San Diego Criminal Lawyers Blog

If you are headed for a criminal trial, you are relying on your attorney to create reasonable doubt of your guilt in the minds of the jury. What does that mean, and how is it achieved? 

The Meaning of Reasonable Doubt

The prosecution has the burden of proof, meaning they must present proof that you are guilty beyond a reasonable doubt. In other words, the jury must be definitively convinced that you are guilty. If they have any doubts as to your guilt, they must be based on common sense and reason, not simply speculation. Their doubt can be grounded in evidence–or the lack thereof—all of which must have been weighed with vigilance and impartially. Anything short of finding reasonable doubt means a jury must find you guilty. What does that mean for your defense attorney?

Crafting Reasonable Doubt 

The importance of the fact that the law considers you innocent until proven guilty cannot be understated, and proving guilt beyond a reasonable doubt—an extremely high legal standard—is the burden of the prosecutor. Intended to protect innocents from wrongful conviction, the reasonable doubt standard can be difficult to achieve. That being said, your defense attorney will assault the prosecution’s case on numerous levels in order to demonstrate that the prosecution did not prove guilt beyond a reasonable doubt.  Some strategies might include:

• Challenging witness credibility by emphasizing a witness’s criminal history, hidden motivations, or potential biases that might sway their testimony;
• Highlighting any procedural errors made by police, including there being issues with the legality of a search, a failure to Mirandize you, or mishandling of evidence, for example;
• Pointing out issues with the analysis of the evidence by bringing in expert witnesses who interpret the evidence differently or who question the soundness of the analysis or the science behind the technology;
• Underscoring inconsistencies in the prosecution’s case, such as conflicting witness statements or ways in which various evidence points to different conclusions;
• Emphasizing the lack of convincing evidence provided by the prosecution and insisting that the prosecution did not meet its burden of proof;
• Providing a strong alibi for you, showing how and why you could not have committed the crime;
• Offering alternate theories of the case by suggesting different timelines, suspects, or motivations that seem plausible.

Goals

Naturally, any defendant is hoping and praying for an acquittal, allowing you to go on with your life and put the trial behind you.  Other favorable scenarios that are possible a strong defense is presented include: 

• Dismissal: The judge might find that the prosecution simply cannot meet the high burden of proof and could dismiss the case before it ever gets to the jury.
• Plea Bargain: The prosecution could fear a shift in the jury toward the defense and offer an advantageous plea deal for you to consider.

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The implementation of social media by prosecutors and police to investigate and prosecute criminal activity has seen a marked increase in recent years. Because relatively few legal restrictions on the use of such media exist for them, it’s an easy access point. Social media—including posts in places like Instagram and Facebook, texts, and emails, can provide a range of potential evidence that can be used by police and prosecutors to build a case against any given suspect. Social justice advocates and others, though, have concerns that vulnerable fragments of society are being marginalized and stigmatized when social media is used in this way. Public defenders, as well, have grievances related to their disadvantage when having access to certain social media. 

How is Social Media Impacting Investigations?

There are several ways in which law enforcement can use social media during a criminal investigation: 

• Determining the location of a suspect through geo-tagging; 
• Monitoring posts for evidence of criminal associations or activities;
• Interfacing with suspects using undercover profiles;
• Influencing the direction an investigation takes.

Additionally, since many law enforcement agencies have their own public social media sites these days, they can paint a picture of who they believe is involved in crime, which often fortifies stereotypes. One study, in fact, found that although Blacks made up just 20% of those arrested for those crimes,  they were called out in about one-third of posts related to crime.

Using it as Evidence in the Courtroom

When prosecutors introduce evidence from social media, it can be very damaging to defendants. Many assume that social media accurately reflects an individual’s reality, even though we know that a lot of bravado and swagger goes into posting, as people attempt to impress various audiences. Without question, the social norms dictating behavior in various communities could easily be misinterpreted, leading to suspicion and negative conclusions directed at young Black men and others. This has been a consistent concern in gang cases and in cases related to sexual violence.

Unequal Access

Much of this type of evidence is protected by privacy laws from non-government agencies, which are therefore barred from accessing it. Instead of getting the cooperation given to law enforcement in so many of these cases, defense attorneys find themselves struggling to get social media companies to share information. Even when they do get access, it is often very limited, making it much less useful in court.

Defendants Should Avoid Social Media

After being charged with a crime, defendants are encouraged to stay away from social media because it will likely be monitored by opposing counsel. Anything prosecutors get their hands on could later be presented in a negative light.  Best for unwitting defendants to avoid giving prosecutors ammunition to use against them in court. Continue reading

What would you do if you came upon a dead body? Call 911, of course! As much as that is the proper thing to do (what else would you do, after all), it’s a bit alarming to know that police departments across the country have been participating in training classes designed to help them determine the innocence or guilt of a 911 caller, simply by listening to the 911 call. People are going to prison based largely on the analysis of these calls. This is even though many consider the science behind 911 call analysis to be shoddy, at best. 

The Assertions

Tracy Harpster, the creator of the theory that a 911 analysis can detect guilt in a caller, claims that by studying 20 variables in a 911 call, one can determine a caller’s involvement in a homicide. That is right; simply by going through a checklist related to the manner in which a caller relays events, their speaking cadence, their grammar, the degree of urgency in the call, and more, analysts can determine guilt. After studying 200 calls, some of the conclusions include:

1. Callers who comment on the victim’s eyes are generally guilty;
2. When a caller asks if they should touch the body, it is an indication of guilt;
3. Callers who say, “huh?” are more likely to be guilty;
4. Guilty callers refer to blood, while callers who are innocent will refer to bleeding;
5. About eight in ten callers who ask for help immediately are innocent;
6. Guilty callers acknowledge that someone has died, while innocent callers cannot accept that fact;
7. Discussing an earlier conversation between oneself and the victim with the dispatcher indicates guilt.

Questions About the Science

There are several issues related to Harpster’s study. Harpster documented 100 calls that had been analyzed (and later another 100), though he provided no transparency relating to whether those calls were selected randomly. Also unknown is whether analyzers were aware of the outcome of the cases prior to conducting the analysis. Additionally, only calls by sober English speakers were included in the study. There were no guidelines to address issues related to a host of potential caller characteristics, including anxiety, cognitive issues, education level, speech impediments, and those for whom English is a second language, for example. 

Study Replications

Attempts have been made to replicate Harpster’s study, but none of the follow-up studies involved significant numbers, and some were related to other areas of the law, including cases of missing children and cases of military law enforcement. Not a single study has topped 200 participants in a study sample—and at least one study conducted by the FBO found major contradictions in their conclusions.  They stated that using the analysis could lead to major bias in conducting an investigation. 

One More Thing…

Harpster is making plenty of cash on his little theory—charging thousands of dollars for each 8-hour training class for over a decade. Then, those involved in the training are permitted to show up in court and testify as expert witnesses. This, despite the fact that the intricacies of human thought and behavior are boiled down to 20 markers in a decidedly charged situation, makes little sense to begin with. Continue reading