The reasonable doubt
1. The origins of “reasonable doubt”
The origins of “reasonable doubt” lie in a forgotten world
of pre-modern Christian theology, a world whose concerns were quite different
from our own.
At its origins, the “reasonable doubt” rule was not
intended to perform the function we ask it to perform today: It was not
primarily intended to protect the accused. Instead, it had a significantly
different, and distinctly Christian, purpose: The “reasonable doubt” formula
was originally concerned with protecting the souls of the jurors against
damnation. Convicting an innocent defendant was regarded, in the older
Christian tradition, as a potential mortal sin. The purpose of the “reasonable
doubt” instruction was to address this frightening possibility, reassuring
jurors that they could convict the defendant without risking their own
salvation, as long as their doubts about guilt were not “reasonable.” It is
only if we see the rule in this original context that we can grasp its
significance: The rule was simply never designed to protect the accused, nor
even to serve as a standard of proof in the proper sense of the term.
The medieval office-holders faced the risk of damnation if
they committed sin in the course of their official acts. Those risks confronted
judges just as they faced to all officeholders.
Indeed, the problems of judges were considered
exceptionally important, and commanded considerable attention. As medieval
church lawyers put it, any sinful misstep committed by a judge in the course of
judging and rules had to be developed to shield the judge from the consequences
of his own official acts. This was especially true any time a judge imposed
“blood punishments”—i.e., execution and mutilation, the standard criminal
punishments of pre-nineteenth-century law.
Now, when it came to inflicting blood punishments,
pre-modern Christian theology turned in particular on the problem of “doubt.”
“Doubt” about the facts presented a real danger to the soul of the individual
judge: “Doubt” was the voice of an uncertain conscience, and in principle it
had to be obeyed. Such was the rule laid down in particular by the standard
“safer way” school of Christian moral theology: “In cases of doubt,” as the
“safer way” formula ran, “the safer way is not to act at all.”
This doctrine was applied to judging as it was to all other
acts involving the individual conscience: As a typical French “dictionary of
conscience” explained the standard Christian law in the eighteenth century, “In
every case of doubt, where one’s salvation is in peril, one must always take
the safer way. . . . A judge who is in doubt must refuse to judge.” A judge who
sentenced an accused person to a blood punishment while experiencing “doubt”
about guilt committed a mortal sin, and thus put his own salvation at risk.
These were injunctions that were applied to judges in every part of western
Christendom, from Spain to Germany, from Italy to England.
The history of the “reasonable doubt” rule is the history
of English struggles with these universal western Christian challenges. Common
law jurors were Christians, and they were Christians who engaged in acts of
judgment. During the Middle Ages English criminal jurors did not yet face the
worst dangers involved in such acts: Medieval criminal juries were not
compelled to enter the general verdict of “guilty,” and therefore were not
compelled to put their souls at risk. But in the early modern period, the moral
dangers of judging became acute for English criminal jurors. As an
eighteenth-century guide to the Englishman’s civic duties ominously reminded
its readers: “The Office and Power of these Juries is Judicial, they only are
the Judges from whose Sentence the Indicted are to expect Life or Death.” Yet within the Christian tradition this was
an “Office and Power” fraught with danger. To be a juror was potentially to
“build yourself a mansion in Hell”—“to pawn [your] Soul,” as a famous
seventeenth-century pamphlet put it. There is plenty of evidence that Christian
jurors took this quite seriously, especially at the end of the eighteenth
century. As the moral philosopher William Paley described the situation in
1785, jurors experienced “a general dread lest the charge of innocent blood
should lie at their doors.” Jurors simply did not want to convict, Paley
complained: In their “weak timidity,” they held it “the part of a safe
conscience not to condemn any man, whilst there exists the minutest possibility
of his innocence.”
It was in response to such juror “timidity” and “dread”
that the “reasonable doubt” standard introduced itself into the common law in
the 1770s and especially 1780s.
It was in response to such juror “timidity” and “dread”
that the “reasonable doubt” standard introduced itself into the common law in
the 1770s and especially 1780s.
Paley’s 1785 description of jurors who wished to preserve a
“safe conscience” was exactly correct: English Christian jurors of the 1780s,
following the standard precepts of “safer way” theology, often wished to take
the “surest side” or the “safer way,” refusing to convict the accused where
they experienced “any degree of doubt.” The same was true on the American side
of the Atlantic: As John Adams reminded the jurors in the Boston Massacre
trials in 1770, repeating language of moral theology that dated back to the
Middle Ages: “[w]here you are doubtful never act: that is, if you doubt of the
prisoner’s guilt, never declare him guilty; that is always the rule, especially
in cases of life.” It was in the face of such religiously motivated reluctance
to convict that the “reasonable doubt” rule arose, taking its now-familiar form
during the 1780s. Christian moral theology had always left some room to ignore
doubts that were not “reasonable.”
English criminal justice embraced this, aiming to persuade
jurors that they could convict without risk to the safety of their salvation,
as long as their “doubts” were not “reasonable.”
Such is the origin of “reasonable doubt.” As it suggests,
the “beyond a reasonable doubt” standard was not originally designed to make it
more difficult for jurors to convict. As thoughtful historians have sometimes
recognized, it was designed to make conviction easier, by assuring jurors that
their souls were safe if they voted to condemn the accused. In its original
form, it had nothing to do with maintaining the rule of law in the sense that
we use the phrase, and nothing like the relationship we imagine to the values of
liberty. It was the product of a world troubled by moral anxieties that no
longer trouble us much at all. All of this makes it unsurprising that our law
should find itself in a state of confusion today. We are asking the “reasonable
doubt” standard to serve a function that it was not originally designed to
serve, and it does its work predictably badly.
Indeed, our difficulties in understanding the “reasonable
doubt” rule are the result of a failure of historical memory. We have forgotten
that legal procedures in the premodern world were not like legal procedures
today. They did not always aim only at achieving certainty and proof in cases
where the guilt of the offender was uncertain. Nor did they aim only at
providing procedural safeguards for the accused. Instead, they were often
designed to help relieve the judge’s own anxieties about the dangers
surrounding the act of judging. As James Fitzjames Stephen, the pioneering
nineteenth-century historian of the criminal law, famously put it, pre-modern
judges often dreaded “the responsibility—which to many men would appear
intolerably heavy and painful—of deciding . . . upon the guilt or innocence of
the prisoner.” They dreaded this responsibility so much that they avoided
entering verdicts if at all possible, or else sought to diminish their personal
responsibility in other ways. They were not seeking proof so much as they were
seeking moral comfort.
To understand this, we must begin by recognizing how
authentically disquieting the act of judgment could seem in the pre-modern
world. Pre-modern judges did indeed face “heavy and painful” dangers. Not all
of these dangers were spiritual. Sometimes they were legal: In medieval Italy,
for example, judges were subject to civil and criminal liability for incorrect
judgments. English jurors faced similar legal threats until 1670.
On a grosser level, the physical well-being of a judge was
sometimes threatened in the past, just as it is still sometimes threatened today:
The pre-modern judge who condemned a person might easily become the target of
vengeance by that person’s family or associates. The world of today, in which
most judges can simply leave the courtroom behind with comparatively little
fear for their lives or livelihoods, is a very modern world.
2.
History
of the reasonable doubt standard in the United States
In the US, various terms used to describe, explain, and
analogize “reasonable doubt” were oftentimes approved in one case, and then
overturned in subsequent cases involving substantially similar jury instructions.
Up until the mid-19th century, vague formulas such as “moral certainty” created
more confusion than clarity.
In 1970, in the seminal case of In re Winship, the US
Supreme Court constitutionalized the reasonable standard of proof, holding that
it was protected by the Due Process clause of the Fourteenth Amendment to the
US Constitution. The Court put forward two reasons. First, the Court reasoned
that the reasonable doubt standard “is a prime instrument for reducing the risk
of convictions resting on factual error” since “[it] provides concrete
substance for the presumption of innocence, because of the possibility that he
may lose his liberty upon conviction and because of the certainty that he would
be stigmatized by the conviction.” Second, the Court reasoned that the
reasonable doubt standard is “indispensable to command the respect and
confidence of the community in applications of the criminal law,” giving individuals
the confidence that “[their] government cannot adjudge [them] guilty of a criminal
offence without convincing a proper fact-finder of [their] guilt with utmost certainty.”
Though the reasonable doubt standard was constitutionalized
in In re Winship, there was little consideration of its operation and effect.
The US Supreme Court did not define reasonable doubt, nor did it address the
issue of whether and to what extent, the reasonable doubt standard should be
explained to the jury. The failure to address the relationship or conflict
between the reasonable doubt and the ideas reflected in such terms as certainty
and moral certainty, has led the US Supreme Court to revisit the issue and
discuss the reasonable doubt instructions several subsequent cases, but to no
avail.
3.
Definition
of the reasonable doubt standard in the Anglo-Saxon world
There is no definitive definition on what amounts to
reasonable doubt that is universally applied to the common law systems. Nor is
there a consistent definition applied within any one common law jurisdiction.
Common law systems, where jury instructions are central to criminal trials –
because the jury has to weigh the evidence and decide the facts – have not yet
developed a definition that escapes criticism.
In the US, the definition of reasonable doubt varies not
only from state to state, but also among the Federal Circuit Courts of Appeal.
Some jurisdictions adopt pattern criminal jury instructions, which provide a
definition of sufficient clarity to enable an ordinary juror to understand it
and apply it. For example, Pattern Criminal Jury Instructions of the US Court
of Appeals for the Sixth Circuit provide:
Proof beyond a reasonable doubt does not mean proof beyond
all possible doubt. Possible doubts or doubts based purely on speculation are
not reasonable doubts. A reasonable doubt is a doubt based on reason and common
sense. It may arise from the evidence, the lack of evidence, or the nature of
the evidence. Proof which is so convincing that you would not hesitate to rely and
act on it in making the most important decisions in your own lives. If you are
convinced that the government has proved the defendant guilty beyond a reasonable
doubt, say so by returning a guilty verdict. If you are not convinced, say so
by returning a not guilty verdict.
By contrast, the US Court of Appeals for the Seventh Circuit
contains no instruction regarding the definition of the reasonable doubt standard.
In United States v. Glass, the Seventh Circuit stated that attempts to explain
the term “reasonable doubt” do not usually result in making it any clearer to
the minds of the jury. In Glass, the Court stated:
That is precisely why this circuit’s criminal jury
instructions forbid them. ‘Reasonable doubt’ must speak for itself. Jurors know
what is ‘reasonable’ and are quite familiar with the meaning of ‘doubt.’
Judges’ and lawyers’ attempts to inject other amorphous catch-phrases into the
‘reasonable doubt’ standard, such as ‘matter of the highest importance,’ only
muddy the water.
This jury attested to that. It is, therefore, inappropriate
for judges to give an instruction defining ‘reasonable doubt,’ and it is
equally inappropriate for trial counsel to provide their own definition. Trial
counsel may argue that the government has the burden of proving the defendant's
guilt ‘beyond a reasonable doubt,’ but they may not attempt to define
‘reasonable doubt.’
Similar to the Seventh Circuit’s position, the United
Kingdom Court of Criminal Appeal (now superseded by the Court of Appeal of England
and Wales) advised lower courts judges against providing a definition of what
amounts to proof beyond a reasonable doubt. Lord Chief Justice Goddard of the
Court of Criminal Appeal remarks in Regina v. Summers (1952) are telling:
I have never yet heard any court give a satisfactory
definition of what is a “reasonable doubt,” and it would be very much better if
that expression was not used. Whenever a court attempts to explain what is
meant by it, the explanation tends to result in confusion rather than clarity.
Canadian appellate courts have also declined to define
reasonable doubt.
4.
Reasonable
doubt in the practice of the European Court of Human Rights
In 1969, the European Commission of Human Rights rendered
what appears to be the first definition of the reasonable doubt standard in
what is known as the Greek case.
The Commission was tasked with deciding what standard of
proof to apply in evaluating evidence related to allegations of torture under
Article 3 of the European Convention on Human Rights (ECHR). The Commission
held that allegations of breaches of Article 3 must be proved beyond a reasonable
doubt, defining it as “not a doubt based on a merely theoretical possibility or
raised in order to avoid a disagreeable conclusion, but a doubt for which reasons
can be given drawn from the facts presented.”
Nine years later, the European Court of Human Rights
(ECtHR) reaffirmed and elaborated this definition in Ireland v. United Kingdom
(1978). It added that proof of beyond reasonable doubt may follow from “the
coexistence of sufficiently strong, clear, and concordant inferences, or of
similar unrebutted presumptions of fact.”
This definition, although not very detailed or precise,
sets the minimum standard to which States party to the ECHR and subject to the
ECtHR’s jurisdiction are obliged to adhere. Of course, nothing prevents
national legislators from developing a standard that provides more protection
than the minimum standard allowable under ECtHR jurisprudence.
5.
Burden
of proof
In common law systems the term “burden of proof” can have
two meanings: the burden of persuasion and the burden of production.
Distinguishing between these two meanings is important and necessary due to the
distribution of functions between the judge and the jury. Generally, the trial
judge decides questions of law, whereas the jury decides questions of fact.
This explains why juries are referred to as the fact finder (also known as the
trier of fact), a term that also applies to judges when conducting a non-jury
trial, also known as a bench trial.
Throughout the trial proceedings, the judge instructs the
jury on its obligations, the various rights afforded to the accused, how to
weigh the credibility of witnesses, and how to assess other evidentiary
matters, such as the testimony from the accused, expert witness testimony,
conflicts of interest, and character evidence. At the end of the trial and
before the jury deliberates, the judge gives the jury final instructions on what
it must consider before reaching a verdict.
The judge instructs the jury that the burden of proof is
always on the prosecution and that the accused has the right to rely upon the
failure or inability of the prosecution to establish beyond a reasonable doubt
any essential element of a crime charged.
The defense is not required to present any evidence, save
for when raising a defense, and, even then, the evidence need not rise to the
reasonable doubt standard. The defense can remain silent during the trial
proceedings yet still argue that the prosecution failed to prove the charges
beyond a reasonable doubt. This refers to the first meaning of the burden of
proof, also characterized as the burden
of persuasion, risk of non-persuasion, the legal or persuasive burden, or
the ultimate burden – a party’s obligation to prove an assertion or charge.
When it comes to the ultimate issue of guilt, in common law systems the
prosecution bears the burden.
The second meaning of the burden of proof, characterized as
the burden of production or the
burden of going forward or evidential burden, refers to the order of presentation
of evidence prescribed by law.
This meaning generally applies when the defense opts to
raise an affirmative defense or claim an alibi. In other words, the burden of
production specifies who is required to present the requisite evidence in order
for the fact-finder to decide on the affirmative defense or claim of alibi. The
burden of production can also be referred to as the duty of passing the judge,
since it is the trier-of-law (the judge) who decides whether a party has met
its burden of production for the issue to go before the fact-finder (the jury).
Conclusions
The reasonable doubt standard, together with the in dubio
pro reo principle and the presumption of innocence, is the bedrock of criminal
trials in common law systems.
Whatever catapulted the reasonable doubt standard to the
forefront as the preeminent and universally accepted standard of proof in
common law systems is no more relevant today than the historical backdrop of
how intimate conviction (generally described as the personal opinion the judge
forms after inward reflection on the evidence discussed by the parties at
trial) became the standard of proof in civil law systems. It does little in
resolving the persistent difficulties in framing a clear, concise and
consistent definition of the standard.
The US jurisprudence is rather telling:
recurrent problems in defining and applying the reasonable doubt standard
persist, as the different US Circuit Courts of Appeal accept a wide variety of
instructions on the reasonable doubt standard.
Arguably, the definitional differences between the reasonable
doubt standard and intimate conviction standard are a matter of semantics.
There appears to be little, if any, difference in the quality of proof between
these two different standards. Both require application of the in dubio pro reo
principle, resulting in a high degree of proof tantamount to near certainty,
eschewing fanciful or inconsequential doubts.
Just as for civil law judges there should be no real
dilemma in discerning the qualitative substance of evidence required to be
satisfied of the guilt of an accused to an intimate conviction, the lack of a
concise and universally accepted definition of reasonable doubt should not pose
a dilemma for judges in judge-tried cases in common law systems. Judges, by
virtue of their training and knowledge of the law and rules of evidence, are
expected to assess the testimonial and documentary evidence presented during a
criminal trial and apply the requisite law in determining whether the
prosecution has met his or her burden of proving the elements of the charged
crimes.
The reasonable doubt standard does not operate in the
abstract. It is intrinsic to a number of other mechanisms, from rules of
procedure and evidence to a set of jury instructions invoked throughout the
trial. Were jury trials to be introduced in a hybrid system, numerous obstacles
and challenges can be anticipated, such as:
- -Procedures
would have to be developed to select juries free of bias, and to keep them that
way for the duration of trial and deliberation;
- -Formal
rules of procedure and evidence would have to be developed to protect the jury
fact-finder from prejudicial and other inadmissible evidence;
- - A list
of evidentiary objections would be required to ensure that the rules of procedure
and evidence were being implemented;
- -The
judges would have to be trained in addressing the evidentiary objections while
assessing the evidence contemporaneously as it is presented at trial;
- -The
lawyers would have to be trained in making the timely and specific objections
at trial to make a record for appeal;
- -Clear
instructions for the jurors would have to be developed to guide the jurors at
each phase of the trial; and
- -A
clear, concise and easily understood definition of reasonable doubt would need
to be developed.
Another critical challenge is the lack of transparency.
Jurors do not explain their verdicts. They deliberate secretly. They do not
give an accounting on what evidence was accepted or rejected, what weight was
afforded to any particular evidence or testimony, the credibility of witnesses
or how they reached their individual decision on the evidence.
Finally, aside from the challenges already noted, there is
also a host of issues related to resources that must be considered, such as:
- -Retrofitting
the courthouses and courtrooms to accommodate jurors, compensating jurors for
their time (similar to paying lay judges who are currently striking in
demanding higher fees);
- -Imposing
disciplinary measures on those unwilling to respond to jury summons;
- -Costs
for summonsing and holding disciplinary hearings on causes for not being
sanctioned for failing to respond to summons; and
- -The
added time it would take to conduct jury trials, which by all accounts and
measures, take considerably longer than judge-tried cases.
Bibliography:
The
Origins of "Reasonable Doubt." James Q. Whitman
Gruesome
Evidence and Emotion: Anger, Blame, and Jury Decision-Making. David A.Bright.
Jane Goodman-Delahunty
Reasonable
Certainty and Reasonable Doubt. Henry L. Chambers, Jr.
Beyond
"Reasonable Doubt.” Jon O. Newman
The
Constitutional Status of the Reasonable Doubt Rule. Donald A. Dripps
Conference
and roundtable discussion "Doubt in favour of the defendant, guilty beyond
reasonable doubt". Michael G. Karnavas
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