Find Me In Your Memory Episode 5

There was evidence upon which the following facts could be found. A young woman (the complainant) was employed as a reservation clerk by an airline. She planned to work a shift from 6 A.M. to 2:30 P.M. on November 2, 1968. While getting out of her automobile in a parking lot near High Street, Boston, about 5:50 A.M. she was accosted by Gerald, then a stranger to her. He forced her, after a struggle and by use of a knife, to drive him to a vacant lot in Dorchester, and there compelled her to disrobe. He then had sexual relations with her. She dressed herself and then drove back to Boston under his direction. There was ample evidence to permit finding that Gerald was the assailant, that the complainant acted wholly under compulsion, and that thereafter she made fresh complaint of the attack upon her. This evidence could be believed despite medical testimony that there were only slight, if any, physical indications of an attack when she was examined within about three to four hours of the episode. Other evidence bearing upon the assignments of error is stated in connection with the discussion of the assignment to which it is pertinent.

Find Me in Your Memory Episode 5

4. The trial judge in his charge summarized various parts of the evidence in about eleven pages of the transcript of the trial, in part in connection with discussion of issues of law. He emphasized that if his summary "does not coincide with your memory, you take your memory and pay no attention to the fact that a judge remembered it differently." There was no improper invasion of the province of the jury. The judge adequately stated that it was for the jury to determine whether the evidence was credible and persuasive.

The judge then went on to say, "A very distinguished [British] judge . . . once put it this way . . . `In a criminal case before a defendant is found guilty the evidence need not reach certainty, but it must carry a high degree of probability. If the evidence against a man is so strong as to leave only a remote possibility in his favor which can be dismissed with the sentence . . . [O]f course it is possible but not in the least probable . . . the case is proved beyond a reasonable doubt, but nothing short of that will suffice'" [Note 2] (emphasis supplied). The defendant contends that this portion of the charge was erroneous. The substance of this language was repeated later in the charge. The judge then added, "And if, therefore, during your deliberations you find a doubt that appeals to your common sense, this defendant gets the benefit of that doubt." 041b061a72