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People vs. Hans Reiser

The Final Argument Guide – Part One

Arguing the “Circumstantial Evidence” Rule

Here is the Circumstantial Evidence Rule. The trial judge is required to include it in the charge to the jury, in substantially these words:

“[B]efore you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.”

The defense will try to break down and compartmentalize each bit of damaging evidence, applying the circumstantial rule to negate each separate, potentially incriminating fact.

For example, we can expect the defense to argue that a particular DNA sample might reasonably have gotten there innocently – think of that hard-to-see smear of Nina’s blood that was recovered and identified from the stuff sack. The argument might then go like this:

“As the trial judge will instruct – whenever ‘one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence’. Nina could easily have left a blood trace at a different, happier time in the relationship. Under the rules, if you find that to be a reasonable possibility, then you, the jury, must adopt the innocent conclusion and move on.”

This technique can be repeated for other blood stains, the car washing and so on. This repeated use of the rule, in effect the balkanization of the DA’s case, is one of those fallacious forms of argument that the defense is allowed to pursue without an interruption by the judge. The response is up to the DA.

A prosecutor in a case like this will typically argue that the jury is entitled to aggregate all of the proved suspicious and incriminating circumstances as a whole. Then, using common sense, the jury will determine whether the total weight of all circumstances can reasonably be reconciled with the conclusion that the defendant is innocent. A prosecutor may point to the defendant in the courtroom meaningfully -- “You don’t have to leave your common sense behind when you enter the jury room.”

This total case “gestalt” argument is the only way to avoid the chain of evidence trap, such that the entire case is as weak as any single bit of proof (thinking of the late Johnny Cochran’s line - “If the glove doesn’t fit, you must acquit!”).

How effectively Paul Hora calls Bill DuBois on the “divide and ignore” defense technique will matter because ultimately any trial is about credibility. That is especially one in one like the Reiser case where each lawyer will be telling the jury with a straight face that the evidence points in opposite directions!

JBG