THE LAY PERSON’S
GUIDE TO FINAL ARGUMENTS – PART II
(People vs. Hans Reiser)
SELF INCRIMINATION AND THE ABSENCE OF EVIDENCE
The end is near.
Question: What is a juror to do with the absence of evidence? In a circumstantial case like this one, you would think that all gaps in proof should automatically inure to the benefit of the defense.
That’s not entirely true.
Any attempt, successful or otherwise, by the accused to hide or destroy potentially incriminating evidence allows the jury to legitimately draw the common sense inference that the defendant is concealing or eliminating evidence that tends to reveal his guilt. These consist of the elements of circumstantial evidence (like flight or attempted flight from the police) that allow – but do not require – the jury to infer that the accused is more likely to be guilty. Behaviors of this class (i.e., when the accused hides stuff and flees or tries to do that) are presumed, in the ordinary course of things, to demonstrate a guilty mindset.
The key phrase here is ‘in the ordinary course of things’. One of the most powerful arguments a prosecutor tends to make in these cases is this injunction: “When you begin your deliberations, you are not required to check your common sense at the door.”
I believe that the “incriminating behavior” problem is the key to the defense’s (probably ineffective) use of the psychological profile of Hans provided by the family shrink. Its purpose was to deflect those ‘ordinary course of things’ inferences on the grounds that Hans Reiser is a unique case, a sort of awkward, brilliant, socially maladroit geek for whom the normal psychological rules don’t apply.
Note to Bill DuBois: That won’t sell – except as to some of the later evasive behaviors, when it might not have been clear whether Hans was being stalked by cops or thugs.
We can expect the prosecutor to argue that the removal of Hans’ hard drive, the removal of his car seat, the over-the-top cleaning of the CRX (the car Mom Palmer wouldn’t normally see) are of one piece. They are guilty behaviors designed to eliminate incriminating evidence.
Among the incriminating coincidences, Hora may also argue: Why would Hans nervously approach his children’s school – hours before the situation of his now missing wife would be discovered by Ellen, Nina’s friend?
And it is just at this point in the argument that the DA must tread very carefully – in the event that the defense has rested without calling Hans as a witness.
Since 1965 (in Griffin v. California, 380 U.S. 609) when the US Supreme Court slapped down a California prosecutor and judge for ‘violating” the Fifth Amendment, DA’s and judges everywhere have been strictly forbidden from commenting on the defendant’s decision to remain silent at trial – even though the inference of guilt might otherwise be compelled by common sense.
So a prosecutor may not comment on a defendant’s refusal to talk to the police or decision not to take the witness stand in the trial.
But the trial prosecutor may argue about the defendant’s non-testimonial conduct as “speaking louder than words”. Of course, this DA does not have a perfect case. In that situation, there would be clear evidence that husband disposed of the wife’s body. In such a hypothetical fact pattern, the illicit body disposal, alone, screams louder than any testimony: He murdered me!
In this case we have a trial by inference.
Only trial lawyers fully appreciate this truth: You can’t pick your favorite evidence trail and you can’t pick your favorite client.
When the defense has rested look for my next installment in this Guide to the Final Arguments: “Part III – The Silent Witnesses.”
In the meantime, I’ll continue to comment on the significant developments as they occur.