In People v. Centeno (2014) 60 Cal. 4th 659, 662 the prosecutor used a diagram showing the boundaries of California and urged the jury to convict based on a “reasonable” view of the evidence. In addressing this issue the CSC discussed several related cases:
The case law is replete with innovative but ill-fated attempts to explain the reasonable doubt standard. [Citations.] We have recognized the ‘difficulty and peril inherent in such a task,’ and have discouraged such ‘ “experiments”’ by courts and prosecutors. [Citation.] We have stopped short, however, of categorically disapproving the use of reasonable doubt analogies or diagrams in argument. Rather, we assess each claim of error on a case-by-case basis.
The prosecutor’s argument was as follows:
“Let me give you a hypothetical. Suppose for me that there is a trial, and in a criminal trial, the issue is what state is this that is on the [referring to overhead image of California] Say you have one witness that comes in and this witness says, hey, I have been to that state, and right next to this state there is a great place where you can go gamble, and have fun, and lose your money. The second witness comes in and says, I have been to this state as well, and there is this great town, it is kind of like on the water, it has got cable cars, a beautiful bridge, and it is called Fran-something, but it is a great little town. You have another witness that comes in and says, I have been to that state, I went to Los Angeles, I went to Hollywood, I saw the Hollywood sign, I saw the Walk of Fame, I put my hands in Clark Gable’s handprints in the cement. You have a fourth witness who comes in and says, I have been to that state.
“What you have is you have incomplete information, accurate information, wrong information, San Diego in the north of the state, and missing information, San Bernardino has not even been talked about, but is there a reasonable doubt that this is California? No. You can have missing evidence, you can have questions, you can have inaccurate information and still reach a decision beyond a reasonable doubt. What you are looking at when you are looking at reasonable doubt is you are looking at a world of possibilities. There is the impossible, which you must reject, the impossible [sic] but unreasonable, which you must also reject, and the reasonable possibilities, and your decision has to be in the middle. It has to be based on reason. It has to be a reasonable account. And make no mistake about it, we talked about this in jury selection, you need to look at the entire picture, not one piece of evidence, not one witness. You don’t want to look at the tree and ignore the forest. You look at the entire picture to determine if the case has been proven beyond a reasonable doubt.” (People v. Centeno, supra, 60 Cal. 4th at 665-66.)
The prosecutor then compared the defense and prosecution evidence in the following argument:
“Is it reasonable to believe that a shy, scared child who can’t even name the body parts made up an embarrassing, humiliating sexual abuse, came and testified to this in a room full of strangers or the defendant abused Jane Doe. That is what is reasonable, that he abused her. [¶] Is it reasonable to believe that Jane Doe is lying to set-up the defendant for no reason or is the defendant guilty?”
“Is it reasonable to believe that there is an innocent explanation for a grown man laying on a seven year old? No, that is not reasonable. Is it reasonable to believe that there is an innocent explanation for the defendant taking his penis out of his pants when he’s on top of a seven-year-old child? No, that is not reasonable. Is it reasonable to believe that the defendant is being set-up in what is really a very unsophisticated conspiracy led by an officer who has never met the defendant or he[‘s] good for it? That is what is reasonable. He’s good for it.” (Ibid.)
In its initial analysis of this argument the CSC observed:
Courts have repeatedly cautioned prosecutors against using diagrams or visual aids to elucidate the concept of proof beyond a reasonable doubt. (See, e.g., People v. Medina (1995) 11 Cal.4th 694, 744–745 (Medina); People v. Otero (2012) 210 Cal.App.4th 865, 874 (Otero); People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1269 (Katzenberger)), yet these arguments persist. (Ibid.)
In Medina, supra, 11 Cal.4th 694, the prosecutor’s diagram depicted two horizontal lines, one labeled “ ‘100 percent certainty’ ” and a second line beneath it labeled “ ‘beyond a reasonable doubt.’ ”(Id. at p. 744.) While referring to the diagram the prosecutor urged the jurors to not hold the prosecution to the higher standard, but rather to the “ ‘lower’ ” standard. Despite cautioning against the prosecutor’s “attempt to reduce the concept of guilt beyond a reasonable doubt to a mere line on a graph or chart.” (Id. at p. 745.) the CSC ultimately concluded that no prejudicial misconduct was shown because the prosecutor’s remarks were made before evidence was received and formal instructions given. (Ibid.)
Katzenberger, supra, 178 Cal.App.4th 1260, disapproved an argument similar to the one made in Centeno. Using a slide show to display pieces of a puzzle which was “immediately and easily recognizable as the Statue of Liberty” (id. at p. 1264), even though two pieces that would have shown part of the statue’s face and the torch were missing. (Id. at pp. 1264–1265). The prosecution argued: “[w]e know [what] this picture is beyond a reasonable doubt without looking at all the pieces of that picture. We know that that’s a picture of the Statue of Liberty, we don’t need all the pieces of the [sic] it.” (Id. at p. 1265.) The appellate court concluded that the presentation misrepresented the standard of proof because it invited the jurors to guess or jump to a conclusion without considering all of the evidence, an approach “completely at odds with the jury’s serious task of assessing whether the prosecution has submitted proof beyond a reasonable doubt.” (Id. at p. 1267.) Despite finding the error harmless the reviewing court “caution[ed] prosecutors who are tempted to enliven closing argument with visual aids that using such aids to illustrate the ‘beyond a reasonable doubt’ standard is dangerous and unwise.” (Ibid.)
Similarly Otero, supra, 210 Cal.App.4th 865, disapproved the prosecutor’s use of a diagram similar to the one used in Centeno to illustrate proof beyond a reasonable doubt.
In Centeno (id. at p. 669) the CSC expressed its agreement with with Katzenberger and Otero:
The use of an iconic image like the shape of California or the Statue of Liberty, unrelated to the facts of the case, is a flawed way to demonstrate the process of proving guilt beyond a reasonable doubt. These types of images necessarily draw on the jurors’ own knowledge rather than evidence presented at trial. They are immediately recognizable and irrefutable. Additionally, such demonstrations trivialize the deliberative process, essentially turning it into a game that encourages the jurors to guess or jump to a conclusion.