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    November 2021
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“Beyond a Reasonable Doubt”

“On July 7, 1784, a young man named Richard Corbett stood in London’s main criminal court, the Old Bailey. He was not there as a spectator or witness. He was the accused, indicted for arson. The evidence was presented, then the judge summarized the case for the jury. At the end of the summary, the judge gave this instruction: ‘If there is a reasonable doubt, in that case the judgment ought to be decided in favor of the prisoner.'”

This is from a recent book entitled “The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial,” by Yale Law School Professor James Q. Whitman, who is described in a Chicago Law Review article as an expert in legal history and comparative law. Professor Whitman recounts the origins and history of the “reasonable doubt” standard, which of course did not just pop up out of nowhere, it was a result of political, cultural and legal history.

Very interestingly, Professor Whitman suggests that “Reasonable Doubt” “is the last vestige of a vanished, pre-modern Christian world,” that the term was intended not to protect criminal defendants, but for “the souls of the jurors,” and that the standard “was intended to make conviction easier, by reassuring anxious jurors that they would not be damned for voting to spill the defendant’s blood. Jurors could safely convict as long as their hesitations did not rise to the standards of reasonable doubt.”

The law review article which reviews the book, goes on to note that Whitman states that “the concept of reasonable doubt is fundamental and universally familiar…but in practice it is vexingly difficult to interpret and apply.” Judges in common law “were forbidden to explain the meaning of the phrase.” And this prohibition remains in force in some American jurisdictions, such as Illinois, where the state supreme court declared in 1992 that “neither the court nor counsel should attempt to define the reasonable doubt standard.” Professor Wilson says that the result is that that modern jurors are “understandably baffled” when trying to apply the standard to the facts at hand.

This is fascinating, and I am almost compelled to read the book. I never practiced criminal law; I took the requisite law school courses in it, which I found very interesting. And I have mulled the origins of this famous and immensely crucial term, which we all know, if even just from watching TV shows, or more commonly now, real trials on television

What does “beyond a reasonable doubt” as necessary to vote for conviction, actually mean? It is obviously far greater than “a preponderance of the evidence,” which is generally the standard for civil trials. That term at least theoretically means “more than 50%.” What percentage does “beyond a reasonable doubt” imply? I have read some suggest that it means “about 97% likelihood of guilt,” but that is obviously not quantifiable; what does 97% , as opposed to 86%, mean in concrete terms?

Note that the “reasonable person” is a standard usually applied in psychological aspects of tort law; were his or her actions consonant with that of a reasonable person, however subjective that might be for a judge or jury to try to figure out. Apparently it is as much as the lawmakers and judges were able to come up with as to standards and thresholds.

We are seeing many criminal trials for murder play out on a national stage. The police officers involved in the George Floyd case. Kyle Rittenhouse. Ahmaud Arbery. It seems that each of these, and the other recent ones, have taken on an aspect so that they are not just about an act or acts, not only about a particular situation, but a referendum on matters of race, access to guns, rights of self-defense. And that makes it so much more difficult for the public to weave through the political and cultural import, to only focus on the facts of the case, to the extent that we are allowed to hear about them.

And in the Rittenhouse trial, most particularly, we see how much the trial judge can affect the deliberations, by not allowing terms to be used which the jury might react to, or by other rulings. Judges always are convinced that they are following the law; and in criminal trials, trying to protect the defendant’s rights.

But It seemed as if the judge in the Rittenhouse case, Judge Bruce Schroeder, went out of his way to favor the defendant; though I did not watch all of the trial, nor am I familiar with all the legal precedents in Wisconsin law. So I am simply applying my outside view, as other people following it do. On the other hand, judges should not be protected or insulated from outside views. I have met enough of them; they are just people; some more learned or scrupulously fair-minded than others, but not immune to emotions, or possibly hidden bias, or even political viewpoints, which might influence their rulings.

To potentially protect against that, is why every defendant in a criminal trial has the right to a trial by jury. All twelve jurors have to vote “guilty” for there to be a conviction. Of course we know that there are “jury experts” who have turned it into a science, the ability to glean how a potential juror will vote, as if the outcome of most trials are now virtually predetermined. You only need one, or at most two, to hang the jury, though the prosecution could retry the case, as in the Menendez trials.

I am usually in the position of saying that we need to respect the outcome of trials, because of the importance of our legal system, even with its flaws. We don’t want a potentate making the decisions, nor a mob, as in the French Reign of Terror. Our system, was intended to protect defendants, who were regularly given no rights, and then hanged, in the Middle Ages and beyond.

Even so, I am not happy with the results of some major trials, though I do not presume to know all the evidence, nor do I watch them for more than a few minutes. We don’t want people trying to overturn the system, because they don’t like a verdict. But the system has flaws, and there has never been a doubt that some defendants are afforded more rights than others.

It is hard to convict people of homicide, though certainly not impossible. It should be; if we are going to err, we would rather err on the side of not convicting. As with most aspects of society, there are always people trying to take advantage of, or game the system, to fix the odds in their favor. What to do about this, is obviously frustratingly difficult.

I thought that Kyle Rittenhouse was guilty of being an arrogant right-wing jerk who went across state lines with an assault weapon, wanting a chance to use it, and then doing so; and then apparently flashing white power signs. I did not watch much of the trial, I did not think that he would be convicted, particularly with Wisconsin having a rather extreme self-defense law. I didn’t see how he would be found guilty beyond a reasonable doubt, by twelve jurors.

As it turned out, he was found not guilty by all of them. And that upsets me, particularly in view of the political exploitation being made of it by the Far Right. Rittenhouse’s attorney decried that. But that won’t stop it, of course. We have so many major trials turning into proxies for political and cultural issues. That is sadly unavoidable, and further damages the legal system.

I have no definitive answers as to how to fix it, and I doubt that any person who actually has some knowledge of how laws and our legal system work, does, because it is so difficult to precisely change one aspect, without damaging another aspect–unless of course we become totally “outcome-determinative,” where nothing matters but the ultimate verdict. But I do know that If we have certain defendants who are immune from being convicted; if there are people who now feel that they are above the law, and that “everything is permitted,” as with Raskolnikov in Dostoevesky’s “Crime and Punishment,” then our legal system will end up being as fake and hollow as it was for all those centuries in Europe.