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The professional on trial: Explaining the difference between negligence and criminal activity to the jury

 

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There seems to be more professionals on trial than ever. Between mortgage fraud, health care fraud and “pill mill” indictments, lawyers and doctors are being indicted more frequently and are often the last ones standing on the first day of trial. That is to be expected, as most professionals feel like they have a whole lot more than their liberty to lose if they plead guilty – namely, their livelihood and professional license.


Of course it is typically their use of the professional license that landed them in the courtroom and made the case so enticing to the prosecutor in the first place. And, it is the professional license and all it takes to get it that prosecutors repeatedly harp on. You will not hear me say this often but prosecutors have a point. Doctors and lawyers take years of classes, lengthy exams and oaths to get where they are. No jury is going to believe that they are stupid, even if they might have been. So how do we explain to jurors that smart, licensed professionals did not know what they were doing? One word: negligence. That one word gives the jury the opportunity to excuse the professional’s bad behavior and check the not guilty box.


I successfully defended an attorney in a federal mortgage fraud trial using the “negligence” defense. After the verdict, the judge gave the attorneys the rare opportunity to sit with the jurors in the deliberation room and discuss the case with them. These men and women provided valuable insight into what worked, what did not and how the theory of defense weighed in. What I learned is that distinguishing between negligence and criminal activity made all the difference in the jury’s' reasoning as to why they checked the not guilty box.


Put it out there in opening

 

The jury needs to know where you are going from the beginning. The negligence theory of defense needs to be in the jurors' minds from opening through deliberations. A good way to start in opening is with the basics. We all know, but the jury does not, that to be found guilty, the defendant must have (1) a guilty act (actus rea) and (2) a guilty mind (mens rea). Often times, when a professional is on trial, the guilty act is there. Doctors in “pill mill” trials wrote the prescriptions.

 

SINCE THE JURY WILL NOT BELIEVE THE PROFESSIONAL WAS TOO STUPID TO KNOW WHAT WAS GOING ON, YOU NEED TO TELL THEM IN OPENING EXACTLY WHY HE DID NOT HAVE THE GUILTY MIND: BECAUSE HE WAS NEGLIGENT.


Lawyers in mortgage fraud trials sent and received the wires. Since the jury will not believe the professional was too stupid to know what was going on, you need to tell them in opening exactly why he did not have the guilty mind: because he was negligent. Then, tell the jury the specific facts that support this by using the traditionally bad facts to your advantage. These facts will likely be pointed out by the prosecutor, so rather than make excuses, embrace them with the negligence defense. Sloppy records, inattention to detail, or not performing the way a reasonable lawyer would perform are all characteristics that the prosecution will harp on as evidence of criminal conduct; but they also fit perfectly into a negligence defense. These behaviors may show negligence, not necessary criminal intent. Putting it out there in opening sets the stage for the entire trial.

 

Use the witnesses


The professional's former clients, ex-employees and experts are the perfect way to show the jury the professional's negligence is through the witnesses. When a professional is on trial, there is bound to be a client or employee witness for the prosecution. Use these witnesses to assist the negligence defense. They can describe the office setting, the lack of organization, the work ethic and the defendant's personality. Lack of organization and poor managerial skills bode well for the negligence defense. Even after a witness takes the stand and says that your client was the boss, the one making the decisions, and the one writing the checks or  scripts, be sure to cross examine on poor office conditions. Be it lack of focus, poor organizational skills, poor record keeping, poor  management or distraction because of some other event, these typically bad facts demonstrate a professional’s negligence.


Expert witnesses can also provide helpful testimony when negligence is the defense in a criminal case. The whole point of an expert for the government will be to show that the defendant did not behave like a professional. An expert with the government will point to the poor record keeping, lack of supervision and failure to comply with certain standards as evidence of criminal guilt. On cross examination of a government's expert, talk about making mistakes, get the expert to admit that even he is not perfect, he makes mistakes too. If the expert wants to portray himself as perfect, fine. He will loose points with the jury. When there is a disparity, cross examine the expert on the differences between his resume, specialty certifications and experience, and the defendant's lack thereof.

 

CERTAINLY, THE JURY NEEDS TO LIKE THE CLIENT. A PROFESSIONAL WHO MADE MISTAKES AND WAS NEGLIGENT IS SYMPATHETIC. A PROFESSIONAL WHO JUST DID NOT CARE IS UNLIKABLE.

 

Finally, in the defense case, admit mistakes. No one is perfect. The jury understands this concept. It is a delicate balance. A defense witness should not paint an unrealistic picture of perfection. Certainly, the jury needs to like the client. A professional who made mistakes and was negligent is sympathetic. A professional who just did not care is unlikable. The witnesses are the tool to use to establish the sympathetic, likeable yet negligent defendant.

 

The defense witnesses should admit that not everything the professional did was great, but point to the corresponding evidence negating a criminal mind. Some examples of this would be lack of financial motive, good faith and the selection of a small percentage of the professional's good work in comparison to the charged conduct. The negligent, non-criminal professional is a nice guy, someone who is easily taken advantage of, a law abiding person with a good heart, acting in good faith, but just isn't the most attentive to his work. He or she is merely negligent. Use the witnesses to paint this picture.


Get it in the instructions


Get the judge to say it. As complex and convoluted as most jury instructions are, the jurors read them, use them and follow them. It is absolutely vital that the Judge gives an instruction that tells the jury that negligence is insufficient to prove criminal knowledge.


In the context of a professional on trial for a criminal violation of the law, the civil negligence instruction is a helpful aid. The instruction allows the defense to use both anything the client did or did not do as evidence that he was not a criminal, but rather, was negligent.


The civil negligence instruction alone may not be enough. It is important to tie negligence to the lack of criminal intent. Since the criminal instructions for both knowingly and willfully do not make it clear that "negligence" is not evidence of either, a simple way to tie "negligence" to the lack of criminal intent is to modify the "knowingly" instruction.


There is the simple, probably most direct way to do it, by inserting the word "negligence" into the definition of "knowingly":


The word "knowingly" means that an act was done voluntarily and intentionally and not because of a mistake, accident or negligence; or

 

The word "knowingly" means that an act was done voluntarily and intentionally and  not because of a mistake or accident. Mere negligence or breach of fiduciary duties alone is insufficient to prove a defendant acted knowingly.


It can also be a bit more complex when necessary, explaining the difference between civil and criminal cases, malpractice and criminal conduct.

 

IT IS ABSOLUTELY VITAL THAT THE JUDGE GIVES AN INSTRUCTION THAT TELLS THE JURY THAT NEGLIGENCE IS INSUFFICIENT TO PROVE CRIMINAL KNOWLEDGE.


Of course, there is also the theory of defense instruction. A trial court is not free to determine the existence of the defendant's theory of defense as a matter of law; it is established by the defendant's presentation of an evidentiary and legal foundation and,  once established, the defendant is entitled to jury instructions on that defense theory. The law is clear that the defendant's burden is light as “any foundation in the evidence” is sufficient even if that evidence is of doubtful credibility, frivolous, imprudent, inconsistent, insufficient, unbelievable, or weak.


And, it is reversible error to refuse to give instructions on a defense theory for which there is an evidentiary foundation and which, if believed by the jury, would be legally sufficient to render the accused innocent.


If your defense is negligence, ask for a theory of defense instruction that says so.


Look at other cases and what the defense proposed. Look at what the courts have given. Some Judges will be afraid to confuse the civil and criminal standards and will stay away from highlighting the differences. Ask for it all, if your judge does not feel comfortable talking about the differences between malpractice/negligence and criminal conduct, stay simple. The important thing is to get something in the instructions, anything that says negligence does not equal criminal conduct.


Visualize it in closing


Charts and graphs are one of the most important tools to use in a jury trial.  My next trial series blog post will focus on visualization of the case. The jury is tired and ready to get the show on the road by the time you close. Keep them interested and remind them of the evidence with visual aids. Show them the jury instruction on negligence and read it to them. If you do not have a fancy Elmo or board, write it out on the easel beforehand and have it ready.


Another great way to visualize your defense is through the use of charts.

 

A CHART THAT SHOWS THE JURY THAT YOUR NEGLIGENT CLIENT IS NOT GUILTY AND VISUALIZES THE DIFFERENCE BETWEEN A NEGLIGENT PROFESSIONAL AND A CRIMINAL PROFESSIONAL IS VERY EFFECTIVE.


A chart that shows the jury that your negligent client is not guilty and visualizes the difference between a negligent professional and a criminal professional is very effective. In closing, the lawyer should walk the jury through a chart one step at a time. Was the client perfect? Of course not, none of us are. Was he is the top five percent of his profession? No. Was he a great professional? No. Was he below average? Yes. Was he a professional who made mistakes? Yes. Negligent? Yes. That is what you have said throughout the trial. But is the client a criminal? Absolutely not. Visualizing the level of proof needed for criminal behavior helps aid the jury in understanding the difference between negligence and criminal conduct in a simple way.


Conclusion


When a professional is going to trial, look at the facts, determine if negligence can work for you as a defense. If it does, put it out there from open to close, admit mistakes, get the Court to tell the jury negligence does not equal criminal conduct and let the jury visualize it in closing.

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