By Collin County Criminal Defense Lawyer Jeremy Rosenthal
It’s obviously important to know your adversary, your adversaries tendencies, and how your adversary thinks. Having been a prosecutor, it’s easy for me to place myself in their shoes to analyze how I’d have prosecuted the case against my client were the roles reversed. Today I’ll discuss the Top 5 most common tactics we see in criminal prosecution I see on a regular basis.
Criminal prosecution is a difficult and noble profession. The vast majority of prosecutors are honest, hard working and consciences. The rules are (in some ways) much more restrictive against prosecutors who have extremely high expectations of honesty and integrity whereas a defense lawyer usually has an immediate uphill climb with juries. While creativity is heralded in criminal defense — it is frowned upon in criminal prosecution (often unfairly).
Though I can easily nit-pick prosecutorial tactics and paint them as unfair… probably none of the techniques I describe below were created or have evolved from malicious intent, rather they were created by advocates who may not fully appreciate the harmful effect some of their tactics may have.
With that out of the way, let’s review the top 5 tactics prosecutors use in trial:
5. “Liar Liar Pants on Fire”
Proffering a defense in a criminal trial is extremely difficult. If you think about it, it’s almost impossible to do without a prosecutor being able to accuse your client, his friends, family or anyone testifying on their behalf of being a liar. It’s really a built-in, automatic rebuttal when someone takes the stand to say “my friend wasn’t drunk we he left the bar” in a DWI trial, or “I was with my husband the time you say he was sexually assaulting the accuser,” or “my wife bought that scarf three weeks ago from your store… she wasn’t shoplifting.”
What many jurors don’t realize is this built-in tactic is the exact reason we have the right to remain silent.
4. Spinning a Lack of Evidence, Neutral Evidence, or Evidence of Innocence into Evidence of Guilt For the Jury.
One of the more frustrating techniques I come upon is where a prosecutor infers evidence which obviously points to innocence actually points to guilt.
A common example in DWI cases is where the person looks good on the video… prosecutors frequently argue this is evidence the person has a high tolerance for alcohol abuse. It’s possible in some cases this argument may be true. Then again, what they’re really saying the accused person is just guilt regardless of the evidence. If they look drunk — they’re drunk and if they look sober — they’re drunk.
What about a situation where there are no witnesses such as a mugging in an alley except the accuser? With little or no corroborating evidence, a prosecutor might argue – it is because of Defendant’s skill at being a good criminal he was able to commit this crime and not leave a trace.
In cases with medical evidence such as sexual assaults — where a forensic exam shows no trauma — prosecutors are very quick to point out this does not exonerate the accused. It takes positive evidence for the accused and turns it into a “tie” or inconclusive.
Spinning evidence of innocence into evidence of guilt is a recipe for wrongful convictions. Read the facts of cases from inmates who get exonerated after decades and you’ll see a continual pattern of virtually all evidence being subjective conjecture or horribly flawed eyewitness testimony. No evidence means no evidence.
What is more upsetting about this tactic is it is really prohibited by the Texas Rules of Criminal Procedure Rule 2.03 (b) which does not allow any officer of the court to “impair the presumption of innocence.” When evidence of innocence is being spun into evidence of guilt — I’d say that provision is being broken.
3. Feigned Neutrality
Prosecutors are taught to cover concepts such as the presumption of innocence, the defendant’s right not to testify, and the burden of proof being very high in their arguments and jury selection presentations. The cursory discussion has the effect of making them seem even-handed to the jurors.
Like a politician who makes a broad statement he’s for one thing… then promptly does another, a prosecutor talks about the defendant’s important rights briefly and then pays them lip service for the rest of the trial.
Experience has taught me brushing over a defendant’s constitutional rights without any context or explanation is a sure way to have a jury ignore them.
Further, prosecutors are quick to point out they have a legal duty to see justice is done and not pursue convictions. The problem is this doesn’t exactly square with an adversarial system nor does it adequately account for the human tendency to be competitive.
Many prosecutors have never done any type of work as attorneys except to prosecute. They only listen to the police version of events. They’ve never had a parent, spouse, or loved of someone accused cry in their office that all of their rights are being violated. That dynamic can create an “echo chamber” where they trick themselves into thinking everyone is guilty.
While prosecutors have a duty to pursue justice and not convictions — many simply don’t think anyone arrested is innocent. The mindset police never arrest an innocent person makes the duty pursue justice very hollow.
2. Shifting the Burden to the Defendant
It’s virtually impossible for a Defendant to prove they’re innocent of an accusation. Think of how impossible it would be to prove you’re innocent of making a bad lane change if you were accused of it. You’d have no video evidence or other documentary evidence supporting your case at all. You’d only have your word — or the word of a passenger in your car. That defense is a loser (see #5 above, Liar Liar…).
Prosecutors routinely shift the burden, though, in very tacit ways. One common method is during jury selection prosecutors will explain Defendant has a right to discovery under the Texas Penal Code and the prosecutor has no such right. Another is the Defendant has equal subpoena power.
Both statements are true and leave an impression of rules that are even or even turn the district attorney’s office into being victims of an unfair process.
These impressions are highly misleading, however. First — the accused gets information because (as explained above), the prosecution is charged with proving an affirmative action. Defendant is not required to prove a negative. Second, Defendant’s “equal subpoena power” is extremely hollow considering the police and government have virtually unlimited investigatory resources compared with virtually none of the defense.
1. Lowering the Burden of Proof
This is easily the No. 1 tactic prosecutors use to secure convictions. Prosecutors are trained to lower the burden on themselves and many of them don’t even appreciate this is what they’re doing.
The burden of proof in a criminal case is “beyond a reasonable doubt.” This phrase used to be defined for jurors as, “..the kind of doubt that would make a reasonable person hesitate to act in the most important of his own affairs.” In 2000, the Texas Court of Criminal Appeals did away with this rule and allowed jurors to define it how they chose fit.
An extremely common example used by prosecutors — especially in DWI cases — is a likening the standard of proof beyond a reasonable doubt to an incomplete puzzle where you can still make out the over-all image (usually of a whale or a handgun). The prosecutor explains there may be missing pieces, the jurors still don’t have a “reasonable doubt” as to the over-all picture.
Jurors find this explanation simple and highly persuasive but the puzzle is problematic. It’s flawed assumption is proving a crime is a general proposition… instead of a specific proposition with fine details. It lowers the burden of proof because you could remove over half the pieces to a picture of a giant whale and still be certain it’s a whale. But what if instead of a puzzle a case is more like a math equation where we’re missing just one or two key numbers? The remaining pieces of the equation become worthless because we can’t be sure of the outcome or how to get there.
*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 should be considered legal advice. For legal advice about any case you should contact an attorney directly.