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Criminal Trials – How To Create Doubt For A Not Guilty Verdict!

By January 13, 2024February 13th, 2024Criminal Defense

I am Jeff Hampton with Hampton criminal defense attorneys, Is it possible to create doubt for a not guilty verdict? The simple answer is yes it is but it’s so very important one of the most important parts of a criminal trial is jury selection you’ve got to find out who’s for you who’s against you and you have to educate the jury and yes there are certain tactics you can take to actually persuade jurors to see doubt around every corner.

Now listen one of the things we are going to talk about here is I am asked this question all the time is it really possible to convince a jury to find doubt in a criminal case and particularly educating them to do so during jury selection so that they will see your evidence from a different perspective? Remember under state and federal law the prosecution must always prove each and every element of the crime that is being charged Beyond A Reasonable Doubt.

The problem is I’m going to talk about this concept of Beyond A Reasonable Doubt which is enshrined in our law in state and federal law and the burden of proof by which the state must prove cases and I’m going to also weave in this concept of presumption of innocence that all of us are afforded in a jury trial and help understand the way to convince jurors that someone get that someone uh must be proven that every element must be proven Beyond A Reasonable Doubt and to help them find doubt when they’re looking at evidence.


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Now here is the problem. Particularly in Texas, you cannot define what Reasonable Doubt is. So many jurisdictions you cannot do this so you cannot actually give the standard by which the jury makes their decision. Think about this for just a minute how hard this is for a juror and a criminal attorney.

This can be a good and bad thing for the defense. It is bad because we do not have a standard but sometimes it is good to be able to make sure and show a jury exactly the standard, they are supposed to work from in order to determine someone’s fate. However, it can be a good thing for a seasoned criminal defense attorney that knows how to craft a very powerful and persuasive discussion in jury selection to persuade your jurors to find doubt around every corner.

Now think about this for a second. The prosecutor, the judge, and the defense attorney will tell you the standard will not be able to at any point in time in a trial in Texas be able to tell you the standard by which you are to determine whether you are going to convict someone or not. It is astounding to me to think about this – there is no specific definition of Beyond A Reasonable Doubt in Texas for which someone can make a decision about whether someone should spend life in prison or not spend life in prison.

So, the problem with that is when this sort of situation comes up you know what ends up taking place and the individual juror will decide based on their own definition of Beyond A Reasonable Doubt. They literally fill in the blanks and can come up with whatever they want so the point on this is with that in mind I want to share with you some very key jury selection techniques that I’ve used in the past that experienced criminal defense attorneys and attorneys in my Law Firm have used to provide a strong defense to someone in a trial to help that individual to try to get the best chance of receiving a not guilty verdict.

Now I’m going to give you some examples of how to weave this presumption of innocence with the standard of proof Beyond A Reasonable Doubt to hopefully be able to show a jury how to see the evidence that’s going to be coming their way as you move into opening statements and direct examination of witnesses so let’s start by examining an example of a murder case where self-defense is being argued.

I’m going to use this as an example here of a conversation we had with a jury during jury selection so one of the things I do is I look over and I’d say – listen the client here Miss Jones is not required to prove anything in her case. Here is where I start with that presumption of innocence.

First, I help them understand that the client sitting here, the accused, is presumed innocent. She does not have to prove anything, especially not whether she shot in self-defense. That is not her burden of proof. In fact, it is the district attorney’s responsibility to prove that Miss Jones did not act in self-defense. This is an intriguing aspect of self-defense, as it necessitates the government to prove beyond a reasonable doubt that she did not act in self-defense. I make sure to emphasize this to the jury, and I explain why it is our standard. It is because in our country, individuals charged with a crime are not obligated to prove anything. I engage the jurors by asking, “Does that surprise you, sir? How do you feel about that, Miss Peterson? Miss Smith, does it surprise you that individuals accused in our country are not required to prove anything?”

You will still encounter individuals who will express surprise and say, “Yeah, that surprises me because I really think they should be required to prove their innocence.” It is important to recognize this prejudice held by that person against the accused, and it becomes necessary to remove them from the jury, either through a cause challenge or by utilizing a peremptory challenge. However, we then delve into the discussion of the presumption of innocence. I have already covered this topic in a previous video that aids in convincing the jury of your innocence, and I encourage you to refer back to it. We acknowledge the challenge in jurors embracing the presumption of innocence, as they do not personally know the accused. They have not had the opportunity to sit down, have lunch, or engage in conversations with them. Consequently, it becomes difficult for jurors to believe in someone’s innocence. In fact, during this conversation, I openly admit to the jury, “We really don’t do that, do we? It is not something that comes easily to us. In fact, we tend to presume guilt. We do it all the time when we encounter internet news or articles stating that someone has been arrested for a particular crime. It’s a common occurrence.” I even provide examples to illustrate how frequently we jeopardize ourselves.

One of the best examples I used during a jury trial is when I remind people about the Duke lacrosse team case. If we go back in time, I know it kind of dates me a little bit, but there was the entire Duke lacrosse team that was accused of rape. I am telling you, the entire country believed they did it. However, it later turned out to be a fraud. These guys did not do anything wrong. In fact, they were never given the presumption of innocence. It was only determined later that they were innocent, and people were shocked by that because most people had already labeled them as guilty.

Another example is the JonBenet Ramsey case. Everyone believed that the parents must have killed JonBenet Ramsey. However, many years later, it was discovered through DNA testing that there was DNA associated with a different person. This clearly proved that the parents did not commit the crime of murder with JonBenet Ramsey.

Furthermore, we often come across cases where projects like the Innocence Project are able to exonerate people who were serving life sentences or on death row, proving that they had done nothing wrong. Initially, people strongly believed that they were guilty. They were absolutely convinced that these individuals had committed the crime.

I connect these concepts to my client because it is crucial for people to believe in the innocence of the accused. The jury must believe that the accused is innocent before they can apply the concept of proof Beyond A Reasonable Doubt. Here is how I address the concept of Reasonable Doubt:

I address the jury and say, “Listen, I want to remind you today that the life of Miss Jones is in your hands. It truly rests upon your understanding of a few words – Beyond A Reasonable Doubt. Your comprehension and application of those four words will determine whether she regains her freedom or goes to prison. Can you imagine what it feels like to have your life and future dependent on the definition of those four simple words? Beyond A Reasonable Doubt. By bringing this up, I’m placing the jury in the shoes of my client, subtly helping them understand the weight of the situation.”

Can you imagine what it must be like to sit here charged with a crime and realize your fate rests on the definition of Beyond A Reasonable Doubt? One of the things I tell them is that the law does not allow me to provide a definition. So, I go down the list and ask each juror for their definition. For example, Miss Jones, could you please give me your definition of Beyond A Reasonable Doubt? Each juror will share their own definition, and they will all be different every time.

Then, I ask another juror to provide their definition. Can you imagine what it feels like for Miss Jones, the accused, sitting over here, to hear each of you give a different definition of Beyond A Reasonable Doubt? Each of you has a different standard by which you will judge her guilt or innocence. Take a moment to imagine how that might make her feel. Mr. Thomas, can you admit it to me, do you see the confusion here? Do you see how difficult it is to determine whether someone is rightfully convicted or exonerated when there are different definitions provided by all twelve jurors?

This situation is quite challenging. Many people immediately realize the significance of having different standards and perspectives. It is amazing, and it terrifies me to think about it. All of us have different standards, and we are using these different definitions for Beyond A Reasonable Doubt in court. I am sure Miss Jones is feeling terrified, as many jurors will also acknowledge. If I were innocent and wrongly accused, hearing people provide me with different definitions for Beyond A Reasonable Doubt would leave me feeling terrified and confused about the outcome of the trial.

I ask the jury to imagine how Miss Jones feels when she hears you providing these different definitions. Then, I will try to give them an example. How many of you have experienced being certain about something and then suddenly becoming unsure? One example I use is setting the alarm before going to bed. You think you did it, but there is a nagging doubt. So, what do you do? You reach over and check it. How does that make you feel? You believed you did it, but there was still doubt, and that doubt may have been reasonable.

Without providing a specific definition, I want to gauge how jurors define Beyond A Reasonable Doubt. Some jurors have expressed that if something is not proven, but they still feel okay about it, then it is beyond a reasonable doubt. Listen, if you are facing criminal charges, you want to ensure that is how they will judge you, and you want to eliminate any biased jurors from the panel.

There is two ways to get somebody off your jury: Strike For Cause – your attorney can find out that that person cannot follow the law and you can get them off the jury because they will not follow the law. Number two is what’s called a Peremptory Challenge which means it’s a preferential challenge which means you don’t like something about what they’ve said about how they’re going to judge you and you can kick them off the jury for that purpose so it’s important that you’ve got to get these people talking so that you can understand enough about them to keep the ones that are good for you and get the other ones off the jury as best you can.

So, one of the things we do is explain that the law does not permit me to provide a definition of proof Beyond A Reasonable Doubt. However, it is the prosecution’s responsibility to prove the case Beyond A Reasonable Doubt. I then proceed to educate jurors. Here is what happens: I ask them to envision a situation where they are in the jury room after hearing all the evidence. They are sitting around a large table, have elected a foreperson, and begin deliberations. During deliberations, someone turns to them and says, “Miss Jones claims self-defense, but she didn’t prove anything. She never testified or said anything. The state presented its case, and I’m not sure if I believe it or not, but since she didn’t do anything, I believe she’s guilty.”

I will go around the jury and say, “Now, sir, imagine that’s where you’re at. Put yourself in the future, in that situation. What do you say to that juror?” Sometimes, I can tell if a particular juror has paid attention to what is going on and if they are educated. Now, I want to educate and empower them on how to advocate for the accused in that jury room. I will tell them, “But, sir, isn’t it true that the state has the burden to prove the case Beyond A Reasonable Doubt? Isn’t it true that the accused does not have to prove anything? So, what are you going to say to that juror if they come to you and say that?” Well, I am going to tell them, “You’re not willing to follow the law. I cannot believe that you are going to try to bring that up. The judge told you; the prosecutor told you, even the defense attorney told you that this is the standard by which we have to judge people.”

You are literally providing the arrows and the bow for your potential jurors who are on your side and will fight for the rights of the accused. They are in that jury room being told they are guilty by someone else who does not like the accused in a jury trial. So, it is important to share that sort of information. Now, finally, here is one of the things that I like to do: You can empower a juror to own their verdict, and here is one of the most effective things I have seen happen, whether it is a misdemeanor or felony trial. If it is a felony trial, you are going to have twelve jurors. If it is a misdemeanor trial, you are going to have six jurors in Texas. Here is the way we do it: I will go around to the entire jury and say, “Listen, I want to remind you, ladies and gentlemen, we’ve gone over all these concepts. Each of you has your own definition of what proof Beyond A Reasonable Doubt is. Each of you is looking at this and understands where you stand in this process and how important it is to give the accused the benefit of the doubt. But can I remind you, each one of you owns 1/12 of this verdict. In fact, you and you alone have the power to stop an unjust conviction.”

When you get back to that jury room, I want to know, will each and every one of you, Mr. Smith, Mr. Thomas, Miss Franklin, promise me that you will stand by the courage of your convictions? And if you believe Miss Jones to be innocent, if you believe she is not guilty, will you promise me that you will stand by the courage of those convictions and not allow anyone else to waver you in your beliefs?

And this is really important because many people ask, “Why would you do that?” I have even had other attorneys question it. They say you might invite a mistrial. What if you have a hung jury and not everyone agrees on a unanimous verdict? The reality is, I do not care. All the defense needs is one juror to hold out and say, “I’m not going to convict someone.” And it is true. It only takes one juror to stop an unjust verdict. And in that situation, many times, once the case is declared a mistrial, the defense or the prosecutor will often come back to the defense attorney and either drop the charge or significantly reduce it. A criminal defense attorney in Fort Worth can provide many more options to their client to shield them from any future consequences. So, it is really important.

And look, it is a constitutional provision. It is very real. Each juror has the ability to hang tight, hold fast in their belief that the individual is innocent. And at the end of the day, it is important to remind them to stay strong in that jury room.

Will you promise me, sir, that if someone starts yelling at you across the table, saying, “Why don’t you just give in? Because all the eleven of us think that he is guilty and you are just saying that he is not guilty,” you will hold to the courage of your convictions and not let anyone else change your verdict? I will go around the horn and get that information from each juror. If I start seeing one saying, “Well, I don’t…” then I will know I have a weak-minded juror, a follower and not a leader, someone who will not stand up for the rights of another person. This allows you and your attorney to make informed decisions about who to keep and who to strike from the jury panel. So, owning your verdict, 1/12 of the verdict, can be used effectively in a jury trial.

Listen, I hope this has been effective and helpful for you. If so, please like this video and subscribe to our YouTube channel. I am Jeff Hampton, a criminal defense attorney at Hampton Criminal Defense Attorneys in the North Texas area. If you or a loved one are facing a crime in North Texas, we offer a free consultation. I hope this information has been helpful and educational for you. I look forward to seeing you in our next video series. Thanks.

Jeff Hampton

After getting his Juris Doctor from the University of Houston Law Center, Jeff Hampton began practicing criminal law in Texas in 2005. Before becoming a felony crimes lawyer, he worked as a prosecutor for the Tarrant County District Attorney’s Office – experience he uses to anticipate and cast doubt on the arguments that will be used against his clients. Over the course of his career, he has helped countless Texans protect their rights and get the best possible outcome in their criminal cases. He has been named one of the 3 Best DUI Lawyers in Fort Worth, recognized by Expertise, National Trial Lawyers, Avvo, and others, and he is Lead Counsel rated.