1. CONFIDE IN THE JURORS BY GIVING ANECDOTAL EXAMPLES FROM YOUR PERSONAL EXPERIENCES: Using a fair and reflective example from your own personal experiences to explain a concept has a couple of benefits. By personalizing yourself in a verbal snapshot, you reflect your shared humanity with the jurors. You reveal your vulnerability without appearing weak. The personal anecdote is a self-contained slice of your life. You show the jurors that you care about your case enough to put part of yourself into your argument. If you care, perhaps, they will also. For example, in the sample below, in addition to making the moral point that we should hear both sides before making a judgment,  the advocate also tells the jury that he is a family man with several children. A relevant anecdotal example from real life can also reduce an abstract concept to a more concrete real-life form.

The first sample argument illustrates the unfairness of making snap judgments and the fairnessof listening attentively and hearing from both sides of the controversy before coming to a decision. Here the criminal defense lawyer gives the jurors a simple example of his children telling conflicting stories and his error as the decision-maker in coming to a hasty conclusion, based solely on his older child's accusation of the younger one.



famous last words I
SAMPLE JURY ARGUMENTS
Personal Anecdotes - Reasonable Doubt
Analogies/Metaphors/Similes  

FROM THE  JACC BOOK
copyright © 2001 Ray Moses
all rights reserved


FEATURED ARGUMENT
PERSONAL ANEDOTES   -   REASONABLE DOUBT

ANALOGIES, METAPHORS & SIMILES


Eloquence is the power to translate a truth into language perfectly intelligible to the person to whom you speak.
Ralph Waldo Emerson

The dog barks, and the caravan moves on. We all know that the world changes. So it is that arguments that were once good are not always good. But my experience has been that many of the best jury arguments, what the French call chevaux de bataille or "warhorses," continue to be useful in the courtroom contest. Twenty-five years ago, I wrote a thick book containing several thousand sample jury arguments. A second edition many years later brought the number up to fifty-five hundred. Ninety nine percent of these warhorses are still good persuaders. Here are a several hundred samples, not necessarily the best,  that have good shelf-life.


2. BREATHE SOME LIFE INTO THE DEFENSIVE CONCEPT OF THE REASONABLE DOUBT:
I always thought it better to allow myself to doubt before I decided,
than to expose myself to the misery after I had decided,
of doubting whether I had decided rightly and justly.
Lord Eldon

The so-called "rope a dope" defense is another way of describing the reasonable
doubt defense, i.e., the prosecution takes its best shot, and the defendant hopes
to still be standing when the bell rings. [One might also compare the reasonable doubt defense to the whack-a-mole game where the mole pops up and down from holes on a board
and the player, in this case the prosecutor, tries to whack the mole before it ducks back
into the hole.]

Doubt is not a pleasant condition, but certainty is absurd.
Voltaire (Francois Marie Arouet)

In the real world, if all doubt had to be dispelled before one could act,
life would come to a standstill.

It's fair to say that the choice of the standard of proof for a particular field of adjudication reflects a fundamental assessment of the comparative social costs of erroneous fact determination. How unsure are we willing to let a jury be about the accused's guilt and still allow it to convict? With regard to defenses, legislators who write and enact criminal law and procedure have several choices with regard to the burden of persuasion once a defensive issue has been raised by the evidence. For example, the prosecution can be required to disprove a defense or the burden of persuasion on the defensive issue can be placed on the accused.

Note: We can't realistically consider the concept of reasonable doubt without having some understanding of the burden of proof. The burden of proof can be used to refer to any one of three distinct burdens: (1) the burden of pleading: (2) the burden of production; and (3) the burden of persuasion. First, the burden of pleading means the burden of alleging an issue, i.e., if a party want to raise an issue it must say so. The prosecution has the burden of filing a pleading or charge accusing the defendant of a crime. This is done variously by complaint, information or indictment. Of course, if the defendant does not contest the charge, his/her plea is guilty or nolo contendere. But if the accused wants to put the charge in issue, the defendant pleads not guilty. The plea of not guilty is the primary pleading of the defense. Depending on the jurisdiction, there may be other pleadings that the defense may file. For example, the law may require the accused to file a notice of alibi, See Rule 12.1 Fed. R. Crim. P., or insanity, See Rule 12.2 Fed. R. Crim. P. Also, the rules my require that the defense raise certain matters by filing written pretrial motions or forfeit the right to have the issue determined in the litigation. Second, the burden of production refers to the requirement that a party product a certain amount of evidence in order to have the issue submitted to the trier of fact. The burden of production imposes a standard of evidence that must be met if the burdened party is to be  successful in having the issue presented to the fact-finder. Of course, the prosecution must meet its burden of production for each element of the offense or the court will either instruct the jury to find the defendant not guilty or issue a judgment of acquittal. Most defenses place the burden of production on the accused. The party bearing the burden of production must adduce sufficient evidence to support the presence of the issue. Third, the burden of persuasion is expressed in a given degree of doubt, e.g., proof beyond a reasonable doubt (PBRD), clear and convincing evidence (CCE), and preponderance of the evidence (PE). When the fact-finder is not so convinced, the issue must be decided in favor of the opposing party, i.e., the party that does not have the burden of persuasion. Preponderance of  the evidence (the typical burden of persuasion in civil cases) can be thought of as the greater weight of credible evidence. However, it is more difficult to define CCE (the burden or persuasion typically imposed in civil cases involving termination of parental rights) and PBRD (the prosecution's burden of persuasion in proving the elements of the alleged crime). Many jurisdictions do not have legal definitions of CCE and PBRD. One can say as a general rule that, unless a specific provision is made to the contrary, the prosecution, be it state or federal government, must prove, as a matter of production and persuasion, all elements of a crime beyond a reasonable doubt. This includes the actus reus (the criminal conduct), the mens rea (the culpable state of mind), and any required attendant circumstances, causation and result.]

Proof beyond a reasonable doubt (PBRD) has long been thought to be fundamental as the standard of proof in criminal cases. Yet PBRD is not expressly mentioned in the Bill of Rights. It was only in 1970 in the juvenile delinquency case In re Winship, 397 U.S. 358 (1970) that the USSC held for the first time that proof beyond a reasonable doubt is a due process constitutional requirement in criminal cases. The court said, "... we explicitly hold that the Due Process Clause protects the accused from conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Note again that the USSC was reading PBRD into the Fourteenth Amendment. The opinion held, first, that criminal conviction had to be based on proof beyond a reasonable doubt , and, second, that the same standard applied in delinquency proceedings. See Jackson v. Virginia, 443 U.S. 307 (1979). Failure to instruct the jury on reasonable doubt constitutes structural error that requires reversal; it cannot constitute harmless error.  See Sullivan v. Louisiana, 508 U.S. 275 (1993).  The USSC has only had one occasion to reverse a case because the definition of reasonable doubt violated due process standards. See Cage v, Louisiana, 498 U.S. 39 (1990). But see Victor v. Nebraska, 511 U.S. 1 (1994) in which the USSC declined to give further guidance in defining reasonable doubt. Here is a list of articles discussing the meaning and usefulness of the reasonable doubt concept. [Author's Note: Since proof beyond a reasonable doubt is a constitutional requirement of due process in all criminal cases, state and federal, shouldn't our U.S. Supreme Court expend whatever resources are available to substantively define this fundamental concept?  Do we profit from varying definitions or from leaving it to each juror to come up with his/her own subjective definition? ]

As prosecutors or defenders, we must ask ourselves, " What is reasonable doubt?" Does "firmly convinced" sound about right? What is unreasonable doubt? If we can get a handle on reasonable doubt, we have to ask how much proof is beyond a reasonable doubt. Is it sufficient that the evidence removes all reasonable doubt of guilt or must the prosecutor go beyond that to some higher level of proof? Should the law define these terms quantitatively and qualitatively? Is it better not to have a legal definition and simply leave it to each jury to construct its own concept of "beyond a reasonable doubt." How certain must the fact-finder be? Should juries be required to turn the accused loose when they feel that s/he is "probably" guilty but have one reasonable doubt about one element of the crime? Aren't guilty people going to slip through the cracks of a system that requires removal of all reasonable doubt as a condition precedent to conviction? If there is no clear social benefit to such a strict burden of proof, can we expect jurors to buy into it? Apparently it is not too difficult to remove reasonable doubt. Most trials end in conviction and the overwhelming number of guilty pleas could mean that a huge percentage of defendants are confident that prosecutors can prove guilt beyond a reasonable doubt. Aside from these, you must determine how reasonable doubt is defined in your jurisdiction.

The definition of reasonable doubt varies from state to state. Approximately seventeen states employ language based on "reason and common sense." Roughly fifteen states use the "hesitate to act in the most important of your own affairs" language. Around five states and some circuits use the "willing to act upon without hesitation" language.  See United States v. Gonzales-Balderas, 11 F.3d 1218 (5th Cir. 1994). A number of states have decried any attempt to legislatively or judicially define reasonable doubt. In my own home state, for some time there was a "the kind of doubt that would make a reasonable person hesitate to act in the most important of his own affairs" definition of reasonable doubt until the law-enforcement-oriented high court changed to no legal definition at all. See Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000) overruling Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991).

As a general rule, case law does not allow arguments that seek to quantify proof beyond a a reasonable doubt by putting a specific number or percentage on it. Occasionally prosecutors will try to use an analogy, e.g., a football field, a jigsaw puzzle with a specific number of pieces missing from a total number of pieces, that purports to suggest a specific numerical value or percentage of reasonable doubt that would qualify as proof beyond a reasonable doubt. Defenders may try to rely on similar quantitative analogies to argue the prosecution's failure to meet its burden of proving guilt beyond a reasonable doubt. These analogies may even be accompanied by posterboard or PowerPoint visuals, e.g., a diagram of a football field with the end zone being proof beyone a reasonable doubt, a puzzle with a few key pieces missing, or a staircase beginning with "preponderance of the evidence" as the first step in the flight, and following it with "clear and convincing evidence," "reasonable doubt," and "beyond a reasonable doubt." If the argument truly tries to quantify reasonable doubt in numbers, statistics or percentages, the argument will be objectionable in most courts.

To emerge victorious at the jury trial, the defense advocate must have a palatable theory of the case. Success is difficult if one is reduced to the defensive posture of simply picking at the prosecution's case with a "you can't prove it" approach. If circumstances permit, the disadvantage of merely defending against a prosecutorial claim can be overcome by taking the offensive. "Confession and avoidance defenses" allow the defense to argue that the accused is entitled to an an acquittal, even though the jury believes beyond a reasonable doubt that the prosecution has proved the elements of the offense. These confession and avoidance defenses ("I did it but...") are grounded on the existence of additional facts that excuse or justify the defendant's otherwise criminal conduct and include insanity, diminished capacity, entrapment, self-defense, defense of others, defense of property, duress (coercion), necessity, use of force to prevent offenses, use of force to arrest, use of force in disciplining children, etc. The defense has the burden of producing evidence that raises these defenses, but the laws vary in placement of the burden of persuasion once the defense has been raised by the evidence. With regard to proving some defenses, the accused may be required to shoulder the burden of persuasion, often by a mere preponderance of the evidence standard. Other defenses may require the prosecution to shoulder the burden of persuading the jury beyond a reasonable doubt that the defense does not exist under the facts of the case. 

The plain fact is that in many trials there is no "confession and avoidance defense" available. Nevertheless, in every criminal case the prosecution has the burden of proving every element of the offense beyond a reasonable doubt. Hence, the reasonable doubt defense is potentially available in every criminal case. The defense may focus its reasonable doubt defense on one or more of the elements, e.g.,  the mens rea or culpable mental state of the accused (I didn't mean to do it.) in a crime that requires proof of a culpable mental state such as intentionally, knowingly, recklessly, negligently (Remember, strict liability offenses don't require a culpable mental state;mistake of fact and voluntary intoxication may also be available to negate a culpable mental state.), the voluntary act (It was reflexive or I was unconscious, sleepwalking, etc.) or omission (I had no legal duty to act.) element, the possession element, an attendant circumstance element (This could involve a jurisdictional element, consent, age of the complainant, etc.), the identity of the accused as the offender (I didn't do it or I have and alibi.) element -misidentification, the causation issue (I am not the proximate cause of the harmful result.) in result oriented offenses, and the existence of the criminal result (There was no serious bodily injury, there was no damage, there was no fire, etc.) itself.

If your defensive theory is directed to the prosecution's failure to prove guilt beyond a reasonable doubt or to disprove the existence of your confession and avoidance defense by removing the question of its existence in the case beyond a reasonable doubt, your task is to create one or more reasonable doubts (reasons to doubt) and argue reasonable doubt as a defense. At the argument stage of a case where reasonable doubt is the defensive theory, invariably both sides will discuss the concept and its application to the facts.

Trying to meaningfully describe reasonable doubt is akin to trying to tell someone what an oyster tastes like. Not an easy task. Still, if the defender is to successfully argue the existence of a reasonable doubt, s/he must translate this essential yet esoteric legal construct into something a lay juror can understand and recognize. This is sometimes done by use of illustrations and analogies. Here are a few examples of reasonable doubt arguments





SAMPLE REASONABLE DOUBT ARGUMENTS

  +Test not which side you believe - The prosecution may suggest to you that the test in this case is simply which side you believe. They invariably do this - and its wrong. That's not the test. The test is this: "Do you have a reasonable doubt whether the defendant is guilty of the crime as they've alleged?" Is there at least one reasonable doubt that (name the defendant) might be wrongly accused?
  +Defense doesn't have duty to create reasonable doubt - prosecutor has burden to remove all reasonable doubt -  Please understand the defense has no legal duty whatever to create reasonable doubt. The law says that it is the prosecution who must shoulder the duty to remove each and every reasonable doubt that the accused might be innocent. Please don't put the burden of creating reasonable doubt on us. Instead put the burden of removing all reasonable doubt on the prosecutor. That's where the law says the burden rests.
  +Reasonable doubt not defined by law of our state - In this state, there is no legal definition of the concept of reasonable doubt - each of you jurors is allowed to make up your own definition. The judge is not allowed to give you any guidance. But I am submitting  this definition to you with the thought that it might be a good starting point for you when you decide exactly what reasonable doubt means to you: Proof beyond a reasonable doubt is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own personal affairs.Think of the most important of your personal matters, such as deciding to undergo elective surgery or changing jobs or getting married or leaving your small kids with a babysitter for the weekend. Try to imagine how sure you would need to be before you could do any of those things without hesitation. That will give you some idea of the burden the prosecution bears in this case.
  +Reasonable doubt as doubt of fair-minded juror - Reasonable doubt is the doubt of a fair-minded impartial juror who is honestly seeking the truth.
  +Reasonable doubt as an abiding conviction of the truth of the allegation - Reasonable doubt is not a mere possible doubt. We know as a matter of human experience that everything relating to human affairs is open to some possible doubt or some sort of imaginary doubt. I suggest to you that reasonable doubt about a person's guilt is when, after considering and comparing and weighing all the evidence, your mind is in a condition where you do not feel an abiding conviction of the truth of the charge that has been leveled at the accused.
  +Reasonable doubt as meaning just what it says - Reasonable doubt means just what it says. It is a doubt based on common sense and logical reasoning. It doesn't mean a vague, arbitrary or capricious doubt. It doesn't mean a fanciful or a speculative doubt. It is a doubt for which a rational common sense reason can be given and logically explained.
  +Reasonable doubt as meaning at least "firmly convinced" of guilt - Whatever you may think about what reasonable doubt means, I submit to you that it means, at least, that you, as a responsible juror, cannot convict a person of a crime until you are firmly convinced, personally, of the accused's guilt.
  +Evidence must leave no room for reasonable doubt - By your oath, you cannot convict when after careful consideration of the evidence there still remains one reasonable doubt as to whether the accused is guilty of this charge. It's only when the evidence leaves no room whatsoever for reasonable doubt that you are allowed to find that the accused is blameworthy.  
  +Reasonable doubt known by heart and by gut -  You will know reasonable doubt, not only by reason but also by your heart and by your gut. It's not just a legal concept. It's also a feeling, an intuition. 
  +Wouldn't jurors like more evidence - Reasonable doubt is that doubt which causes you to think to yourself, "Gee, I wish the prosecution had more evidence."
  +Not sure - Reasonable doubt may be an uneasy feeling where you are just not satisfied that you are sure that the government has proved its claim.
  +Not wholly convinced by evidence of guilt - Reasonable doubt may be the feeling that the believable evidence doesn't wholly convince you that the defendant is guilty. 
  +"Doubting" as beginning of wisdom - The beginning of wisdom is found in doubting; by doubting, we come to the question, and by seeking we may come upon truth.
  +Reasonable doubt as a common thread throughout the court's instructions to you - What is the common thread interwoven throughout the Court's instructions to you? It's the phrase "reasonable doubt." And if there is a single thread of reasonable doubt in this patchwork quilt the prosecution has presented to you, the whole prosecution case comes unraveled and unwound. Even a single strand of reasonable doubt requires an acquittal. And there's enough thread of reasonable doubt in this case to weave the prosecutor a suit of clothes.
  +Reasonable doubt as an individual judgment and not a group decision - Let's talk about one of the rules that governs this trial. This rule is the anchor of due process of law and a fundamental cornerstone of our right to a fair trial. The judge is going to tell you, for instance, that before you can convict (name the defendant), you have to believe on each count that the government has proved its case to you, individually, each of you, beyond a reasonable doubt. In our democracy, a reasonable doubt is a doubt, a reasonable basis for being uncertain about guilt, that exists after you have examined the evidence carefully.
  +I have watched you, every one of you. I have from time to time looked each one of you in the eye, and I have seen you pay close attention. If you have a doubt that remains in your mind after you have examined that evidence and you're a reasonable person, that's a reasonable doubt. If you have the kind of doubt that would make you hesitate to act in your most serious activities. If you have felt, "Well, they have presented some evidence and its probable that they have presented enough, but there's still something that doesn't satisfy me that he's guilty." That's a reasonable doubt. And if you say to yourself, "Well, all right. I'll go along with some of these other members of the jury because it's late and I want to get home and we have been here a long time and maybe these other people are right. They haven't proven it to me, but I will go along." Then you aren't doing your duty. Because your duty as a juror is to vote your conscience.
  +You are twelve individual people and not merely a group composed of twelve people. You will go back there into the jury deliberation room as twelve individuals together. You have eaten lunch together, and you have formed friendships that will cause you to think of yourself as a group. You may think that this is a group situation where the majority rules. It is not. You should deliberate on the proper verdict, but your vote is an individual decision for each of you. This claim by the prosecution, this charge that has been filed, has got to be proved beyond any reasonable doubt to each of you individually.
  +Reasonable doubt from lack of evidence - Reasonable doubt can arise both from the evidence and from lack of evidence.
  +Ninety percent certainty not enough - If you are only ninety percent sure that an accused person is guilty, then you have a ten percent doubt. If you give ninety percent justice, you are giving ten percent injustice, and that's not right. That's what reasonable doubt is. And I suggest to you that even one percent of reasonable doubt demands you find the defendant not guilty.
  +Assess reasonable doubt in misdemeanor or low level felony as if defendant were on trial for his life - The puishment that might be exacted in this case in the event of a conviction should not influence the way you assess reasonable doubt. The concept of reasonable doubt of guilt in this case is the same as it is in a death penalty case. By way of a guideline, if this were a proceeding where you were sitting in judgment on the life of the defendant where the supreme penalty was being sought, before you could convict the accused of a death penalty offense, the Court would tell you that the test of your feeling is proof beyond a reasonable doubt. The concept of reasonable doubt in a death penalty case is the same as it is here. So in that regard, the question you need to think about is this: "Am I so convinced by the evidence in this case that I could say the accused is guilty beyond a reasonable doubt even if, God forbid, the defendant's life were on the line. Am I so satisfied beyond a reasoanble doubt of the defendant's guilt that I could I vote to convict on this evidence, even if his life were on the line?" If you could say that the evidence is so compelling that you could vote for a conviction, irrespective of the separate issue of punishment, then you would have been convinced beyond a reasonable doubt.
  +Doubt as sign of human intelligence - I suppose there may be a few people in this world who have never had any doubts. But most of us do entertain doubts in our daily lives. If you think about it, doubt is really a compliment to our intellect. If you have a doubt about something, it means that your mind is at work analyzing the subject. The brightest minds are always those that ask questions. It's because of our ability to reason - to ask questions - that the human race has progressed. Doubt is the thing that will motivate you to ask questions about this case and to challenge the assumptions that the prosecutor is urging you to accept.
  +"Doubting" as closer to truth than believing what is false - Jefferson quote - Not knowing, having doubts, is a lot closer to the truth than believing what is wrong. So as Thomas Jefferson said, "Doubt is preferable to error, and he is less remote from the truth who has doubts than he who believes what is wrong."
  +Jurors not here to solve a mystery - You are not here to solve a mystery. You are here only to determine if the state has enough believable evidence to remove every reasonable doubt you could have as to the defendant's guilt.
  +Don't compromise reasonable doubt, it belongs to the accused - Don't compromise on the hallmark of our judicial system, reasonable doubt. If you have a reasonable doubt, don't sell it out thinking that might be able to compromise it later. Reasonable doubt is an all or nothing thing. You either have a reasonable doubt or not. If you have a  reasonable doubt, please remember, it is not your property. It belongs to (name the defendant). The Supreme Court and the constitutional due process says that it does.
  +Vote reasonable doubt - I'm not here to beg you for a verdict. I'm not here to plead. I'm simply going to respectfully demand that you follow your oath as a juror and vote the reasonable doubt that you know exists in this case. No one will second guess you, no one will challenge you, nothing at all can happen to you for returning the verdict that says "We had a reasonable doubt." That verdict is "Not Guilty."
  +"Not guilty" means many things - The prosecutor has tried to frame the issue in this case to you as, "Who do you believe, (name the prosecution witnesses) or (name the defensewitnesses)?" While it is true that they can't both be telling the truth, that is not the issue in this case. It's not the proper was to look at it in terms of arriving at your verdict. The real issue is whether you believe the prosecution's story beyond any and all reasonable doubt.
  You will be asked to return one of two verdicts. There are only two possible verdicts here, guilty or not guilty. Some other countries have a third verdict somewhere in the middle - it's called "undecided" or "not proven" - "maybe he did it, but we are not sure." The American justice system, however, relies on only two verdicts. Our system posits that the burden of proof is on the prosecutor to prove to you that the accused person is guilty beyond any and all reasonable doubt. If the prosecutor can't remove  every reasonable doubt, then your oath mandates and requires a verdict of not guilty.
  The net effect of this is that the not guilty verdict in our country includes a lot of different frames of mind. Not guilty may mean, "I am just not entirely sure about it." It may mean, "I think he possibly did it or he probably did it, but I am not convinced beyond a reasonable doubt." On the other hand, it may mean, "I am pretty sure he didn't do it," or it may mean, "I am absolutely certain he didn't do it." All of those states of mind are included in the verdict of not guilty.
+Reasonable doubt intertwined with presumption of innocence - The presumption of innocence and the prosecution's burden of proof beyond a reasonable doubt operate together. Like strands of wire, they are intertwined with one another. They mean this to you: "After all the evidence is presented, after all the summations are completed, as I consider the evidence and what the lawyers said to me about the evidence, if there is a reasonable doubt in my mind about whether (state the issue, e.g., whether the defendant intended to kill the deceased), then I am obligated to render a true verdict and that verdict is "not guilty" under these circumstances."
  +Regarding a defense where the prosecution has the burden of proving non-existence of the defense, take a vote on whether you are convinced beyond a reasonable doubt that defense doesn't exist -  One method of deliberating and deciding this case, after you have selected a foreperson, would be to discuss and take a secret ballot vote on whether you are each convinced beyond any and all reasonable doubt that this was not (name the defense, e.g., self-defense, that the prosecution must disprove beyond a reasonable doubt). Because, if the prosecution has not removed all reasonable doubt from you mind about whether (state the issue, e.g., the force used by the defendant was in self-defense, defense of another, defense of property, etc.) then your verdict must be not guilty. Let's be clear on that. The prosecution must prove beyond a reasonable doubt that the defense of (state the defense) did not exist.  That means if you have a single reasonable doubt about whether (apply the defense to the facts, e.g., the killing was in self-defense), your duty as a juror requires a vote of not guilty.
  +"Undecided" equates with reasonable doubt - When you retire to deliberate and vote on this case and you start to write undecided on your secret ballot, stop for a moment. If you are undecided on the defendant's guilt after hearing all the evidence, doesn't that mean that you have a reasonable doubt? Shouldn't the undecided person vote "not guilty"? I submit to you that if you are undecided, then the prosecution hasn't persuaded you beyond a reasonable doubt.
  +Proof beyond a reasonable doubt not available in police states - The duty of the prosecution to remove each and every reasonable doubt about whether the defendant is guilty is something that distinguishes our country from police states. In totalitarian countries, they shoot first and ask questions later. The people are slaves to the state. You are presumed guilty and the burden of proof is on you to prove you are not guilty. Unlike those police states, we require our government through the public prosecutor to introduce enough proof to satisfy each of you that there is not one single reasonable doubt whether the accused is guilty. When our government wants to brand someone as a criminal, we use juries to settle that dispute. In totalitarian countries, there are no juries. The same people that prosecute you also judge you.  We (indicate the defense table) put our trust in the fact that none of you intend to be slaves of the state. We have faith that you will demand proof beyond a reasonable doubt.
  +Give defendant benefit of doubt in emotional case - This case involves some emotionally explosive issues. (Describe the emotional issue, e.g., "This case involves a death on the highway, and this case involves alcohol.") This case involves matters that touch some of us deeply and close to the bone.  When you get to that part of the case where you have to decide, "Should I give him the benefit of the doubt or not?" I suggest that's where you have to look into yourself and into your own feeling and prejudices to see if they are interfering with your giving the accused the benefit of the doubt.
  +Item of evidence creates reasonable doubt - (Describe the item of evidence.) It is in evidence. It is undisputed. It speaks for itself. It is not biased. It is not prejudiced. It has no ulterior motives or corrupt interests. Its pure. And by itself, it creates reasonable doubt. Can you disregard it? Can you forget about it? Can you hide that piece of evidence from yourself?
  +Pureness of prosecution's case - Ivory soap analogy - The prosecution's case has to be as pure as Ivory soap - more than 99% pure.
  +Must have it proved to believe it - "Doubting Thomas" biblical analogy - Remember the story of the disciple Thomas? When told that Jesus had arisen from the dead, he said, "Unless I see in his hands the prints of the nails and place my finger in the mark of the nails and place my hand in his side, I will not believe." Many of us are like Doubting Thomas. We say, " I will never believe until I see for myself." Well, I am here to tell you that is exactly what you have to be when it comes to judging a case in a court of law. You must say to the prosecution, "I will never believe it until you prove it to me beyond a reasonable doubt." In this case each of you has to be like Doubting Thomas.
  +Scales of justice - You might recall the picture of the blindfolded goddess of justice standing with a pair of scales. In most pictures, the scales that the goddess of justice holds are level. In a criminal court, those scales should never be equally balanced. Why? Because the defendant is presumed innocent, those scales must be tipped in his favor. When we started this case, those scales had to be full of reasonable doubt. Now that we are at the end of the case, not only must the prosecutor and his witnesses bring those scales back together at level, there evidence must tip them, not just a little bit, but to such an extent that there is not one single reasonable doubt remaining on our side of those scales of justice about this case. Let's take a moment to look at our side of those scales and analyze whether the prosectuion has removed every reasonable doubt. (List and discuss the reasonable doubts still remaining on the defense side of the scales of justice. If possible, prepare a PowerPoint visual presentation to supplement your scales of justice argument.)
  +Hard to articulate reasonable doubt but know it is there - smell of fresh bread analogy - If you are a legal writer or a legal scholar, perhaps you could go back to the jury room and write your reasonable doubts down. But most jurors aren't lawyers. Most haven't been to law school. And, if I recall correctly, I don't think anyone on our jury has legal training. Yet you are all people with good common sense. You've been trained by life to know what makes sense and what doesn't. Reasonable doubt is something you can feel in your heart. It's somethng that you can feel in your gut. You just feel that there is something wrong about this evidence, soemthing that doesn't firmly convince you or fully satisfy you. You can have a reasonable doubt without being able to pinpoint it. It may be a feeling you get from the whole case and not just one small part of it. It's like the smell of fresh bread. You recognize it when you smell it, you know it's there, but it's hard to describe in words. Reasonble doubt can be like the smell of freshly baked bread, and you can smell reasonable doubt in this courtroom
  +Reasonable doubt in circumstantial evidence case - alphabet analogy - Circumstantial evidence can be compared to the letters of the alphabet. Standing alone or all jumbled up, the letters mean nothing. But when we put them together in the right way, they form sentences that reflect ideas. In jumbled up form, letters are nonsense. Put in proper form, they reveal common sense. But, if a the end of the day, the letters don't fit together, if the remainall jumbled up, if they don't make sense, then they are just a bunch of meaningless letters. And here at the end of this case, that's what we have The letters in this case only spell two words - reasonable doubt.
  +Slip, slide and glide  - Two of the easiest ways to slip, slide and glide through life are to believe everything or to believe nothing. Somewhere in between these two easy ways out is the person of integrity - the person who possesses an nquiring mind - the person who requires the government to shoulder the burden of proving its claim beyond a reasonable doubt.
  +Cloak of reasonable doubt removed - prosecution argument - We have removed the cloak of reasonable doubt that hid these facts, and now they stand directly in front of you, naked and quite simple.
  +Unreasonable reasonable doubt - prosecution argument -  The only type of reasonable doubt in this case is unreasonable reasonable doubt.
  +Key word is "reasonable" - prosecution argument - This burden of proof that we gladly assume has nothing to do with doubt. It is only about removing reasonable doubt. Don't be fooled into thinking that we have to remove all doubt and prove guilt beyond all doubt. This is not our duty under the law. Nothing in the physical world is free of all doubt. Unless you see something happen with your own eyes, you can always have a tiny doubt whether it happened. There is even a tiny doubt about whether the sun will come up in the east tomorrow and set in the west. But you know what, there is no reasonable doubt about that. The same thing is true here. The defense is basically arguing that there is doubt, but they are not giving you any reason to believe that there is reasonable doubt. That's because there is no reasonable doubt about the defendant's guilt.
+ Defense counsel attempting to "cherry pick" reasonable doubt by viewing evidence as a group of separate parts rather than looking at the case in its entirety - The able defense lawyer is using a technique known as cherry picking in analyzing the case. Notice that s/he is focusing on small parts of the case and arguing that there is a reasonable doubt about the small part. But that technique is a misleading fallacy because you job is to examine the case in its entirety to see if there is reasonable doubt.    
  +Shadows of valley of reasonable doubt - All the evidence is in, all is said and done, and the prosecution's case is still mired in the shadows of the valley of reasonable doubt.




3. USE ANOLOGIES, METAPHORS (1) AND SIMILES IN YOUR JURY ARGUMENT TO CAPTURE THE JURY'S INTEREST AND TO CLARIFY COMPLEX POINTS [Caution: Before you use an analogy, always test its vulnerability to attack or adoption by opposing counsel.] :  Analogies, metaphors, and similes are the salt of your argument. The meat of it is the evidence presented to the fact-finder, the applicable law and burdens of proof, your contention or claim, the opposition's contention or claim, and your reasoned logical conclusion from the law and evidence. So use the suggestions that follow for flavor only, lest you over-season the presentation.

Analogies - A good analogy is a wonderful rhetorical tool for helping a jury understand your point. Analogies won't decide your case, but they can condition your audience of jurors to feel more at home with your theory of the case. Jurors remember facts and concepts that are familiar to them or that can be analogized to familiar subjects. An analogy is a way of explaining something by comparing it with something similar, e.g., "He has arms like a gravedigger." If the comparison is apt, the analogy gets your point across and supports it with substance. As Samuel Butler said, "Though analogy is often misleading, it is the least misleading thing we have."

The perception of truth is often the perception of an analogy. Those who aspire to be effective communicators and persuaders must learn to argue by analogy and to explain by stories. This is particularly true when we are seeking to clarify and tie together complex facts, abstract ideas, or legal concepts. If facts legal issues become overcomplicated, jurors become overwhelmed. It is here that an appropriate analogy may assist the jury in comprehending the import of the evidence that has been dished out during testimony, assessing the credibility of the sources of evidence, and/or understanding the application of law to facts that are found to be true.

Constantly be on the lookout for analogies that you can use in the courtroom. When you see one, harpoon it with your pen and salt it away in your jury argument notebook or file. Generally, try to use analogies with which all or most of your jurors have had experience. On occasion you might employ an analogy directed at the life experience of a single juror. It's a legal way of letting that juror know you are talking to him/her without directly addressing the juror by name, a definite no-no.

It's a proven phenomenon that emotion may be created and transferred in argument from the advocate to the juror(s). A serious analogy can achieve this. The technique is to paint a word picture of an emotional occurrence on the ground that it is comparable or analogous to the facts at issue and then transfer the emotion so produced to the case at hand.

Before embracing an analogy, calculate its vulnerability to opposition attack. Make sure that the analogy is apropos, i.e., that it is a fair and logical comparison that will stand up to accuracy testing by the jurors. The jurors won't accept the applicability of your analogy simply  because you say so. They will analyze your analogy in the crucible of their own life experiences. If you haven't vetted the analogy from all sides, you may be surprised when opposing counsel adopts it in her closing argument to prove the opposite of the points you were trying to make.

Metaphors and similes - A jury argument can be pepped up by the use of appropriate metaphors. A metaphor is a figure of speech in which one thing is likened to another different thing by being spoken of as if it were that other. It is an implied comparison in which a word or phrase ordinarily used for one thing is applied to another, e.g., "All the world's a stage." When you use a metaphor, you are applying a word or phrase to a concept or thing which it doesn't literally denote.

Jurors, like other audiences of listeners, enjoy vivid metaphorical comparisons. For example, in a Texas courtroom it might be appropriate to describe a person who flees from a scene by saying, " He was transfused with the blood of a jackrabbit." Other examples might include, "The government's informant has a very special hobby horse to ride,"  "This conversation was the flash point in the crucible of this conspiracy," "Something was going on behind that face of vanilla pudding," "The accomplice has egg white in his veins," "The opposing counsel's cookie cutter philosophy ...," and "The crustacean weight of the evidence..." 

Descriptive similes can be used with some success in teaching a jury to grasp the essence of your claim and form a mental picture. A simile is a figure of speech in which one thing is likened to another dissimilar thing or an idiom which compares a quality, condition or action with a noun, e.g., "Having a smoking section in a restuarant is like having a peeing section in a swimming pool," "He had a heart as big as a whale," "He was as dry as a ditch weed," "It was as flat as a strap," "His face was fish-belly white," "He was waddling like a goose," "She was plainer than an old shoe," "It was as easy as pie," "She was as dead as a doornail," "He was deader than fried-chicken," "She was crooked as a dog's hind leg (or the Snake River)," "Intelligence is like a river; the deeper it is, the less noise it makes."  This figure of speech, the simile, can be employed in summation to vividly describe a situation.

Among the Niagara of short descriptive comparisons which quickly come to my hillbilly mind are the following: "like trying to tattoo a soap bubble," " like throwing the baby out with the bath water," "like water in the prosecutor's (or defender's) gravy," "like piranhas fighting over bloody entrails," "like burning the barn to kill the rats," "like trying to swallow a boiled egg whole," "like a little sand in the gas tank," "produces the same effect as a cobra does upon a rabbit," "like a demented beaver," "harder than threading a sewing machine with the motor running," "as quick as a scalded dog," "as quick as a hiccup," "as fine as frog hair," "as crazy as a road lizard," "as slick as boiled okra," "like being between the dog and the fireplug," "clings to the mind like a tattoo on the epidermis," and "as quiet as a coalmine." Some of these are influenced by my East Texas hillbilly roots. If you are from New York, just listen to your cab driver. If you're from the West Coast land of fruits, nuts and flakes, the waiter in your fusion restaurant could be a good source. Below you'll find a few more examples of analogies, metaphors, and similes that might furnish a bite of fodder for a jury argument.  [Caveat: These anaolgies are descriptive. They can be used to describe your points and thoughts but descriptive analogies are not meant to form the bais of a logical inference or conclusion of fact. Don't use them for descriptive purposes unless the similarities between the situations, peolple or things are apparent and relevant and there are no substantial dissimilarities;also, remember that descriptive comparisons appeal to emotion;so go easy; the worst thing you can do is lard an argument with too many descriptive analogies; they'll suck the sincerity out of your logical points.] 


SOME SAMPLE ANALOGIES, METAPHORS, AND SIMILES

  +Bad cop - rotten apple in law enforcement barrel - (Name the officer) is a rotten apple in the law enforcement barrel.
  +Bees of buzzards - We are all bees or buzzards - we look either for that which is alive and beautiful or for that which is dead and decaying. We find what we seek.
  +Black arm band on Lady Justice - Don't return a verdict that will put a black arm band on the goddess of justice.
  +House of cards - Did you ever try to build a house of cards? Well, their case (gesturing to the opposition's counsel table is built like a house of cards. It's only as stable as as the first foundation card. That foundation card has (name the opposition witness) name on it. It's too bent and twisted to support the opposition's house cards.
  +Cases tried on rocks of fact not on clouds and fogs of suspicion - A famous American lawyer told us many years ago that cases are tried on the rocks of facts and not on the clouds and fogs of suspicion. In order to find the defendant guilty in this case, you must be willing to condemn him on suspicion, speculation, and guesses. I submit that the twelve (or six) of you are ministers of fairness and a great ship called "Justice." You must guide that great ship toward the port of "Truth." Don't cut loose from your moorings and launch out from a sage harbor into the broad ocean of surmise and conjecture.
  +Stand in shade - Around this part of the country, some people would say that (name the witness who seemed confused and unreliable) needs to "go stand in the shade."
  +Temple of justice - This courtroom is a temple of justice for this case. In it there is no room for bias or revenge or revulsion.
  +Trees and shadows - Character is like a tree, and reputation is like its shadow. The shadow is only an impression of the tree; the tree is the real thing.
  +Flea in a grain bag - (Describe the task) was as hard as trying to find a flea in a grain sack.
  +Evil - Evil is a hill. Everyone gets on his own and speaks about someone else's. (African proverb)
  +Whistling past the graveyard - We would be whistling past the graveyard if we didn't face the fact that (state the fact that can't be ignored).
  +Serpent - There was a serpent hidden in that femininity.
  +Birds of a feather - Birds of a feather flock together.
  +Dog barking at moon - (Name the person) is nothing more than a dog barking at the moon.
  +Home as castle - A man's home, though it may be a hovel, is his castle.
  +Home as castle - "The house of everyone is to him as his castle and fortress, as well for his defense against injury and violence as for his repose." (Sir Edward Coke)
  +Lead to illustrative analogy - Let me give you an illustration that is to the point:
  +Mouth over loads brain - (Name the person) is an intemperate person who lets his mouth overload his brain.
  +Shipwrecked by laughter of gods - "Whoever undertakes to set himself up as a judge in the field of Truth and Knowledge is shipwrecked by laughter of the gods." (Albert Einstein)
  +Squirrel on freeway - (Name the person) had more trouble than a squirrel on an eight-lane freeway.
  +Juror as soldier on field of battle - Jury service honorably performed is as important in the defense of our country, its Constitution and laws, and the ideals and standards for which they stand, as the service that is rendered by the soldier on the field of battle in time of war.
  +Laws as spider's cobweb - Such laws do rightly resemble the spider's cobweb because they take hold of little flies and gnats which fall into them, but the rich and mighty will break and run through them at will.
  +Boots - A lie can be half-way around the world before the truth has its boots on.
  +Lonely as turtle dove - (Name the person) is as alone as a turtle dove that has lost her mate.
  +Churn and long face - (Name the person) face was so long he could drink out of a churn.  
  +Camel and memory - (Name the person) mind stored facts like a camel stores water.
  +Feet in milk bucket - (Name the person) got both feet in the mild bucket.
  +Plague, earthquake and opinion - "Opinion has caused more trouble on this planet than plagues and earthquakes."  (Voltaire)
  +Fight between bald men for a comb - This whole pointless and unnecessary controversy is like a fight between two bald men over a comb.
  +Prejudice - "Prejudice is the child of ignorance." (William Hazlitt)
  +Prejudice - Prejudice is an opinion without judgment.
  +Public - "The public is a ferocious beast; one must either chain it up or flee from it." (Voltaire)
  +Lawyer like dentist pulling truth out of people - An untruthful witness will sometimes try to play games with you on cross-examination. You've got to be like a dentist. Go in there with a pair of pliers and keep pulling until you finally pull the truth out of him.
  +Ribbon on opponent's package - Do you get the impression that opposing counsel feels like s/he has to hand you this case in a neatly wrapped package with a ribbon on it?
  +Sharp witness - (Name the witness) was sharp as a briar.
  +Oily con-man - (Name the witness) reminds me of some lyrics from a stage play, My Fair Lady, - "Oozing charm from every pore, he oiled his way around the floor."
  +Sour face - (Name the witness) was so sour he looked like he had been weaned on pickle juice.
  +Lost ball in ditch - (Name the person) is a lost ball in the high weeds.
  +Stupid as a goose - (Name the person) was as stupid as a goose.
  +Talkative witness as Roman candle - (Name the person) is a Roman candle of ideas, spinning off sparks, noise, and smoke.
  +Tongue under brick - His tongue couldn't be stopped if you put it under a brick.
  +Vaccinated with Victrola needle - The Lord must have vaccinated (name the witness) with a Victrola needle. You can't get him to stop talking.
  +Tarred with same brush - (Indicate the group) all got tarred with the same brush.
  +Natural fertilizer - (Name the witness) testimony has the aroma of natural fertilizer.
  +Time's tooth and truth - Time, whose tooth gnaws away everything else, is powerless against truth.
  +Gravity - (State the fact) is as real as gravity. Whether you believe in Newton's, Einstein's, or someone else's explanation of it, the fact is that the apples still falls. We can't deny gravity, and we can't deny (state the undeniable fact).
  +Actions speak - Actions speak louder than words.
  +Looks like donkey - Under any definition, if it looks like a donkey, smells like a donkey, and acts like a donkey, undoubtedly it is a donkey.
  +Texas on its panhandle - Texas could stand on its panhandle by the time that (describe the event that will not come to pass).
  +Broken rake handle - (Name the person or item of evidence) is not worth a broken rake handle.
  +Cow paddy - (Name the person or item of evidence) was about as useful as a cow paddy (or cow plop).
  +Link in chain - A chain is only as strong as its weakest link.
  +Wall of silence - (Name the witness) broke the wall of silence.
  +Window of opportunity - You have before you a window of opportunity.
  +Turnip truck - (Name the witness) didn't come into town on the back of a truck full of turnips.
  +Spitting against the wind - (Name the witness) knows better than to spit against the wind.
  +Rented mule - (Name the person) beat him like a rented mule.
  +Squirrel on highway - (Name the person) had more trouble than a squirrel on an eight-lane highway.

Note: My guess is that most of these samples won't be analogies, metaphors or similes that you would use in your jury argument. That is good. I wouldn't use most of them either. They are simply here to give you a tiny glimpse of the world of figures of speech that are potentially available. Start a list of samples that appeal to you. For further target practice, here's a potpourri of common idiomatic expressions, some hackneyed, that might provide a starting point for inspiring you to begin your own compilation:

  • The witness (or prosecutor or defense lawyer) is:  putting the cart before the horse; trying to split hairs and count the pieces; barking up the wrong tree; in hot water; blowing hot and cold; running this into the ground; dragging a red herring into the case to throw you off the trail of truth; changing horses in midstream; beating a dead horse; leading you up the garden path; still wet behind the ears; the kind of person who would hit a man when he's down; a knight in shining armor; a nasty piece of work; calling the shots; salt of the earth; alike as two peas in a pod; straight as an arrow; backing the wrong horse; hitting below the belt; Mr. Big; the big banana; the big cheese; biting the bullet; leading you into a blind alley; a babe in the woods; enough to make the angels weep; not all there; small potatoes; enough to send shivers up your spine; trying to save his own bacon; jumping on the band wagon; batting with a sticky wicket; the greatest thing since sliced bread; burying his head in the sand.

  • The witness (or prosecutor or defense attorney): led you on a wild goose chase; fed you a cock-n-bull story; wears his heart on his sleeve; got cold feet; was on the horns of a dilemma; spilled the beans; let the cat out of the bag; was caught with his hand in the cookie jar; got caught red-handed; is afraid of his own shadow; was armed to the teeth; was left holding the bag; was cold-blooded; is tough as an old boot; was a whipping boy; was a scapegoat; worships the golden calf; had to eat humble pie; got caught flat-footed; jumped from the frying pan into the fire; has an axe to grind; beat around the bush; got itchy feet; tried to sell the accused down the river; sat up there grinning like a Cheshire cat;upset the apple cart; cried sour grapes; ate crow; showed his Achilles' heel.


  • [Re analogies, metaphors, and similes, you can take it from here. There's a gazillion of 'em out there. Read against the clock.Every top notch novel will provide you with some doozies. ]