28 August 2007

Defining Reasonable Doubt - Round 2

In response to my post on defining reasonable doubt, Neil wrote an email and offered a possible definition:
Even if this was the person you loved most in the world, you would know in your heart of hearts that they were guilty and that no other explanation was possible.
Well, if I were still a defense attorney I'd love that instruction. As a prosecutor - not so much. As I read this, it changes the standard to beyond any doubt, not beyond a reasonable doubt. In the second clause of the sentence this could be fixed by adding "reasonable" between other and explanation (although this makes the explanation somewhat circular).

The first clause strikes me as raising the defendant too high in the eyes of the jurors. A juror should start from an objective point of view. If no evidence is presented the presumption of innocence is a default in the courtroom which would require a finding of not guilty. However, the jurors should start out not favoring either side and input and/or subtract evidence until it either does or does not reach the level of proof beyond a reasonable doubt. Nobody starts out neutral with a family member. In fact, experience teaches that often loved ones cannot believe that their brother, son, daughter, husband, etc. is guilty no matter how overwhelming the evidence.

If we went back to using a positive definition of reasonable doubt I think the two argued over in the prior note would be okay:
an abiding conviction of the truth of the charge


an abiding conviction to a moral certainty of the guilt of the accused
Although, I must admit to some trepidation over how a jury might handle "moral certainty."

In the end, I think that the way Virginia handles reasonable doubt, by announcing to the jury what it is not and allowing the jurors to decide exactly what it is, works about as well as could be expected and I doubt the jury worries as much about all the legal technicalities we lawyers argue about. They know it's supposed to be a high standard in order to convict someone, no matter how we word it.


Anonymous said...

Canada's Supreme Court decided a case that defines how reasonable doubt should and should not be explained to a jury. Your thoughts?


39 Instructions pertaining to the requisite standard of proof in a criminal trial of proof beyond a reasonable doubt might be given along these lines:

The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the Crown has on the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty.

What does the expression “beyond a reasonable doubt” mean?

The term “beyond a reasonable doubt” has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.

A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.

Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.

On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.

In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.

Anonymous said...

Please forgive me for this very belated reply, but the
reasonable doubt question fascinates me, so I submit
just in case this might still be timely.

What I would suggest is an updated version of the
old "to a moral certainty," which when correctly
understood really does get across the 18th-century
concept of the highest level of proof one can have
about historical events, as opposed to logical or
mathematical demonstrations.

Here I use "to a practical certainty," and suggest
that jurors should be asked to judge whether the
evidence is so "overwhelming and compelling" (a step
beyond "clear and convincing") that it gives the
defendant's guilt the reality of "an established
historical fact."

* * *

"You must return a verdict of not guilty unless you
find that the evidence is so overwhelming and
compelling that it establishes the defendant's guilt
beyond a reasonable doubt, or to a practical
certainty. The law does not require proof beyond any
possible doubt, or to an absolute certainty, because
any historical event or aspect of human affairs is
open to some possible or speculative doubt.
Nevertheless, we accept many historical events as
established facts: for example, the inauguration of
President George Washington in 1789; or the first
landing of humans on the Moon in 1969.

"Proof beyond a reasonable doubt, or to a practical
certainty, is the highest standard of proof known to
the law. While it does not require absolute certainty,
it goes far beyond a conclusion that the defendant's
guilt is more likely than not, or even highly
probable. It is your duty to return a verdict of
guilty if, and only if, upon careful consideration,
you find the evidence as a whole is so compelling that
it excludes every reasonable possibility of innocence
and gives the defendant's guilt the force and reality
of an established historical fact."