By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal
It’s extremely difficult to prove a negative. That’s why our criminal courts don’t require it and the State always has the burden of proof.
A basic example I give jurors is to ask them prove they committed no traffic offenses on the way to jury duty that morning. They very quickly get the point — other than their word, there is no way on Earth they can prove they didn’t run a red light, didn’t speed, or didn’t change lanes without signaling.
Jurors must be educated, though, and an experienced criminal trial attorney knows this. Prosecutors over the yeas have developed subtle ways to undermine this point. They’ll suggest to juries that the Defense has equal subpoena power and that the Defense has the right to call witnesses of their own. I’m not sure what purpose it serves the prosecution to do this — other than to improperly shift the burden to the Defense.
There are some instances where Defendant’s should put on an innocence defense. Testimony from the defendant isn’t legally required under the 5th Amendment, but an accused has the absolute right to testify in their own defense. Testimony of credible witnesses may also help in an innocence defense. Other than that, a thorough investigation of a case may reveal objective evidence which tend to be less refutable.
It is wrong to assume that because you have no evidence of innocence, or an innocence defense wouldn’t seem persuasive that the accused just plead guilty. In a drunk driving charge, for instance, it usually (but not always) makes more logical sense to force the state to prove elements such as intoxication rather than try to show the jury how little a person drank before getting behind the wheel.
*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 about any situation you should directly consult an attorney.