Watering Down the Burden of Proof

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549


The burden of proof in a criminal case in Texas is “Proof beyond all reasonable doubt” of all the elements of an offense.

The courts in Texas used to reason that, “A ‘reasonable doubt’ is a doubt based on reason and common sense after a careful and impartial consideration of all the evidence in the case. It is the kind of doubt that would make a reasonable person hesitate to act in the most important of his own affairs.”  Geesa v. State, 820 S.W.2d 154 (Tex. 1991).

While this definition, like any other definition, wasn’t perfect — it was still very high and more importantly wasn’t subject to being manipulated consistently by prosecutors or criminal defense lawyers arguing their case.  The definition was open and shut.

In 2000, The Texas Court of Criminal Appeals changed it’s mind and ruled in Paulson v. State, 28 S.W.3d 570 (Tex. 2000), “We find that the better practice is to give no definition of reasonable doubt at all to the jury.”  Despite the fact there are legal definitions for other lesser burdens of proof in civil cases, family cases, and CPS cases, the Court reasons in criminal cases that, “It is ill-advised for us to require trial courts to provide the jury with a redundant, confusing, and logically-flawed definition…”

So today, despite the mountains of case-law, research, and scholarly articles that define proof beyond all reasonable doubt, Texas courts today routinely instruct juries that on the single most important burden in a criminal case that they can simply define proof beyond all reasonable doubt as they want.  Basically the jury can make up the rule as they go along.  Experience tells me that generally favors law enforcement.

And prosecutors have, over time, increasingly seized on this glaring weakness.  Maybe it’s just me, but I’ve noticed more and more that prosecutors are dedicating time in jury selection, opening argument and closing argument to lowering the burden of proof on themselves rather than focusing on the facts of the case.

Examples include showing unfinished puzzles to prospective jurors and suggesting that because they can still make-out an image even with the large missing pieces — that the unfinished puzzle represents proof beyond all reasonable doubt; or repeatedly dedicating time in opening and closing argument not to the evidence in the case — but to giving the jury their own theory of what “beyond a reasonable doubt” should mean (and it’s always an attempt to lower the burden).

Getting the jury to understand the significance of having a high burden of proof and de-bunking the State’s creative attempts at lowering the burden is the challenge of every criminal trial lawyer.  Experienced criminal defense lawyers do everything they can to make the state accept — not shirk — their burden of proof.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice on any specific matter you should consult an attorney directly.

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