Jury Decision Based Entirely On Evidence
(Media's Declarations of Innocence Inaccurate)

By: Hugh Duvall

Juries never find defendants innocent. They cannot. Not only is it not their job, it is not within their power. They can only find them "not guilty."

A number of high-profile trials have shaken our country during the past year. As a criminal-defense attorney, in the wake of each I have felt an overwhelming urge to share a frequent part of my closing arguments. It is the point at which I educate jury members to the distinction between their ability to return a verdict of "not guilty" and their inability to return a verdict of "innocent."

In most of my cases, it is the most important piece of information I pass to the jury before it begins its deliberations.

I do not rush out with it. I preface it, slowly and carefully, in an even and solemn voice: A verdict of "not guilty" can mean two entirely different things. It can, of course, mean that you believe the defendant (I would use my client's name) is innocent. However, it can mean something entirely different. A verdict of "not guilty" can mean a verdict of "not proven." Even if you are very sure the defendant is guilty, but the state has not proven it "beyond a reasonable doubt," then it is your sworn duty to return a verdict of "not guilty."

From then on during my closing argument, I use the terms "not guilty" and "not proven" interchangeably. I attempt to hammer home, relentlessly, that the jury's job has very little to do with the concept of "innocence." Its job is not a bipolar one of convicting the guilty and vindicating the innocent. It is one of analyzing what evidence the state has presented and determining whether it is enough to satisfy the jury that there is no reason to doubt the defendant's guilt. It is the jury's job to sniff out the reasonable possibility that the defendant may not be guilty.

This is not simply the message of a die-hard criminal-defense attorney crying out from the wilderness. There are two reasons why it is important for us to realize and articulate the difference between these concepts.

First, the fundamental cog by which our judicial system operates is the jurors, those stalwart, albeit sometimes reluctant, souls who are required to take time from their regular schedules to decide the fate of a stranger. These people must, of course, be free of any bias or prejudice that might influence their ability to decide their cases fairly. Yet, the disregard among the media and public to note the distinction between the concepts of "not guilty" and "innocent" works against this purpose.

Each time a member of the media or other citizen states that William Kennedy Smith or one of the officers accused of beating Rodney King was found "innocent," he is not only incorrect, he also is ingraining within potential jurors a misconception about their role. He enhances the risk that enough jurors on a panel will retire into a jury room believing that it is their task to determine whether there is enough evidence to find a defendant innocent.

While the above is reason enough to motivate us to maintain a clear understanding of a jury's capability, there is another, arguably equal reason. Once a person has been charged with having committed a crime, there is no mechanism by which that individual can prove his innocence. Yes, the law provides that the person is innocent unless proven guilty, but that is a legalism. It is not, nor could it be, a factual statement. The person, in fact, did or did not commit an offense.

The state of Oregon maintains three systems to charge someone with a crime–the grand jury, preliminary hearings and the preparation of a complaint (the last only in misdemeanor cases). In order for an indictment (the piece of paper actually accusing a defendant) to be handed down, either a grand jury (seven citizens selected from the jury pool) must "believe the person is guilty" or a judge after a preliminary hearing must make a finding that "probable cause" exists to charge the defendant–that is, a finding that the defendant is "probably" guilty.

Accused persons, therefore, go to trial with a finding having already been made, albeit in some cases haphazardly, that they are more than likely guilty of the crime alleged. A terrible stain is cast upon them. Even if the jury concludes that reasonable doubt exists as to guilt, it is a stain that will remain forever. Ask yourself if everyone believes that William Kennedy Smith is innocent. Ask yourself the same question of the police officers charged in the Rodney King beating.

The gist of my point is this: As a society, in administering the prosecution function, we must keep at the forefront of our mind that there is no way to reverse the implication of charging someone with a crime. Allowing ourselves to ignore the distinction between a jury's ability to find someone "not guilty" and its inability to find someone "innocent" works against this important interest.

Watch nearly any news program. Read nearly any newspaper. You will find that quotes such as "Mr. Black pleaded innocent" and "The jury found Mr. White innocent" commonplace. This is not inadvertent on the part of the media. It is, in fact, a considered decision to use the word "innocent" in place of the words "not guilty." This policy is to ensure that in the event the word "not" was somehow dropped from the text the individual being discussed would not suffer harm, and, no doubt, that the media source would not suffer a lawsuit.

While this policy is reasonable, its price is news coverage that is less than completely accurate. The media should take every opportunity to remind the public of the reason for its policy. The public should keep that policy in mind. Furthermore, the public should understand that it has no similar policy interests and use the term "not guilty."

NOTICE: Contracted and published by The Oregonian. The purpose of this publication is to provide general information not to provide specific legal advice.

© 2002 Hubert G. Duvall, Jr, Attorney at Law

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