Is he guilty, or do you just not like him?


ONE OF THE BIGGEST FALLACIES most people have about the U.S. legal system is that the prosecution in a criminal case has the burden of proving the accused’s guilt “beyond all reasonable doubt” or “beyond any reasonable doubt.” The words “all” and “any” are the culprits. The state’s burden is to prove the case beyond a reasonable doubt, not all or any reasonable doubt.

This sounds like one of those fine distinctions we so often encounter in the law, but it’s a big deal, both in real life and in fiction writing. For instance, in civil cases the burden of proof is usually “by a preponderance of the evidence.” This just means that if you balance all the facts on the scales of justice, you can reach a verdict for the side that tips the scales its way, ever so slightly. But “beyond a reasonable doubt” requires a lot more proof. How much is “a lot more”? Therein lies the problem. Is it “moral certainty”? Is it “damned sure”? How about “I’m pretty sure he did it” or “close enough for jazz”?

So, the first thing this teaches the writer is that he needs to get the burden of proof right. If you have lawyers in courtroom scenes talking about “beyond all reasonable doubt,” you are committing a cardinal sin of good fiction writing, you are making a mistake about a crucial legal detail.

But beyond that, the writer needs to mine the burden of proof for all it’s worth.

What usually happens in criminal cases is that jurors vote to convict people they don’t like. That’s not the law, but that’s the way it works. And worse than that, they usually make that decision based on how they feel about the accused’s lawyer or the prosecutor. This is especially true in situations where the accused exercises his constitutional right not to testify, i.e., when he “takes the Fifth.”

But jurors who are trying to do their job in accordance with the law will stick to their guns and listen for those facts that tip the scale way over into the prosecution’s favor. If they don’t hear those facts, they should set their feelings about the lawyers, the victims and the accused aside and vote not guilty.

These dynamics create myriad opportunities for writers.

So here’s this week’s assignment: Write a scene in which the accused takes the stand and tells her own story. Make her a sympathetic young woman with her parents, who are upstanding members of the community, seated behind her in the gallery throughout the trial. Now write a scene where an accused who looks like Charles Manson does not take the stand, but sits and glares at the jury throughout the trial. And just for kicks, be sure the facts in the young girl’s case point directly at her guilt, whereas the facts in the Manson look-alike’s case are as thin as the ice on a pond in East Texas in July (and that’s thin).

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