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WHEN “HE-SAID, SHE-SAID” IS NOT ENOUGH TO CONVICT

As a criminal defense attorney, it is not my burden to prove my client is innocent. It is the prosecuting attorney’s burden to prove my client is guilty beyond a reasonable doubt. This simple, yet fundamental, fact is critically important when the prosecuting attorney fails to put forth sufficient evidence at trial to justify a guilty verdict. On June 11, 2015, a Clark County jury held the prosecution to its burden and found my client not guilty of assault in the fourth degree—a gross misdemeanor that carries a maximum potential penalty of 364 days in jail and a $5,000 fine. 
 
The case was a classic “he-said, she-said.” The evidence was 50/50, which, in a criminal case, is insufficient evidence for a jury to convict. The prosecution failed to satisfy its burden of proof in two main ways: (1) the prosecution did not have any evidence to corroborate their story; and (2) the prosecuting attorney did not call all available witnesses to testify at trial. 
 
On November 11, 2014, my client’s wife called the police, alleging that my client had assaulted her. My client’s wife alleged that my client hit her on the right side of her head multiple times, pulled her hair, slapped her hands and arms caused bruising, put her in a choke hold and pushed her down on the ground. However, when officers arrived, they did not observe any visible injuries—no marks on her head, no redness on her neck, no bruising on her hands and nothing wrong with her hair. The officers did not take photos of her (which is common practice in assault cases). Furthermore, she claimed my client struck her repeatedly on the right side of her head… but my client is right handed, meaning if he did strike her with his dominant hand, the blows would have landed on the left side of her head. When the officers spoke with my client, he adamantly denied ever striking or touching his wife in an assaultive manner. In sum, my client’s wife’s story was entirely uncorroborated by any physical evidence. Nevertheless, the officers arrested my client and charged him with assault in the fourth degree.
 
Prior to trial, the prosecution indicated it would likely call five witnesses—my client’s wife, their 6-year old daughter, a neighbor and both of the Clark County Sheriff’s deputies who responded to the scene and interviewed witnesses. At trial, however, the prosecuting attorney called just two witnesses to the stand—my client’s wife and one of the officers. The prosecuting attorney could have provided much more witness testimony to support their case, but failed to do so. In my closing argument, I emphasized to the jury that it is not my burden to prove my client’s innocence. Rather, it is the prosecuting attorney’s burden to prove my client is guilty beyond a reasonable doubt. In this case, the prosecuting attorney fell well short of meeting that burden, and the jury found my client not guilty of assault in the fourth degree.
 

Tags: criminal law, not guilty, assault, domestic violence

Jeffrey D. Barrar, P.S.: Vancouver Defenders Jeffrey D. Barrar, P.S.
Vancouver Defenders