Here’s a legal fiction that we live with: Defendant is accused of murder. Defendant is on probation while he is alleged to have committed this crime. The state presents an eyewitness to the crime. The jury disbelieves the eyewitness and returns a verdict of not guilty. Later, relying on that very same evidence, a judge finds the defendant guilty by a preponderance of the evidence of violating his probation and sentences him to 8 years imprisonment.
What is wrong with this picture? Legally, there is nothing wrong. There are different standards of proof. A jury must find a defendant guilty beyond a reasonable doubt and a just must only find that the defendant violated his probation by a preponderance of the evidence.
In a case like this, however, it is interesting to analyze this further. All that can be gleaned from the news story about the state’s case is that it turned on the testimony of the eyewitness. The jury disbelieved the eyewitness, finding her account incredible. For the jury, there were only two options: either they believed her or they didn’t. They didn’t go back to their deliberating room and decide that they “didn’t believe her beyond a reasonable doubt”. Normal people don’t think like that; lawyers do. The jury certainly wasn’t sitting in that room saying: “well, it’s more likely than not that she was telling the truth, but it isn’t likely beyond a reasonable doubt”.
So they disbelieved the eyewitness. Zero credibility. They acquitted.
Yet, the judge, as was his right, believed the witness. Again, I don’t think a judge is sitting there thinking “It is more likely than not that she is telling the truth”. Either you believe the witness or you don’t. (I understand that you may believe parts of the witnesses testimony, but the jury clearly didn’t believe the part that had the defendant committing the crime and yet the judge did.)
So the judge is essentially telling the jury: “You got it wrong. I, one person, am right and you, six people, are wrong”. He’s allowed to do that.
Essentially, the man was acquitted and convicted based on the exact same evidence. Regardless of standards of proof, that should not be allowed to stand.
Wow.
We always have probation revocations months before trial, so that situation would never happen in my circuit. But if for some reasons, the revocation was scheduled afterwards.. the judge would bend over backwards to uphold the jurors ruling. Elected judges never piss on jurors.
I think you misunderestimated the jury and the defense’s advocate at trial. The jury didn’t “not believe” the eyewitness’s testimony, rather they didn’t believe it to such a degree to exclude the possibility that the state’s witness may have been mistaken.
The issue isn’t a duel between credibility of the state’s & our witnesses, rather it is a duel between whether the state can remove every “gnawing” in jurors’ guts as to guilty and whether they can’t. We are talking about heady stuff here, whether a man should lose his liberty, not a beauty contest between whose evidence seems more reasonable.
I’m not sure I follow. Are you saying this result is okay?
You don’t think that a jury is sophisticated enough to think, “she was probably telling the truth but we have some doubt, so we are voting not guilty?”
Well, let’s think that out. Assuming that this is only an ID case, the jury either believes her or not, right?
If they think she was probably telling the truth, then what is the doubt?
I just can’t get past the underlying assumption that they believed her, but didn’t believe her enough.
I could be completely wrong, but I don’t think people work that way when asked to make judgments about the truth or falsity of a statement.
Such is the risk you run when you commit a crime and get probation.
But let’s think about this further–probation can be revoked for actions that are not crimes, and what’s the standard of proof there–preponderance of the evidence. So what you’re saying is that the standard of proof should change, dependent on whether something got put in front of a jury? Or are you saying that the state is estopped?
I guess I understand your concerns, but I think that your reaction, like your reaction to the Troy Davis case, is a little over the top.
A very interesting question. I think like many of the other posters I disagree with you. A jury could reasonably make a determination that, given a close case, it was better to err on the side of caution and decide that the government did not prove its case beyond a reasonable doubt. A good defense attorney could easily say, well, this isn’t a question of “more likely than not.” Particularly if there was an expert testifying on the question of, say, cross-racial identification. That does not appear to be the case here, but we are talking about a murder case, and jurors might be very hesitant about convicting someone of murder if they have any lingering questions about eyewitness testimony.
The last I checked Prof. Berman was reporting that the 6th circuit had granted an en banc rehearing on this question. I don’t know if the issue was resolved or not. Very interesting, in light of Sixth Amendment case law, which continues to evolve and change.
There is a case in Connecticut law from the past few years where a guy on probation violates it by committing some sort of assault (on his landlord I believe) but the charges are either dropped (because there was not enough evidence to prove beyond a reasonable doubt or by jury) or dismissed (he completed some sort of counseling and the charges were dismissed), but the judge found by preponderance of the evidence that probation was violated and sent him to jail…
I’ll try to see if I still have the caption. I know it was upheld on appeal.
Another issue here is the power of the courts to enforce their orders. The conditions of probation are courd orders, and courts really cannot be bound by what the prosecutor does or what juries do.
I think I agree with Gideon on this one. There is a difference between being convinced that the state has proven each element beyond a reasonable doubt and being convinced that a witness’s testimony is factually accurate beyond a reasonable doubt.
Rather, what we’re asking the fact finder in a VOP or a criminal trial to do is to first make factual determinations about the evidence: did this witness actually see the defendant commit this crime; does any other evidence link the defendant to the crime. THEN, we’re asking the fact finder to determine if the state has proven that the defendant was the perp. beyond a reasonable doubt.
I agree that it’s a legal fiction to say that a jury decided to believe that the witness saw the defendant commit this crime but was not convinced beyond a reasonable doubt that the defendant committed the crime.
I think it is only logical that what went on in that jury room was that when deciding whether the witness actually saw the defendant commit the crime, the answer was, we don’t know – and we can’t know because the identification is too unreliable. Why would this decision change if the state’s burden was proof by preponderance of the evidence??
I think it’s problematic when a judge makes a finding of fact that is contrary to the jury’s finding. Because I believe that the jury could have only concluded that the witness’s identification was unreliable (and therefore expressly rejected the state’s urging to find that the witness did see the def. commit the crime), I do not believe the judge should be able to determine that the witness did see the defendant commit the crime in another proceeding.
Miranda, why is the court necessarily bound? Probation revocation can happen for a non-crime. The standard there is preponderance of the evidence–why does the standard change simply because things have been put in front of a jury?
And what about the “probation is a court order” rationale I mentioned.
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Since you believe that the jury in this case merely faced the yes/no decision of whether to credit the witness, and that the special standard of proof for criminal cases was not relevant, I assume that you would not have had a problem if the Judge had instructed the jury under the wrong standard of proof (preponderance) rather than the right on (BRD), right? Just harmless error, right?
Strange — first time I’ve ever heard a defense attorney say that.