EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, December 2, 2020

Supreme Judicial Court of Massachusetts Finds No Error With Prosecutor Telling Jurors Not to Look for Doubt

The Due Process Clause requires that a juror only find a defendant guilty if that juror is convinced of the defendant's guilt beyond a reasonable. Prosecutors and judges can sometimes run afoul of the Due Process when they discuss reasonable doubt in a way that lowers the prosecutor's burden of proof. So, should the following statement by the prosecutor to the jury violate the Due Process Clause?:

Reasonable doubt. His honor is going to tell it's not proof beyond all doubt. It's not a shadow of a doubt or mere doubt. You can't measure it; it's not this big or this big. Because when you think about it, everything that you have not seen with your own two eyes you will have a doubt about, because you haven't seen it yourself. You haven't heard it yourself. But that is not the doubt that the law talks about....And you as jurors took an oath to find the truth. And that's what verdict means; it means to speak the truth. Not to look for doubt. Because if you look for doubt, if that's your mission, then you will find it. But if you search for the truth and you use your common sense and the law that His Honor gives you, I suggest that you will find the truth (emphasis added).

This was the question addressed by the Supreme Judicial Court of Massachusetts in its recent opinion in Commonwealth v. Lester, 2020 WL 6750751 (Mass. 2020).

And, according to the court,

we conclude that the prosecutor did not err in encouraging the jury not to look for doubt. We have previously discerned no error where judges instructed the jury that they need not search for doubt. See Commonwealth v. Watkins, 425 Mass. 830, 836 n.9 & 839, 683 N.E.2d 653 (1997) (no error in instructing jury that “[a] reasonable doubt, for example, is not the doubt that might exist in the mind of a man or a woman searching for some doubt, for some excuse to acquit a defendant”); Commonwealth v. Randolph, 415 Mass. 364, 367, 613 N.E.2d 899 (1993), S.C., 438 Mass. 290, 780 N.E.2d 58 (2002) (no error in instructing, “[Y]ou're not to search for doubt”).

I pretty strongly disagree with the court. I'm actually okay with the holding in Watkins. The instruction referenced in that case is all about warning a juror against conjuring up some imaginary doubt as an excuse to acquit a guilty defendant. But the instructions in Lester and Randolph. The whole purpose of the jury is to assess the evidence presented by the prosecution and consider whether they are left with a subjective state of near certitude of guilt or whether they have reasonable doubt. In other words, they should be searching for/looking for doubt. In my mind, the prosecutor's statement basically asked the jurors to be closed minded and take the evidence at face value. 



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Agree with prof 100% here. He also bobs and weaves when he says “Its not shadow of a doubt or mere doubt” — wait huh? “Mere” doubt is precisely what jurors should look for. Basically he is equating doubt from the extreme ridiculous to wholly justified—then saying it all must be thrown out bc that’s not what you jurors are concerned with. Except one of those is exactly what they should concern themselves with.

Terrible ruling

Posted by: Paul | Dec 3, 2020 3:10:22 PM

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