poll was split: 7 for acquittal and 5 for conviction. The foreman was pleased that even those in favor of conviction grudgingly recognized the instruction to put no weight in the defendant not testifying. However, the foreman was alarmed one juror, upon questioning why she favored conviction, stated she did not like how the defendant “looked!” To this juror, the defendant “looked like he did it. I really believe he would do something like this.” Fortunately, the juror was candid, instead of holding this opinion to herself. All the jurors were then able to talk freely about their feelings concerning the defendant’s appearance. They decided, as scruffy as the defendant looked, this was not relevant. They acquitted him.
Defense lawyers greatly fear jurors who “really believe” the defendant committed the charged offense in this context. Defense lawyers fear that a juror’s personal belief gets confused with the juror’s belief that the admissible evidence is enough for proof “beyond a reasonable doubt.” The following pattern jury instruction was given in the very recent case of State v. Osman, 192 Wn.App 355 (2016).
A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly, and carefully considering all of the evidence or lack of evidence. If, from such consideration, you have an abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt.
The “abiding belief” must come from consideration of the evidence, nothing else. Secondly, “abiding belief” is a lasting belief that remains, rather than a belief that is grounded in the moment. This second point is exactly what the defense lawyer tried to hammer home to the Osman jurors in closing argument, as quoted below:
But what jury instruction number three the last sentence reads is that “if you have an abiding belief of the truth of the charge” what does that mean? It means that if you find [Mr. Osman] guilty the minute you walk out of this courthouse that’s your decision you cannot change your mind and look back and say I wonder if I made a mistake.
A month from now when maybe you’re talking to people about your experience you can’t go back and say maybe I made a mistake.
A year from now –
The State prosecutor interrupted, objected, stating that the defense argument “was not accurate.” The trial court sustained this objection. The Osman appellate court held that sustaining this objection, a serious thing when done in closing argument, was in error.
The court in Osman found the defense argument was not a misstatement of the law, and that an “abiding belief in the truth of the charge connotes both duration and the strength and certainty of a conviction.” Osman, at 375. Defense counsel could “emphasize the need to reach a subjective state of near certitude of the guilt of the accused.” Looking back a “year later” did not overstate or improperly quantify the State’s burden. Osman, at 375.
In a footnote, the Osman court quoted from Webster’s Dictionary that “abiding” has a definition which includes “continuing or persisting in the same state without changing or diminishing.”
Defense trial counsel did a wonderful job for Mr. Osman, as well as for defense lawyers in the future, since there is more clarity in the concept of “abiding belief”: a belief that comes strictly from the evidence that endures, perhaps forever. Since courts continue to use the abiding belief language when the court is not required to do so, arguments such as the one proposed by this fine trial attorney must be used so that personal beliefs are not relied upon.
If you have a criminal matter you would like to consult with a lawyer about, please contact Jan Olson at Ellis, Li & McKinstry, PLLC at (206) 682-0565.