Witness Credibility And The Presumption
Of Innocence: Challenging Standard Pattern Instructions Which Define The Trial
In Terms Of "Seeking The Truth"
by Thomas
Lundy
As a legal principle the presumption
of innocence is straight forward: The prosecution has the burden of proving
every essential fact beyond a reasonable doubt and the defendant has no burden
to produce any evidence at all. (In re Winship (1970) 397 U.S. 358 [90
S.Ct. 1068, 25 L.Ed.2d 368]; U.S. v. Maccini (1st Cir. 1983) 721 F.2d
840.)
However, in practice this hallowed
principle may be counter-intuitive to jurors who are naturally prone to view
their role as seeking "the truth." Therefore it is important for the
jury instructions to assure the jurors understand that ". . . the question
in a criminal case is not whether the defendant committed the acts of which he
is accused. The question is whether the Government has carried its burden to
prove its allegations . . . ." (Mitchell v. U.S. (1999) 526 U.S.
314, 328 [119 S.Ct. 1307; 143 L.Ed.2d 424].) In other words, the instructions
should avoid language that perpetuates the juror’s intuitive inclination to
make the trial a search for the truth.
For example, it is not unusual for
standard pattern instructions to define the jury’s duty in terms of seeking
the truth. (See e.g., Idaho Criminal Jury Instructions, ICJI 204
[Concluding Remarks (How To Deliberate)] (Idaho Law Foundation, Inc., 1995)
["For you, as for me, there can be no triumph except in the ascertainment
and declaration of the truth"]; North Carolina Pattern Jury
Instructions - Criminal, NCPI-Crim 101.36 [Highest Aim Of Every Legal
Contest] (TRCC, 1999) ["Yours is a solemn duty to let your verdict speak
the everlasting truth"]; Ervin’s, South Carolina Criminal Jury
Instructions 1-7 [Jurors As Sole Judges Of Facts] (South Carolina Bar,
1995) ["Your object is to find the truth"]; Iowa Criminal Jury
Instructions 100.18 [ Duties Of Jurors - Selection Of Foreman/Forewoman]
(Iowa State Bar Association, 1997) ["Your sole duty is to find the truth
and do justice"].) Similarly, many standard pattern instructions define
the jury’s duty in terms of their "duty to decide from the evidence what
the facts are." (See e.g., 1st Circuit Pattern Jury Instructions -
Criminal 1.01 [Duties Of The Jury] ¶ 2 (2002); see also O'Malley, Grenig
& Lee, Federal Jury Practice and Instructions 10.01 [Opening
Instruction] p. 256 (West, 5th ed. 2000).)
Another more subtle example occurs
when a defense theory such as alibi or third party guilt is presented. The very
nature of such a defense theory – e.g., "I was not there" or
"Joe Doe committed the crime" – tends to frame the issue in terms
of seeking the truth. Hence, it is crucial in such cases, to define the
relationship between the presumption of innocence and the defense theory –
i.e., "If you have a reasonable doubt that the defendant was present you
must vote to acquit." (See e.g., Lundy, "Third
Party Guilt: The Crucial Role Of Defense Theory Instructions,"
July 2003, www.juryinstruction.com.)
Another subtle shifting of the trial
to a truth seeking forum can happen when jurors are given the standard pattern
instruction on witness credibility. Of course, it is difficult to not address
witness credibility in terms of who and what to believe. Yet asking the jurors
to decide whether to believe or not believe a witness is just another way of
asking them to determine "the truth." For example, if the key
prosecution witness has identified the defendant as the culprit then juror
belief of that witness would establish the truth of the charges. And similarly,
if the defense theory is alibi, disbelief of the defense alibi witness could
pre-ordain a guilty verdict. Hence, focusing the jurors’ inquiry on which
witnesses to believe can improperly shift the burden of proof.
For example, in Cool v. United
States, 409 U.S. 100 (1972) the jurors were instructed to ignore the
defense theory evidence unless they believed beyond a reasonable doubt that it
was true. The Supreme Court held that the defendant’s right to present
exculpatory testimony to the jury is "impermissibly obstruct[ed]" if
such testimony is "totally exlud[ed] . . ." (Cool v. United States,
409 U.S. 100, 104.) "Moreover [such a result] also has the effect of
substantially reducing the Government’s burden of proof . . . By creating an
artificial barrier to the consideration of relevant defense testimony . . .
[it] reduced the level of proof necessary for the Government to carry its
burden. Indeed . . . the effect . . . is to require the defendant to establish
his innocence . . ." (Cool v. United States, 409 US at 104.) "[S]uch
a requirement is plainly inconsistent with the constitutionally rooted
presumption of innocence . . ." (Ibid.)
It follows that witness credibility
instructions may be constitutionally deficient if they are read to: 1)
authorize the jurors to ignore a defense witness unless the defendant proves
the witness to be truthful or 2) authorize the jurors to convict based on a
prosecution witness simply because the defense has not proven his or her lack
of credibility. Instead, the credibility instructions should be related to the
presumption of innocence in the same way that defense theory instructions are.
Furthermore, such instructions should
also incorporate the well established principle that witness credibility is not
necessarily an all-or-nothing preposition and that some portions of the
testimony of a witness may be given more or less weight than others. (See e.g,
O’Malley, Grenig, & Lee, Federal Jury Practice and Instructions,
15.01 [Credibility Of Witnesses -- Generally] (West, 5th ed. 2000); see also 1st
Circuit Pattern Jury Instructions - Criminal 1.06 [Credibility Of
Witnesses] (1998); 6th Circuit Pattern Jury Instructions - Criminal 1.07
[Credibility of Witnesses](1991); 8th Circuit Model Jury Instructions -
Criminal 1.05 [Credibility Of Witness] (2000); 9th Circuit Model Jury
Instructions - Criminal 1.7 [Ruling Of Objections] (2000); 11th Circuit
Pattern Jury Instructions - Criminal Basic 5 [Credibility of Witnesses] ¶
1 (1997); Iowa Criminal Jury Instructions 100.5 [Evidence] (Iowa State
Bar Association, 1991); Ohio Jury Instructions, Volume 4 - Criminal, 4
OJI 405.20, [Credibility] ¶ 4 (Anderson, 2000).)
SAMPLE INSTRUCTION # 1:
Even if you are uncertain whether or
not [the defense evidence] [the testimony of a defense witness] is truthful in
whole or part, you are not obligated to convict. If, after considering all the
evidence, the defense evidence [or any part of it] leaves you with a
reasonable doubt as to any element of the charge you must vote to acquit.
On the other hand, if you are
uncertain whether or not to believe a prosecution witness whose testimony is
essential to the proof of any element of the charge, you must vote to acquit.
SAMPLE INSTRUCTION # 2:
The defense is not obligated to
prove the truth of its evidence. Instead the prosecution must prove that its
evidence is sufficiently credible, when considered in light of the defense
evidence, to prove every element of the charge beyond a reasonable doubt.
SAMPLE INSTRUCTION # 3:
The defense has no burden to prove
the truthfulness or credibility of defense witnesses and/or the falsity or
lack of credibility of the prosecution’s witnesses. Instead, the prosecution
has the burden of proving that the evidence is sufficiently credible to prove
every element of the charge beyond a reasonable doubt. If, after considering
all the evidence, any juror who has a reasonable doubt as to any [essential
fact] [element of the charge] must give the defendant the benefit of that
doubt and vote to acquit.
SAMPLE INSTRUCTION # 4:
If you are uncertain whether or
not to believe a prosecution witness whose testimony is essential to the proof
of any element of the charge, you must vote to acquit.
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