Failure to Protect: Burden of Proof and Adverse Evidentiary Rulings

A tragic story that began when a Norman mother left her two-year-old son in the care of her boyfriend ended in a Cleveland County courtroom last month. According to investigators, the boyfriend killed the child and took his own life before being arrested.

Prosecutors ultimately charged the mother with first-degree murder for leaving her son in the care of the boyfriend she knew or had reasonable cause to believe presented a risk to harm the child. A jury convicted the mother and recommended life imprisonment with the possibility of parole.

According to news reports of the trial, prosecutors doubted their ability to meet the state's burden of proof in the case. At the same time, defense counsel had to contend with rulings from the bench that kept vital evidence from the jury. Let's take a look at what went on outside of the presence of jurors.

What is the burden of proof?

The state and federal constitutions place the burden on the prosecution to prove the guilt of a person accused of committing a crime. This is accomplished by presenting evidence to establish guilt beyond a reasonable doubt, which is the standard in a criminal case. Notice that the burden on prosecutors is not to prove the guilt of a defendant beyond any doubt or beyond all doubt.

Reasonable doubt means the evidence must convince jurors that no other reasonable conclusion may be drawn from the evidence other than the accused’s guilt. For those of you who prefer to think in terms of percentages, in some jurisdictions, the reasonable doubt standard in a criminal case has been likened to jurors being 95-97% certain of the accused’s guilt.

The burden of proof in criminal cases sets a very high standard for prosecutors. To get an idea of just how high that burden is, consider that the standard in civil cases is a “preponderance of the evidence,” which means only a better than 50% degree of certainty.

News stories reported that the prosecutor handling the trial in Cleveland County was heard to voice frustration at the difficulty of meeting the burden of proof in cases such as this one. The prosecutor felt that it was extremely challenging for the state to prove the mother knew her child was being abused when she disclaimed having any such knowledge. Apparently, jurors, unaware of the prosecutor's comments, disagreed.

What is interesting about the prosecutor's comments is how sharply they conflict with comments from criminal defense attorneys not involved in the case. The feeling among defense lawyers was that the state's burden is often too easily met in cases where a non-abusing parent is charged for abuse inflicted by another party.

Evidence not available to the jury

Reports of the conviction refer to rulings by the judge that prevented jurors from having access to evidence that may have helped the defense. Jurors were not allowed to know that carved into a tree near where the boyfriend’s body was discovered were the following words: "Rebecca is innocent." A reference — at least according to the defense — to the mother, whose first name is "Rebecca."

The court ruled that the statement was inadmissible as evidence because it was hearsay. Apart from the difficulty of proving the boyfriend did the carving before he died, the prosecution would not have had an opportunity to question the person who was the source of the statement.

An unusual turn of events involving the police investigation led to an evidentiary ruling by the trial judge regarding the testimony of the lead investigator. A recording made by a friend of the accused was reported to contain a conversation in which the police detective is heard to express doubts that the mother committed a crime.

Perhaps wisely, the prosecution chose not to call the detective as a witness, so he was called by the defense instead. However, the judge limited the scope of the testimony by preventing the detective from testifying about anything other than how he conducted the investigation and the date that it ended. This kept him from confirming a report that he was told by prosecutors to stop the investigation when it became known that he did not believe the mother should be charged with murder.

Of course, an argument can be made that one person’s opinion, even if it is the lead investigator in the case, is not evidence. It is for the jury to decide what conclusions to draw from the actual evidence that is legally presented to them during the course of the trial.

More to come at sentencing

We know at this point what the panel of jurors thought about the evidence in the case based on the verdict and recommended sentence. We also know of the prosecutor’s concerns about meeting the state's burden of proof and the doubts about the case expressed by the police detective.

The final stage of the case takes place on Feb. 11, 2022,when the judge who presided over the trial imposes sentence on the victim's mother. The judge can follow the jury’s recommendation, or he can use his discretion to impose a sentence in line with his conclusions drawn after hearing the evidence during trial.

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