Allen v. United States

TERRY, Associate Judge,

concurring:

I join my colleagues in voting unanimously to affirm the judgment of conviction, and I join in the separate opinion of Chief Judge Rogers in its analysis of the issues which this case presents. I write separately only to note my ardent endorsement of what Judge Schwelb has said in part II-B of his opinion, ante at 1223-1225.

From time to time over the past several years, various appellants have argued before this court that a prosecutor, in closing argument or perhaps in the wording of a question, has somehow “shifted the burden of proof” to the defendant. To me such an argument is inherently absurd. Neither prosecutors nor defense attorneys have anything to do with allocating or “shifting the burden of proof in a criminal trial. That is the task of the judge, and in this jurisdiction our trial judges perform that task very well when they instruct the thousands of juries that come into their courtrooms each year. A standard instruction, given in all criminal trials in the District of Columbia, tells the jury that the government has “the burden ... to prove the defendant guilty beyond a reasonable doubt” and that “this burden of proof never shifts throughout the trial.” Criminal Jury Instructions for the District of Columbia, No. 2.08 (3d ed. 1978). It is from this instruction and others like it, given by the judge, that the jury learns about the burden of proof. I simply cannot see how something said by counsel in the course of a trial could somehow mislead twelve reasonable jurors into believing, contrary to what the judge expressly tells them, that the defendant has any burden at all to prove his or her own innocence — especially when the jury is also told, “The function of the court is ... to instruct you as to the law which applies to this case. It is your duty to accept the law as the court states it to you.” Id., No. 2.01. If a prosecutor even hints to a jury that the defendant has some burden of proof, 1 an alert trial judge will intervene immediately, as the judge in this case did, ante at 1224 n. 8, and tell the jury that the defendant has no such burden.

In arguing that the prosecutor’s questions and argument impermissibly shifted the burden of proof to the defense, appellant relies on such cases as Sandstrom v. Montana, 442 U.S. 510 , 99 S.Ct. 2450 , 61 L.Ed.2d 39 (1979), and Mullaney v. Wilbur, 421 U.S. 684 , 95 S.Ct. 1881 , 44 L.Ed.2d 508 (1975), in which the instructions given by *1240 the court were held to have shifted or misallocated that burden. To me it is an illogical and unwarranted leap to suggest, on the basis of these and similar decisions, that some statement by counsel has the same effect. Courts often recognize that words coming from a judge’s mouth have a far greater impact on the jury, and must therefore be assessed more strictly, than the remarks of a mere attorney. For example, in Burgess v. United States, 142 U.S.App.D.C. 198, 207 , 440 F.2d 226, 235 (1970), the court drew a distinction between a missing witness argument and a missing witness instruction:

Argument of counsel is on quite a different legal level from an instruction of the court granting to the jury the right to draw the inference of unfavorable testimony. Such an instruction has the weight of law, even when it only permits and does not require the inference, whereas counsel’s argument is only that.

See also McGrier v. United States, 597 A.2d 36, 46 (D.C.1991) (finding an “obvious” and “critical” difference between instruction by court and argument by counsel saying the same thing). No comment by counsel can ever have the “weight of law” behind it, because counsel can never speak with the authority of the court. Appellant’s failure to acknowledge this obvious fact substantially undermines his claim of error.

. Other than, of course, the burden of proving an affirmative defense such as insanity. See D.C.Code § 24-301(j), last sentence (1989).