Part III-A — Common Law Approach<\/strong><\/span><\/p>\n Good men everywhere praise the presumption of innocence. And be they Frenchmen, Germans, or Americans, they agree on the demand of the presumption in practice. Both here and abroad, the state\u2019s invocation of criminal sanctions demands a high degree of proof that the accused has committed the offense charged. To express the requisite standard of proof, common lawyers speak of the prosecutor\u2019s duty to prove his case beyond a reasonable doubt. And Continental lawyers invoke the maxim <\/em>in dubio pro reo \u2013 a precept requiring triers of fact to acquit in cases of doubt.<\/em><\/strong>((George P. Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases, <\/em>77 Yale L. J. 880, 880 (1968). ))<\/p>\n This post follows up on my discussion on the common and civil law approaches to the standards and burdens of proofs. \u00a0I began this series of posts<\/a> by setting out the background and discussing relevant terms and definitions.\u00a0 I then provided a brief overview<\/a> of how the common and civil law systems split off and developed over the centuries and how the reasonable doubt standard came about.\u00a0 I also touched upon the in dubio pro reo <\/em>principle as it relates to the standard of proof.\u00a0 In the next two posts I will separately discuss the common and civil law systems in order to compare and contrast their respective approaches to the standards and burdens of proof.<\/p>\n This is hardly a comprehensive exposition on comparative criminal proceedings.\u00a0 Nonetheless, it may be a useful primer for advocates unfamiliar with either common law or civil law proceedings who may find themselves in one of the international or internationalized courts.\u00a0 Criminal proceedings in these courts are hybrid, combining both common and civil law modalities.\u00a0 Judges in these courts come from different legal traditions with different notions of standards and burdens of proof.\u00a0 The trial proceedings in these courts reveal that many of the judges \u2013 being prisoners of their own legal traditions and obdurately resistant to understanding the fundamental precepts of adopted modalities from legal traditions other than their own \u2013 tend to interpret and apply the hybrid rules of procedure and evidence with little, if any, deference to the intended purpose of the rules and procedure of these sui generis<\/em> courts.<\/p>\n Defense lawyers appearing before these judges should, at a minimum, have a modest understanding of the two major legal traditions.\u00a0 How judges from the various systems within these legal traditions view standards and burdens of proof may yield some profit in making strategic and tactical decisions during the proceedings and in effectively formulating submissions before them.<\/p>\n Common Law Systems<\/em><\/strong><\/p>\n The reasonable doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual errors. The standard provides concrete substance for the presumption of innocence \u2013 that bedrock \u201caxiomatic and elementary\u201d principle whose \u201cenforcement lies at the foundation of the administration of our criminal law<\/em>.\u201d((In re Winship<\/em>, 397 US 358, 362-63 (1970), (emphasis added, internal citations omitted) (hereinafter \u201cWinship<\/em>\u201d). ))<\/p>\n As we saw in the previous post, Winship <\/em>read this right into the US Constitution, holding the State (prosecuting authorities) to the standard of proof beyond a reasonable doubt.\u00a0 This standard is applied with other constitutional rights fundamental to the guaranteed due process rights \u2013 rights which are explicitly set out in the International Covenant on Civil and Political Rights (\u201cICCPR\u201d), and other regional conventions, such as the European Convention on Human Rights (\u201cECHR\u201d),((See, e.g.<\/em> ICCPR, Art. 14(1), ECHR, Art. 6(1). )) and which apply at the international courts.((Statute of the International Court for the Former Yugoslavia (\u201cICTY\u201d), as amended September 2009, Art. 21; Statute of the International Court for Rwanda (\u201cICTR\u201d), as amended January 2010, Art. 20; Rome Statute of the ICC, A\/CONF.183\/9, 17 July 1998, Art. 67; Statute of the Special Tribunal for Lebanon (\u201cSTL\u201d), S\/RES\/1757 (2007), Art. 16; Statute of the Special Court for Sierra Leone (\u201cSCSL\u201d), 16 January 2002, Art. 17; Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia (\u201cECCC\u201d), NS\/RKM\/1004\/006, 27 October 2004, Art. 35 new.))<\/p>\n The proceedings in common law systems, also referred to as Anglo-Saxon, <\/em>are adversarial. \u00a0Defense lawyers must zealously represent their clients within the contours of the rules of procedure and evidence, and to the maximum extent permitted by the professional code of conduct and ethics. \u00a0Robustly raising every conceivable doubt by every conceivable acceptable means is expected, even at the expense of the <\/em>truth.\u00a0 As such, it is not<\/em> unethical or legally (or even morally) inappropriate for a defense lawyer during cross-examination to attempt to impeach, discredit, disarm or confuse a witness on matters about which the defense lawyer knows the witness to have told or to be telling the truth.((See <\/em>Monroe H. Freedman, Getting Honest about Client\u2019s Perjury <\/em>21 Geo. J. Legal Ethics (2008) 133, addressing the defense lawyer\u2019s obligation to put the prosecution to its proof in every way, and present every valid legal and factual defense that may benefit their clients, short of knowingly presenting false evidence or making false representations to the court. For an excellent treatment on the distinct roles and functions of defense lawyers and prosecutors, see <\/em>Daniel Markovits, A Modern Legal Ethics: Adversary Advocacy in a Democratic Age 79-90, 92-95, 103-110 (Princeton University Press 2008). )) The duty of a defense lawyer in that system is to put the prosecutor to his\/her proof and burden.\u00a0 This is because in common law proceedings the trier of fact<\/em> (jury or judge) is not required actively to seek the truth; it need only decide whether the evidence produced during the proceedings substantiates the charges and proves beyond a reasonable doubt the elements of the charged crimes.<\/p>\n Common law systems are party driven. The judge does not actively engage in questioning the witnesses in order to get to the truth. While judges control the flow of the proceedings and in some instances may question witnesses (primarily for clarification purposes), they are not engaged in a truth-seeking<\/em> mission.\u00a0 It is not their task to search for evidence or witnesses believed to be essential for establishing the truth, guilt or innocence, though, in some common law systems, allowances are made, giving judges discrete latitude in calling witness, questioning witnesses and commenting on the evidence. \u00a0For instance, some jurisdictions permit judges to call witnesses ex proprio<\/em> motu<\/em> or at the suggestion of the parties((In the US, Federal Rules of Evidence (\u201cFRE\u201d), Rule 614(a); In the UK, see<\/em> Regina v. Cleghorn<\/em>, (1967) 2 Q.B. 584, stating that the discretion to call witnesses proprio motu<\/em> should be used sparingly and with the sole purpose of ensuring that justice be served, so as not to interfere with the discretion of counsel to mount its case.)) (including expert witnesses),((FRE Rule 706.)) raise defenses on behalf of the accused and instruct the jury to consider the defense as an alternative to any other defenses raised by the accused,((See <\/em>UK cases Regina v. Johnson<\/em>, [1989] 1 W.L.R. 740; Regina v. Newell<\/em>, [1989] Crim. L.R. 906, addressing the judge\u2019s duty to instruct the jury on alternative defenses.\u00a0 See also <\/em>Sean Doran, Alternative Defences: The \u201cInvisible burden\u201d on the Trial Judge<\/em>, Crim. L.R. 878 (Dec. 1991) (hereinafter \u201cDoran\u201d), describing the duty on the judge as an \u201cinvisible burden\u201d to put before the jury a possible defense which has not been raised by either party.)) and sum up or comment on the evidence for the jury\u2019s consideration in its deliberation.((See<\/em> UK cases Regina\u00a0v. Brower,<\/em>\u00a0[1995] Crim. L.R. 746; Regina\u00a0v. Evans,\u00a0<\/em>(1990) 91 Crim. App.R. 173; Regina v. Sparrow,\u00a0<\/em>[1973] 1 W.L.R. 488, addressing the judge\u2019s duty to sum up and, if necessary, comment on the evidence.\u00a0 See also <\/em>Stephen A. Saltzburg, The Unnecessarily Expanding Role of the American Trial Judge<\/em>, 64(1) Virginia L. Rev. 1-81 (1978), (hereinafter \u201cSaltzburg\u201d) disagreeing with the judge\u2019s authority to sum up and to comment upon evidence and urging that trial judges be granted only the most limited authority to call and to interrogate witnesses.))<\/p>\n Some US jurists have expressed mixed views on these discretionary powers entrusted to judges.\u00a0 Two excellent examples are from US Federal Judge Jack B. Weinstein, author of a seminal treatise on evidence, and US Supreme Court Justice Felix Frankfurter.<\/p>\n Judge Weinstein:<\/p>\n A great deal of the dispute about the matter is caused by differences between rhetoric affirming the court\u2019s power and the practice where the judge tends to act as an impartial arbiter in our adversarial system.\u00a0 Much difficulty would be avoided if it were clearly understood that the court trying a case should have, and does have, no views as to which side ought to win, or how much a plaintiff in a civil case should recover, or whether a defendant in a criminal case \u2013 unless and until he is convicted \u2013 should be punished.<\/p>\n If a reasonable juror could find either way, the juror is entitled not to have the court throw its enormous prestige in to the scale on the side of one litigant or the other.((Jack B. Weinstein & Margaret A. Berger, Weinstein\u2019s Evidence: Commentary on Rules of Evidence for the United States Courts and State Courts, \u00a7 107[1], at 8, as cited <\/em>in Saltzburg, p. 41.))<\/p>\n Justice Frankfurter:<\/p>\n Federal judges are not referees at prize fights, but functionaries of justice\u2026. As such, they have a duty of initiative to see that the issues are determined within the scope of the pleadings, not left to counsel\u2019s chosen argument\u2026. [A] Federal judge \u2026 has the power to call and examine witnesses to elicit the truth\u2026. He surely has the duty to do so before resorting to guesswork in establishing liability for fault.((Johnson v. United States<\/em>, 333 U.S. 46, 54 (1948), Frankfurter J. dissenting, (internal citations omitted). ))<\/p>\n Arguably, even in common law systems there may<\/em> be an element of truth seeking<\/em>, though it is the parties (prosecution and defense lawyers) who \u201cuncover\u201d the truth by thoroughly testing and examining the evidence within strict evidentiary and procedural boundaries.<\/p>\n Common law judges tend to be overly cautious in attempting to avoid any appearance of favoring one party over the other. \u00a0Speaking on the issue of seeking the truth in common law trials, Judge Frank starkly observes:<\/p>\n What influences juries, courts seldom know. Indeed, most courts (including the federal courts) not only do not diligently seek such knowledge but have a general policy of deliberate unwillingness to learn\u2013and usually seal up the only possible sources from which they could learn\u2013what occurred in the jury-room. As we recently said, per Judge Learned Hand, this policy stems from awareness that, were the full truth disclosed, it is doubtful whether more than 1% of verdicts could stand.((United States v. Farina<\/em>, 184 F.2d 18, 21 (2d Cir. 1950), Frank J. dissenting.))<\/p>\n Any attempts by the judges to seek the truth \u2013 be it by investigating for evidence or extensively questioning witnesses during the trial (beyond asking the occasional question for clarification) \u2013 would, at a minimum, give rise to an appearance of bias or lack of judicial independence.<\/p>\n \u201cThe adversarial system trusts the parties to properly and honestly present their side of the argument, and expects that the truth will emerge from a robust presentation of each side\u2019s case.\u201d((Felicity Nagorcka, Michael Stanton & Michael Wilson, Stranded between Partisanship and the Truth? A Comparative Analysis of Legal Ethics in the Adversarial and Inquisitorial Systems of Justice<\/em>, 29 Melb. U. L. Rev. 448, 465-66 (2005) (hereinafter \u201cNagorcka\u201d). )) This system requires the parties to be active: to investigate and gather evidence, and to select the witnesses and documents they believe are relevant to their respective cases, subject to judicial scrutiny and approval.<\/p>\n The common law prosecutor is not merely adversarial; he\/she also has a duty to do justice, which trumps the adversarial imperative to prevail. Or as the US Supreme Court put it:<\/p>\n The role of a prosecutor is to see that justice is done. \u201cIt is as much [a prosecutor’s] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.\u201d((Connick v. Thompson<\/em>, 563 U.S. 51, 71 (U.S. 2011) (internal citations omitted), quoting Berger v. United States,<\/em> 295 U.S. 78, 88, 55 S. Ct. 629, 79 L. Ed. 1314 (1935). ))<\/p>\n Defense lawyers are responsible for consulting with their client, developing a theory of the case (proposed factual findings and legal conclusions), deciding whether to question prosecution witnesses at trial, selecting any witnesses from whom they may wish to adduce evidence, examining witnesses, and presenting arguments at trial.<\/p>\n Defense lawyers are permitted to engage the witnesses: searching for witnesses, talking to them, taking statements, collecting material from them, summarizing their expected testimony, arranging for their voluntary participation (and compelling them through a court summons if necessary and when possible) and proofing them in preparation of their anticipated evidence. \u00a0Indeed, in the US system, defense lawyers have a duty to investigate, and failure to engage in such reasonable inquiry may result in counsel being found ineffective.<\/p>\n \u2026[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.((Strickland v. Washington, 466 U.S. 668, 690-691 (U.S. 1984). ))<\/p>\n Considering that in the party driven system through the questioning of witnesses the examiner is advancing his\/her theory of the case, proofing (preparing, not coaching) is essential to focus the witnesses on the nature and relevant areas of the examination. Without thoroughly discussing and analyzing the testimony with the witness, the examiner will not be able to control the narrative and make the points essential for presenting the defense\u2019s case.<\/p>\n At trial, defense lawyers are permitted to cross-examine prosecution witnesses (mostly through leading questions) to challenge or diminish the prosecution\u2019s case and thus advance the defense\u2019s case.\u00a0 Defense lawyers are in control of presenting their cases during the proceedings in the manner they<\/em> see fit, constrained only by the parameters of the applicable rules of procedure and evidence.<\/p>\n Through motion practice, defense lawyers attempt to structure the contours of the applicable law and control the admission of evidence.\u00a0 During the pre-trial stage of the proceedings, all sorts of objectionable issues can be raised, such as challenges to the jurisdiction of the court, the form and substance of the indictment, the admissibility of certain evidence, etc.\u00a0 During the trial proceedings, defense lawyers must be vigilant to raise all necessary and reasonable objections.<\/p>\n Ultimately, the goal is to have a trial record from which defense lawyers can argue their case.\u00a0 The defense lawyer cannot satisfy his\/her due diligence duty and protect the client\u2019s fair trial rights without ensuring that errors committed during the pre-trial and trial stage of the proceedings are preserved on the record. \u00a0Preserving errors during the pre-trial and trial proceedings for the purpose of appeal is one of the most important due diligence obligations of a defense lawyer.\u00a0 The consequences of not having a record can be devastating.\u00a0 On appeal, the court will be limited to the pre-trial and trial record consisting of all submissions (motions, responses, replies, etc.), court rulings (orders, decisions, and judgments), hearings, the trial itself (transcripts), all exhibits admitted in evidence, and exhibits found inadmissible.\u00a0 Failing to timely raise and address an issue, and failing to ensure that it is reflected in the record, prevents a higher court of review from considering any errors in law or fact.\u00a0 As Stanley Neustadt puts it: \u201cFor us [US \/ common law] appellate lawyers, the eight most embittering words in the lexicon are this issue is not preserved for appellate review<\/em>.\u201d((Professor Stanley Neustadter\u2019s presentation at the Benjamin N. Cardozo School of Law Intensive Trial Advocacy Program in January 2014 (emphasis added). Professor Neustadter is the Director of the Criminal Appeals Clinic at the Benjamin N. Cardozo School of Law.))<\/p>\n Thus, in order to make a record, defense lawyers must conduct a thorough investigation to search for evidence, make all necessary written and oral submissions related to the law and facts, and address all relevant evidentiary objections in a timely and coherent fashion.\u00a0 With a record that has properly preserved all errors committed during the pre-trial and trial proceedings, a defense lawyer just might be able to resurrect a client\u2019s case on appeal.<\/p>\n Burden(s) of proof and evidentiary standards<\/em><\/strong><\/p>\n In common law systems, the term \u201cburden of proof\u201d can have two different meanings.<\/p>\n The primary meaning refers to the duty of a party to persuade the trier of fact by the end of the case of the truth of certain allegations as presented by the parties.((Mojtaba Kazazi, Burden of Proof and Related Issues: A Study on Evidence Before International Tribunals 22 (Martinus Nijhoff Publishers 1996) (hereinafter \u201cKazazi\u201d), providing general comparative observations regarding the burden and standard of proof in common and civil law systems.)) This is also called the \u201cburden of persuasion\u201d or \u201cthe risk of non-persuasion.\u201d((Kazazi, p. 22. See also <\/em>Juliane Kokott, The Burden of Proof in Comparative and International Human Rights Law: Civil and Common Law Approaches With Special Reference to the American and German Legal Systems 2-9 (Martinus Nijhoff Publishers 1998) (hereinafter \u201cKokott\u201d), clarifying the terminology and comparing the German and American systems with regard to the issue of burden of proof.)) The prosecution always bears the burden of persuasion in establishing the guilt of the accused by proving the charges beyond a reasonable doubt.\u00a0 This burden of proof remains on the prosecution throughout the trial. \u00a0Defense lawyers can remain silent during the trial proceedings yet still argue that the prosecution failed to prove the charges beyond a reasonable doubt.\u00a0 Presumed innocent throughout the trial, the accused is under no obligation to present any evidence, save for when raising a defense, and no adverse inferences can be drawn from a failure to advance any evidence contrary to what is presented by the prosecution or from remaining silent. In some common law jurisdictions, such as the United Kingdom (\u201cUK\u201d), an adverse inference may be drawn from the accused\u2019s silence at trial,((Section 35 of the UK Criminal Justice and Public Order Act 1994.)) however, the judge must tell the jury that the burden of proof remains upon the prosecution throughout, remind the jury of the accused\u2019s right to remain silent, and that an inference from failure to give evidence cannot on its own prove guilt.((R v. Cowan<\/em>\u00a0[1996] Q.B. 373, setting out the steps that a court must take prior to a section 35 adverse inference being drawn.)) Quoting from the European Court on Human Rights in Saunders v. United Kingdom<\/em> Stefan Trechsel elegantly notes:<\/p>\n \u201cThe right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal trial seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right is closely linked to the presumption of innocence.\u2026\u201d\u00a0 It is the task of the prosecution to prove the guilt of the accused.\u00a0 The latter thus does not have to establish his or her innocence.\u00a0 A<\/em> fortiori<\/em> there is not the slightest duty on the defence to contribute to a conviction of, for that matter, to contribute in any way to the proceedings.((Stefan Trechsel, Human Rights in Criminal Proceedings 348 (Oxford 2005), quoting from Saunders v. United Kingdom<\/em>, App. No 19187\/91, 17 September 1996, para. 68.))<\/p>\n The secondary meaning of the term \u201cburden of proof\u201d relates to the duty of going forward in producing evidence to support an allegation of fact, also referred to as the \u201cburden of production,\u201d((Kazazi, p. 22.)) or \u201cevidential burden.\u201d((Colin Tapper, Cross and Tapper on Evidence 121-23 (Butterworth, 8th<\/sup> ed. 1995), discussing the \u201cevidential burden,\u201d as a party\u2019s obligation to show that there is sufficient evidence to establish the existence or non-existence of a fact in issue.)) This burden applies to the prosecution as well as the accused when advancing a defense, such as an affirmative defense: \u201can excuse or justification peculiarly within the knowledge of the accused, on which he can fairly be required to adduce supporting evidence.\u201d((See <\/em>Model Penal Code of the American Law Institute (1985), \u00a7 1.12(3)(c). )) \u00a0An affirmative defense is an acknowledgment: I did it, but for a legally justifiable reason.<\/em> Examples of affirmative defenses include self-defense, defense of others, and insanity.((See <\/em>Stephen M. Everhart, Putting a Burden of Production on the Defendant before Admitting Evidence that Someone Else Committed the Crime Charged: Is It Constitutional?<\/em> 76(2) Neb. L. Rev. 272, 288-292 (1997), analyzing various affirmative defenses and alibi.))<\/p>\n When advancing a defense, the defense lawyers must present the requisite amount of evidence before the burden of proof would shift to the prosecution to disprove the defense beyond a reasonable doubt. \u00a0For example, once the defense lawyers have produced the requisite amount of evidence for advancing self-defense, thus discharging their burden of production, the judge must<\/em> instruct the jury to consider the affirmative defense of self-defense as a complete justification and return a verdict of not guilty unless <\/em>the prosecution disproves self-defense beyond a reasonable doubt.<\/p>\n In advancing self-defense, some US states require evidence which \u201cwhen viewed in the light most favorable to the accused, might arguably lead a juror to entertain a reasonable doubt as to the defendant\u2019s guilt.\u201d((Lamont v. State<\/em>, 934 P.2d 774, 777 (1997). See also Frazier v. Weatherholtz<\/em>, 572 F.2d 994, 995 (4th Cir, 1978), holding that the burden of proving self-defense is on the accused, \u201cbut only to the extent of raising in the minds of the jury a reasonable doubt.\u201d)) Other US states require the defense lawyers to establish self-defense and other defenses by a \u201cpreponderance of evidence.\u201d((See Martin v. Ohio<\/em>, 480 US 228 (1987), requiring the proof by a preponderance of evidence for self-defense; Patterson v. New York, <\/em>432 U.S. 197 (1977), requiring the proof by a preponderance of evidence for the affirmative defense of extreme emotional distress.)) This standard, also referred to as the \u201cbalance of probabilities,\u201d is satisfied if there is a greater than fifty percent chance that the proposition is true.((Miller v. Minister of Pensions<\/em>\u00a0[1947] 2 All ER 372. For further discussion on the standards and burdens of proof see, generally, <\/em>James P. McBaine, Burden of Proof: Degrees of Belief<\/em>, 32(3) Cal. L. Rev. 242 (1944); William Trickett, Preponderance of Evidence and Reasonable Doubt<\/em>, 10 Forum 75, 86 (1905-1906); Jefferson Ingram, Criminal Evidence 73 (Routledge, 2014); Ronald Bacigal, Criminal Law and Procedure: An Overview 13 (Cengage Learning, 2008). ))<\/p>\n For an excellent, albeit dated research and analysis of US jurisprudence in relation to the burden of proof practices and the differing standards for raising defenses, I highly recommend George P. Fletcher\u2019s article Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases<\/em>.((George P. Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases<\/em>, 77(5) Yale L. J. 880 (1968) (hereinafter \u201cFletcher\u201d). \u00a0)) In his comparative study of the US and Germany, Fletcher analyzed the German system of criminal liability, explaining that defensive issues, such as self-defense or insanity, are considered as \u201cunavoidable steps in the process of determining guilt.\u201d((Fletcher, p. 916.)) He concluded that all claims which have a bearing on the accused\u2019s guilt or innocence are an integral consideration in the overall evaluation of the case. \u00a0As a result, the prosecution bears the risk of residual doubt on all of the issues.((Fletcher, p. 917.))<\/p>\n Similarly, in the UK, judges are not required to leave to the jury \u201cevery facile mouthing of some easy phrase of excuse\u201d submitted by the accused,((Bratty v. Attorney-General for Northern Ireland<\/em>, [1963] AC 386, 416-417.)) nor claims for which there is no \u201cscintilla of evidence.\u201d((DPP v. Walker\u00b8<\/em>[1974] 1 W.L.R. 1090, 1094. See, generally, <\/em>Richard May, Criminal Evidence mn. 4-08 \u2013 4-46 (Sweet & Maxwell, 3rd<\/sup> ed. 1995). )) For instance, when raising a defense of insanity, the defense lawyers have to establish it by a preponderance of evidence.((Sodeman v. Regem<\/em>, [1936] W. N. 190, requiring the proof on the balance of probabilities (preponderance of evidence) to establish the defense of insanity.\u00a0 See also<\/em> Timothy H. Jones, Insanity, Automatism, and the Burden of Proof on the Accused<\/em> 11 L. Q. Rev. 475 (1995), criticizing this standard as applied to the defense of insanity as conflicting with the presumption of innocence.)) When a defense is properly raised, the burden is on the prosecution to disprove it beyond a reasonable doubt, and not on the defense lawyers to prove it.\u00a0 In the UK, this rule \u201capplies to any defence, justification or explanation put forward by the defendant, e.g. <\/em>alibi, accident, automatism or duress.\u201d((Richard May, Criminal Evidence mn. 4-06 (Sweet & Maxwell, 3rd<\/sup> ed. 1995), relying, inter alia, <\/em>on Woolmington v. DPP <\/em>[1935] AC 462; Mancini v. DPP <\/em>[1942] A.C 1; Regina v. Moon <\/em>[1969] 1 W. L. R 1705; Regina v. Williams<\/em> [1987] 3 All E. R. 411.))<\/p>\n In the UK, a range of cases provide that \u201cif there is a reasonable possibility that, on one interpretation of the evidence, the accused may have a defence which has not been expressly raised by either party (usually \u2026 for tactical reasons), it is the judge\u2019s duty to put that defence before the jury.\u201d((Doran, p. 878 and n. 3, referring to Hopper<\/em> [1915] 2 K.B. 431; Mancini<\/em> v. D.P.P.<\/em> [1942] A.C.1, Porritt<\/em> (1961) 45 Cr.App.R. 348, Kachikwu <\/em>(1965) 52 Cr.App.R. 538 and Cascoe<\/em> [1970] 2 All E.R. 833; Johnson<\/em> (1989) 90 Cr.App.R. 148 and Newell<\/em> [1989] Crim.L.R. 906.)) Although this contrasts with the traditionally passive role of the judge in the proceedings, the underlying rationale is that \u201c[i]n a Court of justice it is for the Court, with the assistance of the jury, to arrive at the true view of the facts without paying too much attention to whether a particular witness is called by one side or the other.\u201d((Doran, p. 886.)) \u00a0Sean Doran describes this duty as the \u201cinvisible burden\u201d on the trial judge to instruct the jury on an alternative defense if this defense becomes apparent from the evidence presented at trial, even if it contradicts the defense lawyers\u2019 theory of the case.\u00a0 He points out that by doing so, the judge may effectively deprive \u201cthe accused of the \u2018all-or-nothing\u2019 chance which the adversary system permits him to take.\u2026:<\/p>\n [The judge\u2019s] duty should be regarded not in a negative way as means of salvaging the truth from the otherwise blinkered structure of the adversary trial, but as a positive and integral part of that trial format.\u00a0 In other words, it is simply a manifestation of the judge\u2019s responsibility to keep the law above the interests of the respective parties.((Doran, p. 888.))<\/p>\n The burden of production<\/em> is distinct from and should not be confused with the burden of persuasion<\/em> imposed upon the prosecution.\u00a0 As I\u2019ve noted, once the defense lawyers have provided sufficient evidence on a specific defense they raised, the burden of proof is on the prosecution to disprove that defense beyond a reasonable doubt; the judge mus<\/em>t instruct the jury to consider whether the prosecution has disproved beyond a reasonable doubt the claimed defense before finding a guilty verdict.<\/p>\n Distinguishing between these two meanings is important and necessary due to the distribution of functions between the judge and the jury.\u00a0 Generally, the trial judge decides questions of law, whereas the jury decides questions of fact.\u00a0 This explains why a jury is referred to as the fact-finder<\/em> (also know as the trier of fact<\/em>), a term that also applies to judges when conducting a non-jury trial, known as a bench trial<\/em>.((See<\/em> Rule 23 of the US Federal Rules of Criminal Procedure: \u201cIf the defendant is entitled to a jury trial, the trial must be by jury unless: (1) the defendant waives a jury trial in writing; (2) the government consents; and (3) the court approves.\u201d))<\/p>\n It is within this division of labor between the judge (as the law-giver) and the jury (as the fact-finder) that the judge throughout the trial proceedings will instruct the jury on its obligations and the various rights afforded to the accused. \u00a0For example, the US Court of Appeals for the Third Circuit\u2019s Model Criminal Jury Instructions, \u00a7 1.02 (2012) reads:<\/p>\n Under our system of justice, the role of the jury is to find the facts of the case based on the evidence presented in the trial. You must decide the facts only from the evidence presented to you in this trial.<\/p>\n From the evidence that you will hear and see in court, you will decide what the facts are and then apply to those facts the law that I will give to you in my final instructions. That is how you will reach your verdict. \u2026<\/p>\n I play no part in finding the facts. You should not take anything I may say or do during the trial as indicating what I think of the evidence or about what your verdict should be. My role is to make whatever legal decisions have to be made during the course of the trial and to explain to you the legal principles that must guide you in your decisions.((The US Court of Appeals for the Third Circuit, Model Criminal Jury Instructions (2012) available here<\/a>.))<\/p>\n For the accused to fully enjoy all of his\/her rights there must be a proper screening and assessing of the evidence.\u00a0 Most jurors have little experience in assessing the evidence objectively, and many of them have prejudices that are not easy to suppress. \u00a0Where the jury is the fact-finder, the judge must ensure that the evidence is properly screened so that jurors are not exposed to irrelevant, prejudicial, or unreliable evidence.\u00a0 Since this is a party driven system, the parties (prosecution and defense lawyers) are responsible for making timely applications for evidence to be either accepted or rejected by the judge. \u00a0To control and help the jury to assess the evidence objectively, the common law criminal procedure sets separate and detailed rules of evidence. \u00a0Applying these elaborate rules of evidence (though brief in text, there is wide-ranging jurisprudence and commentary on their application), the judge determines what evidence is admissible and what evidence is not. The basic test for the admissibility of evidence is that it be relevant, authentic, and reliable. Once the judge determines that the evidence is admissible and is worth considering, the jury will need to assess how much weight, if any, to give the evidence.<\/p>\n The trial judge instructs the jurors throughout the trial on their obligations and the various rights afforded to the accused. \u00a0The judge makes it explicitly clear in these instructions that the jurors should use their own judgment and common sense, and that they should give the benefit of the doubt to the accused, implicitly invoking the in dubio pro reo <\/em>principle.\u00a0 If there is any reasonable doubt from the totality of the evidence, the jury must acquit the accused.<\/p>\n Richard Uviller cogently describes the process of instructing the jury throughout the trial and how the reasonable doubt instruction is to be appreciated at the end of the trial:<\/p>\n Jurors are invariably instructed by the judge \u2013 usually several times \u2013 that they have the exclusive responsibility to find the facts; they are then told at length just how they are to go about finding those facts.\u00a0 Addressing the raw data accumulated during the trial (actually, the evidence is hardly raw, having been refined by evidentiary and constitutional filtration), the judge will enjoin the jury to use their ordinary faculties of judgment and common sense.\u00a0 Jurors are told how to weigh credibility, taking into account the demeanor of witnesses on the stand, tone of voice, eye movements, body language, attitude \u2013 all the various sorts of unconscious communications that often betray the liar and confirm the account of the truthful.\u00a0 The jury is told that the credibility of a witness may be attacked (\u201cimpeached\u201d) by evidence of bias, by contradiction of evidence from another source, or by inconsistency between the witness\u2019s trial testimony and some statement on the same matter previously made by the same witness.\u00a0 They are instructed that the defendant (if he testifies in his own behalf) and, in some instances, co-conspirators are biased as a matter of law because of their inherent stake in the outcome.\u00a0 Jurors are also instructed that other witnesses may be biased in fact for any one of a number of reasons, among them a personal or professional relationship to the defendant or victim or some personal interest in the outcome.\u00a0 At the same time, the jurors are reminded that even a biased witness may tell the truth.\u00a0 In general, they are advised they may either discard the discredited portions of an impeached witness\u2019s testimony and retain the rest, or they may disregard it all as the suspect product of an incredible source. Although they are enjoined to use their own \u201cjudgment\u201d on these matters, they are warned not to \u201cspeculate.\u201d\u00a0 They should find the facts on the basis of the supporting evidence, they are instructed, but they are also told that they may consider the lack of evidence along with the evidence on a point.((Richard Uviller, Acquitting the Guilty: Two Case Studies on Jury Misgivings and the Misunderstood Standard of Proof<\/em>, 2 Crim. L. F. 1, 18-19 (1990) (hereinafter \u201cUviller\u201d). ))<\/p>\n As can be seen, the jury is not merely instructed (charged) at the end of the trial with the reasonable doubt instruction (however defined). The trial judge cautions the jury throughout the trial on how to consider the evidence presented under the appropriate standard. \u00a0At the end of the trial the jury is reminded that it has the exclusive responsibility to assess the evidence.\u00a0 It is for the jury to determine whether, and to what extent, all elements of all charged crimes have been proven to the standard of proof beyond a reasonable doubt \u2013 a standard that for all intents and purposes amounts to near certainty (since few things in life can be proved with absolute certainty).((Fletcher, p. 933.))<\/p>\n When the jurors are told to apply the reasonable doubt standard in evaluating the evidence, they are told nothing about whether they must apply some objective, majoritarian perspective in evaluating doubt or to apply their own individualistic, subjective evaluations.\u00a0 Uviller has insightfully described the tension between the \u201cobjective\u201d and \u201csubjective\u201d interpretations of the reasonable doubt standard. \u00a0He explains that the \u201cobjective\u201d and \u201csubjective\u201d are two possible ways of understanding the reasonable doubt standard:<\/p>\n Under the objective understanding, if juror A concedes that juror B has a persistent, good faith doubt based on the evidence, then juror A must vote \u201cnot guilty\u201d even though she does not share juror B\u2019s doubt. Even if jurors conclude only that some imaginary, conscientious juror might entertain some doubt concerning the defendant’s guilt, the objective view would acknowledge a reasonable doubt in the case and require the jury to acquit though none of them actually doubts the defendant\u2019s guilt.<\/p>\n Under the subjective interpretation, the question is first whether an individual juror, carefully weighing all the evidence and giving due consideration to the views of fellow jurors, personally doubts the guilt of the defendant. If this step produces a subjective sense of doubt in a juror’s mind, the juror must ask himself the next question: whether the doubt is reasonable. Under this subjective reading, if a juror personally has no reasonable doubt, then notwithstanding the imperfections in the proof that might give others reason for doubt, the juror should vote \u201cguilty.\u201d((Uviller, p. 30.))<\/p>\n Uviller correctly argues that the subjective understanding is the right one: doubt is an individual matter; jurors must not abandon their personal conclusions or vote against their judgment.((Id<\/em>., p. 32.))<\/p>\n Robert C. Power (relying on observations by US Federal Circuit Court Judges Patricia Wald and Jerome Frank), argues:<\/p>\n Experience with the reasonable doubt standard, as well as common sense, support the realist criticism that judges and academics overstate the importance of legal doctrine. Our modern and somewhat jaded \u201crealistic\u201d view is that jurors generally disregard the judge\u2019s instructions and just do what they want to do. Judge Wald writes that \u201cthe reasonable doubt standard is essentially irrelevant to the everyday workings of the criminal justice system.\u201d This irrelevance results not only from the use of guilty pleas and prosecutorial discretion, but also because juries do not apply the standard. For example, \u201cfew judges \u2026 believe that every jury slavishly and precisely follows the beyond-a-reasonable-doubt standard in deciding guilt or innocence.\u201d Judge Wald\u2019s connection to the realist view is cemented by her affirmation of Judge Frank\u2019s comment that \u201cwere the full truth declared [sic] [as to what goes on in the jury room] it is doubtful whether more than one percent of verdicts could stand.\u201d((Robert C. Power, Reasonable and Other Doubts: The Problem of Jury Instructions<\/em>, 67 Tenn. L. Rev. 45, 48 (1999-2000) (hereinafter \u201cPower\u201d), citing <\/em>Patricia M. Wald Guilty Beyond a Reasonable Doubt: A Norm Gives Way to the Numbers<\/em>, 1993(1) U. Chi. Legal F. 101, 101 (1993). ))<\/p>\n But what about when the factfinder in a criminal case is the judge, to what extent does it alter the dynamics of the trial proceedings?\u00a0\u00a0 Is some US states, such as Pennsylvania and Illinois, it is a common phenomenon.\u00a0 Effectively, there is no real difference in the assessment of the evidence, though arguably, the judicial fact-finder may be less prone to succumb to passion or prejudice, as some lay jurors are occasionally likely to do. \u00a0Here are some illuminating quotes:<\/p>\n The function of a judge trying a case without a jury is twofold: [the judge] is a\u00a0finder of fact, as well as an arbiter of the law. The responsibility is burdensome. But the task becomes too great when we require a judge who has heard evidence of guilt, to objectively and coldly assess a distinct issue as to the voluntariness of the confession. Objectivity cannot be guaranteed, and reliability must be questioned. Jackson\u00a0properly construed, prohibits the finder of fact from passing on the voluntariness of a confession since its decision as to voluntariness could be colored by evidence as to guilt.((United States ex rel. Spears v. Rundle, 268 F.Supp. 691, 695 (E.D.Pa.1967)<\/a><\/em>, aff\u2019d. 405 F.2d 1037 (3d Cir. 1969)<\/a>\u00a0(per curiam). ))<\/p>\n and<\/p>\n [W]e should not rely upon the fiction of a judicial blind side.\u2026 I do not conclude that there should be a wholesale application of the rules of evidence as they apply to jury trials to\u00a0judges\u00a0sitting as the\u00a0fact-finder. To do so would deprecate a judge\u2019s long years of study and experience, and his dedication to the ends of justice and fairness. However, to assume qualities of restraint and logic in a judge which we do not assume in a layman does not mean that we should overlook that judges are subject to human nature, or that we should not continuously seek to assure fairness in cases where\u00a0judges\u00a0act as the\u00a0fact-finder.((Commonwealth v. Goodman<\/em>, 221 Pa.Super. 73, 79-80, 289 A.2d 186, 189 (Spaulding J. dissenting) (1972)<\/a>. ))<\/p>\n But see<\/em><\/p>\n Under both the Illinois and the Federal Rules of Evidence, an expert may base an opinion on facts that are \u201cmade known to the expert at or before the hearing,\u201d but such reliance does not constitute admissible evidence of this underlying information. Ill. Rule Evid. 703; Fed. Rule Evid. 703.\u00a0Accordingly,\u00a0in jury trials<\/em>, both Illinois and federal law generally bar an expert from disclosing such inadmissible evidence. In bench trials, however, both the\u00a0[2235]\u00a0\u00a0Illinois and the Federal Rules place no restriction on the revelation of such information to thefactfinder. When the\u00a0judge\u00a0sits as the trier of fact, it is presumed that the judge will understand the limited reason for the disclosure of the underlying inadmissible information and will not rely on that information for any improper purpose. As we have noted, \u201c[i]n bench trials, judges routinely hear inadmissible evidence that they are presumed to ignore when making decisions.\u201d\u00a0Harris\u00a0v.\u00a0Rivera<\/em>, 454 U.S. 339, 346, 102 S. Ct. 460, 70 L. Ed. 2d 530 (1981)\u00a0(per curiam<\/em>).\u00a0There is a \u201cwell-established presumption\u201d that \u201cthe judge [has] adhered to basic rules of procedure,\u201d<\/em> when the\u00a0judge\u00a0is acting as a\u00a0factfinder.\u00a0Id<\/em>.,\u00a0at 346-347, 102 S. Ct. 460, 70 L. Ed. 2d 530 (emphasis added).\u00a0See also\u00a0Gentile\u00a0v.\u00a0State Bar of Nev<\/em>.,\u00a0501 U.S. 1030, 1078, 111 S. Ct. 2720, 115 L. Ed. 2d 888 (1991) (Rehnquist, C. J., dissenting).((Williams v. Illinois<\/em>, 132 S. Ct. 2221, 2234-2235, 183 L. Ed. 2d 89, 106, 2012 U.S. LEXIS 4658, *34-35, 80 U.S.L.W. 4434, 83 A.L.R. Fed. 2d 649, 23 Fla. L. Weekly Fed. S 355, 2012 WL 2202981 (U.S. 2012) (italics in original). ))<\/p>\n In sum<\/em><\/strong><\/p>\n In the party driven adversarial proceedings of common law systems, the standard of proof applied by the trier of fact in determining whether the prosecution has proved all the elements of the charges is the reasonable doubt standard.\u00a0 Defense lawyers are not required to present any evidence, save for when raising a defense, and, even then, the evidence need not rise to the reasonable doubt standard. \u00a0Defense lawyers can remain silent during the trial proceedings yet still argue that the prosecution failed to prove the charges beyond a reasonable doubt.\u00a0 An accused\u2019s silence or lack of presentation of evidence does not factor into the equation as to whether the prosecution has proved its case beyond a reasonable doubt.\u00a0 Nonetheless, it is worth stressing the duty of due diligence and the necessity of preserving errors in the record for the appeal.\u00a0 If the record is not perfected, the issue is waived.\u00a0 A failure to make the record may strip the accused (client) of a chance to overturn a conviction (or preserve an acquittal, since double jeopardy at international and internationalized hybrid courts does not attach until all appeals are exhausted).\u00a0 As one judge fittingly put it: God may know, but the record must show<\/em>.((Jones v. Vacco<\/em>, 126 F.3d 408, 417 (2d Cir. 1997). ))<\/p>\n As for the standard of proof, as shown in the previous post, there is no definitive definition on what amounts to reasonable doubt that is universally applied in the common law systems.\u00a0 Defining reasonable doubt without injecting terms into the definition that also require definition remains a pesky conundrum.\u00a0 Reasonable doubt definitions are ubiquitously elusive, containing terms that require explanations or further defining, and with every attempt to explain or define these terms, further attempts are made to illustrate a term\u2019s meaning by way of analogy or example.\u00a0 All of these attempts to define, explain, and analogize the definition of reasonable doubt has often led appeal courts to question the accuracy, clarity, and legality of the definitions ascribed to the simple instruction that is required to be given: the prosecution solely bears the burden of proving each element of each charge beyond a reasonable doubt<\/em>. \u00a0In his dissent in United States v. Guglielmini<\/em>, Judge Moore aptly muses:<\/p>\n Some day the courts may recognize the utter impossibility of conveying metaphysical concepts to a jury and approve a simple charge, if charge be needed at all, such as \u201creasonable doubt is a doubt based on reason.\u201d Such simplicity, of course, might well be anathema to the Law \u2013 hence, clarity (or probably greater confusion) is supplied by \u2026 clich\u00e9s\u2026.((United States v. Guglielmini<\/em>, 384 F. 2d 602, 608 (2d Cir. 1967). ))<\/p>\n Though I have merely scratched the surface in describing the party driven adversarial proceedings of common law systems, it should be clear that defense lawyers are not spectators at any phases of the proceedings.\u00a0 They cannot take for granted that the prosecution will search for and properly collect exculpatory evidence.\u00a0 They cannot assume that the judges will raise and preserve errors for the accused.\u00a0 And they cannot assume that an adequate record will be made without making the requisite effort to do so in a timely fashion.<\/p>\n In the upcoming Part III-B, I will provide an overview of civil law based systems.\u00a0 We will see that defense lawyers in these systems can be relatively passive because the investigative authorities (judge or prosecutor, depending on the system) are exclusively responsible for conducting the investigation and collecting the evidence objectively and comprehensively and without passion or prejudice \u2013 in theory, at least \u2013 while the trial judges can be depended on \u2013 again, in theory \u2013 to conduct the questioning that will get as close to the truth as possible.<\/em><\/p>\n Posts in this series:\u00a0<\/strong><\/p>\n Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof<\/a><\/p>\n Historical Aspects of the Standard of Proof Beyond a Reasonable Doubt & The Principle of In Dubio Pro Reo<\/em><\/a><\/p>\n Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof,\u00a0Part III-A \u2013 Common Law<\/a><\/p>\n Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof, Part III-B \u2013 Civil Law<\/a><\/p>\n Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof, Part IV<\/a><\/p>\n![\"innocent-until-proven-guilty\"](\"https:\/\/i0.wp.com\/michaelgkarnavas.net\/blog\/wp-content\/uploads\/2016\/06\/innocent-until-proven-guilty.jpg?resize=300%2C198&ssl=1\")
<\/a>The presumption of innocence, also referred to by the Latin expression ei incumbit probatio qui dicit, non qui negat<\/em> (the burden of proof is on the one who declares, not on the one who denies), means that one is considered innocent unless proven guilty.((See <\/em>International Covenant on Civil and Political Rights (\u201cICCPR\u201d), Art. 14(2); European Convention on Human Rights (\u201cECHR\u201d), Art. 6(2); American Convention on Human Rights (\u201cACHR\u201d), Art. 8(2). )) \u00a0In common law systems, the presumption of innocence is safeguarded by placing on the prosecution the burden of establishing the accused\u2019s guilt beyond a reasonable doubt. \u00a0Quoting from Coffin v. United States<\/em> (1895),((Coffin v.United States<\/em>, 156 U.S. 432, 453 (1895). )) the United States (\u201cUS\u201d) Supreme Court in In re Winship<\/em> noted:<\/p>\n![\"LevelsProof\"](\"https:\/\/i0.wp.com\/michaelgkarnavas.net\/blog\/wp-content\/uploads\/2016\/06\/LevelsProof.jpg?resize=300%2C218&ssl=1\")
<\/a>The amount of evidence that the defense lawyers must adduce to discharge the burden of production in relation to raising a defense can vary significantly, from as little as a scintilla of evidence to proof beyond a reasonable doubt, depending on the nature of the defense and the jurisdiction.\u00a0 In some states in the US, in advancing a mental disability as a defense \u201cif there is \u2018some evidence\u2019 supporting the defendant\u2019s claim of mental disability, he is entitled to have that the issue submitted to the jury\u2026. [T]here can be no sharp quantitative or qualitative definition of \u2018some evidence.\u2019 Certainly it means more than a scintilla, yet, of course, the amount need not be so substantial as to require, if uncontroverted, a directed verdict of acquittal.\u201d((See McDonald v. United States<\/em>, 312 F.2d 847, 849 (D. C. Cir. 1962). )) By contrast, in raising an insanity defense, the US Supreme Court in Leland v. Oregon<\/em> held that a state\u2019s requirement to establish the defense of insanity beyond a reasonable doubt was not a violation of due process rights.((Leland v. Oregon<\/em>, 343 U.S. 790, 791 (1952). )) The US Supreme Court cited Henry Weihofen, Insanity as a Defense in Criminal Law((Henry Weihofen, Insanity as a Defense in Criminal Law (New York: The Commonwealth Fund 1933) (hereinafter \u201cWeihofen\u201d). )) listing twelve states as requiring proof by a preponderance of the evidence, four as requiring proof \u201cto the satisfaction of the jury,\u201d two which combine these formula, one where by statute the defense must be \u201cclearly proved to the reasonable satisfaction of the jury,\u201d one where it has been held that the jury must \u201cbelieve\u201d the defendant insane, and one where the quantum of proof has not been stated by the court of last resort, but which appears to follow the preponderance rule.((Leland v. Oregon<\/em>, 343 U.S. 790, 791 (1952), citing <\/em>Weihofen, p. 148-151, 172-200.)) Twenty-two states, including Oregon, were mentioned as holding that the accused has the burden of proving insanity, at least by a preponderance of evidence.((Leland v. Oregon<\/em>, 343 U.S. 790, 791 (1952), citing <\/em>John H. Wigmore, A Treatise on the Anglo-American System of Evidence vol. 9 (3rd ed., Boston: Little Brown 7 Co. 1940 and Supp. 1951), \u00a7 2501.)) Notwithstanding Leland v. Oregon<\/em>, the majority of states in the US require a much lower evidentiary threshold.((Requiring preponderance of evidence, see<\/em> Lackey v. State<\/em>, 615 So. 2d 145, 151-152 (Ala. Crim. App. 1992); McCarlo v. State<\/em>, 677 P.2d 1268, 1272 (Alaska App. 1984); Diaz v. State<\/em>, 508 A.2d 861, 863 (Del. 1986); Flowers v. State<\/em>, 353 So. 2d 1259, 1270 (Fla. App. 1978); Johnson v. State<\/em>, 209 Ga. App. 514, 516, 433 S.E.2d 717, 719 (1993); Requiring \u201cclear and convincing evidence,\u201d see Mitchell v. State,<\/em> 323 Ark. 116, 120, 913 S.W.2d 264, 266 (1996); Ariz. Rule Crim. Proc. 11.5 (1987 and Supp. 1995). ))<\/p>\n
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<\/a><\/em><\/p>\n","protected":false},"excerpt":{"rendered":"