Guest column

The concept of reasonable doubt is simply nothing more than the concept of hope.

An enterprising and imaginative defense attorney would endeavor to instill hope in his client’s mind, and then try to work out a plan to enable himself to attempt to persuade a jury with this elusive concept.

Defendants are usually desperate enough to embrace this concept; because it equates to hope, and hope is what many defendants so desperately seek. Their desire is that at least one jurist may accept this concept and give himself “that reason” when deciding.

Many people, especially defense lawyers, like to embrace this concept because it gives the impression that there will be fairness applied. In my opinion, it simply does not exist. What does occur, rarely, is that you get lucky or very creative and find an argument that some jurist can use, if he is already looking, to give you that not guilty vote.

Is there any reality in the concept of reasonable doubt? In my opinion, probably not. When you go further and state “beyond” reasonable doubt, you are really stretching it. Does that mean that you should stop trying? Of course not. But, to totally buy into that concept may lead you down an unfortunate path, one that may lead to a dead end.

The defense attorneys that I have worked with over the years, those that I thought of as intelligent and creative, have always sought to uncover every scrap of evidence that they could to attempt to prove their clients innocence. My theory has always been that if I do my very best to try to prove my client guilty, and cannot, then I may accept the premise that he may not be found guilty at trial, but it so often depends on so many variables.

Most people are not stupid, and if you try to force them to swallow a concept that they know is seemingly impossible or implausible, then they may resent you, and by doing so, vote against the concept itself.

The people that are most subjected to rejections, even more so than actors, are defense attorneys. Jurists sometimes look for a reason to reject the defense and by doing so, reject the defendant.

I have found when polling the jurists, the media and the like, that the defense attorneys they most respected and believed, were those who did not try to con or otherwise float doubtful defense theories, but simply tried to defend their clients with the best reasonable contraposition.

All in all, the best persons to ask if they believe in the concept of reasonable doubt are those that are about to be tried, or those who are incarcerated.

We know.

From “Beyond a Reasonable Doubt,” a book of essays by 86 attorneys and other legal commentators published by Phoenix Books, December.

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