How Prosecutors Turn Evidence of Innocence into Evidence of Guilt

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

Prosecuting lawyers (like any lawyers) are in the business of selling their case to the jury.  To do that, they try to combine the facts of their case with a certain degree of spin or rhetoric to persuade a jury that they have proven their case.

Some of the prosecuting lawyer’s rhetoric, though, is solely designed at spinning evidence of innocence into evidence of guilt — or at the very least making evidence of innocence a ‘jump ball’ as to whether it proves guilt or innocence.

In defense of prosecuting lawyers — I don’t think they fully appreciate exactly what they’re doing.  First of all prosecutors are like any other professional group.  They train, discuss tactics, and share ideas and techniques they find useful.  Unfortunately some also make the thinking error that innocent people don’t get arrested or prosecuted.  When you combine those factors, you get arguments like the ones I’m describing in today’s blog.

Here are some common arguments I hear:

In drunk driving cases:

“Ladies and gentlemen… this defendant doesn’t look bad doing the field sobriety tests, but he’s the type of drunk we need to fear the most because he’s the type of drunk that can find his keys…”

“Drunk drivers can look like anyone.  They don’t look like normal criminals…”

“This drunk driver doesn’t seem too bad on the video because alcoholics know how to mask symptoms of intoxication…”

In Crimes Against People (such as robbery, assault or sexual assault)

“Of course we don’t have much evidence… The defendant is very skilled at choosing the time and place so there won’t be evidence or witnesses…”

“It’s very common for victims to retract their accusations.  They’ve been psychologically traumatized by the defendant…”

“What makes this defendant so dangerous is that he looks like a normal, everyday person…”

Here’s Why I Find these Arguments Distressing:

All of these arguments can be summed up this way “if we have evidence against you, then you’re guilty… and if we don’t have evidence against you… you’re still guilty.”

You can make these arguments about ANYONE sitting in the defendant’s chair in any case regardless of the evidence.  What is worse is that each statement probably does have a nugget of truth from the prosecutor’s perspective and is thus somewhat believable by a jury.  An experienced criminal defense trial lawyer must call the prosecutor out on these types of arguments and expose them for what they are.  Great ways to convict the poor schmo in the defendant’s chair regardless of whether they may be innocent.

Combating these Tactics

Jurors have to be told that, while yes, a person that looks decent on tape but still may be drunk is extremely dangerous — a person that looks good on tape may just be okay to drive too….

…Or that yes, a skilled criminal doesn’t leave much of a trace of a crime — but another reason there are no traces at the crime scene is that the accused might just be innocent…

…Or that yes, an alleged victim may retract an accusation because of stress or coercion — but they might also retract their accusation because it wasn’t true to begin with.

*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 contact an attorney directly.  Contacting the attorney through this forum is not a privileged communication nor does it create an attorney-client relationship.

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