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Marshall v. State

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Concurring opinion

I write in concurrence to emphasize that any attempt by the trial court to “clarify” the notion of “beyond a reasonable doubt” for the venire could, depending upon the tone of voice and other mannerisms used, easily be construed by a juror as a gloss intended to minimize the import of this standard by which a juror is to arrive at his or her very important and potentially life-altering decision.

Here, the language used was both inartful and confusing. Absent an audio recording, we cannot know, nor should we speculate as to, the tone of voice or other mannerisms possibly employed by the trial court in its communications with the venire. That a trial judge would risk prejudicing a defendant at voir dire by speaking of legal concepts best left to trial counsel (who bear the responsibility to do so), is ill-advised.

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