For the Defense - Vol. 8, Issue 1 - 8

an analogy in the hopes of bringing home the concept of
reasonable doubt for the jury.
Practical Ramifications for Jury Instructions and Court
Statements
After Drummond, many will take the position that judges
should not attempt to explain reasonable doubt by way of
analogy, full stop. The Court itself explained that even those
analogies that do not suffer from the same defects as the
life-saving surgery analogy can still run the risk of distorting
the reasonable doubt standard by introducing subjectivity
and uncertainty into deliberations: " When a trial judge tells
the jurors to do anything other than objectively evaluate the
evidence, the court effectively creates twelve standards of
review, each one different from the next, silently generated
in each individual juror's mind based upon the individual lived
experiences and world views of that particular juror. " 30
The
simplest and safest stance to take post-Drummond, then, is
to object to any and all efforts to explain reasonable doubt
in this fashion.
For those unwilling to go so far, however, there is a less
drastic option: Lodge an objection only where there are
grounds to believe that the analogy creates a " reasonable
likelihood " that the jury will require something more than
reasonable doubt to acquit.31
This is a risky position to adopt,
as it can be hard to gauge the likely effect of a particular
analogy.32
But, analogies to reasonable doubt typically entail
two components: 1) a decision must be made as to whether
to take an action; and 2) there may be cause to hesitate, i.e.,
reasonable doubt, as to whether to go forward with the
action. Close examination of these components can provide
a good idea of whether a particular analogy is especially
problematic.
With regard to the first component, the action contemplated
should be a very serious matter because the stakes are
high when deciding whether to convict. As for the second
component, the analogy should impress upon the jury that
it does not take much for there to be a reasonable doubt.33
As such, if a judge uses an analogy including a contemplated
action that is trivial or a cause to hesitate that is glaring, the
analogy is clearly objectionable because it creates a risk that
the jury will apply too low a standard for conviction.
Whichever stance one selects, the question of how to define
reasonable doubt for the jury is likely to arise. At present, the
best option is to supply the jury with the definition included
in the standard suggested instruction.34
The Drummond Court
endorsed this instruction, finding it accurately portrays the
law and does not " depend upon idiosyncratic, subjective
decision-making. " 35
As an alternative, the Court also approved
of an instruction that Justice Ruth Bader Ginsburg endorsed.36
Because it is always helpful to be able to tell the court what
it should do instead of taking an objectionable action, either
of these instructions can be provided as an alternative course
of action.
Practical Ramifications for Arguments of Counsel
At the time of this writing, the Drummond decision is too
new to have been cited in many other cases. But, one thing
the decision has already inspired is a certain amount of panic:
many trial attorneys have been asking, " Can I use analogies
in closing argument anymore? " Or, " Am I going to be found
ineffective because I used such an analogy in every trial I've
8 For The Defense l Vol. 8, Issue 1
ever handled? " Although the concern is understandable in
the immediate wake of Drummond, it is likely overblown for
several reasons.
First, there is a big difference between counsel using an
analogy to define reasonable doubt and a trial court doing
the same. When a lawyer does it, even if the analogy is
flawed, it is less worrisome because the court can be expected
to caution the jury that counsel's arguments are not the
law.37
definition of reasonable doubt.38
Additionally, the court will typically supply the proper
Counsel's use of an analogy
is thus far less damaging than a court's, as the latter has the
imprimatur of the law while the former does not.
Furthermore, when lawyers deploy analogies of this
nature, they are doing it because they believe it helps their
clients. Counsel may want to revisit that belief in light of
Drummond. But, except in the case of analogies that are
clearly problematic-i.e., the analogy in Drummond-it may
be hard to demonstrate for ineffectiveness purposes that
counsel lacked reasonable bases for their actions where they
clearly believed use of an analogy was for the client's benefit.
That said, Drummond provides good reason for criminal
defense lawyers to take a moment to think about the devices
they use to explain reasonable doubt. Above all, it is worth
asking: Are they truly helpful? To answer this question, it is
a good idea to break down what the analogy is telling the
jury about reasonable doubt. As noted above, there are two
key components to most of these analogies; they should be
re-examined considering Drummond to ensure that they are
advancing the client's interests.
The other side of this coin, of course, is that prosecutors
may proffer analogies to define reasonable doubt in their
opening statements or closing arguments. Although the
impact will not be as great as a court's instruction for the
reasons explained above, defense lawyers should still be
vigilant and object where appropriate.
Where the Court Might Be Going
In addition to the direct and practical implications of
Drummond discussed above, the case could have even wider
significance down the road. Most apparent is the possibility
that the Court will move toward outlawing analogies or
similar devices altogether for the purpose of defining
reasonable doubt. The Court was careful to point out that
such analogies had never been held categorically to violate
the United States or Pennsylvania Constitutions.39
But, there is
a first time for everything, and the Court's statements on the
tendency of such analogies to distort or diminish the burden
of proof surely lay the groundwork for an argument that they
are unconstitutional-as a matter of federal or Pennsylvania
law-and should be banned outright.
Also worthy of consideration after Drummond is whether
reasonable doubt should be defined at all. In 1974, the
Supreme Court explained that such a definition is essential,
as " [o]nly in this way, can a jury fulfill its responsibility to
decide the guilt or innocence of an accused. In the absence
of a proper reasonable doubt charge, an accused is denied his
right to a fair trial. " 40
And, as stated above, the Drummond
Court endorsed two instructions as appropriate ways to
define reasonable doubt for the jury. Even so, the Court
sent mixed messages on this front, quoting the maxim that
" '[a]ttempts to explain the term " reasonable doubt " do not
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