The Space Shuttle and Reasonable Doubt

"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."

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."

Comments

[Beldar]

Interesting, but you left out what to me is the most significant part of the holding: "The parties agree that Van Meter failed to preserve this issue."

That's why this was reviewed under the "plain error" standard rather than some more favorable one: No timely objection was made.

If a timely objection had been made, I'm reasonably confident that most trial judges would have sustained the objection and told the jury to follow the law on the meaning of "reasonable doubt" as given by the court.

[PoxOnBothYourHouses]

Could he then appeal on the basis of inadequate legal defense?

[Beldar]

He could, and perhaps will, reframe this into an ineffective assistance of counsel claim as part of a later habeas corpus petition, but he's going to have the same problem with an inability to show that he was materially harmed.

Indeed, as some of the comments here show, some reasonable jurors might have found the argument more off-putting than effective. And most trial lawyers believe there is a downside, a price to be paid, whenever one makes an objection during the other lawyer's closing argument (although this stunt was also set up during voir dire exam), on the theory that even if the objection is sustained, it draws the jury's attention to an argument that the defendant would rather not highlight. So there's a genuine possibility that this defendant's trial counsel made a deliberate, conscious decision, as a matter of trial tactics, not to object -- and if so, that wouldn't have been constitutionally ineffective.

So while it's a theoretical possibility that he can try to reurge this claim as ineffective assistance in a later habeas petition, it's extremely unlikely to win Van Meter any relief.

[JesseAz]

Jury should have tossed the verdict to not guilty after that stunt. The object was a puzzle, not a space shuttle.

[Beldar]

For that to have happened, (1) there would have had to have been a timely objection, which would have been granted with an instruction to the jury to disregard that part of the prosecution's argument, and (2) the defense lawyer then would have nevertheless had to have moved for a directed verdict based on an argument that even the instruction couldn't cure the unfair prejudice to the defense.

I can't imagine one in 1000 trial judges doing that based on this: Most trial judges believe that jurors will take more seriously their rulings on objections and resulting instructions than anything either lawyer says, and most of the time, they're right about that.

[SQRLSY One]

I as a juror would feel that my intelligence was being insulted, by this kind of implied analogy. Guilt v/s innocence is NOT the same as recognizing a well-known, iconic image! We have all seen many-many images of the shuttle, the Statue of Liberty, etc. We have NOT before seen the particulars of ANY case!

What if the missing puzzle pieces of the "shuttle" image was some made-up Sci-Fi image as cooked up by a S-F writer, about some parallel universe?!?!?!?!? What then? (Implied parallel would be, testimony that I have heard, is all LIES...) I as a juror will not and should not jump to conclusions based on incomplete data!

[toggle]

What if it was some sci-fi image? I think that was probably the point of the illustration; there's always some doubt but not doubt is [i]reasonable[/i] doubt.

[PoxOnBothYourHouses]

SQRL SY One: "I as a juror would feel that my intelligence was being insulted..."

You obviously don't represent the average juror.

[Morbo]

I'm kind of curious about exactly what image was shown.

In the 1980s, the Soviets built their own space shuttle known as the Buran, which flew exactly once. Externally, the Buran looks very much like the Space Shuttle. The only major visual difference noticeable to the layman would be if they were mounted on their launch vehicles; the Buran's launch vehicle had a big white external tank and four solid rocket boosters, where as the Space Shuttle had the iconic big orange external tank and two very large SRBs.

So with only 66% of the puzzle completed, the layman probably wouldn't be able to tell the difference between the two, again unless the external tank was visible.

[Morbo]

Actually, come to think of it, if most people were shown an image of the Buran even with the launch vehicle, they'd still call it the Space Shuttle, because most people who aren't space nerds have never heard of the Buran, and it looks so much like the Space Shuttle.

Some might wonder why it doesn't have an orange tank, but not many.

[susancol]

The first (or maybe the first few) US space shuttle launches actually also had white external tanks. Someone at NASA figured out they were adding a bunch more weight to be lifted by adding white paint, and they decided to launch with just the orange primer. (Space nerd who watched the early launches from the causeway . . . the first launch I missed was Challenger . . . )

[FlameCCT]

My ex-wife's brother worked on the Buran and outwardly it was almost exactly like the Space Shuttle because that is what they based their design on.

[Scarecrow Repair & Chippering]

My initial reaction would be to wonder why the prosecutor was hiding 1/3 of the picture when he had it available, and did that analogy extend to his case -- was he deliberately hiding 1/3 of the evidence because it might lead me to think differently?

I wonder what the prosecutor would have done if I had said so. I imagine some of the other prospective jurors would have laughed. Would that have sufficiently embarrassed him to drop the analogy?

[santamonica811]

Scarecrow,
An interesting point. If I were the prosecutor, I imagine I would have said something like, "I wish real life were like assembling a puzzle, where we get all the pieces, all the time. But in real life, we don't. We get some of the pieces, some of the time . . . and more pieces, some of the time. In our case, fortunately, have more than enough pieces to get a clear image of what is happening. Piece One: Suspect was stopped by his parole officer after driving to work. Piece Two: Suspect's car was immediately searched. Piece Three: A gun was found, located in xxx . . ."

I think there are lots of good possible prosecution responses to your (good) reaction that could strengthen the prosecution's case, rather than weaken it.

I actually thought the puzzle analogy was clever. (Which is different than me assuming that using it does not violate a defendant's rights.) I've been on the defendent's side in over 500 trials, and never saw this technique use. Maybe because they were all bench trials. . . . I think the logical fallacy would work better with typical jurors and would be off-putting to judges, for reasons earlier commentators have already noted.

[MikeR613]

I'm kind of astonished at the comments, and the post, and the decision. (I'm leaving out the Buran issue; that definitely complicates matters). Seems to me this is exactly what "beyond reasonable doubt" means. Is no one going to bother to explain why this is wrong?
If witnesses saw someone commit the crime, and they're sure it's him, but the view prevented them from seeing his right arm and ear, does that create reasonable doubt? Maybe it's someone who looks just like him only he's missing his right hand and his right ear lob is bright green, and if they'd seen the right hand they'd know it! Or do we say, If you're sure you recognize him to the exclusion of everyone else that's good enough.
Seeing two-thirds of a picture is not at all the same as being "two-thirds sure".

[Scarecrow Repair & Chippering]

Maybe it is a question of a felon in possession of a gun, only you can't see the hand with the gun because that's in the missing 1/3. Or maybe the visible hand has the gun and clearly establishes guilt, except the missing section of the picture shows some threat which justifies his temporary possession.

[Beldar]

@ MikeR613: The process of judging the credibility and weight of evidence is different than the process of guessing what's in a photo of which you have only pieces. You might claim, as this prosecutor did, that the processes are in some ways similar or analogous to one another. But courts have very specific formulations of what terms like "reasonable doubt" mean, and lawyers aren't free to urge jurors to disregard those formulations, as given to them by the judge, in favor of some made-up analog that the lawyer would prefer -- obviously for reasons favoring his client's side -- that the jury use instead. Ninety-nine out of 100 trial judges would sustain an objection to this kind of jury argument; this one would have too, had the defense lawyer gotten up out of his chair to make an objection.

[jsfreason]

"Courts have very specific formulations about what terms like 'reasonable doubt' mean."

That is true. What is not true is that those specific formulations have any cognitive content. Courts have *avoided* saying what "reasonable doubt" means because, to be frank, nobody knows what it means. So they engage in "specific" circumlocutions and vague language and hope juries won't notice. "Reasonable doubt" is in fact whatever a jury thinks it means (or sometimes a judge in the case of a JNOV) and nobody wants to open the can of worms of what the meaningless instructions currently used actually "mean."

[CJColucci]

This is true, but it's not as bad as it sounds. In any event, there doesn't seem to be any alternative.

[Rossami]

If everybody already knows the definition of "reasonable doubt" as MikeR613 presumes, then there was no point to the prosecutor's stunt. Clearly the prosecutor thought that this exercise would influence the jury. And I have trouble believing that the prosecutor would have offered that exercise in order to influence the decision in favor of the defendant.

The question is whether that influence is allowable. The answer should be a clear "no" though Beldar's comment above about preservation makes the harmless error analysis plausible.

[mse326]

The difference is you can be missing some pieces of a known and recognizable picture and still be sure beyond a reasonable doubt what the picture is. The crime is not a known and recognizable picture. Obviously beyond a reasonable doubt doesn't require every single piece as it doesn't mean beyond all doubt, but the analogy doesn't work.

[santamonica811]

MSE,
I think the analogy *does* work.
I saw you walk into the bank vault. This is also captured by the bank's security video. I saw the bank teller walk into the vault 10 seconds later. (same with the video). A minute later, I heard a gunshot. I saw people run into the vault, as did I. (video shows this too). All witnesses see the teller dead, with a gunshot in her chest, with a gun by your side. No one else is in the vault and there are no exits. There is no video inside the vaults.

Our puzzle has a bunch of pieces, but is missing others. Some might say we're missing the most critical pieces. But, nonetheless, we can probably all conclude beyond a reasonable double that you shot the teller. (If you did this in self-defense, or while legally insane, etc etc is not answered by any of the pieces, of course.)

[MatthewSlyfield]

"I think the analogy *does* work."

Maybe in a very limited, generic way not applicable to any particular criminal case.

In a real criminal case, it matters very much which pieces are missing.

In your hypothetical, you can't put the gun in your suspect's hand. the teller shot herself.

[jsfreason]

And in the Space Shuttle example it depends on what pieces are missing as well. The analoy is fairly clear: if there are enough facts such that you have the same level of certainty about the guilt of the criminal as about the picture, then you lack reasonable doubt.

"Reasonable doubt" is a sing;e existential state of mind which can be applied to any number of things: missing puzzle pieces and missing trial facts are simply two examples.

[MightyMouse]

Next, he took out a half eaten apple and asked "is this an apple"?

[Ken Arromdee]

Having 66% *of the possible evidence* is not the same thing as being 66% *certain*. The prosecutor was trying to mislead the jury by equivocating between those two; having 2/3 of a puzzle is really the former, but because evidence is not usually measured in percentages and doubt usually is, the prosecutor wants the jury to interpret as the latter.

[Gasman]

Oh, the treachery of images (this is not a pipe)

[qlangley]

An obvious (with hindsight) rebuttal from the defense would have been to show pictures of two different shuttles, with only 10% of the information missing in each case, but for that 10% to include the differentiating features. Congratulations for recognizing that this is a space shuttle. But which one? Is it Atlantis or is it Columbia?

Congratulations also for recognizing that this is a murder. But who did it? As with the shuttle, you can't tell without ALL of the information.