Use Your Common Sense – The Prosecutor’s Crutch

Criminal Defense Lawyers have heard it all too often. “Use your common sense,” the prosecutor urges the Jury. What the prosecutor means by that seemingly innocuous phrase is: “I know I have not presented enough evidence for you to convict. Let’s pretend that I did.”

That is exactly what a Vero Beach prosecutor did in a recent theft trial. The Accused woman was alleged to have left the local WalMart with a grocery cart containing some items that had been paid for, and some that had not. The store security officer took photos of the unpaid items.

At trial, the store security officer was not asked to testify to the value of the items that left the store without having been purchased. This was important.

In Florida, theft charges are catalogued in different degrees, based upon the value of the goods alleged to have been stolen. A theft could be punishable by a maximum of sixty days in jail for the lowest level theft, but by many years in prison for a larger theft.

In her closing argument to the Jury, the prosecutor conceded that she did not “have an exact value” for the unpaid items, but told the Jury to use their common sense.

The Jury, apparently trusting the prosecutor more than they should have, convicted. The Fourth District Court of Appeal, in a unanimous ruling corrected the mistake.

“Use your common sense” is not a substitute for evidence, no matter what the prosecutor says. And you can take that to the bank.