I really don't understand the comments suggesting the case against BM is in trouble, after reading a few tweets reported from a hearing in which less than half the listed witnesses testified, the purpose of which is not to prove guilt beyond a reasonable doubt, but IMO, to produce evidence sufficient that an ordinary person could have a reasonable belief that the defendant may have committed the crime for which they are charged - i.e. probable cause - and in which the prosecution's evidence must be taken at face value.
There can be no doubt at all that BM will be bound over for trial IMO. It is also certain in my mind (MOO) that we have not seen nearly all the evidence that will be produced at trial. My opinion is that the defense team's aggressive approach to the prelim has given the prosecution information the DA can use to adjust her case, without significant benefit too BM in terms of outcomes.
I think we should remind ourselves periodically of how the jury will be instructed to do its job. (See Colorado Jury Instructions - Criminal).
They will be instructed that there is no difference between circumstantial evidence and direct evidence:
"D:01 DIRECT AND CIRCUMSTANTIAL EVIDENCE—NO DISTINCTION
A fact may be proven by either direct or circumstantial evidence. Under the law, both are acceptable ways to prove something. Neither is necessarily more reliable than the other.
Direct evidence is based on first-hand observation of the fact in question. [For example, a witness’s testimony that he [she] looked out a window and saw snow falling might be offered as direct evidence that it had snowed.]
Circumstantial evidence is indirect. It is based on observations of related facts that may lead you to reach a conclusion about the fact in question. [For example, a witness’s testimony that he [she] looked out a window and saw snow covering the ground might be offered as circumstantial evidence that it had snowed.]
COMMENT
1. See People v. Bennett, 515 P.2d 466, 469 (Colo. 1973) (“we now cast aside as outmoded and as confusing the requirement that the prosecution’s evidence, when wholly circumstantial, must exclude every reasonable hypotheses other than that of guilt and no longer require such aninstruction or such a test to be applied”)."
They don't need evidence on every point of fact - they are allowed to draw reasonable inferences:
"D:11 INFERENCES—GENERAL
A permissible inference allows, but does not require, you to find a fact from proof of another fact or facts, if that conclusion is justified by the evidence as a whole. It is entirely your decision to determine what weight shall be given the evidence.
You must bear in mind that the prosecution always has the burden of proving each element of the offense beyond a reasonable doubt, and that a permissible inference does not shift that burden to the defendant.
COMMENT
1. See Jolly v. People, 742 P.2d 891, 897 (Colo. 1987) (provision of statute proscribing driving while license revoked authorized only a permissible inference that defendant had knowledge of fact of revocation from proof of registered mailing of notice, rather than creating a conclusive presumption or mandatory burden-shifting presumption with respect to that element of the offense; the statutory term “prima facie proof” is functionally equivalent to a permissible inference); Barnes v. People, 735 P.2d 869, 872–74 (Colo. 1987) (“a mandatory presumption may not be constitutionally used against a criminal defendant if a reasonable jury could construe it as conclusive or shifting the burden of persuasion on an essential element of a crime”; driving under the influence statute, which provided that it shall be presumed that defendant was under influence of alcohol if there was 0.10 or more grams of alcohol per 100 milliliters of blood, as shown by chemical analysis of defendant’s blood, authorized only permissible inference that defendant was under the influence of alcohol); People v. Felgar, 58 P.3d 1122, 1124–25 (Colo. App. 2002) (instruction establishing mandatory presumption concerning the defendant’s knowledge violated due process, even though the instruction tracked the statutory language).
2. In some circumstances, an instruction describing an evidentiary inference may be based on precedent. For example, in cases where evidence of the defendant’s unexplained, exclusive possession of recently stolen goods is relevant (e.g., theft, robbery, burglary), refer to the instruction in the appendix to Wells v. People, 592 P.2d 1321 (Colo. 1979).
See also People v. Hampton, 758 P.2d 1344, 1355 (Colo. 1988) (“In Wells, we . . . appended to our opinion a recommended instruction for use in future jury trials.”).
3. Both the United States Supreme Court and the Colorado Supreme Court have used the terms “permissive inference” and “permissible inference” interchangeably. See, e.g., County Court of Ulster County, N. Y. v. Allen, 442 U.S. 140, 157 (1979) (using both terms within the same paragraph); People in Matter of R.M.D., 829 P.2d 852, 854 (Colo. 1992) (same). Further, it does not appear that any appellate court has ever analyzed whether there is a meaningful distinction between the two terms. Accordingly, the Committee has elected, for the sake of clarity and consistency, to use the term “permissible inference” throughout the model instructions.
Proof beyond all doubt is not required. Reasonable doubt is not a vague, speculative, or imaginary doubt, like we tend to indulge in on WS.
"E:03 PRESUMPTION OF INNOCENCE, BURDEN OF PROOF, AND REASONABLE DOUBT
Every person charged with a crime is presumed innocent. This presumption of innocence remains with the defendant throughout the trial and should be given effect by you unless, after considering all of the evidence, you are then convinced that the defendant is guilty beyond a reasonable doubt.
The burden of proof is upon the prosecution to prove to the satisfaction of the jury beyond a reasonable doubt the existence of all of the elements necessary to constitute the crime charged.
Reasonable doubt means a doubt based upon reason and common sense which arises from a fair and rational consideration of all of the evidence, or the lack of evidence, in the case. It is a doubt which is not a vague, speculative or imaginary doubt, but such a doubt as would cause reasonable people to hesitate to act in matters of importance to themselves.
If you find from the evidence that each and every element of a crime has been proven beyond a reasonable doubt, you should find the defendant guilty of that crime. If you find from the evidence that the prosecution has failed to prove any one or more of the elements of a crime beyond a reasonable doubt, you should find the defendant not guilty of that crime."
IMO, Barry Morphew is in great jeopardy of spending the rest of his life in prison, reflecting on his mortal sins.
There can be no doubt at all that BM will be bound over for trial IMO. It is also certain in my mind (MOO) that we have not seen nearly all the evidence that will be produced at trial. My opinion is that the defense team's aggressive approach to the prelim has given the prosecution information the DA can use to adjust her case, without significant benefit too BM in terms of outcomes.
I think we should remind ourselves periodically of how the jury will be instructed to do its job. (See Colorado Jury Instructions - Criminal).
They will be instructed that there is no difference between circumstantial evidence and direct evidence:
"D:01 DIRECT AND CIRCUMSTANTIAL EVIDENCE—NO DISTINCTION
A fact may be proven by either direct or circumstantial evidence. Under the law, both are acceptable ways to prove something. Neither is necessarily more reliable than the other.
Direct evidence is based on first-hand observation of the fact in question. [For example, a witness’s testimony that he [she] looked out a window and saw snow falling might be offered as direct evidence that it had snowed.]
Circumstantial evidence is indirect. It is based on observations of related facts that may lead you to reach a conclusion about the fact in question. [For example, a witness’s testimony that he [she] looked out a window and saw snow covering the ground might be offered as circumstantial evidence that it had snowed.]
COMMENT
1. See People v. Bennett, 515 P.2d 466, 469 (Colo. 1973) (“we now cast aside as outmoded and as confusing the requirement that the prosecution’s evidence, when wholly circumstantial, must exclude every reasonable hypotheses other than that of guilt and no longer require such aninstruction or such a test to be applied”)."
They don't need evidence on every point of fact - they are allowed to draw reasonable inferences:
"D:11 INFERENCES—GENERAL
A permissible inference allows, but does not require, you to find a fact from proof of another fact or facts, if that conclusion is justified by the evidence as a whole. It is entirely your decision to determine what weight shall be given the evidence.
You must bear in mind that the prosecution always has the burden of proving each element of the offense beyond a reasonable doubt, and that a permissible inference does not shift that burden to the defendant.
COMMENT
1. See Jolly v. People, 742 P.2d 891, 897 (Colo. 1987) (provision of statute proscribing driving while license revoked authorized only a permissible inference that defendant had knowledge of fact of revocation from proof of registered mailing of notice, rather than creating a conclusive presumption or mandatory burden-shifting presumption with respect to that element of the offense; the statutory term “prima facie proof” is functionally equivalent to a permissible inference); Barnes v. People, 735 P.2d 869, 872–74 (Colo. 1987) (“a mandatory presumption may not be constitutionally used against a criminal defendant if a reasonable jury could construe it as conclusive or shifting the burden of persuasion on an essential element of a crime”; driving under the influence statute, which provided that it shall be presumed that defendant was under influence of alcohol if there was 0.10 or more grams of alcohol per 100 milliliters of blood, as shown by chemical analysis of defendant’s blood, authorized only permissible inference that defendant was under the influence of alcohol); People v. Felgar, 58 P.3d 1122, 1124–25 (Colo. App. 2002) (instruction establishing mandatory presumption concerning the defendant’s knowledge violated due process, even though the instruction tracked the statutory language).
2. In some circumstances, an instruction describing an evidentiary inference may be based on precedent. For example, in cases where evidence of the defendant’s unexplained, exclusive possession of recently stolen goods is relevant (e.g., theft, robbery, burglary), refer to the instruction in the appendix to Wells v. People, 592 P.2d 1321 (Colo. 1979).
See also People v. Hampton, 758 P.2d 1344, 1355 (Colo. 1988) (“In Wells, we . . . appended to our opinion a recommended instruction for use in future jury trials.”).
3. Both the United States Supreme Court and the Colorado Supreme Court have used the terms “permissive inference” and “permissible inference” interchangeably. See, e.g., County Court of Ulster County, N. Y. v. Allen, 442 U.S. 140, 157 (1979) (using both terms within the same paragraph); People in Matter of R.M.D., 829 P.2d 852, 854 (Colo. 1992) (same). Further, it does not appear that any appellate court has ever analyzed whether there is a meaningful distinction between the two terms. Accordingly, the Committee has elected, for the sake of clarity and consistency, to use the term “permissible inference” throughout the model instructions.
Proof beyond all doubt is not required. Reasonable doubt is not a vague, speculative, or imaginary doubt, like we tend to indulge in on WS.
"E:03 PRESUMPTION OF INNOCENCE, BURDEN OF PROOF, AND REASONABLE DOUBT
Every person charged with a crime is presumed innocent. This presumption of innocence remains with the defendant throughout the trial and should be given effect by you unless, after considering all of the evidence, you are then convinced that the defendant is guilty beyond a reasonable doubt.
The burden of proof is upon the prosecution to prove to the satisfaction of the jury beyond a reasonable doubt the existence of all of the elements necessary to constitute the crime charged.
Reasonable doubt means a doubt based upon reason and common sense which arises from a fair and rational consideration of all of the evidence, or the lack of evidence, in the case. It is a doubt which is not a vague, speculative or imaginary doubt, but such a doubt as would cause reasonable people to hesitate to act in matters of importance to themselves.
If you find from the evidence that each and every element of a crime has been proven beyond a reasonable doubt, you should find the defendant guilty of that crime. If you find from the evidence that the prosecution has failed to prove any one or more of the elements of a crime beyond a reasonable doubt, you should find the defendant not guilty of that crime."
IMO, Barry Morphew is in great jeopardy of spending the rest of his life in prison, reflecting on his mortal sins.
The same thing happens to all of us.
