McElhaney on Litigation

The Burden of Reasonable Doubt: When a Standard Designed to Protect Defendants Actually Hurts Them

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Photo by Rick Allred

McElhaney’s Greatest Hits: Jim McElhaney’s first-ever Litigation column for the ABA Journal was published in the October 1987 issue. It appeared on page 110 with no particular fanfare. But it was the start of a 25-year run for McElhaney that finally will end next year. During that quarter-century, McElhaney’s straightforward advice on trial practice became one of the most popular features in the Journal, and we’re not letting him go out as quietly as he came in. So over the next 12 months, the Journal will reprint some of McElhaney’s “greatest hits,” featuring his alter ego Angus and the other lawyers who hang out at the Brief Bag, Zapata’s Chili House and other watering holes near the local courthouse—and it could be any courthouse. This is McElhaney’s first column for the Journal; it originally appeared under the headline “The Cat and the Mouse.”

The young lawyer was right in the middle of final argument when he had one of those awful moments of self-awareness and wondered if he would be able to finish what he was saying. Everything had been going along just fine when all of a sudden he felt the rush of blood to his face and became exquisitely aware that he was standing in front of the jury, talking to them, and that they were listening to what he had to say.

That is when he started listening to his own words. He knew they made sense, but he worried that they might actually be hurting the case instead of helping it.

The young lawyer was right to be concerned. He was representing the defendant in a criminal case, and he was suddenly caught in the Venus flytrap of the law: proof beyond a reasonable doubt. You can look at it, you can circle it, you can describe it, you can crawl all over the outside of it. But once you settle on it and rely on it for your defense—if you are not careful—it can eat you alive.

Wait a minute, you say. Proof beyond a reasonable doubt is a heavy burden that the prosecution has to bear throughout the entire case. It is designed to protect the defendant, to guard against the possibility of the innocent being convicted. How can it be a trap for the defense?

The answer lies in the role of lawyers and the logic of argument.

Whenever you represent a client—whether it is in a civil or a criminal case—you are literally standing up for that person. It is strictly forbidden to say it out loud, but your very presence says, “I have investigated this case. I know the facts and I understand how they relate to the law. You can take my word for it: Justice is on my client’s side.”

Jurors understand the implication of your presence, even if they do not know that it would violate both the law and the code of professional responsibility for you to voice your personal belief in the justice of your client’s cause. Jurors also are suspicious of lawyers; they feel that what we say and do does not represent all that we know about the case.

So, instinctively, they watch us to see what our unconscious conduct reveals. And because of that, it is a terrible mistake to send the signal that you actually think your client is guilty.

How might you do that?

One way is to depend too heavily on the burden of proof. To see how this works, step outside the law for just a minute. Go to a school yard and see if you can take sides in an argument just on the basis of what two young boys are saying to each other. Here are two cases. In each one the dispute is the same. One boy says the other has his baseball glove. The only difference is in how the accused responds.

Case one:

“That’s my baseball glove.”

“No, it’s not. Yours has a broken lace.”

What do you have? A factual dispute. If you can choose between the two just on what they said, you either have an unusual gift or you are prone to jumping to conclusions. You need more than these words just to lean one way or the other in this case, much less take sides.

But consider case two:

“That’s my baseball glove.”

“You can’t prove it.”

If you are as fair-minded as you would like to be, you will want to have more evidence in this case, too. But if you are suspicious of the one who says “You can’t prove it,” that feeling may color your view of the rest of the case. The words are not exactly an admission, but they have a strangely guilty ring.


Now we are ready to go back to the law. When you tell the jury that there is a “heavy burden protecting the defendant, and he is presumed to be not guilty unless and until he is proven guilty beyond a reasonable doubt,” there is the risk that the jury may translate what you say into a concession that “Maybe the defendant is guilty, but the prosecution hasn’t proved it well enough.”

Like case two involving the baseball glove, talking about the heavy burden can seem almost like an admission. But why?

Proof beyond a reasonable doubt recognizes three different conclusions:

• We are certain he is guilty.

• We are certain he is innocent.

• We do not know whether he is guilty or innocent.

The law makes the middle ground—the ground we do not know—a buffer. It gives the defendant the benefit of the doubt. But telling the jury to give the defendant that benefit of the doubt implies that he needs its protection—and suggests he might well be guilty. So if the jury is listening carefully to see if you will give some sign of what you secretly know, the argument that the case is not proven may sound like you are admitting the possibility of guilt and hiding behind the technicality.

Does that mean you should not argue reasonable doubt when you are for the defense?

Hardly. But it does suggest that if you have facts of your own to prove, emphasizing them may be more effective than being too defensive. It also suggests that you ought to be careful in how you present your argument on reasonable doubt.


There are lots of ways to talk about the burden of proof without admitting the possibility of guilt, but you have to think them through before you use them. You cannot simply tell the jury not to take your argument the wrong way. Here is an argument worth thinking about. It was used by the late Peter M. de Manio of Sarasota, Fla., in a demonstration at the National Institute for Trial Advocacy. Remember that de Manio was arguing for the defense, because his introduction may surprise you.

“Is it possible for the government to prove guilt beyond a reasonable doubt just on circumstantial evidence, without any eyewitness testimony?” said de Manio.

“Of course. Take a simple example. Suppose that you take a mouse and put him in a box. Now take a cat and put him in the box with the mouse. Then take the lid and cover the box. Now tie up the box with string so the lid can’t come off.

“Leave the room for half an hour. When you come back, untie the string, take off the lid and look inside. There is no mouse, but there is one happy cat.

“Do you know what happened? You weren’t there, there are no eyewitnesses. All you have is circumstantial evidence. But you know beyond any reasonable doubt what happened to that mouse.

“Let’s do it again. Put the mouse in the box. Put the cat in the box with the mouse. Put on the lid. Tie it down. Leave the room for half an hour. Come back into the room. Untie the string. Take off the lid and look inside.

“There is the cat. No mouse.

“But look—back there in the corner of the box. There is a hole, just big enough for a mouse.

“That hole is a reasonable doubt. Now let’s look at the holes in the prosecution’s case.”

Then by implication, every problem in the government’s case is not just a hole; it is a reasonable doubt.

Another nice thing about this argument is the way it draws on our subliminal values. From the first Mickey Mouse production to the Mighty Mouse cartoons at the neighborhood theater to the Tom and Jerry reruns on Saturday morning television, we have been rooting for the mouse—which is just what Peter de Manio’s argument wants us to do.

Jim McElhaney is the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law in Cleveland and the Joseph C. Hutcheson Distinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston.

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