In United States v. Velazquez, --- F.3d ---, No. 19-50099 (9th Cir. 2021), the Court vacated a conviction for importing controlled substances.
This was a deny-knowledge border bust trial. During closing argument, the prosecutor compared the reasonable doubt standard to the confidence one needs to “hav[e] a meal” or “travel to . . . court”—without worrying about the “possib[ility]” that one will get sick or end up in an accident.
Defense counsel objected. On appeal, Velazquez argued that, despite the court’s instruction regarding reasonable doubt, the prosecutor trivialized the standard during closing argument and substantially prejudiced him.
The panel majority agreed.
Lots of helpful language:
- "A prosecutor’s misstatements of law during closing argument provide grounds for reversal."
- Here, we conclude the prosecutor engaged in misconduct by trivializing the reasonable doubt standard and, as a result, caused Velazquez substantial prejudice. We further conclude that the court failed to neutralize the prejudice.
- In a criminal trial, “no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof— defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.” Jackson v. Virginia, 443 U.S. 307, 316 (1979). This standard of proof is “indispensable” to our criminal justice system and preserves three distinct interests. In re Winship, 397 U.S. 358, 364 (1970). First, it protects the defendant’s interest in being free from unjustified loss of liberty and the stigmatization that results from conviction. Id. at 363. Second, it engenders community confidence in the administration of justice by giving “concrete substance” to the presumption of innocence. Id. at 363–64. Third, it ensures “that the moral force of the criminal law [is not] diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.” Id. at 364. Thus, for a jury to convict a defendant under this high burden of proof, the jury must “reach a subjective state of near certitude of the guilt of the accused.”
- In the final moments of a trial, the government’s principal purpose is to persuade the jury it has met its burden to show guilt beyond a reasonable doubt. Even against this high burden, however, a prosecutor, as a representative of the government, wields considerable influence over a jury. See Berger v. United States, 295 U.S. 78, 88 (1935). With this power, a prosecutor can easily mislead the average juror into adopting his or her personal view of the law, even when that view diverges from the court’s own instruction. See id.; see also United States v. Parr-Pla, 549 F.2d 660, 662 (9th Cir. 1977) (per curiam) (“It is the duty of the court, not counsel, to advise the jury as to the law . . . .”). Because jurors can be swayed by such mischaracterizations, a prosecutor must be especially wary of making any comments that could, in effect, reduce its burden of proof.
- The prosecutor compared the reasonable doubt standard to making decisions like going for a drive or eating a meal—with the confidence that things will not go awry. Such decisions involve a kind of casual judgment that is so ordinary and so mundane that it hardly matches our demand for “near certitude” of guilt before attaching criminal culpability.
- We are also troubled by the suggestion that reasonable doubt can be compared to an “everyday” experience. The process of adjudicating guilt is a major and meticulous undertaking.
- Although the district court initially instructed the jury to follow its instruction on reasonable doubt and “not as to what any attorney says the standard of reasonable doubt is,” the prosecutor then provided numerous improper examples that served to reduce the government’s burden of proof—all without further admonishment. And the district court overruled defense counsel’s second objection after the prosecutor, during his rebuttal, rehashed an identical argument that reasonable doubt was something the jurors used “every single day.”
- By overruling the objection, the court naturally left the jurors with the impression that the prosecutor’s comparison of the reasonable doubt standard to an “everyday” judgment, and that the specific examples the prosecutor furnished, were proper. Moreover, the prosecutor’s distortion of the standard was among the last things the jury heard before they began deliberations, further exacerbating our concerns.
- In sum, the ultimate issue at trial boiled down to whether the government proved that Velazquez knew about the drugs in his car beyond a reasonable doubt. Reasonable doubt was the central theme of his defense. The prosecutor’s comments, however, created an unacceptable risk that an honest, fair-minded juror would succumb to the prosecutor’s personal—rather than constitutional—view of the government’s burden of proof to obtain a conviction and therefore overlook his or her reasonable doubts. Because the evidence demonstrating Velazquez’s knowledge was not overwhelming, and the district court failed to neutralize the prejudice, we conclude “that it is more probable than not that the misconduct materially affected the verdict.”
- Also helpful: Further, as we have recognized, evidence about a defendant’s nervousness provides limited objective value and does not even create reasonable suspicion to detain a person, let alone affirm a conviction.
