Beyond any reasonable doubt

Confusion

In a US criminal trial, to warrant a conviction, the jurors have to be convinced that the accused is guilty beyond any reasonable doubt.

But what does that mean?

The meaning of the phrase “beyond any reasonable doubt” is far from clear. Some anecdotes have it that, when a prospective juror asked “what does beyond any reasonable doubt mean?", the presiding judge replied, quite dismissively, that beyond any reasonable doubt just meant b-e-y-o-n-d a-n-y r-e-a-s-o-n-a-b-l-e d-o-u-b-t. And, in fact, there isn’t any easy, clear, crisp definition one could give. A fairly recent book details the state of confusion among legal experts, judges and attorneys concerning the meaning of the phrase (Larry Laudan: Truth, Error, and Criminal Law, Cambridge University Press, 2006).

The book tells the story of how some trial juges, while instructing juries, tried to clarify the phrase. Higher courts, however, ruled that the judges' instructions were misleading. The current state of the law in the US is that judges are prohibited to give any clarification about the meaning of "beyond any resonable doubt" because the phrase is clear by itself. Really?

When is a doubt reasonable, as opposed to unreasonable?

Ten unanimous witnesses. To be sure, there are some clear-cut cases, but they are quite rare. Suppose, in a homicide case, ten witnesses unanimously assert that the accused is the assassin. Well, maybe in that case we can say that there is no reasonable doubt that the accused is the criminal. Yet it does not happen very often that there are ten witnesses who, unanimously, blame the accused. So, what if there are only two witnesses, or even only one? Wouldn't it be reasonable to think that the witness could be wrong?

Reasonable doubt as plausible doubt. Maybe another clear-cut case is one in which the prosecutor presents a quite compelling case and the defense lawyer has no alternative explanation of the facts. To illustrate, suppose the prosecutor's case against the accused looks like this. First, a video camera proves that the accused was around the crime scene at the time of the crime, in a very isolated area of military interest. Second, the said area can be accessed only through one road that happens to be highly monitored by police officers. Third, some witnesses (police officers) say of having seen the accused going to the crime scene several hours before and no one else So, it seems to be pretty clear that no one else was around the area during the crime. Finally, it is also clear that the victim could not have died naturally. And now, suppose the the other party has no alternative explanation for why the accused was around the crime scene, why he went there, and has no evidence that someone else was there at the time of the crime.

In that case, it seems, one could still doubt that the accused was the criminal. One could still think that someone else was the actual criminal -- someone nobody could see, someone who accessed the crime scene in a mysterious and undocumented way, although the access to the area where the crime occurred was highly monitored by police officers. One could even blame everything on a conspiracy by the government, or could appeal to the UFOs. But clearly, these would be implausible speculations. They would not amount to a reasonable doubt.

Ordinary cases. So, there are clear-cut cases in which we know what "beyond any reasonable doubt" means. However, it is hardly true that in a criminal trial there are ten, or even two witnesses, who assert the guilt of the accused, unanimously and without being challanged by contradicting witnesses. And it hardly happens that the prosecutor case is so strong that denying it would amount to making implausible speculations.

Although I cannot say it for sure, what happens most of the time tends to be quite different. Typically, there are two competing versions or stories, one from the accused and the other from the defense. Both stories are supported by witnesses. Both stories are plausible and reasonable. If so, how does the formula of "beyond any reasonable doubt" play out in these cases? Does the formula suggest not to convict anyone in these cases? It is completely unclear.

What happens is that the juror will end up believing one of the two stories. How and why they believe one or the other is not for us to know, because in the United States the juries decision- procedures are secret and cannot be revealed to the public. Juries are like black-boxes issuing verdicts without telling us how they reached the verdict. But the problem of juries as black-boxes is another problem. I might want to write on it soon.

Why so much confusion?

But why is there so much confusion surrounding the notion of "beyond any reasonable doubt"? Is it inevitable? A recent and wonderful book provides a tentative answer. In The Origins of Beyond Reasonable Doubt (Harvard University Press, 2009), professor James Q. Whitman from Yale University undertakes a historical analysis of the meaning of the formula “beyond any reasonable doubt.” His contentious is that, as it was originally conceived, the formula was supposed to perform a quite different function than what we expect it to perform today. It is the shift of function the formula underwent over the centuries which is at origin of our current confusion.

Moral comfort. In Medieval and early modern times, European society was heavily shaped by religion. The fear of an eternal punishment was a living threat to everyone’s conscience. A juror who condemned an innocent was doomed to go to hell for eternity. This made convictions extremely rare because almost no juror was willing to convict anyone under the risk of eternal punishment. To make convictions easier the formula “beyond any reasonable doubt” was introduced. It worked more or less as follows: If the juror, upon inspecting his soul, was unable to “see” any doubt, then he was free to convict, without running the risk of eternal damnation.

Epistemic function. Following Whitman's analysis, the formula “beyond any reasonable doubt” has religious roots and its original function was that of giving moral comfort to the jurors. Today moral and religious concerns about eternal damnation have disappeared, so that the formula is excepted to perform a purely epistemic function. This means that the formula has to do with weighing the evidence and assessing whether or not it supports a certain factual conclusion of guilt or innocence (beyond any reasonable doubt). Today we invest the formula of an epistemic task which it did not have before. According to professor Whitman, it is the attempt to make the formula perform an epistemic task, while it was originally supposed to provide moral conformt to jurors, that has generated so much confusion about what the formula means and how it is supposed to guide judicial decisions.

Today we blindly assume that the judicial process is a fact-finding processes and that jurors are supposed to find the facts. We do forget, however, that the judicial process came about in a time dramatically shaped by religious and moral concerns, and much less by factual and epistemic ones, at least as we conceive them today after the scientific revolution. Understanding the origins of the English and American criminal trial is an important step, albeit very preliminary, which can help us understand how to make the criminal trial work better today. And this is why Whitman's book is a very valuable contribution from the field of legal history.

Desperate souls, ready to cross the Acherontes' river and go to Hell for eternity. An illustration of Dante's Inferno by Gustave Dore'.
Desperate souls, ready to cross the Acherontes' river and go to Hell for eternity. An illustration of Dante's Inferno by Gustave Dore'.

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