The Presumption of Innocence and Jury Selection

You often hear people say the phrase, presumed innocent but very few people truly understand what that phrase means for a criminal defendant.
A person charged with a crime is called the defendant. Defendant is presumed innocent throughout a trial until the government is able to prove the defendant guilty beyond a reasonable doubt.
When selecting a jury, experienced criminal defense attorneys will frequently try to educate the jury panel about the practical meanings of the presumption of innocence.
Educating a jury is important in every criminal case and applies whether a person is charged with rape, sexual assault, DUI, a drug crime or assault.
When speaking to potential jurors, I always ask several questions to help educate the potential jurors. My question may be phrased in the following way:
“Raise your hand if you heard the phrase presumption of innocence?”
I then select someone who raised their hand to give their thoughts or definitions of what the presumption of innocence means.
I take the time to ask the same question to every person who raised their hand so long as the judge will let me. I believe it’s essential to have every juror who has an opinion about the presumption of innocence express their thoughts on what it means to that person. I believe that the people who raised their hand and expressed their thoughts will pay close attention to my explanation of the phrase and potentially modify their beliefs accordingly.
I then provide the actual instruction the jury will receive:
“At the end of this case, the judge will instruct you and provide a definition of the presumption of innocence. The judge will tell you that the defendant is presumed to be innocent and you must find him or her “not guilty” unless and until the state has proved him or her guilty beyond a reasonable doubt.”

To help illustrate the meaning of the instruction, I then ask the members of the jury to raise their hands if they are football fans. As most of my juries trials occur either the state or federal courts of Nebraska, most people raise their hands. I then suggest that the presumption of innocence is like a football game where the defendant starts off with a score of 100 and the state starts off with a score of zero. I explain that it is the government’s burden to overcome that huge point deficit. That huge point deficit is the presumption of innocence.
I also note that if the government cannot overcome that huge deficit, the jury must vote the defendant not guilty.
I’ve heard of other attorneys using similar football analogies where the score starts out in favor of the defendant 7 to 0 or 14 to 0.
I believe those analogies do not accurately suggest what the presumption of innocence means and how large the burden is for the government to overcome.
For jurors who are made up of football fans, analogy where the defendant is like a football team that starts out with a 100 to zero advantage, the magnitude of the burden on the government is made clear. It also helps convince the jury that the advantage on the side of the Defendant is nearly impossible to overcome.
I’ve yet to have a judge tell me the example I provide is not a permissible analogy to help explain the presumption of innocence.
Occasionally, I will come across a jury that is not made up of football fans. In those situations I simply change the sport to match that which the majority of the jury is most comfortable.
The analogy could involve a basketball game in which the defendant’s team starts off with a 50 point advantage.
After explaining the presumption of innocence, and after I am certain every juror is on the same page, I then incorporate the idea that the opening statements made by the prosecutor are not to be considered as evidence, and they are simply summaries of what the prosecutor believes the evidence will show.
Once I’ve educated the jury on the presumption of innocence, and once they know opening statements are not evidence, I asked each juror how they would vote after the state is done presenting their opening statement. Simply put, I ask the following:

“Considering what you now know about the presumption of innocence, and considering that opening statements by the prosecutor or not to be considered as evidence, how would each one of you vote if you were asked for a verdict at the close of the states opening statement? Everybody raise your hand if you would vote the defendant not guilty?

For any person who does not raise their hand, I then have an opportunity to question him or her individually about why they would not vote “not guilty”. For any juror who does not agree or does not understand, that juror is challenged for cause and summarily dismissed.

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