Former prosecutor Sarena Straus proposed a hypothetical jury instruction recently in response to WindyPundit’s question “What do you wish jurors knew? Or perhaps a better question is what do you wish jurors knew that you can’t tell them during a trial?” Frustrated by “the key to most unfair acquittals” she had seen in her career, she suggested jurors be told:

"The laws in New York do not allow the prosecutor to introduce evidence of prior arrests or convictions. You are to draw no inferences from the fact that the prosecutor has not introduced evidence of a criminal history. The failure of the prosecutor to introduce such evidence does not necessarily mean that the defendant has no prior criminal history. Nor should this instruction be interpreted by you do mean that the defendant does have a prior history. You must judge the defendant’s guilt or innocence based on the evidence presented in this case and in this case alone."

In the comments section to that post I became the third (of the three total commenting) to suggest that this instruction would actually invite the jury to speculate about a defendant’s prior criminal history, whether he had one or not. Straus’ next post followed up on the comments, specifically referencing mine:

And some statements have been made that I flat out disagree with. For instance:  "NO jury on earth ever let a potential sex offender go free, even though they believed the evidence against him, simply because they told themselves, ‘Hey, this is probably a first offense’. That sort of jury nullification might happen in misdemeanor marijuana cases, but I think that’s about it."

AustinDefense misses my point. Not that juries will not convict someone based on their lack of a prior criminal history (nullify), but that juries might be more inclined to think someone is not guilty (or at least have reasonable doubt) based on thinking lack of evidence of a prior conviction means that they do not have one.

I’ll admit I’m close to missing the point. I agree that she makes a fine distinction here between nullification, and finding someone not guilty because no evidence of prior convictions was presented. In other words, her fear is that the juries will believe that the defendant is substantively not guilty because he has no priors, rather than just cutting him a break for his first offense. But then Straus continues with a specific example that frustrated her:

The most difficult case I ever handled (from an emotional standpoint) was the prosecution of a Marist Brother for raping an 11 year old student… The defendant was in his seventies and had been accused and acquitted in three prior cases. The case received significant press coverage and after the verdict some of the jurors told the reporter that part of the reason for their acquittal was their difficulty believing that someone would start committing these types of crimes at such an old age. [Emphasis Mine]

Again, using Straus’ own words that juries might think “lack of evidence of a prior conviction means that they do not have one,” I’m not sure she gives us the best example, but she does make my point. Her proposed jury instruction would probably have allowed her jury in that case to speculate about prior history, and that very well may have helped lead to a conviction.

But her example doesn’t show a jury that wasn’t allowed to hear about “prior convictions” that existed; her complaint apparently is that they weren’t instructed about prior acquittals.

[Injustice Anywhere also added a comment to the original post.]

  • Basically she wants to tell the jury, “Even if the defendant didn’t commit this crime, they probably committed another one you don’t know about.” That’s a terrible idea that would lead to more wrongful convictions, and you’re right, her example of the septegenarian with no prior convictions doesn’t actually support her argument.

  • Grits misses my point and will hopefully read my post to understand my point better. I certainly don’t want the jury left with that assumption. Nor do I want the prosecution overly prejudiced by an assumption that the person has never done anything. The point is that it should not be a consideration, which it is if we say nothing. Remember that New York has some of the strictest laws with respect to introducing evidence of prior bad acts.

  • Sarena, I did read your post. I might accept such a neutral interpretation if you wanted the instruction only at sentencing, but you’re advocating this to prevent “unfair acquittals,” to use your phrase, which to me is just wrong. Prosecutors must prove the case they’re charging; I think your proposed jury instruction would amount to a highly prejudicial smear, especially where the defendant really didn’t have any priors. Best,

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