“When we say that-‘I do not know’ – we are apt to feel like it means we are unintelligent. “Yet you must approach that task with a willingness to speak what I, as an old man, can tell you are the hardest words in life to utter: ‘I do not know.'” He touches Pinky’s shoulder as he passes her. Turow’s protagonist Stern chooses the ‘not proved’ closing argument and the author granted permission for the Temple ADVOCACY AND EVIDENCE blog to excerpt it and then seek commentary from advocacy experts on what they thought. Kiril Pafko, a former Nobel Prize winner in Medicine, is faced with charges of insider trading, fraud, and murder, his entire life’s work is put in jeopardy, and Stern decides to take on one last trial. As described on Turow’s webpage, the story is as follows:Īt eighty-five years old, Alejandro “Sandy” Stern, a brilliant defense lawyer with his health failing but spirit intact, is on the brink of retirement. These competing views came into stark relief when Scott Turow released his most recent book, THE LAST TRIAL. You’ll hear no testimony from the taxi driver – or anyone – that rules out this reasonable doubt. If any of those four points show any possibility based on reason, that the taxi driver might be wrong, just maybe, about even one of those points, there’s reasonable doubt. Ball goes on to illustrate this in an opening statement for an imagined case where there are 4 grounds on which a reasonable doubt may be founded: David Ball, in his book DAVID BALL ON CRIMINAL DEFENSE, writes persuasively that “you’re on trial solely to show that the Prosecutor cannot rule out reasonable doubt…” Id., 3. That view – an innocence story is smarter than a failure of proof claim – is not one uniformly held. And while we all may extol the virtues of the protection of liberty that flows from the reasonable doubt standard, when the jury deliberation room closes there is also the awful responsibility engendered by the fear of crime, the avoidance of risk to others, and a concern of facing blame if a person who is acquitted subsequently harms another. Why? An argument of ‘they can’t prove it beyond a reasonable doubt’ may come across like a schoolyard taunt – my client might have done this, but they can’t prove it so you jurors have to play the game and let a potential criminal go free. It is conventional wisdom that a story of actual innocence – there was no crime, the wrong person is on trial, the accused acted in self-defense – is the preferred modality in criminal cases.
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