The Proof is in the Pudding

I always begin my legal research on any case (a set of criminal charges against my client) with the end in mind. The government and their lawyers (the prosecutors) have the burden of proof. In other words they are the offense. They must move the ball to the end zone. I play defense. They must make all their proof of the crime beyond a reasonable doubt in the minds of the jury.

The first thing I do is look at the Set of Specific Jury Instructions for that Charge. This set of directions is what the Judge will specifically tell, instruct, and order the Jury to do. It is crucial to to form my defense step by step against the prosecution's case. The second thing I do is study cases and case law that may show fact patterns similiar to my client's situation. These usually demonstrate how the Courts have ruled on similiar evidence (the proof).

The expression “the proof is in the pudding” has been around for hundreds of years. It is a metaphor that means "only believe things that can be proven." Juries should never make assumptions or believe what they are told without something more. That something more is making the facts apply to a clearly defined law and set of rules.

Every criminal charge has things (called elements) to be proven. The jury acts as a “fact finder” in this role. They are given the law and the rules of proof to be applied to these set of facts by the Judge.

What the Judge gives the Jury is a set or sets of instructions. A determination of Guilty or Not Guilty of a criminal charge hinges on the Jury’s understanding and application of the Jury Instructions.

Various criminal charges have different sets of instructions that the Jury must follow. For example, the criminal charge of Aggravated Unlicensed Operation of a Motor Vehicle in the 3rd Degree, a Class A Misdemeanor. Vehicle and Traffic Law section 511 (1)(a).

The Jury Instruction is as follows:

In order for you (the Jury) to find the defendant (the accused) guilty of this crime, the People (the Prosecution/the Government) are required to prove, from all the evidence in the case beyond a reasonable doubt, each of the following two elements:

1. That on or about (date), in the county of (county), the defendant operated a motor vehicle on a public highway; and

2. That the defendant did so while knowing or having reason to know that his/her license or privilege of operating such motor vehicle in this state or privilege of obtaining a license to operate such motor vehicle issued by the commissioner is suspended, revoked, or otherwise withdrawn by the commissioner.

Therefore, if you find that the People (the Prosecution/the Government) have proven beyond a reasonable doubt both of these elements, you must find the defendant guilty of Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree as charged.

On the other hand, if you find that the People (the Prosecution/the Government) have not proven beyond a reasonable doubt either one or both of those elements, you must find the defendant not guilty of Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree as charged.


The crucial element that the Prosecutor must prove is that you had knowledge that your license or privilege was suspended, revoked, or withdrawn.

The key question in the case is:

Did you know or have a reason to know you were driving without a license or privilege?

There are various ways that the prosecution can prove their case which are all fact dependent. If you lost your New York driving privileges or your license was taken by a Judge at a hearing it will be hard to argue you did not know you did not have a license or permission to drive a car.

On the other hand, what if there is proof (you changed addresses, you had mail problems) that you never received any notice (a letter) from the Court or the New York DMV of a license suspension due to an unpaid ticket, unpaid fine, or a failure to pay a reactivation fee? That argument may be accepted by a Jury as reasonable doubt of your lack of knowledge or having reason to know of your license suspension.

Ultimately the proof in every case is dependent upon what can be shown to the Jury. Criminal defense attorneys not only work with the facts that are visible, but seek out the invisible but discoverable facts that can help a client’s case. The goal is to show that the facts presented by the prosecution are unclear, conflicting, and do not prove the elements of the crime beyond a reasonable doubt. Juries need to be shown common sense reasons to find doubt within the Government’s proof. Afterall, remember that it is always the Government’s burden, not yours, to prove every element of your legal guilt to the standard of beyond a reasonable doubt.