"Cloaked in the Shroud of Innocence"

For the most part, Arizona superior court judges instruct juries from the same basic set of instructions. Cases will have additional, different instructions depending on things like the relevant statutes, the facts of the case, and whether there are any lesser included offenses or special defenses involved, but most instructions are the same from one trial to another. There may be little variations, as many seasoned judges do them from memory or get bored reading verbatim, but any lawyer who tries a lot of cases is going to notice right away if a judge isn’t following the typical script.

In every trial I’ve done, the judge has given the jury some variation of Arizona’s standard “Presumption of Innocence” jury instruction. Here it is:

The law does not require a defendant to prove innocence. Every defendant is presumed by law to be innocent. You must start with the presumption that the defendant is innocent.

By “some variation,” I mean that a judge might add or subtract a word or two without changing the meaning. Paraphrasing is common, to a point. Changing an instruction isn’t, so you can imagine my surprise when a judge gave the following instruction earlier this year:

The law does not require a defendant to prove innocence. The defendant sits before you cloaked in the shroud of innocence. You must start with the presumption that the defendant is innocent.

I wasn’t pleased, and I made it known. I didn’t get exactly what I wanted, but I made my record.

I’ve wondered for months why the judge would use that language, and I can only conclude that it was intended to prejudice the jury against my client. Can anyone else think of a reason why?

People tell me I overreacted. People tell me it’s funny. One person called it “a dark instruction.” Another called it “the Harry Potter instruction.”

Good guys don’t need to be cloaked. Shrouds are for covering up things. It was carefully chosen language, and the effect was prejudicial. I don’t know where the judge got it, but that doesn’t really matter. The deck is stacked against defendants in the first place. The last thing the people judging need to hear is someone in a robe describing a defendant with words like that.