They're not standing in between the prosecutor and you and being asked to choose which side is better. Explain to them that this is not a situation where they're being asked to decide who told the better story. I've heard this called "the Pink Floyd." This is how it goes.įirst, I like explaining the presumption of innocence. If I have nothing (as is usual the case), I use the "smell of baking bread" analogy. If I have something tangible, I exploit that. Then go into explaining what BRD means using language from the jury instruction. Then segue into BRD by telling them that they must give my guy "the benefit of the doubt". While it may be normal to think that while driving and in the "court of public opinion" the law requires (as will be directed to you by the judge) that in a courtroom you have to have the opposite presumption - that my client is innocent UNLESS proven guilty (I hate the word UNTIL since it seems to convey an inevitability). Typically, the first thing i will say to a jury is "when you saw me and my client walk in the door today, who here immediately thought "what did that guy do"?" Then compare it to driving down the road and seeing a car pulled over by a cop and think "what did that guy get pulled over for" and then show that how those are perfectly normal reactions but stress that we really don't know why the person was being pulled over as it could be for something not criminal - and how dangerous that can be. I will start with the presumption of innocence in Jury selection and use that as a springboard to BRD - and tie it in at closing.
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