Saturday, January 19, 2008


United States v. Glover, No. 05-5047-cr (2d Cir. January 4, 2008) (Pooler, Raggi, CJJ, McMahon, DJ)

At this firearms trial, the judge charged the jury, over objection, that “the crucial, hard-core question” to answer was, “Where do you find the truth?” He also instructed: “The only triumph in any case, whether it be civil or criminal, is whether or not the truth [has] triumphed.” One defendant was acquitted; the other was not and appealed.

The circuit affirmed. It agreed that these instructions, in isolation, would be error because they do not ensure that the jury will have a correct understanding of the presumption of innocence or the government’s burden of proof. In addition, the court strongly discouraged their use in the future: “[T]o the extent that a trial court thinks it appropriate in a criminal case to identify for the jury a single ‘crucial, hard-core question,’ that question should be framed by reference not to a general search for truth but to the reasonable doubt standard . . . .”

Here, however, the error was harmless. The court’s review of the entire jury charge found “no reasonable likelihood” that the jury would think it could return a guilty verdict on anything less than proof beyond a reasonable doubt. The charge as a whole referenced the reasonable doubt standard “at least twenty-seven times.” It also correctly instructed that the presumption of innocence lasted “throughout the trial and even into jury deliberations.”

The court was unmoved by the fact that the erroneous language came at the conclusion of the charge. The jury had a full copy of the charge at its disposal during deliberations, and there was a later, supplemental charge that correctly defined the jury’s task.

Comment: One hopes that this case will put an end to off-the-wall instructions on the bedrock due process issues relating to the burden of proof and the presumption of innocence. What is interesting about the decision is that the court missed the most obvious indication that the error was harmless - despite the “search for truth” charge, the jury acquitted one of the defendants.

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