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Let’s accept a premise that is already widely embraced by behavioral economists: persuasion commonly works better than rules to change a person’s behavior. Below I have applied this maxim to a small part of one of my closing arguments. See which of the versions is more compelling to you.
ORIGINAL
When I first talked with all of you, I said the government’s Opening Statement was an IOU. A collection of promises made by the Prosecutor. A guarantee, that what the government told you in that opening statement was 100% true. This meant they would fulfill all their promises, Beyond, All Reasonable Doubt.
The prosecutor’s guarantee was made to each of you individually. If even one of you was not moved from innocent to guilty, then the State has defaulted on their IOU. Under our system of justice, when the State defaults, that is a not guilty verdict. When the State breaks any of it’s promises, under our system of justice, you have no choice but to vote not guilty.
NEW VERSION
The prosecutor’s guarantee was made to each of you individually. If even one of you was not moved from innocent to guilty, then the State has defaulted on their IOU. Under our system of justice, when the State default’s, that is a not guilty verdict. When the State breaks any of its promises, our system of justice tells you John is not guilty.
I ask you to follow the rules of our justice system not merely because they are rules, but because these rules are the only way a person can have a fair trial.
Because so many innocent people in our history have been falsely accused of crimes, we decided a long time ago that the burden at trial would always be on the prosecutor. However, imagine a system where you were falsely accused, and then you were required to prove yourself innocent. “You did it, now prove us wrong.” How could someone ever get a fair trial if the burden of proof was placed on the accused?
For the same reason, we all decided that prosecutors shall have the heaviest burden of proof in law: proof beyond, all reasonable doubt. However, imagine a system where a prosecutor could convict people who were just “probably” guilty? “You know he did it. Come on, trust us, we are the police. Of course we got it right. Don’t worry about the details;” “We don’t need to show you everything.” How could someone ever get a fair trial without such a heavy burden on the State?
To protect all of us, we all agreed that a person will start this trial innocent. And he will stay innocent, unless after deliberating, the Prosecutor has changed, not just one juror, not three, not five, but every juror’s mind from innocent, all the way to Guilty. That is, the prosecutor actually disproves any reasonable doubts that come up during deliberations. How else could someone ever get a fair trial, unless they started a trial as innocent?
When the prosecutor defaults, I ask you to choose a not guilty verdict, not only because of our rules, because our rules are just.