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Ninth Circuit Sends Back Improper explanation of “Beyond a Reasonable Doubt:" Velazquez

The Ninth Circuit vacates a conviction because of an improper closing argument.

The Prosecutor's Misleading Statements

Velazquez was charged with importing controlled substances into the United States.  At trial he took the stand and said that he did not know that the car he was driving contained drugs.  At the conclusion of the trial the court explained the concept of “Beyond a reasonable Doubt” to the Jury:

“Proof beyond a reasonable doubt is proof that leaves you firmly convinced the defendant is guilty. It is not required that the government prove guilt beyond all possible doubt. A reasonable doubt is a doubt based on reason and common sense and is not based purely on speculation. It may arise from a careful and impartial consideration of all the evidence or from a lack of evidence. If after a careful and impartial consideration of all the evidence you are not convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant not guilty.”

The prosecutor then began his closing argument and stated: “Reasonable doubt is something that you make decisions about every single day.”  Defense counsel objected to this.  The district court did not sustain or overrule the objection “but it did instruct the jury to follow its instruction on reasonable doubt and “not as to what any attorney says the standard of reasonable doubt is.”

However the prosecutor went on to say the following:

“It is something that you do every single day. So things like getting up, having a meal. You’re firmly convinced that the meal you’re going to have is not going to make you sick. But it is possible that it might not—that it might actually make you sick.”

“You got in your car or you travel to the court today. It is possible that you may have gotten in an accident, but you are firmly convinced that—the likelihood that you’ll be able to get to court safely.”

During rebuttal, the prosecutor again told the jury that reasonable doubt ‘is something that you use every single day in your life.’ Defense counsel objected that the prosecutor’s argument ‘diminishes the burden of proof.’ This time, the district court overruled the objection and did not admonish the jury.

The Appeal to the Ninth Circuit

On Appeal, The Ninth Circuit Stated the following:

“The prosecutor’s comments here regarding the government’s burden of proof diverged significantly from what we require in a criminal trial. The prosecutor compared the reasonable doubt standard to making decisions like going for a drive or eating a meal—with the confidence that things will not go awry. Such decisions involve a kind of casual judgment that is so ordinary and so mundane that it hardly matches our demand for “near certitude” of guilt before attaching criminal culpability…These decisions do not typically even involve an objective calculation of risk, but rather rest on the fallacious comfort that because these activities did not result in chaos yesterday, they will not today. Such examples are highly inappropriate and misleading.”

The court stated that they were:

“also troubled by the suggestion that reasonable doubt can be compared to an “everyday” experience. The process of adjudicating guilt is a major and meticulous undertaking. People do not, “every single day,” bear the solemn task of examining evidence and determining an accused’s guilt. The comparison—to reflexive, quotidian decisions like “getting up,” “having a meal,” and “travel[ing] to ... court”—is flagrant and seriously distorts the standard. The government’s analogies reflect an effort—even if unintentional—to “reduce [its] burden of proof.”

The Court Stated that the Error was not Harmless

The prosecutors indicated that the error was harmless because the court clarified that the jury was to follow the court’s instructions “and not as to what any attorney says the standard of reasonable doubt is.”  But the Ninth Circuit indicated that the prosecutor provided numerous improper examples without admonishment from the court.  Further, during rebuttal the prosecutor rehashed an identical argument and the court overruled the objection by Velazquez.  This left the jurors with an impression that the arguments were appropriate.  Further, the court found that the evidence was not overwhelming enough to make the error harmless.

The Ninth Circuit Reversed the decision of the District Court.  19-50099

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