The Volokh Conspiracy
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From People v. Van Meter, decided earlier this month by the Colorado Court of Appeals. Van Meter was on parole from two felony aggravated robbery convictions, and was then arrested and prosecuted for possessing a gun while on parole. The prosecutor then made a creative argument to prospective jurors:
During voir dire, the prosecutor showed the potential jurors an incomplete puzzle of a space shuttle (with only sixty-six percent of the pieces present), stated that the image was a space shuttle "beyond a reasonable doubt," and asked the potential jurors whether anyone disagreed, which none did; the prosecutor also showed the image during closing arguments. By using the iconic and easily recognizable space shuttle image, the prosecutor "invite[d] the jury to jump to a conclusion about [the] defendant's guilt," especially because the jury was shown an image and told that it was a space shuttle "beyond a reasonable doubt." See also People v. Katzenberger, 101 Cal. Rptr. 3d 122, 127 (Cal. Ct. App. 2009) (concluding that a prosecutor improperly quantified the burden of proof by displaying an eight-piece puzzle of the Statue of Liberty missing two pieces and saying "this picture is beyond a reasonable doubt"). The prosecutor's use of a two-thirds completed puzzle analogy also improperly quantified the burden of proof, even where the prosecutor did not undertake to quantify the number or percentage of missing pieces.
The court nonetheless concluded that the error was harmless, partly because "[t]he trial court instructed the jurors multiple times on the proper meaning of 'reasonable doubt.,'" because "[t]he prosecutor's use of the puzzle analogy was relatively brief and isolated," and because the evidence against Van Meter was so strong: "[T]he record contains undisputed evidence that the parole officers saw Van Meter arrive at the jobsite in a car, arrested Van Meter, immediately searched the car, and found a loaded handgun in the car's trunk; Gilliland also testified that he had seen Van Meter with the gun and had spoken to him about it."