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5. Beyond “Reasonable Doubt”
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Chapter 5 Beyond “Reasonable Doubt” Jon O. Newman The James Madison Lectures were inaugurated “to enhance the appreciation of civil liberty and strengthen the national purpose.”1 A lecture named for the principal architect of the Bill of Rights could aspire to no lesser goal. I hope I do not stray outside the lofty objective of this distinguished series by focusing on a right that is not mentioned in Madison’s handiwork and was not given formal recognition as comprehended within the general language of the Bill of Rights until 1970,2 although assumed by the Supreme Court to be a requirement, at least in the federal courts, as early as 1881.3 My focus is the implicit component of the due process clause that guarantees every person the right not to be convicted of a crime unless the evidence establishes guilt beyond a reasonable doubt. My thesis may be stated quite simply. I believe that the constitutional jurisprudence of this nation has accepted the “reasonable doubt” standard as a verbal formulation to be conveyed to juries in jury charges but has failed to take the standard seriously as a rule of law against which the validity of convictions is to be judged. The consequences of this deficiency are, in my view, twofold: We are convicting some people who are not guilty beyond a reasonable doubt, a few of whom may in fact be innocent, and at the same time, quite paradoxically, we are acquitting some people who could be proven to be guilty beyond a reasonable doubt, most of whom are in fact guilty. Thus, the proposition I wish to discuss is that the time has come for American courts, especially federal courts, to move beyond “reasonable 101 This lecture was delivered on November 9, 1993, and appeared in 68 N.Y.U.L. Rev. 979 (1993). doubt” as a mere incantation, to give renewed consideration to what reasonable doubt means and how it should be applied as a rule of law, so that the standard might serve as a more precise divider of the guilty from the innocent . I say “more precise” because all must recognize that fact finders are fallible and that any system of adjudicating guilt will inevitably run some risk of both convicting the innocent and acquitting the guilty. The inevitability of both types of mistakes usually leads us to say that it is better to acquit some number of guilty persons than to convict one innocent person.4 What we would not readily agree on is the appropriate ratio of guilty persons acquitted to innocent persons convicted. The cases have frequently mentioned a ratio of ten to one,5 though ratios of twenty to one6 and even ninety-nine to one have been mentioned in earlier literature.7 Whatever ratio we find acceptable, one of the major variables in achieving that ratio is the degree of certainty we impose on fact finders. If you would tolerate as many as one hundred guilty persons going free in preference to convicting one innocent person, then you will insist that no one be convicted unless the fact finder is sure of guilt to a degree approaching absolute certainty. If your ratio is ten to one, then you will likely impose a somewhat less rigorous standard upon the fact finder but still require a high degree of certainty. I believe that the “reasonable doubt” standard should express our society’s view that criminal convictions require, at the least, a high degree of certainty of guilt. But first, let me review the current application of the “reasonable doubt” standard in our trial and appellate courts. I. The Theory and Practice of Reasonable Doubt A. The “Reasonable Doubt” Standard as a Jury Charge The Anglo-American tradition has chosen a standard of certainty usually captured by the phrase “beyond a reasonable doubt.” I think it unlikely that this phrase was selected to implement a particular ratio of the sort I have been discussing. Yet, in some imprecise way, it probably was arrived at on the assumption that it would achieve an error ratio that fell within an acceptable range. So let us examine the standard, keeping in mind that the rigor of its enforcement has a significant bearing on the mistake rate of our criminal trials. 102 j o n o . n e w m a n [44.215.110.142] Project MUSE (2024-03-28 11:17 GMT) Like most traditions we have observed for a long time, there...