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Prosecutor May Not Lower Prosecution’s Burden of Proof

MOTIONS IN LIMINE:Other Creative Motions

In People v. Johnson (2004) 115 Cal.App.4th 1169, Cal.Rptr.3d, the court held unanimously that it is reversible error (even if no objection at the time) for the court or prosecutor to “amplify about reasonable doubt.” In the Johnson case, the court, during voir dire, discussed reasonable doubt, told the jury that there is a “possible doubt whether we will be here tomorrow” and that “we take vacations, we get on airplanes… we go to Hawaii….” The Appellate Court held that it is error to compare reasonable doubt to “situations where people make serious decisions in spite of possible reservations about the outcome.” Such comparisons cannot be equated to the level of conviction necessary for finding guilt in a criminal case.

The Johnson court cited with approval People v. Nguyen (1995) 40 Cal.App.4th 28, 35 [40 Cal. Rptr.2d 840], in which the prosecutor argued: “‘The standard is reasonable doubt. That is the standard in every single criminal case. And the jails and prisons are full, ladies and gentlemen. It’s a very reachable standard that you use every day in your lives when you make important decisions, decisions about whether you want to get married, decisions that take your life at stake when you change lanes as you’re driving. If you have reasonable doubt that you’re going to get in a car accident, you don’t change lanes. So it’s a standard that you apply in your life. It’s a very high standard…”

The Nguyen court reasoned that the prosecutor’s argument that people apply a reasonable doubt standard every day trivializes the reasonable doubt standard. That court held that analogizing reasonable doubt to choosing a partner for marriage is also misleading since the decision to marry is often based on a standard far less than reasonable doubt, as reflected in statistics indicating 33 to 60 percent of all marriages end in divorce. [Citations.] (People v. Nguyen, id., Cal.App.4th at p. 36.)

“The judgment of a reasonable man in the ordinary affairs of life, however important, is influenced and controlled by the preponderance of evidence. Juries are permitted and instructed to apply that rule to the determination of civil actions involving rights of property only. But in the decision of a criminal case involving life or liberty, something further is required. “(People v. Brannon (1873) 47 Cal. 96, 97.)”

The Johnson court also cited to People v. Brown (2003) 31 Cal.4th 518, 539, fn. 7 for the proposition that a defendant can properly raise the issue that the prosecutor trivialized “Reasonable Doubt” under Penal Code §1259 which provides in part that an Appellate Court may review any “instruction,” even though no objection was made because the “substantial rights” of the defendant were affected. Any explanation or argument by a prosecutor that lowers the reasonable doubt standard violates this citizen’s “substantial rights” and is reversible error (even without objection). By filing this brief the defense objects to any trivialization or lowering of the reasonable doubt standard in this trial.