A Few Trial Practice Truisms That Didn’t Pan Out In The Casey Anthony Trial; “Reasonable Doubt” (Update)(x2)

1. You win cases with your exceptional cross-examination skills.

2. You never promise something in your opening statement that you might not deliver.

3. A “death qualified” jury is more likely to convict.

Plus, I’m a believer in putting the defendant on the stand if at all possible, but that’s not a trial practice truism. The truism is the opposite, and that one did pan out.

Reasonable doubt is more tricky than the talking heads I have seen let on so far. The way it works is not that you just point out holes in the prosecution’s case and tell the jury they don’t know, so they have “reasonable doubt”. You have to – and this was part of the brilliance of the defense strategy here – offer a competing narrative, and preferably a competing villain as well. Here the defense did both: they had a competing narrative (the accidental drowning) and the competing villain (George Anthony), of whom the one alternate juror that has answered questions said that he was “hiding something”.

This is what gets you to reasonable doubt. There’s another story, supported by the evidence, largely the same evidence that the prosecution has offered, that is consistent with the defendant’s innocence. There is another culprit who is just as likely to be guilty.

This was particularly effective here, too, because the whole circumstantial case against the defendant begins with her being the last one seen with the victim when the victim was still alive. If that crucial fact depends entirely upon the testimony of the competing villain, which it did here, where can the jury go if they give the competing narrative any credence at all, even the benefit of the doubt?

We have these rules that we apply to trials, and they do indeed apply. Until they don’t.

Update:  I see Norm Pattis had a similar take.  CDL’s don’t have to be afraid of the unconventional.  The conventional thing for a criminal defendant is to lose.

Update 2:  Here’s Alan Dershowitz, writing in the Wall Sreet Journal:

The prosecutors in this case did the best they could with the evidence they had, though I believe they made a serious mistake in charging Casey Anthony with capital murder and introducing questionable evidence, such as that relating to the “smell of death” inside the trunk of Casey Anthony’s car. The defense also made mistakes, particularly by accusing Ms. Anthony’s father of sexually abusing her. Although they leveled this unfounded accusation in an effort to explain why Casey had lied, it sounded like the kind of abuse excuse offered to justify a crime of violence. But a criminal trial is not about who is the better lawyer. It is about the evidence, and the evidence in this case left a reasonable doubt in the mind of all of the jurors.

 

Has he ever tried a case?  I don’t think so.  I mean, he’s technically right in a way just about anyone would be.  You don’t need to be a Harvard Law Professor to say that trials are about “the evidence”.  But in an important respect, if he’s never tried a case, he doesn’t know what he is talking about.